LGBTQ+ rights in the society

LGBTQ+ rights in the society

Author: Lakshita Mahajan ,1st year BALLB student at Institute of Law, Nirma University 

Abstract-

LGBTQ+ community have been in discussion since a long time, for whom leading a normal life have often been next to impossible. Even though, this community have conducted so many protests across the globe, still at many places they fail to even secure a legal recognition. The recent judgement passed by the Supreme Court of India of not legalizing same-sex marriage, have once again ignited this discussion about LGBTQ+ rights in the society, their status and provisions to govern them. Thus, this article discusses about the recent judgement of the Supreme Court, rights and status of LGBTQ+ community that they enjoy in India, legal provisions governing them and what are their conditions across the world. 

On 17th October 2023, Supreme Court, comprising of 5-bench judges passed the judgement on not legalizing same-sex marriage under the Special-Marriage Act 1954. This judgement of the court has been taken with mixed arguments. There are few observations that were made by the court, however before these we’ll delve into the question that what is a LGBTQ+ community and what is this Special-Marriage Act 1954. 

LGBTQ+ community or in its rawest form, the LGBT community is group of people who identify themselves as Lesbians, Gays, Bisexual and/or Transgender. This group has further expanded its definition to even include Queer, Intersex and Asexual. This group asks the people to accept them as they are and to think out of the conventional way of recognizing only two genders, male and female. The community takes pride in what they are, and throughout the course of history and even now have been fighting to get proper legal recognition along with social acceptance. The community talks about individuality and celebrates diversity in and around the community. Moreover, they, along with legal recognition of their existence, also calls for recognition of their relationship, their marriage, adoption rights, provisions for protection from domestic violence etc. 

Special Marriage Act 1954 is a secular personal law which provides an alternative for the couple belonging to different religion, faith, caste or even countries to register their marriage and legalize it. Thus, this act is applicable where both the couples without giving up their own religion, faith, etc. can still get married to the person belonging to some other religion, faith, etc. In Hindu Marriage Act or Muslim Marriage Act, if one partner is not belonging to the respective religion of that of their partner, they need to give their own religion and convert. However, no such compulsion is present in this act. Hence, this act upheld the right of the person to follow whichever religion they wish to follow along with their right to marry the person of their choice without comprising in any of them. 

The recent judgement that came by the Supreme Court thus was against legalizing same-sex marriage under Special Marriage Act 1954. The Indian law defines the family structure as comprising of a male and a female along with their offsprings. Therefore, incorporating LGBTQ+ community in this structure seems very difficult and time-consuming process. In the judgement, there were some issues that arose during the proceeding.

• Issues that were discussed in the verdict by Supreme Court-

1. The judgement held that the court not include or strike down any provisions of the Special Marriage Act 1954, since the role of judiciary to not to make amendments. The court emphasized that it was the role of the parliament and the state legislature to make relevant laws in this regard after careful discussions and debate over it. By referring to Article 245 and 246 the court highlighted the fact that under these articles, it is the duty of the parliament at centre level and state legislature at state level to make amendments or a new act whatever deems fit, at their own respective levels for legalizing same-sex marriage. 
2. There was also the question that can should the unions formed by queer people be recognised or not. The minority opinion asked the state to recognise queer union if not their marriage as one shouldn’t be discriminated against on the basis of their sexual orientation as prescribed in Article 15. 
3. On the issue of transgender marriage, the court affirmed that transgender people can marry under the existing act and affirmed that gender identity is different from sexual orientation. Thus, marriage of a transgender is valid and legal, that well incorporated in the existing law framework.
4. The court in its judgement also acknowledged the need for equal rights for queer couples in the areas of ration car, joint bank accounts etc. However, they also affirmed that there is disagreement over whether the judiciary or executive should make laws over it. 
5. The issue that queer couples, lesbian and gay couple etc. often faces backlash from their families and society, and police too plays a major role in helping their families. The court accepted that families and police are the face of the violence meaning that they often force these people, use violence against them etc. to return them back to their families. Thus, the court issued directions for the police departments to not forced the couples return back to their homes. 
6. Lastly, the argument raised by the government that same-sex relationships, marriage, union are unnatural or even stated them as non-Indian was well rejected by this verdict. The court emphasized the fact that if it does not get incorporated in the already functional family structure, it does not mean that these are unnatural. Moreover, LGBTQ+ community have been even accepted by several international organisations, and their rights has now been also considered as one of the important human right. Therefore, denying their existence and their relationship altogether is a gruesome action and should not be practiced. 

Thus, now we come to look into some of the laws that exist in India for LGBTQ+ community.

• Laws for LGBTQ+ community in India- 

1. Decriminalizing Section 377

Section 377 restricted the person who voluntarily carries out carnal intercourse with any other man, woman or animal. These people were punishable under law as they carry out sexual activity in an unnatural manner. In this scenario, the people doing so can get severe punishment till life imprisonment. In 2018, the Supreme court in Navtej Singh Johar vs Union of India AIR 2018 SC 4321 partly decriminalized Section 377, thus for the first time giving legal recognition to LGBTQ+ community and also allowing relationship between such couples. 

2. Transgender Persons (Protection of Rights) Act 2019 

It was in the year 2014, where the Supreme Court in the case National Legal Services Authority v. Union of India AIR 2014 SC 1863, when transgender was recognised as the third gender in India. Following the same line, a bill was introduced in 2014 regarding transgender rights in the society, which over time got delayed. It was in the year 2019, that this act was passed which ensured that transgender people are recognised by law. This act ensures the rights of the transgender people along with upholding welfare measures for them. 

3. Reservation for transgender person

Based on the same case, in 2014, transgender people were also made eligible for the reservation policy of the country. They were made eligible and given reservation under education and economic sphere to uplift them. This is under the welfare measures to help them be at par with other and for them to be really equal. 

4. Fundamental Rights-

Fair enough, the fundamental rights are applicable to every citizen of the country which include the LGBTQ+ community as well. Thus, they cannot be discriminated against on the basis of their sexual orientation under Article 14 and 15. They cannot be exploited covered under Article 19 and they deserve to upheld their dignity and self-respect and are also well entitled to Article 21 Right to life and Personal dignity and much other. 

Hence, these are few of the major rights that LGBTQ+ community are entitled to. Though the list is seemingly low, India is one of the few countries who have atleast recognised this community and deems their relationship valid too. They also allow these couple to be in live-in relationships. However, there are many countries in the middle-east and others which does not even do this. On the other hand, there are also some countries which have even recognised their marriage and give them the rights that other people in the country enjoys. 

• LGBTQ+ community around the world-

There are countries like Malta, Canada, Norway, Netherlands, Iceland, Sweden, Spain etc. which rank the highest in being friendly to these couple. They have laws to ensure their fair representation in the society, give them equal access to resources and treat fairly just like other individuals in the country. 

However, there are also countries like Saudi Arabia, Iran, Yemen, Brunei, Nigeria, Mauritania, Afghanistan etc. that outlaw homosexuality and punishes those individuals engaged in it with death penalty. These countries deals with such couples with very brutality and does not spare them if at all they are found to be engaged in any such activity. 

• Conclusion-

It can be said that the world on a whole is still not so welcoming for people who identify themselves something other than the conventional way of either being male or female. Even at places when they do enjoy legal rights, they may not still socially acceptable. Thus, it becomes very difficult for such couples to express themselves and they often continue to live in isolation, away from the world. ‘Love wins’ a popular slogan used by one of the most famous protest by LGBTQ+ community is known to all, but has a long way for this to become reality. Even in countries like India, where the couple enjoys legal recognition of their relationships, but still they do not enjoy marriage rights, adoption rights, or other rights to treat them with equality like straight couples. Therefore, the LGBTQ+ community still has a long way to go in order to get recognised in the society and get the respect that they deserve, since respect does not come with gender. Dignity and self-respect are two most important things that all the individual irrespective of their sexual orientation, background, or economic conditions. These are the dire need for survival which the LGBTQ+ community deserve in the society no matter what. 

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