Last Updated: May 2023 (LGBT)
Table of Contents
This article deals with ‘LGBT ’. This is part of our series on ‘Society’ which is an important pillar of the GS-1 syllabus. For more articles, you can click here.
What constitutes LGBT?
Problems faced by the LGBT community
- Intolerance, discrimination and harassment are faced by them in society, including at home and schools.
- Marginalization in a society where heterosexuality is the only accepted norm.
- LGBT face continuous harassment at the workplace, and they can’t express their sexual orientation at the workplace.
- They face barriers to healthcare and housing.
Impact of above problems on LGBT community
- They tend to drop out of school and leave home and family.
- They are unable to find regular jobs.
- They become prone to drug abuse and suicide.
- They are prone to sexual diseases such as HIV.
Issue 1: Section 377 of IPC
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life and shall be liable to fine.
Course of Things
|IPC came to force
| Naz foundation case: Delhi High Court declared Section 377 to be unconstitutional. It was held that Section 377 violated Articles 21 & 14 of the Indian constitution.
|– Suresh Kumar Kaushal case – Supreme Court reversed the previous judgement of Delhi High Court & held the validity of Section 377.
– Supreme Court left it on Parliament to change it.
Supreme Court’s judgement in the Suresh Kumar Kaushal vs NAZ Foundation Case was equalled by experts with the Dred Scott case(1857), where the US Supreme Court denied the right of equality to negros.
|NALSA vs Union of India: Supreme Court recognised the third gender status for transgender people. Also directed the state to provide affirmative action to the LGBT community.
|Navtej Singh Johar v/s Union of India, 2018 case declared Section 377 of IPC as unconstitutional.
– Discrimination based on ‘carnal intercourse against the order of nature‘ is arbitrary and cannot be used as classification criteria for the purpose of legislative protection under the right to equality.
– Constitutional morality privileges over social or majoritarian morality.
Arguments to scrap 377
1. Cultural Aspect
- It is based on Victorian Era Morality, where sex without intent to produce a child was considered a sin.
- Books like Kamasutra, Mrichchhakatikam etc., shows that it isn’t part of Hindu culture. Hindu texts are not just open to homosexuality but treat gender as a fluid concept—for example, Lord Shiva’s depiction as Ardhnarishwara, i.e. half man & half woman.
2. Constitutional Aspect
It infringes upon fundamental rights like
- Right to Equality
- Right to Expression (sexual Expression)
- Right to Privacy (Part of Right to life after Justice Puttaswamy Judgement)
3. International Situation
- United States, Britain (from where we introduced this law in India) & Nepal (other Hindu nations) etc., have recognised LGBT rights.
4. Health Aspect
- It has led to the criminalisation of homosexuality as harassment by law enforcement agencies drives the LGBT community underground and increases the risk of HIV among the LGBT community.
5. Biological Aspect
- It is not against the order of nature.
- Homophilia is found in 450 species.
NALSA vs Union of India, 2015
The Supreme Court declared that
- Transgender people to be recognised as a ‘Third Gender.’
- Gave them the right to self-identification of gender as male, female or third gender.
- Transgender people are socially and economically backward classes; they should be granted reservations in admissions to educational institutions and jobs.
Issue 2: Transgender Persons (Protection of Rights) Act, 2019
Provisions of the Act
- Definition of Transgender: Transgender means a person whose gender does not match the gender assigned to a person at birth.
- Prohibition of denial of service to transgender people.
- Right of residence: Transgenders have the right to reside in their household.
- Welfare measures like rehabilitation, vocational training etc., should be provided to the transgender by the government.
- District Magistrate has been authorized to issue a Certificate of identity to transgenders.
- Offences and Penalties: Provision of imprisonment between 6 months and 2 years, and fine.
- National Council for Transgender persons (NCT) to be constituted to advise the central government wrt transgender persons.
Critical Appraisal of the Act
- In the NALSA v. Union of India judgment, the Supreme Court gave Transgenders the right to self-identify their gender as male, female or transgender. But the act doesn’t allow self-recognition of gender as male or female. It only provides for identity certificates as ‘transgender’. Ireland, Argentina and Denmark allow the transgender community to self-determine gender
- Supreme Court in NALSA Case provided for 2% reservation. But the act does not have the provision of reservation.
- It does not give positive rights such as the Rights of transgenders to the inheritance of property.