The legal rights of the LGBTQ community have been issued for a long period, especially for a country where laws were made and kept for implementation for a longer period. Section 377 of the Indian Penal Code was observed in India till September 2018. The country was in ambiguity, on one hand, the support looks no boundaries, but it is truly where there is support there is a criticism. The roar of the disagreement to bring LGBTQ into the society was as loud as the people who were in favor.
In the case of Naz NGO, removing a provision from section 377 IPC the court never really remove such a section from the Indian Penal code. On the contrary in the case of Navjet Singh v. Union of India (the turning point of the war) extends the support of the community but at the same time, the said case does not provide any specific guidelines.
To look forward for the implementation of the dissolution of such stigma upon the relations of the said community the laws shall be prevailed. The world along with its population lives with a hope to reconcile the facts and recognize the voice of millions belonging to the community.
This article concentrates on the evolution of rights of the LGBTQ community and that light upon the struggle they face.
Community Legal Rights in India
As per the census, the community does not enjoy any specified legal rights to date. It is worth mentioning that after so many implications members of such a community can have consented sexual intercourse with their partner but with certain exceptions. The same is not criminalized now to protect the fundamental rights that are embodied in the Indian Constitution.
One can say that the scope of their legal rights is less than that of any person outside of this community enjoys. For instance, permission to register their legal marriage is still not a right given to them.
- It is observed in a case where a couple from Kerala on January 2020 belonging from LGBTQ went for the registration of marriage under the special marriage act, 1954.
However, the administration rejected their contention of getting married and held that there is no such law that permits marriage between such people under The Special Marriage Act, 1954.
Although focusing on the provisions under the Act, the same never denies any person from getting register for their marriage. The discriminating agent never applies for such an act. One can hence showcase to the viewers that there is a long way for India to impose civil rights for the citizens in concern.
The rights for the protection of one’s dignity, values, or harmony are not being impliedly granted to the members of the LGBTQ. Not only has this done the protection against crime not hold any significance for their lives in the eyes of law.
Crimes Forum.
Crimes related to domestic violence, sexual harassment, human trafficking are still visible at a high rate among the transgender.
The crimes from which they go through are not only difficult to report as the law is usually silent on such issues but also it is difficult to create awareness between the citizens going through. According to the Protection of Women from Domestic Violence act, (2005), women going through the violence can report the crime but the provision has not been extended to any transgender person or any person who is of neutral gender in nature.
The Transgender (Protection of Rights) Bills Of 2016 And 2028
This is an attempt by the country to provide rights and liberties to all the citizens of this community. But depending on their needs and social circumstances, however, such provisions fail to satisfy them.
Questions related to sexual harassment and rape of women started emerging. The concern was solely put upon the court to decide as to what punishment is to be implied on any person committing such crimes on the LGBTQ community. The same bill fails to satisfy the needs of any people from this community.
Failure of the bill emerged as a second chance for the community with the upcoming Transgender (Protection of Rights) 2019, which was passed in Jan 2020. Not much was attempted but the improvement of social status among the community was somewhat visible.
International Scenario of LGBTQ Community
One can see a huge wave of protest and changes in the system over the last decade. It is noted that over the year 30 countries have created separate provisions and national laws that work for the LGBTQ community. Further provided the laws relating to the marriage between them are noted by the makers of the constitution.
The black point prevails where orthodoxy is still found deep down somewhere in the society. Apparently 73 jurisdictions have been criminalized privately which primarily concern the consensual intercourse between the embers of such community. Further, 45 jurisdictions across the world have criminalized sexual intercourse between women. Lastly, 15 countries criminalize the identification of LGBTQ and held them under public offenses.
But looking on the positive side there is a lot that has already been achieved in the scenario. However, if we take the example of Indian people belonging to the community enjoy as much right as a normal citizen of not belonging to the community enjoys. This is clear that progress is still emerging out of the suffering one made earlier. Also, some countries like Ecuador, Australia, Taiwan, etc. have parameters same-sex marriage.
Many achievements have been concluded in India as well as in other countries with the hope that the same can be on the top.
First Major Victory
In the case of Naz v. Government of NCT of Delhi[1] , this was a case of a Delhi High Court judgment. Naz an NGO filed a suit before the High Court for the suggestion to decriminalize section 377.
The suit was initially dismissed by the High Court on the ground that the NGO do not have Locus Standi. However, after appealing before the Supreme Court the Hon’ble court held that the plaintiff shall file PIL before High Court.
The PIL was filed before the High Court of Delhi in 2001. On 2nd July 2009 after 8 years the High Court of Delhi gave its decision, stating that the right to equality under Article 14 of the Indian Constitution was not upheld due to the provision of 377 of IPC. Hence, the section has stuck partially.
According to the high court, the consensual intercourse between adults of the member of this community is no longer a criminal offense.
A Major Leap
In the case of Navtej Singh v. Union of India[2], 5 bench judges fruitfully gave the decision on 6th September 2018 to declare section 377 of IPC as unconstitutional in the eyes of law.
The court held that due to such provision fundamental rights under articles 14, 15, 19, and 21 had been violated for all members belonging to such community. Moving further the members were given equal protection of law including citizens without discrimination.
However, more rights and civil liberties are to impose on such citizens to give them the best life they deserve.
Conclusion
The judgment of 2018 is just a step forward by the Supreme Court in the emergence of the LGBTQ community in the society. A lot can be done to make progress in a particular field. The prevention of domestic violence, labor assault, sexual violence, or harassment among the community member should be considered while formulating the laws for them.
The protection for them in the workplace should not be neglected merely based on the criteria of their being transgender. Further, laws of protection and education policies should be inherited by the constitution to make them enjoy their life at a proper pace.
FAQs
Question 1; How Does A Person Come to Know That He/She Is A Transgender?
Answer: For many people realizing that they are transgender can take place at any stage of their life. Being known that they are transgender can be both emotional as well as effective to one’s mental health. Depending upon the conditional factors of one’s family the person suffers on its own. People who belong to orthodox family suffer more than the person belonging to a broad-minded family.
Despite of all the factors India is lucky to be introduced as a country where the council for LGBTQ has decriminalized the factors against them.
Question 2; Major Differences Between: Intersex and Transgender?
Answer. Transgender- Having gender identity opposite to what you already possess. Basically, genes or body identity related to your opposite gender.
Intersex- Male and female whose body falls within the ambit of identical crises are generally known as intersex in character.
References
- https://www.apa.org/topics/lgbt/transgender
- https://www.webmd.com/sex/features/transgender-what-it-means
- https://www.merriam-webster.com/dictionary/transgender
- https://www.britannica.com/topic/transgender
[1] 2ND July 2009
[2] 21st August 2018
