INTRODUCTION
We celebrate a whole month of June, owning and embracing our gender identities and sexual orientations, and call it “Pride”. Pride is not just a symbol of homosexuality pursued by the LGBTQIA community, it is a symbol of hope and a journey towards acceptance of diversity among humans. From the first pride movement in 1992 to the decriminalisation of same-sex consensual relationships, we have come a long way. But have we? The Supreme Court in the Navtej Singh Johar case[1] observed that the destruction of individual identity would tantamount to the crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. Article 377 was held to be violative of Articles 14, 15, 19(1)(a), 19(1)(c) and 21. It was declared that members of the LGBTQ community are entitled, like all other citizens, to the full range of constitutional rights, including the liberties protected by the constitution.[2]
A very small yet significant step taken by the Kerala HC paves the way for normalising all sexualities. In Queerythm vs National Medical Commission[3], the Kerala High Court directed the National Medical Commission and Undergraduate Medical Commission to revise textbooks and remove queer-phobic content. Society has become more aware and more accepting of homosexuals since the decriminalisation of Section 377, but still, they are kept away from basic rights that heterosexual people enjoy like marriage, parenthood, inheritance, housing, etc. The denial of legal recognition of their rights does not only deny them the right to lead a normal and respectable life but also stops society from accepting them as normal families. They are discriminated against at work, schools and homeowners are reluctant to rent their houses to them because of the prevailing stigma.
The right to marry the person of one’s choice is a fundamental right, a facet of the right to life, Article 21[4]. Marriages between people of the same sex have still not been recognised legally. The marriage laws are heavily based on the idea of gender and preconceived notions of society regarding marriage. Denying someone a legally recognised marriage because of their sexual orientation is a violation of Articles 14, 15, 19, and 21 of the Constitution, and it overshadows the many precedents established by the Supreme Court. The inability to reproduce has always been a popular reason for denying this right. If this is the case, then marriage between an infertile woman and a fertile man, or vice versa, should be prohibited as well. Denmark, Australia, and the other 27 countries have long recognised same-sex marriages and claim that it strengthens the family system and society.
A WAY FORWARD
HARASSMENT AT EDUCATIONAL INSTITUTIONS
A study conducted by UNESCO on sexual orientation and gender identity revealed that 60% of queer students in the age group of 18-22 faced physical harassment in high school and 43% were sexually harassed.[5] It is not uncommon for children to be bullied and picked on for their gender identities, and it reflects the failure of our education system in protecting children and instilling values in them. 70% of teenagers and young adults experienced social anxiety, depression, poor academic performance, and other mental health problems[6]. Lack of awareness among teachers and authorities makes it harder for them to get proper redress. A 15-year-old boy committed suicide after being mentally and sexually harassed for “feminine behaviour” at school[7]. Another boy committed suicide due to mental harassment and transphobic comments[8]. To combat the problem of harassment and bullying, strict legislation, as well as sex education for youngsters and training for administrators, is required. Education regarding gender identities and sexual orientation is the need of the hour so that queer children get the same opportunities for growth as other children.
The UGC Anti Ragging guidelines, 2009 are effective in establishing an anti-ragging environment on campuses. The guidelines mandate both public and private institutions to investigate allegations of homosexual assault. In addition, UGC recognised gender identity and sexual orientation as grounds for ragging and discrimination in 2016. Despite that, queer people face discrimination and harassment, both mental and physical, by their peers and sometimes even teachers. Sometimes due to personal prejudices and other times due to a lack of knowledge about the situation, authorities fail to take appropriate action. To ensure that educational institutions become safe spaces for people of every gender and sexual orientation, it is important to raise awareness among teachers, students, and authorities. CBSE should formulate strict guidelines to ensure the inclusion and acceptance of such children in schools.
MARRIAGE LAWS
Homosexual marriages need legal recognition and the right to citizenship as heterosexual couples get. Section 5(c)[9] recognises a person married to an Indian citizen as an Indian citizen. In most countries, like the USA, obtaining a green card on the basis of marriage becomes difficult for queer partners because of no legal recognition of marriage in India. One of the major reasons for migration is more acceptance of queer people in social and professional spheres in other nations.
As most religions forbid homosexual marriages, a way to achieve marriage equality could be an amendment to the Special Marriage Act, 1954. The legislature could introduce a separate act and make provisions such that same-sex marriages could be on par with heterosexual marriages. Relationships in the form of civil contracts or civil partners, as introduced by Tasmania and the UK under the Relationship Act, 2003, and Civil Partnership Act, 2004 respectively, may cause others to view them differently. Instead of normalising homosexual marriages, it would promote them as a special group of people with different rights than others. When we say that homosexuality is normal, their rights must be also at par with other ‘normal’ people with few adjustments that logically apply.
INHERITANCE RIGHTS
Almost every religion recognises the spouse’s inheritance rights in the deceased’s property. Section 10[10] gives the right to the widow to inherit the deceased husband’s property, and Section 15[11] gives a similar right to a widower. In Muslim law, the spouse of the deceased inherits as a sharer. Although the Supreme Court has recognised live-in relationships, there are no defined inheritance rights. However, in Vidyadhari v Sukhana Bai, the Supreme Court allowed the live-in partner to inherit in the presence of a legally wedded wife as the relationship with the live-in partner continued for a long time. On the same grounds, homosexual partners should be allowed to inherit as domestic partners until there is a specific provision for marriage and inheritance.
ADOPTION AND SURROGACY RIGHTS
Adoption in India is regulated and taken care of by the central adoption resources agency (CARA). The adoption guidelines read with the Juvenile Justice Act do not expressly forbid same-sex couples from adoption, but the language used means heterosexual couples, which even excludes trans people from adoption. Section 5(3)[13] mandates a 2-year stable marriage between the adoptive parents. As marriage for same-sex or trans couples isn’t recognised, they are also denied adoption rights.
Surrogacy (Regulation) Act, 2021, allows only legally married men and women to undergo the procedure. The provisions make it difficult for even heterosexual couples to avail it. The legislature’s intent to protect poor women from being used as reproduction machines for commercial surrogacy has no rational nexus with the provisions and stringent requirements of the act.
CONCLUSION
By decriminalising Section 377 of the Indian Penal Code, the judiciary acknowledged the diversity of sexual orientations, yet acceptance remains a long way off. The guarantee of fundamental rights to every citizen is the core of a democracy, and limiting those rights to the LGBTQIA population based on their sexual preferences is a clear breach of natural justice principles. Humans are social creatures, and while the law cannot guarantee societal approval, it should not be an impediment. Rights such as a healthy and happy childhood, safety, marriage, parenthood, etc. are basic and should not be denied to anyone. Gender-neutral laws, the inclusion of sex education in school curriculums, mental health assistance, stringent laws against harassment and shelter for minors are some of the steps that can help build a healthy and safe society. As Justice Indu Malhotra said, “History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the “ignominy” and “ostracism” they have faced through the centuries”, and so do we.
Author(s) Name: Simran Kaur (Vivekananda Institute of Professional Studies, Delhi)
References:
[1]Navtej Singh Johar v Union of India Writ Petition (Criminal) NO. 76 OF 2016
[2]ibid
[3] Queerythm vs National Medical Commission W.P.(C) No.18210 of 2021
[4]Justice KS Puttaswamy (retd) and another v. Union of India and others, Writ Petition (Civil) NO. 494 of 2012. It was observed that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” Further, in Shakti Vahini v. Union of India, Writ Petition (Civil) No. 231 of 2010, SC opined, “It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected”
[5]Priya Menon, ‘LGBT bullying in schools takes a heavy toll, revels Unesco report’, (The Times of India, 10 June 2019) <https://timesofindia.indiatimes.com/india/lgbt-bullying-in-schools-takes-heavy-toll-reveals-unesco-report/articleshow/69718451.cms> accessed 8 June 2022
[6]ibid
[7]Pavneet Singh Chadha, ‘DPS Faridabad student commits suicide, blames school in suicide note; mother says bullied over sexuality’ (The Indian Express, 26 February 2022) <https://indianexpress.com/article/cities/delhi/delhi-public-school-student-suicide-sexuality-bullying-7791028/> accessed 8 June 2022
[8]“Not my fault I am gay…hate my life’: Youth kills self over alleged discrimination” (Hindustan Times, 10 June 2019) <https://www.hindustantimes.com/india-news/not-my-fault-i-am-gay-hate-my-life-youth-kills-self-over-alleged-discrimination/story-EnSKOqSIfiujQTC6mZlAyL.html> accessed 8 June 2022
[9] Citizenship Act, 1955, s 5(c)
[10] Hindu Succession Act, 1956, s 10
[11] Hindu Succession Act, 1956, s 15
[12]Vidyadhari&Ors vs Sukhrana Bai &OrsAppeal (civil) 575 of 2008
[13] Adoption Regulations, 2017, s 5(3)
