The Journey of LGBTQ Rights in India

Profile of the Author: Kanav Bharti Gupta is a BBA-LLB student at ICFAI Law School, ICFAI University, Dehradun.

LGBTQ individuals use a variety of terms to identify themselves and their communities. LGBTQ: The acronym for “lesbian, gay, bisexual, transgender and queer.”[1] Some people also use the Q to stand for "questioning," meaning people who are figuring out their sexual orientation or gender identity. It may also see LGBT+, LGBT*, LGBTx, or LGBTQIA {I stand for intersex[2] and A for asexual/aromatic/agender. The "A" has also been used by some to refer to "ally.

ORIGINS OF LGBTQ

Prior to the late-nineteenth century, the concept of having a distinct sexual identity did not exist, though people in the past lived lives similar to our modern understanding of what it means to be LGBTQ. Gay identity, as both a personal and political category, did not fully emerge until the mid-twentieth century. Historical terminology used to describe sexuality and gender often lacked the specificity that exists today.

The British sexologist Havelock Ellis, for example, referred to both people who we would today identify as gay or transgender as “sexual inverts,”[3]

The German scholar and human rights activist Karl Ulrich’s similarly used the term “Urning,”[4] which he described as a third gender existing between men and women. Male Urnings, in Ulrich’s’ formulation, were “male-bodied” people with the souls of women, and female Urnings were “female-bodied” people with the souls of men.

The term “homosexual,” coined in 1869 by the Hungarian doctor Karoly Maria Benkert, was not in popular usage till the early twentieth century. In the Mid-twentieth-century homosexual activists preferred the term “homophile” over homosexual, seeing it as a more neutral and acceptable option because it removed the word “sexual” while positively affirming same-gender attraction.

The word “Gay” emerged as an underground term in the early twentieth century and came into popular usage in the 1960s. The term was preferred by the Stonewall generation, who, contrary to their predecessors, were less likely to see being gay as shameful or a mental defect. Post-Stonewall activists sought to articulate a more radical position removed from the image of respectability homophile organizations sought to cultivate. Though today “gay” typically refers to men who are attracted to men, it was historically used as a broad term that encompassed the entirety of modern LGBTQ initialism.

Since the 1990s, different versions of initialism have proliferated as increasingly nuanced ways to understand and define people’s lived experiences of gender and sexuality are articulated. One expanded version of the initialism in use is LGBTQQIP2SAA, which stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual, and ally.

The LGBTQ initialism is not just a random collection of letters that represent identities; rather, these letters are history embodied. They tell the story of the modern LGBTQ Rights Movement, reminding us that our victories have been a long time coming, and have not been easily won. Today era shows there is much work to do, and LGBTQ people throw out the world still do not possess full federal equality.

WHAT IS LGBTQ?

LGBTQ or GLBTQ is an acronym for lesbian, gay, bisexual, transgender and queer or questioning. These terms are used to describe a person’s sexual orientation or gender identity.

• LESBIAN

Refer to a homosexual woman or a woman who is sexually attracted to other women.

• GAY

Refer to a homosexual man or a man who is sexually attracted to other men.

• BISEXUAL

A person who experiences sexual attraction to both men and women.

• TRANSGENDER

A person who is assigned to the male sex but identifies as a woman may be a transgender person. Conversely, a person who has been assigned the female sex at birth and who identifies as a man instead is also a transgender person.

• QUEER

An adjective used by some people, particularly younger people, whose sexual orientation is not exclusively heterosexual. Typically, for those who identify as queer, the terms lesbian, gay, and bisexual are perceived to be too limiting and/or fraught with cultural connotations they feel don’t apply to them.

• QUESTIONING

Sometimes, when the Q is seen at the end of LGBT, it can also mean questioning. This term describes someone who is questioning their sexual orientation or gender identity.

ACCEPTANCE OF LGBTQ BY INDIAN COURTS

Indian equal rights activists have undertaken a long and arduous journey to decriminalize same-sex relationships. They had tasted their first victory when the Delhi High Court in July 2009 decriminalized homosexuality among consenting adults. However, in December 2012 the Supreme Court, quashing the High Court order, held that the order was legally unsustainable. In 2015, the Lok Sabha voted against the introduction of a private member's bill to decriminalize homosexuality, proposed by Congress MP Shahs Tharoor, indicating that the BJP led NDA Government was not in a hurry to legalize homosexuality.

Reference of Cases Naz Foundation (India) Trust v. Government of NCT of Delhi (2001)[5]

• High Court stressed the importance of upholding the values of equality. tolerance and inclusiveness in Indian society.
• Issue related to LGBTQ is not new in India from the early 2000s only the government and the citizen are playing different roles for this community.

In the case of Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust[6]

• In this judgment court, itself is under challenge and pending hearing in open court under curative petition.
• After the Suresh Kaushal judgment, the SC has put the ball in the court of parliament to repeal or amend the law. However, the parliament seemed to be withdrawing from its responsibility when it did not even allow many bills to pass in favour of the LGBTQ community.

But after the judgment of case Navtej Singh Johar v. Union Of India[7]

• The court recognized sexual orientation as a “natural and inherent“ biological phenomenon, and not a matter of choice.

The Court found that the criminalization of sexual acts between consenting adults violated the Right to Equality guaranteed by the Constitution of India.

While reading the judgment, Chief Justice Misra pronounced that the Court found "criminalizing carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional."

The court ruled that LGBTS in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India.

EVOLUTION OF LEGAL RIGHTS RELATED TO LGBTQ+

• Section 377, a part of the Indian penal code. It defines,” unnatural offences”.
• It is rooted in the legacies of British colonial states wherein it was introduced by Lord Macaulay in 1860 as a part of IPC.
• One of the grounds of the introduction of the section was homosexuality or acts against the order of nature are condemned by the bible.
• 6th September 2018 has become a historical day in India. On that day India joins the 125 nations where homosexuality is legal. By decriminalizing gay sex.
• The supreme court decriminalized consensual intercourse between persons of same-sex and read down section 377 of the Indian penal code, thus providing a huge boost to the LGBTQ community of India, under the judgment of case Navtej Singh Johar v. Union of India [8].

As per Section 377, it was a punishable act to have intercourse with any man, woman or animal against the order of nature, meaning homosexuality and bisexuality was both outlawed.

The rule was first enacted in 1861 under British rule, previous to that there was no law governing sexual intercourse in India. What the verdict means is that the LGBT community would be able to indulge in consensual sex freely. There is an exception though; the Supreme Court has rightfully protected animals against attempts by humans who have intercourse with them that shall still remain under the purview of crime.

With time a group of well-known LGBT rights activists, N S Jauhar, journalist Sunil Mehra, Chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur approached the SC which agreed to reconsider the issue. The petition claimed their rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-3 of the Constitution, are violated by Section 377.

The sexual orientation of each individual in the society must be protected on an even platform, for the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

References:

[1] Queer: Originally used as a pejorative slur, queer has now become an umbrella term to describe the myriad ways people reject binary categories of gender and sexual orientation to express who they are. People who identify as queer embrace identities and sexual orientations outside of mainstream heterosexual and gender norms.

[2] intersex: Born with sex characteristics such as genitals or chromosomes that do not fit the typical definitions of male or female.

[3] sexual inverts: persons who exhibit same-gender attraction and a gender presentation socially contrary to the sex one was assigned at birth.

[4] Urning: persons whom today we might describe as gay, Trans, or genderqueer.

[5] 160 Delhi Law Times 277

[6] Civil Appeal No. 10972 OF 2013

[7] W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016

[8] W. P. (Crl.) No. 76 of 2016; D. No. 14961/2016

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