May 12, 2022, 7:50 p.m.
Pens of Law students
AUTHOR'S PROFILE: Nishka Kapoor is currently an undergraduate student at NALSAR University of Law, Hyderabad. She is interested in Human Rights, Gender Studies, and Constitutional Law. The views expressed are personal.
The landmark judgment [i], which decriminalized homosexuality in India, was a significant step in promoting LGBTQ rights in the country. It ought to remove prejudices and stereotypes based on gender identity, and most sections of society welcomed the step. However, some more work still needs to be done to create awareness about gender equality in the country.
One of the most progressive states in the country in terms of providing equal rights to people belonging to the LGBTQ community, Tamil Nadu has taken some of the very essential and crucial steps to make the state inclusive, and very recently, it amended a provision to protect the LGBT+ people from police harassment, this law is a vital step in sensitizing the society towards the people now confining to the gender binary.
In 2014, people belonging to the transgender community in the country were recognized as ‘third gender’ in NALSAR v. Union of India[ii]. This judgment is of paramount importance because it was one of the earliest steps to make the country more inclusive and create awareness about gender equality. This decision also laid down several guidelines for removing the stigma associated with people not confining to the gender binary and creating public awareness about their rights; this was done to ensure that people from the LGBTQ community get proper representation in the public arena and can exercise their rights without any hindrance.
Despite NALSAR’s judgment reiterating the rights of the LGBTQ community and putting more focus on societal aspects of recognizing them and accepting them as they are without discriminating against them based on gender identity, still more work needs to be done to sensitize the society. While there has been progressing globally and locally in creating a safe space for the LGBTQ community, societies have started to become more sensitive towards them. However, we still hear about many incidents where people belonging to LGBTQ face discrimination, violence, abuse, and harassment on the stereotypes formed about them. So, there is still a long way to become a completely gender-inclusive society, and it will be achieved soon when both government and society work together to protect their rights.
Despite various judgments and laws reiterating the acceptance of the LGBTQ+ community in the country, they face several difficulties because they do not confine to the gender binary and are often the victims of unequal and unlawful treatment because of stereotypes about gender identity other than ‘male’ and ‘female’.
This discrimination and gender stereotyping have led many people belonging to the LGBTQ+ to be in a ‘closet’ despite four years of the decriminalization of Section 377 in the country; the reason behind this is the lack of acceptance they face. Many people in society still don’t accept them or don’t want to accept them because of the deeply entrenched inequality against them[iii]. Gender identity and sexual orientation are one’s choices, and they shouldn’t be imposed on anyone. Everyone is entitled to this right, meaning everyone has a right to identify themselves with any gender they want to and not only to the gender binary. They shouldn’t be discriminated against it.
It has been seen in the country and worldwide that people belonging to LGBTQ+ continue to face setbacks and still struggle to have and uphold the rights that people confined to the gender binary have. Because of that, they face discrimination and unlawful treatment in almost all the social aspects such as healthcare, schools, jobs, and even unlawful arrest, torture, and killings. Many are even denied recognition because apparently, they are considered “unnatural”, the reason being, that they don’t identify themselves as ‘male’ or ‘female’.
Among these, one of the major ongoing difficulties that the LGBTQ+ community faces are that of police harassment against them[iv]. So majorly, they face this discrimination because of their gender identity and sexual orientation, and it’s because of the beliefs that people have formed because of the stereotypes and myths about them. Such discrimination and verbal and physical abuse burn the bridges between them and the authorities. It also weakens the community's trust in the system meant to protect everyone.
There have been several incidents in India where people belonging to the LGBTQ+ community were harassed by police. For example, in Kolkata, a gay man on his way was forced by two Civic Police Volunteer Force on a bike to accompany them to the nearby police station. They verbally and physically assaulted him when he refused and forced him onto their bike. And without knowing the crime when he was taken to the police station. The police officers and volunteers asked him inappropriate questions and made derogatory remarks about his gender and sexual identity and told him that because he doesn’t confine himself as a ‘male’, they thought he had bad intentions and arrested him.
Recently, in January this year, a similar incident occurred in Tripura where four LGBTQ friends came out from a hotel, and a photojournalist and a few policemen started asking them questions about their gender identity and sexual orientation and gender shaming them. They were forcefully taken to the West Agartala Women Police station, where again they faced verbal abuse by the police officers, and they were also forced to write a statement that they would never cross-dress, and if they did, they might be arrested.
Despite both the NALSA judgment and decriminalization of Section 377 emphasizing gender equality and sensitization towards non-straight identities, such discrimination based on gender and stereotypes formed against them happen and these are some of the many such incidents and the way to stop these unlawful activities there should be proper legislation which puts an end to these practices.
The verbal and physical abuse against the people from the LGBTQ+ community by law enforcers and authorities in society undermines their trust, which fails the implementation of laws to meet the needs of the people in society. These incidents also show the urgent need to create gender awareness in the public sphere and sensitize law enforcement authorities toward people from the LGBTQ+ community.
Such unlawful and indiscriminate incidents violate the major human and fundamental rights of these individuals. Such as the Right to Equality, is one of the significant rights that everyone is entitled to irrespective of gender, class, caste, race, color, etc and it is safeguarded under Articles 14 and 15 of the Indian Constitution as well under Article7 of the Universal Declaration of Human Rights. It also violated Article 21 of the Indian Constitution, which gives every individual Right to Life, and in Maneka Gandhi v. Union of India[ix]. The Supreme Court held that the Right to Live is not merely a physical right but includes within its ambit the Right to Live with Human Dignity[x], and unlawfully arresting and abusing people belonging to the LGBTQ+ community does violate their Right to Live with Human Dignity. And even article 3 of the Universal Declaration of Human Rights states that Everyone has the right to life, liberty, and security of a person, but such unlawful treatment majorly goes against the basic rights of the people. And when such cases are not reported by the LGBTQ+ people and they are not able to open up about incidents because most parts of the society do not accept them and so they might not be heard, this adversely affects Article 19 of the Indian Constitution, which provides every individual Right to Freedom of Speech and Expression. [v] [vi] [vii] [viii]
It is necessary to firstly, enforce the existing legal protection that LGBTQ+ people have, meaning the protection of their existing fundamental and constitutional rights. This can be ensured by adopting a mechanism to check if the laws are being implemented properly and are reaching the targeted audience and are beneficial to those who genuinely need them. And the other step that could be taken to protect the LGBTQ+ community against cops’ harassment could be by making legal provisions for the same and they should be explicit, meaning should be followed properly and puts a stop to this discrimination. Harassment by police goes against Article 9 of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, which states about the security of a person, and that no one shall be subjected to arbitrary arrests. Making legal provisions on this matter is vital as it would most importantly help in upholding the human rights of people belonging to the LGBTQ+ community, help build a bridge between them and authorities and make society more accepting.
Tamil Nadu has been one of the most progressive states in protecting LGBTQ+ rights in the country[xi]. The state has launched many programs and schemes for the welfare of the LGBT community and also to make society inclusive and more accepting of them. The state legalized same sex-sexual activities in 2018. It is also the first state that gave transgender access to free sex reassignment surgery in government hospitals and was also the state that banned the inhuman and unlawful practice of conversion therapy and banned sex-selective surgery on intersex infants.
Recently, in February this year, Tamil Nadu became the first in the country that amend existing laws to protect the LGBTQ+ community and its NGOs from harassment by cops [xii]. This decision came in the case where a lesbian couple was harassed by police and they went missing after this incident. And so, this decision came to spread awareness about homosexuality, and stop any form of discrimination against them.
This is a very significant decision in sensitizing police toward LGBTQ+ and reducing abuse against them. And if this law is implemented properly, it would help people from the LGBTQ+ community to open up about their identity and sexual orientation and would also be a vital step in upholding their primary fundamental and human rights.
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