Marching hand in hand with LGBTQ

This article was written by Ishaa Ajay, a student at Sastra University.

ABSTRACT

Every individual is different, depending upon the way they are, the way they act, the way they dress and the way the love. The emergence of LGBTQ is forming the politics of “desire” and more importantly re-scripting the formation of family, marriage. Thus this article focuses on the community that is encapsulated by the acronym LGBT and highlights the importance of recognizing them.  Also, in some contemporary scientific discourse, and in the popular media, these groups are routinely treated as a single population under umbrella terms such as LGBTQ. The article further deals with the human rights of homosexual individuals which comprise the right to non-discrimination in the enjoyment of these rights. The researcher hence also tries to unveil the situation prevalent aftermath the landmark judgment of de-criminalisation of Section 377 and the international perspective of LGBTQ.

INTRODUCTION

Gay marriage is the buzz word in the present time. Some consider it as a stigma to the society and yet others regale and celebrate as the freedom maintaining ones sexuality is granted. Sexual orientation refers to the gender that a person is attracted to, classifying it into three parts:Heterosexual, Homosexual and bisexual. A simple definition of Homosexual is the physical attraction of people towards the same sex. Homosexual males are termed as Gay and their counterparts as Lesbians[1].Gay/lesbian people are represented in all walks of life, across all nationalities, ethnic backgrounds, and in all social and economic groups.Earlier the word Homosexual was deemed to have a negative connotation by some early writers as it specified only ones sexual desires as opposed to their romantic feeling thereby using it alternative contraction LGBT.

LGBT is a vulnerable group carrying the risk of being exposed to discrimination and physical violence. Additionally, LGBT individuals are all over the world being deprived of their human rights and not only by states considered as conservative regimes by the human rights society but also by modern democracies. Such an example is the right to marry, a human right which in many states is not accessible for LGBT individuals. Thus same-sex relationships, regardless of their existence are not legally recognized as a marriage in most of the countries and as a result of which homosexual partners are deprived of the legal and economic privileges enjoyed under the marital status.

EVOLUTION OF THE CONCEPT OF HOMOSEXUALITY

Ancient India’s acceptance and adherence of varied forms of eroticism within its beliefs and culture including the Homoeroticism has been well written down in the Vedic Puran. Hinduism believe the process of creation, moves in cycle and that each cycle has fur Yuga or Epochs namely:  Satya Yuga, Treta Yuga, Dwapar Yuga, and Kali Yuga[2]. According to the fourth Yuga that is Kali Yuga, many forms of sexuality are accommodated within itself such as prostitution, polygamy, courtesan, etc. Homosexuality is referred as a separate and third nature (Tritiya- Prakriti)[3].Mention of the Homosexuality dates back to the ancient period with references made in notable epics of Mahabharata and Kama Shastra and in scriptures such as BhagavataPurana. One of the oldest Homosexual festival namely “Koovagam festival” dates back to the third century BC. It celebrates the story of Lord Krishna taking up the form of a woman to marry Aravan before the battle of Mahabharata[4]. But on contrary to it, Manusmritione of the oldest texts is against the acceptance of Homosexuality/ LGBT individuals. One of the most fundamental themes of dharma in Manusmritiis the need to produce offspring for the continuation of civilization. It states that “men who do not copulate for the sake of progeny are unworthy of making offspring to the gods and ancestors”. Thus according to the sacred text any man who cannot participate in promoting nuclear families, sexual relations which do not result in progeny are considered as failing the purpose and mission of Hindu life[5].The Kama Sutra has a chapter on same-sex love. The apparent acceptance of boy lovers in Mogul and lesbianism in the confines of harems are well-known facts of state approval and recognition of homosexuality.

Christian fundamentalists also quote that their Biblical text states that same-sex intercourse as iniquitous. They enunciate that such sexual acts are forms of sexual immorality and totally against the law nature.

Also,the Muslim sacred text “Quran” condemns avowedly against Sodomy/Liwat and Heterosexual as well. The text denounces it as unethical, immoral and criticizes its men for going to men instead of women, the punishment of which varies from Judge’s discretion to the same punishment as fornication to execution based on the command from Muhammad of disputed authenticity.

HUMAN RIGHTS FOR LGBTQ

Human rights are universal and equal for all individuals. This universality idea which shines has its background traced long back in the history[6]. The first constitutional document in 1776 was presented by the US Declaration of Independence, which stated that all men are created equal by their creator the almighty with certain absolute right- life, liberty and the pursuit of happiness[7].The history of Human rights specifies how these vulnerable groups are given protection rights through various forms of a treaty which has in fact resulted in the formation of conventions such as The Convention on the Elimination of All Forms of Discrimination against Women and The Convention on the Rights of Persons with Disabilities. But still, there is no treaty law regarding the protection of Homosexual individuals, which makes us ponder on the question regarding Universality. Where is the Universality when it comes to human rights for LGBTQ.

Human rights today can be seen as a progressive right. The only prerequisite for the attainment of human rights is being born as a human. Same as above regarding the matter dealing with LGBTQ individuals they must also be seen as equal to any other human beings considering the Universal Declaration of Human Rights. But as the times go by, these LGBTQ individuals are subjected to non-sanctioned discrimination, violence, and torture. This act can be seen as the specific domination of a group targeting a group that they consider as “less human”. This kind of discrimination of other vulnerable groups can be easily distinguished, for example, women subjected to gender discrimination and groups subjected to racism[8].  The legitimate progression and thorough understanding of the rights of LGBTQ individuals are something that affects us no matter what our sexual orientation is. Yet there are several numbers of states where the Homosexuality is deemed to be illegal and yet other states where same-sex individuals are engaged in sodomy[9]. A transgender person is still a human no matter how that person identifies his or her own gender and no matter how that individual expresses his or her gender identity.

STATISTICAL ANALYSIS

The histogram[10] above shows that 73.10% heterosexual than gay/lesbianand bisexual persons were reported to be married and/or lived with a steady partner as compared to gay/lesbian and bisexuals. A larger proportion of bisexual or gay/lesbian participants were highly educated compared to heterosexual participants. Also, bisexual and gay/lesbian persons were more likely to live in highly urbanized areas compared with heterosexual persons.As far as mental health is concerned gay/lesbian was found to be more unstable than the heterosexuals. They were found to be more susceptible to depression. In the matter regarding their physical condition, the gay/lesbian was found more prone to symptoms of nervousness and anxiety.Serious intestinal problems, migraine, severe headache, and urinary incontinence were also more frequently reported by gay/lesbian than by heterosexual people.Finally,it was found that the proportion of gay/lesbian persons with 1 or more chronic conditions remained significantly larger than the proportion of heterosexual persons[11].

UPSWING OF 377 AND THE LEGAL POSITION

Section 377 of the Indian Penal Code which criminalises homosexuality was introduced in the era 1861 during the British rule. The section states that whoever has carnal intercourse which is against the order of nature shall be imprisoned for 10 years along with fine[12]. The history of which was penned down by Lord Macaulay, the president of the Indian Law Commission. Though not explicitly stated the term “voluntary” in the section totally negotiates consent and deems it irrelevant. Therefore any act of oral, anal, thigh sex along with mutual masturbation, are punishable even when two consenting adults may indulge themselves in the act[13].

Dating back into the history the transgender community was accorded a general status. Even in the Vedic era they were considered as a third gender and were considered to have the power to give blessings. But after the advent of the British rule in India, this was completely changed and the transgender community was treated inhumanly. Thus in National Legal Services Authority v. Union of India[14]the transgender community was accorded with the status of “third gender”, granted them the status of self-identification as well as affirmed their fundamental rights.

Article 14 of the Indian Constitution states “Equality before the law.” It prevents the citizens of the country from discrimination among themselves. This article thus does not restrict the word “person” and its applicability to only male and female. Thus with the initiation of the rights of the Homosexuals, they thus fall under this category of equal protection for all.

Article 15 prohibits discrimination on grounds of religion, race, caste, sex and provides for affirmative actions for the advancement of the minority and backward class. Thus Homosexual individuals are considered to be minorities and were long denied their rights under Article 15(2) are rightful to be accredited with the status as similar to that of the other recognised individuals.

Also in Maneka Gandhi v. Union of India[15] and Francis Coralie v. Union territory of Delhi[16], The expression “personal liberty” in Article 21 is of extensive amplitude and covers a variety of rights that constitute the personal liberty of man, some of which have beenraised to the status of Fundamental Rights and given additional protection under Article 19. It also states that no person can be deprived of his rights except according to the procedure established by law and it should be just and fair. Thus the act or the procedural work of criminalising homosexuality is discriminatory and violates Article 21, therefore declared as unconstitutional.

Aftermath of which the Delhi high court had decriminalised homosexuality in 2009 stating that it was incompatible with Article 14, Article 15 and Article 21 of the Indian Constitution[17]. However, in 2013 the Supreme Court had reversed the judgment finding it “legally unsustainable”[18]. Nevertheless the much-awaited verdict of the Supreme Court in Navjot Singh v. Union of India[19] upheld and reinstated the faith of the homosexual individuals in a 5-0 judgment the Supreme Court had corrected the error in Suresh Kumar case. Former Justice DipakMisra had invoked the doctrine of non-retrogression, which means that once a right is recognised, it cannot be reversed. Justice Indu Malhotra had also stroked a poignant note where she said the “history owes an apology to the LGBTQ community for the delay in providing the redress”.

The weakening of Section 377 thus makes a welcome departure from the years and years of heteronormative philosophy.

INDIA’S APPROACH AFTER THE VERDICT

Coming out as a homosexual individual is and will never be an easy task even in a society which nurtures modern values as well as supports and protects the communities value and culture.

A Case Study of ArnabNandy which went viral and was a much-hypedstory.  The revelation of his sexuality through Facebook where he shared a picture of his family where he can be seen seated between his parents, who are holding up a poster saying: “MY SON IS NOT A CRIMINAL ANYMORE” was an eye-opener to the nation as his parents without any inhibition and shame accepted their son identity. He also reiterated that changing the attitude of people towards the LGBTQ is an uphill task but a change has to over and has to be done as early as possible[20].

CONCLUSION

Undoubtedly the road to the sexual rights of the LGBTQ community being recognised in this country has been a bumpy one. Being homosexual is not a choice. A person born so cannot be forced to live a life as similar to that of heterosexuals. It is the sole right of the person to make a decision about his or her life and act on it. If not support, protect or understand their state of mind and the pressure that they have in their head we as the remaining majority citizens have no right to criticise and look down upon and condemn them. One of the major revolutions in the history of LGBTQ was the acceptance to pass same-sex marriage in Taiwan[21], making it the first place in Asia to do so. As per the statistical report there are almost 76 countries where homosexual activities between two consenting adults is illegal, 8 countries where LGBTQ people are at the risk of death penalty and 26 countries where same-sex marriage is legal[22]. But around the world there are five countries namely, Bolivia, Ecuador, Fiji, Malta and the UK which have constitutions that explicitly guarantee equality for citizens on the basis of sexual orientation as well as gender identity and five other countries Mexico, New Zealand, Portugal, South Africa and Sweden where the constitutions provide protection based on sexual orientation[23]. Though a few countries have accepted and bestowed upon them rights and benefits the majority have yet to do so. It is high time that we shed our prejudice and biased opinion about them and take a big step towards equality.

[1]Sexual Orientation and Gender Identity 101, UNITARIAN UNIVERSALIST ASSOCIATION, https://www.uua.org/lgbtq/identity.

[2]BhibuDevMisra, The end of the Kali Yuga in 2025: Unraveling the mysteries of the Yuga Cycle, GRAHAM HANCOCK, (July 15, 2012), https://grahamhancock.com/dmisrab6/.

[3] Walter Penrose, Hidden in History: Female Homoeroticism and Women of a “Third Nature” in the South Asian Past, Vol 10, No 1.JOURNAL OF THE HISTORY OF SEXUALITY, 3-39(2001).

[4]Michael Edison Hayden, Koovagam, India’s Largest Transgender Festival, Opens, N.Y. TIMES, May 1, 2012.

[5]DevduttPatttanaik, What do Manusmriti and Dharmashastra have to say about homosexuality? , DEVDUTT (December 30, 2016), https://devdutt.com/articles/applied-mythology/queer/what-do-manusmriti-and-dharmashastra-have-to-say-about-homosexuality.html.

[6] MOECKLI, SHAH & SIVAKUMARAN, INTERNATIONAL HUMAN RIGHTS LAW 15-23, (Oxford University Press 2d ed., 2014).

[7] The US Declaration of Independence, 1776, paragraph 2.

[8] JACK DONNELLY, NON-DISCRIMINATION AND SEXUAL ORIENTATION: MAKING A PLACE FOR SEXUAL MINORITIES IN THE GLOBAL HUMAN RIGHTS REGIME 553-558.

[9]Discrimination and violence against individuals based on their sexual orientation and gender identity, UN HUMAN RIGHTS COUNCIL, May 4 2015, 13.

[11]Theo G.M. Sandfort et al, Sexual Orientation and Mental and Physical Health Status: Findings From a Dutch Population Survey, vol 96(6). PMC, (2006).

[12] Indian Penal Code, Section 377.

[13]Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, Vol.41. EPW (2006).

[14] (2014) 5 S.C.C. 438.

[15] A.I.R. 1978 S.C. 597.

[16] A.I.R. 1981 S.C. 746.

[17]Naz Foundation v. Government of NCT Delhi, 160 Delhi Law Times 277.

[18] Suresh Kumar v. Naz Foundation, (2014) 1 S.C.C. 1.

[19](2018) 1 S.C.C. 791.

[20]SomakGhoshal, Life after Section 377, LIVE MINT( Dec 15, 2018, 08:31 AM), https://www.livemint.com/Leisure/o5TVfO7DY1vrs75aY94BTP/Life-after-Section-377.html.

[21] Julie Hollingsworth, Taiwan legalizes same-sex marriage in historic first for Asia, CNN, May 17, 2017

[22] Rosamond Hutt, This is the state of LGBTI rights around the world in 2018, WORLDS ECONOMIC FORUM( June 14, 2018), https://www.weforum.org/agenda/2018/06/lgbti-rights-around-the-world-in-2018/.

[23]Carla Denly,LGBT rights and protections are scarce in constitutions around the world, UCLA study finds, UCLA( June 27,2016), http://newsroom.ucla.edu/releases/lgbt-rights-and-protections-are-scarce-in-constitutions-around-the-world-ucla-study-finds.