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Homosexuality Has Been Decriminalized, But the Struggle Is Far from Over- An overview till 2021

For a long time, the LGBTQIA community has fought for equal rights and respect, which should have been their inherent rights. It’s hard to imagine that in a country that claims to be the world’s largest democracy, it took until 2018 to repeal parts of Section 377 that criminalized all sexual activities “against the order of nature,” 71 years after the independence and 68 years since our Constitution was drafted. It wasn’t a simple task. In their pursuit of equality, the community encountered several setbacks.

The turning point came when, in Navtej Singh Johar v. Union of India, the Supreme Court declared unanimously on September 6, 2018, that Section 377 was unconstitutional “insofar as it criminalizes consensual sexual conduct between adults of the same sex.”

The court determined that LGBT people in India have all constitutional rights, including the liberties guaranteed by the Indian Constitution. “History owes an apology to the members of this community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality,” stated Justice Indu Malhotra.

Despite how significant this win is, it is only a minor step toward ending the community’s long history of discrimination and stereotyping. The community is still deprived of their right to marry, adopt, and serve in the military, apart from the social stigma they have to face, which includes but is not limited to not having access to the basic provision of sharing family insurance (due to non-recognition of same-sex marriages).

The Central Government has refused to back down in the case before the Delhi High Court to grant legal status to same-sex marriage, explicitly stating that it is against the natural order and Indian culture. The court is considering a plea wherein the gay community has demanded marriage rights under the Hindu Marriage Act, 1955. This is the first case demanding marriage equality in India since the historic 2018 ruling.

The Central Government filed an affidavit responding to petitions seeking to recognize same-sex marriage. The petition said, “Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognized under the laws of the country”. “Living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife, and children, which necessarily presuppose a biological man as a ‘husband,’ a biological woman as a ‘wife’ and the children born out of the union between the two.” 

This case’s most recent hearing was held on October 25, 2021. The central government refused to budge from its position about marriage being an affair between a biological man and a biological woman.

The last hearing of this case will take place on November 30, 2021.

A Ray of Hope

“Equality means more than passing laws. The struggle is really won in the hearts and minds of the community, where it really counts.” — Barbara Gittings.

Regardless of how dire the situation is, all hope is not lost. The mindset of the people is changing, and various states have made efforts to help the community on their own accord.

The IPSOS’ latest report, LGBT+ 2021 Global Survey, revealed the following points-

  • 59% of the surveyed Indians support LGBT people being open about their sexual orientation or gender identity with everyone, and 56% support LGBT athletes in sports teams openly.
  • 66% thought same-sex couples should have the same adoption rights as opposite-sex couples. Similarly, 59% believe that same-sex couples are as likely as other parents to raise children effectively.
  • 53% of Indians support laws prohibiting discrimination against LGBT people in work, education, housing, social services. They also support transgender athletes should be allowed to compete based on the gender they identify with rather than the sex they were assigned at birth. 
  • 44% of people were in favor of legalizing same-sex marriage.

State Governments are also taking individual actions in support of the community. Some of them are-

  • On April 22, 2019, the Madras High Court ruled that the term “bride” under the Hindu Marriage Act, 1955, covers trans women. It specifically ordered that marriage between a man and a transgender woman be registered.
  • In a recent case involving a lesbian couple reported missing by their parents, the Madras High Court not only advised the parents of the runaways to seek counseling, but the judge also underwent counseling to better understand the LGBTQ community and make the right decision. “Ignorance is no justification for normalizing any form of discrimination,” he said. The couple had fled their home following their parent’s disapproval of their love.

The judge also issued a series of directions to ensure the safety and well-being of the LGBTQIA community.

While giving the judgment in this case on June 7, 2021, Justice N Anand Venkatesh also prohibited Conversion Therapy, making Tamil Nadu the only state in India. Taiwan is the only country in Asia to ban conversion therapy.

  • One percent of all government jobs were reserved in Karnataka for transgender persons.
  • In its 2021-22 budget, Tamil Nadu budgeted 1.5 crores for a pension system for the trans community.
  • Kerala has decided to modify the textbooks to be gender-exclusive. It has also directed the National Medical Commission to revise medical textbooks to ensure that they do not promote queerphobia or disseminate inaccurate sexual orientation and gender identity information.
  • In a milestone decision, Odisha police permitted transgender people to be recruited in June 2021.

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