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Lack of Human Rights for LGBT. (Gautami Seth) www.whiteblacklegal.co.in ISSN: 2581-8503 VOLUME 2 : ISSUE 7 || MARCH 2021 || Email: [email protected] Website: www.whiteblacklegal.co.in 1 www.whiteblacklegal.co.in ISSN: 2581-8503 DISCLAIMER No part of this publication may be reproduced or copied in any form by any means without prior written permission of Editor-in-chief of White Black Legal – The Law Journal. The Editorial Team of White Black Legal holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of White Black Legal. Though all efforts are made to ensure the accuracy and correctness of the information published, White Black Legal shall not be responsible for any errors caused due to oversight or otherwise. 2 www.whiteblacklegal.co.in ISSN: 2581-8503 EDITORIAL TEAM EDITOR IN CHIEF Name - Mr. Varun Agrawal Consultant || SUMEG FINANCIAL SERVICES PVT.LTD. Phone - +91-9990670288 Email - [email protected] EDITOR Name - Mr. Anand Agrawal Consultant|| SUMEG FINANCIAL SERVICES PVT.LTD. EDITOR (HONORARY) Name - Smt Surbhi Mittal Manager || PSU EDITOR(HONORARY) Name - Mr Praveen Mittal Consultant || United Health Group MNC EDITOR Name - Smt Sweety Jain Consultant||SUMEG FINANCIAL SERVICES PVT.LTD. EDITOR Name - Mr. Siddharth Dhawan Core Team Member || Legal Education Awareness Foundation 3 www.whiteblacklegal.co.in ISSN: 2581-8503 ABOUT US WHITE BLACK LEGAL is an open access, peer-reviewed and refereed journal provide dedicated to express views on topical legal issues, thereby generating a cross current of ideas on emerging matters. This platform shall also ignite the initiative and desire of young law students to contribute in the field of law. The erudite response of legal luminaries shall be solicited to enable readers to explore challenges that lie before law makers, lawyers and the society at large, in the event of the ever changing social, economic and technological scenario. With this thought, we hereby present to you WHITE BLACK LEGAL: THE LAW JOURNAL 4 www.whiteblacklegal.co.in ISSN: 2581-8503 Denying Humanity: Lack of Human Rights for LGBT. By : Gautami Seth 5 www.whiteblacklegal.co.in ISSN: 2581-8503 ABSTRACT Rights of the LGBT community have been in dispute for many years. LGBT stands for Lesbian, Gay, Bisexual and Transgender. LGBT activism raised the issue of gender identity and sexual orientation and insists on its normalcy. The research is an attempt to understand the history and evolution of LGBT rights in India, while focusing on the role played by the legislature and judiciary in promotion and protection of the community. This review paper, based on secondary data collected through online blogs and journals, analysis the provisions which are insufficient to protect the fundamental rights of the community. INTRODUCTION Today the world faces a crucial question, whether LGBT rights fall under basic human rights. In the UN, this question has slowly but surely taken the spotlight. The UN has played a significant role in advancing and protecting human rights of the LGBTQ community1. The Universal Declaration of Human Rights (UDHR) is a landmark document in the history of human rights, which states that “All human beings are born free and equal in dignity and rights”2 and “All are equal before the law and are entitled without any discrimination to equal protection of the law”.3 The International Covenant on Civil and Political Rights (ICCPR) recognizes the latent dignity of individuals. It states “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.4 Every individual, including LGBT people, have the right to protection provided by international human rights law, which includes right to life, liberty, and dignity. The United Nations High Commissioner for Human Rights is in charge of UN human rights activities. The High Commissioner is assigned to respond to gross violations of human rights and to initiate preventive action. In 2001, they decided to increase their focus on human rights violations based on gender identity and sexual orientation.5 However, it was not until 2008 that LGBT rights were discussed on an international level. On December 18, 2008 a joint Statement on Human Rights, Sexual Orientation and Gender Identity was read in the UN General Assembly.6 The United Nations Human Rights Council, in 2011, passed a wide-ranging resolution on Human Rights, Sexual Orientation and gender identity. They became the first 1 Ten Ways the United Nations has Protected LGBTQ Human Rights, available at: https://www.hrc.org/news/ten-ways-the-united-nations-has-protected-lgbtq-human-rights (last visited on 28 December, 2020) 2Universal Declaration of Human Rights, art.1 < https://www.un.org/en/universal-declaration-human- rights/index.html > 3Universal Declaration of Human Rights, art.7 < https://www.un.org/en/universal-declaration-human- rights/index.html > 4 International Covenant on Civil and Political Rights, preamble < https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx > 5Violence and discrimination against LGBT: Law is all you need? A comparative legal analysis between Belgium and the Netherlands, available at: http://arno.uvt.nl/show.cgi?fid=133520 (last visited on 31 December, 2020). 6 Joint statement on ending acts of violence and related human rights violations based on sexual orientation & gender identity, available at: http://download.ei-ie.org/Docs/WebDepot/Joint%20statement_FINAL.pdf (last visited on 25 December, 2020) 6 www.whiteblacklegal.co.in ISSN: 2581-8503 intergovernmental body to do so. Resolution 17/19 highlighted the concern at violence and discrimination against people, based on their gender identity or sexual orientation7. They also requested a study on the extent of violence and the challenges faced by the community as well as steps needed to address them. This resulted in the first UN report focused on LGBT issues named ‘Discriminatory laws and violence against individuals based on their sexual orientation and gender identity’8. In July 2013, the U.N. High Commissioner for Human Rights launched an education campaign named Free & Equal designed to promote understanding of human rights of LGBT people9. India’s stand on LGBT rights has been a little confusing. In 2010, it voted in favour of an amendment to a resolution at the General Assembly on extra judicial execution and supported the view that extra-judicial killing on grounds of a person’s sexual orientation is a crime. It also voted in favour of UN Economic and Social Council (ECOSOC) accreditation of LGBTI NGOs. However, their position was conservative after that. In September 2014, resolution 27/22 called on the UN Human rights chief to update a report on sharing good practices to overcome discrimination based on sexual orientation. India along with 6 other countries were on the abstention bench. Thereafter, in March 2015, India supported a Russian drafted resolution that opposed spousal benefits for LGBT UN staff. India along with a few other members voted in favour of the draft resolution. 37 members abstained and others voted against it, ultimately defeating the resolution. The resolution was aimed at overthrowing then secretary general's decision to recognize same sex marriage for all UN staff granting them UN benefits. Before this resolution, a staff member's marital status was determined by laws in their country. On June 30, 2016, UNHRC adopted a resolution on "Protection against violence and discrimination based on Sexual orientation and gender identity"10, instructing the appointment of an independent expert on the subject. UDHR states that all humans are born equal and free and should not be discriminated against, yet many individuals face challenges and discrimination because of their sexual orientation or gender identity. To address this concern, UNHR council created the mandate of independent expert on protection against violence and discrimination based on sexual orientation and gender identity (IE SOGI) 11.The resolution was initially created for a period of 3 years, the mandate was later renewed in June 2019.On 11 July 2019, India was once again presented with the opportunity to display it's understanding and respect for the Constitution of India by voting on a resolution that mandates an independent expert on sexual orientation and gender identity. However, India joined a few other members in abstaining from the vote12.This decision received widespread criticism and 7 UN General Assembly, Human rights, sexual orientation and gender identity, GAOR, UN Doc A/HRC/RES/17/19 (July 14, 2011) 8Combating discrimination based on sexual orientation and gender identity, available at: https://www.ohchr.org/en/issues/discrimination/pages/lgbt.aspx (last visited on 30 December, 2020). 9Cassey Crafford, “UN unveils ‘Free & Equal’ campaign to promote lesbian, gay, bisexual, transgender rights”, UN News, July 26 2013, available at https://news.un.org/en/story/2013/07/445552-un-unveils-free-equal- campaign-promote-lesbian-gay-bisexual-transgender-rights#.UjMGvsa-2So (last visited on 29 December, 2020) 10 UN General Assembly, Protection against violence and discrimination based on sexual orientation and gender identity, GA Res 32/2 , GAOR, UN DCOC A/HRC/RES/32/2 (July 15, 2016). 11 Independent Expert on sexual orientation and gender identity, available at: https://www.ohchr.org/en/issues/sexualorientationgender/pages/index.aspx (last visited on 22 December, 2020) 12 Devirupa Mitra, “Despite SC Ruling, India Abstains Again on Vote on LGBT Rights at UN”, THE WIRE, 13 July 2019, available at: < https://thewire.in/diplomacy/india-abstains-again-on-vote-expert-lgbt-rights-at-un > 7 www.whiteblacklegal.co.in ISSN: 2581-8503 rightly so. Back in 2016, when India abstained from voting, the reason given was that the Supreme Court is yet to pronounce on the issue.
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