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VOLUME 2 : ISSUE 7 || MARCH 2021 ||

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WHITE BLACK LEGAL: THE LAW JOURNAL

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Denying Humanity: Lack of 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 , Gay, Bisexual and . LGBT activism raised the issue of and sexual orientation and insists on its normalcy. The research is an attempt to understand the history and evolution of LGBT rights in , 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 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 and the , 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 . 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 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, ”, 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--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. However, in 2018, the apex court decriminalized making their position crystal clear. Officials did not provide any explanation for their vote. The decision to abstain from voting in favour of the 2019 resolution does not make any sense. This abstention is disappointing and troubling as it is quite clear that the constitution of India guarantees protection to all from violence and discrimination. India is the largest democracy in the world; however, its officials have shown little disposition to encourage constitutional vision through foreign policy. It should be noted that the apex court in a number of unprecedented decisions upheld the rights of the LGBT community. The progress made by the court, should have been enough to embolden the government to act. When India decided to abstain from voting, it showed a serious lack of respect for the apex court and the values enshrined in the Constitution.

LGBT ACTIVISM

The concept of “LGBT” is not a new phenomenon. Various scriptures, anthropological and archaeological evidence have confirmed existence of LGBT in all primitive societies in the world13. Religious institutions and preachers warned people against sexual relationships between individuals of the same sex, this stigmatized homosexuality. Sexuality and gender identity are a complex and multifaceted phenomenon. Most countries around the world, consider it a taboo subject, and India is no different. Even though the LGBT community is often a target for hate crime and discrimination all around the world14, social movements led by allies and activists have made it possible to reach a stage where members of the community are not considered ‘sick’ and there is more acceptance of their rights.

In the early 16th century, Britain categorized homosexual behaviour as not just immoral but also a criminal offence. Laws against the LGBT community framed during the British rule had led to criminalization of “unnatural offences” in various colonies. Similarly, in 1870s, criminalized same sex male relationships.15The Scientific-Humanitarian Committee was established in 1897 by Hirschfeld along with Max Spohr, Franz Josef von Bülow, and Eduard Oberg16. This was the first gay rights organization, with the main objective of abolishing Paragraph 175 of the German Imperial Penal Code, which criminalized sexual relationship between men. Even though the committee failed to win the repeal, homosexual men and women of Germany experienced a newfound freedom. In bigger German cities, gay nightlife was permitted, and gay publications also increased. However, this sense of freedom ended when Adolf Hitler came into power. Outside of Germany other organizations and committees were also set up. The British Society for the Study of Sex Psychology was founded in 1914 by Edward Carpenter and Havelock Ellis17. Despite formation of such groups, the community was

13 Homosexuality, available at: https://plato.stanford.edu/entries/homosexuality/ (last visited 20 November, 2020) 14 Nearly 1 in 5 hate motivated by anti-LGBTQ bias, FBI finds Of the incidents involving sexual- orientation bias, 60 percent targeted ., available at: https://www.nbcnews.com/feature/nbc-out/nearly-1- 5-hate-crimes-motivated-anti-lgbtq-bias-fbi-n1080891 (last visited on 15 November, 2020) 15 Michael Levy, “Gay rights movement”, Encyclopedia Britannica, 2020, available at: https://www.britannica.com/topic/gay-rights-movement (last visited on 26 November 2020) 16 Aleksandra Djajic-Horaváth, “Magnus Hirschfeld”, Encyclopaedia Britannica, 2020, available at: https://www.britannica.com/biography/Magnus-Hirschfeld (last visited on 26 November, 2020) 17 The Editors of Encyclopedia Britannica, Havelock Ellis, Encyclopedia Britannica, 2020, available at: https://www.britannica.com/biography/Havelock-Ellis (last visited on 27 November 2020)

8 www.whiteblacklegal.co.in ISSN: 2581-8503 harassed and discriminated against. In the mid-20th century, several more organizations formed, including The Cultuur en Ontspannings Centrum, Mattachine Society18, and Daughters of Bilitis19. In 1957 the Wolfenden Report20 issued by a commission headed by Sir John Wolfenden, suggested that private homosexual relationships should be decriminalized. It took a decade before the suggestion was implemented. The most defining moment for gay activism was the Stonewall riots. Early morning on June 28, 1969, Stonewall Inn, a gay bar in New York City was raided by the police. Following which 400 people joined a riot that lasted 45 minutes and continued on succeeding nights. “Stonewall” came to be celebrated annually in June with Gay Pride celebrations21, not only in U.S. but also in several other countries.In 1978 the international lesbian and gay association22 in was established England. It plays an important role in promotion and protection of LGBT rights. In 1977, an American gay rights Activist named Harvey Milk was elected to the San Francisco Board of Supervisors. Tammy Baldwin23 was the first openly gay leader to be elected to both houses of the US Parliament. From being considered 'sick' to getting elected to hold political positions, social movements really helped pave the way for the LGBT community to get access to all basic rights like others. Since 1970 important issues that gay rights movements have been focusing on are combating HIV/AIDS epidemic, funds for its research, campaigning for anti-discriminatory policies in all fields, putting an end to the ban on military service for members of the community and improving laws related to hate crimes. In 2015, President Barack Obama signed a legislation which repealed the "Don't ask, Don't tell"24 policy, which allowed LGBT individuals to serve in the military as long as they don't reveal their sexual orientation. This repeal officially ended the ban on homosexuals in the military. In Obergefell v. Hodges25, the US Supreme Court recognized the right of same sex couple to get married.

LGBT activism all around the world inspired Indian activists and allies to campaign for LGBT rights in India as well. The World of Homosexuals, written in 1977 by Shakuntala Devi is the first study of . The book was a compilation of interviews with homosexual men.26 In 1981, the All-India Conference was held in Agra and was attended by 50,000 members. On 2nd July 1999 India witnessed ‘friendship walk’, the first ever . The parade was carried out in and had 15 participants.27 In 1992, 18 people were arrested from Connaught place on the ground that they were about to engage in homosexual acts. The AIDS Bhedbhav Virodhi Andolan organized a protest for the same. it was in 1991, that ABVA presented a report titled "Less Than Gay: A Citizen's Report on the Status of Homosexuality in India". This was the first ever document to

18 The Editors of Encyclopedia Britannica, Stonewall riots, Encyclopedia Britannica, 2020, available at: https://www.britannica.com/event/Stonewall-riots (last visited on 28 November, 2020) 19 Rebecca Barnes, Daughter of Biltis, Encyclopedia Britannica, 2020, available at: https://www.britannica.com/topic/Daughters-of-Bilitis (last visited on 28 November 2020) 20 The Editors of Encyclopedia Britannica, Wolfenden Report, Encyclopedia Britannica, 2019, available at: https://www.britannica.com/event/Wolfenden-Report (last visited on 29 November 2020) 21 The Editors of Encyclopedia Britannica, Gay pride, Encyclopedia Britannica, 2019, available at: https://www.britannica.com/topic/Gay-Pride (last visited on 29 November 2020) 22 available at: https://ilga.org/ 23 A Brief History of Civil Rights in the , available at: https://guides.ll.georgetown.edu/c.php?g=592919&p=4182197 (last visited 26 November, 2020) 24 Gay rights, available at: https://www.history.com/topics/gay-rights/history-of-gay-rights (last visited 25 November 2020) 25 576 US (215) US. SC. 26 Ankit Srivastava & Vivek Kumar, “ AND LGBT ACTIVISM IN INDIA”, 6 International Journal of Research and Analytical Reviews 30 (2019) 27 Supra note 15

9 www.whiteblacklegal.co.in ISSN: 2581-8503 demand queer rights in India.28They filed the first Public Interest Litigation in high court challenging the constitutional validity of Section 377. However, due to the fear of public persecution, the queer community did not support the PIL and it was dismissed. Sakhi, the first ever Indian lesbian group was set up in October 1992, attempted to educate people regarding lesbianism in India. In April 1994, leading gay activist started the first openly gay community-based organisation, ‘’ which focused on several issues such as ‘coming out to self and family, dealing with legal issues of gay men and health and human rights’. In recent times the LGBT community has gained visibility in the virtual world as well

Sangama, a bilingual organisation which founded in 1999, has a comprehensive list of LGBT NGOs across India on its website. Equal India Alliance is a ‘non-profit organisation which aims to build welcoming environments for India’s LGBT community’29. Project BOLO, which means ‘Speak Up’, ‘records and documents profiles of LGBT people who have, in their own way, stood up for what they believe in and challenged norms and stereotypes loaded on them by the society’30. The explosion of mass media led to spread of LGBT activism in the entire country. Inspired from international and national movements, LGBT activists and allies strived and succeeded in scraping of Section 377 which decriminalized same sex relationships.31

However, even though homosexuality has been decriminalized in India and there are certain legal provisions for advancement of transgender people, the members of the community are still not treated equally. Recently, three couples filed petitions, two in the Delhi High Court, and one in the High Court, arguing that the state’s refusal to recognise their marriages violates their constitutional rights.32 In this paper, we discuss how the LGBT community is still unable to access their fundamental rights.

DECIHPHRING ‘LGBT’

LGBT is short for lesbian, gay, bisexual and transgender. These terms refer to an individual's sexuality or gender identity. Earlier, the word "gay'' was used as a blanket term for the whole community. However, many members of the community felt the term is not a precise representation of everyone in the community and was replaced by a broader term 'LGBT'.

The letter L, G, B refer to sexuality. Sexual orientation/sexuality means desire. It is a term used to describe the pattern of romantic and/or sexual attraction. Sexual orientation may include attraction to the same gender (homosexuality), a gender different than your own (), both men and women (), all genders (pan-sexual), or neither (). Sex can be determined by either hormones or physical representation i.e., organs, but gender is the society’s interpretation of sex. In the words of Simone de Beauvoir, “One is not born rather becomes a woman”33. Gender can

28 Homosexuality debating issues in the light of Indian legal and social system an analytical research, available at: http://hdl.handle.net/10603/191572 (last visited on 10 November 2020)

29 Available at: https://twitter.com/equalindia?lang=en 30 Available at: http://humsafar.org/wp-content/uploads/2018/03/Project-Bolo-Write-Up-2.pdf 31 Navtej Singh Johar v. Union of India W. P. (Crl.) No. 76 of 2016 32 Demands for same sex marriage in India gains momentum, available at: https://www.rfi.fr/en/international/20201114-demands-for-same-sex-marriage-in-india-gathers-momentum (last visited on 10 November 2020) 33 Judith Butler, “Sex and Gender in Simone De Beauvoir's Second Sex.” , 72 Yale French Studies 35-49 (1986). Available at: https://doi.org/10.2307/2930225

10 www.whiteblacklegal.co.in ISSN: 2581-8503 either be masculine, feminine, both or none. Gender identity refers to an individual's self-conception of their gender as male, female, both or neither. Lesbian refers to girls/women who are sexually and/or romantically attracted to women. Gay refers to boys/men who have sexual and/or romantic attraction for other men. This term is sometimes also used for women. Bisexual refers to an individual who is sexually and/or romantically attracted to both men and women. Sexual experience in all the above mentioned is not a mandate. The letter 'T' refers to transgender. It is an umbrella term which covers everyone who identifies as anything but cis gender. It includes transgender i.e., an individual whose gender identity differs from what is associated with the sex they were born with, genderqueer i.e., an individual who is either questioning their gender identity or experience their gender as fluid, non-binary/gender-fluid i.e., an individual who does not identify as one gender specifically and it also includes i.e., a category of individuals who identify as neither male nor female, or both or as a combination of both genders. The term 'trans' is used more commonly for the entire community as it is more inclusive. The letter 'Q' is added to the acronym to make it more inclusive. It stands for queer. Individuals use this term when their sexuality is not exclusively heterosexual. However. The letter could also mean questioning, which means someone who is questioning their sexuality or gender identity. Hijra is an institutionalized third gender in India. It refers to a person who is neither male nor female.

OBJECTIVE

The main objective of this research is to understand and analyse

 UN’s role in promotion and protection of LGBT rights and India’s stand.  Evolution of LGBT activism  LGBT existence during Ancient India  Origin and Evolution of legal provisions regarding the LGBT community  LGBT rights as fundamental rights  Provide suggestions to make laws gender inclusive.

STATEMENT OF PROBLEM

The Supreme Court, in 2018, decriminalized same sex relationship in Navtej Johar v. Union of India34, on the grounds that it is discriminatory and a violation of fundamental rights. It has been a little over two years since the judgment, yet many LGBT people face discrimination, humiliation and violence35. People are thrown out of their houses when they disclose their sexual orientation or gender identity. The researcher is trying to analyse the effectiveness of striking down section 377, how it is affects the

34 W. P. (Crl.) No. 76 of 2016 35 Janis Rafiq, “Being LGBT in India: Some home truths”, 11 International Journal of Scientific & Engineering Research 199 (2020)

11 www.whiteblacklegal.co.in ISSN: 2581-8503 ability of the LGBT community to exercise their basic rights and provide certain suggestions to make laws more gender inclusive for protection of LGBT rights as fundamental rights.

LIMITATION OF STUDY

The reader is cautioned that the research has its limitations. When discussing the control and regulation of sexuality and identity, the role of the society is far from complaisant. Other than law, the society at large, dictates the terms for acceptability of desires. Therefore, it is important to look at the personal experiences of members of the community to understand how the society treats them now. However, a decent sample size could not be arranged for interviews due to the COVID-19 pandemic and has not been mentioned in the paper. This paper is on no account comprehensive and conclusive in listing the legal issues faced by the LGBT community in India.

RESEARCH METHODOLGY

In order to get better insight into the evolution of rights of the LGBT community, researcher has adopted Doctrinal method of research. The research is based on secondary data collected through various law journals like academike, India law journal, international journal of applied research, journal of Indian law and society, International journal of law and legal jurisprudence studies and International Journal of Research and Analytical Reviews. Method of data collection also includes review of literature and history of homosexuality. To understand, whether the community should have access to the same rights as others, e-data sources that are JSTOR, Manupatra, Shodhganga, and Researchgate has been referred to for various research papers and judgments by the Supreme Court and high courts. The research is based on exploratory study of LGBT community and their legal position in India, for which a qualitative approach has been used. The Research Design was intended to throw light on the current position of legal provisions provided for protection and promotion of LGBT rights.

LGBT THEMES IN ANCIENT INDIA

Religion is a major factor in historical and modern development of law. Religion permeates every aspect of social development of human life36. It moulds the perspective of not only an individual but an entire community. Our morals and prejudices are all influenced by religion. It is believed that homosexuality is a concept of the modernised society and did not exist in the ancient world. Certain people believe that homosexuality was considered wrong or unacceptable across various religions and cultures. However, there is plenty proof in religious scriptures that the LGBT community has existed for a long time and even accepted in certain instances. One look at Hindu mythology makes it very

36 Erwin Akhverdiev & Alexander Ponomarev, “Religion as Factor in Formation of Law: Current trends”, 50 SHS Web of Conferences (2018)

12 www.whiteblacklegal.co.in ISSN: 2581-8503 clear that ancient India did accept homosexuality.37 The Dharmashatras give importance to heterosexual marriages but also acknowledge homosexual relations and seek to restrict them with fines without overtly criticising them in moral terms. In homosexual sex refers to sex between a man and menstruating woman or having sex during the day38. Such acts involve purification as punishment. Failure to purify can lead to loss of caste. Contrary to popular belief, Manusmriti doesn’t punish homosexuality, it punishes violation of virginity. It lays down the punishment of cutting off of two fingers when an old woman has sex with a young virgin boy and the same punishment is prescribed for a man who violates the virginity of a woman. The emphasis is not on gender but on virginity39. The of Kautilya , charges a fine for consenting oral/ between not only men and men but also men and women. The fine is similar to the ones charged for minor theft and it increases if the act was non-consensual. However, it is important to remember that not everything in was governed by Brahmin texts. Charvaka states that the intrinsic human nature must be respected and since sex is a normal human need, it must be celebrated and not judged.

Mahabharata, one the major epics of ancient India is dotted with LGBT themes. It was believed that to take revenge on Bhishma, Amba was reborn as Shikhandini. She was the eldest child of King Drupada and was raised as a son, later named Shikhandini. On the 10th day of the battle, Arjuna used as a shield to defeat Bhishma. Another instance from is when during his last year of exile, Arjun had taken a vow to live as a for a year and hence, dressed as a woman named Bhrinnala and taught singing and dancing to King Virat's daughter, princess Uttara. Lord Krishna himself turned into a woman named Mohini. Arjuna's son, 's last wish before he died was to get married and since no woman came forward, Krishna transformed into a woman and married him40. Today Iravana is considered a patron-god by some members of the Trans communities. Another famous epic, Ramayana also mentions homosexual relationships. According to the Ramayana written by Valmiki, Lord Hanuman witnessed 'Rakshasnis' kissing women whom their king Ravana had earlier kissed41. Another example of LGBT existence is . Goddess Parvati wanted to partake in all of Shiva's experience and hence wanted their physical forms to join. This androgynous form is known as Ardhanarishvara. Lakshmi-Narayan is another androgynous form that is just as well known. There are mentions of the third sex in Manusmriti as well. It explains the origin of the third sex.'' A male child is produced by a greater quantity of male seed, a female child by the prevalence of the female; if both are equal, a third-sex child or boy and girl twins are produced; if either are weak or deficient in quantity, a failure of conception results. ''42 The sculptures at the Khajuraho temple are a physical proof that homosexuality has been a part of our culture for a long time. The temple located in was built in the 12th century. Upon his visit to the temple, US-based techie

37 Kavita Kane, “Storytelling: LGBT themes in Hindu mythology”, , 14 July 2020, available at: < https://indianexpress.com/article/parenting/blog/storytelling-lgbt-themes-in-hindu-mythology-5273332/ > (last visited on 29 December,2020) 38 , “What do Manusmriti and Dharmashastra have to say about homosexuality?”, QRIUS, August 9, 2018, available at< https://qrius.com/what-do-manusmriti-and-dharmashastra-have-to-say-about- homosexuality/> 39 A Hindu Approach to LGBT Rights, available at: https://swarajyamag.com/culture/a-hindu-approach-to-lgbt- rights 40 M.Michelraj, “Historical Evolution of Transgender Community in India”, 4 Asian Review of Social Sciences 17 (2015) 41 Srija Sanyal and Abhik Maiti, “A DISCORDANT HARMONY – A CRITICAL EVALUATION OF THE QUEER THEORY FROM AN INDIAN PERSPECTIVE”, 5 International Journal of Asian History, Culture and Tradition 15 (2018)

42 Subhajit Debnath, “The Third Gender: It’s a start”, academike (2015), available at: https://www.lawctopus.com/academike/third-gender-start/ (last visited on 30 December, 2020)

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Hrishikesh Sathawane wrote: “If you think homosexuality is a western concept, go to Khajuraho... It is debatable if these things were socially acceptable in India, but they existed.”43 The sculptures depict women kissing other women and men embracing other men. Kamasutra an ancient Indian text on sexuality, eroticism and emotional fulfilment in life, perceives marriage between two people of the same sex as a "union of love and cohabitation without the need for parental approval".44 It is evident that transgenderism and homosexuality has been represented and deliberated in ancient Indian culture in a liberal and celebratory way.

Origin and Evolution of Legal Provisions for LGBT

 Buggery Act of 153345

Section 377 was brought into force during the pre-independence era. The section was drafted by Thomas Macaulay in 1838 and was modelled on Buggery Act 153346.The Parliament of England passed The Buggery Act in 1533, when Henry VIII was the king. The law was imposed in India as well through recommendation of the first under Macaulay. The section defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalizing anal penetration, bestiality, and homosexuality, in a broader sense. The act not only applied to sex between men but also between men and women and a person with an animal. Convictions under the act were punishable by death. It was the first time in law that people saw LGBT people being persecuted by the government.47 It was in 1828 that the act was repealed and replaced by The Offences against the Person Act48. This new act was the main idea behind section377. The Act allowed for easier persecution of homosexuals and also broadened the definition of unnatural sexual acts.

186049

Section 377 as defined under the Indian Penal code states:

377. Unnatural offences. —whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

43 Sanjana Ray, “Indian Culture Does Recognise Homosexuality, Let Us Count the Ways”, The Quint, 11 September 2018, available at:< https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian- culture-section-377#read-more > (last visited at 26 December 2020) 44 On gay sex, India has assumed an ancient position. Read the Kamasutra, available at: https://www.scmp.com/week-asia/politics/article/2164299/gay-sex-india-has-assumed-ancient-position-read- kama-sutra 45 Buggery Act, 1533 (25 Hen. 8 c. 6) 46 Jérôme Grosclaude, “From Bugger to Homosexual: The English sodomite as criminally deviant (1533- 1967)”, XIX (1) Revue française de civilisation britanniquen 31-46 (2014), available at: https://hal.uca.fr/hal- 01272782/document

47 The men killed under the Buggery Act, available at: https://www.bl.uk/lgbtq-histories/articles/the-men-killed- under-the-buggery-act (last visited 29 December, 2020) 48 The Offences against the Persons Act, 1828 (9 Geo. 4 c. 31) 49 Indian Penal Code, 1860 (Act no. 45 of Year 1860)

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Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

This was a colonial era law which was retained by India even after independence. The section criminalized consensual sexual intercourse between people of the same sex. It was termed as an "unnatural offense" which is ''against order of nature''. The law was used to persecute people engaging in homosexual activities and oral and anal sex. Even though the word ''homosexual'' is nowhere used in the section, this law has been primarily used to target members of the LGBT community. People under this section were punished with ''imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to pay a fine.'' A part of the section was struck down by the Supreme court in 2018.

 Criminal Tribes Act 187150

The act targeted “criminal tribes’’. The British labelled criminals based on hereditary caste occupations. It mainly referred to people who travel around and have a nomadic lifestyle. They criminalised eunuchs and required police to register the ones who were ‘reasonably suspected’ of sodomy, kidnapping and . In the British era, Hijras were viewed as a public nuisance, completely ignoring the cultural significance of hijra badhai51. Administers in British era claimed that hijras kidnapped children. In 1947, a committee set up by the Bombay government started looking into the matter of criminal tribes. The act was repealed in 1949 and led to decriminalisation of 23,00,000 tribes.

 Naz Foundation v Govt. of NCT of Delhi52

Section 377 had been a highly controversial topic for a long time. It was in 2001, that the Naz Foundation filed a public interest litigation (PIL) in the high court of Delhi, challenging the constitutional validity of section 377. They argued that the section by criminalizing sex between consenting adults of the same gender, infringes their fundamental rights to life and liberty. Sadly, in 2003, the case was dismissed on the grounds that the NGO had no right or capacity to bring action in the particular matter (locus standi). The foundation appealed to the Supreme Court, which agreed with them and instructed high court to reconsider the case.

Finally, in 2009, Justice A.P. Shah, then chief justice of the Delhi high court, and Justice S. Muralidhar delivered a momentous judgment decriminalizing sexual acts between consenting adults. It was after nearly 165 years that homosexuality was no longer a criminal offence in India. Section 377 was held to be violating Article 21, 14 and 15. However, after several appeals to the supreme court, questioning the high court's authority to make this law. on 11th December 2012 the Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya overturned the decision taken by the Delhi High Court. stating that the court “overlooked that a miniscule fraction of the country’s population constitutes , gays,

50 Criminal Tribes Act, 1871 (ACTNO. 27 OF 1871) 51 The long history of criminalising Hijras, available at: https://www.himalmag.com/long-history-criminalising- hijras-india-jessica-hinchy-2019/ (last visited on 19 December, 2020) 52 (2009) WP(C) No.7455/2001

15 www.whiteblacklegal.co.in ISSN: 2581-8503 bisexuals or and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.” 53

 National legal service authority v UOI54

National Legal Services Authority of India (NALSA), filed a case demanding legal recognition to persons who associate with neither male nor female gender, including people who fall in ''third gender''. The court deliberated whether disregarding different gender identities is a breach of fundamental rights. This was a landmark judgement where the Supreme Court held that members of Trans community would be given the status of 'third gender'. Before this judgment, they were forced to identify as either male or female. The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy. This decision holds a lot of significance as it laid down that self-expression falls under the ambit of 'dignity' in Article 21.

 Justice K. S. Puttaswamy v. Union of India55

On 23rd August 2017, the Supreme Court unanimously held that privacy is a fundamental right. In 2012, Justice K S Puttaswamy, a retired judge of the High Court filled a petition in the supreme court, challenging the constitutional validity of the Aadhaar scheme introduced by the Government. The court held that the right to privacy falls under the ambit of article 21 of the Indian constitution. Right to Privacy extends to everyone irrespective of their gender and/or sex. This judgement formed the backbone in decriminalising of section 377 by hinting at the inherent wrongness of the reasoning and decision in Suresh Koushal.

 Navtej Singh Johar vs. UOI56

Bharatnatyam dancer Navtej Singh Johar, hotelier Aman Nath, restaurateurs Ritu Dalmia and Ayesha Kapur and media person Sunil Mehra filed a writ petition in the Supreme court for scraping parts of section 377.The Supreme Court, in 2018, referred the issue to a larger bench. It was argued that section 377 infringes the fundamental rights of the LGBT community. The court in its verdict on 6th September 2018, held that section 377 was unconstitutional on the grounds that it is discriminatory and violates right to privacy. The court did not strike down 377 completely. It only decriminalized sex between consenting adults in private. Section 377 was found to be discriminatory on the grounds of sexual orientation and gender identity, violating article 14, 15. 19(1)(a). Further, they ruled that section 377 also violates the right to a dignified life.

53 Suresh Kumar Kaushal v Naz Foundation, (2013) CIVIL APPEAL NO.10972 OF 2013 54 (2014), WP(C) NO.400 OF 2012 55 (2018), WP(C) NO. 494 OF 2012 56 (2018), WP(C) NO. 76 OF 2016

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 Arun Kumar v Inspector General of Registration

On 31st October 2018, Sreeja, a transwoman married Arun Kumar as per Hindu rites and customs. However, the registrar refused to register the marriage. This decision was challenged in the . The issue was whether the term bride under section 5 of the HMA was restricted to only women or did it include transwomen as well. The court held that a marriage between a man and a transwoman, both professing Hindu religion, is a valid marriage. The court held that these terms must be interpreted in the light of the legal system that exists today and refusal to register this marriage would be a violation of article 14, 19(1)(a), 21 and 25.

 Transgender Persons (Protection of Rights) Act, 2019

In 2019, the Transgender Persons (protection of rights) Bill was enacted with the aim of protecting rights of the Trans community. The bill focused on prohibiting discrimination against the community. It provides for establishing a National Council for Transgender person. The council would be headed by the Social justice minister. The council and states would work together to ensure that transgender welfare boards are set up in all states. The bill when introduced garnered a lot of criticism from the trans community and allies57. The community has rejected the bill on the grounds that it is violating their fundamental rights and does more harm than good. The major issue with the bill is that it takes a step back in terms of allowing people the privacy to choose their gender identity without state interference. According to the bill, gender identity can be changed in documents only after the individual provides proof of only which must be certified by the District Magistrate. The bill discriminates against trans community on the basis of gender identity by laying down two years of punishment in case of sexual abuse against transgender, while the same offence against women provides for seven years of imprisonment. This violates the right of equal protection of law. The bill also does not provide for any scholarship, change in curriculum or provisions to ensure safe inclusive schooling for the trans community. After the public outrage regarding the bill, the centre has done away with the mandate of a medical examination for trans persons applying for a certificate of identity in its latest draft rules framed under the Transgender Persons (Protection of Rights) Act, 2019. However, the offences under the act, including sexual harassment will be punishable with imprisonment for six months up to two years, with a fine.

LGBT RIGHTS AS FUNDAMENTAL RIGHTS

After over sixty years of its adoption, UDHR continues to be celebrated as the document that gave rise to the human rights evolution. It is the founding document of universal human rights and though it is not a legally binding document, it is the basis of several international human rights law. However, the universality of human rights remains rhetorical. The fundamental rights guaranteed in the constitution

57 Prachi Singh, “Why is transgender community unhappy with Trans Persons Bill?”, Down to Earth, (October 9 2019), available at: https://www.downtoearth.org.in/blog/governance/why-is-transgender-community-unhappy- with-trans-persons-bill--67158

17 www.whiteblacklegal.co.in ISSN: 2581-8503 of India proclaims universality of fundamental rights of all people58, but the truth is that these rights are not fully enjoyed by everyone. The LGBT have been excluded for years. This exclusion undermines the full realization of Fundamental Rights as basic human rights for all and not just some. When section 377 was struck down, it was a crucial moment for our country. The supreme Court upheld the values enshrined in our constitution. This decision brought relief and validation for the LGBT community, but it did not solve all legal issues related to the community. Various legal questions regarding the lives of the LGBT remain unanswered. The community still does not have the same basic rights that others enjoy. These rights include, and are not limited to, right to marry, right to adoption, right to surrogacy, and protection against sexual harassment.

 Right to Marry

Marriage is an ancient institution and a universal fact. Humans are social creatures and require social connections. Marriage provides a sense of belonging and safety. Historically, the purpose of marriage was not a union between two individuals who love each other but more about property rights and moving up the social ladder by choosing the right in-laws. However, nowadays marriage is about companionship, love and security, and sexual desire is only one aspect of it. In India, marriage is considered a sacred union and celebrated with vigour. There is no reason that the LGBT community should miss out on something so relevant to human relations. A legal marriage grants many additional benefits and protection to couples. Through various judicial decisions, it has been made clear that right to marry a partner of their choice falls under the ambit of article 19 (c) and article 21.

In Lata Singh v. State of Uttar Pradesh59, the petitioner, a woman of 27 years, married Bhrama Nand Gupta of her own free will. The petitioner's brother lodged a missing person's complaint and police arrested the husband's family members. It was alleged that the petitioner's brother was furious because of the inter-caste marriage and therefore, falsely framed the husband and his family. In its judgment the Supreme Court said India is a free and democratic country and any person who is a major can marry whosoever they want. In Shafin Jahan v. Asokan K.M. & Ors. (Hadiya Case)60, the Supreme Court set aside a 2017 order of High Court of Kerala which called for annulment of the marriage of Hadiya and Shefin Jahan. Akhila in 2015 converted to Islam of her own free will and under no compulsion from anyone. She married Shefin Jahan, whom she met on a Muslim matrimonial website. The Kerala high court annulled the marriage citing that a 24-year-old girl is weak and can be exploited in many ways. The Supreme Court set aside the High court order for annulment. In its judgment, the apex court states that neither state nor law has the right or authority to limit the ability of any person to decide who to choose as a partner. This is the very essence of personal liberty under the constitution. The society does not get a say in the choice of a life partner. The court also held that social values and morals however important are not above the freedom guaranteed by the constitution. The right to marry a person of their choice falls under Art 19 (c) and article 21 of the Indian Constitution. The ICCPR states that, “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The right of men and women of

58 The Constitution of India, art. 14.

59 (2006), WP(crl.) 208 of 2004

60 (2018), Crl.A 366

18 www.whiteblacklegal.co.in ISSN: 2581-8503 marriageable age to marry and to found a family shall be recognized.”61 As per the UDHR, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”62 These articles can be interpreted in a non-discriminatory manner without restricting it solely for different sex couples. Right to marry is a well identified constitutional right and should include all couples including same sex couples. It would be unconstitutional to deny marriage equality to someone based on their sexuality or gender identity.

 Right to Adopt

Parenthood is considered as one of the most important aspect of an individual's life. Adoption in some cultures is a way to ensure continuity of religious practices and in some a way to carry forward family lines63. Every individual should be able to experience parenthood. However, many miss out on the opportunity solely because law doesn't allow them to adopt. In India, adoption has been recognized for centuries, however, adoption laws have little to no uniformity. There are various legislation governing the adoption process. The Hindu Adoption and Maintenance Act 195664 lays down provisions for a valid adoption. According to the act, adoption by a homosexual couple or transgender will be invalid65. There are no specific personal laws for adoption in case of Muslims, Parsis, Christians, etc. However, there are provisions of law for adoption under secular law. Juvenile Justice Care and Protection of Children Act 201566 read with Adoption Regulations of 201767 framed by central adoption resource agency allows for adoption regardless of religion of the person. It is important to note that the main purpose of the act is to provide care and protection to children who are abandoned or have been surrendered by their families.

In Shabnam Hashmi v UOI68 ,the petitioner sought to get recognition of right to adopt and be adopted as a fundamental right. According to the court, fundamental rights enshrined in part III of the constitution are the basic human rights which are essential for the well-being of an individual. Fundamental rights are ever evolving, but at that time right to adopt could not be placed under fundamental rights. It was held that anyone, irrespective of religion, can adopt even if laws of a particular religion do not allow for adoption. In Sawan Ram v. Kalwanti69, a widow adopted a child. After the widow's death, appellant filed a case for his property share stating that adoption does not give rights in property. The court held that adoption by Hindu female will not only be for her but the deceased husband as well. The adopted child would get all rights as the son of the deceased. In Philips

61 International Covenant on Civil and Political Rights, art.23 < https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx > 62 Universal Declaration of Human Rights, art.16< https://www.un.org/en/universal-declaration-human- rights/index.html > 63 FUNDAMENTAL RIGHT TO ADOPT: A CRITICAL ANALYSIS OF COMPETENCY OF PERSONS IN ADOPTION PROCESS, available at: https://blog.ipleaders.in/fundamental-right-to-adopt-a-critical-analysis-of- competency-of-persons-in-adoption-process/ (last visited 28 December, 2020) 64 THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 (Act No.78 of 1956) 65 THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 (Act No.78 of 1956), s. 6. 66 THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 (NO. 2 OF 2016)

67 THE GAZETTE OF INDIA : EXTRAORDINARY, MINISTRY OF WOMEN AND CHILD DEVELOPMENT NOTIFICATION (PART II—SEC. 3(i)) 68 (2014), WP(C) NO. 470 OF 2005 69 1967 AIR 1761

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Alfred Maruin v. V.J.Gonsalves70, the adopted child filed a suit claiming that he was brought up as the deceased's biological child and even followed Christianity, which is the religion the deceased followed. Hence, he had the right to share in property just as much as biological child. The question was whether Christian law allowed for adoption. The court upheld legal validity of adoption under Christian law and laid down that adopted child has the same rights as a biological child. In Payal @ Sharinee Vinayak Pathak71, the petitioners were a Hindu married couple with two young children of their own. In 2005, they sought guardianship of a female child. The girl stayed with the petitioners for over 4 years and then they formally adopted her. This case brought the right to adopt under the ambit of right to life. The court in its judgment, said that adoption is a facet of the right to life under article 21 of the constitution. The right of individuals to parenthood to give meaning to their lives and the right of special care and protection of children, both need to be protected. The above-mentioned judgments elucidate that adoption is an important aspect of life and liberty. Adoption is not only about the right to parenthood but also about the right of children to be cared for. As per ICCPR, “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”72 When we deny someone the right to adopt solely because they do not identify with their birth gender or conform to the society’s idea of sexuality, it also impacts a child’s right to be adopted.

 Right to Surrogacy

Scientific advancements have altered the prospect of family. Medical developments have made possible creation of families that otherwise would have been unattainable. Surrogacy is a fertility treatment that makes parenthood possible for people who may not be able to experience it naturally. People seek a surrogacy arrangement when pregnancy might seem medically inaccessible. Family relations are amongst the most cherished institutions in social life and to deny someone the right to parenthood on the basis of their sexual orientation or gender identity is a violation of their fundamental rights. The Surrogacy (Regulation) Bill of 202073 allows surrogacy only to a widow, divorced woman or couples who have been married for 5 years, where the age of the wife is 23-50 years and age of the husband is 26-55. The bill is discriminatory74 and archaic as it allows only married heterosexual couples and women who have been married, the right to surrogacy. Single people, LGBT couples and trans men and trans women are prohibited to have a child through surrogacy. Over the years the judiciary in different context has recognised right to surrogacy as an extension of right to privacy a fundamental right. In Devika Biswas v Union of India75, when more than 50 women underwent a sterilization procedure in at an NGO, they were not informed about the risks or

70 AIR 1999 Ker 187 712010 (1) Bom CR 434 72 International Covenant on Civil and Political Rights, art. 24. < https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx > 73 Cabinet approves the Assisted Reproductive Technology Regulation Bill 2020, available at: https://www.pmindia.gov.in/en/news_updates/cabinet-approves-the-assisted-reproductive-technology- regulation-bill-2020/ (last visited on 20 October, 2020) 74 Bhumitra Dubey & Yash Tiwari, “Analysis Of The Surrogacy (Regulation) Bill, 2020”, India Law Journal, available at: https://www.indialawjournal.org/analysis-of-the-surrogacy-regulation- bill.php#:~:text=Therefore%2C%20the%20Bill%20of%202020,2014%20which%20permitt20surrogacy.ed%20 commercial% ( last visited on 21 November, 2020) 75 (2016) 10 SCC 726.

20 www.whiteblacklegal.co.in ISSN: 2581-8503 outcomes of the procedure. The procedure was carried out in an unsafe and unsanitary environment. The women were operated on by a single surgeon under a torchlight. Many women experienced extreme pain post operation and filed a complaint. The court held that right to reproduction was a part of Article 21. Right to reproduction includes right to privacy and dignity of body. Denying someone the right to surrogacy is a violation of their right to privacy. In B K Parthsarthi v State of AndhraPradesh76, the court held that, the decision about reproduction is a very personal decision. A state's interference on procreation is an encroachment on one's right to privacy, which falls under the ambit of Article 21. In the case of Gobind v State of Madhya Pradesh77, the court stated that there is no doubt that the makers of the constitution wanted to be certain that there are favourable conditions for pursuing happiness. Right to privacy must protect personal commitments of home, family, marriage, procreation, motherhood and child rearing.

Right to surrogacy as a fundamental right can be argued on various grounds. If the court were to examine the bill in not just a traditional manner of ‘right to privacy’ and ‘right to parenthood’ but also in the light of a person’s right to scientific developments and benefits, they might rule it to be discriminatory. The right to enjoy scientific development has been laid down in a few international instruments. UDHR states that, “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”78 According to ICESCR, “The States Parties to the present Covenant recognize the right of everyone: To take part in cultural life, to enjoy the benefits of scientific progress and its applications”.79 The surrogacy bill denies right to parenthood through surrogacy on the grounds of Sexual Orientation, Gender Identity and Marital Status. This discrimination violates their fundamental right of equality and equal treatment under law. Even though Transgender has been recognized as a third gender by the Supreme Court80, which means that they should have all the rights that the other two genders have. the legal emphasis on a binary approach is something to think about.

 Protection against sexual harassment at workplace.

The current law i.e., The Sexual Harassment of women at workplace (prevention, prohibition and redressal) Act 201381 is an outcome of the landmark judgment of Vishaka v. State of Rajasthan82.The act made it necessary for every employer to provide a grievance redressal mechanism for workplace sexual harassment and to enforce the right to ‘gender equality’. The act includes all working women from public sectors, private sectors, and organized as well as unorganized sectors.83However, it recognizes only women as victims, without taking into account that sexual harassment can happen to anyone irrespective of gender or sexual orientation. Men, transgender or any person from the

76 1999 5 ALT 715. 77 AIR 1975 SC 1378 78 Universal Declaration of Human Rights, art. 27. < https://www.un.org/en/universal-declaration-human- rights/index.html > 79 International Covenant on Economic, Social and Cultural Rights, art. 15. < https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx > 80 National Legal Services Authority v Union of India, AIR 2014 SC 1863

81 available at: http://legislative.gov.in/sites/default/files/A2013-14.pdf (last visited on 29 December, 2020) 82 AIR 1997 SC 3011 83 Nidhi Bothra, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, 2020, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2498990 (last visited on 28 October, 2020)

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LGBT community can also be a victim of sexual harassment84. ‘Gender equality’ should cover rights against exploitation and victimization of every gender and only then there will be actual gender justice. Simone de Beauvoir has shown us how men enslaved women in ancient times due to their physical structure. The unequal and inferior status of women in the society is the main cause for sexual violence against them. The LGBT community is a marginalised community just like women, therefore it is important to draw parallels between the two groups and give them the same protection of law against sexual harassment.

Our Constitution guarantees equality of status and opportunity for all citizens. Sexual harassment at workplace is a violation of Article 14, 15, 19 and 21. The Supreme Court in its judgment has laid down that right to life under Article 21 does not guarantee mere animal existence85 but a life with liberty and dignity, it includes everything that makes life complete, meaningful and worth living. The judiciary posed a question that if dignity or honour vanishes then what is left of life86. At the same time, the legislature with no regard for the values enshrined in our constitution has prescribed a punishment for sexual harassment faced by trans person which is nothing compared to the punishment for sexually harassing a woman87. This difference gives the impression that trans people are somehow less important than others and don't deserve the same protection of law. Sexual Harassment is a gross violation of an Individual's right to dignity and equality. Sexual harassment undermines equality at the workplace by bringing into question the honour, prestige and well-being of workers. In the case of LGBT community, there is also a chance of them facing workplace bullying as well. Workplace Bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators. It is abusive conduct that is:

 Threatening, humiliating, or intimidating, or

 Work interference — sabotage — which prevents work from getting done, or Verbal abuse88

Harassment of any kind has never been about sex but about power. Homophobia and Transphobia is a social challenge that needs to be addressed. There have been several instances of discrimination against the community and therefore it is essential that along with gender neutral laws for sexual harassment, anti-discriminatory laws and legal framework for protection against the same is also put into place.

SUGGESTION: NEED FOR GENDER INCLUSIVE TERMS

84 Divya Rai, Gender Neutrality and Sexual Harassment laws in India, available at: https://blog.ipleaders.in/gender-neutrality-and-sexual-harassment-laws-in-india/#respond (last visited on 24 December, 2020) 85 Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621 86 Khedat Mazdoor Chetna Sangat v. State of Madhya, 1995 AIR 31 87 The Transgender Persons (Protection of Rights) Act, 2019 (NO. 40 OF 2019).s. 18. 88 Sidra Mehboob, International Laws and Policies for Addressing Sexual Harassment in the Workplace, Volume-II, Issue-II International Research Journal of Interdisciplinary & Multidisciplinary Studies Page No. 32-43 (2016)

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The constitution provides an open list of prohibited grounds of discrimination in relation to right to equality. However, members of the LGBT have been neglected for far too long. They have waited a long time to be treated the same as others and decriminalizing same sex relationships was a step in the right direction, but there's a lot to be done before one can say that LGBT members are the treated the same as others. In order to ensure that the LGBT community is no longer deprived of their fundamental rights, it is necessary that either the current laws are amended and reinterpreted, or new laws are drafted since the current laws cannot apply in the cases of LGBT marriages, adoption, surrogacy or protection against sexual harassment at workplace. To ensure that these laws are applicable to all, it is important that gender neutral terms are used. Several references exist in both national and international laws regarding right to marry, adopt etc and neither provides a definition of the terms ‘male’ or ‘female’.

Drafting new laws separately for the community might exclude them from what is considered ''normal''. It might give the impression that a homosexual couple is somehow different than and not as valid as a heterosexual couple. Reinterpretation of existing laws may also lead to ambiguity. For example: In Hindu Marriage Act, even if gender neutral terms are used, there will be confusion regarding prohibited degree89, as it varies in the case of a man and woman.

Saying that a Hindu marriage is a semblance of a sacramental bond and a contract between a man and a woman, is not gender inclusive. However, saying that marriage is a semblance of sacramental bond and a contract between two people, would make Hindu Marriage Act, gender inclusive. The term ''person'' or ''people'' can replace the term ''man'' and ''woman''. The term ‘‘individuals’’ can replace ‘'women'', this will make the act for protection against sexual harassment less archaic and more gender inclusive by including anyone who is a working professional, irrespective of their gender or sexual orientation. The term ''wife'' and ''husband'' can be replaced with ''spouse''. This would allow for the adoption and surrogacy laws to be more gender inclusive. These laws would definitely require more changes to ensure there is no ambiguity, such as defining the age when a person is eligible to adopt instead of defining the age of the husband and wife to make them eligible for adoption. Some would argue that though this approach might be the most satisfactory, it is not feasible. It might attract a lot of controversy because even though same sex relationships are now accepted under law, they are not accepted by the society. People might look at it as an interference in their cultural practices. Therefore, it’s important to understand what culture means exactly. Culture is the beliefs, values and practices of a group of people. It includes rules and perceptions of the group. International human rights law such as the Convention on the Elimination of All Forms of Discrimination against Women90, and the Protocol to the African Charter of Human and Peoples’ Rights on the Rights of Women in Africa91 asks to transform the customary and traditional practices that are discriminatory and violate human rights. The Committee on the Rights of the Child (CRC) and the Committee Against Torture (CAT), have also stated that customs and traditions should not be used as a justification for violating rights. For the LGBT community cultural values tend to look at homosexuality and non-conforming gender identity as an issue of morality instead of an issue of basic human rights. It is important to note that laws that restrict the rights of this community are not based on Indian culture but instead on

89 Hindu Marriage Act, 1955 (Act 25 of 1955), s. 3(g). 90 The Convention on the Elimination of All Forms of Discrimination against Women, 1979 91 “any practice that hinders or endangers the normal growth and affects the physical and psychological development of women and girls should be condemned and eliminated.”

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British laws and culture. Section 377 is a legacy of colonial laws and hence the laws that prohibit LGBT conduct have no link to Indian religion.

It is important to use equality and anti-discriminatory laws in advancing LGBT rights. Culture and law changes as the society progresses. Had that not been the case, bigamy would never have been abolished and criminalized. In Ramayana, King Dashrath had three wives. Lord Krishna had over 16,000 wives. It’s clear that Hindu culture allowed polygamy but Section 592 of The Hindu Marriage Act, 1955 imposes monogamy. The constitutional morality was upheld, by making amendments to keep up with the modernizing society and changing times. Similarly, discriminatory denial of fundamental rights to of the LGBT people goes against the values enshrined in our constitution. A progressive conceptual framework for defending LGBT rights can be developed on the international, regional and domestic jurisprudence that supports a holistic approach to equality for all.

CONCLUSION

It is reasonable to say that India had unprejudiced culture before the British invasions. From mythologies to temples, there's plenty proof that our culture was very liberal and accepting of the LGBT community. The British created anti-LGBT laws which later transformed into our legislations. The community has lived with the fear of legal persecution and social discrimination ever since. In the words of Justice "History owes an apology to the members of this [LGBTQIA] community”. Decriminalizing homosexuality is the bare minimum that could've been done. Striking down section 377 only grants protection from legal persecution. It does not give them the same footing as the rest of the citizens. Trans individuals are still forced into beggary which not only leads to social discrimination but also inhibits their social growth. The anti-discriminatory initiative has to be expanded to get legal recognition for marriage, adoption, surrogacy and protection from sexual harassment to ensure that the community can access their fundamental rights just like others. At a time like this, when people have all the resources to educate themselves about sexual orientation and gender identity, one cannot afford to be so ignorant. The judiciary has to ensure that the members of this community can lead happy, full filled and dignified lives. It is an uphill task, but it has to be done. The community has been oppressed and discriminated against for far too long. Citing societal or religious standards is just an excuse for discriminating against an entire community. Neither the society, nor does a religion have the authority to take away the fundamental rights guaranteed to a person by the constitution.

92 The Hindu Marriage Act, 1955 (Act 25 of 1955), s. 5(i).

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