International Journal for Legal Research & Analysis (Issn 2582

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME I ISSUE IV (SEPTEMBER 2020)

Email – [email protected] Website – www.ijlra.com

56565656565651 www.ijlra.com Volume IIssue IV|September 2020 ISSN: 2582-6433

DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA.

Though every effort has been made to ensure that the information in Volume I Issue IV is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal.

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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A WORD FROM THE TEAM

IJLRA:(ISSN: 2582-6433) is proud to complete its Volume I Issue IV. The current issue consists of articles, short notes, case comments, legislative comments and book reviews, contributed by advocates, academicians, researchers & students from all parts of the country. Each contribution has been thoroughly examined by our editorial team to provide a filtered and quality read.

The fact that law as a subject is dynamic and ever evolving makes it imperative for lawyers, academicians, researchers, and students to stay abreast of recent developments. The same thought process has led us to develop a dedication towards providing all the contributors with a platform to express their original ideas on contemporary issues. With the same endeavour to present view on latest legal developments within and outside country we are successful in presenting diverse selection of stimulating articles.

We strive hard to stick to the core of the Journal's principles, which includes diversity and open discussion from all aspects of law while maintaining highest standards of professional integrity.

The Issue is a culmination of the efforts of several people who must be rightly acknowledged. We would like to place on record our sincere gratitude to all our contributors for their valuable work. We would also like to thank all the members of Editorial Board for their efforts in shortlisting and editing the papers to ensure that the ideas of authors are being expressed in the best possible manner; and finally the members of our technical support team for making this issue reach all our readers by way of an open access system.

We sincerely hope that the present issue will come to the expectations of its readers.

Team IJLRA

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LGBTIQ - COMMUNITY AND ISSUES Author : Sruthi Sekhar Fifth Sem BA LLb Mobile No :7902524428 Email: [email protected] Official Address : Kerala Law Academy Law College , Peroorkada Thiruvananthapuram- 695005 Residential Address: Kalluvettukuzhiyil , Thymaravumkara,West Othera P.O.Thiruvalla ,Pathanamthitta, Kerala ,Pincode :689551 ABSTRACT “The identity is pivotal to one’s being”. In modern era, sexual and gender identity and expression have been central to our understanding of themselves. If someone has to live while hiding the integral aspects of them, then one is as good as dead and nobody talks about them. LGBTIQ history is such a long chain of movement for justice, moments of triumphs and tragedy that this community faced. LGBTIQ community and their rights have been in controversy worldwide for one reason or other. In many countries, they still face widespread stigmatization and persecution. LGBTIQ is a loosely defined grouping of lesbian, gay, bisexual; transgender, intersex etc. They came together demanding their rights. LGBT people are subjected to abuse and attacks. Gender and sexual minorities are excluded and stigmatized because of who they are? Many countries still have laws and policies that specifically make homosexuality a crime.

The main objective of this paper is to cast light upon this community, history of their legal war, marital rights, ethical and moral issues on their acceptance, decriminalization of section 377, exploitation and harassment of their community etc.

India has also been in the center of debate on recognizing the rights of LGBTIQ community. Even the honorable Supreme Court concluded that LGBT persons deserve to live a life unshackled from the shadow of being “apprehended felons” .In the twenty first century were law is developing by the minute, perhaps the time is appropriate to embrace and develop change. No one should be discriminated on the basis of their individuality.

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INTRODUCTION LGBT Issues have become a matter of interest in global politics and in sociological knowledge .Grassroots and social movements are key elements in their social transformation achieved by LGBT people .LGBT-lesbian ,gay, bisexual, and transgender-is a widely accepted initialism, while the fifth letter Q means queer or questioning. They organized as a community . Their community worked for their rights and freedom. They raised voice against the inequalities and discriminations .But some of these victories have been constrained by the social structure of our so called public. Their issues are never ending. The another major problem is their acceptance in public. This paper deals with LGBTQ community ,their issues in different fields, section 377 of IPC, marriage rights for homosexual couples etc...

SEXUALITY AND INDIAN SOCIETY The concept of sexuality is often considered as an awkward topic to be discussed. We are open to a modern cosmopolitan, open to dealing with difference. If sexuality is considered as a test of dignity in our democracy ,then our cities are most important examination rooms and battle grounds . DR.B.R. Ambedkar considered country as a site ,where, new form of life that would shed caste could be possible. His faith is mirrored in much of our sense of urban life. No one sense of right and wrong can dominate such cities. They belong to different public with different identities. In such a modern era ,sexuality could should must, be able to take its different paths where it can reach for dignity rather than a bare life .

Fight is a part of survival for the under privileged. Each one of us will fight this fight in a vibrant manner .All of these fights are needed for the healthy upliftment of our society . Yet , if ,sexuality can tell us one thing about India at seventy, it is that Ambedkar's fight still remains the battle of our time. It is high time that fight for social equality, finally found it's place alongside ,if not ahead of political equality .Firstly, it is to recognize all the multiple fractures that break the bodies of our cities today. It is a step away from self congratulation on our gains in political equality to face the reality of entrenchment and deepening of our social inequalities. The second , for those of us who wish to fight this fight for sexuality as a fight for dignity and personhood. We should frame our struggles for new laws and imaginations that can protect different communities including sexual minorities from discrimination .LGBT people need such legal support and social acceptance.1

1 Gautam Bhan, Dignity of our sexualities ,Hindustan Times ,August 19,2017

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LGBTQ : A BRIEF NOTE  L : LESBIAN  G : GAY  B : BISEXUAL  T : TRANSGENDER  Q : QUEER

Certain symbols has adopted by this LGBT community to demonstrate their unity. The most recognized international LGBT symbols are the pink triangle and the rainbow flag. The rainbow flag shows the unity among the people. Rainbow flag was designed by Gilbert Baker for 1978, San Francisco in a gay freedom celebration. The rainbow flag made up of horizontal stripes with red at top and violet at the base of that flag. Certain other symbol like bear culture, asexuality ,bisexuality ,lesbianism ,transgender etc. There are certain flag arrangements for each of these .In addition to major symbols of LGBT, there are certain other symbols like ace ring symbols, calamus plant ,double gender ,freedom rings green carnation ,handkerchief code ,lambda ,purple hand, rainbow Madonna ,unicorns, violets etc2

LGBTQ - AN ISSUE OF SOCIAL ACCEPTANCE Acceptance is always an issue associated with LGBTQ population. LGBT youth are at elevated risk for poor mental and physical health compared with other communities. Many governmental and non- governmental organizations have made certain attempts to understand sexual orientation and gender identity related health disparities among such groups .The main reason for their stress is associated with stigmatization of our so called society. A condition called internalized homo negativity or homophobia affects them .In many cases ,such person possess a negative attitude towards them. This will make them hate their own sexual identity. Self acceptance is more important than social acceptance. The matter of self acceptance become quite difficult for people with such sexual orientation. This may lead to constant internal conflicts.

In addition to interpersonal stigma and intrapersonal stigma ,the structural stigma reflected in social level norms ,policies and laws plays a significant role in sexual minority stress. Transgender individuals experience substantial amount of prejudice, discrimination and

2 https://en.wikipedia.org/wiki/LGBT_symbolshttps://en.wikipedia.org/wiki/LGBT_symbols

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victimization. Sexual orientation and gender development are potentially stressful experiences for all youth.

The vast majority of sexual minority youth are born to hetero -sexual parents. Those parents may express implicit and explicit negative attitude towards homosexuality. They expect their child to be heterosexual and have normal sexual behaviours . Negative responses to LGBTQ may range from anxious concern about their future ,well being etc. Knowledge of these deviation from expectation coupled with negative attitude may lead such parents to be less supportive . Even banishment of such children from homes are reported . Transgender youth also reports elevated rate of abuse. Youth depends on their parents to assist them with meeting developmental demands and to guide their personal experiences in various domain. They may find it difficult to cope up with such situations ,if their parents are inaccessible and unresponsive. 3

IPC SECTION 377 : In a landmark judgement , Supreme court has finally struck down a nineteenth century law criminalizing homosexuality in India. A bench consisting of Chief Justice Dipak Misra, and Justices D.Y.Chandrachud, A.M.Khanwilkar, Indu Malhotra and Rohinton Fali Nariman began hearing petitions against section 377 OF Indian Penal Code. On September 6 ,in a unanimous verdict, the court ruled that homosexuality is no longer a crime in India. and that the members of LGBTQ communities have same sexual rights as any other citizen. The decision follows a protective struggle by activists and members of the community against the repressive law, introduced in 1861,when India was under British rule. It threatened imprisonment and a lifetime sentence and a fine for those who engaged in what it labeled as "unnatural offences".

HERE IS THE TIME LINE OF BATTLE AGAINST SECTION 377 :-  NOVEMBER-DECEMBER 1991: A document detailing the experience of gay people in India is released by the AIDS Bhedbhav Virodhi Andolan,an organization fighting discrimination against those affected by HIV or AIDS .The 70 page report reveals the shocking extent of blackmail, extortion and violence that gay people faced. The report calls for a repeal of legislation that discriminate against members of the LGBTQ community.

3 Sabra L. Katz-Wise, LGBT Youth and Family Acceptance, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5127283/(23rd November ,4pm)

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 MAY 1994: Controversy erupts after Kiran Bedi, Inspector General of Tihar Jail, refuse to provide condoms for inmates saying it would encourage homosexuality.  DECEMBER 2001: The Naz Foundation on a sexual health NGO working with gay ,files a public interest litigation in the Delhi High Court, challenging the constitutionality of section 377and calling for the legalization of homosexuality.  SEPTEMBER 2004: The Delhi High Court dismisses the case, saying there is no cause of action.  FEBRUARY 2006:Naz Foundation files a special leave appeal  JULY 2009: Delhi High Court bench decides to strike down section 377 saying it as a violation of fundamental rights to life.  DECEMBER 2013:The LGBTQ community suffers a significant blow when the supreme court overturns high court judgement.  JUNE 2016:Nate Singh Johar files a petition in supreme court challenging the section 377,along with four other high profile Indians.  JULY 2018: A Five judge bench of supreme court begins hearing the petition filed by Johar and others against section 377.While supporters of the law claim the spread f sexually transmitted diseases and the disintegration of India's social fabric.  SEPTEMBER 2018:In a unanimous verdict Supreme Court decides to scrap section 377.This put an end to lengthy struggle for justice.4

NAZ FOUNDATION V. GOVERNMENT OF NCT OF DELHI AND OTHERS. This case is concerned with a writ petition brought by the NAZ foundation , an NGO working with HIV sufferers, which argued that section 377 of the Indian Penal Code was unconstitutional. Section 377 entitled 'of unnatural offences ' has been on the statute books since 1861 and has effectively been interpreted as criminalizing consensual sexual acts between persons of same sex. SECTION 377 states that, "whoever voluntarily has carnal intercourse against the order of nature with any man ,woman or animal, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to pay fine .The NAZ foundation submitted that section 377 violated the fundamental rights guaranteed under Articles 14,15,19 and 21 of the constitution of India .This discrimination petitioners submitted ,resulted in the denial of fundamental human rights

4 https://qz.com/india/(30thnovember ,10pm)

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,abuse harassment , and assault by public authorities, thus driving the gay community underground and subjecting them to greater vulnerability in violation of their fundamental rights.

JUDGMENT In a decision that has been applauded not only as a landmark victory for equality and the so called concept of social justice but also in terms of its robust legal reasoning the High Court of Delhi, concluded that "section 377 IPC, in so far is a violation of Articles 21,14 and 15 of our constitution. This judgement provide a detail analysis of the laws in India with respect to discrimination on the basis of sexual orientation. In this case ,High Court stressed the importance of upholding the values of equality, tolerance and inclusiveness in Indian Society.

SOME IMPLICATIONS For the moment ,the decision of High Court of Delhi has invalidated the criminalization of consensual same sex conduct between adults across the nation. The level of criminal conviction over the life span of section 377 was low. In practice, the true danger of section 377was that it permitted and promoted the harassment ,victimization, and persecution of LGBT people by law enforcement and other officials. This population have suffered extreme violation of human rights and they find it really difficult to live in this society with due respect and dignity as many other individuals. Furthermore it will become difficult to accept this decriminalization. There are certain matters of social acceptance and so called morality principle. This judgement helped the community to acquire a position in public with all legal backup.5

PROBLEMS WITH SAME SEX MARRIAGE If homosexual civil marriages are legalized ,there are certain disadvantages attached to it. The homosexual couples using IVF or Surrogate mothers for procreation .They deliberately create a class of children who will live apart from their mother. There may be a problem with their raising. There is a higher chance of antisocial behaviour and delinquency in boys and sexual activities in girls. Children to such couples may be emotionally weak comparing with others. Mother's excel in providing emotional security. Such homosexual families deny them the opportunity to get both paternal and maternal care.

5 Jarlath Clifford ( Naz Foundation v. Govt of NCT of Delhi &ors.),4 The Equal Rights Review 71,71-74(2009)

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Judith Stacey- a sociologist and an advocate for same sex marriage reviewed the literature on child outcomes and found that lesbian parenting may free daughters and sons from broad but uneven range of traditional gender prescriptions. Marriage and procreation have been tightly connected to one another . This same sex marriage further diminish the expectation of paternal commitment.6

RIGHT TO WORK UNDER INDIAN CONSTITUTION AND TRANSGENDER COMMUNITY It is the states responsibility to care for those incapable of doing work and to relieve those who are able to work and prevented from doing so by economic or social forces. This has been recognized since the eighteenth century, when the German thinker Fitche argued that the right to work must be protected by the state. Though not directly , indirectly the articles protects the labour rights. All citizens of India are guaranteed with the freedom to practice any profession or to carry on any occupations, trade or business. Above all these rights the constitution guarantees the right to life, which is not confined to mere physical existence but includes right to live with human dignity .Article 16 of the constitution guarantees equal payment for their work despite of any discrimination on the basis of their gender or sexuality. Lesbians gay, bisexual, transgender and other sexual minorities suffer certain discriminations from the employment sector as well.

The constitution of India, the fundamental law of land guarantees the right to work which itself carries right to health safety and welfare of the workers. The relevance of the dignity of human labour and the need for the protection and safeguarding of interest of labour as human beings has been enshrined in constitution7. All the minority community include transgenders and other sexual minorities have the right to freely choose the employment and safe and hygiene working conditions and he right to equal payment. Like any other person transgender people have the right against any sort of discrimination. Marginalizing particular community on the ground of gender in the matter of employment is a clear violation of constitutional rights. All human beings are born free and ought to be entitled to human rights without discrimination on the basis of sexual orientation or gender identity. The discrimination based on their class and gender make such communities one of the disempowered and deprived

6 Debra Umberson ,Challenges and oppurtunities for research on same sex relationship, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4294225/(27th November,5pm) 7 ShrudhBrahmbhatt , Protection of labour rights under Indian Constitution https://www.scribd.com/document/357018629/Protection-of-Labour-Rights-Under-Indian-Constitution-shrut- Brahmbhatt-1(25TH november,2 pm)

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groups in India. The recognition of transgender as third gender is one of the major milestone in achieving their rights as a human. The Supreme Court has given certain directions for the protection of rights of transgender persons by including of a third category in educational institution ,hospitals and public employment. Still there is no legislation pointing towards main streaming such communities.

STATE POLICY FOR TANSGENDERS IN KERALA 2015 The state of Kerala has become the first in the country to roll out a transgender policy, envisaging to end the societal stigma towards the sexual minority group and ensure them non discriminatory treatment . Hence for the purpose of sampling, Kerala State Policy has been taken. The policy was officially released at the International Conference on Gender Equality 2015 .

As per the policies the basic objectives are :

(1). Ensure the right for self identification of gender as man, women or transgender

(2). Provide social protection and proper education facilities, health facilities, basic immunity etc....

(3). sensitize the public especially parents and family members, teaching and non-teaching staff and student community in all educational institutions ,health services, law and order, judiciary and media so that there is no discrimination and treated as proper citizens with self respect and dignity .

(4). Provide proper mechanism to address the issue of violence and harassment faced by them.

(5).Effective implementation and monitoring of schemes being proposed especially related to socio-economic improvement.

(6). Encourage all government department and public authorities to extend a non- discriminatory treatment to transgender.

(7). Provide barrier free access to public transport , public places etc.....

(8). An umbrella scheme for direct targeted intervention in specific areas concerning TG welfare.

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(9). Policy and institutional reforms that enable access to social protection schemes for the poor and other at risk groups must be made transgender inclusive

(10). Ensure that transgenders are no longer punished or harassed for cross dressing as it is their right to dress the way they wish.8

HEALTH ISSUES AND LGBT COMMUNITY The LGBT community involving lesbian , gay, bisexual ,transgender and other sexually minor groups are exposed to many health issues physical as well as mental. LGBT health is problems includes breast and cervical cancer, hepatitis , depression, etc. There is an increased chance of sexually transmitted diseases among transgender community.9

SUGGESTIONS 1. Government must give directions to grant medical leave for sex reassignment surgeries in government and private jobs and directions for the same to be issued by the government. 2. Affirmative action to be provided in employment for transgender people. 3. There must be a comprehensive Anti- Atrocities Act that spells out the rights of transgender people to gender identity and or expressions of their choice and punishes any atrocities against them. Verbal, physical, sexual and psychological abuse at workplace to be brought under the purview of this act and penalized. 4. An Anti-Discrimination Act must enable transgender and intersex people to take legal action against any form of discrimination encountered in pursuing their education, seeking employment, getting access to housing, access to healthcare, access to bathroom space, access to public transport etc. 5. Open up the existing Social Welfare Schemes for needy TG and non-governmental institutions existing in developed countries like USA and UK which exclusively deals with employment issues of transgender community and implement those in India in such a fashion which suits to Indian culture. 6. Strict action to be taken against any institution or person holding a position of authority that is found to be discriminatory to Transgender employees.

8 STATE POLICY FOR TRANSGENDERS IN KERALA,2015(DRAFT),DEPARTMENT OF SOCIAL JUSTICE GOVERNMENT OF KERALA. https://kerala.gov.in/documents/10180/46696/State%20Policy%20for%20Transgenders%20in%20Kerala%2020 15(24TH November,3pm) 9 Rita. Lee ,Healthcare problems of lesbian , gay ,bisexual and transgender patients (30th november,9.30pm) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5478215

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7. Special focus has to be brought to school education for transgender students since many are reported to dropout due to hostile environment, harassment and discrimination amongst other reasons.

CONCLUSION They are humans as anyone else is. Society may ridicule them because of their sexuality. They too deserve equal treatment and acceptance. Humans differ from each other in their experience ,personality, talent ,attitude et. We have learned to accept people for their differences in skin colour and gender ,so we must accept them with their uniqueness in sexuality. The minority has had to fight for their rights throughout the past.

Government should take compulsory care in providing education to children in such communities. They should enforce rules to keep LGBT children safe from unfair harassment. Even media should take active participation in this matter. They can easily influence the public opinion. They can present such community before the public and can also help with their issue of acceptance. Some states and countries legalized the marriage of homosexual couples.

Some may say it is unnatural and some other ,as it is against the god. But love is love ,there is nothing to be done with a person's sexuality.