Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525

Need for A Bill to Give Rights to the LGBT Community on the Lines of The Supreme Court Judgment Neha Doshi194, Sonal Nandu195, Shivani Patki196, Kumar Pritam197, Ananya Madhusudhanan198

Introduction The Constitution of under Article 21 guarantees the citizens of India the right to life and personal liberty. However, the LGBT community in India has been facing persistent social stigma if and when they revealed their sexual orientation let alone be able to live with dignity. The society has failed innumerable times to provide them with basic merely because of our deeply rooted traditional notions about gender and sexual orientation. Moreover, before bringing forth the rights of the LGBT community and the landmark judgment that decriminalized consensual same-sex relationship, it is important to understand the difference between these three terms i.e. , sexual orientation, and sex.Gender identity means the person’s internal experience of a particular gender which may or may not correspond to the sex assigned at the time of birth (man, woman or someone outside of that gender binary), on the other hand, sexual orientation is a pattern of sexual attraction towards another person who could be of the same gender, different gender or more than one gender.199 Sex, on the other hand, is assigned to us at the time of birth on the basis of the biological differences, for instance, the male and female internal and external genitalia.200Thus, a person’s sexual orientation is not dependent on the sex assigned to them at the time of birth and it is about time we start accepting them as who they are really are, as there is nothing wrong with them. of the , 1860 (“IPC”) was read down by the Hon’ble Supreme Court in the landmark judgment of Navtej Singh Johar & Ors. V. Union of India (“Navtej Singh case”)201in order to protect the key fundamental rights of the LGBT community. Thus, Section 377 of the IPC, so far as it penalized any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman), and (woman and a woman), has been read down. However, if the same is non-consensual then it can still be penalized under Section 377. This landmark judgment was long due. One of the fundamental rights under our Constitution is that everyone is to be treated equally, however, if, on the revelation of their identity they face police brutality, this right is being completely negated. The rights of the LGBT community have been severely compromised upon and have had a major physical as well as psychological impact

194 B.B.A. LL.B., NMIMS Kirit P. Mehta School of Law 195 BLS L.L.B, Pravin Gandhi College of Law, 196 L.L.B, Jitendra Chauhan College of Law 197 B.A.LL.B.(Hons), Central University of South , Gaya 198 BBA LLB (Hons) School of law, SASTRA University 199Preambule, http://yogyakartaprinciples.org/preambule/ 200Sex, Sex and Gender: What is the difference? (2008), https://www.medicalnewstoday.com/articles/232363 201 10 SCC 1, (2018).

124 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 on them. Justice has rightly pointed out in the judgment that the right to life and dignity includes the twin aspects of one’s identity and their sexual orientation.

A step towards the change has been brought through the judgment, however, there is still a need for acceptance, as despite everything homophobia still exists among the people and the same is regrettable. All that is done through the judgment is that sex between consensual adults including gay, bisexual, has been decriminalized. However, there are a lot of questions that still remain unanswered, for instance, can they marry?Can they adopt?How can the social stigma around them be removed?. Through, this judgment the LGBT community did get a breather, but it hasn’t solved all their problems. There is a vast gap between the steps taken by the judiciary and the actual implementation by the legislature. Through various landmark judgments such as the NALSA v. Union of India, Justice K.S. Puttaswamy v. Union of India and the Navtej Singh Johar case, the judiciary has recognized the rights of the LGBT community. However, these changes have not been incorporated into the laws of the land. These changes need to be incorporated in order to ensure, that the LGBT community, inter alia, has the right to easily change their gender as well as modify the legal documents to include the same, to have better access to health facilities, to have a safer environment around them. Moreover, the right to non- is only applicable against the State and its instrumentalities and the same does not cover a private entity. The LGBT community faces discrimination at the workplace which in turn leads to their unemployment.202 Thus, there is an urgent need to have a law in place in order to protect the rights of this community. Historical background: The acronym refers to , gay, bisexual, and . These communities work towards the advancement of pride, diversity, individuality, and sexuality. Ancient literary works show that has been existing since a long time, a further study into it indicates that homosexuality was not considered to be inferior or secondary before the 18th century. Under the kingship of king henry vii, the parliament of england had passed the bugerry act, 1533 (“burgerry act”). Bugerry was defined as any act which was against the will of god. The burgerry act made any homosexual activities or sexual acts committed with beasts punishable by death. Section 377 of the ipc was based on this victorian-era law. It was during the british colonial period that the sufferings of the lgbt community in india escalated as the first law commission drafted and introduced section 377 of the ipc which declared any homosexual act as unnatural and made it a criminal offence. Even though the , guaranteed the right to equality under article 14, homosexuality still remained a criminal offence. The idea of eradicating discrimination and treating everyone equally was not implemented with respect to the lgbt community.

202Amber Tanweer, Issues of LGBT Minority Communities in India, LGBT Rights in India (2018), https://www.ijlmh.com/wp-content/uploads/2019/03/LGBT-Rights-in-India.pdf

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Aids bhedbhav virodhi andolan (“abva”) released a citizen report titled ‘less than gay’ in 1991, which showed the status of and the discrimination faced by the lgbt community. Further, in 1992, the abva also organized a gathering to protest after some men were caught on charges of homosexuality in . After 2 years it filed a public interest litigation challenging the constitutionality of section 377 of ipc in the delhi high court, making it the first- ever legal attempt against this inequality. However, this petition was ultimately dismissed.203the pil had been filed by the abva as it wanted to distribute condoms among the male jail inmates; however, the superintendent of the jail denied it claiming that this would encourage homosexuality. Due to this disparity, the lgbt community refused to stay silent any longer and this paved way for the first-ever protest to claim equality in the year 1999 in . The protest was called the gay . With only 15 participants, this parade was a historical one as it supported the breaking of silence. The parade was also called as the calcutta rainbow parade.204moreover, because of this incident, india saw several protests across the country. Yet again to fight the battle against section 377, in 2001, an ngo named naz foundation filed a petition in the delhi high court. In this case of naz foundation v. Government of nct of delhiand ors205(“naz foundation case”), naz foundation challenged the constitutionality ofsection 377 on the grounds that it violated the fundamental rights of the lgbt community guaranteed under articles 14, 15, 19 and 21 of the constitution of india. However, this petition was dismissed. Continuing the battle, naz foundation filed a review petition and later a public interest litigation. The supreme court sent back the case to delhi high court to decide the matter. Later various ngos joined them and raised voices and in result, india’s ministry of home affairs filed an affidavit against decriminalization of homosexuality. The delhi high court read down section 377 of ipc and held it to be unconstitutional on july 2, 2009. A number of appeals were filed in the supreme court for challenging this judgment of the delhi high court. On march 27, 2012, the supreme court reserved the verdict on these. On december 11, 2013, in the case of suresh kumar koushal v. Naz foundation206(“suresh kaushal case”), a two-member bench of the hon’ble supreme court comprising of justice g.s.singhvi and justice s.j.mukhopadhaya, scrapped the decision of the delhi high court. It stated that the 2009 judgment of the high court is "constitutionally unsustainable as only parliament can change a law, not courts". Pursuant to the suresh kaushal case, homosexuals were considered criminals and this led to witnessing of an upsurge in activism all over india.207 this led to the initiation of protests all over the country against the reinstitution of section 377 which resulted in political activism across political parties to declare their support for repealing the law. By april 2014, the month of

203Jayna Kothari, The History of the Legal Battles of the LGBTI and the Campaign Against Section 377, Section 377 and Beyond, https://clpr.org.in/wp-content/uploads/2019/06/Section-377-and-Beyond.pdf 204Events preceding the walk, A Walk to Remember (July 15, 2010), http://www.gaylaxymag.com/exclusive/a-walk- to-remember/#gs.bf57yg 205160 DLT 277, (Delhi High Court:2009). 206 1 Supreme Court Cases 1 (2013). 207UtsaSarmin, History of the Movement in India,The History and Activism of the LGBTQ Community in India (Sept. 10, 2018:07:22 AM), https://www.telesurenglish.net/analysis/The-History-and-Activism-of-LGBTQ- Community-in-India-20180909-0009.html

126 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 upcoming elections, at least three major political parties; the aamaadmi party, the congress, andthe communist party of india (marxist) –were in support ofthe decriminalization of homosexual relations in their election manifestos. On 15th april 2014, in the case of national legal services authority v. Union of india208(“nalsa case”), the supreme court held that the centre as well as the state governments are bound to give legal recognition to the transgenders to self-identify their gender identity, be a male, female or a . The supreme court through this landmark judgment recognized that the transgenders are entitled to their fundamental rights in the same manner as any male or female. In july 2014, the first book on gender queer in tamil and the first tamil book on lgbtqia by srishti was released by bjp’s state general secretary, , at the 6th hindu spiritual service foundation’s sixth service fair in . In 2015, , who is a parliamentarian and opposition party lawmaker, prepared a private bill to amend section 377. Unfortunately, it was clamped down before it could be presented in i.e. The lower house of the indian parliament. In june 2016, a dating platform called amour queer dating was launched in india for the lgbtiq people who were seeking companionship. In may 2017, the first pride march was conducted, gathering the participation of around 200 members. Another landmark case that has added to the jurisprudence is the case of justice k.s. puttaswamy v. Union of india209 ( “justice puttaswamy case”) wherein a 9 judge bench of the hon’ble supreme court unanimously held that the right to privacy is a fundamental right guaranteed under the indian constitution and that it is inherent in the right to life. It was further observed in this judgment that adult consensual sex is covered by the right to privacy and that the same needs to be protected. Pursuant to the justice puttawamy case, several petitions were filed against section 377 of the ipc. The dust was finally settled through the landmark judgment of navtej singh johar. A writ petition was filed on april 27, 2016 in the supreme court challenging the constitutionality of section 377 of the ipc claiming that the issues raised in this petition were different from those filed in the suresh koushal case. This case was the first instance wherein the petitioners argued that they had been directly aggrieved by section 377 of the ipc, alleging it to be a violation of their fundamental rights guaranteed under the constitution.210 On 6 september 2018, the hon’ble supreme court delivered its unanimous verdict which declared the portions of the law relating to criminalizing of consensual sexual acts between adults to be unconstitutional. This decision overruled the suresh koushal case wherein the court had upheld the constitutionality of this section. However, the other portions of section 377 relating to sex with minors, non-consensual sexual acts, and bestiality still remain in force. The hon’ble supreme court observed that the criminalizing of sexual acts between consenting adults violated their right to equality which is guaranteed by the constitution of india. While

208 5 SCC 438 (2014). 20910 SCC 1, (2017). 210Key Facts,Navtej Singh Johar v. Union of India, https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union- of-india-section-377/

127 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 reading the judgment, the then chief justice dipak misra pronounced that the court found "criminalizing carnal intercourse" to be "irrational, arbitrary and manifestly unconstitutional". The bench unanimously ruled that the lgbt community in entitled to all the constitutional rights, including the liberties guaranteed by the constitution of india.

Laws applicable: A. Constitutional perspective of the lgbt rights The preamble to the indian constitution mandates justice - social, economic, and political equality of status for all citizens of india. 1. Article 14

The right to equality under article 14 of the constitution of india specifies the equal treatment of all the citizens. It also mandates that such a decision should be purely based on intelligible differentia, and must have a rational object sought to be achieved. The apex court, in the navtej singh johar case, held that there was no intelligible differentia between the classification of people, “who supposedly engage in ‘natural intercourse’ and those who engage in ‘carnal intercourse against the order of nature’”. 2. Article 15

It is a right against discrimination and prevents the state from discriminating against any citizen on the grounds of religion, sex, race, caste, and place of birth. This provision has been previously interpreted to mean that discrimination, which is not on the grounds mentioned above, is permitted. In the case of navtej singh johar, it washeld that any ground of discrimination whether direct or indirect which is purely founded on a particular understanding of the role of the sex, constitutes discrimination under article 15 of the constitution of india. The supreme court expanded the prohibited ground under article 15 to include “sexual orientation” and further section 377 was held to be discriminatory in nature under article 15. 3. Article 16 (4)

This article states that nothing in this article shall prevent the state from making any kind of provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under state. 4. Article 19

Right to freedom of speech and expression, article 19 allows freedom of speech & expression to every citizen of india. The apex court noted that consensual carnal intercourse among adults in private does not harm public morality or decency. Consequently, section 377 does not qualify as a reasonable restriction on any individual freedom of speech and expression.

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5. Article 21

Protection of life and personal liberty, no individual shall be deprived of his life or personal liberty except according to the procedure established by law. Over the years, the apex court has interpreted this right to include the right to live with dignity; the right to privacy; and the right to autonomy. The supreme court found section 377 to be in violation of these constitutional rights.

B. International perspective of LGBT rights

International law describes the legal responsibilities and obligations of states in their conduct with each other. It is also significant with regard to the treatment of individuals within the state’s jurisdiction. The frameworks mainly deal with issues of international concerns like the human rights violation. These international instruments are important as they oblige the state parties to include the provisions of the respective instruments in their domestic law through the same is not mandatory.

1. The universal declaration of human rights, 1948

The Universal Declaration of Human rights211 (“UDHR”) encompasses rights such as:

 Right to life;  Right to privacy;  Right to health equality before the law;  Right to freedom of expression and freedom.

The udhr specifies thirty articles of paramount importance which focus on the right to life, privacy, security, and equal treatment of all individuals irrespective of factors such as sexual orientation. 2. The international covenant on civil and political rights, 1966 (“ICCPR”)212

India acceded to the iccpr on April 10, 1979.213Article 2 clearly iterates to respect all individuals without any differentiation based on race, colour, sex, etc. The sexual orientation of a person is

211 Universal Declaration of Human Rights,https://www.un.org/en/universal-declaration-human-rights/ 212International Covenant on Civil and Political Rights,https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx 213SonaliHuria, Core International Human Right Treaties, Optional Protocols and Core ILO Conventions Ratified by India, A Handbook on International Human Rights Conventions (Dec. 10, 2012), https://nhrc.nic.in/sites/default/files/A_Handbook_on_International_HR_Conventions.pdf

129 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 well within the meaning of this article and hence effectively protects the lgbt rights. Article 2 of the iccpr reads as follows: Each state party to the present covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.214

Other relevant international conventions/declarations

There are several international conventions and declarations that deal with human rights and the same has led to the development of the body of international human rights. Some of these instruments have been acceded to/ratified by india and the others have not been acceded to/ratified. A few of these have been mentioned below:

 Convention against torture and other cruel, inhuman or degrading treatment or punishment (“UNCAT”);  The european convention on human rights (“ECHR”);  Convention on elimination of all forms of discrimination against women, 1979 (“CEDAW”);  Convention on the rights of the child, 1989 (“CRC”).

3. Human rights council (“HRC”)215

The hrc is a charter based body and is the main inter-governmental body within the United Nations system responsible for addressing situations of human rights violations. A few relevant hrc resolutions based on sexual orientation and gender identity with their importance have been mentioned below:

RESOLUTION IMPORTANCE Human Rights Council Resolution adopted on Strongly deplores acts of violence and June 30, 2016 -Protection against violence and discrimination, in every part of the world, discrimination based on sexual orientation and committed based onindividual’s sexual gender identity-A/HRC/RES/32/2 orientation. Human Rights Council Resolution adopted on Positive developments at the international, September 26, 2014 -Human rights, sexual regional and national levels in the fight against discrimination based on gender identity.

214 International Covenant on Civil and Political Rights,http://www.cirp.org/library/ethics/UN-covenant/ 215United Nations Resolutions - Sexual orientation and gender identity,https://www.ohchr.org/EN/Issues/Discrimination/Pages/LGBTUNResolutions.aspx

130 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 orientation and gender identity- A/HRC/RES/27/32. Human Rights Council Resolution adopted on Constructive, informed and transparent June 17, 2011 - Human rights, sexual dialogue on the issues of discriminatory laws, orientation and gender identity- practices and acts of violence against persons A/HRC/RES/17/19. based on gender identity.

4. Yogyakarta principles

The “yogyakarta principles”216are a set of principles prepared and drafted by a team of international human rights experts and was put forth in the year 2007 at the un in geneva and new york. It is a codification of binding international human rights principles related to sexual orientation and gender identity. It strengthened the existing regulations against the abuse of the lgbt community. A few relevant yogyakarta principles along with their description have been mentioned below:

Yogyakarta principle Description Rights to universal enjoyment of human Universality of human rights, criminalizing rights, non-discrimination and recognition homosexuality can lead to violation of non- before the law discrimination. Rights to human and personal security It addresses the basic and fundamental rights like right to life, personal liberty, freedom from torture, privacy related rights, access to justice and freedom from any form of arbitrary detention. Economic, social and cultural rights Principles 12-18 reiterates the significance of non-discrimination in the enjoyment of economic, social and cultural rights, including employment, accommodation, education and health. Rights to expression, opinion and Freedom to express one’ssexuality, without association interference from the state, including the rights to take part in public assemblies, events with others. Freedom of movement and asylum Specifies the rights of individuals to seek asylum from persecution on grounds of gender identityor sexual orientation. Rights to participation in family and It deals with the rights of persons to participate cultural life in family life, cultural life, gatherings of their community, without any discrimination.

216Amnesty International USA LGBT Pride Toolkit 2014, LGBT Rights: The Yogyakarta Principles (2014), https://www.amnestyusa.org/pdfs/YogyakartaPrinciples.pdf?_sm_au_=iVV5402rZ6PZQ066

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Rights of human rights defenders Principle recognizes the right to defend and promote human rights without discrimination based on sexual orientation and gender identity, and the obligation of states to ensure the protection of human rights defenders working in these areas.

Rights to redress and accountability Principles 28, 29 presses on the importance of holding rights violators accountable for their actions and making sure that redress for victims is given .

5. Progressive international legal precedents

There has been a continuous and dynamic change in issues concerning the legality of 'homosexuality'. Countries like , , south africa and have time and again pronounced certain impeccable judgements that can serve as a foundation of lgbt rights in any country, including india. An overview of these precedents is as follows: Obergefell, et al. V. Hodges, director, Ohio department of health, et al217: court accepted that adults may choose to enter upon a relationship in the confines of their homes and their own private lives and still retain their dignity as free persons and that when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. Delwinvriend and others v. Her majesty the queen in right of alberta and others218: in this case, it was observed that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or physical disability." Roberts v. United states jaycees219: the supreme court of the united states observed that the court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the state because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme

217 576 US (2015). 218 1 SCR 493 (1998). 219 468 U.S. 609 (1984).

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International framework: In India, religion plays an important role and has a huge influence on the choices made by people. The christian marriage act under section 60 states that the age of the man should not be under 21 years and that of a woman should not be under 18 years. It further states that neither of them should have a husband or a wife who is still living. The hindu marriage act also has similar conditions, stating that the bridegroom should have attained the age of 21 years and the bride should be 18. Under muslim law, marriage is considered to be a contract for the purpose of procreation.220 thus, it can be seen that the personal laws of different religions envisage only heterosexual marriages. Considering the religious norms and beliefs, it would be difficult to bring about a change in these personal laws as the same would be considered as interference in the practices and customs of these religions. One way to legalize same-sex marriages in india could be by considering the as a different community altogether having its own customs and practices. Another option that can be considered is the reading down of the special marriage act, 1954 (“sma”). The sma permits a couple belonging to two different religions to get their marriage registered under this act. Therefore, the benefit of sma can be extended to the lgbt community as well by permitting same- sex marriages within its ambit. There is a need to identify laws that discriminate against same-sex couples. Apart from the marriage laws, other laws such as the law governing divorce, adoption, pension rights, etc need to be amended.for instance, the parenting terms in the birth certificates should include the words parent 1 and parent 2 instead of the generic terms mother and father. In this regard, it is pertinent to note the benefits enjoyed by homosexual couples in other jurisdictions. There are as many as 29 countries in the world that have already made same-sex marriages legal, inter alia, , , , , ,, taiwan, and the united states.221 taiwan, is the first country in asia that has legalized same-sex marriage. Moreover, a few countries such as the netherlands and spain have also provided them with adoption and divorce rights. Therefore, in the light of the navtej singh johar case, the time is ripe to introduce a bill in india too, covering the rights of marriage, adoption, divorce, inheritance, pension benefits of the lgbt community, and make the laws of our country more gender-neutral.

1. Netherlands Article 1 of the dutch constitution clearly states that“all persons in the netherlands should be treated equally in equal circumstances, and distinctions on grounds of religion, belief, political opinion, race, sex, or any other grounds, are prohibited”.222

220Nayantara Ravichandran, Same-Sex Marriage Under Personal Laws, Legal Recognition of Same-Sex Relationships in India, http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC- C742B9DB217D.pdf 221Josie Green, 29 countries where same sex marriage is officially legal (Jun. 13, 2019:11:59 AM), https://www.usatoday.com/story/money/2019/06/13/countries-where-same-sex-marriage-is-officially- legal/39514623/ 222Janny R. Dierx et al., The Dutch Equal Treatment Act in Theory and Practice (May 10, 2003), http://www.errc.org/roma-rights-journal/the-dutch-equal-treatment-act-in-theory-and-practice

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In line with the same, the equal treatment act was adopted in the year 1994. Relevant sections of the equal treatment act, 1994 (“eta”), prohibits any discrimination on grounds of religion, belief, political opinion, race, sex, nationality, heterosexual or homosexual preferences or civil status in areas of:

 Employment and professions (under section 5 of the eta);  Supply of goods and services, conducting business, profession (under section 7 of the eta);  Academic and career advices (under section 7 of the eta).

Henceforth, the country made it a point to treat the lgbt community equally in most of the aspects. Amsterdam, the capital of the netherlands, is considered as the “birthplace of lgbt rights”. Homosexuality was decriminalized way back in 1811 in amsterdam. One of the world's first gay rights organizations, the coc, was founded in amsterdam in 1946.223netherlands created world history by being the first country to legalize same-sex marriages a bill concerning the legalization of same-sex marriages was passed on 12th september 2000, although the law came into effect in april 2001. The netherlands has three forms of unions, i.e. Civil marriage, registered partnership, and cohabitation agreement, all of which are available to same-sex couples.224 Along with the bill for same-sex marriages, another bill legalizing adoption by same-sex couples was also adopted. The dutch parliament permitted same-sex couples to adopt children overseas in 2009.225 book 1 of the dutch civil code was amended in 2008 to simplify the process of adoption by homosexual couples. Moreover, in 2014, the procedure for a co-mother to become the legal parent of her partner’s child was simplified. Previously, this was only possible through adoption, however, now the co-mother directly becomes the legal parent of the child, or she can acknowledge the child.226 on the other hand, a gay step-parent has to follow a lengthy procedure to adopt his partner’s child, i.e. He will be required to follow the same procedure that is used by a straight step- mother/step-father to adopt the child.

In december 2013, the dutch parliament passed a bill that allowedthe transgender community to change their gender legally on birth certificates without undergoing anykind of sterilization. Until 1974, the dutch army could exclude homosexuals from being a part of the armed forces. However, inrecent times, netherlands stands at second ranking in the world for inclusion of lgbt members in their armed forces.227

223History and milestones, LGBT History, https://www.iamsterdam.com/en/see-and-do/whats-on/lgbt/history 224 Same-Sex Marriage and Registered Partnerships, https://www.angloinfo.com/how- to/netherlands/family/marriage-partnerships/same-sex-marriage 225 "Dutch Civil Code Amendment Book 1, etc. (shortening adoption procedure and adoption by same-sex spouses". wetten.overheid.nl (in Dutch). Ministerie van BinnenlandseZakenenKoninkrijksrelaties. (Jan. 1, 2009). 226Parental Status of Co-mothers, https://www.government.nl/topics/family-law/parental-status-of-co-mothers

227 Alexandra Gowling, LGBT Acceptance in Armed Forces, Dutch armed forces second in the world for LGBT inclusion (Feb. 24, 2014), https://www.iamexpat.nl/expat-info/dutch-expat-news/dutch-armed-forces-second-world- lgbt-inclusion

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2. Australia

Australia has legalized same-sex marriages through an amendment in their marriage act, 1961 (“marriage act”) and it is the 26th country to legalize the same.228 the marriage amendment bill, 2014 specifically prohibited same-sex marriages and stated that any same-sex marriage entered into under the law of any other country would not be recognized in australia.229 through the marriage amendment (definition and religious freedoms) act 2017 (“amendment act”), the definition of marriage was amended to mean a union of 2 people. The marriage act, under section 5 defined marriage as follows: “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” However, through the amendment act the definition has been redefined and the words “man and woman” have been omitted and substituted by the words “2 people”. This also implies that same- sex marriages entered into by the people in different countries will also be recognized in australia. Another noteworthy amendment has been brought in the section which lays down the grounds on which a marriage can be held void. Section 23b(2)(b) in the marriage act read as follows: “(2) marriages of parties within a prohibited relationship are marriages: (b) between a brother and a sister (whether of the whole blood or the half-blood).”

Through the amendment act, the words “brother and sister” have been omitted and have been substituted by the words “2 siblings”, thereby making the section more gender-neutral. Moreover, the amendment would also recognize same-sex marriages solemnized under the laws of a foreign country wherein it is considered to be valid.230it has been also provided that any descriptor could be used by the couple, for instance, a descriptor bride can be used by a male party or vice versa. They can also describe themselves as partners or spouses.231 Marriage and divorce go hand-in-hand. Thus, it has been provided that the divorce system would be equally available to a same-sex married couple if they meet the requirements of divorce under australian law. The access to australia’s divorce system has also been extended to same-sex couples who have married in a different jurisdiction and the divorces that have taken place in foreign jurisdictions would be recognized too.

228MichealKozoil, Same-sex marriage legalised in Australia as Parliament passes historic law (Dec. 7, 2017:10.40 AM), https://www.smh.com.au/politics/federal/samesex-marriage-legalised-in-australia-as-parliament-passes- historic-law-20171207-h00cdj.html 229 Deirdre McKeown, Marriage Amendment Bill 2004, Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide (Feb. 15, 2018), https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1718/Quic k_Guides/SSMarriageBills 230Recognition of Foreign same-sex marriages, Recognition of Foreign same-sex marriages and divorce (Dec., 2017), https://www.ag.gov.au/sites/default/files/2020-03/Fact-sheet-Recognition-of-foreign-same-sex-marriages- and-divorce.pdf 231Marriage Equality: Questions and answers on sex and gender (Jul. 2018), https://www.ag.gov.au/sites/default/files/2020-03/marriage-equality-faq.pdf

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3. Canada

On july 20, 2005, canada became the fourth country to legalize same-sex marriage after the parliament of canada enacted the civil marriage act, 2005 (“cma”).232 the supreme court of canada had directed that the said act is constitutionally valid after the government of canada had asked for its advisory opinion.233 Section 2 of the cma reads as: ‘‘marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others.’’ The words ‘union of two persons’ which replace ‘one woman and one man’ open up about marriage of persons of the same-sex. Furthermore, section 4 of the cma states that: “for greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.” The cma, however, explicitly rejects the idea of a as an alternative to marriage. This legislation applies only to marriage ‘for civil purposes’and does not compel the religious communities to solemnize same-sex marriages contrary to their religious beliefs.234 thus, it can be said that that the act serves two main purposes, firstly, the definition of marriage has been expanded to include same-sex marriages, and secondly, it safeguards the freedom of religion as churches are not under compulsion to perform same-sex marriages.235

Further, the divorce act of canada, under section 8, provides that either spouse can apply for a divorce, thus, implying that same-sex couples can obtain a divorce under this act.236 the word “spouse” has been defined in the act to mean “either of the two persons who are married to each other”. Social and legal acceptance regarding same-sex parents is still a work in progress in canada. Federally, same-sex couples are allowed to adopt children however adoption rights vary from province to province. In 1995, ontario became the first province to legalize adoption rights for same-sex couples. Before this, they were not allowed to apply jointly for adoption. After ontario, many other provinces have also given same-sex parents the same rights as heterosexual parents. Same-sex parents who wish to adopt can do it through 4 ways, namely- public adoption, private adoption, international adoption, and relative adoption. While public adoption is the easiest way,

232 S.C. 2005, c. 33 (Can.). 233Re Same-Sex Marriage, [2004] 3 SC.R. 698. 234 Peter W. Hogg, Canada: The Constitution and same-sex marriage, 4 Intl. J. of Constitutional Law 712, (2006), https://academic.oup.com/icon/article/4/4/712/640266 235 Christy Glass et al., The Evolution of Same-Sex Marriage in Canada: Lessons the U.S. Can Learn from Their Northern Neighbor Regarding Same-Sex Marriage Rights, 15 MICH. J. GENDER & L. 143, 168 (2008), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1077&context=mjgl

236https://laws-lois.justice.gc.ca/eng/acts/d-3.4/

136 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 same-sex parents face problems when they adopt internationally, as not many countries have legalized adoption by same-sex couples.237 However, the challenge faced by same-sex parents when they choose the option of conceiving a child is that only the birth-giving parent can have a legal right over the child. In case of death of birth-giving parent, the other parent will have to legally adopt his own child.238 Before 1992, under the canadian military rules, homosexuals were not allowed to enroll in the military. In a case where armed services members identified themselves as homosexuals after joining, they were forced out and declared ineligible for training courses or promotion.239 time and again this policy was challenged on the ground that it was in violation of the 1982 charter of rights and freedoms which guaranteed equal protection under the law.240 in response to these cases, the government of canada, in 1992, allowed the lgbt community to openly serve in the military. 4.

New zealand introducedhomosexual law reform actwhich came in to effect from 8th august 1986, which decriminalized sexual relationship between men who were aged 16 & above. After this act, men having consensual sex with each other will not liable to prosecution & term of imprisonment. Both lesbians & were strong supporters of that reform, given that a lesbian relationship was also decriminalized.241 During the aids crisis, only the new zealand government had approved the homosexual law reform. For the first, time gay men could have a sexual relationship without any kind of social fear.242 New zealand parliament has legalized same-sex marriage, the first country in the asia-pacific region to do so. Despite opposition from the christian hospitality groups, the legal authorities approved the amendment in the marriage act, 1955. The act, as it stands amended, defines marriage as: “the union of 2 people, regardless of their sex, sexual orientation, or gender identity.” Pursuant to this amendment, various other acts were amended to extend the rights to same-sex couples, these acts include the adoption act, child support act, crimes act, family proceedings act, land transfer act, and so on. These acts were amended so as the redefine and replace “husband and wife” with a“married couple” in certain acts and “either spouse” in the other acts. All human beings, regardless of their sexual orientation, have the same human rights and freedoms as human beings. All kinds of sexual & gender minorities are entitled to full enjoyment of all

237Miriam Yosowich, What rights do same-sex parents have under the law, https://family.findlaw.ca/article/what- rights-do-same-sex-parents-have-under-the-law 238 Edmonton, Are There any Changes in the Rights for Same-sex Parents if Conception is Assisted?,What are the legal rights for same-sex Parent in Canada (Jan. 8, 2018), https://prowsechowne.com/what-are-the-legal-rights-for- same-sex-parents-in-canada/ 239Clyde H. Farnsworth, Canada ending anti-gay army rules (Oct. 11, 1991), https://www.nytimes.com/1991/10/11/world/canada-ending-anti-gay-army-rules.html 240 Id. 241 This is why New Zealand is at the forefront of LGBT rights (April 17, 2013), https://www.ilgrandecolibri.com/en/this-is-why-new-zealand-is-at-the-forefront-of-lgbt-rights/ 242Id.

137 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 human rights. This includes people who identify as lesbian, gay, bisexual, & transgender.243 Legislative framework of new zealand forthe lgbt community is as follows:

 Same-sex partners have been accorded the same legal protections as opposite-sex partners under the domestic violence act 1995.  The relationships (statutory references) act 1995, does not discriminate on the grounds of sexual orientation.  The civil union act, 2004 allows same-sex & opposite-sex couples to register their relationships as civil unions under the birth, deaths and marriages registration act 1995. This act under section 4 provides that:

“two people, whether they are of different or the same sex, may enter into a civil union under this act.”

 The adoption act, 1955 provides that ‘two spouses’ orany individual, regardless of their any kind of sexual orientation, areeligible to adopt a child. Further, in the adoption act the words “husband or wife” were replaced with “each spouse”.  Gay, lesbian, bisexual, transgender, and intersex (glbti) policy was established bythe ministry of social development in the year2004. The work of this policyis to make fair policies without any kind of discrimination on sexual orientation for the lgbt community.244  After passing the human rights act in 1993, the new zealand defence force moved swiftly to incorporate the act into its policies, and in early 1994 it was open for homosexual men & women to join the defence.245 further, in 2014, the new zealand defence force (“nzdf”) was recognised as being the world’s most lgbt & inclusive military by the hague centre for strategic studies. Nzdf also has been awarded the rainbow tick for its lesbian, gay, bisexual and transgender (lgbt) inclusion.246

Development of : Transgenders were given official recognition for the first time as the third gender by the election commission of india in 2009. In most cases, the voter id card is issued under the category of men or women, even though there is a third category of gender. It has been right pointed out by dhananjay chauhan, president of saksham trust, an ngo that works for the lgbt community, “things have changed but the community still has a long way to go”.

243 Rights of Sexual and Gender Minorities, https://www.hrc.co.nz/files/1914/2388/0525/HRNZ_10_rights_of_sexual_and_gender_minorities.pdf 244 Id. 245 NZDF Celebrates 25 Years of Open LGBT+ Service (Feb. 7, 2019), http://www.nzdf.mil.nz/media- centre/news/2019/nzdf-celebrates-25-years-of-open-lgbt- service.htm#:~:text=Following%20the%20passing%20of%20the,able%20to%20join%20and%20serve.&text=“The %20NZDF%20is%20a%20force,reviewed%20on%207%20February%202019 246 NZ Defence Force earns Rainbow Tick for LGBT+ inclusion (Nov. 25 ), https://www.tvnz.co.nz/one-news/new- zealand/nz-defence-force-earns-rainbow-tick-lgbt-inclusion

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For instance, in , out of 6.5 crore registered voters, a nominal 758 are from the third gender. “we encourage them. They can include the third gender as candidates and voters in the third gender category. But we have noticed that they do not want to say the third gender even though we ask them to do so” amitjyoti bhattacharya, deputy chief electoral oicer. There are various reasons for transgenders to not actually select the third gender for the voter id card, a few of them have been mentioned below. Ranjita sinha, who heads the association of transgender / in bengal (“athb”), said public affairs prevented them from going public, “many members of the transgender and hijra community were forced to register themselves as male or female voters when faced with the challenge of gaining recognition as a third party. Many were registered as men or women many years ago. Now how will they change their gender on the voters' id card.” Shabina khatoon, a saleswoman who lives at a hostel in kolkata, said she was concerned about the harassment by some voters as they stood in line to vote.“people are passing on dirty ideas and making fun of us. It is difficult to stand in line alone to vote. We will only get our rights if people stop discriminating against them," he said. During the 2014 lok sabha vote it was the first time that transgenders and eunuchs were considered third-party sexes after the electoral commission accepted them as “others”. Over 66% of the population identified as third gender lived in rural areas of india, very close to the 69% of the overall population that lives in villages. The census data also revealed the low literacy level in these community, just 46%, compared to 74% literacy in the general population of the country. Thus, it can be seen that there are numerous issues that are faced by transgenders on a daily basis. As noted above, the election commission had recognized them as third gender in 2009 itself, however, no step was taken later to provide them with reservation in the legislative bodies. A number of times bills seeking amendments relating to reservation for lbgt in the parliament were introduced by the government however these bills could not see the light of the day. Recently bjd member sasmit patra introduced the constitution (amendment) bill, 2020 (substitution of articles 331 and 333) in the upper house which provides for the reservation to transgenders in parliament and state assemblies.247 If the community is not granted reservation in the legislative bodies, how will it be ensured that all their grievances are addressed in the law of the land. The issues arising from the same have been addressed below. A. Act for transgenders

The transgender persons (protection of rights) act, 2019 (“tpa”) is an act of the parliament with an objective to protect the rights of the transgenders, their welfare, and other matters connected with and incidental thereto. The tpa was introduced in the lok sabha on 19th july, 2019 by the minister of social justice and empowerment, thawar chand gehlot, in light of the lapse of the transgender

247PTI, Bill seeking reservation for transgenders in Parliament (March 2020, 19:06 PM) https://www.deccanherald.com/national/national-politics/bill-seeking-reservation-for-transgenders-in-parliament- 813443.html

139 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 persons (protection of rights) bill, 2018 (bill no. 210-c of 2016) (“bill”). The transgender persons (protection of rights) rules,2020 are now open for public comments.248 1. History

On 15th april, 2014, the hon’ble supreme court in its landmark judgment, the nalsa case, laid down several measures for protecting the transgenders against any discrimination, providing reservations in educational and occupational fields, creating welfare policies and so on. The previously tabled bills had faced a lot of criticisms and hence was referred to the standing committee, which submitted its report in july 2018. The lok sabha tabled and passed a newer version of the bill with twenty-seven amendments on december 17, 2018. The bill was once again met with severe criticism and protests across india, as it overlooked the recommendations made by the standing committee and the suggestions that had been offered by the transgenders. This bill lapsed due to the dissolution of the lok sabha. Following the reconstitution of the lok sabha, another bill was introduced. The bill got approved by the union cabinet on july 10, 2019, was passed by a voice vote in the lok sabha on august 5, 2019, got passed in the and received presidential assent on december 5, 2019. The tpa came into effect on january 10, 2020.

2. Criticism faced by the bill

The bill faced a lot of criticism and protests all over the country. Activists had problems right from the beginning, starting with the title of the bill, as the word ‘transgender’ was restrictive, they argued, and it showed a lack of understanding of the complexities in people who do not conform to the gender binary, male/female. Here’s a comprehensive list of the problematic aspects of the bill:

 The bill as the name suggests was for the protection of rights of the transgenders, however, it was drafted without consulting anyone from their community. It did not care to consider their needs and requirements and was mostly based on assumptions and stereotypes.  This bill required a transgender person to approach a district magistrate to obtain a certificate of their identity stating that they are transgender. On the basis of this, they will be able to change their gender to either male or female or vice versa, on government-issued identification cards. The process to obtain this certificate is to show proof of , whichis not something that all the trans people want, it was a very expensive procedure which not many of them can afford, it did not mention a clear procedure as to determination or examination of person and documents by the district magistrate, and is a violation of their privacy.

248https://www.prsindia.org/

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 It also didn’t specify the kind of surgery they are expecting, because there is much more than one type of surgery. This contradicted the nalsa judgment by the supreme court, which gave transgender people the right to self-identify and did not mandate surgery.  The bill also stated that a person’s identity as a transgender will always be valid whether or not they have undergone sex reassignment surgery. However, this contradicts the point wherein they have mentioned that a certificate has to be first obtained proving that they have undergone any surgery.  The bill made sexual abuse against a transgender a punishable offence. However, it failed to clearly define what exactly constituted sexual abuse.  Although the bill mentioned that there would be government aid in education and healthcare, it failed to specify the manner in which the aid was going to be provided to them. There was a lot of uncertainty.

3. About the tpa The tpa prohibits any person or establishment to deny or discriminate against transgender people in educational establishments, healthcare services, employment or occupation, etc. A number of other welfare measures have been provided in the tpa. However, despite the criticism faced by the bill, the provision regarding obtaining the certificate from district magistrate has been retained. On the other hand, it can be said that it is necessary to have a certificate to that effect so as to ensure that the provisions are not misused by others to obtain the welfare measures.249 The tpa also focuses on setting up a national council for transgender persons to provide their suggestions and look after the institutional framework for implementation of policies. However, propositions regarding the composition of such a council, or the demand to set up a working group for a council for intersex persons were also ignored.250 Thus, it should be ensured that while drafting a bill for the lgbt community in the light of navtej singh johar case, the grievances of the community should be first heard, and accordingly the bill should be drafted. There is also a need to conduct a survey throughout the country to understand how vulnerable the community is to poverty, bullying, workplace discrimination, among other things. Moreover, the prime focus should be on protecting their rights, that they inherently possess, which have persistently been denied to them due to various factors, including the society’s attitude towards them.

B. Questions raised in lok sabha

The lok sabha’s question hour is one of the most important sessions that is devoted to the questions of members of parliament wherein concerns are raised and then addressed by the concerned

249Damini Nath, Transgender Persons Act comes into effect (Jan. 11, 2020: 23:44 PM), https://www.thehindu.com/news/national/transgender-persons-act-comes-into-effect/article30545336.ece 250 Sasha R., Trans Bill 2019: Why India’s transgender community is opposing a Bill which is supposed to protect their rights (Nov. 30, 2019), https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender- community-rights

141 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 minister. A number of questions have been raised in the lok sabha regarding the transgender community. Some of them are:

1. First question - 16th lok sabha

A question was raised by pralhad venkatesh joshi so as to know if the transgenders are facing any kind of discrimination and social stigma while accessing healthcare facilities; and if so, the details thereof. Also, whether the doctors and other medical personnel are given any specialized training to handle the medical cases of transgenders with increased sensitivity; and if so, the details thereof and if not, the reasons to be stated. The question was answered stating that no such issue has been reported to the ministry. The training to handle the medical cases of transgender is a part of standard medical education of medical personnel. It was further said that every doctor is required to provide medical treatment to all patients irrespective of their gender with due empathy. No special training is provided in this regard. However, sensitization is done time to time in some government hospitals.251

2. Second question – 16th lok sabha A question was raised by prabhas kumar singh asking whether the government proposes to give any special fund for generating livelihood opportunities to the transgender community; and if so, the details thereof. This was answered pointing to the fact that a total of rs.1.00 crore has been allocated during 2018- 19 under the scheme for transgender persons.252 3. Third question – 16th lok sabha

Another inquiry was raised by harish dwivedias to whether the government has any data regarding the number of transgenders in the country; if so, the details thereof of state/ ut-wise. The minister stated that the registrar general of india (rgi), during enumeration of census 2011, for the first time provided three codes i.e. Male-1, female-2 and others-3 for enumeration. It was at the discretion of the respondent. In case the respondent wished to record neither ‘1’ nor ‘2’, then enumerator was instructed to record sex as ‘other’ and give code ‘3’. Still, it is important to note that the census of india does not collect any data specifically on ‘transgender’. Thus, the category of ‘other’ would not only include ‘transgender’ but also any person who desires to record sex under the category of ‘other’. It is also possible that some transgenders would have returned themselves either male or female depending upon their choice. The population of ‘other’ as per census 2011 is 4,87,803. 253

251Lok Sabha, http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=23505&lsno=16 252Lok Sabha, http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=78167&lsno=16 253Lok Sabha, http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=52519&lsno=16

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4. Fourth question – 15th lok sabha

A question was raised by prabodh panda as to whether the transgender community are not entitled to access all the public schemes including government job and whether the government is considering to bring a legislation to bring these people to the socio-political mainstream. This question was answered stating that the constitution of india guarantees right to equality to all citizens of the country and prohibits discrimination on the grounds of religion, race caste, sex or place of birth. Accordingly, all citizens, including transgenders, are entitled to enjoy the rights guaranteed to them by the constitution.254 A number of questions have been raised by the members of the parliament regarding the welfare and reservations of the transgender community. But a greater support needs to be shown for the lgbt community as a whole i.e. For each and every individual of that community. Basic steps like supporting their activism, protecting their human rights, dignity, raising questions against unjust policies and attitude towards them, and so on. The questions like the one’s raised above are always the valid ones and the responses given by the ministers showcase that the country is moving towards a progressive side i.e. For their betterment. But, still there a lot of things to be considered for theprotection of their rights and still a lot of these answers have to be taken into consideration seriously and need to be acted upon. C. Reservation as a socially and economically backward class

The landmark nalsa case recognized the various rights of the transgenders. It further went ahead and directed the centre to recognize them as a socially and educationally backward class and accordingly provide them with reservations in education, employment, etc. To remedy the discrimination against them which is in violation of article 16(2) of the indian constitution.255 however, the tpa in no way provides for the reservation of transgenders in education and employment. introduced the transgender welfare policy wherein the transgender community was entitled to a number of benefits like reservations in educational fields. In the case of ganesan v. State of tamil nadu &ors.256, a pil was filed for the implementation of horizontal reservations for transgenders and intersex persons regarding admissions in educational institutions and public appointment in the state of tamil nadu.

254Lok Sabha, http://loksabhaph.nic.in/Questions/QResult15.aspx?qref=131175&lsno=15 255Sakshi Parashar, Abstract, INCLUSION OF TRANSGENDER COMMUNITY WITHIN SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES: EXAMINING THE DEEPER CONCERNS (2017), http://ili.ac.in/pdf/sakshi.pdf 256Deekshitha Ganesan, Grace Banu Ganesan v. State of Tamil Nadu &Ors. (March 25, 2019), https://clpr.org.in/litigation/grace-banu-ganesan-v-state-of-tamil-nadu-ors/

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The reservations provided to the transgender people in tamil nadu is under the category of most backward classes (“mbc”). Transgender or (thirunangai or aravani) were provided vertical reservations just like the one’s provided to other caste category in tamil nadu. Although the transgenders and intersex persons have been included under the mbc category, there hasn’t been any clear idea on the policy implementation of the same. The petition filed above was for horizontal reservations under the ‘transgender’ or ‘women’ community and not under mbc. It was supposed to be similar to the reservations provided to women and people with disabilities. In fact, various decisions of the high court of madras such as nangai v superintendent of police, t. Thanasu v secretary, government of tamil nadu, have permitted transgender women to seek employment under the ‘woman’ category. The petition is currently pending at the high court of madras and until then has decided to act upon the instructions of the previous orders of the honourable court. Further, has announced transgender policy by directing universities and other educational institutions to reserve two seats for transgender students in undergraduate and post graduate courses.257 along with this the government has also directed the universities to ensure that these transgender students do not face any sort of discrimination. A research conducted by unesco regarding youth and school environment showed that gender- specific school uniforms, lack of access to toilets, and difficulties in obtaining accurate identity documents as barriers for lgbt students. Another research conducted by international commission of jurists, a nongovernmental organization came to the conclusion that “educational and training opportunities are often denied to lgbtq persons due to harassment, bullying, and violence.” Thus provisions relating to non- discrimination in relation to sexual orientation and gender identity is the need of the hour in order to protect vulnerable students. There have been arguments stating that education and employment are bare minimum requirements to uplift the transgender community. However, it is high time we do away with the reservation system. Inspite of providing reservations, it should be ensured that there is no discrimination on the basis of the sexual orientation or the gender of a person. There is a need for a grievance redressal system, that can address such issues, in case the transgender person is denied education or employment on the basis of their identity. It is suggested that a similar approach should be adopted for the lgbt community as well. A grievance redressal portal can be established through a bill for the lgbt community to resolve any issue faced by any person from the lgbt community, be it bullying, workplace discrimination, denial of a job position based on their identity, and so on.

Surrogacy rights and lgbt community:

257 Correspondent, Kerala announces reservation for transgender students in colleges( July 2018, 22:53 PM), https://www.hindustantimes.com/education/kerala-announces-reservation-for-transgender-students-in- colleges/story-qHixW6XIPTEXuXkCrrv45K.html

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In the indian scenario, there existed no strict surrogacy laws for a long period of time. This paved way to a number of cases associated with commercialization of surrogacy and exploitation of the surrogate mothers. Baby manji yamada v. Union of india &anr258 was the first case in which the absence of surrogacy law was noticed and a few guidelines were given related to foreign surrogacy. Finally a bill to address such issues was introduced and passed in lok sabha in the year 2019, i.e. “the surrogacy (regulation) bill, 2019” (“surrogacy bill”). The surrogacy bill faced a lot of criticism and was scrutinized by selected committee in the rajya sabha.259they proposed a total of fifteen recommendations to the bill and after the incorporation of these recommendations; the bill was finally approved by the cabinet in 2020. Members belonging to the lgbt community were not allowed to utilize the method of surrogacy. This can be regarded as one of the “most discriminatory” aspect of the surrogacy bill. This clearly hinders the ‘right to privacy’ enshrined under article 21 and the ‘right to equality’ under article 14 of the indian constitution. In devika biswas v. Union of india260 , the supreme court recognized “right to reproduction” as an important component of “right to life” under article 21. Such a classification made in the surrogacy billis not supported by any intelligible differentia and does not possess a nexus to the object sought to be achieved. The primary or basic aim of assisted reproductive technology is to benefit those couples who cannot reproduce normally (infertile couples). There is precisely no need of distinction between heterosexuals or homosexuals in this regard. The major targets of such technologies are members like lgbt couples, single parents, older couples etc. Therefore, non-inclusion of them in the surrogacy bill is erroneous and illogical.

Survey analyis of general public and professionals A. General public

1. Survey analysis

The authors conducted a survey using the google form between july 23 – july 24, 2020, more than 130 people across the country have given their valuable feedback to uplift the lgbt community in india. Most people believe that they should also have the right to life, right to education, right to equality & they are fit to serve in the . The responses received from every individual were very positive. In this survey, 50% of the people were students and rest came from different professions, as can be seen below:

25813 SCC 518 (2008). 259Ayush Verma, Surrogacy (Regulation) Bill, 2020: The Way Forward (June 24, 2020), https://blog.ipleaders.in/surrogacy-regulation-bill-2020-way- forward/#:~:text=The%20Bill%20allows%20surrogacy%20to,of%2035%20and%2045%20years 260 10 SCC 726 (2016).

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Source: survey conducted by the authors

The people who filled the survey are mostly young. 90% of people fall between the age group of 18-25, which clearly shows that the youth of our country wants to give equal rights, equal opportunities, equal social status to the lgbt community. Our youth is ready to remove this taboo from society.

Source: survey conducted by the authors

Now, let’s understand the views of the target audience on different questions asked through the survey.

 Lgbt community should have equal rights and liberties.

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Source: survey conducted by the authors

The result of this question is unbelievable, 99% of the people who took the surveywant the lgbt community to haveequal rights & personal liberty as envisaged in article 14 &article 21 (respectively) of the indian constitution.261 thus, it is high time we understand the fact that they deserve to be treated equally like any other citizen and that there is nothing wrong with them. Also should have equal rights& liberties like other citizens. They should be able to live their life with full liberties & should be able to pursue any career of their choice.

 Lgbts are not adequate to be in the military.

Source: survey conducted by the authors

Lgbt community is already serving in the military in many countries for along time. New zealand has also been awarded the rainbow tickfor its lesbian, gay, bisexual, and transgender (lgbt) inclusion in the army. Now it is time for india to include the lgbt community in its military tooso that they can also serve in the indian army and fulfill their dreams. The good part of the response received is that 86% of people think that the lgbt community is fit to serve in themilitary, but the remaining 7.6% are not able to decide whether they are fit to serve in the military or not. Although the present study shows that the majority of people have a positive attitude towards the lgbt community and to serve in the military.

 An lgbt should be declined a position by the employer on the basis of their sexual orientation.

261PART III, FUNDAMENTAL RIGHTS, https://www.mea.gov.in/Images/pdf1/Part3.pdf

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Source: survey conducted by the authors. The result obtained through this question is indeed very positive. More than three fourth of the total sample strongly disagreed on the denial of a position by the employer to the lgbt members based on their gender identity. However, a miniscule proportion still believes that “employees must have the right to decline a job based on sexual orientation”. Although not expressly mentioned, ‘right to work’ can be understood by a keen analysis of article 21 of the indian constitution. The right to live a dignified life can also mean the right to work in order to earn and make a living. This applies to all individuals, irrespective of any barriers.

 Lgbts should have the right to marry whomever they want.

Source: survey conducted by the authors Progressive steps like the legalization of same-sex marriages have already been adopted in many international jurisdictions such as the netherlands and the usa. The sample chosen includes students of law, general public from various working backgrounds, and also students from other branches such as engineering, arts, and medicine. However, the responses suggest that there has not been a complete change in the mindset of many indians. Some individuals still believe that ‘extending marriage right to the lgbt community’ is not acceptable. Societal acceptance needs to be increased through education and awareness. Although the present study shows that more than 90% of the total sample has a positive attitude towards it. This is indeed a ray of hope for more developments in this area.

 Lgbt community would make bad parents.

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Source: survey conducted by the authors Giving the lgbt community opportunities to lead a normal family life with the right to adopt children can ameliorate their situation to a large extent. The rigid gender roles in our society make it a little difficult for the general public to accept certain changes. This is evidently clear in the present survey as well. A key feature to be noticed here is that nearly 12.9% of the sample preferred not to express their opinion on this particular aspect. Spreading awareness among citizens becomes a necessity. Including an overview of the significant areas of human rights in the secondary level school curriculum for all students can help them have a basic idea of the rights that every human deserves to enjoy. This can shape young minds and widen their paradigm of thoughts enough to accept certain imperative changes that communities like lgbt need in our society.

 Lgbt community should have the right to adopt children.

Source: survey conducted by the authors The right to adoption is another controversial issue that is associated with the lgbt community and a right that has been denied to them which they inherently possess. The sample population overwhelmingly agreed to this notion that they should be given the right to adopt children.like every other person the lgbt members wish to have a family too and the right to adoption is imperative for that.262 But, this survey shows that 57.6% of people strongly agreed & 38.6% agreed that the lgbt community should also have the right to have children. Many countries have already given the right to the lgbt community to adopt children.

 Is a law needed to protect the rights of the lgbt community?

262 Ambika Pandit et al., Now, time to give LGBTs marriage & parenting rights (Sep. 7, 2018 : 00:31 AM), https://timesofindia.indiatimes.com/india/now-time-to-give-lgbts-marriage-parenting- rights/articleshow/65712127.cms

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Source: survey conducted by the authors As the representation shows, the majority of the individuals whoparticipated in the survey thought that a specific law is needed to protect the rights of the members of the lgbtcommunity. The same should be drafted after consulting the members of the community who can elaborate on their needs and accordingly the provisions may be framed on lines of the navtej singh johar case. Through, the supreme court judgment, only the battle has been won, however, now the war needs to be won and that can only be done by providing them the right to marriage, adoption, inheritance, pension benefits, guardianship, and so on.

 Should there be reservation policies in education and employment for the lgbts under the frame of sexual minority?

Source: survey conducted by the authors Currently, there is no provision which provides for reservation for the lgbt community in the education and employment sector. The community has time and again sought reservation in government jobs and education so that the community can gain independence and get access to higher education. Through this survey, half of the total sample has agreed that the government needs to bridge the gap between the lgbt community and others when it comes to access to equal opportunities through the reservation policy. On the contrary, 18.2% of the total individuals strongly believe that a reservation policy would not aid in uplifting the community and providing them with the opportunities they don’t have access to. A major chunk of the sample preferred to not have a say on this, which leads to the conclusion that there can be a better option available to increase literacy rate and economic standard of the lgbt community.

 Parents should not be able to kick their children out of the house on the basis of their sexual orientation.

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Source: survey conducted by the authors The homelessness of lgbt teens is a serious issue. Due to the social stigma attached and lack of social acceptance, often the lgbt teens are kicked out of their homes. Due to the absence of any programs designated to meet the needs of homeless lgbt teens, they are left with no sort of assistance and resources which can lead to physical and mental issues. This concern can be evidently seen in this survey as 66.7% of the total sample individuals strongly disagree with the fact that the parents should be allowed to kick their lgbt children out of their houses on the basis of their sexual orientation. This leads us to the conclusion that there is a dire need for a legislation that protects these lgbt teens from further misery.

 Schools should provide for rules prohibiting bullying of the lgbt students.

Source: survey conducted by the authors Schools can often be a difficult environment for the members of the lgbt community, due to the discrimination faced in school, bullying, exclusion which exposes them to psychological trauma, and ultimately lack of education. Moreover, scars from childhood always remain, thus leading to major mental health issues later. This further undermines the fundamental rights of the community such as the right to education, freedom from discrimination, free expression of the lgbt students. This assertion is strongly agreed upon by a major chunk of sample individuals of the survey. Thus, there is an increasing need to urge the policymakers and the school to take concrete steps to stop rampant bullying and protect the rights of the lgbt youth.

 Would you consider being friends with a person from the lgbt community?

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Source: survey conducted by the authors It can be seen that 50% of the people do not mind being friends with the lgbt community &that 31.1% is already friends with members of the community. Thus, it can be clearly seen that societal acceptance has increased and that we, as a society, should see every person as a human being and not judge anyone on the basis of their sexual orientation. but, some people are also not sure whether they will be friends with the lgbt community or not. This is the other side of our survey where they are saying i would consider it or unsure. The only thing which makes the society is running is the law of the land. Law is an instrument of change. If we want to see the changes in society which are based on humanity, then we need to change the law which deals with humanity without any kind of discrimination.

 What is the major cause of the difficulties faced by the lgbt community?

Source: survey conducted by the authors Most of the people think (53.8%) that the lgbt community faces social exclusion because of social stigma & inability to accept change. The lgbt community faces social exclusion right from their schooling to their workplace. Till now there is no law that regulates this kind of inhumane behaviour in society & punishes those people who think that just because they belong to the lgbt community, they are not capable of working efficiently. Lgbt community is more likely to be rejected by their families. This directly increases the chances of becoming homeless. Around 40% of youth that is homeless are lgbt.263 the researchers found that those who experienced stronger rejection were about: a) 3 times more likely to have risky sex. b) 8 times more likely to have tried to commit . c) 6 times more likely to have high levels of depression. d) 3 times more likely to take illegal drugs.

263 Stigma and Discrimination (February 29, 2016), https://www.cdc.gov/msmhealth/stigma-and-discrimination.htm

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 How would you best describe your attitude towards the lgbt community?

Source: survey conducted by the authors The most important thing is our attitude and through the response to this question,it can be seen that 78% of people havea positive attitude towards the lgbt community. This clearly shows that the lgbt community has started being accepted as a part of the society, a right that they inherently deserved (it’s better late than never). However, 20 % of people choseto be neutral, implying that they are not capable to say how their attitude is towards the lgbt community. According to the research held by the centre for global development, the changes in social attitude often followed and arecaused by a change in government policy towards the lgbt community.264

2. Comments received through the survey The comments received through the survey, wherein the target audience was students and the general public (survey majorly filled by students and recent graduates) shows that they are very positive and considerate towards the lgbt community. The majority of the comments included the below-mentioned options.

COMMENT OVERVIEW

Need Laws to protect their rights LGBTs should be treated equally Need for Social Acceptance

20.45% 14.39% 12.88%

Need Laws to LGBTs should be Need for Social protect their rights treated equally Acceptance Source: survey conducted by the authors

264 Attitudes Toward Gays and Lesbians Are Changing in the Developing World Too (Oct. 19, 2017), https://www.cgdev.org/blog/attitudes-toward-gays-and-lesbians-are-changing-developing-world-too

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Through the above-mentioned graph, it can be seen that 20.45% of the target audience that the lgbt’s should be treated equally and that there should be equal rights for them as they are humans too at the end of the day. 14.3% of the target audience feels that there is a need to introduce a new law or amend the existing laws in order to provide them the rights that they deserve. Lastly, 12.88% of the target audience believes that the social stigma around them should be eliminated and that there is a need for increased social acceptance. Thus, it can be seen that 47.72% of the target audience felt the need to increase social acceptance, to amend the laws, and to treat the lgbt community equally. A few more noteworthy comments have been mentioned below:

 Women are not the only one who wish equality, lgbt community deserves all the legal and ethical rights just like everyone else. They should not be separated or judged on any basis.

 There should be seminars organized in schools, colleges, various organization and corporate sectors to increase awareness that the lgbt community isn't any different we're all the same and we should start interacting, treating, and giving them equal respect just like we do towards our friends and family. Students should be taught about what's going on and how they are treated until they understand the depth of this problem. The early you start educating the masses, easier to bring a change in the future.  Change people's mindset. Need to stop judging others. An individual is mature enough to know what he wants. If he/she decides to be someone no one has any right to revolt against them  Equality does not mean giving everyone minority seats for jobs or in educational institutes. It means there should be no need to make any minorities and everyone should be accepted as they are irrespective of class, gender, status.  I believe in ‘live and let live’. So the only change i suggest is for each and every individual to learn to mind their own business unless asked for help. People need to be sensitized about ‘feelings’ to begin with, no matter who’s, and eventually should betaught about other important topics like human rights, etc.  Education at rural levels to decrease misconceptions about lgbtqa and criticizing leaders or spokespersons in the event that they promote religious and orthodox ideology and advocate that the masses strongly agree with and believe them.  Creating awareness about such things from the school level itself.  Should definitely educate indians on this topic which is very often considered as a taboo!  They should be accepted in the society with no hate, because who they are or whom they like is their decision and if any individual have problem with them then they should keep distance from them instead of spreading hate about their community. And most important is to break the gender stereotype. (a man should love or marry a woman)  Knowledgeable sessions should be carried out to put out a changed mind set, that having a different sexual orientation shouldn't be a reason for this kind of inequality, being different isn't a crime!  Third category of toilets to eliminate the existing stigma across society.  Lgbt community discussions should be held .

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 I would suggest give them equal rights, aware people about how we all are human and alike. I don't think only law can be helpful unless some ground work not done to end social stigma.  The society needs to bend their thinking and so called morals.  The supreme court ruling only made it not a criminal offence to be a homosexual. However, law should extend to give them a right to marry and safeguard their various interests by classifying them as sexual minority.  A set of laws meant for the welfare of lgbtq community. Educating the society about the lgbtq community so as to eradicate the existing superstitions.  Marriage laws across communities should be made gender neutral with a view to fit lgbt marriage, divorce, and adoption of children by such individuals. It will establish provisions for lgbt families to legally take form and evolve.laws against workplace bullying and in educational institutions is a must. Hateful religious preaching (whichever community) against them must be criminalised. We don't need more mob lynching.legally, that's all i can think of. The rest is social, it'll take a while for people to get used to it. But that's the case with every place in the world.india was a land of accepting people, and it can be so again."  Destigmatize , sensititsation of public, empower the community - education employment.  I don't think there should be different laws because they should be considered as normal citizens adhering to existing laws and rights. Measures should be taken to curb the difficulties faced by them socially.  This community should come forward in every spheres of life whether be it in terms of sports, education, culture and they should also mixture with the normal community for which be the normal community should bring that changed and make it a proper and safe environment for them to sustain.  Well as per me, although homosexuality has been decriminalized in the country but the major issue over here faced by the lgbtq community is acceptance and fair share in the opportunities, now for that it is important to create awareness about the same which will help the aforesaid community to some extent.  Normalization of the lgbtqi+ community coexisting and not assigning gender roles.  More and more awareness must spread, not just in urban but also rural areas, since rural areas constitute a major portion of our country.

To summarize, it can be said that there is a need to educated people and young children about the rights of the lgbt community and that they should not be treated any differently. The awareness should not be restricted to urban areas, but should further spread in rural areas too and thereby increasing social acceptance. B. Professionals A survey was conducted among lawyers and activists to get an insight into the lacunae in the law relating to the lgbt, to point out the issues faced by the community, and to come up with suggestions that can end the discrimination and challenges faced by them. The first expert, miss nikita raghavan, is a law graduate. Secondly, mr. Arpit sinhal is an associate at a law firm. Our third expert works in a travel agency and our last expert is a law professor. After carefully analyzing their responses, the following points are extracted:

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1. All the experts unanimously agreed that after decriminalization of section 377 of the indian penal code, societal acceptance of the lgbt community has increased to some extent and a lot of people are openly accepting the queer community. However, there needs to be more sensitization to eliminate the social stigma attached.

One of the experts commentated on this issue by stating that, “it is through awareness that we must try to change the attitude of society towards the lgbt community.”

2. Another point on which all the experts unanimously agreed upon is that the lgbt community should have equal rights and liberties like other citizens. Despite the advancements, the lbgt community still continues to face discrimination in all areas of life. Even though the supreme court bench in the landmark judgment of navtej singh johar v union of india announced section 377 to be unconstitutional, it did not consider the plea to grant certain rights to the community.

It has been very well pointed out by mr. Arpit sinhal that, “a specific legislation is definitely required to protect the rights of the lgbt community”.

3. No legislation protects an lgbt person from being fired by the employer or for being refused a job on the basis of their sexual orientation. To uplift this community economically, the experts agreed that an employer can have no right to decline an lgbt person a position due to their sexual orientation or gender identity. Anindividual’s ability should be considered instead of gender identity for employment decisions in both the public and the private sectors.

2 experts were also of the view that an increase in reservation policies in education and employment for the lgbt community under the framework is not a way out to resolve employment issues faced.

Miss nikita raghavan, on this issue, commented that “there should be no reservation policy as the legislation must consider them as human beings who should have access to the same rights a white cis male has.”

4. Our experts believe that it is unfortunate that there is a growing stigma attached to same- sex marriages. Not giving lgbt individuals a right to marry whomever they want as long as they are consenting adults is a violation of the right to equality. This is a clear show of bias. Thus, like the netherlands, canada, it is high time that india gives the lgbt community a right to marry.

Along with the right to marry, the experts agreed that the community should also have the right to adopt as the sexual orientation of the parents has no relevance when it comes to raising a child.

The experts also agreed that individuals who identify themselves as a part of the lgbt community are eligible to be in the military and thus the government should allow them to join the military.

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5. One of the questions which were asked to the experts was what according to them is the major cause of difficulties faced by the lgbt community? To which 75% of them answered that social stigma is the main reason for their difficulties. One of the experts also commented that through more general education to the masses through all the mediums about this issue, we can work towards reducing the social stigma attached to the lgbt community. While one expert believed rigid gender roles is the main reason.

Insights from the LGBT community and the Legal fraternity

A. Interview report i In order to understand and have a close look at the life of the lgbt community, we interviewed four people from the community to comprehend what they think, what difficulties they face in their day to day lives, how do they overcome it, what are they expecting from the legal system, and so on. 1. Interviewee number 1:

Debendra identifies himself as gay. It was a privilege talking to him since he has been quite active in pride parades and being vocal about it. Q.1 what challenges did you face when you finally came out? And any challenges you still face on a day to day basis? Debendra: it has been a long journey. The biggest challenge was to accept myself. Over the years, i had developed a lot of internal homophobia. I never saw being gay in good light. After i came out to one of my friends, there was no looking back. I started accepting myself. For me, there is no challenge now. I think over the years i have been able to sensitise with my family and friends. I make it a point that i am out at my work place and to my landlord as well. The moment i feel me being gay will be an issue, i address it immediately. Q.2 have you ever been bullied because of your identity? Debendra: i was bullied in school. It was a difficult time for me but i have left it all behind now. Q.3 i want to know what you think about the supreme court judgement of section 377 of 2018. Was it enough to uphold your rights? If not, what else are you expecting from the legal system? Debendra: no, it was just the beginning. As far as section 377 is concerned, it only allows us to not be harassed and blackmailed. But there is so much more than that. There needs to be so many civil rights given to the queer community Q.4 why do you feel there hasn’t been any law yet or the legal system is not acting on it yet? Debendra: because the government needs to put forward the need. But they don't want to as they will comprise on their vote bank. 2. Interviewee number 2:

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The next interviewee identifies himself as a bisexual and has come out to only a few friends. He is a student but has quite strong views and opinions for the betterment of his community. Q.1 what do you think should our legal system implement or what changes should be brought in to protect your rights and to make the community feel free and guarded and the same time? Int.2: a great question indeed! There are a number of things the legal system should focus on. One of them being the legalizing of same-sex marriage. The section 377 has passed but it is just a step and we have a long way to go. Q.2 why do you think they aren’t enough rights given to the lgbt community yet? Do you think society in any way has been a barrier in this?

Int.2: absolutely. It is not just the legal system but also the people’s perspective should alter regarding same sex marriages or being open and accepting about this community. Their thought process needs to be changing. People should be more accepting and kinder to our choices. 3. Interviewee no.3: The third interviewee identifies herself as bisexual and is currently pursuing law. Q.1 did you face any struggles when you came out to the people around you? If yes, what were they? Int.3: luckily, i never got any different treatment just because i am a bisexual and felt very accepted by the people i am around. Q.2 what do you think about the 377 judgment of the supreme court? Do you think that was enough for the lgbt community? Int.3: i think that every change starts off with a small change in the system. I look at the 377 judgment as a beginning of a change. Ever since the judgment, this has been discussed more often and the topic is not buried anymore. It’s obvious that there are a lot of laws and mentalities that need to be changed, however it’s not going to happen overnight and i’m optimistic enough to expect things to move forward and change as we progress into the following years. Q.3 what changes would you want the legal system to bring forward in this country? Int.3: i don’t think that there should be any special provision for lgbt because i don’t want to be treated differently due to my sexuality. That does not feel normal. I don’t want extra rights; i don’t want special attention. I just want to be a part of the normal society. What i do want is for all of the laws to be neutral, to not just cater to heterosexuals but to all. 4. Interviewee no.4:

The third interviewee identifies himself as a transgender. He attended an all-girls school and now prefers to be addressed as ‘he, him, his’. He also published some articles and plays a huge part in representing the trans community.

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Q.1 what challenges did you face when you came out? And the challenges that you still face on a daily basis? Int.4: i haven’t come out yet to my immediate parents or any of my relatives. So, i haven’t faced any challenges from them yet but they are homophobic. Talking about the daily challenges, whoever didn’t support my choice left me without any drama. Q.2 the bill of transgender persons (protection of rights) act, 2019 created a lot of debate and protests all over the country. What are your views on the bill? Int.4: the transgender bill has been drafted and processed by the cishet individuals as they get to decide whether we pass as a particular gender we want to transition in. This breaches a lot of morals for the community and our whole life has been decided by someone who is privileged. Q.3 what according to you our legal system should inculcate in order to protect the rights of this community? Int.4: legal system can change to the point where they can seek therapy for their dysphoria and it should be completely open and accepting within themselves for any further treatment that they choose. Those are the only legal systems i feel are appropriate. These interviews gave a different outlook to the of the problems faced by the lgbt community. It gave an insight as to how these people aren’t really demanding much, it is just what they deserve like anybody else in the country i.e. Being protected and respected. B. Interview report ii This interview was conducted through the preparation of a questionnaire framed by the authors. The questionnaire was sent to a few advocates and experts in law in order to understand their valuable opinion with regard to this controversial issue. The members involved in this survey were: Interviewee 1: advocate, ; Interviewee 2: assistant professor; Interviewee 3: advocate; Interviewee 4: advocate, bombay high court; Interviewee 5: professor at law school.

The questions put forth along with the responses from these professionals are as follows: Q1. What is your take on extending adoption rights to the individuals belonging to lgbt community? Interviewee1: parenting is mixture of multiple activities and concerns. The answer to this question involves finding answer to certain complex questions like: (a) psychological effects of parenting on both the adopted child and the adopting couple. (b) societal acceptance of such parenting because when society does not accept these changes, this can affect the mental health of the child. Also a family serves as a gateway for an individual to step into a society.

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(c) the issues of succession are always related with adoption. The legislature needs to step in to clarify or amend various succession laws to clarify how one would inherit from parents belonging to lgbtq community. Overall if an affirmative answer can be given to the above mentioned questions then, extending adoption rights is not a question for future generation. Interviewee 2: it’s a great step towards the development and dignity of lgbt community. They have all rights under the constitution of india and related international conventions of human rights for every individual including the lgbt community. It's too late and so the officials cannot make delays further. Interviewee 4: yes, the right to adoption should be extended to the lgbt community as well along with the right to marry. The right to adoption is a corollary to right to marry and if the right to marry is provided the right to adoption should also be provided as they cannot biologically reproduce. Interviewee 5: in my opinion, adoption rights should be extended to lgbt community as it has been recognised for people opting to become single mother and single father by adoption. In recent times we have seen many public faces that belong to this community going for commercial surrogacy. I feel adoption is more ethical and it gives home to an orphan child. Therefore, it should be promoted and must be extended to lgbts as well. Q2. The moral status of same-sex relationships according to various religious beliefs is different. We are well aware of religious exemptions and against lgbt communities. However, this may directly or indirectly hinder the privacy right of the members of lgbtq community. So, how do we strike a balance between the right to freedom of religion on one side and the right to privacy and personal liberty on the other side? Interviewee 1: for a very long time indians have ensured the privacy of these people by allowing them to exercise their right to be let alone. Also prohibiting same sex relationships are not part to fundamental principles of any religion. I am of the opinion that the role of judiciary and the law enforcement is very important in ensuring that the right of these people are protected because various legal battles may ensue in the years to come as this issue is not just legal but a . Interviewee 2: every religion says to protect weaker section of the people. So, there is no bar against the lgbt communities. Everyone can follow their religion with their own perspective without disturbing others. It's well defined under the constitution of india and the supreme court india protected through various judgment too. Interviewee 4: it is not possible to change religious beliefs. If you see the inter caste marriages are also not allowed by certain communities yet, the acceptance of same-sex marriage is yet another dream. Thus, what can be done is they should be allowed to get the marriage registered under special marriage act, just the way couples can get their marriages registered under sma in case of an inter-caste marriage, and similarly an option should be available to same-sex couples too. This can be done by amending the definition under sma and by including the words “two individuals” instead of man and woman.

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Interviewee 5: right to religion itself is recognised as a fundamental right and in india to break the glass and allow different views based on religious beliefs is difficult. In my opinion, right to privacy should be recognised more for lgbt through laws. It’s also a religious belief that marriage should be within same religion or caste but laws have recognised the freedom of a person as to who they want to live with. Therefore, if the law recognises same sex relation, it can help the community to grow. Q3. In your opinion, how far the “the transgender persons (protection of rights) act, 2019” can help in improving the conditions of transgender individuals? Interviewee 1: transgender persons act, is a very progressive legislation dealing with most of the socio- economic and legal problems faced by these people. A proper enforcement of this act in accordance with its letter and spirit will definitely lead to wholesome upliftment of these people. This act is like the article 15 of the constitution as far as transgender community is concerned. Whether the act has attained success, was it able to fulfill its objectives has to be answered in the days to come. Interviewee 2: this act will be helpful to them. It’s the beginning of the process of protection for lgbt community. But we are lacking while execution. Interviewee 3: the act is an initial step towards achieving the said objective. Proper implementation can help in improving their conditions and social stigma must be done away with as a first step. Interviewee 4: it is a comparatively new legislation and hence it cannot be said that is has completely improved their condition. However, the educated section of the society has increased its acceptance towards the transgender. Education and awareness are two important points that is helping majorly. Interviewee 5: whenever we require empowerment of any group which is not recognised or dominated in the society, law is the need of the hour to forcefully bring change in the behavior of people and recognize the rights and position of such persons in the society. I feel the legislation will definitely help to address those issues and at least recognise the needs of a particular community and lack of opportunities, etc. Q4. Equal representation being the foundational idea of any reservation policy, do you think expanding the reservation schemes for transgender communities in education and employment can pave way to a better tomorrow? Adding on to that, what is your take on reservation of seats for “sexual minorities” in the elections? Interviewee 1: (1) i don’t think there is a need for reservations in education and employment oftransgender community. The transgender persons act ensures these needs. (2) reservations of seats for sexual minorities in elections need a different approach. Reserving constituencies for transgender individuals in local body election will serve the purpose. In addition to this if necessary the method of nominating a member representing a particular community as followed in rajya sabha can be followed for the state and central legislature.

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Interviewee 2: yes. Surely, it’ll be helpful. There is no question about that but again while execution many difficulties are there. Interviewee 4: yes, i agree that equal representation is a foundational idea of any reservation policy. However, i do not agree with the second part of the question. Opportunity should be provided to everyone and then the selection should be on the basis of merits. Interviewee 5: in my opinion, as reservations prevails in our system, the sexual minorities should also be given privilege of reservation because they are generally deprived from quality education and job opportunities. This can provide them better position and acceptance in our society. Once they are a part of the working group the differences and gap, especially with one's approach towards transgender community will reduce. Q5. “marriage is a union of two individuals, not necessarily a male and a female”, what is your view on this? Can this directly or indirectly necessitate a ? Interviewee 1: same sex marriages are in the nascent stage in india. But some people have entered into such relationships. The judiciary, in particular the madras high court has recognised these marriages. Hon’ble mr. Justice g.r. swaminath in arun kumar v. Inspector general of registration has directed the registrar to issue a certificate of marriage for a male who had married a transwoman. Although the judiciary has accepted these marriages, still decisions regarding marital preferences are taken by individuals considering whether society would approve such marriages. Legislating on same sex marriages do not necessitate a uniform civil code. A good solution can be attained by inspiring and adopting the english civil partnership act, 2004 and subsequent amendments to it. Interviewee 4: yes, marriage is a union of two individuals. No, i don’t think legalizing same-sex marriages will necessitate a uniform civil code. Interviewee 5: we still have right to marriage under special marriage act therefore if law recognises and legalises same sex marriage, even without uniform civil code we can have registration of marriage under special marriage act and succession rights under the indian succession act. If we can have uniform civil code it would be beneficial for the country as a whole, but at this time it seems difficult. Q6. A country in which every individual experiences equal treatment irrespective of their sexual orientation, religion, race or caste has been every egalitarian’s dream. What do you think are the steps that can finally bring the society to such a position? Interviewee 1: active legislation, education of masses leading to change individual and society’s mind-set is the best way to achieve this egalitarian dream. A complete achievement of this egalitarian dream is itself an egalitarian dream. Interviewee 3: proper implementation of the legislations framed with a motive of their upliftment along with acceptance from the society can help. Family acceptance also plays a major role. Better policies for protecting the members of lgbtq community from bullying them is the need of the hour.

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Interviewee 4: the only way to bring about a change is through education and increasing awareness. Previously, there was a lot of discrimination between a man and a woman too, however, through education and awareness that has significantly reduced. Similarly, in the present situation too, the only way the stigma around the lgbt community can be removed is through education and by spreading awareness. Interviewee 5: i feel india has diverse population and more than 60% of people are not literate in actual sense. People are still living in fictional world, not recognizing the practical needs. If as a country we are successful in educating people without keeping gender bias and move out of the superstitious beliefs that we follow we will reach greater heights. It is true that the society can grow with developing laws but it grows much more when people grow ethically, morally and with the dream to take the society forward. Conducting interviews with these professionals helped the authors understand the whole issue from a social as well as a legal perspective. The chaos associated with same-sex marriages can be solved by amending the sma. Solutions with regard to extending adoption rights were also suggested by the professionals. Although there is a need for a separate legislation, amending the existing laws in the desired manner is the need of the hour.

Recent case analysis and current situation A. Recent case analysis

1. Paramjit kaur and another v. State of punjab and ors. (decided on july 20, 2020)265 The facts of the case are that the petitioners were living together in the same accommodation since 6 months and both of them had a liking for each other. The petitioners were well aware of the fact that their relationship would not be like marriage as both of them belonged to the same sex. They were facing threats from their family members, hence the present petition under article 226 of the constitution of india, seeking official directions to the respondents to protect their life and liberty. The punjab and high court observed that since same-sex marriages have not been legalized yet, the couples are coming out of their closets and opting for live-in relationships. The court held that the petitioners were entitled to the protection of their life and liberty, regardless of the nature of their relationship, as has been provided under article 21 of the indian constitution. However, the reasoning behind the same is noteworthy. In order to protect their life and liberty, the court had to assume that they could be simply living as friends and that legitimacy of their relationship had no consequence upon the right to life envisaged under article 21. Further, the court specifically mentioned that it would not be commenting on the legality of the relationship between the petitioners. Though on the face of it, it looks like a progressive judgment, the hon’ble court has failed to recognize same-sex relationships and has further failed to point out that there is an urgent need to amend the laws so as to allow the same-sex couples to avail various benefits that are available to

265 CRWP No. 5024 of 2020 (P. & H. H.C.:2020).

163 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 a heterosexual couples or a straight person. The court has shied away from its responsibility by denying commenting on the legality of the relationship between the petitioners.

2. Arunkumar & anr. V Inspector General of Registration & ors (decided on april 22, 2019) In October, 2018, one arunkumar married a transgender srija according to the customs and rites of a Hindu marriage. When the district registrar denied to register their marriage, arunkumar and srija filed a petition before the madras high court. In this case of arunkumar&anr. V inspector general of registration &ors.266, the high court had to decide whether a marriage solemnized between a male and transwoman is a valid marriage. While deciding the matter, the high court relied on the judgment of nalsa wherein the Supreme Court had held that transgender persons have a right to self-identify their own gender. In the instant case, the court held that, “the expression ‘bride’ occurring in section 5 of the hindu marriage act, 1955 cannot have a static or immutable meaning”.267 3. Daniel crasto v. The state of (decided on january 30, 2019)268 In 2009, a woman after 5 years of marriage found out that her husband was gay and opposed his sexual relationship with his gay partner. Shethus filed a complaint against her husband and his partner. The sessions judge convicted the husband and his partner under section 377 of the ipc. Later the accused approached the bombay high court. Setting aside this order, in the present case the high court discharged both the accused and observed that, “if the persons involved are adults and had sexual relationship by consent, it does not constitute to be an offence”.269 The bombay high court, relying on the landmark judgment of navtej singh johar, stated that homosexuality is no more a crime. When the accused were convicted by the trial court, homosexuality was a crime. However, it was clarified in the navtej singh johar judgment that the declaration of section 377 cannot lead to reopening of any concluded decisions however it can be relied on all the pending matters. The high court also held that extramarital consensual sexual relationships can be ground for divorce but not a ground to charge someone under section 377, ipc. Thus, it can be seen that despite the landmark judgments there are no concrete rights available to the lgbt community and they need to depend on the mercy of the courts in order to avail a right which they inherently possess. In another case, nikesh and sonu, a married gay couple, from kerala,

266 MANU/TN/1403/2019. 267 Devika, Transgender female is a bride under Hindu Marriage Act, no impediment in registration of transgenders marriage (Apr. 25, 2020), https://www.scconline.com/blog/post/2019/04/25/madras-hc-transgender-female-is-a- bride-under-hindu-marriage-act-no-impediment-in-registration-of-transgenders-marriage/ 268 MANU/MH/0239/2019. 269 Nishant Sirohi, Bombay High Court settling that an extramarital consensual gay relationship is not acriminal offence is a milestone (Feb. 2019), https://theleaflet.in/a-case-of-extra-marital-homosexual-relationship/

164 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 filed a writ petition challenging the provisions of the special marriage act, 1954 before the high court in january 2020.270 Before filing this petition, the district administration refused to register their marriage under the SMA act on the ground that the law does not allow it. Thus, the couple approached the high court. They argued that the non-recognition of same-sex marriage violates the guarantees of equality and individual dignity, which is mentioned under part iii of the indian constitution.the petitioners stated that the words such as bride, bridegroom, man, woman in the provisions of the sma expressly bar same-sex marriages. Relying on the landmark judgments of nalsa and navtej singh johar, the petitioners contended that, “the decisions of the apex court would be meaningless and incomplete unless the sexual minorities are afforded equal access to the institution of marriage and by enabling them to profess love in the way they deem fit”.271 The case is still to be decided by the kerala high court and if decided in favour of the married couple, this case would definitely set an example which could be followed by various high courts. Until and unless, there is no specific law governing their rights, the litigations and the burden on courts would be on the rise. B. Current situation and the issues faced by the lgbt community Despite the Supreme Court judgment of navtej singh johar, it is necessary to provide the lgbt community with their rights as the laws in India have not yet recognized their right to get married, maintenance, adoption, succession, and pension among others. Moreover, the bullying is immense, for instance, in one of the cases wherein a lesbian couple came out in open, they were bullied and harassed. They were harassed not only by their classmates but also by their teachers, in fact, it is alleged that the principal had asked her to “go kill herself”272 and that is what happened as one of them died by suicide. Homophobia faced in school is an issue that needs to be addressed immediately. Moreover, there is a need to have sexual awareness in schools and the same is blatantly ignored and has never been able to receive the importance it needs. In the light of the child sexual abuse and other forms of harassment and bullying taking place in schools, it is necessary to address these issued as early as possible. The work-place discrimination faced by the lgbt community is not something that is novel. This discrimination, apart from the unemployment issue that it creates, alsoaffects the contribution to the economy of the country as the human capital is not being optimally utilized. A 2011-12 study

270 Aditya AK, Till law do us apart? Homosexual couple approaches Kerala HC seeking to register marriage under Special Marriage Act, (Jan. 28, 2020:3:56 PM), https://www.barandbench.com/news/litigation/till-law-do-us-apart- homosexual-couple-approaches-kerala-hc-challenging-special-marriage-act 271 Nishant Sirohi, LGBTQ+: Petition for marriage equality filed in Kerala High Court (Jan. 29, 2020), https://theleaflet.in/lgbtq-petition-for-marriage-equality-filed-in-kerala-high-court-2/ 272Satarupa Sen Bhattacharya, Labelled, bullied, humiliated: What LGBT students in our schools go through (June 11, 2018), https://citizenmatters.in/india-city-schools-homophobia-lgbt-discrimination-gender-research-6863

165 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 of 455 lgb individuals in india working for indian ormultinational companies in the financial, software, and engineering sectors inindia showed evidence of discrimination.273 Another aspect that has been affecting the lgbt community is the ‘mental health’ issue faced by them due to social stigma and the neglect that they face. The fact that many families are still not ready to accept their children as they are, that again affects the mental health of the community in a large manner. Moreover, due to family pressure, they are required to get married to a different- sex person which causes stress and might lead to depression. Apart from mental health, there have been instances of the lgbt community being physically harmed, which further affects their mental and physical health. Thus, it can be seen that trauma faced the lgbt community right from the school till their employment, including the impact on their mental health, due to the “so-called-morals” of the society puts the community in a disadvantaged position as compared to a non-lgbt person.

Conclusion The lgbt community has been facing discrimination for a long time, be it at personal relations or the denial of social acceptance. Every year, a huge number of lgbt people face issues relating to violence, unemployment, poverty, discrimination, and lack of . People in the lgbt community are fighting every day for equal rights and acceptance. It has been rightly pointed out by advocate pallavi pratap, advocate on record, that: “they are perceived to be a threat, for instance, they could spread hiv/aids. However, we need to understand that it is not a disease, it is something that you are born with.” The landmark judgment of the Supreme Court, navtej singh v. Union of India, decriminalizing all consensual sex among adults, including homosexual sex has paved a way to protect their rights and needs of such persons.while reading out the landmark section 377 verdict, chief justice deepak mishra rightly said that“i am what i am. So, take me as i am.” Although, the transgender persons (protection of rights) act, 2019, wasn’t sufficient enough to fulfill the basic rights of the transgender community, however, it is definitely a stepping stone to the fact that laws and focus are being placed on protecting the integrity of these people. Moreover, through the interviews conducted of the people representing the community, we learned that despite facing a lot of hassle in their day to day lives, they still have a positive outlook towards life and hope for a change. The interviews conducted of the people from various professional backgrounds also gave us an idea of how the legal system has to be designed in such a way that their adoption rights, same-sex marriage rights, legal rights are protected. Also, encouraging the nomination of people from the lgbt community to represent them in the parliament would be beneficial.

273 M. V. Lee Badgett,EVIDENCE OF DISCRIMINATION AGAINST LGBT PEOPLE IN THE WORKPLACE, The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India (Oct. 2014), http://documents1.worldbank.org/curated/en/527261468035379692/pdf/940400WP0Box380usion0of0LGBT0Peopl e.pdf

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India is a country that recognizes one kind of relationship and that is marriage. In this country which is entangled by the social fabric of marriage and family, the reality is that any person whether a straight person or gay aspires for one thing in common which is to find love. Thus, the lgbt community’s right to marry and adopt in such a country becomes essential as even they wish to be a part of this social and legal structure we can still have the right to marriage under special marriage act if the law recognizes and legalizes same-sex marriages, and the succession rights can be as per the indian succession act. The lawyers that helped in decriminalizing homosexuality are now batting for same-sex marriages. On the basis of equality and non-discrimination, our society and the judiciary are caught between two schools of thought. While the egalitarians fight for equal rights to the lgbt community, the second school of thought being elitism comes from people who are socially conservative and believe in an over-generalized notion about a particular category of people. Various advancements to provide equal rights and freedoms to the lgbt community can be said to be stepping stones towards the achievement of this egalitarian dream. The survey conducted by the authors showcased various aspects of society. It showcased how society perceives the lgbt community and how a lot of change has taken place in the thought process of indians in the last 10 years. The survey highlighted the suggestions of the people to make the country a better place for this community by stating that people should be made aware of different sexual orientations and their acceptance by conducting awareness programs and by teaching them to respect everyone despite their sexual orientation to change the legal policies, which promotes equality, equity & justice. Today, homosexuality and queer identities are quite familiar to the generation of india. India has started including the third gender in its census; however, the response has not been accurate and that could be due to the implications that they would have to face after coming out of their closets. A lot of parents and the people around have been manifesting support and acceptance to this community but there is still a long way to go. There is an urgent need to amend laws that discriminate against the community so that the community can enjoy the rights that have been denied to them since a very long time. "openness may not completely disarm prejudice, but it's a good place to start." —from the essay "the gay athlete," published in sports illustrated, 2013

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