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 India 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 human rights 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. Gender identity, 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. Section 377 of the Indian Penal Code, 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 lesbians (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, Mumbai 196 L.L.B, Jitendra Chauhan College of Law 197 B.A.LL.B.(Hons), Central University of South Bihar, 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 Dipak Misra 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, transgender 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-discrimination 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 lgbt refers to lesbian, gay, bisexual, and transgenders. These communities work towards the advancement of pride, diversity, individuality, and sexuality. Ancient literary works show that homosexuality 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 constitution of india, 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 125 Legal Desire Media and Insights www.legaldesire.com Legal Desire International Journal on Law November 2020 / Part B ISSN: 2347-3525 Aids bhedbhav virodhi andolan (“abva”) released a citizen report titled ‘less than gay’ in 1991, which showed the status of homosexuality in india 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 delhi. 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 kolkata. The protest was called the gay pride parade. 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.