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

VOLUME 2 ISSUE 2 (July 2021)

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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ABOUT US

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISSN 2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal, Published online, that seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Review, Case Comments, Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to upgrade the level of interaction and discourse about contemporary issues of law. We are eager to become a highly cited academic publication, through quality contributions from students, academics, professionals from the industry, the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS ISSN 2582-6433 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission

guidelines.

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WAYS THROUGH WHICH THE STIGMATIZATION OF THE LGBTQ COMMUNITY CONTINUED AFTER THE DE-CRIMINALIZATION OF IN

By: Abhay Dev Sharma [3rd year BA LLB(Hons.), School of Law, Bennett University]

Education : If compared us to other countries to whom we look at, like , , our education system is already many mile behind them in culling out the talents and developing the critical thinking into them and all of these because its heavily influenced by our traditional mal practices like unequal gender values and this is just I’m talking about case the of women only, if you’ll move towards the case of LGBTQ community it get multi-fold. Gender bulling is not new, but what is more worrying is that even after the 2018 judgment the cases are still growing. According to a study published in Times of India in 2019, Across the country, students are bullied because of their sexual orientation and , forcing many to drop out. The study was the initiative of UNESCO’s New Office with the Sahodaran, which is a male sexual health initiative in , to conduct a community-based study on sexual orientation and gender identity bulling in .

The study was conducted among 371 people in the 18-22 age group from the and MSM (men having sex with men) communities. They also interviewed 20 people from academic institutions, including school teachers, head teachers and officials of the school education department as mentioned by Jaya, general manager of Sahodaran.1

The research report gives an insight into ground reality. Of the respondents, 60% and 50% said that they were mostly victims of physical bullying when they were respectively in middle/high school and higher secondary school, while 43% of respondents said that they were sexually harassed when they were in primary school. However, only 18% of participants reported incidents of SOGI-based bullying to school authorities; and 53% of those who reported being bullied said that authorities took some action against the persons who bullied them.2

The consequences of bullying were quite harsh: 73% had reduced social interactions with their peers; 70% suffered from anxiety and depression; 70% said they lost concentration in studies; 63% reported lower academic performance; and 53% reported having skipped classes. About a

1 Menon, P. (2019, June 10). LGBT bullying in schools takes heavy toll, reveals Unesco report. . https://timesofindia.indiatimes.com/india/lgbt-bullying-in-schools-takes-heavy-toll-reveals-unesco- report/articleshow/69718451.cms (last visited Oct 3, 2020) 2 Ibid, note 1 5 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

third (33.2%) said bullying played a key role in discontinuing school.3 Bullying occurs in educational institutions as there is little awareness, and even faculty members are homophobic. Delfina, who identifies herself as gender fluid, says one of the main reasons she didn’t go to college was the fear of being bullied.

This raises questions on the measures ordered by judicial and administrative authorities under their decisions and this dubiousness is another example of what all the LGBTQ community has to suffer just to get the education.

Activists have been working to sensitise staff. Transgender activist Kalki Subramaniam brought out a manual, ‘A Teacher’s Guide To Gender Non-conforming Students’, three years ago due to the trauma she endured in school and college. “I faced it from students as well as teachers. In my college hostel in Coimbatore, I was ragged for three months, made to strip, dance to item numbers every day and molested,” says Subramaniam. 4

Her bilingual manual, distributed to schools free of cost, explains what is sexual orientation, gender identity, why some children are different from others, how to identify a gender non-conforming child and how to support and protect them from being bullied at school.

“I have also talked about how teachers can talk to families and ensure they support their children, and have given a list of resources they can access,” she says. “I want to give the manual to teachers, lecturers, professors and principals as I believe when you educate an educator, they educate hundreds of students.”5

For all this my suggestions is that, one of the critical aspect which is ignored in the Indian education system is the sex education and learning of respecting and understanding the other genders , which is mostly absent as if we see many schools are reluctant to let these kind of issues to be taught in there premises and even the new education policy is silent about the sex education thus making it more and more difficult for the students to get this essential part of knowledge of society from the right source and hence making them more gullible to get succumb towards the wrong thinking, the learnings that the students get in

3 Ibid, note 1 4 Subramaniam, K. (2020, June 23). I’m on a mission to empower India’s transgender community, one painted palm at a time. CNN. https://edition.cnn.com/style/article/kalki-subramaniam-opinion/index.html(last visited Oct 3, 2020) 5 Ibid, note 4 6 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

there school life shapes there interests and way of thinking while higher education makes them understand those vales in depth, so if the changes are made and students are educated about sex education and understanding the gender values at the start of their very basic level only it would result in a more sensitized society in future towards one and others irrespective of the gender and their orientation and this will also help in curbing the crimes against them because the children have curiosity and by feeding their curiosity instead of dodging their questions would stop them idealizing the wrong interpretations of the same things and help to eliminate the toxicity against LGBTQ community in India.

Adoption : Adoption is a process that impacts the life of a child and changes it completely. It has great implications. Hence, while dealing with the process of adoption, the sole criteria should be the welfare of the child. In India, adoption is governed by personal laws and thus, every religion has its own rules and regulations. It is a universally acceptable norm that adoptions should take place only when they are in the best interest of the child. Basically in India there is no law for LGBTQ community people to make eligible to for adopting any child even if that adoption leads to the best interest of the child’s future hence, making them ineligible to adopt a child. while if we see, even the countries in areas like Africa which are far more undeveloped in terms of economy and per capital income of a citizen there, have allowed the adoption of child which again questions the willingness of Indian administrative system and even the constitution itself talks about the equality in its fundamental rights6, no progress is made in this field even after the decriminalizing of sec.377.

According to regulation 5(3) of the Adoption Regulation Act, 2017, only a couple having a stable relationship of two years is eligible to adopt a child. Further, the section uses the words “husband” and “wife” which basically means that it does not recognize the right to adoption in case of same-sex couples. Since there is a different set of adoption rules applied in the case of men and women thus, the applicability of such laws with regards to trans-couples will lead to ambiguity.7 Further, in the light of NALSA judgement8 since people have the right to choose their gender and undergo as well. Thus if in case a woman adopts a child but then undergoes sex change become male, so there is a very little clarity about the legal

6 Article. 14, 15, 16, ,1950 7 V. (2020, June 21). Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal. Legal News. https://legalnewsupdates.blogspot.com/2020/06/evolution-of-lgbt-rights-in-india-and.html(last visited Oct 3, 2020) 8 National Legal Services Authority (NALSA) vs. Union of India , AIR 2014 SC 1863 7 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

implications of the same.9

There is no denying the fact that adoption is a complex issue and even heterosexual couples also have a hard time in adopting a child considering the anti-trafficking laws. But the fact is that at least a heterosexual couple can apply for adoption while the same-sex couples are not even allowed to adopt.

Another reasoning behind not allowing same-sex couples to adopt is that every child must be able to know the value of both a mother and a father. Thus same-sex couples should be denied the right to adopt as the child should not be raised in an “ inferior family”. However, what is ironical is the fact that law can abandon a child to be raised as an orphan without both the parents rather than being brought up by homosexual and trans couples. Disturbingly the law continues to disentitle the LGBTQ couples from adopting a child even when there are more than 20 million orphans and abandoned children in India, out of which most of them are living in abysmally poor conditions.

In my opinion this situation and this issue could be easily resolved just by taking one action, to pass a legislation and allowing the LGBTQ couples to adopt the children. Even this could also be an win-win and overwhelming situation for the parents and the children because allowing them will let more children’s get adopted which will lead to the betterment of the future of the child and on the other hand the LGBT couples would also able to enjoy the right of parenthood, one thing I would also like to mention that arguments like this step would result in increment of crimes like child trafficking, child abuse, child labour, etc is a sham because it’s not that it does not exist right now when the right is restricted, Actually the main cause is that in many cases its seen that the authorities which are vested with powers to avoid these heinous crimes in the society are themselves a part of these kind of cartels and ultimately blunts the effectiveness of rule of law in the country, as it was mentioned by the child rights activists and advocates Mr. Anant Kumar Asthana and Mr. Ajay Verma in an interview given to me during the time when I was working on the documentary “ The Children of India ”10, So to stop this horrendous Status- quo, the much needed step is to reform the structure of the authorities and make more and more stringent law and regulations to curb these cases while I also recommend that the adoptions

9 Rai, D. (2020, June 21). Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal. IPleaders. https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living- free-and-equal/#How_the_adoption_laws_discriminate_the_LGBTQIA_couples(last visited Oct 3, 2020)

10 Le-Eagle. (2020, March 1). CHILDREN OF INDIA : Tale of Destroyed Future [Video]. YouTube. https://www.youtube.com/watch?v=PmPWVnY0120 8 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

procedures should also strictly regulated with all the checks and balances on its place to avoid any such potential cases.

Inheritance : Similar to the adoption case, when it comes to the succession of the property in India, it is governed by personal laws and thus, every religion has its own rules and regulations and since the personal laws only recognize only two gender male and female hence eliminating all the rights for the LGBTQ community, even though here this right is partially restrictive since the law does talks about the orientation of the person and focuses on the sex of the person that who will be the air of the family. So, in case of and Gay people, person could avail their rights provided that they claim the property as a male and female i.e a son or daughter. But looking to this fact in a way this another way of traumatizing the LGBTQ community as they are again restricted to follow the social norms of being a straight which again violates their right to expression11 and right to live with dignity12 guaranteed under the constitution of India. If we look to the overall picture here we will observe that these situations uncovers a principals which very is essential to survive in the concurrent world which is that “You need to update with the flowing time” as our personal laws are plagued by some of our old traditions which have become obsolete in the current world, as in that the societal mentality was not so developed and highly superstitious it needs to be updated with new researches and more liberal approaches. And since purpose of the succession of the ancestral is to save the collective interests of the family and family traditions with its wealth, such disqualifications of the family members is an hinderance to the whole interest and hence need to be upgraded as this has become another tool to stigmatize the LGBTQ community. Noting that this issue is not easy to resolve like the adoption case as unlike the previous case here right to gain is involved which is different where it was a right of making eligible for doing a duty which is being a parent, and here the right is challenged by outsiders as well as their own family members. The conditions is so that finally in case daughter only, recently in august in the case of Vineeta Sharma case 13 had to clarify that daughter has equal right of the inheritance like their male counterparts, then imaging about the conditions of LGBTQ people, appears to be the next juggernaut task. But still it could be started at least by introducing the relevant amendments in the court,

11 Art. 19, The Constitution of India, 1949 12 Art. 19, The Constitution of India, 1949 13 Vineeta Sharma v Rakesh Sharma, Appeal (Civil), 32601 of 2018 9 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

bringing reforms for the community and once the respective laws get into the place, then reforming of the societal mentality could also be initiated by using the means of social awareness campaigns, also these two things could also go hand in hand at the same and thus curbing the time to upgrade the current structure. Protection under Criminal Law : There is no doubt the decriminalizing of section 377 of IPC is step forward in the field of developing a more egalitarian society but still there is a lot to work upon, as still there many critical and essential gender specific right which should be protected under criminal law of country. One such case is of the sexual offences against transgender and gay community (though there is exception is with the female section), the IPC and CrPC only recognises the crimes against the women and thus leaving the case of and gay people unshielded. This anomaly is getting bigger and bigger by each passing day, such cases get heavily unreported, places like jails and juveniles correction homes are the few such areas where these cases did not get reported and also if reported cannot be tries since these kind offences does not exist according the current laws and thus ultimately these places have become quite the opposite of what they should be, which is a place to reform the person’s nature into a civilized citizen and all this trauma hits his way of thinking of that particular person being the victim and the also offenders and thus when they get released from those places since now for them those crimes are naturalized and is not an offence, they continue to commit them in the free world which is just like letting a killer letting to roam freely to get its prey, ultimately letting to a increase in such no criminalized crimes this was also covered in the research done by Nisha Lilia Diu14 which also later her article based on the mentality of a rapist. All this now is an another example that how the LGBTQ community is continuously traumatized and stigmatized in the Indian society. Even though a petition has been filed in the Supreme Court seeking a direction to the Union government to make modification and interpretation of sections of the (IPC) to deal with sexual assaults against transgenders, transsexuals and eunuchs by Reepak Kansal15 recently, which is still to be decided in the court, these situation need be delt in a fast track procedures. And also in Indian scenario even the fast track also takes at least one to 4 years, that is because such cases are so many in numbers that it is more that few country’s whole crime rates, I would recommend that these conditions makes it perfects to have special tribunals just like we have for the consumer rights and other cases as then those courts will be specifically dealing with this domain of sexual offences understanding the nuances in a much better and will

14 Diu, B. N. L. (2015, August 28). Nisha Lilia Diu. The Telegraph. https://www.telegraph.co.uk/women/womens- life/11828440/I-help-rape-victims-have-sex-again.html (Last visited Oct 3, 2020) 15 Tripathi, A. (2020, September 26). PIL in Supreme Court seeks equal protection of law to transgenders in sexual offence cases. Deccan Herald. https://www.deccanherald.com/national/pil-in-supreme-court-seeks-equal-protection- of-law-to-transgenders-in-sexual-offence-cases-893337.html(Last visited Oct 3, 2020) 10 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

be better sensitized place to get justice. Also after, if the petition gets the success to bring gender neutrality in the criminal laws of India this mode will drastically cut down the cases of such nature as well as at the same time the cases will also get justice much faster than the current scenario. Marriage : In India the just like the topic of inheritance and adoption marriage is another case delt with personal laws and just like rest of them it also does not recognises the marriages of LGBT Q community and also just like other cases and also since, the marriage is an easementary right of a citizen, it discredits the right to life with dignity of that person under article 21 of the constitution. Here even though the issue could be easily resolved by just passing an amendments to modify the laws but here main barriers is that term marriage itself, which means that the recognising the union of two people legally, traditionally and historically where there is ‘man’ and ‘woman’, so basically even if we update our legal provision to recognize this unions in case of LGBTQ couples but still since, traditionally and historically it couldn’t be recognised and now since the sources of our laws is our traditions and historical manuscripts that additions would be challenged by again and again in the court which would have a valid grounds due to this only even when many counties tries to recognize the same sex marriages and in some cases even passed the laws, after some time they were turned back or failed in the initial stages only of which one such example is Russia16, where recently only in July Russian lawmakers in the parliament started legalizing ban on the same sex marriages after voters backed the changes to the constitution which defines as a union man and a woman only. So now, what is the solution to this problem? As I mentioned earlier this can only delt when you reform your education policy after which you will modify the law for personal gender laws and finally when your society is able understand the logic behind then legalizing of same sex marriage and understand that a person’s choice as well as the value of consent, it would be very easy for us as country to reform the institution of marriage. Even though it’s a lengthy solution but topics of such grave seriousness, need a systematic and planned operations. State Jobs: In October 2017, Sabi Giri a Naval Officer earlier known Manish Kumar Giri, was laid off due to his sex change surgery as when she was commissioned her gender was recognised as a male and since now after surgery she is now transgender female. She was controversially dismissed but had challenged the Navy’s decision before the Delhi High Court, where she pleaded that since

16 Post, T. J. (2020, July 16). Russian parliament begins legalizing ban on same-sex marriage. The Jakarta Post. https://www.thejakartapost.com/news/2020/07/16/russian-parliament-begins-legalizing-ban-on-same-sex- marriage.html 11 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

Navy’s rules forbids a transgender woman from sailor duties, she made a plea that she should be given at least an alternative job at the base17. After which even though the navy agrees earlierBut despite agreeing to let her appear for an exam for a ‘tradesman mate’ position before the court in August, the Navy has now said she is not eligible for any post as she has only passed class XII and is above 25 years of age. This is one such example showing how the state employing authorities though mentioning neutrality towards the gender still limit themselves to male and female and are still far from accepting LGBTQ peoples under their employment space, and by not allowing them to gain the opportunity of getting employed under state subsidiaries also it contradicts with the article 16 of the constitution. Under this situation, I’m amazed first of all that even till now no one has still not filed any petition raising this issue in the Courts of India even this is a clear violation article 16 where the such state agencies are denying the opportunity to get employed, even though this not all state agencies have restricted the entries for LGBTQ community one such is Indian Railways. I believe here in this situation we only need one simple work to be done to resolve this problem that this issue needs to be challenged into the courts so that corrective measure could be taken granted by the court.

17 Nichenametla, P. (2019, October 24). 2 yrs after sacking transgender sailor, Navy goes back on promise to give her fresh chance. ThePrint. https://theprint.in/india/2-yrs-after-sacking-transgender-sailor-navy-goes-back-on- promise-to-give-her-fresh-chance/310235/ 12 www.ijlra.com Volume 2 Issue 2 | July 2021 ISSN: 2582-6433

Bibliography : Websites:  Diu, B. N. L. (2015, August 28). Nisha Lilia Diu. The Telegraph. https://www.telegraph.co.uk/women/womens-life/11828440/I-help-rape-victims-have- sex-again.html(last visited Oct 5, 2020)

 Le-Eagle. (2020, March 1). CHILDREN OF INDIA : Tale of Destroyed Future [Video]. YouTube. https://www.youtube.com/watch?v=PmPWVnY0120(last visited Oct 5, 2020)

 Menon, P. (2019, June 10). LGBT bullying in schools takes heavy toll, reveals Unesco report. The Times of India. https://timesofindia.indiatimes.com/india/lgbt-bullying-in- schools-takes-heavy-toll-reveals-unesco-report/articleshow/69718451.cms(last visited Oct 5, 2020)

 Rai, D. (2020, June 21). Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal. IPleaders. https://blog.ipleaders.in/evolution-of-lgbt- rights-in-india-and-taking-the-narrative-forward-living-free-and- equal/#How_the_adoption_laws_discriminate_the_LGBTQIA_couples(last visited Oct 5, 2020)

 Subramaniam, K. (2020, June 23). I’m on a mission to empower India’s transgender community, one painted palm at a time. CNN. https://edition.cnn.com/style/article/kalki- subramaniam-opinion/index.html(last visited Oct 5, 2020)

 Tripathi, A. (2020, September 26). PIL in Supreme Court seeks equal protection of law to transgenders in sexual offence cases. Deccan Herald. https://www.deccanherald.com/national/pil-in-supreme-court-seeks-equal-protection-of- law-to-transgenders-in-sexual-offence-cases-893337.html(last visited Oct 5, 2020)

 V. (2020, June 21). Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal. Legal News. https://legalnewsupdates.blogspot.com/2020/06/evolution-of-lgbt-rights-in-india- and.html(last visited Oct 5, 2020)

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 I'm on a mission to empower India's transgender community, one painted palm at a time, https://edition.cnn.com/style/article/kalki-subramaniam-opinion/index.html (last visited Oct 3, 2020)

 Post, T. J. (2020, July 16). Russian parliament begins legalizing ban on same-sex marriage. The Jakarta Post. https://www.thejakartapost.com/news/2020/07/16/russian- parliament-begins-legalizing-ban-on-same-sex-marriage.html (last visited Oct 3, 2020)

 Nichenametla, P. (2019, October 24). 2 yrs after sacking transgender sailor, Navy goes back on promise to give her fresh chance. ThePrint. https://theprint.in/india/2-yrs-after- sacking-transgender-sailor-navy-goes-back-on-promise-to-give-her-fresh-chance/310235/ (last visited Oct 3, 2020)

Case laws :

 National Legal Services Authority (NALSA) vs. Union of India, AIR 2014 SC 1863  Vineeta Sharma v Rakesh Sharma, Appeal (Civil), 32601 of 2018

Articles & Rules :

 Article 14, The Constitution of India, 1950  Article 15, The Constitution of India, 1950  Article 16, The Constitution of India, 1950  Section 377, Indian Penal Code, 1860  Section 375, Indian Penal Code, 1860  Regulation 5(3), Adoption Regulation Act, 2017

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