Let us begin with understanding the concept of rights. What exactly does a right mean? A right can be defined as an interest protected by law or, in some cases, by social conventions. A right means something which you are permitted to do or not do and if any one tries to stop you from doing something or forces you to do something, such a person can be prevented from encroaching upon your rights and can also be punished by law.
There are different forms of rights – human, constitutional and legal rights. Human rights are moral principles or norms that describe certain universal standards of human behaviour applicable for everyone, every time and everywhere in the world. The expression ‘universal standards’ implies that everyone is included, and that means LGBTIQA+ people as well. Human rights cannot be taken away except through due process described by law. They are recorded in various international treaties and provided concrete shape and protected through the constitutional rights and legal rights in different countries.
Constitutional rights are those enshrined in the constitution of a country, for example, the Fundamental Rights engrafted in the Constitution of India. Legal rights are those which help implement the letter and spirit of the constitutional rights on a day-to-day basis at the ground level. In the Indian context, they are elaborated in the Indian Penal Code and Criminal Procedure Code.
How to deal with a rights violation? If the offence committed is criminal in nature, an FIR (first information report) should be filed with the police or a court of law if the police do not accept your complaint. If it is the police or any government official that violates your rights, or if the police do not act on an FIR filed by you, you have the option of approaching the Human Rights Commission in your state. It is crucial to know how to file an FIR, and remember that as a complainant you have the right to get a copy of the FIR filed.
Laws are meant to protect your rights, but unfortunately, for various cultural, historical, political or other reasons, some of them end up actually violating your rights! In India there are specific laws that negatively impact LGBTIQA+ people. One of these is Section 377, Indian Penal Code. Section 377 penalizes all penetrative sexual acts that are not penile-vaginal. It does so even if such acts are practised by consenting adults, irrespective of their sexual orientation or gender identity. The reason being that these sexual acts are beyond so called social norms, and do not match up to vague notions like ‘order of nature’, ‘natural’ or ‘unnatural’.
Though Section 377 is applicable to anyone voluntarily practicing so called ‘unnatural sex’, because of social bias, it criminalizes only LGBTIQA people. But there is no scientific justification for such criminalization. Homosexuality and gender variance do not indicate any disease, disorder or criminality. The track record of the use of Section 377 since its formulation by the British in the 19th century shows that it is used more as a tool for persecution (threats, harassment and blackmail) rather than prosecution by the police and others. Consequently, this law has a strong negative impact on the health and well-being of LGBTIQA+ people.
Given its arbitrary and discriminatory nature, Section 377 has been challenged in the court of law as unconstitutional. In 2011, a public interest litigation was filed against this law in Delhi High Court. In a landmark verdict in July 2009, the court read down Section 377 and said it would no longer be applicable in the case of adult consensual sex of any nature in private. This verdict was challenged in the Supreme Court. Sadly, in an extremely regressive move, the Supreme Court reinstated the law in December 2013 back to what it was prior to the Delhi High Court verdict.
Subsequently, there were several positive developments: (a) The apex court’s February 2016 decision to set up a constitution bench to hear the curative petitions filed against its own verdict of December 2013; (b) The apex court’s August 2017 verdict on the Right to Privacy as a Fundamental Right, where it said that sexual orientation was part of one’s right to privacy; and (c) Fresh writ petitions filed against Section 377 in the period 2016-18 by a variety of petitioners from different walks of life. In January 2018, the court set up a five-judge constitutional bench, which took up the writ petitions in July 2018. The latest round of Supreme Court hearings on Section 377 concluded on an optimistic note of the law again being read down.
LGBTIQA+ people and their families may have a number of crucial questions around Section 377. Some of these are listed below with links to detailed answers:
- If you are gay, lesbian, bisexual or transgender, can the police arrest you under Section 377?
- What is the status of same-sex marriage in India? Can you legally live together with your same-sex partner? Can you will your property to your same-sex partner?
- Why do the police often question LGBTIQA+ people in public places like parks? This issue brings in the application of other laws around vagrancy, public nuisance or sex work that impact LGBTIQA people on a day-to-day basis, in particular transgender women.
- How can you tackle blackmail around your gender identity or sexual orientation?
- What does sexual consent mean?
- How can you deal with same-sex sexual violence?
- How can you deal with intimate partner or family violence?
An important debate in India today is around transgender rights. The same Supreme Court that reinstated Section 377 in December 2013 surprisingly came out with one of the most progressive verdicts on transgender identities and citizenship rights – the NALSA judgment – in April 2014. The court affirmed the constitutional rights and freedoms of transgender persons, including those who identify as ‘third gender’, and those who identify within the male-female binary in a gender opposite to the sex / gender assigned to them at birth (that is, persons assigned sex / gender female at birth identifying as male and vice-versa).
The judgment broke new ground by recognizing diverse gender identities beyond the binary gender construct of ‘man’ and ‘woman’. It gave every Indian citizen the right to self-determination of their gender as male, female or third gender – without requiring medical screening, gender reassignment surgery or any kind of feminization or masculinization. It had far-reaching implications for transgender people in terms of equal opportunities in all socio-economic spheres in their desired gender identities.
Unfortunately, the implementation of the judgment has been quite poor till date – despite the central and some state governments announcing a number of social welfare schemes for transgender people and setting up transgender welfare boards at state and district levels.
The government’s efforts to enact a law on transgender rights have been half-hearted and betrayed the expectations of the transgender communities. In late 2017, the central government proposed a Bill with serious shortcomings and provisions that went against the spirit of the Supreme Court’s NALSA verdict. Key among these was a proposal to set up District Screening Committees to ‘certify’ people as transgender. This was completely incompatible with the principle of self-determination of one’s gender.
Though the government has put the Bill on the backburner in the face of strong countrywide protests by transgender people and their allies, it is feared that if the Bill is passed, it would be tantamount to India turning the clock back on not just transgender people but all its citizens.
In 2019, The Ministry of Law and Justice introduced The Transgender Persons (Protection of Rights) Act, an Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto. This version contradicts with the NALSA judgement avoiding the scope for self-identification process. There are other areas in this Act, and community members and experts have provided their recommendations to amend those areas. Based on this Act, recently Government has introduced Transgender Persons (Protection of Rights) Rules, 2020. Community leaders/organisations provided feedback on the rules to the Government by August 12, 2020. In the last week of September, the final Rules were introduced by the Ministry.