LGBT Rights – Transgender Bill, Sec. 377, etc.

[op-ed snap] Target Section 377: On decriminalising gay sex

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Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Once you are done reading this op-ed, you will be able to attempt the below.

By the latest Supreme Court verdict, sexual orientation is an aspect of the right to privacy and an inalienable part of human dignity, freedom, and personal liberty. Comment

From UPSC perspective, the following things are important:

Prelims level:  Section 377

 Mains level: Issues related to LGBT (Lesbian, Gay, Bisexual and Transgender) rights


News

Context

  • The SC has laid the foundation to decriminalise consensual gay sex

Same-gender sex

  1. It remains a crime in the country ever since the constitutional validity of Section 377 of the IPC was upheld in Suresh Kumar Koushal (2013) Case
  2. What is Section 377: It criminalises sexual activities that are “against the order of nature”, including consensual sex between couples who are from the LGBTQI community(lesbian, gay, bisexual, transgender, queer, intersex)

Court’s observations

  1. While declaring that the right to privacy is a fundamental right and an inherent component of human liberty and dignity, the nine-judge Bench has observed that the rationale behind the Koushal judgment is flawed and unsustainable
  2. It has said the rights of LGBT persons are real rights founded on sound constitutional doctrine and not “so-called rights” as the earlier Bench had described them disdainfully.
  3. The claim made in Koushalthat there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority has been completely discredited.
  4. It was unreasonable to advance the view that constitutional protection is available to a group based on its size
  5. This week’s ruling on privacy rights contains a clear enunciation of the constitutional basis for protection of rights based on sexual orientation.
  6. Transgenders, even though insignificant in numbers, are entitled to human rights, another Bench had observed in National Legal Services Authority (2014), in a subtle hit at the “minuscule minority” formulation in Koushal.
  7. Significantly, it advocated the adoption of the Yogyakarta Principles

What is Yogyakarta Principles

  1. These are norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia.
  2. A key principle is that discrimination based on sexual orientation and gender identity must end
  3. By commending this norm, the court has located sexual orientation not only as a freedom flowing from the right to privacy, but as demanding of non-discriminatory treatment.
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