LGBT Rights – Transgender Bill, Sec. 377, etc.
The Need for Marriage Equality in India
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Marriage reforms, challenges and way ahead
Central Idea
- As the Supreme Court examines the case for expanding the definition of marriage, it becomes evident that legal rights do not automatically translate into social acceptance. The discussion revolves around whether laws should reflect existing societal morality or push the envelope by making unions possible despite lacking social approval.
Historical Context and Parliamentary Debates
- During the parliamentary debate on the Special Marriage Bill, former Member of Parliament Vijaya Lakshmi Pandit advocated for the right to choose one’s partner. She foresaw that while the law may not have immediate takers, an emancipated next generation would demand this right.
- Many women representatives believed the proposed law would improve the lives of women. However, concerns were raised about potential societal collapse and the proliferation of sexual desires, with even brief references to queer unions accompanied by homophobic remarks
Challenges to Marriage Reform
- Societal Resistance: One of the primary challenges to marriage reform is societal resistance rooted in deeply ingrained cultural, religious, and traditional beliefs. Changes to the institution of marriage are often met with resistance from those who fear the erosion of traditional values or view such reforms as a threat to established social norms.
- Conservative Opposition: Conservative groups and individuals, driven by their ideological and religious beliefs, often vehemently oppose any modifications to the existing definition of marriage. They argue that altering the definition undermines the sanctity of marriage and may have far-reaching consequences for societal stability.
- Lack of Political Consensus: Achieving political consensus on marriage reform can be challenging due to divergent viewpoints among lawmakers. Political parties may have different ideological positions or may be wary of alienating their voter base, leading to a lack of consensus and delayed progress in enacting comprehensive reforms.
- Legal Complexities: Marriage reform often involves complex legal considerations, such as redefining legal frameworks, rights, and obligations associated with marriage. These complexities can pose challenges in drafting legislation that adequately addresses the concerns and rights of all stakeholders involved.
- Institutional Resistance: Institutional resistance, including within bureaucratic systems, can hinder marriage reform efforts. Bureaucratic processes and administrative hurdles may impede the smooth implementation of new laws or regulations related to marriage equality.
- Cultural and Religious Diversity: India’s diverse cultural and religious landscape presents challenges in enacting uniform marriage reforms. Different religious communities may have their own distinct laws and customs governing marriage, making it difficult to achieve consensus and uniformity across the country.
- Lack of Public Awareness and Education: Limited public awareness and understanding about the importance of marriage reform can impede progress. Education and awareness campaigns can help dispel misconceptions, challenge prejudices, and promote a more inclusive understanding of marriage.
- Legal Precedents and Interpretations: Existing legal precedents and interpretations can influence the trajectory of marriage reform. Courts’ interpretations of constitutional provisions and previous judgments may shape the scope and direction of reforms, posing challenges for those advocating for comprehensive changes.
Bureaucratic and vigilante challenges related to marriage reform
- Bureaucratic Overreach: Bureaucratic challenges arise when officials, driven by personal biases or reflecting societal attitudes, go beyond their legal authority to obstruct or delay the implementation of marriage reform. This can include refusal to issue marriage licenses, unnecessary administrative hurdles, or arbitrary interpretations of existing laws that discriminate against certain individuals or couples.
- Denial of Recognition: Bureaucratic systems may withhold recognition and legitimacy from marriages that fall outside traditional norms, such as inter-caste, interfaith, or same-sex marriages. This denial can perpetuate societal inequalities and limit access to legal rights and protections that married couples should enjoy.
- Lack of Clarity in Legal Processes: The absence of clear guidelines or procedures for registering non-traditional marriages can create confusion and inconsistency in bureaucratic practices. This lack of clarity can lead to varying interpretations and implementation of the law, making it difficult for couples seeking marriage recognition.
- Vigilante Groups and Social Stigma: Vigilante groups, driven by societal prejudices and intolerance, may take it upon themselves to enforce their own version of social morality by intimidating or threatening individuals involved in non-traditional marriages. Such groups can use extra-judicial methods to prevent unions and impose social sanctions on couples, creating an environment of fear and insecurity.
- Exclusion and Discrimination: Bureaucratic and vigilante challenges can result in the exclusion and discrimination of individuals in non-traditional marriages. This can manifest in various forms, such as denial of legal rights, social ostracization, or lack of access to essential services and benefits that married couples typically enjoy.
- Privacy Violations: Bureaucratic processes and vigilante actions can infringe upon the privacy of individuals seeking non-traditional marriages. Public notice requirements or invasive inquiries into personal details can violate citizens’ right to privacy and subject them to unwarranted scrutiny and judgment.
What is the need of Reaffirming Rights and Transformations?
- Upholding Equality: Reaffirming rights and promoting transformations in marriage laws is essential for upholding the principle of equality. It ensures that all individuals, regardless of their sexual orientation, gender identity, caste, or community, have equal access to the institution of marriage and the legal rights and protections associated with it.
- Recognizing Individual Autonomy: Marriage reform recognizes and respects the autonomy of individuals to choose their life partners based on their own free will and preferences. It shifts the focus from societal expectations and norms to the fundamental principle of individual agency in making personal decisions related to marriage.
- Overcoming Discrimination: Transforming marriage laws helps overcome discrimination and social biases that exist within the institution. It challenges societal prejudices based on gender, caste, and community, fostering a more inclusive and egalitarian society.
- Empowering Marginalized Communities: Reaffirming rights through marriage reform empowers marginalized communities, including the LGBTQI+ community, by granting them legal recognition, rights, and protections. It provides an opportunity for historically marginalized groups to claim their rightful place in society and have their relationships acknowledged and respected.
- Promoting Social Progress: Transformations in marriage laws contribute to broader social progress by challenging traditional norms and practices that perpetuate inequality and discrimination. It encourages a shift towards more inclusive and progressive attitudes, fostering a society that values diversity, individual choices, and human rights.
- Strengthening Constitutional Principles: Reaffirming rights and transformations in marriage laws align with constitutional principles of equality, non-discrimination, and individual freedoms. It strengthens the foundation of a democratic society by ensuring that laws and policies reflect the core values enshrined in the constitution.
- Encouraging Social Awareness and Acceptance: Marriage reform promotes social awareness and acceptance of diverse relationships and identities. It encourages dialogue, education, and engagement to challenge stereotypes and prejudices, fostering a more inclusive and tolerant society.
- Building a Foundation for Future Generations: Reaffirming rights and transformations in marriage laws builds a solid foundation for future generations. It sets a precedent for a society that values equality, individual autonomy, and social progress, ensuring a more inclusive and just society for generations to come.
Facts for prelims
Special Marriage Act?
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Conclusion
- The debate on marriage equality in India necessitates a delicate balance between laws and societal morality. As the Supreme Court deliberates on expanding the definition of marriage, it is crucial to recognize that legal rights and social acceptance do not always align. While opposition and resistance persist, the law should strive to improve the lives of marginalized communities and reaffirm the rights of the citizenry as a whole. By moving towards marriage equality, India can create a more inclusive society that upholds individual choice and recognizes diverse identities.
Also Read:
| Perspective: Legalizing Same-Sex Marriage |
LGBT Rights – Transgender Bill, Sec. 377, etc.
Same Sex Marriage: Marriage Equality for LGBTQ+ Persons is A Fundamental Right
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Analysis of legal recognition to Same-sex marriage in India
Central Idea
- The Supreme Court of India recently started hearing petitions from LGBTQ+ petitioners seeking marriage equality. While marriage equality for LGBTQ+ persons is a controversial issue in India, it is essential to understand that denying them the right to marry excludes them from participating fully in family and community life, including gaining recognition and respect.
LGBTQIA+ community
- Sexual orientations or gender identities: LGBTQIA+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, Asexual/Ally. The plus sign is often added to include other identities and orientations that are not explicitly mentioned in the acronym. It is a term used to refer to individuals who identify as any of these sexual orientations or gender identities.
- Equal rights and acceptance: The community is made up of individuals who may face discrimination, marginalization, and stigma based on their sexual orientation or gender identity. The community advocates for equal rights and acceptance, and works towards achieving societal and legal recognition and protection
What is mean by Same-sex marriage?
- Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
- It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
- The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.
- The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.
Same-sex marriage in India
- Decriminalized homosexuality: Section 377 of the Indian Penal Code, which criminalized homosexuality, was struck down by the Supreme Court of India in 2018, which was a landmark decision for LGBTQ+ rights in the country.
- Same sex marriage is not yet legal: However, there is still no law that allows same-sex couples to legally marry or have any legal recognition of their relationships. Same-sex marriage is currently not legally recognized in India.
What are the implications of not recognizing Same sex marriage legally?
- Infringement on individual freedoms: Denying same-sex couples the right to marry can be seen as an infringement on individual freedoms and a violation of human rights. It can limit the ability of individuals to express their identities and form meaningful relationships.
- Exclusion from family and community life: Marriage is a fundamental institution in Indian society, and remaining unmarried is looked down upon by the entire family. However, excluding LGBTQ+ persons from marriage denies them full benefits of participating in family and community life, including acceptance in society.
- Social stigma: The lack of legal recognition for same-sex marriage can contribute to negative attitudes towards LGBTQ+ individuals and relationships. This can perpetuate social stigma and discrimination.
- Discrimination: Despite same-sex attraction being a natural part of human society, some people of the same sex fall in love with each other and want to get married. Marriage benefits a couple in tangible and intangible ways, including essential protections, such as the ability to own and share financial assets, joint ownership of property, and access to health and life insurance. Denying these rights to LGBTQ+ persons is discriminatory.
Arguments against recognizing same sex marriage legally in India
- Marriage is a union between a man and a woman: Many people believe that marriage is meant to be a union between a man and a woman, and that allowing same-sex couples to marry goes against traditional values.
- It is against Indian culture: Many opponents of same-sex marriage argue that it goes against Indian culture and Hindu values, and that such unions are not recognized in traditional Indian society.
- It could lead to social instability: Some people believe that allowing same-sex marriage could lead to social instability and moral decay, and that it would have a negative impact on family and societal values.
- It is against the law: While homosexuality is no longer a criminal offence in India, same-sex marriage is not recognized under Indian law. Opponents argue that allowing same-sex marriage would be against the law and would undermine the institution of marriage.
- It could have negative impact on children: Some people argue that children raised by same-sex couples could face social stigma and could be negatively impacted psychologically. They believe that children should have both a mother and a father.
Other developments and challenges
- Many corporations have applied core HR principles of fairness, equality, and non-discrimination to their LGBTQ+ employees and have re-written their equal opportunity and anti-discrimination policies to protect them from discrimination, bullying, and harassment.
- However, inclusive policies have been challenging to implement with insurance companies as same-sex partners are not legally recognised as spouses. Being allowed to marry will help to gain the acceptance that LGBTQ+ citizens are seeking in society.
Way ahead with a balanced approach
- Increase awareness and education: It is essential to increase awareness and education among the general public regarding the LGBTQ+ community and the importance of equal rights for all individuals.
- Dialogue and debate: There need to be an open and respectful dialogue and debate between people who support same-sex marriage and those who oppose it. This will help to address concerns and misunderstandings and lead to a greater understanding and acceptance of the LGBTQ+ community. A wide-ranging consultation process could be initiated with stakeholders from different communities, including religious leaders, civil society organizations, and members of the LGBTQIA+ community, to build consensus on the issue.
- Legal reforms: The Indian government should consider legal reforms to ensure that the LGBTQ+ community has equal rights and protections under the law. This includes legal recognition of same-sex marriage and the extension of benefits and protections to same-sex couples, such as inheritance rights and access to healthcare.
- Inclusive workplace policies: Corporations and employers can play a significant role in promoting inclusivity and diversity by implementing policies that explicitly protect LGBTQ+ employees from discrimination, bullying, and harassment.
- Sensitization of government officials: Sensitization programs should be conducted to sensitize government officials to the needs and rights of the LGBTQ+ community. This will help to ensure that government policies are more inclusive and considerate of the needs of all citizens.
- Balancing Interests: The government could take a cautious approach to legalizing same-sex marriage, considering the positive effects such as social inclusion and individual rights, and the potential negative effects, such as religious sensitivities and family values. This could involve striking a balance between individual rights and social cohesion, taking into account the unique cultural and social contexts of India.
- Monitoring and Evaluation: The government could set up an independent body to monitor the implementation of same-sex marriage legislation and evaluate its impact on society. This could help to identify areas of success and potential areas for improvement, and ensure that the legal recognition of same-sex marriages is a positive step forward for Indian society as a whole.
Conclusion
- Inclusive policies have resulted in more loyalty and engagement from employees, and it is now time to extend this sense of belonging to the LGBTQ+ community in India. The LGBTQ+ individuals deserve the right to participate in one of society’s major institutions and to be treated equally under the law. Allowing same-sex marriage would enable LGBTQ+ individuals to feel a sense of belonging and gain the acceptance they are seeking in society.
Mains Question
Q. Issues over the Same sex marriage has been one of the hot topics for some time now. Analyze the issue recognizing same sex marriage legally in India and suggest a balanced way ahead.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Horizontal Reservation: Movement of Dalit Trans People
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Horizontal and vertical reservation system, NALSA and related facts
Mains level : Horizontal and vertical reservation system, Transgender reservation and issues
Central Idea
- Recently, many trans rights activists from The Trans Rights Now Collective, who were peacefully protesting to demand horizontal reservation for transgender people, were detained by the Tamil Nadu police. In Tamil Nadu and in many states across the country, the movement for horizontal reservation has been shaping up to support Dalit trans people who are struggling with transphobia and casteism in educational institutions, workplaces, and larger ecosystems of education and employability.
What is vertical reservation?
- Fixed Percentage reservation: Vertical reservation is a policy of reserving a percentage of government jobs and educational seats for individuals from socially and economically disadvantaged communities or categories such as Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). It aims to address historical injustices and create equal opportunities for all sections of society.
- For example: if the Scheduled Caste population in a particular state is 15%, then 15% of the available seats or positions in educational institutions and government jobs in that state will be reserved for SC candidates. This ensures that members of historically oppressed and marginalized communities have greater access to opportunities for education and employment, and helps to address the inequalities that exist due to caste-based discrimination.
What is Horizontal reservation?
- Horizontal reservation is a type of affirmative action approach that supplements vertical reservation in India. Horizontal reservation recognizes that individuals from marginalized communities also face multiple layers of discrimination and seeks to provide additional reservation opportunities for them.
- It involves providing reservations for various intersectional identities such as women, persons with disabilities, and transgender persons within each of the vertical reservation categories.
- For example, a Dalit woman could access vertical reservation under the SC category, but through horizontal reservation, she could also access reservations for women. Both vertical and horizontal reservations would equally affect her social location.
Facts for prelims: Horizontal reservation v/s Vertical reservation
|
Horizontal Reservation |
Vertical Reservation |
| An intersectional approach that is provided for within each vertical reservation category | Reservation for specific marginalized communities, such as SC/ST/OBC |
| Example: A Dalit woman can access vertical reservation under the SC category, whereas through horizontal reservation she will be able to access reservations for women as well | Example: A Dalit person can access reservation under the SC category |
| Intended to provide opportunities for people who face multiple forms of marginalization | Intended to provide opportunities for specific marginalized communities |
| Provides for a more nuanced approach to reservation that takes into account intersectional identities and experiences | Provides for reservations for specific communities based on historical injustice and social exclusion |
| Allows for better representation of people from diverse backgrounds in public institutions and workplaces | Helps to address inequality and improve access to resources and opportunities for specific marginalized communities |
| Currently not implemented consistently across all states in India | Implemented consistently across all states in India |
| Has been demanded for transgender persons in government jobs and education to address caste and gender-based marginalization | Has been in place in India since independence and has been expanded over time to include more communities |
| Example: Karnataka became the first and only state in India to reserve jobs in public employment for transgender persons through horizontal reservation in 2021 | Example: In Tamil Nadu, reservations are provided for SC/ST/OBC communities |
Challenges with Vertical Reservation System?
- Dominance of creamy layer: The benefits of reservation are often enjoyed by the creamy layer or the affluent members of reserved categories who are not in need of affirmative action. This leads to further marginalization of the truly underprivileged members of these communities.
- Limited benefits: Vertical reservation benefits are limited to only a particular category of people, leaving out those who may also be disadvantaged due to other factors such as gender, disability, sexual orientation, etc.
- Stigmatization: The reservation system has led to stigmatization and discrimination against members of reserved categories, with many being perceived as less competent or deserving of their position.
- Political exploitation: Reservation policies are often used for political gain rather than social justice, with political parties making false promises and manipulating the system to gain votes.
- Lack of representation: Reservation policies have not led to adequate representation of marginalized communities in decision-making positions, as many still face discrimination and bias in these spaces.
- Inadequate infrastructure and resources: Reservation policies have not been accompanied by adequate infrastructure and resources for marginalized communities to access opportunities, leading to further marginalization.
- Conflict among marginalized communities: The current vertical reservation system creates a hierarchy among marginalized communities, with some having greater access to opportunities than others. This has led to conflict and tension among different communities.
Challenges with Horizontal reservation System?
- Opposition from dominant castes: Horizontal reservation is often met with resistance from dominant castes and communities who feel that it is unfair and takes away opportunities from them. This can lead to political backlash and opposition to the implementation of such policies.
- Identification and classification: Another challenge is the identification and classification of individuals who qualify for horizontal reservation. For example, in the case of transgender individuals, there is a lack of clarity on who qualifies as transgender and how to identify them. This can lead to confusion and disputes over who is eligible for reservation benefits.
- Administrative challenges: Implementing horizontal reservation policies can be administratively complex, especially in larger organizations and government agencies. There may be challenges in tracking and monitoring the implementation of such policies, and ensuring that they are being applied fairly and consistently.
- Stigma and discrimination: Horizontal reservation policies may also be stigmatizing for some individuals, as they may feel that they are being singled out or labeled based on their identity. This can create additional barriers to social inclusion and participation, and may make it more difficult for individuals to access opportunities.
- Limited scope: Horizontal reservation policies are often implemented in specific sectors or areas, such as education or public employment. This means that individuals from marginalized groups may still face discrimination and exclusion in other areas of society, such as housing or healthcare.
Value Addition Box form Civilsdaily
Did you know: NALSA Judgement?
The Transgender Persons (Protection of Rights) Act, 2019
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What are the policy gaps and ambiguities?
- The policy gaps and ambiguities that exist, which often used by the courts to refuse horizontal reservation for trans people and instead offer vertical reservation.
- The judiciary’s easy solution of putting all trans people in OBC categories is restrictive and does not allow trans people who belong to SC/ST categories to claim their right to reservation under both categories.
- The homogenous understanding of the trans community underplays the caste realities and marginalisations that many trans people come from and how it further hinders their social mobility.
Way ahead
- There is a need to recognize the intersectionality of identities and provide horizontal reservation for marginalized communities, including transgender people of Dalit, Bahujan, and Adivasi (DBA) backgrounds.
- State governments and the judiciary need to take a more proactive approach to address the policy gaps and ambiguities about the reservation for trans people.
- More awareness and education are needed to understand the complexities of caste and gender identity and their impact on social mobility.
- More research and data collection are needed to understand the challenges faced by trans people from DBA backgrounds and to develop effective solutions to address their unique needs.
- Ultimately, the goal should be to create a more inclusive and equitable society that recognizes and celebrates the diversity of all its citizens, regardless of their gender identity or caste background.
Conclusion
- The movement for horizontal reservation is not only about a Dalit-trans issue; it is cross-cutting and a living testimonial of how certain sections of people are repeatedly forced into the margins. There is need for horizontal reservation to assert that transgender people have an equal stake in this nation’s citizenship and public resources.
Mains question
Q. In many states across the country, the movement for horizontal reservation has been shaping up to support Dalit trans people. In this light explain what is horizontal reservation system and discuss the challenges associated with its implementation.
LGBT Rights – Transgender Bill, Sec. 377, etc.
What is Civil Union, how is it different from Marriage?
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Civil Unions
Mains level : Same sex marriages
Central idea
- The Indian judiciary is currently hearing arguments about the legal recognition of same-sex unions under the Special Marriage Act.
- The Centre has contested the maintainability of the petitions, and the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage.
- However, the CJI has clarified that the scope of the hearing would be limited to developing a notion of a Civil Union that finds legal recognition under the Act.
- This article explains what civil unions are, how they differ from marriage, and which countries allow them.
What is a Civil Union?
- A civil union is a legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples.
- Civil unions resemble marriages and bring with them employment, inheritance, property, and parental rights, among other things.
How is a civil union different from marriage?
- In the US, prior to the Supreme Court’s landmark ruling in “Obergefell v. Hodges” in 2015, a majority of the states had civil union laws that allowed same-sex couples to marry without providing them formal recognition of the same.
- Civil unions were recognised solely by issuing states and not by federal law, which meant that such couples could not enjoy the benefits of being in a civil union uniformly across all states.
- After the legalisation of same-sex marriages, several civil unions were converted into marriages.
What other countries allow civil unions?
- Several countries allow civil unions.
- Before Sweden legalised same-sex marriages in 2009, LGBTQ couples there could apply for civil unions and enjoy benefits such as the right to adopt.
- In Norway, couples could enter into civil unions from 1993, which gave way to a new law 15 years later allowing such couples to marry, adopt, and undergo state-sponsored artificial insemination.
- In Austria, same-sex couples could form civil partnerships between 2010-2017 until a court ruling deemed civil unions discriminatory, and such marriages were legalised.
- Similarly, countries like Brazil, Uruguay, Andorra, and Chile recognised the right of same-sex couples to enter into civil unions even before they formally recognised their legal right to marriage.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Same-sex marriage: Legalizing Would Be A Just Way Forward
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Same-sex marriage, Legal recognition analysis
Central Idea
- The legalisation of same-sex marriage is a natural progression towards accepting and integrating the LGBTQIA+ community in India, which has been marginalized and hounded for decades. While the decriminalisation of homosexuality was a positive step towards acceptance, granting civil rights such as marriage and adoption is essential in creating a more diverse and inclusive society.
LGBTQIA+ community
- LGBTQIA+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, Asexual/Ally. The plus sign is often added to include other identities and orientations that are not explicitly mentioned in the acronym.
- It is a term used to refer to individuals who identify as any of these sexual orientations or gender identities.
- The community is made up of individuals who may face discrimination, marginalization, and stigma based on their sexual orientation or gender identity. The community advocates for equal rights and acceptance, and works towards achieving societal and legal recognition and protection.
Problems faced by LGBTQIA+ community in India
- Discrimination: Members of the LGBTQIA+ community are often subjected to discrimination, harassment, and violence due to their sexual orientation or gender identity.
- Social Stigma: Homosexuality is still stigmatized in many parts of Indian society, and people who identify as LGBTQIA+ are often ostracized, bullied, and excluded from social activities.
- Lack of legal protection: The Indian legal system does not offer comprehensive legal protection against discrimination and violence based on sexual orientation and gender identity.
- Health issues: Members of the LGBTQIA+ community often face health issues such as HIV/AIDS, depression, anxiety, and substance abuse due to the stress and discrimination they face.
- Limited access to healthcare: Due to social stigma and discrimination, many members of the LGBTQIA+ community face barriers in accessing healthcare services, including mental health care and HIV/AIDS treatment.
- Family rejection: Many members of the LGBTQIA+ community face rejection and disownment by their families, which can lead to mental health issues, homelessness, and financial instability.
- Employment discrimination: Members of the LGBTQIA+ community often face discrimination in the workplace, including being denied jobs, promotions, and other opportunities due to their sexual orientation or gender identity.
- Limited legal recognition: Same-sex marriage is not recognized in India, and LGBTQIA+ couples do not have the same legal rights and protections as heterosexual couples.
What is mean by homosexuality?
- Homosexuality refers to a sexual orientation where an individual is primarily attracted to people of the same gender. It is a natural variation of human sexuality and is not considered a disorder or mental illness. The term is used to describe a person’s identity, behavior, and desire towards people of the same gender.
What is the stigma around homosexuality in India?
- Cultural and religious beliefs: India is a culturally and religiously diverse country with deep-seated traditional values. Many people believe that homosexuality is against these values and that it is a sin.
- Lack of awareness and education: There is still a lack of awareness and education about homosexuality in India, which leads to many misconceptions and negative stereotypes.
- Discrimination and harassment: People who are open about their homosexuality often face discrimination and harassment from society, including family, friends, and colleagues.
- Legal status: Until recently, homosexuality was illegal in India, which further stigmatized the community.
- Masculinity norms: Indian society often associates masculinity with traditional gender roles, which can make it difficult for people who do not conform to these norms.
- Lack of representation: The representation of LGBTQ+ people in Indian media and popular culture is limited, which can contribute to a lack of understanding and empathy for their experiences.
What is mean by Same-sex marriage?
- Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
- It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
- The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.
- The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.
Arguments in favor of same-sex marriage
- Civil Rights: Legalizing same-sex marriage is a matter of civil rights, which ensures equal treatment under the law for all individuals, regardless of their sexual orientation.
- Equality: All citizens should have the right to marry the person they love, irrespective of their gender or sexual orientation.
- Family: Same-sex couples should have the same legal rights as heterosexual couples when it comes to adoption, inheritance, and other family-related matters.
- Mental Health: Same-sex couples who can marry experience greater mental health benefits due to increased social support, greater economic stability, and increased social acceptance.
- Social Stability: Legalizing same-sex marriage can help promote social stability by increasing the number of legally recognized families and reducing social stigmas.
Arguments against same-sex marriage
- Religious Beliefs: Many people oppose same-sex marriage because of their religious beliefs and consider it to be a sin.
- Traditional Family: Some people believe that same-sex marriage is a threat to traditional family values.
- Children: There are concerns that children may be negatively affected by growing up in same-sex households.
- Social Consequences: Some people believe that legalizing same-sex marriage will have negative social consequences, including the breakdown of the family and moral decay.
- Slippery Slope: Some people believe that legalizing same-sex marriage could lead to a slippery slope, where other forms of non-traditional marriage become legal as well.
Way ahead
- Education and Awareness: A sustained education and awareness campaign could be launched at various levels, including schools, universities, media, and community organizations to address the social stigma and prejudice against LGBTQIA+ individuals. This could also involve sensitization training for various public and private sector employees to reduce discrimination and bias in the workplace.
- Advocacy: Pro-LGBTQIA+ advocacy groups could play a significant role in lobbying for the legal recognition of same-sex marriages. This could involve building alliances with other civil society organizations, engaging with lawmakers, and using social media to spread awareness about the issue.
- Legal Framework: A new legal framework could be developed to recognize same-sex marriages, which would include rights and protections for LGBTQIA+ individuals. This framework would need to address issues such as inheritance rights, joint property ownership, and the legal recognition of children born to same-sex couples through surrogacy or adoption.
- Consultation: A wide-ranging consultation process could be initiated with stakeholders from different communities, including religious leaders, civil society organizations, and members of the LGBTQIA+ community, to build consensus on the issue.
- Balancing Interests: The government could take a cautious approach to legalizing same-sex marriage, considering the positive effects such as social inclusion and individual rights, and the potential negative effects, such as religious sensitivities and family values. This could involve striking a balance between individual rights and social cohesion, taking into account the unique cultural and social contexts of India.
- Monitoring and Evaluation: The government could set up an independent body to monitor the implementation of same-sex marriage legislation and evaluate its impact on society. This could help to identify areas of success and potential areas for improvement, and ensure that the legal recognition of same-sex marriages is a positive step forward for Indian society as a whole.
Conclusion
- The hallmark of a progressive nation is reflected in its ability to accept diversity, include minorities, and integrate the marginalised. Legalising same-sex marriage may pave the way for generations to come and become a big step towards reclaiming the diverse, multicultural, and inclusive civilisation that India has always been. Government should strike a balance between individual rights and social cohesion, taking into account the unique cultural and social contexts of India.
Mains Question
Q. What do you understand by mean by Homosexuality? Decriminalization of homosexuality in India is considered as a positive step. In this backdrop analyze the issue of Same Sex Marriage in India.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Constitution Bench formed in Same-Sex Marriage Case
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Constitution Bench
Mains level : Same sex marriages
The Supreme Court has announced the formation of a new Constitution Bench headed by Chief Justice of India DY Chandrachud to hear a series of petitions seeking legal recognition of same sex marriages.
What is a Constitution Bench?
- The constitution bench is the name given to the benches of the Supreme Court of India.
- The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.
Constitution benches are set up when the following circumstances exist:
- Interpretation of the Constitution: Article 145(3) provides for the constitution of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India.
- President of India seeking SC’s opinion: When the President has sought the Supreme Court’s opinion on a question of fact or law under Article 143 of the Constitution. Article 143 of the Constitution provides for Advisory jurisdiction to the SC. As per the provision, the President has the power to address questions to the apex Court, which he deems important for public welfare.
- Conflicting Judgments: When two or more three-judge benches of the Supreme Court have delivered conflicting judgments on the same point of law, necessitating a definite understanding and interpretation of the law by a larger bench.
- The Constitution benches are set up on ad hoc basis as and when the above-mentioned conditions exist.
- Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as:
- K. Gopalan v. State of Madras (Preventive detention)
- Kesavananda Bharati v. State of Kerala (Basic structure doctrine) and
- Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.
Why in news now?
- The Centre had expressed its concern about the “psychological impact” that same-sex unions could have on children, but refused to link its worries to stigma about same-sex relationships.
- The government’s recent affidavit sought to explain how same-sex marriage was antithetical to the view held by many in India that marriage was a “holy union, a sacrament and a sanskar” between a biological man and a woman.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Same-Sex Marriages: A Push Must Come From Representative Bodies
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Same-sex marriage, Read the attached article
Central Idea
- The Centre’s opposition to the legalization of same-sex marriages based on cultural and societal concepts of marriage and family is examined and critiqued.
The Centre’s Argument
- The Centre argues that same-sex marriages are not recognized in Indian traditions, ethos, culture, and societal concepts of marriage.
- The Parliament, and not the Court, should decide on legalizing same-sex marriages.
Societal Conceptualization of Marriage
- Marriage is a social institution, and the Centre’s stance finds backing in four interrelated sub-arguments.
- Same-sex marriages demand nuanced alteration of the conventional understanding of marriage.
- The current legislative framework promotes the conventional understanding of marriage.
- Religious and societal morality still conceptualizes intercourse as a procreative activity.
- Conventional conceptualisations of family and marriage are facing evolutionary challenges.
What is mean by Same-sex marriage?
- Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
- It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
- The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.
- The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.
The Language of Rights
- The Court must evaluate the Centre’s argument on its own merits.
- While addressing the violations of fundamental rights resulting from non-recognition of same-sex marriages, the question of same-sex marriages is about the rights of a society to conserve traditions and an individual’s constitutional freedoms.
Back to Basics: Special Marriage Act?
- The Special Marriage Act is a law in India that allows individuals of different religions or nationalities to marry each other.
- It was enacted in 1954 and came into effect from 1955.
- The Special Marriage Act allows for inter-caste and inter-religious marriages, and couples who register under this act are not required to change their religion or follow any religious rites or rituals.
- The act also provides for divorce on certain grounds and maintenance to the spouse and children.
Conclusion
- While the rights issues concerning same-sex couples are substantial, the implications of recognizing same-sex unions as a couple require a broader debate in society and the legislature. The push to formalize the institution of same-sex unions must come from representative bodies such as Parliament.
Mains Question
Q. Provide a detailed analysis including relevant legal, social, cultural, and ethical considerations of same sex marriage in India along with a way ahead
LGBT Rights – Transgender Bill, Sec. 377, etc.
Same-sex marriage: Petitions For Legal Recognition
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Same-sex marriage, Issues, constitutional provisions , Read the attached article
Central idea
- Recently, the Supreme Court referred a batch of petitions seeking the legal recognition of same-sex marriages to a Constitution Bench. The Union government has opposed the petitions. Law Minister Kiren said that marriage is a matter of policy to be decided by Parliament and the executive alone.
What is mean by Same-sex marriage?
- Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
- It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
- The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.
- The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.
Same-sex marriage in India
- Same-sex marriage is currently not legally recognized in India.
- Section 377 of the Indian Penal Code, which criminalized homosexuality, was struck down by the Supreme Court of India in 2018, which was a landmark decision for LGBTQ+ rights in the country.
- However, there is still no law that allows same-sex couples to legally marry or have any legal recognition of their relationships.
Government’s argument
- In its affidavit to the Supreme Court, the government argued that the traditional concept of marriage, consisting of a biological man, woman and child, cannot be disrupted.
- It claimed that recognising same-sex marriages could cause havoc in the system of personal laws.
- As different from many liberal democracies, in India, aspects of marriage, succession and adoption are governed by religious personal laws.
What petitioners are claiming?
- Same-sex marriage as a matter of rights
- Any social policy is liable to judicial interference if rights are violated.
- The petitioners rely on the rights to equality and non-discrimination as laid out in Articles 14 and 15.
- The Constitution prohibits the state from discriminating on the basis of sex.
- Sex has been interpreted by the Supreme Court in Navtej Singh Johar (2018) to include sexual orientation. Granting the right to marry to heterosexual couples and not to homosexual couples clearly discriminates on the basis of their sexual orientation.
- Same-sex marriage is a matter of privacy
- Right to privacy: Supreme Court recognised this right to be part of the right to life and liberty under Article 21 of the Constitution in the celebrated Puttaswamy (2017) verdict.
- What court said on privacy: Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
- State currently denies this right: The right to privacy entails the right of the citizens to make decisions about their family life and marriage. The state currently denies same-sex couples this right.
- The Special Marriage Act: The Special Marriage Act is a secular law which works alongside religious personal laws. Same-sex marriages can be recognised under the Special Marriage Act. The Act already speaks of marriages between any two persons which are solemnised under it. Any two persons can include two persons of the same sex.
Special Marriage Act
- The Special Marriage Act is a law in India that allows individuals of different religions or nationalities to marry each other.
- It was enacted in 1954 and came into effect from 1955.
- The Special Marriage Act allows for inter-caste and inter-religious marriages, and couples who register under this act are not required to change their religion or follow any religious rites or rituals.
- The act also provides for divorce on certain grounds and maintenance to the spouse and children.
Consider the situation in the United States
- In Obergefell v Hodges (2015), the Supreme Court of the United States held that same-sex couples have a constitutional right to marriage.
- Thirty-one out of the 50 states in the United States have marriage laws that define marriage as between a man and a woman.
Conclusion
- The debate on legal recognition of same-sex marriages in India continues to be a contentious issue, with the government and petitioners presenting opposing views. However, given the complex social, cultural, and legal considerations, any decision regarding same-sex marriage should be carefully evaluated to ensure that it is inclusive and respects individual rights. Ultimately, it is important to arrive at a balanced and just solution that upholds the principles of equality and non-discrimination for all individuals, regardless of their sexual orientation.
Mains Question
Q. What do you understand by same-sex marriage? Describe same sex marriage situation in India by highlighting both the arguments.
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LGBT Rights – Transgender Bill, Sec. 377, etc.
Same-Sex Marriages can rock societal values: Centre
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Same Sex Marriage
Central idea: The Centre in the Supreme Court expressed its disagreement towards same-sex marriage, citing traditional beliefs and values.
Here are the main points of the affidavit:
- Heterosexual marriage has been the norm throughout history and is “foundational to both the existence and continuance of the state.”
- Marriage in India is regarded as a “holy union,” a “sacrament,” and a “sanskar,” and is dependent on customs, rituals, practices, cultural ethos, and societal values.
- Any “deviation” from the “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court.
Basis of Centre’s opposition
- The 2018 Navtej Singh Johar judgment decriminalised homosexuality, but it did not mention/legitimise same-sex marriage.
- Same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
- Registration of same-sex marriage would result in a violation of existing personal as well as codified law provisions.
- There is a “compelling interest” for the society and the state to limit recognition to heterosexual marriages only.
Reasons behind centre’s opposition
- Legal revamp required: The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
- Definition of spouse: In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.
- Against cultural norms: The social order in our Country is religion based which views procreation as an obligation for the execution of various religious ceremonies.
- Property and other civil rights: Property rights post marriage is a much-contested issues in India. Same sex marriage will not create any immunity for the law but increase complex interpretations.
Issues with such marriages
The issue of homosexual conduct to this fore in recent legal and political debate for main reasons, which are as follows:
- Morality: This has brought with it a change in social attitudes, so that the stigma attached to homosexuality has to a greater extent disappeared.
- Rising activism: Campaigns for lesbian and gay rights taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality.
- Religious sanctions: Same sex acts are punishable by death in Arab countries. No religion openly embraces same sex marriage. More or less, they are considered un-natural everywhere.
- Social stigma: Apart from the harsh legal scenario, homosexuals face social stigma as well. Same sex marriages are still unimaginable as any instance of sexual relations between a couple of the same sex draws hatred and disgust.
- Patriarchy: It must not be forgotten that the Indian society is patriarchal in nature and the fact that certain women and men have different choices, which is not sanctioned by the ‘order’, frightens them in a way.
- Burden of collectivity: Our society is very community oriented and individualism is not encouraged in the least, any expression of homosexuality is seen as an attempt to renounce tradition and promote individualism.
Arguments in favor
- Pursuit of happiness: Homosexuality is not an offence, it is just a way of pursuit of happiness, a way to achieve sexual happiness or desire.
- Right to privacy: The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual.
- Arbitrariness: Infringement of, the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced.
- Issues with definition: Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural.
- Discrimination: Section-377 discriminates on the basis of sexual orientation which is forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex.
- Human rights: The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights.
- Many countries recognizing: According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.
Way forward
- Dissociating from religion: Such marriages are forbidden in almost every religion. Hence no single religion should be considered a hindrance in creating a legal sanction.
- Doing away with discrimination: The same-sex community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity.
- Letting the society evolve: The society has to imbibe the doctrine of progressive realization of rights and it cannot be forcibly convinced by law.
- Creating awareness: Certainly this is not an overnight phenomenon. We are society where practice of Sati and Nikah halala was considered a religious order.
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LGBT Rights – Transgender Bill, Sec. 377, etc.
LGBTQ leap forward for positive future growth of human rights
Note4Students
From UPSC perspective, the following things are important :
Prelims level : various judgments
Mains level : human rights
Context
- Four years after landmark LGBTQ verdict: The march to full citizenship.
Why in news?
- On September 6, 2018, exactly four years ago, in Navtej Singh Johar and Ors v Union of India, a five-judge constitution bench of the Supreme Court, in a beautifully elaborate decision, liberated LGBTQI Indians from the darkness of Section 377 of the Indian Penal Code, 1860.
What is LGBTQ?
- LGBTQ is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
What is Section 377 of the IPC?
- It reads – Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
- The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code.
Role played by the judiciary hitherto
- The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
- The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
- In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
- However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
- This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
- It also underscored the doctrine of progressive realisation of rights.
What’s next?
- Overarching legislation is needed to guarantee equality to all persons on the basis of sexual orientation, gender identity and expression, sex, caste, religion, age, disability, marital status, pregnancy, nationality, and other grounds.
- The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing and access to public places.
- It should provide for civil remedies to stop discriminatory behaviour, costs and damages, and positive action to make reparations.
- We need an equality law to define what equality would encompass.
- Supreme Court comes held in its privacy judgment in K.S. Puttuswamy v. Union of India (2017) that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms.
Way forward
- Schools and colleges must effect changes in curricula for a better understanding of the community.
- People of a different sexual orientation or gender identity often narrate harrowing tales of bullying, discrimination, stigma and ostracization.
- Gender-neutral restrooms should be compulsory in educational institutes and other places.
- Parents too need to be sensitised, because the first point of misunderstanding and abuse often begins at home, with teenagers being forced to opt for “conversion” therapies.
Conclusion
- Justice Chandrachud, speaking on the fourth anniversary of Johar and the journey ahead, while quoting the Beatles classic “All you need is love”, notes that “simply love is not enough”. Rights are necessary. Which will enhance dignity of the community.
Mains question
Q. “Silent segregation” on the grounds of gender, sexual orientation preferences are followed in several houses. Elucidate in context of LGBTQ issues. What Legal remedies are needed for its victims?
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LGBT Rights – Transgender Bill, Sec. 377, etc.
Ban on Conversion Therapy for the LGBTQIA+ Community
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Sexual orientation as medical condition
The National Medical Commission (NMC), the apex regulatory body of medical professionals in India, has written to all State Medical Councils, banning sexual conversion therapy and calling it a “professional misconduct”.
What is the news?
- The NMC has empowered the State bodies to take disciplinary action against medical professionals who breach the guideline.
- The NMC was following a Madras High Court directive to issue an official notification listing conversion therapy as a wrong, under the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002.
What is Sexual Conversion Therapy?
- Conversion or reparative therapy is an intervention aimed at changing the sexual orientation or gender identity of an individual.
- It uses either psychiatric treatment, drugs, exorcism and even violence, with the aim being to make the individual a heterosexual.
- The conversion therapy umbrella also includes efforts to change the core identity of youth whose gender identity is incongruent with their sex anatomy.
- Often, the therapy is offered by quacks with little expertise in dealing with the issue.
- As late as 2018, medical books listed homosexuality and lesbianism as a “perversion”.
What are the risks?
- The interventions under conversion therapy are provided under the false premise that homosexuality and diverse gender identities are pathological.
- They are not; the absence of pathology means there is no need for conversion or any other like intervention.
- Conversion therapy poses the risk of causing or exacerbating mental health conditions, like anxiety, stress and drug use which sometimes even lead to suicide.
What is the role of the Madras High Court in the ban?
On June 7, 2021, Justice N. Anand Venkatesh of the Madras High Court gave a landmark ruling on a case he was hearing about the ordeal of a same-sex couple who sought police protection from their parents.
- Pending adequate legislation more protective of the community, Justice Venkatesh issued a slew of interim guidelines.
- It aimed for the police, activists, Union and State Social Welfare Ministries, and the National Medical Commission to ensure their safety and security to lead a life chosen by them.
- The ruling prohibited any attempt to medically “cure” or change the sexual orientation of LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex, asexual or of any other orientation) people.
- It urged the authorities to take action against professionals involving themselves in any form or method of conversion therapy,” which could include the withdrawal of licence to practice medicine.
- On July 8, 2022, the court gave an order to the NMC directing it to issue necessary official notification by enlisting ‘Conversion Therapy’ as a professional misconduct.
What were some of the other guidelines issued by the court?
- The court asked the Ministry of Social Justice & Empowerment to draw up a list of NGOs and other groups which could handle the issues faced by the community, and gave it a time of 8 weeks from the date of the order.
- The court said the community should be provided with legal assistance by the District Legal Services Authority in coordination with law enforcement agencies.
- It asked agencies to follow the Transgender Persons (Protection of Rights) Rules, 2020, and the Transgender Persons (Protection of Rights) Act, 2019, in letter and spirit.
- The court said it was imperative to hold sensitisation programmes for an all-out effort to understand the community and its needs.
Way forward
- Schools and colleges must effect changes in curricula for a better understanding of the community.
- People of a different sexual orientation or gender identity often narrate harrowing tales of bullying, discrimination, stigma and ostracization.
- Gender-neutral restrooms should be compulsory in educational institutes and other places.
- Parents too need to be sensitised, because the first point of misunderstanding and abuse often begins at home, with teenagers being forced to opt for “conversion” therapies.
- Health professionals point out that even adults opting for sex reassignment surgeries need to get proper guidance like therapy pre and post operation.
Back2Basics: Transgender Persons (Protection of Rights) Act, 2019: Key Features
Defining Transperson
- The act defines a transgender person as one whose gender does not match the gender assigned at birth.
- It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
Prohibition against discrimination
- It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public.
- Every transgender person shall have a right to reside and be included in his household.
- No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
HRD measures
- A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
- Educational institutions funded or recognised by the relevant government shall provide inclusive facilities for transgender persons, without discrimination.
- The government must provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
Grievances redressal
- The National Council for Transgender persons (NCT) chaired by Union Minister for Social Justice, will advise the central government as well as monitor the impact of policies with respect to transgender persons.
- It will also redress the grievances of transgender persons.
Legal Protection
- The Bill imposes penalties for the offences against transgender persons like bonded labour, denial of use of public places, removal from household & village and physical, sexual, verbal, emotional or economic abuse.
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LGBT Rights – Transgender Bill, Sec. 377, etc.
Aviation safety regulator opens door for transgender pilots
Note4Students
From UPSC perspective, the following things are important :
Prelims level : NA
Mains level : Transgenders' rights
In a big win for an aspiring pilot and the entire transgender community, the Directorate General of Civil Aviation (DGCA) has for the first time framed new medical guidelines that allow transgender persons who have completed gender transition therapy or surgery to be declared fit to fly.
What did DGCA allow?
- The DGCA guidelines for aeromedical evaluation of transgender persons for obtaining medical clearance for all categories of pilot’s licence — private pilot’s licence, student pilot licence and commercial pilot licence.
- An ongoing hormone therapy will also not be a ground for disqualification.
- It says that candidates who have completed their hormone therapy and gender affirmation surgery more than five years ago will be declared medically fit.
- They should clear screening for mental health in accordance with the World Professional Association for Transgender Health.
Some limitations
- However, transgender pilots “may” have some limitations imposed such as being allowed to only fly as first officers (junior pilots).
- When they are flying as pilot-in-command their co-pilot has to have 250 hours of flying on that particular type of aircraft or the co-pilot has to be a senior captain who is a trainer.
Why such modification?
- An Indian citizen, is the first transgender trainee pilot with a private pilot licence from South Africa.
- He/she was unable to complete his training in India after the DGCA in April 2020 rejected his medical clearance needed to obtain a student’s pilot licence.
- The Ministry of Social Justice and Empowerment intervened and wrote to the DGCA.
- It called the rules “discriminatory” and in violation of the Transgender Persons (Protection of Rights) Act of 2019 and demanded “guidelines for licensing” for transgender persons.
Conclusion
- Because of the fear of backlash from society, family and friends, coming out as a transgender is itself a very challenging move for those who hide their identity.
- Major issue lies with societal acceptance of transgender and recognition. Such steps create awareness among people with example.
- Society should be made sensitive enough to realize it is none of the concerned person’s fault.
Back2Basics: Transgender Persons (Protection of Rights) Act, 2019: Key Features
Defining Transperson
- The act defines a transgender person as one whose gender does not match the gender assigned at birth.
- It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
Prohibition against discrimination
- It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to education, employment, healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public.
- Every transgender person shall have a right to reside and be included in his household.
- No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
HRD measures
- A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
- Educational institutions funded or recognised by the relevant government shall provide inclusive facilities for transgender persons, without discrimination.
- The government must provide health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
Grievances redressal
- The National Council for Transgender persons (NCT) chaired by Union Minister for Social Justice, will advise the central government as well as monitor the impact of policies with respect to transgender persons.
- It will also redress the grievances of transgender persons.
Legal Protection
- The Bill imposes penalties for the offences against transgender persons like bonded labour, denial of use of public places, removal from household & village and physical, sexual, verbal, emotional or economic abuse.
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LGBT Rights – Transgender Bill, Sec. 377, etc.
Step towards more LGBTQIA+ affirmative medical curriculum doesn’t go far enough
Note4Students
From UPSC perspective, the following things are important :
Prelims level : National Medical Commission
Mains level : Paper 2- More LGBTQIA+ affirmative curriculum
Context
The National Medical Commission (NMC), the body responsible for regulating medical education in India, released an advisory regarding the LGBTQIA+ community and the necessary changes in the competencies of its competency-based medical education (CBME) curriculum.
Exclusion of LGBTQIA+ community in medication
- Medical education in India has focussed only on the binary of male and female, heterosexuality and cis-gendered lives, while excluding homosexuality and gender non-binary and transgender issues.
- This results in the exclusion of the LGBTQIA+ community.
- Even with the release of the competency-based medical curriculum in August 2019, the curriculum continues to include a queerphobic syllabus.
About the NMC notification
- The Transgender Persons (Protection of Rights) Act, 2019 mandates governments to take measures for the “review of medical curriculum and research for doctors to address their [transgender] specific health issues,” but no action has been taken since then.
- In June 2021, in response to a case filed by a queer couple, the Madras High Court laid down a set of guidelines and directed the NMC to ban queerphobic practices such as conversion therapy which aims to forcibly change the sexual orientation of a person.
- In its notification, the NMC has advised medical colleges to teach gender in a way that is not derogatory to the queer community.
- The authors of medical textbooks have also been asked to amend the books to remove any harmful contents regarding virginity and the queer community.
Issues with the NMC notification
- While the NMC advisory title mentions necessary changes in the competencies of its CBME curriculum, there are no specifications on what these changes are.
- At the same time, the CBME curriculum itself mentions queerphobic things that are to be taught to students.
- Certain acts are called as sexual offences even though the Supreme Court has read down Section 377.
- Also, the competencies which will make a future Indian doctor respectful and empathetic in treating a queer patient are missing.
Way forward
- The NMC must start by recognising the flaws in its own CBME curriculum and explicitly state the changes required.
- Specific guidelines on how to make healthcare queer-affirmative are needed.
- The directive also needs to specify changes across several subjects and not just forensic medicine and psychiatry.
- For this, there needs to be a participatory stakeholder consultation towards the development of a queer-affirmative curriculum.
- Finally, there needs to be clarity on what the NMC plans to do for tackling queerphobia in the current set of health professionals.
Consider the question “The Transgender Persons (Protection of Rights) Act, 2019 mandates governments to take measures for the review of the medical curriculum. In light of this, discuss the changes needed in the medical curriculum regarding the LGBTQIA+ community.”
Conclusion
Without these changes, equitable access to healthcare for queer persons will remain a faraway dream.
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LGBT Rights – Transgender Bill, Sec. 377, etc.
[pib] SMILE Scheme
Note4Students
From UPSC perspective, the following things are important :
Prelims level : SMILE Scheme
Mains level : Transgenders rehabiliation
The Government has approved a comprehensive scheme named “Support for Marginalised Individuals for Livelihood and Enterprise (SMILE)” which includes a sub-scheme for Comprehensive Rehabilitation for Welfare of Transgender Persons.
About SMILE Scheme
- This scheme is a sub-scheme under the ‘Central Sector Scheme for Comprehensive Rehabilitation of persons engaged in the act of Begging’.
- It also focuses on rehabilitation, provision of medical facilities and intervention, counselling, education, skill development, economic linkages to transgender persons.
- It covers several comprehensive measures including welfare measures for persons who are engaged in the act of begging.
- The focus of the scheme is extensively on rehabilitation, provision of medical facilities, counselling, basic documentation, education, skill development, economic linkages and so on.
Its implementation
- The scheme would be implemented with the support of State/UT Governments/Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs), institutions and others.
- The scheme provides for the use of the existing shelter homes available with the State/UT Governments and Urban local bodies for rehabilitation of the persons engaged in the act of Begging.
- In case of the non-availability of existing shelter homes, new dedicated shelter homes are to be set up by the implementing agencies.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Gender self-identification and related issues
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Not much
Mains level : Gender sensitization efforts
The Spanish government has approved the first draft of a bill that would allow anyone over the age of 14 to legally change gender without a medical diagnosis or hormone therapy.
What is gender self-identification?
- Self-identification, or ‘self-id’, is the concept that a person should be allowed to legally identify with the gender of their choice by simply declaring so, and without facing any medical tests.
- This has been a long-held demand of trans-right groups around the world, including in India, as prejudice against trans people remains rampant.
European scenario
- In Europe, this issue has remained divisive not only on liberal-conservative lines but also within the LGBT community.
- The current processes for declaring one’s desired gender are lengthy, expensive and degrading.
Related issues
- Some feminist and gay-rights groups insist that such a law could endanger women and cause more gay teenagers to be told that they might be trans and thus encouraged towards hormones and surgery.
- Feminist forums believe that sex is not something that can be chosen.
- They insist that allowing self-identification could put at risk all laws that specifically prevent discrimination against women.
- They have instead asked lawmakers to look at concerns that they say are more pressing, such as the gender pay gap.
What is the process for declaring one’s desired sex in India?
- In India, the rights of transgender persons are governed by the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.
- Under the Rules, an application to declare gender is to be made to the District Magistrate.
- Parents can also make an application on behalf of their child.
- A much-criticized previous draft of regulations required transgender persons to go through a medical examination for declaring their desired sex.
- This requirement was omitted in the Final Rules.
- As per the Rules, state governments have also been directed to constitute welfare boards for transgender persons to protect their rights and interests, and facilitate access to schemes and welfare measures framed by the Centre.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Issues faced by India’s sexual minorities
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Article 15
Mains level : Paper 2- Rights of sexual minority
The article highlights the plight of sexual minorities despite the landmark judgments by the Supreme Court.
Role played by the judiciary
- The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
- The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
- In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
- However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
- This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
- It also underscored the doctrine of progressive realisation of rights.
No legal sanction to same-sex marriage
- Despite the judgments of the Supreme Court, there is still a lot of discrimination against sexual minorities in matters of employment, health and personal relationship.
- The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India.
- The Union of India stated that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry.
- The U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage and asserted that the universal human right of marriage should not be denied to a same-sex couple.
- Indian society and the state should synchronise themselves with changing trends.
Need to amend Article 15 to prohibit discrimination based on gender or sexual orientation
- Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them.
- The grounds of non-discrimination should be expanded by including gender and sexual orientation.
- In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
- The United Kingdom passed the “Alan Turing law” in 2017 which ‘granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts’.
Way forward
- Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitise the general public and officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels.
- School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity.
- Heteronormativity is the root cause of hetero-sexism and homophobia.
Conclusion
It is time for change, but the burden should not be left to the powers that be. The onus remains with the civil society, the citizenry concerned and the LGBTQ+ community itself.
LGBT Rights – Transgender Bill, Sec. 377, etc.
Same-sex marriages cannot be recognized: Centre
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Not Much
Mains level : LGBTQ Rights
The Centre has opposed any changes to the existing laws on marriage to recognise same-sex marriages, saying such interference would cause “complete havoc with the delicate balance of personal laws in the country”.
What is the case?
- A petition had sought to recognize same-sex marriage.
- Despite the decriminalization of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.
What did the Centre say?
- Living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept.
- The Indian concept of family constitutes a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out.
- It said the 2018 landmark judgment of the Supreme Court decriminalizing consensual homosexual sex in India was “neither intended to nor did it in fact, legitimize the human conduct in question”.
Why such a move by the Centre?
- The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
- Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, the government cautioned.
- In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.
Back2Basics: Article 377 of IPC
- Section 377 of the Indian Penal Code (IPC) is an act that criminalizes homosexuality and was introduced in the ear 1861 during the British rule of India.
- Referred to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.
- However, in a historic verdict, the Supreme Court of India on September 6, 2018, decriminalized Section 377 of the IPC and allowed gay sex among consenting adults in private.
- The SC ruled that consensual adult sex is not a crime saying sexual orientation is natural and people have no control over it.
- It also said that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.
LGBT Rights – Transgender Bill, Sec. 377, etc.
National Council for Transgender Persons
Note4Students
From UPSC perspective, the following things are important :
Prelims level : National Council for Transgender Persons
Mains level : Trans-persons rights protection
The Ministry of Social Justice and Empowerment has constituted the National Council for Transgender Persons.
Try this question for mains:
Q.Discuss the salient features of the Transgender Persons (Protection of Rights) Bill, 2019. What are its various shortcomings?
National Council for Transgender Persons
- It has been a requirement under the Transgender Persons (Protection of Rights) Act, 2019.
- The Social Justice Minister would be the chairperson of the Council.
- The members would include officials of the Ministries of Health, MHA, MoHUA, Minority Affairs, HRD etc. among others.
- The council also includes five nominated members from the transgender community.
Its mandate
- The council would work with States to ensure that transgender welfare boards are set up in all States and essential needs of the community, like housing, food, healthcare and education are met.
Also read:
LGBT Rights – Transgender Bill, Sec. 377, etc.
No medical examination for Trans Persons
Note4Students
From UPSC perspective, the following things are important :
Prelims level : Not Much
Mains level : Trans-persons rights
After facing flak from the transgender community, the Centre has done away with the requirement of a medical examination for trans persons applying for a certificate of identity in its latest draft rules framed under the Transgender Persons (Protection of Rights) Act, 2019.
Practice question for mains:
Q.What are the salient features of the Transgender Persons (Protection of Rights) Act, 2019? Also, discuss the loopholes.
What are the new rules?
- The draft of the Transgender Persons (Protection of Rights) Rules, 2020, published stated that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, but without any medical examination.
Issue with the earlier draft
- An earlier draft of the rules had mandated a report from a psychologist along with the affidavit for the application.
- The transgender rights movement had opposed this, as it was seen as going against a trans person’s right to self-identification, which was upheld by the Supreme Court in 2014.
Change of gender is permissible
- In case of change of gender, the application for new identification would require a certificate from the medical superintendent or chief medical officer of the medical institution where the applicant the surgery.
- For this, the Centre has proposed a series of welfare schemes, including making at least one hospital in each State equipped to provide safe and free gender-affirming surgery and counselling and hormone replacement therapy among others.
Back2Basics: The 2014 Judgement on Trans-persons Rights
- The Supreme Court in 2014 recognized transgenders as the third gender in a landmark ruling, saying it was addressing a “human rights issue”.
- The ruling came after it heard a PIL filed by National Legal Services Authority (Nalsa) demanding equal rights.
- The judgements said that non-recognition of gender identity amounts to discrimination under Article 15, which prohibits discrimination on the basis of sex.
- The spirit of the constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender said justices K.S. Radhakrishnan and A.K. Sikri in their ruling.
- Self-identification as man or woman, irrespective of sexual reassignment surgery, was now protected by law.
- The judges said rights such as the right to vote, own property, marry and to “claim a formal identity” would be made available “more meaningfully” to the transgender community as a result of the ruling.
Transgender Persons (Protection of Rights) Bill, 2019
The Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019.
Key Features
- Definition of a transgender person: The Bill defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
- Certificate of identity: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
- Prohibition against discrimination: The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in relation to:
- Education, employment, healthcare.
- Access to or enjoyment of goods, facilities, opportunities available to the public.
- Right to movement, right to reside, rent, or otherwise occupy property.
- Opportunity to hold public or private office.
- Access to a government or private establishment in whose care or custody a transgender person is.
- Health care
- The Bill also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
- It also states that the government shall review medical curriculum to address health issues of transgender persons, and provide comprehensive medical insurance schemes for them.
- It calls for establishing a National Council for Transgender persons (NCT).
- Punishment: It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.
IPC & the need for modernisation
The promise of criminal law as an instrument of safety is matched only by its power to destroy. It is arguably the most direct expression of the relationship between a state and its citizens.
Amid the debate on the archaic sedition law that should have no place in democratic India, President Pranab Mukherjee said that the IPC, 1860 requires a thorough revision to meet the needs of the 21st century. Click here to know everything about sedition law
History:
- The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington Macaulay
- Answer in comments.>
- It came into force in British India(but not princely states) during the early British Raj period in 1862
- After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code and later in B’desh also
- Jammu and Kashmir does not follow IPC but has enacted a separate code known as Ranbir Penal Code (RPC) which is based on IPC
Some notable points:
- The IPC replaced Mohammedan Criminal Law, which had a very close relationship with Islam. Thus, the IPC laid the foundation of secularism
- It was widely appreciated as a state-of-the-art code and was, indeed, the first codification of criminal law in the British Empire
- Today, it is the longest serving criminal code in the common-law world
- Today, most of the commonwealth follows the IPC
Law Commission on IPC:
- 42nd Report (1971)– Law Commission of India for the first time had recommended the repeal of Section 309 (criminalization of suicide)
- 172nd Report (2000)– Recommended deletion of Section 377 (criminalization of unnatural sexual offences)
- 210th Report (2008)– Recommended Humanization and Decriminalization of Attempt to Suicide under Section 309
Past attempts at amendment:
- Even though the IPC has been haphazardly amended more than 75 times, no comprehensive revision has been undertaken in spite of the 42nd report of the Law Commission in 1971 recommending it
- Also the amendment bills of 1971 and 1978 lapsed due to the dissolution of the Lok Sabha
- As a result, largely the courts have had to undertake this task, with unsatisfactory outcomes at times
- Most amendments have been ad hoc and reactive, in response to immediate circumstances like the 2013 amendment after the Delhi gangrape case
Why amend IPC?
- The philosophical stance and fundamental principles of Macaulay’s code were the product of imperialist policy <designed to meet colonial needs to subjugation and exploitation of India and Indians, sedition law for instance>
- Some of the concepts underlying the code are either problematic or have become obsolete
- there are many new offences, which have to be properly defined and incorporated in the code
- Macaulay had himself favoured regular revision of the code whenever gaps or ambiguities were found or experienced
- In 1860, the IPC was certainly ahead of the times but has been unable to keep pace since then
Specific cases or problems:
- Sedition law, inserted in 1898: It is legitimate to ask whether we need a law on sedition that we ourselves condemned during the Raj. Learn more about sedition law here
- Section 295A, The offence of blasphemy: It should have no place in a liberal democracy
- Criminal conspiracy: It can be invoked merely when two people agree to commit an offence without any overt act following the agreement.
It was added in 1913 by the colonial masters to deal with political conspiracies.
Kehar Singh etc were convicted and sentenced to death under the offence of conspiracy ,, though none of them participated in the actual crime or were present at the scene of the crime. - Section 149, Unlawful assembly: The principle of constructive liability under this law is pushed to unduly harsh lengths.
Mere membership of the assembly without any participation in the actual crime is sufficient for punishment.
Several persons have been sentenced to death and hanged though they were not even present near the scene of the actual crime. - The distinction between “culpable homicide” and “murder” is criticised as the “weakest part of the code”, as the definitions are obscure
- Sexual offences under the code reveal patriarchal values and Victorian morality.
- Section 377: Unnatural sexual offences (LGBT right). Want to know about argument of Delhi high court in decriminalizing homosexuality, click here to read about Naz Foundation case
Contrarian view point of Justice Hegde
We should not repeal something just because it’s 150 years old.
On Sedition: He favours the sedition law as some restrictions are needed to stop people from abusing and talking against the country. “I believe in sedition law. I am a patriot. Any patriot cannot go on abusing the country. There are certain parameters.” He points to distinction b/w criticizing the person (prime minister), policies, system v/s abusing the state
On IPC: We can not just scrap Indian Penal Code because somebody is involved in a crime (and wants it to be scrapped)
We can not just ape west. Ground realities in India and west are very different and they demand different levels of freedom of expression and religious freedom.