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LGBTQIA+ Community in India

Author: Gaurav Anand Gogia Symbiosis Law School, Pune

LGBTQIA is basically an acronym to describe a group of people.

It is an English umbrella term which is intended to include all subsections of a very diverse community.

It is a loosely defined grouping of Lesbians, Gay, Bi-sexual, Transgender, queer questioning, intersex, asexual and much more. This community is arguably not one group, but rather it is made up of several distinct division of different group of peoples.

History of LGBTQIA + Community.

LGBTQ history dates back to the first recorded instances of same-sex love and sexuality of ancient civilizations, involving the history of the people of these community around the world.

Among the historical figures found, some of them were recorded as having relations with others of their own sex – exclusively or together with opposite sex relations. While others were recorded as only having relations with the opposite sex. However, we can see the instances of same sex love in almost all the ancient historical civilizations, but we have also recorded instances of people who are of third gender or what we now call it as intersex have also been recorded in almost all cultures across the human history.

Prior to the late of nineteenth century the concept of having a distinct sexual identity did not exist but still the people past lived used to live lives similar to that of ours with modern understanding.

History of LGBTQIA + Community in INDIA.

India is a South Asian country with a very long history and lot of different peoples came here from all around the world and stayed and the Britishers were the last to leave. They stayed here for around 200 years and in which they criminalized the sexual activities “against the order of nature” including homosexual activities u/s. 377 of the Indian Penal Code (Unnatural offences).

Many people believe that homosexuality is a western import but its not because throughout Hindu and Vedic texts there are several instances of saints, demigods, and even the Supreme lord transcending gender norms and manifesting multiple combination of sex and gender. There are several stories of depicting love between same sexes especially among kings and queens. Kamasutra an ancient Indian Sanskrit text also talks about the love amongst the same sexes and it also talks about sexuality, eroticism and emotional fulfilment in life. In the temple like Khajuraho there are several sculptures of the act of same-sex. Several noblemen and emperors of Mughal empire or other Muslims who ruled over South Asia are known to have had inclinations towards homosexuality.

In 1977 Shakuntala Devi, mathematician extraordinaire, published the first study of homosexuality in India called “The World of Homosexuals”.

When we discuss about the rights of a people from LGBTQ + community in India, the Supreme Court of India in the case of Navtej Johar as well as NALSA declared that the people from this community have a constitutional right to equal citizenship in all its manifestations.

The Hon’ble Supreme Court in the Decision of National Legal Services Authority v/s. Union of India directed the Centre as well as the State government to grant legal recognition of the gender identity whether it be male, female or third gender:

“Legal Recognition for Third Gender: In recognizing the third gender category, the court recognizes that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non – recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc. is discriminatory to the transgender”

As per the analysis of the report of Vidhi Legal Policy by news 18 it analysis and given the 4 main battles which are in front of the LGBTQIA + Community to stand equally next to Male and Female.

  1. Right to Marry: Matrimony laws aren’t blanket because these are necessary in the legislation that is specific to certain religions, including the Hindu Code Bill. There are certain specific cases like the recent one in which the Hon’ble Madras High Court upheld the marriage between a man and a trans-woman. This is said to be the first time that Article 21 of the Constitution (Right to Life and Personal Liberty) was affirmed this case.The Hon’ble Justice Mr. G. R. Swaminathan in his judgment dated 22.04.2019 in Arunkumar vs The Inspector General of Registration stated that “Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.

  2. Right to Adopt: under the country’s family laws, the right to adoption is closed off to same-sex couples. Let’s discuss it with the recent case of Nikesh Usha Pushkaran and Sonu MS, they are the first openly married GAY couple in Kerala, their life has been bitter-sweet given that they still can’t adopt.

  3. Right to Surrogacy: this right also cannot be used by the people of this community, and if the new bill for surrogacy passes the exclusion of LGBTQIA community will further be more cemented and this bill has already been passed by the Lok Sabha and is awaiting to be passed in the Rajya Sabha.

  4. Right to Employment: the report by Vidhi Centre for Legal policy fails to highlight the workplace discrimination laws and maternity benefits laws to account for LGBTQIA + persons.

The Hon’ble Supreme Court in the month of August, 2019 dismissed a review petition which was seeking for various civil rights, including: marriage adoption and surrogacy.

End Notes:

  1. Queering the Law: Making Indian Laws LGBT+ Inclusive – Vidhi Legal Policy (Authors: Akshat Agarwal, Diksha Sanyal and Namrata Mukherjee)

  2. Analysis of the report of queering the Law: Making Indian Laws LGBT+ Inclusive – Vidhi Legal Policy –

  3. Navtej Singh Johar v/s. Union of India (2018) 1 SCC 791

  4. National Legal Services Authority v/s. Union of India (2014) 5 SCC 438

  5. Arunkumar v/s. The Inspector General of Registration AIR 2019 Mad 265

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