LGBTQ Community

The terms lesbian, gay, bisexual, and transgender (LGBT) represent multiple identities based on gender and sexual orientation of people. Presently, transgender people are legally recognized as the third gender apart from male and female, after the NLSA Judgment, 2014 and the Transgender Rights Act, 2019. Homosexuality (i.e. sexual attraction towards a person of the same gender) has been decriminalized under the Navtej Johar case. However, same-sex marriage is not legally valid in the country as per Supreme Court’s judgment in Supriyo Case. There is need to curb discrimination against LGBT people so that their rights are realised and violence against them eliminated.

For a long time the LGBT community has lived on the fringe of Indian society as they are gender minorities. LGBT individuals were labelled as criminals by the British colonial laws and it took a long time for them to gain acceptable legal recognition. They have faced several issues of discrimination, historically, like exclusion from their families, absence of dignified livelihoods, and inadequate access to health, shelter, welfare, and employment.

The terms lesbian, gay, bisexual, and transgender (LGBT) represent multiple identities based on gender and sexual orientation of people. They go against the traditional “norm” of heteronormativity in the society. Heteronormativity means that romantic relationships can exist between opposite sexes only i.e., man and woman. However, rights of LGBT people are beginning to be recognised and legalised around the world and in India.

All citizens of India are entitled to the rights enshrined in our Constitution.

• Article 14, Article 15 and Article 16 prohibits discrimination on grounds of sex. Supreme Court has interpreted this to include ‘sexual orientation’ also. Hence LGBT people cannot be discriminated against just because of their sexual orientation.
• Article 21 provides rights to life, dignity and privacy for all. Supreme Court has said this includes right to choose one’s gender and practice one’s sexual orientation.

Globally, LGBT people have been persecuted however their Human Rights are being recognised in various international legal instruments.

• International Covenant on Civil and Political Rights, 1966 (ICCPR): Recognizes the right to life and liberty which includes protection against violence and discrimination based on sexual orientation and gender identity.
• The United Nations in 2011 passed a resolution stating that any discrimination against the LGBT community is a violation of human rights.
• The Declaration of Montreal on Lesbian, Gay, Bisexual, and Transgender Human Rights (2006): Encourages governments to take action to prevent and combat discrimination based on sexual orientation and gender identity.
• Yogyakarta Principles (2006): Offers guidance to states on how to protect the rights of LGBT individuals, covering a range of areas such as non-discrimination, right to life, right to work, and right to health. These have been read into the Fundamental Rights by Supreme Court in NLSA & Navtej Johar judgments.

• Right to vote has been recognised since 1996.
• In the 2011 census, around 4 lakh 84 thousand people recognised as ‘other’ gender.
• National Legal Services Authority (NLSA) v. Union of India (2014): is a landmark ruling by the Supreme Court where transgender persons were legally recognised as the ‘third gender’ citing the Yogyakarta Principles & Fundamental Rights. As a socially and economically suppressed class, transgenders are entitled to reservations in government jobs and education. A transperson’s fundamental right to gender change was recognised.
• The Transgender Persons (Protection of Rights) Act, 2019
  • Defines “Transgender person”: as a person whose gender identity does not match with the gender assigned to that person at birth. Includes trans-man or trans-woman, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra, aravani and jogta. A process for biological change of sex e.g. Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy is not required.
  • Bans discrimination against transgender persons.
  • Self Identification: Transgender persons can identify as such without having to undergo sex reassignment or hormone therapy.
  • Right to Residence: with family
  • National Council: to advise, monitor, and evaluate measures for the protection of Transpersons rights. Chaired by the Union Minister of Social Justice & Empowerment.
  • Welfare Measures: programmes for education, social security, and health of Transgender persons to be enacted by the Government.
  • Transgender Persons (Protection of Rights) Rules, 2020: formulated to ensure equality in education, jobs and access to public spaces for transpeople.
• SMILE (Support for Marginalised Individuals for Livelihood and Enterprise): Launched by Ministry of Social Justice & Empowerment (MSJE). It protects various marginalised groups including transpeople involved in begging. It focuses on the following goals etc. with the support of State Governments/UTs/Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs)/Institutions and others.
  • rehabilitation: through Garima Grehs/ Shelters setup,
  • medical facilities: of Rs5 lakh per year insurance under Ayushman Bharat. This covers gender transition therapy related costs also.
  • counselling: Transgender Protection Cells and Helpline Number 8882133897 run by MSJE.
  • education: scholarship from class 9 to post graduation,
  • skill development: through PM DAKSH scheme. Pradhan Mantri - Dakshta Aur Kushalta Sampann Hitgrahi is run by MSJE provides skill traning under SMILE to become employable. There is also a placement cell to secure jobs. Further sensitization programmes and follow ups are done with employer.
  • economic linkages: by providing Direct Benefit Transfer (DBT) from National Backward Class Finance and Development Corporation (NBCFDC). National Social Assistance Programme(NSAP), a Centrally Sponsored Scheme that provides financial assistance provides monthly pension to around 3800 transpeople. Since 2020, all examinations by Central government include ‘transgender’ as a separate category.
• National Portal for Transgender Persons: to facilitate recieving ID card and change first name. This ID card is essential to access welfare benefits.
• National Education Policy of India 2020:
  • Trans-children identified as Socio-Economically Disadvantaged Groups: Special measures for assisting transgender children in gaining access to education, and support for community-based interventions that address local context-specific barriers
  • Gender-Inclusion Fund: setup to facilitate equitable education for girls and transpersons.
• Skill India Mission: By Ministry of Skill Development and Entrepreneurship (MSDE) for all youth, including transpeople.
• Transgender Marriages Valid: Supreme Court in Supriyo Case (2023) held that marriages beterrn between a trans man/ man and a trans woman/ woman are valid under existing religious marriage laws.

• K.S. Puttaswamy v Union of India (2017): Right to privacy was recognised under Article 21. Rights of sexual minorities were held to be an inherent fundamental right. Every person, it was held, has the right to their sexual orientation as an essential part of their right to privacy.
• Navtej Singh Johar v. Union of India (2018): Supreme Court overturned a colonial, 19th century law Section 377 of the Indian Penal Code (IPC) and decriminalized homosexuality. It overruled the Supreme Court’s 2013 judgment in Suresh Kumar Koushal vs Naz Foundation case.
• Supriyo v. Union of India (2023): Supreme Court refused to recognise a fundamental right to marriage for Same-Sex couples. It was held that only the Parliament can bring out comprehensive legislation for same-sex marriage. Directions were given to state to make efforts to end discrimination on the basis of sexual orientation.

Lack of representation, discrimination in job market, homelessness, mental health challenges due to marginalisation, and continued stigma in society are various challenges which the LGBT community continues to face. There is need to employ legislative, policy and awareness measures to comprehensively end this violation of human rights being experienced by LGBT community. The movement for inclusion and acceptance of transgender persons has received a strong backing in India with SMILE, PM DAKSH, Transgender Rights Act 2019 etc. Similarly, there is a need to recognise the right to marriage for same sex couples.

Further, it is the responsibility of each individual at all micro and macro levels to create a ‘gender inclusive’ environment around them at their households, workplaces and other institutions. It aligns with their fundamental duty under Article 51A of the Constitution to foster the spirit of brotherhood. With more awareness, empathy and a welcoming attitude we can pave the way for a country, in rainbow colours, where we respect, support, and celebrate the engagement, expression, and well-being of all members of the LGBTQIA+ community.