Marginalisation of Sexual Minorities

29 Jun Marginalisation of Sexual Minorities

(GS PAPER-1, FEATURES OF INDIAN SOCIETY

SOURCE- THE HINDU)

Context-

• During the 1970s homosexuality was served as a mental disorder. But, after the 1970s, with the efforts of some activists like Dr. Frank Kameny, the global LGBTQ community stride ahead for their rights and equal status.
• However, in India, the homophile community is still a denounced and invisible minority.
• Further, whatever gains that the queer community won have been provided by the judiciary; not by legislatures of our country.
• Despite judicial verdicts, India’s sexual minorities face biases in employment, mental, health issues, and personal rights.
• This makes it incompatible with the country’s living, liberal and inclusive Constitution.

Role of Judiciary in Welfare of LGBTQ+:

In the tussle between the demands of the folkloric conception of society and the rights of individuals to their identity and dignity, the higher judiciary has come down rigidly in favor of individuals. This can be understood in the following examples:

• Naz Foundation vs Government of NCT of Delhi Case 2009: The Delhi High Court’s verdict held that section 377 of the Indian Penal code outraged the guarantee of equality enshrined in Article 14 of the Constitution because it fabricates an unreasonable classification and points homosexuals as a class.
• National Legal Services Authority v. Union of India Case 2014: In the present case, the Supreme Court of India declared transgender people to be a ‘third gender’.
• Navtej Singh Johar & Ors. vs Union of India Case 2018: The Supreme Court of India’s ruling in this case clench that, the criminalization of consensual homosexual behavior between adults (under Section 377 of the IPC), was “unconstitutional, irrational, indefensible and manifestly arbitrary towards them”. This judgment has felicitated a launchpad for the LGBTQ+ jurisprudence and queer liberation movement in India.

Discrimination Faced By LGBTQ+

• Full Equality is Still a Pie in the Sky: Despite many judgments of the higher judiciary, the queer community in India still faces various discrimination in matters of employment, health, and personal relationship.
• Legal Sanction Opposed: The Union of India has recently opposed any move to favor legal sanction to same-sex marriages in India.
  The government ruled that the decriminalization of Section 377 of the Indian Penal Code does not automatically result in a fundamental right for same-sex couples to marry.
• Heteronormativity: Heteronormativity is the prime cause of hetero-sexism and homophobia.
  Heteronormativity is the thought and belief that heterosexuality is the default, preferred, or normal mode of sexual orientation. It assumes the gender binary and that sexual and marital relations are most felicitous between people of the opposite sex.
• Issues With the Transgender Act: Parliament has passed the Transgender Persons (Protection of Rights) Act 2019which had been framed for the welfare of transgender persons. However, the LGBTQ+ community protested against the act on account of issues like the
• a one-size-fits-all approach, absence of reservation, etc.

Way Forward:

Marriage, A Human Right:

• Justice Anthony Kennedy of the U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage.
• He asserted that the universal human right of marriage should not be denied to a same-sex couple.
• As of 2021, same-sex marriage is legally performed and recognized in 29 countries.
• Thus, Indian society and the state should synchronize themselves with changing trends.

Amending Article 15:

• Article 15 is the cornerstone of the concept that equality is the antithesis of discrimination.
• It 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.
• In order to prevent discrimination against sexual minorities, the grounds of non-discrimination should be expanded by including gender and sexual orientation.

Inducing Behavioural Change:

• Justice Rohinton F. Nariman had directed in Navtej Singh Johar case, the Government to sensitize the general public and officials, including police officials, to reduce and finally eliminate the stigma associated with the LGBTQ+ community through the mass media and the official channel.
• School and university students too should be sensitized about the diversity of sexuality to deconstruct the myth of heteronormativity.

Conclusion

• The Constitution was conceived by India’s founding fathers as a beacon of fundamental rights.
• However, LGBTQ+ is still one of the most marginalized segments of the citizenry.
• Therefore, it is time for a 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.
  

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