People’s gender identity and sexual orientation are innate parts of their life. Mostly gender—often confused with sex—is assigned at birth itself, and it is expected from a person to behave in a certain way. But a large number of people find it very difficult to identify with their sex, or their ‘gender identity or gender expression differs from the sex they were identified at birth.’ In some cases, they find themselves so out of place that they take measures like sex reassignment surgeries to feel like themselves.
Similarly, sexual orientation is also something that is forced upon a person with time through socialization. For example, suppose a person is a male, they are expected to have a sexual orientation towards females only, and vis-a-vis—other kinds of relationships are either looked down upon or straight up dismissed.
For a long time, the LGBTQ community has faced extreme discrimination, violence, hate crimes, and criminal injustices and is struggling to find acceptance from their parents and society and is fighting for their right to live with dignity.
ABOUT THE LGBTQ COMMUNITY
LGBTQ, an acronym for Lesbian, Gay, Bisexual, Transgender, and Queer/ Questioning, refers to a person’s sexual orientation or gender identity. That said, the community is not just restricted to these five identities— it includes anyone who is non-heterosexual or non-cisgender. In earlier times, the term ‘homosexual’ was widely used to refer to people belonging to this community. But at present, the term is rarely used due to the negative connotation it now carries, especially in the West. Thus, ‘gay’ started becoming a more popular term in the 1970s. Since 1988, activists have started using the term LGBTQ in the United States to include other identities as well.
Even though the term LGBTQ is widely used and is mostly regarded as the ‘positive symbol of inclusion,’ there is no universally accepted acronym for the community. Some are of the opinion that putting gender and sexual identities under the same umbrella cannot represent them properly.
Yes, there is no doubt that these identities might intersect, and they do follow common goals like having equal rights without discrimination, the right to live with dignity, acquiring more recognition and acceptance as a separate identity, etc. But LGB issues are more concerned with matters of sexual orientation or attraction, while transgenders, transsexuals, etc., have more to do with a personal inclination towards identifying themselves as a man or a woman, etc.— thus making their goals slightly different from one another.
Where one group might want to focus on rights for same-sex marriage, more sensitivity towards sexual orientation and sex education, the other group’s demands are more centered around the ease in sex-change operations or legal recognition as a separate gender, etc.
THE ABROGATION OF ARTICLE 377 AND WHAT IT MEANS FOR THE LGBTQ COMMUNITY
On September 6th, 2018, India’s Supreme Court passed a historical verdict, i.e., abrogation of Article 377. Article 377, a part of the Indian Penal Code, was put into force in 1862, which used to criminalize unnatural sex, including consensual gay sex.
‘Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be penalized with life imprisonment, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.’
A five-judge Constitutional bench headed by Chief Justice Dipak Misra unanimously decriminalized a part of Section 377, saying it was ‘irrational, indefensible and manifestly arbitrary.’ They also stated that the LGBTQ community does possess the same constitutional rights as other citizens of the country.
This decision was the first step towards accepting the community as equal citizens of the country, and many people even said that this decision gave them the courage to openly come out of the closet and reveal their identity to their families and the world. But for others, the euphoria of this landmark decision quickly wore off as they realized that social structures are still as regressive as they were before, and there is very little change at the ground level.
THE STATUS OF LGBTQ MARRIAGE IN INDIA
‘There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we refer to a union, we do not mean the union of marriage, though marriage is a union. As a concept, the union also means companionship in every sense of the word, be it physical, mental, sexual, or emotional. The LGBTQ community is seeking the realization of its basic right to companionship, so long as such companionship is consensual, free from the vice of deceit, force, coercion, and does not result in violation of the fundamental rights of others.’
These are the lines spoken by Chief Justice Dipak Misra along with Justice Khanwilkar after Article 377 was abrogated. However, one interesting thing about the quote is that it reveals two things— one that decriminalization of Article 377 does not automatically confirm marriage rights for same-sex marriage, and second, it contradicts its own statement as he says Article 21 does not give rights to gay marriage but just a union. But if marriage is also a part of the union, how can the LGBTQ community’s right to marriage be excluded from Article 21? Can we not call it a violation of the right to life and personal liberty of a citizen?
Despite such a historical judgment, same-sex couples still seek legal status for their relationship, thus denying them certain rights like transferring property rights, making medical decisions for their partner, insurance claims and tax benefits, decisions of adopting or opting for surrogacy, opening a joint account, etc., that heterosexual couples take for granted. India is still largely skeptical about same-sex relationships or any other relationship that is not heterosexual, making it difficult for the community to change their perception and be more understanding towards the community. They are still seeking acceptance from their own families and their own nation.
According to a survey by Mood of the Nation in 2019, 62% of Indians said that they do not believe in same-sex marriage. Only one in four people in the nation accept same-sex marriage in India.
Even though petitioners like Kavita Arora and Ankita Khanna have sent their petition to the Delhi High Court along with two more petitions demanding their constitutional right to marry, it will be a long journey. There is already a lot of opposition from certain religious groups and The Rashtriya Swayamsevak Sangh (RSS). The BJP’s Hindu-nationalist parent organization has also openly said that they do not believe in same-sex marriages.
The BJP has been largely silent on this issue. It is not a part of their agenda, but there has been an instance when the Solicitor-General of the Government has said, ‘our values do not recognize marriage, which is a sacrament, between same-sex couples.‘ But the community is still optimistic, especially after the abrogation of Article 377 that gave them new hope that society is changing and can become more progressive and more accepting towards this community.
Many people are of an opinion, including people belonging to the LGBTQ community, that India cannot be ready for LGBTQ marriage until the people of the nation are sensitized properly towards the community and discrimination is reduced.
Thus, making changes at the ground level should be a priority. But that is a mammoth task as it is difficult to change the beliefs of people that have been reinforced and cemented from time immemorial. Yes, we need to work on that too, but waiting for the acceptance of society will only delay the process of marriage equality. Popular opinions do not dictate constitutional rights, and The Government and the Law should promote inclusion and focus on giving equal rights to all its citizens.
Written by: Aashna