“To deny people their human rights, is to challenge their very humanity.” – Nelson Mandela
The first Article of the Universal Declaration of Human Rights, 1948 — All human beings are born free and equal in dignity and rights — unequivocally embraces every individual and entitles them, uncompromisingly, to equality, liberty, and dignity. Article 21 of the Indian Constitution aptly recognizes dignity as a crucial element of the right to life. In Maneka Gandhi v. Union of India and another, Justice Krishna Iyer, observed that life is a terrestrial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically.
Even though the landmark judgment of Navtej Singh Johar v. Union of India (2018), decriminalized homosexuality, the struggle for a life of equality and dignity persists for the LGTQIA+ community. Since, the Indian constitution is an organic and living document, that accommodates and addresses the realities and needs of modern life with changing times, by way of progressive interpretation, there is a strong hope that the concept of inclusiveness can be further expanded and the numerous impediments in way of a life of equality and dignity for LGBTQIA+ can be eradicated through judicial intervention and political will.
This article delves into the systemic hurdles that the queer community has to struggle with, due to which the right to a dignified life is still a far-fetched dream for them.
1. Prohibiting Conversion Therapy:
Conversion Therapy is a barbaric practice. It includes a range of dangerous and discredited practices that falsely claim to change a person’s sexual orientation or gender expression. The various methods that are part of this barbaric practice are correctional rape, lobotomy, exorcisms, counselling, electro-convulsion, aversive stimulation, forceful starving, shock therapy, marriage therapy, and religious counselling, etc. Unfortunately, often it is close family members such as parents of sexual minorities that coerce their children to identify themselves with heterosexual societal norms. The National Medical Commission has directed all State Medical Councils to ban conversion therapy under Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. But the Indian law nowhere explicitly mentions prohibition or restriction on conversion therapy.
It is high time that a stringent law is enacted to not just ban the conversion therapy but penalise those who indulge in this abhorrent practice. Strict laws often act as deterrent and harbingers of positive change. When society fails to evolve in order to accommodate new needs and bring in required change, stringent pieces of legislation prove to be highly effective in initiating and operationalizing much-needed social change. It would even initiate the sensitisation and awareness of masses on a war footing. A law that would clearly and strictly place a ban on conversion therapy, would be the harbinger of social change and give a scope for queer folks to penalise those who hinder the exercise of their personal agency. A stringent piece of legislation, criminalising the practice of conversion therapy should contain the provision that licence to practice be withdrawn from the medical professionals found engaging in conversion therapy. Exorbitant penalties should be levied on those pressurising people into conversion therapy, along with charging them with sentences. Currently, Tamil Nadu is the only state in India to ban the inhumane practice of conversion therapy.
2. Need to Legally Recognise Same Sex Marriages
The ability to contract marriage is a right which is legally available to only heterosexual couples in India. In the case, Lata Singh v. State of UP, the Supreme Court explicitly recognised the petitioner’s right to choose a partner of choice. Probably because in the context of this verdict was a heterosexual couple, this right to marry whoever one wants, has not yet been extended to LGBTQIA+ folks. Though there is no law that bars marriage of LGBTQIA+ people, there is none that provides it legal sanction either. And the reason absence of a legal recognition for marriage of queer folks is problematic, is that it invalidates their civil union. It prohibits them to reap benefits of inheritance and laws ensuring protection against abuse or violence in a marriage. Not just that, but simpler things like having the name of one’s spouse on their passports, having the option to buy insurance for one’s partner, even hospital visitation rights (marriage considers you as part of the immediate family of the person), etc. are unavailable to LGBTQIA+ couples. In a scenario where a numerous LGBTQIA+ people are abandoned by their families, the right to marry is a boon as it allows them to form a family of their choice. It is principally unsound to restrict LGBTQIA+ couples from legally getting married simply because of their sexual orientation or gender identity, when every other heterosexual citizen enjoys this right. By ensuring LGBT community the right to marry and choose one’s partner, their basic right to companionship would be realised and their family units would be validated. In addition to that, LGBT couples would not have to think of a life outside India, if they wanted to get married.
3. Right to Adopt and Procreate via ARTs
Section 112 of the Indian Evidence Act, 1872 governs the legitimacy of a child in India and demands that the birth of a child be from lawful wedlock. This archaic pre-colonial law is from an epoch where reproductive technologies did not exist, and thus is redundant today. Artificial Reproductive Technologies (ARTs), especially the surrogacy has enabled same-sex couples to experience parenthood. Under the existing judicial framework, right to adopt and right to procreate via surrogacy is inaccessible to LGBTQIA+ couples, in India. There is no mention of same-sex couples and transgender individuals in Central Adoption Resource Authority guidelines.
4. Usage of Gender-Neutral Lexicon in Laws
Using gender-neutral terminology in laws is the first step towards becoming more sensitive to the needs of gender and sexual minorities. Gender-neutral language averts bias towards a specific gender or sex and makes the space gender-inclusive. Majority of laws in India encompass males and females, and fail to incorporate transgender in those laws. However, rape and harassment laws are female centric. For example, current law on sexual harassment happens to be insensitive to LGBT community. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 overlooks the fact that a victim of sexual harassment can be anyone, irrespective of gender. Hence, there is a dire need to make the laws against harassment gender-neutral. This will open a channel for LGBTQIA+ folks and even men, to receive justice and redressal, ultimately empowering them, in case of any untoward incident. This will also make the workplaces safe, inclusive, and diverse. Implementation of gender-neutral lexicon will increase the coverage for similar crimes.
A Step Towards Operationalizing Rights for LGBTQIA+
Expression and exercise of one’s choice, apart from being a component of liberty, is also an essential facet of dignity. Non-acceptance of rights of LGBTQIA+ to marry and adopt, amounts to denial of human rights. Human dignity is harmed when individuals are ignored or devalued, and it is enhanced when laws recognise the optimum place of all individuals. Banning conversion therapy, giving legal recognition to LGBTQIA+ marriages, modifying policies and laws to enable adoption by LGBTQIA+ couples and adopting gender-neutral language in legislations, is a step toward enhancing the dignity of gender and sexual minorities. Not just this, but it is a step towards making them part of the mainstream, reducing stigma, promoting social acceptance, and accepting diversity. Much has been talked about the need for recognizing LGBTQIA+ rights, now it is high time to work towards them without an unwarranted fight. In addition to this, there is a need for multi-faceted approach, wherein social sensitization will be central to and form the foundation of reform measures, to tackle the prevalent prejudice and discrimination against LGBTQIA+ community.