Lesbian, gay, bisexual and transgender queer (LGBTQ) people in India face legal and social difficulties not experienced by non-LGBT persons. Sexual activity between people of the same gender is illegal, and same-sex couples cannot legally marry or obtain a civil partnership. India does, however, legally recognize Hijras as a third gender, separate from men or women.
Homosexual intercourse was made a criminal offense under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.
Same-sex marriages are not legally recognized in India, nor are same-sex couples offered more limited rights such as a civil union or a domestic partnership. In India one group of transgender people are called Hijras. They were legally granted voting rights as a third sex in 1994. Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS. On 15 April 2014, Supreme Court of India declared transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them.
On 24 April 2015, the RajyaSabha passed the Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people. It also contains provisions to prohibit discrimination in employment, prevent abuse, violence and exploitation of transgender people.
The rule of law is supreme and everyone is equal in the eyes of law in India. Yet, the transgender community is in a constant battle as they have to fight oppression, abuse and discrimination from every part of the society, whether it’s their own family and friends or society at large. The life of transgender people is a daily battle as there is no acceptance anywhere and they are ostracized from the society and also ridiculed.
However, the Supreme Court of India in its pioneering judgment by the division bench of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v. Union of India &Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)] recognized the third gender along with the male and female. By recognizing diverse gender identities, the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is recognized by the society.“Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing down the ruling.
The right of equality before law and equal protection of law is guaranteed under Article 14 and 21 of the Constitution. The right to choose one’s gender identity is an essential part to lead a life with dignity which again falls under the ambit of Article 21. Determining the right to personal freedom and self determination, the Court observed that “the gender to which a person belongs is to be determined by the person concerned.” The Court has given the people of India the right to gender identity.
Further, they cannot be discriminated against on the ground of gender as it is violatesArticles 14, 15, 16 and 21.
The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held that “no restriction can be placed on one’s personal appearance or choice of dressing subject to the restrictions contained in article 19(2) of the Constitution”.
The Court recognized the right to as to how a person choose to behave in private, personhood and the free thought process of the human being, which are necessary for the fullest development of the personality of the individual. The Court further noted that a person will not realize his dignity if he is forced to mature in a gender to which he does not belong to or he cannot relate to which will again hinder in his development.
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