LGBTQ rights are a very burning issue in recent times. LGBTQ is an acronym used for lesbian, gay, bisexual, transgender, and questioning, or queer. Those terms were actually used to describe a person's gender identity or sexual orientation. Rights of these people vary greatly from place to place, country to country, etc. regarding same-sex marriage, homosexuality etc.
"Transgender" is an umbrella term which describes those classes of people whose gender identity or expression does not match the sex which they were assigned at birth. As for example, persons who have this type of tendency may identify as a man despite having been born with female genitalia.
The Constitution of India contains various provisions, which deals with the rights of human beings, irrespective of their gender.
(i) The preamble to the Constitution mandates social, political, and economic equality of status of all its citizens.
(ii) As per Article 14 i.e. the rights to equality, any person's equality before the law or the equal protection of the laws cannot be denied by the state within Indian Territory.
(iii) As per Article 15 of the Constitution of India, only on the grounds of race, sex, religion, caste or place of birth no discrimination can be done.
(iv) According to Article 21, all the persons must have the right to privacy and personal dignity must be ensured to them.
(v) Trafficking in human beings as beggars and other similar forms of forced labour is prohibited under article 23 of the Indian Constitution and contravention of these provisions shall be an offence punishable in accordance with the law.
ISSUES WITH TRANSGENDER:
A. LAWS RELATING TO TRANSGENDER-
It is a very recent issue which is favoured by a bill, passed very recently. The Union Cabinet has approved the proposal to introduce The Transgender Persons (Protection of Rights) Bill, 2019 to secure equal rights to the transgender persons and protection under law through a voice vote.
IMPORTANT POINTS OF THIS BILL:
Definition of Transgender-
The definition of "transgender persons" in the Bill is at conflict with the definitions recognized by experts in India and by international bodies.
The Apex Court of India held that the right to self- identification of gender is the part of the right to identity, and the autonomy under Article 32 of the Indian Constitution. The objective criteria must be required to determine any person's gender to be eligible for entitlements.
Recognition of Transgender persons-
The Transgender Persons (Protection of Rights) Bill, 2019, states that a person recognized as 'transgender' would have the right to self- perceived, gender identity. Though, it does provide for the enforcement of such s right. A certificate of identity to recognize the transgender persons will be issued by the District Screening Committee.
Laws which are unclear-
The Transgender Persons (Protection of Rights) Bill includes some terms like the 'trans-women', 'trans-men', persons with 'gender-queers' and 'intersex variations' in the definition of transgender persons. Though, those terms were not clearly defined in the Bill, itself.
Certain personal and criminal laws that are currently in force only recognize the genders of 'man' and 'woman'. So, it is unclear how such laws would apply to transgender persons who cannot be identified with either of the two genders.
However, this Bill places an important role. It provides a mechanism for social, educational, and economical welfare. The Bill will benefit numerous persons who belong to the transgender category and to mitigate the stigma and discrimination and abuse against the marginalized section[i] and bring them into the mainstream of the society, and this will lead to the inclusiveness of transgender persons as the productive members of the society.
B. RIGHTS OF GAYS:
The Apex Court of India has announced its much-awaited verdict on a clutch of petitions challenges the Constitutional validity of section 377 of Indian Penal Code, 1860 which criminalizes consensual gay sex.
Section 377 and child abuse:
The Child rights activists had criticizedthe Delhi HC verdict of decriminalizing homosexuality on the grounds that Section 377 was needed to tackle cases of child abuse[ii]. To tackle the cases of child abuse Section 377 was needed. However, The Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted and it removed the need to use Section 377 as POCSO is child- friendly, and much more stringent.
Criminalization of Gay Laws:
Section 377, a part of Indian Penal Code, was modelled on the 16th century, English Law, criminalizes "carnal intercourse against the order of nature with any man, woman or animal."
Criminalizing Consensual Gay Sex:
The scope of the present litigation had re-affirmed by the Apex court of India and it was only limited to the Constitutional validity of Section 377 with regard to recognizing homosexuality as a crime[iii]. It also said that due to Section 377, members of the LGBT community were forced to live in hiding, and as second- class citizens, while others enjoyed the right to sexual orientation.
Everyone should mind it that any person's sexual orientation is a natural, and discrimination based on sexual orientation is a violation of the freedom of expression. Our society must transform progressively and it also should be the primary objective of every Constitutional society and that Constitutional provisions should not be interpreted in a literal sense.
S. K. ACHARYA INSTITUTE OF LAW
[i]RupaliPruthi, Union Cabinet approves Transgender Persons (Protection of Rights) Bill, 2016, Jagran Josh, (Jul 21, 2016, 16:06 IST), https://www.jagranjosh.com/current-affairs/union-cabinet-approves-transgender-persons-protection-of-rights-bill-2016-1469093319-1.
[ii]ET Online, Section 377: Here is everyone you need to know, The Economic Times, (Sep 07, 2018, 10:35 AM IST)(https://economictimes.indiatimes.com/news/politics-and-nation/sc-delivers-historic-verdict-heres-everything-you-need-to-know-about-section-377/articleshow/65698429.cms)
[iii]Aditi Singh, Govt leaves decision on Section 377 to the wisdom of Supreme Court, livemint, (Jul 11, 2018, 08:42 PM IST), https://www.livemint.com/Politics/fMReaXRcldOWyY20ELJ0GK/Centre-leaves-it-to-Supreme-Court-to-decides-on-Section-377.html