SEXUAL ORIENTATION AND LGBTQ RIGHTS

Updated: Aug 15, 2020

By:- Nishant Jain (Author)

BA.LLB, Prestige Institute of Management and Research, Department of Law, Indore.

Ayush Gupta (Co-Author)

BBA.LLB, Prestige Institute of Management and Research, Department of Law, Indore.


Introduction


Some people around us face violence and inequality and sometimes it amounts to torture and execution. This is because of the way they love, how they look, and who they are. This arises due to their sexual orientation.

Sexual orientation is considered as an integral aspects of ones life. It refers to a persons physical, emotional attractions towards the other person. Every person on this planet has their on sexual orientation, which is considered as a natural identity of a person. It exists in a long sequence of exclusive homosexuality to exclusive heterosexuality and it also includes various forms of bisexuality. Homosexual are those persons who like same gender people. Example:- a male having feelings towards a male and similarly a female having feelings for female. Whereas heterosexuals are those persons who like opposite genders. Example:- male having feelings for a female and vice-versa. And similar to this there are Bisexual people’s also, these are those who have feelings for both the genders that is male as well as female.

Sexual orientation is different from sexual behaviour, it refers to ones feelings and self concept. Many a times it happens that person may or may not express his or her sexual orientation in his or her behaviour. Homosexuals do not like to be called as homosexuals due its negative connotations which have been used in the past.

Sexual orientation is considered a recent notion in human rights law and little in politics. Prejudices, negative stereotypes, old thoughts and discrimination are deeply imbedded in our value system and patterns of behaviour.

In today’s era people are still homophobic and trans-phobic. Homophobic are the those people who are afraid of homosexuals. Homophobia is termed as an irrational fear or hatred or aversion towards lesbian, gay and bisexual people. Similarly, trans-phobics are those person who are afraid of transgenders. Transphobia is also an irrational fear or hatred or aversion towards transgender people. The term homophobia is widely used and understood in all compassing way to refer to fear, hatred and aversion towards the LGBTQ people in general. But still there are many public officials and opinion makers deals with the expression of homophobic prejudice remains both legitimate and respectable in a manner that would be unacceptable by the world for any other minority class.

There are many terms that are being used for understanding various concepts under sexual orientation like gender identity which reflects deeply felt and experienced sense of one’s own gender. A person’s gender identity is typically consistent with the sex assigned to them at birth. Whereas for transgender people, there is an inconsistency between their sense of their own gender and the sex they were assigned at birth. In some cases, their appearance and mannerisms and other outwards characteristics may conflict with society’s expectations of gender-normative behaviour. LGBT it stands for Lesbian, Gay, Bisexual and transgender. These terms are defined differently in different different areas around the world. According to human rights context Lesbian, gay, bisexual and transgender people sometimes face both common and distinct challenges. Along with LGBT people intersex people also face same challenges according to the human rights context. Intersex people belong to those category to people who are born with different sexual anatomy, reproductive organs, and there chromosomes pattern do not come under both the sexes neither male nor female. This may be apparent at the time of birth or become so later in life. Its status is not related sexual orientation or gender identity, intersex people face the same range sexual orientations and gender identities as a non- intersex people face. Transgender also termed as trans is an umbrella term under which wide range of identities are described. It includes transsexuals, cross-dressers, people who identify as third gender and others also whose characteristics are difficult for identifying their gender. Further transgender is divided as trans-man and trans-women, latter are those people who were identified as man but classified as women during birth. Whereas, former are those person who were identified as female but classified as man during birth.


Rights at Glance:


In past Lesbians, gays and bisexuals do not claim any special or additional rights. They were denied either by law or practices - basic civil, political, social and economic rights. Following are the violations have been documented in all parts of the world like some special criminal provisions or practices on the basis of sexual orientation, in many countries lesbians, gays and bisexuals are denied equality in rights and before the law. Often laws were maintain a higher age of consent for same sex relations in comparison with opposite sex relations. The right to non-discrimination and to be free from violence and harassment were usually denied by omitting sexual orientation in anti-discrimination laws, constitutional provisions or their enforcement. Even the right to life was violated in some states where the death penalty were applicable for sodomy, the right to be free from torture or cruel, inhuman or degrading treatment is infringed upon by police practices, in investigations or in the case of lesbians, gays and bisexuals in detention. The right to a fair trial were often affected by the prejudices of judges and other law enforcement officials. There were arbitrary arrest occurred in a number of countries with individuals suspected of having a homo/bisexual identity. The freedom of movement were denied to bi-national couples by not recognizing their same sex relation. Under sodomy laws right to privacy was also denied which was applicable to lesbians, gays, bisexuals even if they have consented sex in private they were punished. Due to the homophobic climate in which the people of LGBT used to live in that area they were even denied their rights of free expression and association. Lesbians, gays and bisexuals were even denied to follow their right to religion, specially in the cases of churches which used to advocate against these people. Due to their sexual orientation lesbians, gays, bisexuals were even fired from their jobs which resulted in the violation of their economic right. They were being discriminated in employment policies and practices. In some cases due to their sexual orientation their standard of living was even affected. Their right to social security and assistance were fully neglected. Due to discriminatory policies and practices their right to physical and mental health. With lack of training of health care to the physicians they denied to treat homosexuals they were under homophobia. Governments of some countries even denied to give them their right to family. LGBT people were also denied to adopt a child. Lesbian, gay and bisexual students may not enjoy the right to education because of an unsafe climate created by peers or educators in schools.


Other Human Rights which were violated:-


People of LGBT were physically attacked, kidnapped, murdered and some of them were even sexually assaulted. Children of these people were even bullyed in the schools and other institutions. If parents found that their child is lesbian, gay, bisexual they use to throw them out of their houses.

Transgender people were often denied of their identity papers due to which they lack in getting jobs and sometimes were not allowed to travel, they even can’t open their bank account were denied of other services as well.

Sometimes a question arises in our mind that was there any reason for criminalizing homosexuality?

The answer is no when there is a sexual relationship between the adults by their mutual consent that not amount to any crime but it results in breach of right to privacy. Laws which violate these rights were discriminatory in nature. In the world there were around 76 countries which punishes for the consensual same sex and in addition to this there are around 5 countries which passed death penalty for the same. Due to this it hampered the efforts to halt the spread of HIV by deterring LGBT people from coming forward for testing & treatment for fear of revealing the criminal activity.

Another question raised here that can sexual orientation be changed? No we cannot change any persons sexual orientation or sexual identity of any person. The only thing we can change our negative attitudes which stigmatizes the LGBT people and contribute to violence and discrimination against them. In past attempts were made to change sexual orientation but it resulted into violations of human rights and caused severe trauma. For instances, It included forced psychiatric therapies which intended to “cure” (sic) people of their same-sex attraction, as well as the so-called “corrective” rape of lesbians which perpetrated with the declared aim of “turning them straight.”

Some people was of the thought the if they are around with LGBT people it may affect them but its just a myth. If we spend time or learn about these people or spread awareness about it will never cause any harm to anyone, nor it will harm well-being of any person. Rather it is a positive step if people spend time with them and get to know about their problems and spread awareness for the same. Sex education should be ensured so that they have respectful physical relationship so that they have safe and protected sex and it prevented them to transmit sexually transmitted diseases.

When we talk about rights along with domestic human rights international human rights law applies for the same. International Human Rights Law establishes a liability upon the states, to make sure that every person of lesbian, gay, bisexual and transgender community enjoys their rights without any distinction. A persons sexual orientation and gender identity is similar to their race, caste, sex, religion, colour etc. Since, human rights are universal and granted to every human being so no matter whether they are heterosexual or homosexual all have same human rights.

In international legal position on homosexuality India took a stand in UN resolution. Different countries have different opinions on the matter on LGBT rights. Sometimes old religious thinking provoke people to commit wrong acts. In past with India 81 other countries criminalized homosexuality. From past India is holding on its sensitive issue of homosexuality and LGBT rights India.

India did not become a signatory to the resolutions which was concerned about LGBT rights only to confirm its conservatism and insensitivity against homosexuality. To this European Parliament strongly opposed the moves of criminalizing LGBT people in India, Uganda, and Nigeria in the resolution adopted on 16th January 2014.

After some years there came a ray of hope from the dark age of reason and arguments first time in the history of India Hijras got the term “Third Gender” and was got officially recognized as male and female are. This was done by Honourable Supreme Court of India in the case of National Legal Services Authority v. Union of India[1] created the “third gender” for Hijras and transgenders, due to they were now able to mention there gender easily. In addition to this the Government of India was directed by the Supreme Court to consider third gender in economically and socially backward classes. And they were not allowed to be discriminated on any basis specially on race caste religion sex and have to be awarded with equal opportunity in education, employment etc.

In the year 2016 Supreme Court decided to review the Criminalisation of homosexual activity. In continuation to this in the year 2017 Supreme Court unanimously ruled that Right to Privacy is an inherent and fundamental right under Article 21 of Constitution of India. This provided hope to all people of LGBT community and specially the activist that Supreme Court will soon decriminalize Section 377 of Indian Penal Code, 1860. Even Supreme Court held that persons sexual orientation is right to privacy. On September 6, 2018 the Supreme Court in the case of Navtej Singh Johar v. Union of India[2] unanimously read down the Section 377 and excluded the consensual sexual relationship between adults and Section 377 of Indian Penal Code 1860 still punishes for non- consensual sex.


Conclusion:-


Homosexuality is not a disease or rather we should say its not a mental disease. It is natural as heterosexual.No one has no control over homosexuality or over their sexual orientation. After being so educated situation of LGBT community is worst in India. Most of the time they are subjected to harassment, violence, and mockery. The European countries have protected the sexual rights of the members of the LGBT community. Many resolution had been passed by United Nation which have created a positive impact all over the world. Stand of India at United Nations regarding LGBT issues has been so far very disappointing as India have been stigmatizing its own image as a democratic republic by persistently opposing LGBT rights at international level. Now it becomes very important to make people aware of the presence of LGBT community and their rights. Human rights are natural rights which are indestructible and inalienable that are conferred upon man since birth. Homosexuals are neither aliens, nor they are sick, their sexual behavior is perfectly in tune with the dictate of nature. The Government of India should wipe away its conservative nature and should take more concrete steps for the welfare of these sexual minority.

[1] National Legal Services Authority v. Union of India AIR 2014 SC 1863 [2] Navtej Singh Johar v. Union of India W P (Cr.) No. 76 of 2016

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