Why LGBTQ+ Rights Matter: Understanding the Importance of Equality and Acceptance

Nirmala K,

Government law college Trichy

ABSTRACT 

The basic rule of human rights is that all individuals are made similarly. They should be treated equally. In this paper, I would like to share regarding LGBTQ+ Rights, challenges, sec.377 of IPC discriminations, and some of the major problems faced by the LGBTQ+ communities too. The law speaks about equality, even though the LGBTQ+ communities are not treated equally.  these people are affected wisely and get discriminated till. The right to privacy is a Fundamental right but LGBTQ+ people are not enjoying this right due to too much discrimination. Ergo, they experience higher rates of Mental health disorders than normal people.

KEYWORDS

LGBTQ+ Discrimination, Challenges, Stereotypes, Heterosexual.

INTRODUCTION

In recent years, the LGBTQ+ community people have made great progress forward to the legal recognition and protection of their rights. The acceptance and legalization of LGBTQ+ are increasing now widely. India, a country portrayed by its different social embroidery, defies an unsettling reality that essentially influences a significant portion of its population. The underestimated Queer local area made up of people recognized as LGBTQ+, regularly experiences vile treatment and cultural savagery. Regardless of the country's social wealth, many Queer people lead lives closed by bias and foul play. It is essential to perceive the outstanding legitimate headways made as of late. The legitimate scene of India, when tormented by obsolete and prejudicial regulations, has gone through groundbreaking changes. The LGBTQ+ also faces challenges in employment, health care, adoption, religion, family environment, parental rights, and social life.

HISTORY OF LGBTQ+

Right from ancient times to the pre-modern period to the modern period homosexuality is viewed as wicked. While homosexual intercourse was not sanctioned, indulging in it brought about little in the old times. Afterward, if the act was caught, a punishment of 100 lashes and so forth was given. The postmodern period brought an assortment of ways of thinking schools of thought, all of which considered carnal intercourse to be illegal. It has been an immense timeline ranging over almost 160-170 years with a majority of the period going in silence over the implication of Section 377 and it possibly picking a foothold when activism began along with a just tolerance coming up in society relating to a lot of sensitive topics at the time. The history of LGBTQ people in India is broad, rich, and complex. Since ancient times, Indian literature and mythology have made numerous references to same-sex love and desire, indicating that Indian society has historically had a relatively tolerant attitude towards same-sex relationships.

• However, India enacted laws and regulations from the Victorian time that made homosexuality illegal during the colonial era. In 1861, the British added Section 377 to the Indian Penal Code, making homosexual activities against the law and subject to imprisonment. Indeed even after India attained independence in 1947, this law remained in effect and was applied to discriminate against and punish LGBTQ people.

• By revoking Section 377, the Delhi High Court previously decriminalized homosexuality in 2009. However, the Indian Supreme Court reversed this decision in 2013, reinstituting the law and making same-sex relationships illegal once more.

• By completely invalidating Section 377, the Indian Supreme Court decriminalized homosexuality only last year. The LGBTQ group of people in India hailed this decision as a major accomplishment since it paved the path for increased acceptance, freedoms, and rights.

• Be that as it may, there is still far to go before the evident balance is achieved in India, where there is still bias and discrimination against the LGBTQ community. The LGBTQ community in India continues to struggle for recognition and rights despite these obstacles, and there have been many encouraging advances in recent years.

LGBTQ+ IN INDIA

• The history of LGBTQ people in India is extensive, rich, and multifaceted. Since ancient times, Indian literature and mythology have made numerous references to same-sex, demonstrating that Indian culture has historically had a relatively tolerant attitude towards same-sex relationships.

• However, India enacted laws from the Victorian era that made homosexuality illegal during the colonial era. The Indian Penal Code,1860, Section 377, makes homosexual activities which are illegal & against the law and subject to imprisonment. Even after India attained independence in 1947, this law remained in effect and was applied to discriminate against and punish LGBTQ people.

• By repealing Section 377[i],  the Delhi High Court first decriminalized homosexuality in 2009. However, the Supreme Court of India reversed the decision in 2013, reinstituting the law and making same-sex relationships illegal once more.

• By completely invalidating Section 377, the Indian Supreme Court decriminalized homosexuality only last year. The LGBTQ community in India hailed this pivotal ruling as a major success since it paved the path for increased acceptance and rights.

• However, there is still a long way to go before true equality is attained in India, where there is still discrimination & prejudice against the LGBTQ community. The LGBTQ community in India continues to struggle for recognition and rights despite these obstacles, and there have been many encouraging advances in recent years. LGBTQ issues have changed throughout time in India. By repealing Section 377 of the Indian Penal Code,1860 which had made same-sex relationships is against the law and it is illegal, the Indian Supreme Court decriminalized homosexuality in 2018. For the LGBTQ community in India, this was a historical occasion.

• Nevertheless, societal perceptions of the LGBTQ community in India continue to be very diverse despite this legal change. Even though some people are accepting and encouraging, discrimination and harassment against LGBTQ people still happen. Significant cultural and religious factors also have an impact on how Indians view the  LGBTQ community. As an illustration, same-sex relationships are still not acceptable in some traditional families and communities due to cultural and religious beliefs.   Overall, withstanding recent progression in the law, there is still much work to be finished and done to change societal perceptions of the LGBTQ community in India.

LGBTQ+ AND RELIGION

An analysis of temple imagery, sacred narratives, and religious scriptures indicates that in ancient India, homosexual practices occurred in some form. While not part of the mainstream, it was accepted but not approved of its existence. When the act presented itself in heterosexual terms, there was some degree of tolerance when men became women in their preference for other men, as shown by the hijra legacy. Although the Manusmrithi - the most sacred scripture for Hindus, treated homosexuality as an extremely heinous offense and had prescribed severe punishment for the act of it, lesbianism was an offense worse than homosexuality and the punishment was greater as well. This clearly shows and perpetuates the patriarchal form of mindset the Manusmrithi gives out. A lot of such “unnatural” sexual acts can also be seen in carvings in the caves, as well as the sculptures in Khajuraho, a heritage site ages old, which explicitly show women and men indulging in sexual acts with those of the same sex and also animals where an elephant can be seen copulating with a tiger and others. [ii]“The Mahabharata has an interesting story about Shikhandini, the feminine or trans gender warrior of the time and responsible for the defeat and killing of Bhishma. Shikhandini was a daughter of King Drupada, who raised her as a prince to take revenge on the Kurus, the rulers of Hastinapur. Drupada even got Shikhandini married to a woman. After her wife discovered the reality, she revolted. The day was saved by divine intervention bestowing Shikhandini with manhood during the night. Shikhandini henceforth lived like a hermaphrodite.” This clearly shows that such acts did take place and people did exist in the ancient past and it was completely normal then to make a sculpture of the same. The Muslim Shariat law considers homosexual behaviour as a serious offense in the Islamic era. It also ousts such offenders from the community and treats them as aliens to the religion, not allowing them to practice the religion.  

LGBTQ+ AND ADOPTION

Pre-modern era:

In the past, LGBTQ individuals and couples faced significant discrimination and persecution. Adoption by LGBTQ individuals or couples was illegal and socially taboo.

Late 20th century:

The modern LGBTQ rights movement began to gain momentum in the late 20th century. This social and political movement sought to end discrimination and gain legal recognition for LGBTQ individuals and couples.  

Early legal battles:

In the 1970s and 1980s, some LGBTQ individuals and couples challenged adoption restrictions that were prevailing around the world.

Landmark cases:

Landmark cases in various countries contributed to the advancement of LGBTQ adoption rights. In the United States, the 2003 [iii]LAWRENCE VS TEXAS SUPREME COURT decision, decriminalized same- sex sexual activity, which was a pivotal movement.

Changing Attitudes:

Changing societal attitudes towards LGBTQ individuals and families played a significant role in advancing adoption rights. Public opinion increasingly shifted in favour of LGBTQ rights and acceptance. 

Legislative changes:

Over time, many countries and U.S states began to repeat or modify adoption laws that discriminated against LGBTQ individuals and couples. This included the removal of bans on same sex couples in some of the countries.

Milestones:

Notable milestones in the advancement of LGBTQ adoption rights include the [iv]2015 U.S Supreme court decision in Obergefell v Hodges, which legalized same sex marriage nationwide, and the Equality Act in the United States, which included provisions protecting LGBTQ individuals from discrimination in adoption and foster care.

Ongoing Challenges:

Despite significant progress, LGBTQ individuals and couples still face challenges and discrimination in various parts o the world. Adoption policies and laws can vary widely by jurisdiction, and religious exemptions in some places continue to be a contentious issue. For example, in India, recently in the case of Supriyo v Union of India, Supreme Court declined legal recognition of the right to marry for queer couples.

CHALLENGES FACED BY LGBTQ+

• Mental health

• Media’s Impact

• Discrimination

• Institutional Sexual harassment

• Sexual molestation

• Socio- economic discrimination  

• Miss-conceptions

• Societal discrimination

• Issue facing in health care

• Issues in getting employment

• Educational discrimination

• Housing discrimination

• Violence

• Becoming parents

• Surrogacy

• Adoption

• Religion

• Gender discrimination

• Moral issues

• Tension in family relationships

• Loneliness

• Unhealthy life

CONCLUSION

The laws governing LGBTQ rights differ greatly from nation to nation. Some nations permit same-sex unions, and LGBTQ people are allowed to marry, adopt children, and use healthcare and other services without facing prejudice. Other nations continue to criminalize homosexuality, and LGBTQ people are subjected to harassment and discrimination. LGBTQ people can still face prejudice in many facets of life, even in nations where homosexuality is not a crime. Although there has been significant progress made in recognizing and defending the rights of LGBTQ+ people worldwide, much work remains. It is crucial to keep fighting for the rights and defenses of LGBTQ+ people, both in India and all throughout the world.

SUGGESTIONS

India is a developing country, and in order to stimulate growth and development, the country requires progressive laws that treat all people fairly and give them with equal opportunity to contribute significantly to the country's future. In India, one of the worst Victorian-era regulations has finally been removed. However, same-sex marriages remain banned. Marriage is a fundamental right for everyone in a country like India, where marriage is highly valued, yet the LGBT population now lacks this opportunity. Even after Section 377 of the

Indian Penal Code was declared illegal, Indian society is still unwilling to recognize the LGBTQ community. As a result, these cultures are afraid to reveal their sexual identity/orientation. They were afraid that society would reject them and that they would not be able to live their lives properly. Decriminalizing homosexuality in a country like India, where LGBTQ people are still unable to marry the partner of their choice, appears pointless.

However, it should be noted that just declaring a provision unlawful or enabling same-sex couples to remain together does not provide them with a final remedy. The societal stigma associated with homosexuality must be erased. The war will be won if society welcomes LGBT individuals in the same way that it accepts heterosexual people. As a result of society's final denial, gays suffer from a variety of mental illnesses.

REFERENCES

[i] Section 377 of Indian penal code

[ii] India Today, “India Today Web Desk” (India Today, July 10, 2018)

<https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient- india-1281446- 2018-07-10> accessed 5 january, 2024.

[iii] Lawrence v Texas, 539 U.S 558(2003)

[iv] Obergefell v Hodges,576 US 644 (2015)