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Equality and issues faced by the LGBTQ+ community

Authored by,
Arefa Sheikh,
B.Sc ,LLB Final Year ,INSPIRE scholar
.
LGBTQ+ is an abbriviation for Lesbian, Gay, Bisexual, Transgender, Queer and the plus sign
encompasses those who are not straight but aren't covered by those five letters. Also
referred to as the third gender, the community circumscribes the number of sub communities
based upon the kind of sexual orientation one possesses. LGBTQ+ community is the
community of people who are not straight i.e. people who are not heterosexual, people who
are attracted towards same sex for eg, Men who have sexual inclination towards men and
women who have sexual inclination towards women. LGBTQ+ community also includes
questioning i.e. people who are flummoxed of their sexuality.
If we talk of their rights, unfortunately, they have always been deprived of the basic Human
rights that one is generally entitled to enjoy as a human being. The society has always
cornered the community referring their sexual orientation as "unnatural" i.e. something which
is not a norm, something which according to people is against the order of the nature.
In order to understand the scenario squarely,we need to get a clear picture of the position of
the community in the society.

LGBTQ+ Community in India

If we look into the ancient Indian culture existing before colonisation by the Britishers, the
people from LGBTQ+ community were merrily accepted by the society. The ancient Hindu
scripture showcases the individuals from this community positively. 1
But, as a result of the colonisation, the community was waylaid owing to the Catholic belief
that the sexual orientation of these people are sinful and against the order of the nature. The
Britishers also tagged the community as criminal under the Criminal Tribes Act, 18712.
It was since then, that the LGBTQ+ community has been looked down and been
discriminated against by the society and their so called reason being, "the activities of
LGBTQ + community are against the public morality possessed by the larger section of the
society!! "
Moreover, they were classified by the society as ill.

Supreme Court of India verdict ; a ray of hope.

The Supreme Court being awarded an elite title of, 'the guardian of the constitution and
human rights' has indeed played an angelic role in reassuring the LGBTQ+ community their
basic human right to live a dignified life.
Delhi high court in its verdict in Naz foundation v. Government of NCT of Delhi and
others (2009) found section 377 of the Indian penal code and other similar legal prohibitions
affecting the dignity of the entire LGBTQ+ community to be in direct violation of fundamental
rights guaranteed by the Indian constitution.

1
https://en.m.wikipedia.org/wiki/LGBT_culture_in_India
2
https://en.m.wikipedia.org/wiki/Criminal_Tribes_Act
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But later on, in the year 2013, the Supreme Court through its pronouncement in S.K.
kaushal and others v. NAZ foundation and others (2013) , upheld section 377 of Indian
Penal Code as constitutional and as a result again criminalised the activities stated in
section 377 of the Indian penal code. Finally, in the year 2018 in Navtej Singh Johar v.
Union Of India (2018) the court ruled that section 377 is no more a good law and opined
that the said draconian provision shall be struck down as unconditional .The apex court also
made an averment that implied that the sexual intercourse by the consenting adults of the
same sex in private is no more a criminal offense and by criminalising the same, the society
has indeed wronged the LGBTQ+ community.
Equality ; a bridge too far?
As of now, there surely is remarkably good fraction of the people from the society showing
welcoming gestures towards accepting the fellows from the LGBTQ+ community. Social
media has created splendid awareness. It indeed is regaling to see how the celebrities
stood up for this community and extended the much needed support. Albeit, the number of
people still have rejected to accept the people belonging to the LGBTQ+ community as a
mainstream.
Many recent incidents clearly display that the society is still not wholeheartedly ready to
welcome the community, treating them and their lifestyle as bizarre.
Recently in Croatia, the effigy of a homosexual couple with a child was set ablaze publically
at a festival rendering the passerby stunned and speechless3.
Also, in the year 2019 Trump administration in USA had proposed a rule that allowed the
foster care and adoption agencies to deny their services to LGBTQ+ families on faith based
grounds4. With this change, the USA administration has affirmatively removed
nondiscrimination protection and allowed foster care to reject if it wants, the child adoption
requests of the LGBTQ+ 5.
In India, whilst , the society to a greater extent has displayed a liberal mindset regarding the
acceptance of the LGBTQ+ community, the number of grievances of this community still
goes unredressed.
The private companies and organizations are still free to deny employment to an applicant
who belongs to the LGBTQ+ community and the mere reason being that the
nondiscrimination rules apply only to the state and state owned companies or the
government sector. The provisions for the marriage validity of the fellows from LGBTQ+
community finds no place in the present family laws. As a result, in a relationship, if there are
instances of domestic violence or other such similar issues , the courts find it difficult to
serve the justice in the absence of marriage validity of the homosexual couples. And this
misery surely calls for either Uniform Civil Code(UCC) for marriage act or a special law

https://www.independent.co.uk/news/world/europe/croatia-effigy-same-sex-couple-president-zoran-mil
anovic-lgbt-rights-a9358221.html
4

https://www.independent.co.uk/news/world/americas/trump-lgbt-adoption-gay-rights-family-children-di
scrimination-obama-a9182921.html
5

https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2020/government-fu
nded-discrimination-in-the-child-welfare-system/
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providing validity to the marriage of gay or lesbian couples and other such couples of similar
sorts.
Into the bargain, there is a strict ban in India on the adoption of a child by LGBTQ+ couple
not denying the fact that single person belonging to this community may adopt a child, in
vitro fertilization i.e.IVF as well is allowed by the state .
Regrettably and unfortunately, people from LGBTQ+ community cannot openly serve in
military. They are not allowed to donate blood and this list goes on further ahead.
The above mentioned are some of the basic human rights that are enjoyed by all the straight
people without a single difficulty or impediment.Clearly, the need of the hour is to get the
relevant and suitable laws being legislated that would not only ensure the dignified life to our
pals from LGBTQ+ community but also encompass every aspect of their lives in order to get
them comfortable and rigidly rooted in the mainstream.
In the end, I would like to conclude by urging the galaxy of intellectuals reading this article to
accept the people around regardless of the personal choices they make in their lives. Being
honest is good, but let's be gently honest instead of being brutally honest, the world would
become a better place to thrive and flourish upon...