HOUSING RIGHTS FOR LGBTQ

INTRODUCTION:

India:
The assimilation of LGBTQ rights within precincts of the international human rights law
framework was based on the principle of universality of human rights and the inalienable
nature of rights belonging to every person by virtue of being human. However, it is not
out of place to mention that Individuals associating themselves with the LGBTQ
community have been deprived of their rights over the years worldwide and
discrimination against the community for expression of sexuality continues at large.
Domestic laws and policies of India still continue to reinforce a hetero-normative
framework of family and society. The community continues to struggle for availing rights
of marriage, housing, health, and education, among others. They face significant levels
of discrimination in housing, which exposes them to the risk of being denied, charged
higher rates for, or being forcefully removed from housing. Forced evictions in
particular are a direct violation of human rights. However, there is no normative
framework in place to protect the LGBTQ community. While its true that the Supreme
Court, in it’s landmark judgments of 2014 and 2018, recognized the need for India to act
in line with international standards to protect rights of the LGBTQ community, there are
no legal frameworks in place, that offer substantive equality. Thus, it is apparent that in
the Indian context, there is no legal provision till date, focusing specifically on safe
housing for the LGBTQ community. There is also no anti-discrimination code, which
protects the rights of the community, and Indian Courts are yet to affirm the rights of
LGBTQ persons vis-à-vis housing.

International

In the international sphere, the Committee on Economic, Social and Cultural Rights
(ESCR) and the United Nation (UN) Special Rapporteur recognised adequate housing as
a component of the ‘right to an adequate standard of living’. The situation at the
International front if not similar is only very less different. A 2013 study by the U.S.
Department of Housing and Urban Development showed that same-sex couples
experience significant levels of discrimination when responding to advertised rental
housing in metropolitan areas nationwide. In this study, heterosexual couples were
favored over same-sex couples by sixteen percent. For transgender people, housing
discrimination is even more prevalent. According to the 2015 U.S. Transgender
Survey, nearly one quarter of transgender people report having experienced housing
discrimination within the past year because of their gender identity.

As of September 2021, only 28 states and the District of Columbia prohibit

discrimination in housing based on both sexual orientation and gender identity.
Another state, Wisconsin, bans discrimination in housing based on sexual orientation
only. The House of Representatives in order to do away with the discrimination has
recently introduced the Fair and Equal Housing Bill in June 2021. It would provide
consistent and explicit non-discrimination protections for LGBTQ+ people in housing
by adding “sexual orientation” and “gender identity” as protected characteristics
under the Fair Housing Act, which currently prohibits discrimination based on race,
color, religion, sex, disability, familial status, and national origin.

HOUSING ANTI-DISCRIMINATION LAWS:

Recently, the Real Estate (Regulation and Development) Act, 2016 (RERA) introduced
an anti-discriminatory clause in matters of allotment. This bars sellers from
discriminating a prospective buyer on the basis of religion, caste and gender or sexual
orientation. Earlier, an individual facing discrimination in matters of housing would have
to approach the Supreme Court averring violation of their rights under Article 21 [Right
to life].
Further to this, though societies are allowed to restrict membership and tenancy rights,
their byelaws are required to be in consonance with the law of the land. This means that
any byelaw, that restricts or prohibits tenancy, basis an individuals sexual orientation,
gender etc. is untenable and if challenged, will be struck down by Courts.

LAWS AGAINST FORCED EVICTION:

In Sudama Singh Vs. Government of Delhi, the Delhi High Court recognized that the
forced eviction has the effect of violating “the right to livelihood, to shelter, to health, to
education, to access to civic amenities and public transport and above all, the right to live
with dignity.” The Supreme Court in Olga Tellis Vs. Bombay Municipal Corporation has
also elaborated on the requirement of providing prior notice before evictions as the
State’s prerogative.
Needless to say, the rental agreements often tilt in favour of the landlords and causing
“nuisance” or carrying out “immoral” activities in rental premises are often cited as
reasons to effectuate forceful evictions.
Notwithstanding the ground realities, legal protections for individuals belonging to the
LGBTQ spectrum can be effectuated through state laws which require rental agreements
to be reduced in writing and mandate notice periods for termination of lease agreements.
Furthermore, state rental laws also prohibit evictions through force as well, as locking out
or removing the tenant from the premises.

THE ROAD AHEAD:

The ICJ’s 152-page report Living with Dignity: Sexual Orientation and Gender Identity-
Based Human Rights Violations in Housing, Work, and Public Spaces in India details
human rights violations suffered by LGBTQ persons. In it’s recommendations it has
proposed a nationwide consultation geared towards the enactment of a comprehensive
anti-discrimination law prohibiting discrimination on the grounds of sexual orientation
and gender identity as is required by international human rights law.

In July 2019, India chose to maintain its past position on LGBT rights by abstaining from
voting at the UN Human Rights Council. The resolution in question sought renewal of
the mandate of an independent expert on protection against violence and discrimination
based on Sexual Orientation and Gender Identity Express (SOGIE).
Unfortunately, despite the jurisprudence laid out in Navtej Singh and NALSA, elaborating
on the need to introduce stronger and more sustainable policies to protect LGBTQ rights
as well as prevent sexual orientation, gender identity and gender expression (SOGIE)
based discrimination, an anti-discrimination code which addresses concerns of the
community continue to be distant dream. Moreover, a lack thereof vis-à-vis the LGBTQ
community, is in clear breach of India’s international obligations to protect the right of
housing and to equal protection and non-discrimination. Housing discrimination and
forced evictions on the basis of sexual orientation and gender identity demands urgent
enforcement action.