LGBTQ rights in India: Difference between revisions
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| image = India (orthographic projection).svg |
| image = India (orthographic projection).svg |
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| caption = Area controlled by India shown in dark green;<br/>claimed but uncontrolled regions shown in light green. |
| caption = Area controlled by India shown in dark green;<br/>claimed but uncontrolled regions shown in light green. |
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| legal_status = Illegal under [[Section 377 of the Indian Penal Code|section 377 of the Indian Penal Code]]. Penalty: Up to life imprisonment<ref>{{cite news| url=http://articles.timesofindia.indiatimes.com/2013-12-12/india/45120907_1_delhi-hc-section-377-ipc-supreme-court | work=The Times Of India | title=Supreme Court makes homosexuality a crime again - The Times of India | date=12 December 2013}}</ref><ref>{{cite news| url=http://indianexpress.com/article/india/india-others/no-separate-proposal-to-repeal-or-amend-section-377-govt/ | work=The Hindustan Times | title=No separate proposal to repeal or amend section 377 : govt}}</ref><ref>{{cite news| url=http://economictimes.indiatimes.com/news/politics-and-nation/no-separate-proposal-to-repeal-or-amend-section-377-government/articleshow/45618509.cms | work=Economic Times | title=No separate proposal to repeal or amend section 377 : govt | date=23 December 2014}}</ref> |
| legal_status = Illegal under [[Section 377 of the Indian Penal Code|section 377 of the Indian Penal Code]]. Penalty: Up to life imprisonment<ref>{{cite news| url=http://articles.timesofindia.indiatimes.com/2013-12-12/india/45120907_1_delhi-hc-section-377-ipc-supreme-court | work=The Times Of India | title=Supreme Court makes homosexuality a crime again - The Times of India | date=12 December 2013}}</ref><ref>{{cite news| url=http://indianexpress.com/article/india/india-others/no-separate-proposal-to-repeal-or-amend-section-377-govt/ | work=The Hindustan Times | title=No separate proposal to repeal or amend section 377 : govt}}</ref><ref>{{cite news| url=http://economictimes.indiatimes.com/news/politics-and-nation/no-separate-proposal-to-repeal-or-amend-section-377-government/articleshow/45618509.cms | work=Economic Times | title=No separate proposal to repeal or amend section 377 : govt | date=23 December 2014}}</ref> as well as torture, vigilante executions and fines<ref>https://www.hrw.org/news/2010/07/18/india-prosecute-rampant-honor-killings>/ref> |
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| gender_identity_expression = Legal gender change allowed only in Tamil Nadu and Kerala on SRS. Right to change legal gender to Male/Female/Other without SRS proposed April 15, 2014 and under discussion |
| gender_identity_expression = Legal gender change allowed only in Tamil Nadu and Kerala on SRS. Right to change legal gender to Male/Female/Other without SRS proposed April 15, 2014 and under discussion |
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| recognition_of_relationships = No recognition |
| recognition_of_relationships = No recognition |
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Revision as of 21:45, 5 October 2017
{{Infobox LGBT rights
| location_header = India 
| image = India (orthographic projection).svg
| caption = Area controlled by India shown in dark green;
claimed but uncontrolled regions shown in light green.
| legal_status = Illegal under section 377 of the Indian Penal Code. Penalty: Up to life imprisonment[1][2][3] as well as torture, vigilante executions and finesCite error: A <ref> tag is missing the closing </ref> (see the help page).]]
Lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people in India face legal and social difficulties not experienced by non-LGBTQI persons. Sexual activity between people of the same gender is illegal, and same-sex couples cannot legally marry or obtain a civil partnership. India does, however, legally recognise Hijras as a third gender, separate from men or women in Kerala and Tamil Nadu. The Indian cities of Delhi, Calcutta and Bangalore held their first gay pride parades on July 29, 2008.[4] Kochi Metro is the first government agency in the country to employ transgender; 23 will be on duty on inaugural day (17 June 2017).[5]
Law regarding same-sex sexual activity
The Goa Inquisition once prosecuted the capital crime of sodomy in Portuguese India[6][7], but not lesbian acts[8].
The Mughal empire combined a number of the preexisting Delhi Sultanate laws into the Fatawa-e-Alamgiri, mandating a common set of punishments for Zina (unlawful intercourse[9]), these ranged from 50 lashes for a slave, 100 for a free infidel, to death by stoning for a Muslim[10].
The British Raj criminalised sexual activities "against the order of nature", arguably including homosexual sexual activities, under Section 377 of the Indian Penal Code, which entered into force in 1861. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.
According to a ruling by the Indian Supreme Court, decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction.[clarification needed][11] However, even there have been incidents of harassment of homosexual groups.[12]
On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral.[13] The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. This resulted in two judges of the Supreme Court reprimanding the central government for frequently changing its stand on the issue. "Don't make a mockery of the system and don't waste the court's time," an apex court judge told the government.[14]
On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.[15][16][17] The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that parliament should debate and decide on the matter.[18] The full decision can be found here.
On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.[19] In explaining the ruling the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."[20]
On December 18, 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced the bill for the decriminalisation of Section 377, but the bill was rejected by the house by a vote of 71-24. However, Shashi Tharoor is planning to re-introduce the bill.[21]
Human Rights Watch [22]expressed worries that this would render homosexual couples vulnerable to police harassment, saying: "The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination"[23] The Naz Foundation (India) Trust stated that it would file a petition for review of the court's decision.[24]
On February 2, 2016, the Supreme Court decided to review criminalisation of homosexual activity.[25] The hearing date for the curative petition related to Section 377 which is to be taken up by the constitutional bench is not known. In 2016, Kerala mooted free sex-reassignment surgeries in Government hospitals after it introduced the first State government policy on transgender people.[26][27]
On August 24, 2017, India's Supreme Court has given the country's LGBT community the freedom to safely express their sexual orientation. Therefore, an individual's sexual orientation is protected under the country's Right to Privacy law.[28] However, the Supreme Court did not directly overturn any laws criminalizing same-sex relationships.[29]
Recognition of same-sex relationships
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Same-sex marriages are not legally recognised in India, nor are same-sex couples offered limited rights such as a civil union or a domestic partnership. In 2011, the court granted legal recognition to a single same-sex marriage, involving two women.[30] After marrying, the couple began to receive threats from friends and relatives in their village.
Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who had threatened them with "dire consequences". Haryana has been the centre of widespread protests by villagers who believe their village councils, or khaps should be allowed to impose their own punishments on those who disobey their rulings or break local traditions – mainly honour killings of those who marry within their own gotra or sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr. Abhe Singh told The Daily Telegraph: "The couple has been shifted to a safe house and we have provided adequate security to them on the court orders. The security is provided on the basis of threat perception and in this case the couple feared that their families might be against the relationship."[31]
The couple eventually won family approval.[32]
In February 2017, the Ministry of Health and Family Welfare unveiled resource material relating to health issues to be used as a part of a nationwide adolescent peer-education plan called Saathiya. Among other subjects, the material discusses homosexuality. The material states, "Yes, adolescents frequently fall in love. They can feel attraction for a friend or any individual of the same or opposite sex. It is normal to have special feelings for someone. It is important for adolescents to understand that such relationships are based on mutual consent, trust, transparency and respect. It is alright to talk about such feelings to the person for whom you have them but always in a respectful manner."[33][34]
Transgender rights
The states Tamil Nadu and Kerala in India were the first states to introduce a transgender (hijra/ aravani) welfare policy. According to the transgender welfare policy transgender people can access free Sex Reassignment Surgery (SRS) in the Government Hospital (only for MTF); free housing program; various citizenship documents; admission in government colleges with full scholarship for higher studies; alternative sources of livelihood through formation of self-help groups (for savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state to form a Transgender Welfare Board with representatives from the transgender community. In 2016, Kerala started implementing free SRS through government hospitals.[27]
In India one group of transgender people are called Hijras. They were legally granted voting rights as a third sex in 1994.[35] Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS.[36] On 15 April 2014, Supreme Court of India declared transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them.[37]
On 24 April 2015, the Rajya Sabha passed the Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people. It also contains provisions to prohibit discrimination in employment, prevent abuse, violence and exploitation of transgender people. The Bill also provides for the establishment of welfare boards at the Centre and State level, and for Transgender Rights Courts. The Bill was introduced by DMK MP Tiruchi Siva, and marked the first time the House had passed a private member's bill in 45 years. The Bill was passed unanimously by the House. However, the Bill contains several anomalies and a lack of clarity on how various ministries will co-ordinate to implement its provisions.[38] Social Justice and Empowerment Minister Thaawar Chand Gehlot stated on 11 June 2015 that the Government would introduce a comprehensive Bill for transgender rights in the Monsoon session of Parliament. The Bill will be based on the study on transgender issues conducted by a committee appointed on 27 January 2014. According to Gehlot, the Government intends to provide transgender people with all rights and entitlements currently enjoyed by Scheduled Castes and Scheduled Tribes.[39]
In April 2017, the Ministry of Drinking Water and Sanitation instructed states to allow transgender people to use the public toilet of their choice.[40]
LGBTQI people in Indian politics
The All India Hijra Kalyan Sabha fought for over a decade to get voting rights, which they finally got in 1994. In 1996 Kali stood for elections in Patna under the then Judicial Reform Party and gave the Janata Dal and the BJP a bit of a fight. Munni ran for the elections as well from South Bombay that year. They both lost, more than 13 years Hijras are participating in the politics in India.[41]
After the defeat of Kali and Munni, three years later we saw Kamla Jaan run and win the position of the mayor of Katni in MP. Then there was Shabnam Mausi, who was elected to the Legislative Assembly in 2002 as well. In the huge political machinery, Heera won a seat at the city council of Jabalpur, Meera won a similar position in Sehora, and so did Gulshan in Bina. In December 2000, Asha Devi became the mayor of Gorakhpur, and Kallu Kinnar was elected to the city council in Varanasi. I am sure there are many more low level, inconspicuous bureaucratic positions that were held by the hijras but did not whip up any excitement for the media — not to mention the cases where they were probably threatened, bullied and killed to prevent them from running for seats. This brings us to the current elections, which has Mangesh Bharat Khandye running for the Thane Lok Sabha seat.
Shabnam Mausi is the first transgender Indian or hijra to be elected to public office. She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003.In 2000 Shabnam Mausi became India's first eunuch MP.(Hijras were granted voting rights in 1994 in India.) In 2003, Hijras in Madhya Pradesh have announced establishing their own political party called "Jeeti Jitayi Politics" (JJP), which literally means 'politics that has already been won'. The party has also released an eight-page election manifesto which it claims outlines why it is different from mainstream political parties.Hira bai became first TG MLA of India from Jabalpur vidhanshaba seat.[42]
Kalki Subramaniam, a transgender rights activist, writer and an actor,In the 2011 assembly elections, Kalki tried in vain to get a DMK ticket.[43] Again on March 2014 Kalki announced in Puducherry that she would contest in this election from Villupuram constituency in neighbouring Tamil Nadu. She is likely to be among the very few contestants fighting in the national elections from the transgender community that faces discrimination and ridicule.[44]
On 4 January 2015, independent candidate Madhu Bai Kinnar was elected as the mayor of Raigarh, Chhattisgarh becoming India's first openly transgender mayor.[45][46][47][48]
Manabi Bandopadhyay became India's first transgender college principal, on 9 June 2015, when she assumed the role of Principal of the Krishnagar Women's College in Nadia district, West Bengal.[49][50]
On 5 November 2015, K. Prithika Yashini became the first transgender police officer in the state of Tamil Nadu. At the time, the Tamil Nadu police had three transgender constables, but Yashini became the first trans person to hold the rank of officer in the state.[51]
Gopi Shankar Madurai was one of the youngest[52] candidates, and the first openly intersex and genderqueer candidate to contest an election, in the Tamil Nadu Legislative Assembly election, 2016.[53][54][55][56].
On 12 February 2017, two transgender people were appointed by the Kolhapur District Legal Services Authority (KDLSA) as panel members for the Lok Adalat (People’s Court). 30 panels were appointed to settle general local disputes that arise within the community. The Lok Adalat is mandated by the Supreme Court in order to provide an alternative way to resolve disputes and bring down the pending case load of lower courts. Members of the KDLSA state, “Our main achievement was inclusion of transgenders as panelist in Lok Adalat. As per the Supreme Court's judgment, transgenders must be recognised as the third gender in our country. As per the norm, we have put in efforts and included two transgenders Mayuri Alawekar and Yuvraj Alavankar as panel members.” [57]
Transgender S. Swapna and gender activist Gopi Shankar Madurai from Srishti Madurai[58][59] staged the protest in Madurai collectorate on 7 October 2013 demanding reservation and to permit alternate genders to appear for examinations conducted by TNPSC, UPSC, SSC and Bank Exams.Swapna, incidentally, had successfully moved the Madras High Court in 2013 seeking permission to write the TNPSC Group II exam as a ‘woman’ candidate. Swapna is the first trans person to clear TNPSC Group IV exams.[60]
Intersex rights
There is no specific legislation protecting the rights of intersex people in India. In a reply to a letter from an intersex rights activist Gopi Shankar Madurai, the Ministry of Health and Family Welfare, India replied that “Any kind of invasive medical procedure including sex reassignment surgeries are done only after thorough assessment of the patient, obtaining justification for the procedure planned to be conducted with the help of appropriate diagnostic test and only after taking a written consent of the patient/guardian”.[61]
Third Gender Literature and Studies
"Vaadamalli" by novelist Su.Samuthiram is the first Tamil novel about Aravaani community in Tamil Nadu published in the year 1994. Later Transgender activist A. Revathi is the first Hijra to write about Transgender issues and Gender politics in Tamil, her works have been translated in more than 8 languages and acting as a primary resources on Gender Studies in Asia. Her book is part of research project for more than 100 universities. She is the author of Unarvum Uruvamum (Feelings of the Entire Body); is the first of its kind in English from a member of the hijra community.[62][63][64] She also acted and directed several stage plays on Gender and Sexuality issues in Tamil and Kannada."The Truth about Me: A Hijra Life Story" by Transgender A. Revathi[65] is part of the syllabus for Final Year students of The American College in Madurai.The American College is the first college in India to introduce Third Gender literature and studies with research oriented seminar and the Tamil terms for Genderqueer people was coined in this college by gender activist Gopi Shankar.[66] Later Naan Saravanan Alla” (2007) and Vidya's “I am Vidya” (2008) became first transwoman autobiography.[67][68]
Gay Literature studies
In 2013 The American College in Madurai's undergraduate English department included Funny Boy by Shyam Selvadurai as part of syllabi under gay literature and marginalised studies.[69]
Avenues for LGBT Community
There are many avenues for LGBTQ community in various metro cities for meeting and socializing, although not very openly. Some of them are GayBombay, Good As You, HarmlessHugs. Recently a queer dating platform Amour Queer Dating also has been launched to help LGBTIQ find long-term partners.[70]
LGBT rights activists
| Name | Achievement |
|---|---|
| S. Swapna | 1st Transwoman to clear Tamil Nadu Public Service Commission Exam & 1st Transgender I.A.S aspirant. |
| A. Revathi | Actor, Artist, Writer, Theater Activist |
| Aishwarya Rutuparna Pradhan | First openly transgender civil servant, Odisha Financial Services officer |
| Anjali Gopalan | Human Rights Activist |
| Leena Manimekalai | Poet, Writer, Film maker |
| Rituparno Ghosh | Popular Film maker, Winner of 11 Indian National Film Awards |
| Manvendra Singh Gohil | Prince of Royal Clan |
| Andrew Harvey | Author, religious scholar and teacher of mystic traditions |
| Celina Jaitley | Miss India 2001 |
| Firdaus Kanga | Writer and Actor |
| Karpaga | the first trans person ever in India to perform a leading role in a mainstream movie. |
| Ashok Row Kavi | Founder of Humsafur Trust |
| Agniva Lahiri | Social activist (PLUS Kolkata) |
| Saleem Kidwai | Writer |
| Nolan Lewis | Mr India Gay 2013 |
| Shabnam Mausi | 1st Trans to contest in the Indian election |
| Sushant Divgikar | Mr India Gay 2014 |
| Hoshang Merchant | Teacher, Poet and Critic |
| Ismail Merchant | Film producer and director |
| Onir | Award winning Film Director |
| Manabi Bandyopadhyay | India's first openly transgender college principal & 1st Transgender PhD holder. |
| Kalki Subramaniam | Trans activist, Actor, Artist, Writer, Entrepreneur and Founder of Sahodari Foundation |
| Gopi Shankar Madurai | Genderqueer activist,[71] Recipient of The Commonwealth Youth Worker Asia Finalist Award and Founder of Srishti Madurai[72][73][74][75] |
| Harish Iyer | Activist, Columnist, Blogger |
| Living Smile Vidya | Actor, Artist, Writer, Theater Activist |
| Grace Banu | Dalit Activist |
| Bobby Darling | Transsexual actress |
| Tista Das | Transsexual Activist |
| Pablo Ganguli | Cultural entrepreneur, artist, director and impresario |
| Raul Patil | Mr India Gay 2011 |
| Zoltan Parag | Mr India Gay 2008 |
| Sridhar Rangayan | Founder and Festival Director of Kasish Mumbai International Queer Film Festival, Film Maker |
| R. Raj Rao | Writer, Professor of Literature |
| Wendell Rodricks | Fashion Designer and Choreographer |
| Nishit Saran | Filmmaker, gay rights activist |
| Vikram Seth | Writer |
| Vinay Chandran | Gay and Human rights activist, Bangalore |
| Parvez Sharma | Indian writer and documentary filmmaker |
| Ramchandra Siras | Indian linguist and author. |
| Manil Suri | Indian-American mathematician and writer |
| Laxmi Narayan Tripathi | Trans activist |
| Ruth Vanita | Writer and Academician |
| Rose Venkatesan | 1st Trans TV host in India |
| Riyad Vinci Wadia | Independent filmmaker |
Summary table
| Same-sex sexual activity legal |  (Court decision pending)
|
| Equal age of consent | (Court decision pending)
|
| Anti-discrimination laws in employment | Court case may be formed to repeal this law
|
| Anti-discrimination laws in the provision of goods and services | Court case may be formed to repeal this law
|
| Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) | Court case may be formed to repeal this law
|
| Same-sex marriages |
|
| Recognition of same-sex couples |
|
| Step-child adoption by same-sex couples |
|
| Joint adoption by same-sex couples |
|
| Adoption by transgender people |  / (Only in Tamil Nadu and Kerala)
|
| Gays and lesbians allowed to serve openly in the military |
|
| Right to change legal gender | / (Only in Tamil Nadu and Kerala)
|
| Homosexuality declassified as an illness | (Since 2014)[76]
|
| Access to IVF for lesbians |
|
| Commercial surrogacy for gay male couples |
|
| MSM allowed to donate blood | 
|
References
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{{cite book}}: CS1 maint: location (link) - ^ A digest of the Moohummudan law pp. 1-3 with footnotes, Neil Baillie, Smith Elder, London
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- ^ Cite error: The named reference
One Who Fights For an Otherwas invoked but never defined (see the help page). - ^ "Intersex person to contest from Madurai North". 30 April 2016 – via The Hindu.
- ^ "3rd gender gets a new champion in Tamil Nadu poll ring - Times of India".
- ^ "Intersex candidate alleges harassment - Times of India".
- ^ "This intersex person is contesting TN polls, 'ze' wants to change your mind on sexual minorities". 24 April 2016.
- ^ Homosexuality not mental illness, disease: Indian Psychiatric Society
