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Evolution of Legal Recognition Of An Ignored Community

Updated: Jan 18

Introduction


As the community which fought since so long and still struggling to be recognized as a third gender and to have a respectful identity in the society of common people, observed a remarkable day (6th of September 2018) “a wind of constitutionality” blew through their windows as a result of the historic judgment delivered by Hon’ble Supreme Court on partial striking down Section 377 of IPC, decriminalization of homosexuality.



Judicial Evolution


The LGBT community all across the country erupted in the jubilant celebration enjoying their victory against the 200-year-old British-era law that criminalized same-sex relationship. The legal fight against this brutal law is quite old and long. The SC judgments in National Legal Services Authority .v. UOI, Navtej Singh Johar and Ors. .v. Ministry of Law and Justice Secretary and  Justice K.S. Puttaswamy .v. Union of India helped in creating the groundwork for the development of human rights and the principle of equity. Recently in the year 2019, a bill named as Transgender Persons (Protection of Rights) Bill was passed by Parliament with the main idea to allow self-perception of gender identity. The bill includes certain phrase and terms which create certain loopholes like, the term “self-perceived gender identity”. The bill states the requirement to have a certification by the District Magistrate after proof of a sex rehabilitation surgery is provided. The aspect of the bill includes criminalization of begging, in spite of providing protection to them. The bill significantly focuses on trans-women and hijras, and a little attention has been drawn on the intersex, genderqueer and even transmen.


Are changes made favourable and sufficient?


Adoption, Guardianship, Surrogacy


Although Section 377 of IPC has been decriminalized still the law debars LGBTQIA+ community from adopting children altogether in relation to guardianships, the judgments in India gave rights to mother and father both. Still, the term “best interest of the child” in judgments needs to be interpreted in the context of the LGBTQIA+ community. In terms of surrogacy, the new bill was passed in the Parliament, where single people and LGBTQIA+ couples are prohibited to have their own children through surrogacy. Thus, the intention of making our Indian laws secular and non-discriminatory in nature somewhere failed. The language of the laws needs to be gender-neutral in order to have full compliance with Article 14 of the Indian Constitution.


Workplace and Institutions


The people of LGBTQIA+ are being treated vulnerably at the workplace, educational institutions etc. The UNESCO New Delhi Office supported a community-based study on SOGI-based bullying, which was conducted in 2017 in schools in Tamil Nadu, India. Forms of SOGI-related bullying varied according to the levels of education. 60% and 50% of respondents said that they were mostly victims of physical bullying when they were respectively in middle/high school and higher secondary school, while 43% of respondents said that they were sexually harassed when they were in primary school.


Conclusion


The dynamics of law has been evolving through time, which is resulting in acceptance and providing proper legal protection to them. However, there is a need to develop their acceptance at a common pace by the people of our nation. The idea of equality can be seen in the paper but its main essence lies when followed and observed in a practical sense. It’s a need of an hour to acknowledge their rights as human rights. Non-Recognition of same-sex marriages, not allowing adoption, guardianship, surrogacy, not having access to safe and LGBT+ inclusive schools, colleges and workplaces are all violative of Article 14, 15, 19, 21, 29. Further, discrimination solely on the grounds of sexual orientation violates Article 14, 15, 21 in relation to Army, Navy, and Air force Act. It’s high time where there is a need to formulate the existing laws and make them more compatible with our society and in compliance with the basic idea of laying down provisions of our Constitution.

ABOUT THE AUTHOR

ShraddhaTiwari is a student of University of Petroleum and Energy Studies.

They can be contacted at Shraddhatiwari8268@gmail.com or https://www.linkedin.com/in/shraddha-tiwari-6603191b3

Edited By: Swathi. Ashok. Nair.

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