Author Ernest J. Gaines once quoted and questioned “Why is it that, as a culture, We are more comfortable seeing two men holding guns than holding hands?” This is a question, We should all as human beings raise, the reason for embarking this statement has come a long way back from the Era of the British Raj.
The British Raj criminalized homosexual sexual activities under Section-377 of 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”.
The history of Section 377 can be taken as far back to the 1800s. Lord Macauley first created this law in 1860 where he was the President of the Indian Law Commission . The reason for this law was because the British wanted to “impose Victorian values” on the colony of India . Not only were such values trying to be inflicted on the Indian society but also the Constitution of India wanted to “…narrow constructions of patriarchal gender relations and heteronormativity” (Ramasubban 91).
Basically, Section 377 of the Indian Penal Code states that-“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
It can be divided into the following three parts for easier understanding-
Criminalises certain acts between heterosexuals.
Criminalises sexual activities between humans and animals
Lesbian, Gay, Bisexual, Transgendered, Queer, Questioning, Intersex, Asexual, Allies and Pansexual.
Lesbian - Women that are only attracted to women.
Gay - Men that are only attracted to men. Gay can also be used to describe homosexual men and women.
Bisexual - A person that is attracted to both sexes.
Transgendered - A person that has/is transitioning to the opposite sex, as they were born as the wrong sex/in the wrong body. (Female to male. Male to female).
Queer - A person that does not want to label themselves as, e.g. Lesbian, so they call themselves queer instead. Originally used as a hate term.
Questioning - Someone that is questioning their sexual orientation, unsure which gender/s they are attracted to.
Intersex- A hermaphrodite, A person whose body is not definitively male or female. This may be because they have chromosomes which are not XX or XY or because their genitals or reproductive organs are not considered “Standard”.
Asexual - A person that isn't sexually attracted to either gender.
Allies - A straight person that supports the LGBT(QQIAAP) community.
Pansexual - A person that is attracted to a person because of their personality. They do not care what gender they date, they care about what is on the inside.
All of these make up to LGBTQQIAAP.
Problems faced by LGBT Community are being unaccepted by people with traditional sexual orientation. As a result, one of their main priority is to achieve equality in modern society. They continue to face discrimination and exclusion across the world in all spheres of life. Homophobic violence and abuse targeting LGBT people occur on a regular basis. In most EU Member States, same-sex couples do not enjoy the same rights and protections as opposite sex couples, and consequently suffer from discrimination and disadvantage in access to social protection schemes, such as health care and pensions. In the labour market, a majority of LGBT people continue to hide their sexual orientation or to endure harassment out of fear of losing their job. Particularly vulnerable are young LGBT people who experience estrangement from family and friendship networks, harassment at school and invisibility, which can lead in some cases to underachievement at school, school drop-out, mental ill-health and homelessness. This discrimination not only denies LGBT people equal access to key social goods, such as employment, health care, education and housing, but it also marginalizes them in society and makes them one of the vulnerable groups who are at risk of becoming socially excluded. Here I am highlighting some major problems faced by LGBT people across the world:
1.Marginalization and Social Exclusion: Marginalization is at the core of exclusion from fulfilling and full social lives at individual, interpersonal and societal levels. People who are marginalized have relatively little control over their lives and the resources available to them; they may become stigmatized and are often at the receiving end of negative public attitudes. Their opportunities to make social contributions may be limited and they may develop low self-confidence and self esteem and may become isolated. Social policies and practices may mean they have relatively limited access to valued social resources such as education and health services, housing, income, leisure activities and work. The impacts of marginalization, in terms of social exclusion, are similar, whatever the origins and processes of marginalization, irrespective of whether these are to be located in social attitudes (such as towards impairment, sexuality, ethnicity and so on) or social circumstance (such as closure of workplaces, absence of affordable housing and so on). LGBT individuals may experience multiple forms of marginalization-such as racism, sexism, poverty or other factors – alongside homophobia or transphobia that negatively impact on mental health. The stigma attached to sexual orientation and gender identity or expression that fall outside the expected heterosexual, non-transgender norm relegates many LGBT people to the margins of society. This marginalization often excludes LGBT people from many support structures, often including their own families, leaving them with little access to services many others take for granted, such as medical care, justice and legal services, and education. Marginalization and bias around sexual orientation and gender identity and expression regularly prevent LGBT people from accessing fundamental public services such as health care and housing and contributes to significant health disparities. Marginalization of LGBT people often starts with the family into which they were born. According to one study, approximately 30 percent of LGBT youth in the U.S. have been physically abused by family members because of their sexual orientation or gender identity or expression, and LGBT youth are estimated to comprise up to 40 percent of the homeless youth population in the U.S3.The familial marginalization of LGBT youth hinders initial prevention and education efforts, encourages risk-taking behavior that can lead to HIV infection, and places obstacles in the way of receiving proper medical treatment and psychosocial support for LGBT youth already living with HIV/AIDS. Moreover, lacking other means of support, many LGBT youth are forced to turn to criminalized activities such as sex work to survive, which drives them further onto the margins of society and can expose them to greatly elevated risk for HIV. Impact of Exclusion and Discrimination: The exclusion and discrimination have major impacts on the lives of lesbian, gay and transgender persons. This has resulted in the following:
Dropping out of school earlier
Leaving Home and Family
Unable to find regular jobs, have less options than others.
Being ignored in the community and isolated
Unable to access various services and Unaware of what they are entitled to
Mobility, Move to other areas, (such as the city and urban areas)
Lack of family and social support
Migrate to other countries for seeking safer livelihood and acceptance
Rejected from Religion (Esp. Muslim and some Christian Fundamentalist sects)
Decide to follow their parents to marry opposite sex and then divorce.
2. Impact of Family Reactions on LGBT Children: Conflict and Rejection In the past, very few adolescents ―came out‖ to their families or told others they were gay. Most lesbians, gay men, and bisexuals (LGB) waited until they were adults to talk about their LGB identity with others. Fear of rejection and serious negative reactions kept many LGB adults from openly sharing their lives. Until the 1990s, there were limited resources for LGBT youth. Gay and transgender adolescents had few sources of information to learn about their identity or to find support. More recently, the Internet, school diversity clubs, and LGBT youth groups have helped gay and transgender youth find accurate information, guidance, and support. With greater access to resources, more LGBT youth are coming out (sharing their gay or transgender identity with friends, family, and other adults) during adolescence. Until recently, little was known about how families react when an LGBT young person comes out during adolescence. And even less was known about how family reactions affect an LGBT adolescent‘s health and mental health. Families and caregivers have a major impact on their LGBT children‘s risk and well-being4 5. New research from Family Acceptance Project (FAP)6 shows it. FAP researchers identified more than 100 behaviors that families and caregivers use to react to their LGBT children‘s identity. About half of these behaviors are accepting and half are rejecting. FAP researchers measured each of these behaviors to show how family reactions affect an LGBT young person‘s risk and well-being. FAP researchers found that families who are conflicted about their children‘s LGBT identity believe that the best way to help their children survive and thrive in the world is to help them fit in with their heterosexual peers. So when these families block access to their child‘s gay friends or LGBT resources, they are acting out of care and concern. They believe their actions will help their gay or transgender child have a good life. But adolescents who feel like their parents want to change who they are think their parents don‘t love them or even hate them. Lack of communication and misunderstanding between parents and their LGBT children increases family conflict. These problems with communication and lack of understanding about sexual orientation and gender identity can lead to fighting and family disruption that can result in an LGBT adolescent being removed from or forced out of the home. Many LGBT youth are placed in foster care, or end up in juvenile detention or on the streets, because of family conflict related to their LGBT identity7. These factors increase their risk for abuse and for serious health and mental health problems. Research from FAP shows that family rejection has a serious impact on LGBT young people‘s health and mental health. LGBT young people who were rejected by their families because of their identity have much lower self-esteem and have fewer people they can turn to for help. They are also more isolated and have less support than those who were accepted by their families. LGBT teens who are highly rejected by their parents and caregivers are at very high risk for health and mental health problems when they become young adults. They have poorer health than LGBT young people who are not rejected by their families. They have more problems with drug use. They feel more hopeless and are much less likely to protect themselves from HIV or sexually transmitted diseases (STDs). And this behavior puts them at higher risk for HIV and AIDS. Compared with LGBT young people who were not rejected or were only a little rejected by their parents and caregivers because of their gay or transgender identity, highly rejected LGBT young people were:
• More than 8 times as likely to have attempted suicide;
• Nearly 6 times as likely to report high levels of depression;
• More than 3 times as likely to use illegal drugs; and
• More than 3 times as likely to be at high risk for HIV and STDs.
Many LGBT youth and those who question their identity feel like they have to hide who they are to avoid being rejected. Many hide so that they won‘t hurt their parents and other family members who believe that being gay is wrong or sinful. But hiding has a cost. It undermines an LGBT adolescent‘s self-esteem and sense of self-worth. It increases risky behaviors, such as risk for HIV or substance abuse. It also affects their ability to plan for the future, including their ability to have career or vocational plans. And it makes them less likely to want to have a family or to be parents themselves.
3.Problems of Homelessness: The myriad problems facing LGBT people who are homeless include a lack of housing and services that meet their specific needs. For example: An estimated 40-50% of the homeless youth living on New York City‘s streets identify as LGBT. They are living there because they were thrown out of their homes for being queer, or ran away to escape an abusive situation. Family housing in the shelter system across the country is not available for homeless same-sex couples. Transgender people are not allowed to choose with which gender they are more comfortable living in the shelter system. Abuse and harassment of LGBT homeless people is rampant in the shelter system. Most domestic violence shelters do not accept gay men or transgender people. There has been also a lack of any comprehensive plan for long-term housing for people with AIDS. Homeless LGBT youth are without economic support, often engage in drug use and risky sexual behaviors, and often develop mental health disorders. Homeless LGBT youth miss out on education and social support during critical formative years—more than half of homeless LGBT youth report experiencing discrimination from peers.
4.Problems of Homophobia: Lesbian, gay, bisexual and transgender people are more likely to experience intolerance, discrimination, harassment, and the threat of violence due to their sexual orientation, than those that identify themselves as heterosexual. This is due to homophobia. Some of the factors that may reinforce homophobia on a larger scale are moral, religious, and political beliefs of a dominant group. Living in a
homophobic environment forces many LGBT people to conceal their sexuality, for fear of the negative reactions and consequences of coming out .Actually there is no single definition for the term homophobia‘, as it covers a wide range of different viewpoints and attitudes. Homophobia is generally defined as hostility towards or fear of gay people, but can also refer to stigma arising from social ideologies about homosexuality. Negative feelings or attitudes towards non-heterosexual behaviour, identity, relationships and community, can lead to homophobic behavior and this is the root of the discrimination experienced by many lesbian, gay, bisexual and transgender (LGBT) people. Homophobia manifests itself in different forms, for example homophobic jokes, physical attacks, discrimination in the workplace and negative media representation. For people who have been brought up to believe that homosexuality is wrong, the realisation that they might be gay can cause feelings of shame and self loathing, leading to low self-esteem. Suppressing homosexuality involves denying an important part of a person's identity, and can have a serious impact upon their life and relationships. Furthermore, the dilemma of whether to ‗come out‘ or not can cause a great deal of personal distress. LGBT people who make the decision to declare their sexual orientation can face prejudice and discrimination from their family, friends, and also from wider society. Homophobia can cause extreme harm and disruption to people's lives. For example, many LGBT people have become homeless as a result of being rejected by their families after revealing their sexual orientation. Homophobic individuals play an effective role in inferring with the lives of LGBT individuals. They cannot suppress their feelings of hatred and the fact that they cannot accept LGBT individuals. Thus, they harass LGBT individuals verbally or physically and expose them to violence. Such attitudes direct LGBT individuals to stress, dissatisfaction of the place they live in, exposure to physical disturbance, loneliness and ostracism.
5.Harassment of LGBT Students in schools: LGBT students face harassment in schools. Being a teenager is tough enough without fearing harassment in a place where you‘re supposed to feel safe. All over the country lesbian, gay, bisexual and transgender (LGBT) students get harassed every day in school. Students who may be even just perceived as being LGBT also get harassed.
Current Status of LGBT Legal Rights:
Since, it was decriminalised in 2009 by Honourable Delhi High Court in Naz Foundation v Govt. of NCT of Delhi found Section 377 and Legal Prohibitions against private, adult, consensual and non-commercial same sex conduct to be in direct violation of Fundamental Right provided by Indian Constitution, but in 2013 was again recriminalized and declared as illegal under Section 377 of Indian Penal Code by Honourable Supreme Court of India.
On 28th January 2014, The Supreme Court of India dismissed the review petition filed by The Central Government, The Naz foundation and several others against its 11th December verdict on Section 377 of IPC. The Bench explained the ruling by claiming that “While reading down Section 377, The High Court overlooked that a minuscule fraction of the country’s population constitutes Lesbians, Gays, Bisexual or transgender people, And in the more than 150 years past, less than 200 persons have been prosecuted for community offence under Section 377 and this cannot be made a sound basis for declaring that section ultra vires Articles 14,15 and 21.
In January 2018, The Supreme Court agreed to refer the question of Section 377’s validity to a large bench for examination before October 2018.
Since, Section 377 as well as Fundamental Rights are in contradiction and as a matter of fact, it is understandable that Constitution is the mother of all laws and shall definitely prevail.
Therefore, Right to privacy is a right of every human being apart from considering his/her sexual preferences and the people of LGBT Community should not be acquainted as the odds of society and shall stand equal to the mainstream society.
Author: Navin Kumar Jaggi
Co-Author: Ritika Chaudhary