QUEERING THE LAW: VIDHI’S REPORT ON HOW GENDERED LAWS

AFFECT LGBTQ COMMUNITY

APPORV PAL

BACKGROUND:

Queering the law is a report authored by Vidhi Centre for Legal Policy. Vidhi is an independent
think-tank organization which publishes report, by doing legal research, to make better laws and
improve good-governance for the public. This report brings out that how our laws create
nuisance by distorted and restrictive understanding of sexual and gender complexities that exist
in over society, severely affecting the people belonging to the LGBTQI community (generally
referred as LGBT community). This report published by Vidhi reveals a gap experienced by
people belonging to the LGBT community.

LGBT is an initialism which stands for lesbian, gay, bisexual and transgender. LGBT is a
community of diverse sexuality and gender identity-based cultures. It is used to refer those
peoples who are non-heterosexual or non-cisgender.

CURRENT ISSUE:

The Vidhi report is divided into four parts dealing differently with the problems of LGBT. These
four parts are headed as: A) the freezing of gender identity by law, B) Accounting for change in
gender identity in law, C) Gendered Drafting of Laws D) Identity documents, sex and gender
identity.

1. The Freezing of gender identity by law: this section reveals that how at the starting stage
of a life a LGBT suffers gender discrimination.
It is compulsory to fill the birth details and get a birth certificate of a child. But the
presence of only options for sex ‘male’ and ‘female’ on the birth report and birth
certificate not only leads to the assignment of sex, and consequently gender, within the
binary at birth, but also goes to that intersex bodies are completely invisiblised in the law.
The law wants to fix the gender only on these two bases which will lead to dangerous
non-consensual surgery of infants.
Despite of the landmark plethora of judgments the medical community at large continues
to be ignorant of discourse on sexual orientation and gender identity, and till date,
medical text treat non-normative genders and sexual orientations as deviant. Now the
irony is Indian law also prohibits and criminalises non-consensual surgeries carried out
on persons with intersex variations under section 322 of the Indian Penal Code, 1860.
2. Accounting for change in gender identity in law: The NALSA judgment grant
fundamental right to persons for choosing their gender which can be different from the
one assigned to them at the time of birth. But the bill, Transgender Persons (protection of
 Rights) Bill 2018, passed by the parliament remains silent on the status of rights and
liabilities of a person upon change of their gender identity.
3. Gendered Drafting of Laws: Section 13(1) of the General Clause Act says that word
‘masculine gender’ shall be taken to include females unless specified. This section not
entrenches the presumption of male as the universal norm but also reinforces the binary
by presuming that there exist only two genders i.e., male and female.
4. Identity documents: identity documents are paramount in today’s society. The identity
documents generally consist of name and gender of a person. For transgender the process
of changing gender is very complex. Even the transgenders bill doesn’t come up with
proper aid. It came with a process of surgery which is very complicated.

CONCLUSION:

After plethora of landmark judgments the law still differentiates the LGBT community.
Everyday LGBT people faces many problems, their rights are still not clear. The judgment have
defined many laws and rules for the LGBT community but they are still not followed.