Same sex marriage: a fight for

equality
Table of Contents
 Introduction
 Background
 Current situation vis a vis Indian law regime
 Same-sex marriage : Global status
 Conclusion

Introduction

Two decades ago in May 1994 when ABVA (AIDS bhedbhav virodhi Andolan)
filed a writ in Delhi High Court, for section 377 to be declared
unconstitutional. No one thought that in a country like India where people
still are not able to accept inter-caste or inter-religion marriages, one-day
Homosexuality will be made legal. On 6 September 2018, modern India and
especially the LGBT community won the colossal battle against the orthodox
society clenched in chains of social culture and societal norms when a five-
judge bench of the Supreme Court consisting of Rohinton Nariman, D.Y
Chandrachud, Indu Malhotra, Ajay Khanwilkar and Dipak Misra ordered to
decriminalize Section 377 of the Indian Penal Code.

The landmark judgment gave the LGBT Community equal status and
recognition for which they fought for decades. Many considered it as a big
win but this was not the end, same-sex marriage is still prohibited. LGBTQ
still cannot get the recognition of law as well as the society for being a
worthy spouse. The project works towards the legalization of same-sex
marriage so that the LGBT people can avail of all the legal rights available to
a normal couple. In India, our constitution and all the personal laws give
every person a person irrespective of gender ‘Right to Marriage’. Currently,
around the globe, there are 30 countries that allow same-sex marriages and
in India, we are still fighting for it. Only passing the judgment that legalizes
same-sex marriage wouldn’t be enough. As in a country like India, marriages
are validated both by legal as well as social recognition. It will take time but
surely one day both our society and the legal system will accept same-sex
marriages.

Background
The first instance of same-sex marriage was reported by the media in 1987
when two policewomen from Madhya Pradesh tied knots with each other by
Hindu rites. Since then the media has reported numerous same-sex
marriages taking place in the country. Few succeeded in their cause while
some were barred by law and others were separated by society. But now
with the changing times, people have become more aware and courageous
enough to accept their homosexual relations openly. Recently famous Indian
athlete, Dutee Chand publicly accepted her same-sex relationship and asked
other members of the LGBTQ community to be more courageous. After the
Navtej Singh Johar v. Union of India case Arundhati Katju and Menaka
Guruswamy, the leading lawyers came up with ‘The Marriage Project’. This
project aims to legalize of same-sex marriages in India.

Current situation vis a vis Indian law

regime
Being, in a country like India marriages are considered a very strong legal
and social institution. In our culture marriage comes with legal rights and
social responsibilities. Marriage is such an important part of a person’s life
our constitution has given full freedom to every one of life partner of their
own choice under the ‘Right to Marry’ which is considered under Article
21 ‘Right of Life’. Shakti Vahini V. Union of India, in this case, the
Supreme Court held that an adult has the fundamental right to marry any
person of his choice. Even in the Hindu Marriage Act, 1955 it is nowhere
mentioned that the marriage should only be held between a man and a
woman only. In June 2019 a survey was held by OkCupid, a dating app in
which nearly 69 percent of people were in favor of legalizing same-sex
marriages.

The question here is, if the legalization of same-sex marriage is not violating
any personal law and the common masses also want it what is the harm in
allowing the union of two people of same-sex? Are we still following the
parameters set by the orthodox society? Things have evolved and the legal
system has also changed with time, then why are we not giving basic rights
to a sexual minority?

Recently on September 8, 2020, four representatives of the LGBTQ moved to

Delhi HC by filling a PIL (Public Interest Litigation) saying that they should be
allowed to get married under The Hindu Marriage Act, 1955. The petitioners
argued that due to such restrictions they are being deprived of their
Constitutional Rights. A similar petition has been filled by Nikesh Pushkaran
and Sonu MS in Kerala high court; they have challenged the Special Marriage
Act and are demanding the rights given to a normal couple. The Madras high
court recently held that a transsexual person can also be considered as a
bride under the Hindu Marriage Act, 1955. Court gave references to incidents
from Ramayana and Mahabharata and gave the order that the marriage of
the petitioners should be registered. Even after all this, LGBT couples do not
have basic rights of marriage, adoption, and inheritance.

Obergefell v. Hodges, in this case, the Supreme Court of the United States
held that same-sex marriage is a result of the right to marry which is also a
fundamental right. Article 15 of our constitution says that the state shall not
discriminate on any grounds of religion, race, caste, sex, place of birth
against any citizen. This tells that such barring of same-sex marriages is a
clear violation of our basic fundamental rights.

Same-sex marriage : Global status

As the LGBTQ people have started questioning about their rights,
governments have also started thinking about legalizing same-sex
marriages. Till now there are a total of 30 countries that have lifted the ban
on same-sex marriages. Most of them are developed nations mainly from
Europe and America. In 2001, the Netherlands became the first country
to allow same-sex marriages. In 2010 gay people were allowed in the US
military. El Di Rupo, of Belgium, became the first gay Prime Minister. In May
2020 Costa Rica gave recognition to same-sex marriages. In the coming
time, more countries will recognize same-sex marriages and the LGBTQ
community will get the equal status they have been fighting for years.

Conclusion
The main issue with the legalization of same-sex marriages is that people
start opposing it on the name of various religious and cultural aspects. While
arguing in Delhi HC solicitor-general Tushar Mehta said that same-sex
marriages are against “our law, legal system, society, and values”. It
disappointing that a young democracy is so stiff that it took nearly 24 years
(the petition was filed in 1994) just to decriminalize homosexuality and allow
to people to freely love each other and now it has become so rigid because of
values and society that a group of sexual minorities are not been given the
liberty to marry someone of their own choice. Keeping aside the religious and
political angle the legal system should allow the LGBTQ community to get
their marriage registered under the Special Marriage Act, 1954.

The point here is that the queer community is not limited only to any specific
religion or group therefore, no one will hinder the recognition of marriage on
the name of values and culture if the marriage is registered under the
Special Marriage Act. Mere, changing of law will not give recognition to
marriage acceptance of society is also necessary. The only way through this
can be done is that people should be made aware and should be educated to
the level where they can understand that every person has the right to
choose their life partner. Now, the time has that we equal status,
recognition, and rights for which the LGBTQ community has been fighting.
Evolution of LGBT Rights in
India and taking the narrative
forward: Living free and equal
Table of Contents
 Introduction
 Evolution of LGBT Rights
o Naz Foundation Govt. v. NCT of Delhi
o Suresh Kumar Koushal vs Naz Foundation
o National Legal Services Authority v. Union of India
o K.S. Puttaswamy v Union of India (2017)
o Navtej Singh Johar V. Union of India
o Transgender Persons (Protection of Rights) Bill, 2019
 The way forward
o Same-sex Marriages
 Relevance of marriage
 Is right to marry a legal right
 Instances of same-sex marriages
 Personal Laws and Same-sex marriages
 Recent developments
 Making marriage laws inclusive of LGBT+ community
 Exploring the options
 Amending, modifying or changing the language of the
laws
 Importance of defining the terms
 Conjugal bond
 Implications of changing one’s gender identity
 Alternative model
o Adoption, Guardianship and Surrogacy
 Adoption
 Regulations on Adoption
 Hindu Adoption and Maintenance Act, 2005
 Adoption regulation
 Same-sex couples and transgender people
 How the adoption laws discriminate the
LGBTQIA+ couples
 Inferior family argument
 Same-sex marriages are not recognised
 Guardianship
 Overview
 Background
 Recent developments
 Heteronormative Presumptions
 Best Interest of the child
 Surrogacy
 Restrictions and Regulations
 Fails to establish nexus with the prime objective
 Criticism
 LGBTQIA+ couples are most vulnerable in the group
o Inheritance laws
 Background
 Gender of the Intestate
  Making the laws Gender Neutral
 Case laws
o Protection against discrimination at the workplace
 Transgender people are the worst sufferers
 i) Unorganised/ Informal Sector
 ii) Instances of workplace discrimination
 LGBTQIA+ community
 No recognition of LGBTQIA+ families
 i) Workmen’s Compensations Act, 1923
 ii) Payment of Gratuity Act, 1972
 iii)Factories Act, 1968
 Maternity Benefits
 Protection against sexual harassment at workplace
 Organisations can formulate their own policies
 Summary
o Protection against bullying in Educational Institutions

 Discrimination against LGBT+ in schools
 Consequences of bullying
 Reasons for bullying
 Suggestions
 i) Sex Education
 Making anti-bullying laws
 Discrimination against LGBT+ in colleges and Higher
Educational Institutions
 Conclusion

Introduction

6th of September 2018 was not an ordinary day. Something momentous

happened on the day that “blew a life of “constitutionality” in the dead
members of the LGBTQIA+ community, who have been subjected to
centuries of mind-numbing toil. What marked the day special for the LGBT+
community was that the Supreme Court of India delivered a historical verdict
decriminalising homosexuality by partially striking down Section 377 of IPC.

The LGBT community all across the country erupted in the jubilant
celebration enjoying their victory against the 200-year-old British-era law,
that criminalised same-sex relationship. The significance of this whole
judgement can be surmised in the light of the statement made by Justice
Indu Malhotra while reading her 50-page verdict that “History owes an
apology to the members of this community and their families, for the delay
in providing redressal for the ignominy and ostracism that they have suffered
through the centuries”.
However, this landmark event should not be construed as the culmination of
more than two decades of a legal fight against the draconian law but rather
should be understood as a beginning of a new era in the fight for LGBT
Rights. It would not be wrong to say that the repealing of the colonial law
was merely a tip of the iceberg and the LGBT community in India has a much
larger and bigger struggle ahead of them.

Despite homosexuality been decriminalised, the laws in India still remain

hostile and prejudicial towards the LGBT community in several ways.The
reason behind this is that there exists an enormous gap between the
legislative and the judicial development of LGBT laws in India. So, though the
Supreme Court of India through the landmark judgements of National Legal
Services Authority v. Union of India, Navtej Singh johar v. UOI, and Justice
K.S.Puttaswamy v. Union of India (Puttaswamy) has laid the groundwork to
confer upon the queer and non-binary community a bundle of basic human
rights, but the legislature has failed to keep up with the recent
developments.

So essentially speaking, the same-sex couples now have the legal right to
cohabit and conduct their personal affairs without any fear of persecution but
are still denied equality of treatment in various aspects. Thus, it is imperative
to take the conversation forward and talk about the various laws that
continue to discriminate against the LGBT+ persons. It includes anti-
discriminatory laws such as no recognition of same-sex marriages, no rights
for adoption, surrogacy etc.

So, the fight for equality continues as there is a long battle waiting ahead,
swarmed with numerous difficulties given that the LGBTQ+ community
remains closed off to civil rights.

Click Above

Evolution of LGBT Rights

Section 377 of IPC which criminalised all kinds of non-procreative sexual
intercourse was enacted in the pre-independence era by the British colonial
Government. The despotic law was not only directed against the
homosexuals but also covered all other forms of non-traditional sexual
intercourse even in the course of heterosexual union. So this law was nothing
but a residue of the orthodox Victorian morality which had no place in a
democratic country like India.

However, it took more than 70 years and almost 2 decades of the long legal
battle to scrape down this old age law that had become a weapon to harass
and exploit all those who didn’t conform with the traditional binary of
sexuality and gender. But before proceeding to understand how the current
laws in India, even after the scrapping of Section 377, are insufficient in
securing basic human rights to the LGBT+ community in India. Let us first
trace back the history of the LGBT rights movement in India, discussing
some landmark Judgements and their impact on the LGBT Rights movement
to have a comprehensive discussion further.

Though the beginning of the LGBT rights movement can be traced back to
the early 1990s but all the major developments that happened since then
can be discussed in the reference of the following key judgements and their
aftermath.

Naz Foundation Govt. v. NCT of Delhi

Background: In July 2001, eager to press charges under Section 377 of
IPC, Lucknow police raided a park and detained a few men on the suspicion
of them being homosexuals.

The police also arrested nine more men associated with “ Bharosa Trust”, an
NGO which was working to create awareness amongst people about safe
sexual practices and STD’s. These people were then accused of running a sex
racket and were denied bail. It was then that The Lawyers Collective, a legal
aid organisation, came forward and established that the charges pressed
against these people were false and finally they were released.
After the Lucknow incident, an NGO Naz Foundation along with Lawyers
Collective went ahead and filed a petition before the Delhi High Court in 2001
challenging the constitutional validity of Section 377 of IPC.

Arguments: The petitioner argued that Section 377 of IPC violated the
fundamental right to life and liberty, right to privacy and dignity, right to
health, right to equality and freedom of expression. It was also submitted
that the law undermined the public health efforts that aimed at reducing the
risk of transmission of HIV/AIDS, as the fear of prosecution under the
Section prevented people from talking openly about sexuality and lifestyle.

Judgement: Finally, In 2009 in the case of Naz Foundation Govt. v. NCT

of Delhi, the High Court of Delhi held that Section 377 of IPC imposed an
unreasonable restriction over two adults engaging in consensual intercourse
in private. Thus, it was in direct violation of their basic fundamental rights
enshrined under Articles 14,15,19 and 21 of the Indian Constitution.

Suresh Kumar Koushal vs Naz Foundation

Background: Various Individuals and faith-based groups vehemently
rejected the idea of decriminalizing homosexual relationships, in light of
India’s rich history bathed in ethics and tradition. They further appealed
before the Supreme Court of India to reconsider the constitutionality of
Section 377.

Judgment: When the community, after eight years of a long battle, was just
letting out a sigh of relief, the Supreme Court on 11th December 2013,
overturned the judgment of the Delhi High Court and re-criminalised
homosexuality. A bench of Justice GS Singhvi and Justice SJ
Mukhopadhaya Court held that LGBT+ persons constituted a ‘minuscule
minority’ and therefore did not deserve constitutional protection and further
observed that Section 377 of IPC did not suffer from the vice of
unconstitutionality.
Aftermath: But the silver lining was that the Suresh Kumar Koushal V. Naz
Foundation judgement, instead of putting a halt on the LGBT movement has
rather rekindled a new wave of activism in India. The Supreme Court’s
iconoclastic judgement faced immense criticism from every nook and corner
for erasing basic human rights of homosexuals. The result was that public
discourse about LGBT rights witnessed an upsurge in India.

National Legal Services Authority v. Union of

India
Background: The transgender community in India has been the worst
sufferer of exploitation amongst the whole LGBT+ community due to their
degraded social, educational and economical status. These people have never
been considered as a part of society and have always been subjected to
exploitation, ostracisation, humiliation and violence either in the hands of
society or the authorities in power. The constant rejection and not having
access to resources, these people often resort to beggary or prostitution,
making them more vulnerable to discrimination, STD’s and crimes such as
human trafficking.

But the 2014 Judgement of the Supreme Court brought in a new ray of hope
and euphoria for these transgender people as for the first time in the history,
they were recognised as the third gender.

Issue: In National Legal Services Authority v Union of India, the

Supreme Court had to decide upon the question of whether there was a need
to recognise the hijra and transgender community as a third gender for the
purposes of public health, education, employment, reservation and other
welfare schemes.

Judgement: The Supreme Court in its landmark judgement created the

‘third gender’ status for hijras or transgenders. As earlier, the transgender
people were forced to describe themselves as either male or female, but
after the judgement, they could proudly identify themselves as transgender.
But apart from this, what made this judgement so special was that it laid
down the framework to guarantee the transgender community a whole
spectrum of basic human rights which can be surmised as follows:

1. The court held that the non-recognition of their identities was in

violation of Article 14,15,16 and 21 of the Constitution of India.
2. The Supreme court further directed the Government of India to
treat the members of “Third Gender” as an economically and socially
backward class.
3. It was also stipulated that government should make proper policies
for the transgender community in the light of Articles 15(2) and
16(4) to ensure equality of opportunity in education and
employment As per the judgement, the third gender would be
categorised as other backward classes [OBC] to confer them the
benefit of reservation in relation to government jobs and
educational institutions.
4. The court also took cognizance that a conflict between one’s birth
gender and identity is not essentially a pathological condition. So,
rather than adopting a “treatment of the abnormality”, the focus
should be on “ resolving distress over a mismatch”.

In simple words, it means that the court recognised the difference

between both the gender and biological components of sex. The court
defined biological characteristics to include genital, secondary sexual
features, chromosomes etc. but defined gender attributes as one’s self-image
i.e. an individual’s deep emotional or psychological sense of sexual identity
and character which is not restricted to the binary sense of male and female
but can lie on a broad spectrum.

Aftermath: After this judgement, transgender people now can change their
gender without undergoing a sex reassignment surgery Additionally, they
have a constitutional right to identify and register themselves as the third
gender. Apart from this, various state government took small steps to benefit
the transgender population by making policies of health and housing.
However, a major blow to this judgement came after the passing of
Transgender Persons Bill, 2018 the various intricacies of which will be dealt
with later in this article.

K.S. Puttaswamy v Union of India (2017)

Background: In the Suresh Kumar Koushal V. Naz Foundation judgement
when the Naz Foundation argued before the Supreme court that Section 377
of IPC violated the right to privacy, the Supreme court went on length giving
a detailed account of constitutional jurisprudence and the evolution of the
right to privacy. However, after establishing the vital significance of this
right, the court underestimated the right to privacy argument in the context
of 377. The court recogonised that although there have been cases of misuse
of Section 377 against the LGBT+ community putting their privacy and
integrity at stake on the pretext of blackmailing, harassing or torture, and in
general. But the same has never been the objective of the section as the
section itself neither authorises nor condones such treatment and thus is not
reflective of the fact that such law is beyond the vires of constitution.

Judgment: However in K Puttaswamy V. Union of India case, (popularly

called as Aadhar judgement) Justice Chandrachud’s opinion featured a
section titled “discordant notes.” It basically dealt with two Supreme court
judgements. The first was about the infamous case of Additional District
Magistrate, Jabalpur v S.S. Shukla which upheld the denial of basic
fundamental rights while the second part referred to the Koushal case
rejecting the rhetoric of the “so-called” rights of the LGBTQ+ community.

Justice Chandrachud observed that sexual orientation also falls within

the wide ambit of right to privacy. Puttaswamy decision notes also
registered the criticism about minimis hypothesis principle used in the
Koushal judgement and stated that the minuscule population of LGBT+
cannot be the ground to deprive them of the basic fundamental rights and
such curtailment of the fundamental right cannot be held tolerable even
when a few, as opposed to a large number of people, are subjected to hostile
treatment.
This acknowledgement is important because of the reasons:

1. In Koushal judgment it was argued that only a few people were

prosecuted under the offence of section 377 thus it does not have
much significance. However, what was largely ignored was the fact
that since consent does not play any significance in the prosecution
of section 377, the numbers cannot be a valid proof of the extent of
use of this section as they cannot indicate the instances of
consensual sexual encounters.
2. Another thing that this observation established is that the real
impact of the law is not only restricted to the prosecution or
punishment but even includes an indirect impact which even
involves the creation of a hostile environment for LGBTQ+
community.

The Supreme Court’s ruling on the right to privacy as an inherent

fundamental right under Article 21 in the Indian Constitution, sparked
hopes amongst the queer community that the Court would soon strike down
Section 377.

Navtej Singh Johar V. Union of India

Background: After the overruling of the Delhi High Court judgement in
2013, homosexuals were again considered as criminals.

India witnessed an increasing number of LGBT rights protests when some

high profile names including hotelier Keshav Suri, Ritu Dalmia, dancer Navtej
Singh Johar among many others came forward and filed the petition before
the Supreme court challenging the constitutional validity of Section 377 of
IPC.

Arguments: The Supreme court agreed to refer the issue to a larger bench
and heard several petitions in relation to it. The Government further stated
that it will not interfere and will leave the matter to be decided in accordance
with the wisdom of the court. Arguments were advanced that section 377
violated the constitutional rights to privacy, freedom of expression, equality,
human dignity and protection from discrimination.

Judgement: The Court finally gave its verdict on 6th September 2018 and it
can be summarised as follows:

1. The court unanimously ruled that Section 377 is unconstitutional as

it infringes the fundamental rights of intimacy, autonomy and
identity. and decriminalised homosexuality by reading down Section
377 to exclude consensual intercourse between adults of the same
sex/gender.
2. The court rationalised that the Section 377 is vague and does not
create intelligible differentia between what is “natural” and what is
“unnatural”. It also curbs freedom of expressing one’s sexual
identity, ie. right to freedom of expression as enshrined under
Article 19 of the Indian constitution.
3. The court further opined that the sexual orientation is an inherent
part of self-identity and invalidating the same is denying the right to
life and the fact that they constitute a minuscule section of the
population cannot be a valid justification to deny them this right.
4. The court also heavily criticised the Koushal judgement and called it
irrational, arbitrary and manifestly unconstitutional.
5. It was also emphasised that discrimination on the basis of sexual
orientation is unconstitutional considering it is a natural
phenomenon as proven by scientific and biological facts.
6. The Supreme court also directed the government to create public
awareness regarding LGBT rights and to eliminate the stigma
surrounding the LGBT people. The judges further elaborated upon
the issues surrounding mental health, dignity, privacy, right to self-
determination and transgenders.
Transgender Persons (Protection of Rights)
Bill, 2019
Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an
objective to protect the rights of the Transgender Community by prohibiting
discrimination against them with regards to employment, education.
healthcare, access to government or private establishments. But in the name
of empowering the community, the bill further exposes them to institutional
oppression and dehumanises their body and identity.

The trans community in India has vehemently rejected the bill citing
following provisions of the bill as they infringe their fundamental rights and
do not comply with the NALSA judgement.

1. The bill snatches from an individual the right to determine his/her

sexual orientation which is an integral component of the right to
privacy as pronounced in the NALSA judgement. As per the bill, the
change of gender identity in documents can only be done after proof
of sex reassignment surgery which must be certified by the District
Magistrate. This takes away from the Trans community the basic
human right of autonomy and privacy and further exposes them to
harassment in the hands of authorities.
2. Another discriminatory aspect of the bill is that the punishment
prescribed in the case of ‘ Sexual abuse against Transgender’ is only
of two years while a similar kind of offence if, happened against
women attracts a serious punishment extending up to 7 years.
Thus, stipulating different levels of punishments for the same nature
of crime only on the basis of gender identity is inherently
discriminatory, arbitrary and against the equal protection clause.
3. The bill is also worthy to be criticised as the bill erroneously neglects
the viciousness and atrocities that transgenders encounter within
their own family. The law disentitles them from leaving their families
and joining the trans-community thus infringing their right to be a
part of any association and right to movement. The only recourse
 available to the trans community in case of family violence are the
rehabilitation centres.
4. Although the bill seeks to provide “inclusive education and
opportunities” to the transgender community but fails to lay down
any concrete plan to achieve the same. There are no provisions in
relation to providing any scholarships, reservation, changing the
curriculum to make it LGBT+ inclusive or ensuring safe inclusive
schools and workplaces for the trans-community.

Therefore, it can be concluded that on one hand where the courts are taking
progressive steps to empower and uphold the rights of LGBTQIA+
community, on the other hand, the legislature is invalidating the same rights.
It is high time that the government should acknowledge and frame laws in
accordance with the landmark judgement else the LGBTQ community will
continue to face setbacks in their struggle to have the same rights as those
available to heterosexual people.

The way forward

After having such a comprehensive discussion about the evolution of the
LGBT rights movement in India and understanding the relevance of various
judicial pronouncements, we are in a position to proceed towards the
understanding of how these judgments will shape the future of the LGBT
rights movement in India.

Therefore it becomes important to consider here that the significance of the

NALSA judgement and Navtej Singh Johar judgement is not only limited to
the recognition of third gender identity and decriminalisation homosexuality.
But these judgements are also progressive because apart from deciding upon
the issue in hand, they even laid down the basic groundwork to confer a host
of other civil rights which were earlier not available to the LGBT community
but are ordinarily enjoyed by the heterosexual persons and cisgender
persons.
These civil rights include the right to marriage, right to adoption, right to
surrogacy, right against discrimination, freedom from sexual assault etc.

Same-sex Marriages
Special Marriage Act of 1954 lays down provision for people of India and all
Indian nationals in foreign countries allowing them to marry irrespective of
their faith, caste and religion. So, while the marriage laws in India have
evolved progressively with time but there is no such provision for the same-
sex couples to marry, which seems reasonable also considering it’s only been
two years when the Supreme court decriminalised homosexuality. However,
sooner or later the legislature has to deal with these questions.

There are several petitions on same-sex marriages pending with the courts.
So the next onus on the LGBT activists is to encourage and demand from the
government to formulate legislation permitting LGBTQ couples to marry,
adopt and inherit their spouse’s property. However, the fact is that although
the Union government, in 2018 left it for the court to decide on the legality of
section 377, but has also indicated that it is likely to oppose any petition for
same-sex marriage.

But this seems to be contradictory in the light of the judicial pronouncements

considering that if we really want to adhere to the principle of equality in the
context of LGBT people then the right to marry, bequeath property, share
insurance (medical and life) are all part of this. Therefore, denial of these
basic rights only on the basis of sexual orientation is objectionable and
unconstitutional violating the constitutional rights of right to equality (Article
14) and liberty (Article 19).

Relevance of marriage

Marriage has been one of the strongest and most important institutions of
human society. With time it has evolved and changed its forms but what
didn’t change is that marriage continues to be a universal fact. This has more
relevance especially in the case of India, where the concept is so deeply
entwined that everyone is expected to be a part of it.

In India, marriages and weddings are considered as a sacred thing. Marriage

apart from regulating sex life is also a relationship grounded on economical
and emotional interdependency. The religious ceremonies conducted are all
considered an essential part of marriage. This perhaps explains why the
LGBT community in India is so eager to get the legal right to marry or why
there are so many instances of gay and lesbian marriages performed in India
by the exchange of garlands in temples or quasi-legal friendship contracts in
several reported cases.

The denial of marriage rights to LGBTQ+ people deprives same-sex couples

of social and legal recognition as well as the state benefits that married
persons enjoy. However, it is essential to point out that the institution of
marriage since its inception has been exclusionary towards certain
communities of people and whenever any group of people has been included
or excluded from being able to marry, it has always been accompanied with a
battle between public policy, religion, and social norms.

Is right to marry a legal right

Right to marry is not expressly mentioned in the constitution. But, in the

landmark case of Lata Singh v. State of Uttar Pradesh AIR 2006 SC
2522 the supreme court interpreted it to be a part of Article 21 of the Indian
constitution. The supreme court in this case of inter-caste marriage stated
that after a person becomes major, he/she can marry whomsoever he/she
likes. The court further opined that the maximum the parent can do is that
they can cut all their ties from the children but can’t threaten or kill them.

Right to marriage is also recognised at International level in human rights

charter under the heading of “right to have a family” and under various other
covenants, but are these laws inclusive enough to include same-sex
marriages is still a big question. Another very important thing that should be
pointed out here is the fact that even when the corners of the whole world
are expanding, Indian society is still conservative and people still don’t prefer
or allow their children to marry inter-caste. Even today people are killed
because of marrying in different caste and religion, then it seems reasonable
that the idea of same-sex marriage is even more difficult to accept.

However, this reason cannot be a valid justification to deny the whole LGBT+
community the right to marry just because they have a different sexual
orientation from others. Apart from this, it also raises another very pertinent
question that whether the opinion of the majority holds more significance in
the eyes of law that it can deprive an individual of the personal autonomy
and basic right to his/her own life.

Instances of same-sex marriages

Despite there being no legislation in India governing same-sex couple

marriages. LGBT people still marry and there have been instances when the
courts have recognised these kinds of union.

After the decriminalisation of homosexuality in 2009, the Haryana court

effectively recognised marriage between two lesbians. But a more significant
judgement came in 2019 after the scrapping of Section 377 by the Supreme
court. In 2019 a bench of Madras High court upheld the marriage between a
biological man and a trans woman under the Hindu marriage act 1956 and
the court further directed to register their marriage.

Some similar instances of acceptance of same-sex marriages can also be

found at the community level. In 1988 two police women married each other
in a Hindu ceremony Though not registered but their marriage was accepted
and supported by their families and the community. Apart from this, similar
kind of same-sex marriages have been happening in small village Angaar in
Gujarat amongst the Kutchi for the past 150 years, where both the bride and
bridegroom are men.

Further, it’s also very important to note that most such same-sex marriages,
especially lesbian marriages, have largely happened between small-town,
lower-middle-class or between non-English speaking women who are not
even connected to the LGBT movement.

Personal Laws and Same-sex marriages

Family laws in India are categorised under two heads i.e. personal and
secular laws:

1. Secular laws are applied to all the citizens regardless of their faith,
caste etc. ie. Special Marriage Act.
2. Personal laws differ from religion to religion. There are primarily four
personal laws governing marriages in India.

 Hindus, Sikhs, Buddhists and Jains are governed by the Hindu

Marriage Act.
 Muslims are governed by Sharia law.
 Christians are governed by Christian marriage Act.
 Parsis are governed by the Parsi Marriage and Divorce Act, 1936.

On examining the religious standing of same-sex marriages in India it can be

summarised as follows:

Hinduism: While the followers of Hinduism have different stances on

homosexuality as a whole. However, there is enough literature available in
Hinduism that speaks volume about same-sex relationships and as an
extension to same-sex marriages.

There are temples carvings in India depicting same-sex relationships.

Instances can also be found in various mythical stories such as God Ayappa
being born out of Lord Shiva and Lord Vishnu. Story of Bhagiratha being born
from two women who had sexual intercourse under divine blessings,
description of homosexual acts in Kamasutra, a queer character ‘Sikhandi’ in
Mahabharata and homosexual Tantric rituals are some historical evidences of
same-sex relationships. However, in certain texts homosexuality is
condemned but it is mainly on the premise that humans give unnecessary
importance to sex.
Islam: Islamic Shariah law is extracted from the Quran and Muhammad’s
Sunnah. It’s very clear in Islam that homosexuality is a punishable sin. This
view remains the same in all four primary schools of Sunni jurisprudence.
Further according to Islamic principles Muhammad stated that effeminate
men and masculine women deserves to be cursed and should be thrown out
of houses.

Christianity: The only confusion regarding homosexuality in Christianity is

about the question that how should homosexuals be treated. Should they be
considered as criminals or should their behaviour be rectified. In both cases,
the position is clear that homosexuality is condemned in Christianity.

Parsis: In Zoroastrianism too, homosexuality is considered something evil

and is strongly forbidden. However, there are certain followers who support
LGBT+ people and consider the above interpretation as a distortion of the
basic principle of “good thought, good word, good deed”.

Jainism and Buddhism: In Jains, the stance is very clear. They discourage
all kinds of sexual activities that are not done for the purpose of reproduction
which means apart from homosexuality, even premarital sex, heterosexual
sex or sex for fun is also not allowed.

While Buddhists say that till the time any sexual activity is consensual and is
out of affection it is permissible. Dalai Lama also has a similar stance that
homosexual sex is allowed provided nobody is harmed and it’s completely
consensual.

Sikhism: In Sikhism, since the religious texts remain silent on this aspect
they don’t hold any same-sex marriages in their gurudwaras.

The significance of discussing the religious standing of same-sex marriages is

an essential pre-requisite before drafting any policy or law on same-sex
marriages. As essentially all the personal laws governing marriages are
derived from the available religious literature itself.So bearing in mind that
homosexuality is considered something as vile and unacceptable in most of
the religions except Hinduism and Buddhism. Therefore, any amendments in
the personal laws regarding LGBT+ cannot be a practical solution in the
status quo.

Further, this also must be viewed in the light of the fact that a number of
previous attempts to enact uniform civil code (UCC) were met with deep
resistance in India as minorities fear that UCC will restrict their freedom of
religion. This is primarily the reason why the law commission in August 2018
rejected the UCC as a recommendation.

In such a situation, the most viable manner of attaining legislative

recognition of same-sex marriages would be an amendment of the Special
Marriage Act which will be discussed later in this article.

Recent developments

In the Navtej Singh Johar judgement, Justice Chandrachud observed that the
manner in which an individual wants to exercise intimacy is beyond the
legitimate interest of the state. But despite granting everyone the right to
intimacy the judgement did not direct the government to frame or amend
laws to recognize such alternate forms of union or otherwise. As essentially
speaking when Justice Misra recognised the right to the union under Article
21, the word “union” was used in the context of companionship and not in
the reference to marriage.

It is also important to point out that the LGBT rights activists have suggested
various reforms to the law commission to make the family laws inclusive for
same-sex couples as well but the same has not received any due
consideration from the law commission.

However, with the Supreme court decision in NALSA judgement and more
recently in Navtej Singh Johar judgement, some of these restrictions can now
be potentially challenged under the robust framework of equality and non-
discrimination that has been recognised.
Making marriage laws inclusive of LGBT+ community

In order to recognize same-sex marriages, some new laws will have to

drafted, modified or inserted, as the present laws cannot be applied in the
case of LGBT marriages. There are 3 ways by which the marriage laws can be
made LGBT+ inclusive.

1. One view suggests that same-sex marriages can be permitted after

reinterpreting, modifying or amending the existing laws or by
making the language of the act gender-neutral.
2. The second view suggests that same-sex marriages should be
permitted after drafting a whole new Act by considering the LGBT+
as a separate community.
3. The third view suggests that considering India is still not progressive
enough and open to the idea of LGBT marriages, the legislature
instead of legalising same-sex marriages can rather give them a
different status such as that of a civil partnership, where they may
not have all the rights of marriage but can still enjoy various other
significant rights like sharing of insurance, filing joint tax returns
etc. ie. it can be rather recognized as a relationship based on
emotional and economical interdependency.

Exploring the options

Out of all these alternatives, the second option i.e. to draft a whole new law
for the same-sex marriages keeping in mind the needs and vulnerabilities of
LGBT+ people seems to be the most ideal way to ensure marriage equality.
However, considering the nature of the Indian landscape where the notions
of morality and traditions are deeply entrenched in society, drafting a
separate law governing LGBT marriages is still very distant.

So, what can be a more practical solution in the status quo is to either
amend, modify or make the language of the existing laws neutral to be
inclusive of LGBT+marriage, or the second option is to legalise an alternative
form of marriage. Therefore, in order to understand the practicability of this
concept, let’s discuss what are the major problems that will arise in
implementing these suggestions and what can be the possible solutions.

Amending, modifying or changing the language of the laws

There can be a number of problems that may arise in adopting this method
which is discussed as follows:

Importance of defining the terms

i) ‘Husband’ and ‘wife’

Since it is a normal understanding that the husband is considered to be a

male and the wife is considered to be a female. But in case of LGBT marriage
since both the partners are of the same gender this definition cant be
applied.

Further, If the meaning of the terms husband and wife are not properly
interpreted then it will result in ambiguity with regards to the application of
the law. For instance, Section 27(1-A) of the Special Marriage Act,
1954 provides the grounds on which a wife can take divorce but in case of
LGBT marriages there is confusion regarding the term wife.
Therefore, Section 3 of the Act i.e. definition clause can be reinterpreted to
remove the ambiguity in LGBT marriages.

ii) Prohibited degree

As per the Special Marriage Act (also in the Hindu Marriage Act), there are
certain prohibited degrees of relations between which the marriage can’t take
place. However, the degree of these relationships varies in the case of both
men and women. But since the LGBT marriages don’t happen between a
male and female, thus these terms will need to be redefined.

iii) Sodomy

In the case of the Special Marriage Act ( Hindu Marriage law and Parsi law as
well), sodomy is a ground for divorce. But after striking down of Section 377,
these terms need to be redefined.
iv)Grounds for divorce

Though grounds like adultery, desertion and cruelty are applicable to both
the genders but their interpretation varies in case of men and women. Thus
this power imbalance has to be clearly defined in the case of same-sex
marriages.

Conjugal bond

Since consummation is an important prerequisite of a valid marriage. and

absence of it can render a marriage voidable such as in case of impotency,
thus it will have to be redefined in the case of homosexual marriages. As this
concept of consummation is premised on cisgender male and cisgender
female relationship, it can technically render every LGBT marriage null and
void.

Implications of changing one’s gender identity

After the NALSA judgement, since each individual has the right to identify
himself/ herself as the third gender and also can undergo sex reassignment,
therefore, the gender assigned at birth is not permanent and can change
afterwards in some cases. So, while making changes in the law, legal rights
and obligations of people undergoing such transition also need to be defined.

Alternative model

Since heteronormative ideas are so deeply embedded in the institution of

marriage, thus, there are suggestions according to which instead of adding or
substracting in existing laws to make them inclusive of same-sex marriages,
rather we need to reconsider our definition of family to include families of
choice with greater levels of flexibility so those who opt out of traditional
family structure may not be disadvantaged.

It basically implies that other forms of sexual intimacy based on economical

and emotional interdependency should be legitimised such as a non-conjugal
caregiving relationship in case of LGBT marriage.
It can be an arrangement of a civil union or civil partnership such as those
recognised in Tasmania under Relationship Act, 2003, Civil Partnership Act,
2004 in the UK, where such unions allow the partners for joint tax returns,
insurance, pension and other rights and obligations, but are more flexible
than marriage. Similarly, same-sex marriages are also recognised in Canada
since 2005 and South Africa since 2006.

These unions are basically registered significant partnerships based on care

while other essentials of a marriage such as cohabitation are not integral. In
France also under the system of Pacte civil de solidarite, two individuals can
enter into a relationship of obligation and co-dependence and can decide the
terms on their own.

Adoption, Guardianship and Surrogacy

Adoption

In India, adoption is governed by both secular as well as religious laws. In

the case of Hindus, it is governed by Hindu adoption and maintenance Act,
1956 while there are no personal laws regarding adoption in case of Muslims,
Christians, Parsis etc.

But apart from this, there is another law i.e. Juvenile Justice care and
protection of children Act, 2015 (JJ Act), read with the adoption regulations
of 2017 framed by the Central Adoption Resource Agency (CARA). This act is
secular and allows adoption regardless of the religion of the person.

Regulations on Adoption

Hindu Adoption and Maintenance Act, 2005

HAMA provides that a Hindu married man or woman can adopt a child with
the consent of their partner. However, this permission will not be required in
the case if the partner is of unsound mind, or has renounced the world or has
changed his/her children. Similarly, this law also allows single men and
women to adopt a child, provided they have attained the age of majority and
are not of unsound mind.

Adoption regulation

The Adoption Regulation Act is much more stringent in terms of regulations

than the HAMA. Similar to the case of HAMA, here also the single men and
women can adopt as long as they are mentally, emotionally and financially
stable and are not suffering from any life-threatening disease. Apart from
this, the act does not allow a single man to adopt a girl child but a similar
restriction does not apply to a woman and she can adopt a male child. This is
different from HAMA where even a single male can also adopt a girl child
provided there is an age gap of twenty years between the two.

Same-sex couples and transgender people

Although Section 377 of IPC has been decriminalised still the law debars
LGBTQIA+ community from adopting children altogether. This demonstrates
the homosexual couples are not equal before the law.

How the adoption laws discriminate the LGBTQIA+ couples

1. According to regulation 5(3) of the Adoption Regulation Act, 2017,

only a couple having a stable relationship of two years is eligible to
adopt a child. Further, the section uses the words “husband” and
“wife” which basically means that it does not recognize the right to
adoption in case of same-sex couples.
2. Since there is a different set of adoption rules applied in the case of
men and women thus, the applicability of such laws with regards to
trans-couples will lead to ambiguity.
3. Further, in the light of NALSA judgement since people have the right
to choose their gender and undergo sex reassignment surgery as
well. Thus if in case a woman adopts a child but then undergoes sex
change become male, so there is a very little clarity about the legal
implications of the same.
There is no denying the fact that adoption is a complex issue and even
heterosexual couples also have a hard time in adopting a child considering
the anti-trafficking laws. But the fact is that at least a heterosexual couple
can apply for adoption while the same-sex couples are not even allowed to
adopt.

Inferior family argument

Another reasoning behind not allowing same-sex couples to adopt is that

every child must be able to know the value of both a mother and a father.
Thus same-sex couples should be denied the right to adopt as the child
should not be raised in an “ inferior family”. However, what is ironical is the
fact that law can abandon a child to be raised as an orphan without both the
parents rather than being brought up by homosexual and trans couples.

Disturbingly the law continues to disentitle the LGBTQIA+ couples from

adopting a child even when there are more than 20 million orphans and
abandoned children in India, out of which most of them are living in
abysmally poor conditions.

Same-sex marriages are not recognised

Another reason that since same-sex marriages are not legal in India,
therefore homosexual couples are not allowed to adopt a child together.

Guardianship

Overview

Guardianship essentially refers to a set of rights and obligations that an adult

has over the personhood and property of a minor. Guardianship and custody
are very closely related. In India, guardianship in case of Hindus is governed
by Hindu Minority Guardianship Act 1956 (HMGA) while the Guardianship and
wards Act 1956(GWA) is a secular law that is applicable to all the citizens.
Background

In India, traditionally only the father was considered as a natural guardian

and had the sole right over the child. Further, as per Section 6 of the Hindu
Marriage Act, the mother can have the guardianship right over the child only
after the father.

This was reinterpreted in the case of Geeta Hariharan V. Reserve Bank of

India, where the court pronounced that the expression “after the father”
should not be construed that mother can have guardianship right after the
death of the father but rather means that such right can be even exercised in
the absence of a father. Such as in the case when the father is not providing
for the child financially, emotionally or materially.

Recent developments

In 2010, the parliament amended the law to provide equal guardianship

rights to both mother and father. In 2015, in the case of ABC V. NCT of
Delhi, the court gave a very liberal judgement and recognised the
guardianship rights of the unwed mother and further went on to stipulate
that it’s not essential for the mother to disclose the name of the father.

Heteronormative Presumptions

Though the language of the act is gender-neutral, it is premised on the

notions of the gender binary. Thus, the existence of LGBTQIA+ parents or
transgender parents where the gender is not clear, the application of these
laws will pose some problems, hence it is important to define such terms.

Best Interest of the child

The principle of “best interest of the child” is the main consideration behind
granting anyone custody or guardianship. The court takes cognisance of the
fact that custody of the child is given to the person who displays care,
concern and can provide a familiar environment to the child. This principle is
extremely flexible and can be incorporated into a variety of fact situations.
So, in order to bring a guardianship law inclusive of the LGBT+ community
ie. in compliance with the NALSA and Navtej Singh Johar judgment, the
language of the law should go beyond the binary so that such individuals
regardless of gender, the structure of relationship or sexual orientation can
become guardians. But essentially speaking, this will significantly depend
upon how the term “ best interest of the child” shall be interpreted by the
court of law in the context of LGBTQIA+ community.

Surrogacy

According to the new surrogacy bill passed in the parliament, single people
and LGBTQIA+ couples are prohibited to have their own children through
surrogacy.

Although the bill has been passed with an aim to prohibit commercialisation
of surrogacy and prevent exploitation of mother and child, instead of fulfilling
the objective it has been reduced to an ”inflexible” piece of legislation that
reiterates the notions of “archaic family system” which is not in sync with the
present reality.

Restrictions and Regulations

The provisions of the bill passed are so stringent that even a heterosexual
couple cannot easily satisfy the requirements of the law to be eligible for
surrogacy. The bill inter-alia states that the surrogate mother must be a
“close relative”, without defining the term, or the condition that the couples
must have been married for the past five years without taking into account
their age and how late they must have been married etc. Further, the law
does not allow any unmarried men or women, or LGBTQIA+ couple to
become parents through surrogacy.

Fails to establish nexus with the prime objective

As per the legislature, the sole intention of the bill is to protect the rights of
surrogate mothers and to ban the commercial surrogacy in India. However,
the provisions and the object of the bill appears to have no rational nexus
with each other as if this would have been the prime objective of the
legislature then more focus would have been given to rehabilitation and
integration of the surrogate moms into our societal framework.

Criticism

The bill is worthy to be criticised as it excludes a vast section of society from

being eligible to have a child through surrogacy. The bill prohibits surrogacy
only on the basis of the marital status or sexual orientation of an individual
and also imposes extreme conditions even in the case of heterosexual
couples. It suffers from various loopholes that are needed to be addressed as
the present law is discriminatory against a lot of people.

LGBTQIA+ couples are most vulnerable in the group

Therefore, on analysing these conditions, thinking about granting the right to

surrogacy to the LGBTIA+ community looks even a more distant dream.
Another very important point that should be considered here is that the
people other than belonging to the LGBT community, such as single women,
single men etc. at least have the right to go for adoption or can become legal
guardians while sadly LGBTQIA+ couples are not even allowed to adopt or
become guardians also.

Inheritance laws

Background

Inheritance and succession laws in India are governed by a mix of personal

laws and secular laws. Hindus are governed by Hindu Succession Act, 1956,
while Muslims and Parsis have their own customary laws and then there is
an Indian succession Act, 1925 which after a series of amendments now
applies to all the Indians who are married under Special Marriage Act, 1954.
Gender of the Intestate

The most significant difference between the Indian Succession Act 1925 and
the other personal laws is with regards to the rights of women in the matters
of inheritance. While in the case of personal laws, there is a different scheme
of inheritance for males and females but no such differentiation exists in the
Hindu Succession Act 1956. In the Indian Succession Act 1925, the law
provides a uniform scheme regardless of the gender of the heir and the
determining factor is the nearness in relation to the deceased. This implies
that the surviving spouse and lineal descendants are made primary heirs,
regardless of the gender.

Making the laws Gender Neutral

Similar to the other laws it is implicit that the word “ marriage “ in the
inheritance laws is restricted only to the heterosexual marriages. So before
this law can be applied in the case of LGBT+ couples it is essential the law
recognises same-sex marriages. Apart from this, another point is to consider
is that although the gender is irrelevant and the inheritance happens on the
basis of nearness, yet it is essential that the language should be made
completely neutral so that even transgender people or the person who
undergoes sex change shall not be discriminated.

Case laws

In 2016, Himachal Pradesh High Court in the case of Sweety(eunuch) V.

General Public the court recognised the right of the appellant sweety “ guru”
over her deceased chela’s property following the “guru-chela parampara” in
the Hijra community. The court recognised the appellant as the family of the
deceased and her legal heir. This was in line with the 1990 judgement of the
Madhya Pradesh High court in the case of Ilyas Ors. V. Badshah where the
court, despite knowing the religion of the deceased, held that as per the
custom of the Hijra community the property shall not be willed away outside
the Hijra community.
However, what is unfortunate that though there have been constant
demands about the legal recognition of Hijra families especially after the
NALSA judgement, the law continues to undermine the legal existence of
such families firstly in the subsequent versions of the Private member bills in
2014 and then after the passing of the Transgender Persons (Protection of
Rights) Bill, 2019.

Protection against discrimination at the

workplace
LGBT workplace survey of 2016 showed that more than 40% of LGBT people
in India have faced harassment at their workplace because of their gender/
sexual identity. Many LGBT people often have to hide their sexual identities
because of the fear of potential discrimination or losing their jobs. Therefore
the access to employment and discrimination at the workplace continues to
pose a challenge for the LGBTQIA+ community.

Transgender people are the worst sufferers

i) Unorganised/ Informal Sector

This situation gets even more depressing in the case of transgender people
who often have low levels of literacy, poor access to education and vocational
training, and face a much more violent form of discrimination at the
workplace. Thus having no other alternative the transgender people often
resort to begging or sex work wherein they are disproportionately targeted
by the enforcement agencies and are often booked under Immoral Trafficking
Act (1956) and anti-beggary laws.

ii) Instances of workplace discrimination

There have been several instances of workplace discrimination against the

transgender people all across the country. One of the publicised cases in this
regard is the case of Manish Kumar Giri Alias Sabi Giri Vs Union Of India And
Ors.
In the instant case, Sabi Giri, ( was earlier a boy named Manish Kumar Gir)
who suffered from the Gender dysmorphia and when underwent a sex
change operation was dismissed from the navy. Military in defence said that
the present rules and regulations do not allow the sailor’s continued
employment in the navy owing to his altered gender status.

The case was argued in Delhi High court wherein the court suggested the
Navy find an alternative job for Giri. Thus despite having no proof of Sabi not
being able to do her job after her sex reassignment surgery she was thrown
out of her job and was rather offered a job as a data entry operator. Apart
from this, the petitioner also testified against the discrimination meted out to
her during the course of her employment, highlighting the dark truths about
work-place discrimination and the lack of awareness on the issue of
transgender rights.

However, it is also important to mention here that the Equal Remunerations

Act, 1956 prohibits discrimination between men and women at the stage of
recruitment but makes such exceptions in the case of military service where
such discrimination is permitted but still the removal of the sailor only on the
basis of gender identity is arbitrary, discriminatory and illegal.

Similarly, in the cases of Jacqueline Mary V. Superintendent of

police, G.Nagalakshmi V. Director General of Police where the petitioners
identifying as females were removed from their posts on the ground that
upon medical examination it was found that they had intersex variations
hence can’t hold the post that was reserved only for females.

Although the court ruled in favour of the petitioners in all the above-
mentioned cases these incidents of discrimination reflects gross inequality
and do not conform with the NALSA ruling. Therefore, it is submitted that
this will keep on continuing until the employment laws are not amended to
be inclusive of people falling outside the gender binary.

Transgender Persons (Protection of Rights) Bill 2019

The Transgender Persons (Protection of Rights) Bill 2019 as already
discussed suffers from various loopholes especially concerning the fact that
how it certifies one to be a transgender or not but what is worth considering
is that the bill at least provides protection to the gender community in
certain aspects of employment.

As according to sub-section(b) and subsection(c) of Section 3 , the bill

prohibits any person or organisation from discriminating against
transgenders in matters of employment, recruitment, promotion and other
related issues. But all these protections provided can’t be availed and utilised
fully until and unless the government make amendments with regards to how
the transgender must be certified and recognised by the law.

There is another very point to consider here, that the plight of the
transgender people is not only restricted to discrimination at workplaces but
also extends to the access to education, schooling and vocational training.
Though essentially speaking Section 14 of the Bill facilitates the appropriate
Government to formulate welfare schemes and programmes for livelihood of
transgender persons including their vocational training and self-employment.

But considering the extreme social, economical and educational

backwardness, all these objectives cannot be achieved till the time the
transgender people will not be eligible for reservation as was also
pronounced in the NALSA judgement.

LGBTQIA+ community

Apart from facing regular discrimination and harassment at the workplace,

there are some other reasons also to substantiate that the present
employment laws are not inclusive of the LGBTQIA+ community.

As essentially employment and labour laws touch various aspects of

employment such as employment benefits, terms and conditions, gratuity
benefits, insurance, anti-discriminatory policies, maternity benefits etc,
discussing each in detail is beyond the scope of the article. However, some of
the points are discussed below:

No recognition of LGBTQIA+ families

i) Workmen’s Compensations Act, 1923

Although Section 2 of this act provides a comprehensive list of dependants,

but all these terms are defined only in the reference with the heterosexual
families.

Further, it’s very essential to define the “dependants” because dependants

are entitled to the monetary benefit. Under the worker compensation
insurance, it is mandatory for every employee to nominate at least one
dependent. Therefore the term “dependants” must be redefined in the
context of same-sex unions and LGBTQIA+ families to provide them equal
incentives in employment as available to a heterosexual individual.

ii) Payment of Gratuity Act, 1972

The Payment of Gratuity Act, 1972 requires the employer to nominate people
so that if in case the employer dies, then the gratuity benefits are conferred
to the nominee. But for the purpose of this Section 2(h) of the act defines
the term “ family” which includes spouse, children, dependent parents and
any adopted child. Therefore, the current definition of “family” eliminates the
possibility of recognising LGBTQIA+ family from its ambit.

iii)Factories Act, 1968

The Factories Act of 1968 is structured on a protectionist approach and lays

down various restrictions concerning the employment of women such as
regulations of limiting their work hours from six to seven among many
others. So, the current rules and regulations fail to recognize people not
fitting in traditional notions of the gender binary.
The provisions which are confined to the gender binary exist not only in
these discussed laws but extend across a range of other employment and
Labour laws as well.

Maternity Benefits

At present Maternity Benefit Act of 1961 provides maternity leaves and

benefits only to the cis-gendered women who give birth, adopt or rely on
surrogacy to have a child. Essentially speaking there are two implications of
this law.

1. Firstly, it reiterates the same archaic ideas and notions that it is the
sole responsibility of the mother to take care of and nurture the
child while the father can be waived off this duty.
2. Secondly, it does not take into cognizance the fact that there can be
a possibility of alternate families such as the LGBTQIA+ families.

Therefore it is essential that the language of this law must be gender-neutral

so that even LGBT+ families can also have access to parental benefits and
further it can also serve as a progressive step in the direction to eliminate
sexual biases reinforced by the maternity benefit legislation.

Protection against sexual harassment at workplace

The present law i.e. Sexual Harassment of Women at Workplace (Prevention,

Prohibition & Redressal) Act, 2013 regarding the sexual harassment
recognises only women as a victim and does not take into account the
harassment can happen irrespective of the gender of the person. That is, the
aggrieved party can even be a male, transgender or any person belonging to
LGBTQIA+ community as well. Therefore what we rather need is gender-
neutral laws in relation to harassment at workplaces.

But there is another very important argument that can be advanced here i.e.
the “sexually coloured remarks” or “unwelcome behaviour” may have a
different interpretation and scope in the case of LGBTQIA+ community. Thus,
considering the rampant transphobia and homophobia, it is essential that the
gender-neutral harassment laws must also be accompanied with strong anti-
discriminatory policies to prevent misuse of such laws against the LGBTQIA+
community.

Organisations can formulate their own policies

Although the amendments in employment and labour laws to make them

inclusive of LGBTQIA+ community is the need of the hour. However, a more
structural and substantial change cannot be realised until and unless the
private and public organisations are eager to shape policies and rules to
make the workplaces LGBTQIA+ inclusive.

These may include making policies such as granting equal benefits to LGBT+
couples as those available to heterosexual partners, adopting comprehensive
anti-discriminatory laws, supporting LGBT+ employee support groups,
granting leaves for gender-conforming processes, and organising awareness
and sensitisation programs.

Summary

Therefore it can be summarised that:

1. Taking into consideration the inequality and harassment faced by

the LGBT+community in employment it becomes essential for the
government to make new laws or amend existing laws to make
workplaces safe for LGBT+ people.
2. Further what needs to be ensured is the fact that the future
legislation on transgender rights must align with the NALSA
judgement and provide reservations in public education and
employment.
3. The laws also need to be radically reimagined to confer all the
employment benefits to the LGBT+ couples which are available to a
heterosexual couple.
4. While the efforts should be directed to make gender-neutral
harassment laws but at the same time both the public and private
sector, must also frame anti-discrimination policies and undertake
 positive measures to eliminate prejudiced stereotypes rooted in
homophobia and transphobia.

Protection against bullying in Educational

Institutions
In a survey conducted by the United Nations cultural Agency on the 400
LGBT+ youth in India, it was revealed that over 60% of LGBT+ youth faced
bullying in middle school / high school, 43% reported incidents of being
sexually harassed in school, with 70% suffering from anxiety and depression
and shockingly 33% of them even drop out because of bullying altogether.

These statistics are enough to send chills down anyone’s spine as across the
country the LGBT+ youth are subjected to extreme physical, mental and
emotional abuse. This stands in clear violation of equal protection clause and
violates Article 14 of the Constitution of India”, apart from denying these
children protection against discrimination, right to life and right to education
enshrined under Article 15, Article 21 and 21A respectively. Section 377 is
history but young LGBT Indians need concrete policies to protect them from
Bullying.

Discrimination against LGBT+ in schools

The stories are many and varied, as are the geographies. LGBT+ students
are labelled, bullied and abused on a regular basis. There have been several
instances of homophobia and blatant discrimination against young ‘queer’
students. This gets even worse in the case of transgender students.

In Chennai, the school bullies started by harassing and teasing a six-year-old

boy for walking in a feminine way and then resorted to stone-throwing when
the transgender girl – initially raised as a boy – started wearing girls’
uniform, aged 10. Similarly, in April 2018, a teenage student from a reputed
girls’ school in Gopalapuram Chennai when confessed on a social media site
that her first crush happened to be a girl classmate, was ridiculed by her
teachers and school authorities to an extent that her principal even said that
she should go and kill herself.

The stigma surrounding LGBT+ people is so much that threats of rape,

incidents of hitting, groping and kicking, being locked in a room, having
nasty rumours spread about them or having their belongings stolen are some
of the things that LGBT students face regularly.

Consequences of bullying

Unfortunately, unable to cope up with this trauma, some drop out of school
or develop deep psychological problems and some get so affected that they
are driven to commit suicide as happened with a 15-year-old boy in
Tiruchirapally. There are a number of cases of such homophobic and
transphobic violence- often acutely reported, even when gets reported yet
receives no due attention from the media, authorities, psychologists or the
government combined with inadequate or non-existent support and redress
systems.

Reasons for bullying

The common thread binding is that all these incidents are nothing but a
manifestation of deep-rooted prejudice and discriminatory attitudes that
continue to prevail in these institutions.

There are many instances when teachers have been known to publicly issue
statements such as homosexuality being a disease, spread by the Internet
and can be cured. This goes a long way in normalising the bullying and
ragging culture against the LGBT students. Therefore, it is essential to
sensitise school staff and students about the LGBT+ rights issue.
Suggestions

i) Sex Education

Status quo:

The need for sex education: It is unimaginable to think about shaping an

open positive discourse about LGBT+ rights in the school setting, considering
the historical attitude that Indian schools have displayed in relation to doing
anything that is related to sex. Further, what should be noted is that
discussions on sexual awareness and education among youth are not only
avoided but rather often discouraged and receive a lot of backlash and
criticism.

Adolescence Education Programme (AEP):

When, in 2007, the central government in collaboration with NCERT, NACO

and UN agencies tried to introduce the Adolescence Education Programme
(AEP) in all secondary and higher secondary schools aiming to educate
children it was immediately banned by thirteen states. They submitted that
the explicit content designed to impart comprehensive sexuality education
under the AEP went against Indian culture and morality.

The sole step that the schools have taken so far is restricted only up to
holding discussions on good touch and bad touch to prevent child sexual
abuse. Thus in the status quo, school continues to consider homosexuality a
disease and sexual relationship as “immoral” reiterating those same old age
notions of prejudices and ignorance.

Need for sex education:

Various Researches have shown that Comprehensive Sexuality Education

(CSE) that is scientifically correct, gender-sensitive and life skills-based, age
and culture appropriate can provide young people with useful skills and
knowledge about sexuality and lifestyle.

Therefore it becomes extremely important to design, formulate and

implement a comprehensive sexual awareness programme which will not
only educate the youth, about menstruation, sexual harassment and risk of
STDs but will also be useful for addressing the concerns of same-sex
relations and LGBTQIA+ community. This will make students better and
responsible citizens by making them aware of the wide spectrum of gender-
diverse identities around them.

Further efforts should be directed at updating the curriculum on health and

gender to ensure that they must comply with the legal guidelines on
transgender rights in NALSA Vs. Union of India, and on rights of LGBT
persons in Navtej Johar Vs Union of India.

Therefore, CSE should be made compulsory at schools, as a part of academic

requirement and not only a single class in a month.

Making anti-bullying laws

At present, there are no concrete anti-bullying legislation or rights-based

policy regulating bullying and discrimination in India. The policy must
address the homophobic and transphobic violence, including bullying which
will also align with the mandate to ensure the right to quality education for
all in learning environments that are non-violent, safe and inclusive.

i) Status quo

The only step that has been taken in this regard is that CBSE has issued
certain guidelines to all its affiliated schools to follow

This includes forming a committee to deal with ragging and bullying and to
punish the bullies with measures such as giving them a written warning and
may also read to rustication. It also directs schools to form committee
members including vice-principal, a senior teacher, counsellor, doctor,
parent-teacher representative, legal representative, school management
representative and peer educators.

But unfortunately, there exists a huge gap in the implementation of these

guidelines. As most of the schools still don’t comply with all these norms and
guidelines and further there is no stringent mechanism to ensure that schools
follow these directives by CBSE.

However, what is praiseworthy is that the Directorate of Education (Lt

Governor) in Delhi has notified the inclusion of a ‘transgender’ child within
the meaning of ‘child belonging to the disadvantaged group’, as defined in S.
2(d) of the RTE Act. But in order to make schools a safe and inclusive space
for LGBT+ people, it is essential that other states shall also take some such
progressive steps.

ii) Cross-country narrative

Across Asia, there have been some encouraging advances to stop

discrimination and bullying against the LGBT youth. For instance, in 2017,
the Japanese government brought amendments to the national bullying
prevention policy to specifically protect LGBTQIA+ youth. Similarly, in 2013
the Philippines drafted a law that instructs schools to address ragging and
bullying in reference to gender identity and sexual orientation.

Therefore, it is submitted that it is essential to bring necessary amendments

in the National Education Policy (NEP) to enumerate strict anti-bullying laws
while identifying discrimination based on sexual orientations and gender
identity. This apart from protecting vulnerable students can also be a
significant step in acknowledging diversity as well. Further, efforts must be
directed to train school staff to provide them with the necessary skills and
knowledge to encounter such abuse.

Discrimination against LGBT+ in colleges and Higher

Educational Institutions

The incidents of violence against LGBTQIA+ communities in colleges are also

rampant. There are stories of LGBTQIA+ students being bullied, ragged,
sexually harassed and abused. This induces queer students to quit studies as
constant discrimination and harassment chips away at their self-worth.
However, what must be appreciated is that the University Grants Commission
(UGC) has always been very prompt in taking actions against such
complaints and has taken promising initiatives to stop homophobic and
transphobic bullying. This is evident from the fact that UGC Anti-Ragging
Regulations (2009) binds both public and private universities to take
cognizance of complaints of homosexual assaults. Further, in 2016, UGC has
also recognised gender identity and sexual orientation as the grounds for
ragging and discrimination.

However, despite such guidelines and policies, most of the universities across
the country have failed to take note and have done very little to check
harassment of LGBT students. Therefore, it is essential that all universities
incorporate anti-ragging policies in their prospectus with regards to the
prohibition of discrimination based on sexual orientation or gender identity.

Conclusion
It is submitted that although the landmark 2018 court ruling and 2014
NALSA judgment were a huge leap in the advancement of LGBT+ rights
movements in India. But still, the LGBT people in India are not equal and
don’t have the same rights as those available to a heterosexual person.
Further, they are still subjected to violence, discrimination in all spheres of
life.

It is very important to educate people about LGBT rights. Human rights are
natural rights which are inalienable, indestructible and are conferred upon
everyone since birth. It is essential that people take note of the fact that
homosexuals are not sick, they are not aliens, their sexual orientation is
perfectly in tune with the dictate of nature.

LGBTQ rights should be recognised as part of human rights. Non Recognition

of same-sex marriages, not allowing adoption, guardianship, surrogacy, IVF,
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, Air force Act.

The universal law of Human Rights states social norms, custom, culture or
traditions can never be a valid justification to suppress another individual
from asserting his/her fundamental and constitutional rights.

If we start justifying everything on the basis of cultural views, societal values

and public policy then there would have been no progressive legislation
enacted in our country and we would have never been able to eliminate the
social evils of child marriage, Sati, dowry, and infanticide etc.

So, it is essential that the government must wipe away its conservative
nature and should take concrete steps to eliminate the stigma, discrimination
and abuse surrounding the LGBTQIA+ people. It is high time the government
should formulate new laws or amend existing laws on marriage, adoption,
guardianship, inheritance educational institutions, employment, healthcare
services etc for education, social security and health of LGBT+ people with
special focus to Transgender Persons.

It will lead to greater inclusiveness and will help in bringing the LGBTQIA+
into the mainstream of society and can go a long way in ‘transforming our
nation sustainably into an equitable and vibrant knowledge society’

Lastly, I will conclude this article by saying that until and unless the
government gives the LGBTQIA+ people in India an equal status, just and
the fair struggle for social recognition by LGBT+ will go on.