Decriminalisation of Section 377 & Roadblocks for LGBTQIA+

In Context

• Even after the decriminalisation of Section 377, the paths of the members of this community are beset with roadblocks.

Defining LGBTQIA+

• LGBTQIA+ is an inclusive term that includes people of all genders and sexualities, such as lesbian, gay, bisexual, transgender, questioning, queer, intersex, asexual, pansexual, and allies. 
• While each letter in LGBTQIA+ stands for a specific group of people, the term encompasses the entire spectrum of gender fluidity and sexual identities.

Section 377

• About:
  • According to Section 377, whoever voluntarily engages in carnal intercourse against the order of nature with any man, woman, or animal shall be punished with life imprisonment or imprisonment of either description for a term not exceeding ten years, and shall also be charged with a fine. 
  • It is important to note that the term “against the order of nature” has not been defined in any source of law.
• Origin:
  • Section 377 was drafted by Thomas Babington Macaulay in 1862. 
    • Macaulay was the head of the Law Commission and was installing anti-sodomy laws that criminalised any form of sexual activity that was “against the order of nature”, punishable by law and carried a life sentence.
• Post-independence petitions:
  • The petitions were filed against the Section from the early 1990s, they continued to be dismissed. 

Decriminalization of Section 377 & legal recognition for LGBTQIA+

• Naz Foundation v. Government of NCT of Delhi:
  • About:
    • The case of Naz Foundation v. Government of NCT of Delhi is a landmark decision in Indian legal history. 
    • This is the renowned decision that ruled that consensual sexual intercourse between homosexual individuals is not a crime and that criminalising it violates citizens’ fundamental rights guaranteed by the Indian Constitution. 
  • Article 21:
    • The Court also noted that this law infringed upon the privacy of two consenting adults, which is an essential part of the right to life under Article 21. 
  • Article 14:
    • Court also ruled that categorising people based on sex violates another basic fundamental right, namely Article 14 of the Constitution, which provides that everyone, simply by virtue of being human, have the same human rights and equal access to them.

• National Legal Services Authority (NLSA) Case:
  • Legal Recognition for Third Gender: 
    • The Court directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender.
      • Further, it declared that hijras and eunuchs can legally identify as “third gender”.
  • Self-identification:
    • The Court upheld the right of all persons to self-identify their gender.
    • Thus, it held that no third-gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.
  • Public Health and Sanitation: 
    • Centre and State Governments have been directed to take proper measures to provide medical care to transgenders in hospitals and provide them with separate public toilets and other facilities. 
    • Further, they have been directed to operate separate HIV/Sero-surveillance measures for transgender people.
  • Socio-Economic Rights: 
    • Recognising third gender persons as a “socially and educationally backward class of citizens”, entitled to reservations in educational institutions and public employment.
  • Stigma and Public Awareness: 
    • These are the broadest directions – Centre and State Governments were asked to:
      • Take steps to create public awareness to better help incorporate transgender individuals into society and end treatment as untouchables;
    • Take measures to regain their respect and place in society; and 
    • Seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma.

Challenges faced by the LGBTQIA+ community

• Lack of acknowledgment: 
  • Even in this era of scientific pragmatism and logical empiricism, we see society’s refusal to acknowledge the LGBTQIA+ community on par with the “heteronormals”.
• Extensive problems:
  • Problems of sexual abuse, familial dysfunction, peer rejection, juvenile delinquency, societal taboo, sexual disharmony, unsafe sexual behaviour and drug abuse are rampant amongst this community while growing up. 
  • Unrecognised marital status, hazards of adoption, housing, property inheritance, difficulty finding regular employment, discrimination and harassment at the workplace, etc., are recurring and diabolical features of their daily lives. 
• Mental and physical consequences:
  • The mental and physical consequences of these prejudices take a toll on their lives. Ageism and sexual discrimination are other hassles.
  • Increasing evidence points out that depression, suicides, self-harm and substance abuse are twice as common in LGBTQIA+ individuals compared to heterosexual people.
• Bias & discriminatory attitudes:
  • Even healthcare professionals and institutes show alarmingly high rates of homophobic bias and discriminatory attitudes.

Way ahead

• During the 157 years of Section 377, the LGBTQIA+ community in India has suffered terribly.
• The law and government must take positive steps to achieve equal protection and equal opportunities in all its manifestations.