The author of this blog is Soumya Ghosal 1st year student of  West Bengal National University of Juridical Sciences (WBNUJS)

In April 2014, the Supreme Court of India held in NALSA vs Union of India[1] that the rights and freedoms of transgender people in India are protected under the Constitution. In Navtej Singh Johar vs Union of India[2], the Court read down Section 377 of the Indian Penal Code for violating the Rights to Equality, Free Speech and Expression, and Life under Articles 14, 19(1)(a) and 21 of the Constitution. The Court grounded its reasoning in constitutional morality and placing it above social morality. These judgments are considered a landmark both in terms of their expansive reading of constitutional rights and in empowering LGBT persons. Both judgments mark an important moment for LGBT rights that not only reversed a relic of British imperial rule but also ordered that LGBT Indians be accorded all the protections of their constitution.

Since Section 377 was read down, there has been slow progress for LGBT rights in India. To point out a few instances of success, the Madras High Court banned sex reassignment surgery for intersex children,[3] Asia’s first LGBT film streaming platform GagaOOlala launched[4], and a clinic for transgender people opened in Tamil Nadu.[5] However, there is a long way to go before full equality for the queer community.

The most remarkable part of the Apex court’s decision in Navtej Singh was that it didn’t just use a universal standard of human rights to decriminalize homosexuality but also acknowledged the responsibility of the state to help end the stigma attached to being LGBT.[6] However the State has not been particularly successful in upholding the duty of care it owes to its LGBT citizens.

India’s Foreign Policy regarding the LGBT
In July 2019, India maintained its past position on LGBTQ rights by abstaining from voting at the UN Human Rights Council on a resolution moved by Latin American states seeking to renew the mandate of the independent expert on protection against violence and discrimination based on Sexual Orientation and Gender Identity (SOGI).[7] This development happened in spite of a strong campaign in the country ahead of the voting, asking the authorities to vote in favor of the resolution after the Supreme Court struck down Section 377, decriminalizing homosexuality.[8] Furthermore, activists pointed out that though India abstained they were astonished to see that the Indian delegation was in support of some of the amendments that were brought forth by countries that opposed the work of the Independent Expert.[9]

The government’s reasoning for such a stance was that since the Navtej Singh judgment dealt majorly with the issue of consent, and not LGBT rights per se, and the domain of the judgment did not overlap with the mandate of the resolution.[10] Since the Government itself has no official stance on the matter of LGBT rights and has passed no legislation to the effect, it saw no reason to change its previous stance and continued to abstain.[11] Such a stance, however, cannot be accepted. In abstaining, and in effect denying, the right to its LGBT citizens to be protected from discrimination based on their gender identity or sexual orientation, the government makes its position very clear.

Domestic Legislations affecting the queer community
The Navtej Singh judgment enshrines that all citizens, regardless of how they identify on the gender or sexuality spectrum, are entitled to equal treatment. Decriminalization is merely the first step in recognizing the equal rights of all citizens, but the two cannot be combined. The Navtej Singh the decision must be followed by positive steps for equality. Transgender persons still face a number of legal barriers and LGBT people are subjected to discrimination, exclusion, abuse, and harassment at work, educational institutions, health care settings and in public places. A major reason for this is that we still do not have equality and the anti-discrimination statute that would protect such persons from discrimination on different protected grounds.

Instead of meeting the need for such a law, the government, post the 377 judgment, has passed legislation that has been heavily criticized as being against the interests of the LGBT people. Transgender Persons (Protection of Rights) Bill, 2019, that passed the Lok Sabha with almost no debate, has been called regressive and against the interests of transgender people.[12] According to the provisions of the bill, instead of the freedom to determine their sexuality, India’s transgender people must now submit to a certification process involving a government official and doctor.[13] If they are sexually attacked, their predators face a maximum jail term of two years- against a minimum of seven years for women who are attacked.[14] Further, if young Trans persons want to leave home because of pressure to conform to the sex they were born with, they can no longer join the trans community. They must go instead to a court, which will send them to a “rehabilitation center”.[15]

 One of the major complaints is that the NALSA judgment gave transgender people the right to “self-identification” as male, female, or third-gender and granted reservations in educational institutions as well as public employment.[16] The bill mentions self-identification by transgender people but a district magistrate and a government doctor must determine if they medically qualify. For a community that is discriminated against, these are very difficult hurdles to overcome. This contention, coupled with the existence of the shadowed screening committee in practice, attacks the most basic of their demands – their identity. The transgender community thinks they are being treated under the Bill as sub-humans. The Bill passed without making any suggested revisions like excluding intersex people from the definition, doing away with medical screening, taking the punishment at par with other genders for crimes against trans-genders, etc.[17] Trans-genders have fought a long battle for centuries. Finally, when they are being heard by the government, it should lead to their holistic development. Unfortunately, that is not the case.

Another example of the government’s exclusionary stance regarding the LGBT Indians can be seen in the Surrogacy (Regulation) Bill, 2019. The Bill was tabled earlier this year in the Lok Sabha, with the intention of facilitating altruistic surrogacy in the country.[18] The government claims that regulating surrogacy will put an end to rampant commercialization of the practice.[19] In order to do so, the Bill puts several restrictions on who can opt for surrogacy. The Bill very expressly allows only infertile heterosexual couples, married for over five years, to opt for surrogacy.[20] In doing so, it implicitly prohibits same-sex and transgender couples, among other categories, from having a child through the process of surrogacy. This exclusion of the LGBT community is similar to the denial of equal rights for the community, making the bill highly prejudiced. If the sole intention had been protecting the rights of surrogate mothers and to steer against making wombs-on-rent a norm as the government claims, there would have been a plan to rehabilitate and integrate surrogate moms into the societal framework. Instead, they pass a Bill which brings surrogacy to a standstill, taking away from many of these women their only source of livelihood without providing an alternative. However, if surrogacy is out of bounds for queer persons, the least that can be expected of the government is that it strengthens its policy regarding adoption by the LGBT community. No such action has been seen from the State yet.

In the Navtej Singh judgment, the Apex court remarked that history owed an apology to the members of the LGBT community for the years of oppression.[21]What good is an apology that is not followed by constructive action to redeem the mistake? What the queer community needs right now is progressive, overarching legislation that will guarantee equality to all persons and prevent discrimination on the basis of sexual orientation, gender identity and expression, sex, marital status, and other grounds. The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing, and access to public places. It should provide for civil remedies including injunctions to stop discriminatory behavior, costs and damages, and positive action to make reparations.

Most importantly, what we need is legislation to define what equality would encompass. The Supreme Court held in its privacy judgment in K.S. Puttuswamy v. Union of India[22] that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms. The blatant prejudice that is prevalent against the LGBT community shows us that we need an equality law that not only addresses discrimination against individuals but also addresses structural forms of discrimination and exclusion. One year after the 377 judgment, with the country growing increasingly progressive and accepting, the time is correct for these reforms. The battle for LGBT rights has been fought long and hard. The onus is now on the State to rectify its mistakes and make sure members of the long-oppressed community get all the rights and opportunities that they deserve. That would be the real apology to the queer community.

[1](2014) 5 SCC 438.
[2](2018) 10 SCC 1.
[3]Mohammed Imranullah, “T.N. bans sex reassignment suregeries on intersex infants, children”, The Hindu, August 28 2019, available at https://www.thehindu.com/news/national/tamil-nadu/tn-bans-sex-reassignment-surgeries-on-intersex-infants-children/article29273674.ece (Last visited May 2, 2020).
[4]GAGAOOLALA, Asia’s first LGBT film streaming platform, launches in India with 400+ titles, available at http://mumbaiqueerfest.com/2019/06/gagaoolala-asias-first-lgbt-film-streaming-platform-launches-india-400-titles-collaborates-kashish/ (Last vsitedMay 2, 2020).
[5]Staff Reporter, “A clinic exclusively for transpersons at GH”,The Hindu, June 14 2019, available at https://www.thehindu.com/news/cities/chennai/a-clinic-exclusively-for-transpersons-at-rgggh/article27430020.ece (Last visited May 2, 2020).
[6]Priyanka Mittal & N.C. Sharma, “This is the beginning of the end of prejudice: Supreme Court”,Livemint,September 7 2018, available at https://www.livemint.com/Politics/bRkgeh7EdUK5aeBHUb7YAM/Section-377-verdict-Supreme-Court-decriminalises-homosexual.html (Last visited May 2, 2020).
[7]United Nation Human Rights Council (UNHRC), Office of the High Commissioner for Human Rights, Renewal of the mandate of the Independent Expert on protection against violence and discrimination based on Sexual Orientation and Gender Identity, A/HRC/RES/32/2, available at https://www.ohchr.org/en/issues/sexualorientationgender/pages/index.aspx (Last visited May 2, 2020).
[8]Geeta Mohan, “India abstains from voting for LGBTQ rights at UN Human Rights Council”, India Today, July 12, 2019, available at https://www.indiatoday.in/india/story/india-united-nations-lgbtq-rights-1567935-2019-07-12 (Last visited on May 2, 2020).
[9]KallolBhattacharjee, ‘India again abstains at U.N. vote on LGBTQ Independent Expert draws criticism”,The Hindu, July 13, 2019 available at https://www.thehindu.com/news/national/india-again-abstains-at-un-vote-on-lgbtq-independent-expert-draws-criticism/article28414749.ece (Last visited May 2, 2020).
[10]DevirupaMitra, “Despite SC Ruling, India Abstains Again on Vote on LGBT Rights at UN”, The Wire, July 13 2019, available at https://thewire.in/diplomacy/india-abstains-again-on-vote-expert-lgbt-rights-at-un (Last visited May 2, 2020).
[12]Chaitanya Mallapur, “Why New Bill Meant To Benefit Transgender People Is Termed Regressive”, IndiaSpend, August 22, 2019 available at https://www.indiaspend.com/why-new-bill-meant-to-benefit-transgender-people-is-termed-regressive/  (Last visited May 2, 2020).
[13]The Transgender Persons (Protection of Rights) Act, 2019, (Act 40 of 2019), Cl.7 (1), (2).
[14]The Transgender Persons (Protection of Rights) Act, 2019, (Act 40 of 2019), Cl. 18 (d).
[15]The Transgender Persons (Protection of Rights) Act, 2019, (Act 40 of 2019), Cl.12 (3).
[16] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[17]Aarushi Agarwal, “Govt. making rules for us without us: transgenders”,The Hindu, August 16, 2019 available at https://www.thehindu.com/news/cities/Delhi/govt-making-rules-for-us-without-us-transgenders/article29104679.ece  (Last visited May 2, 2020).
[18]Staff Reporter, “How to make the Surrogacy Bill more inclusive?”,The Hindu, July 26 2019, available at https://www.thehindu.com/opinion/op-ed/how-to-make-the-surrogacy-bill-more-inclusive/article28713112.ece (Last visited on May 2, 2020).
[20] The Surrogacy (Regulation) Bill, 2019, (156 of 2019), Cl. 4.
[21]KrishnadasRajgopal, “SC decriminalises homosexuality, says history owes LGBTQ community an apology”,The Hindu, September 6, 2018, available at https://www.thehindu.com/news/national/sc-de-criminalises-homosexuality-says-history-owes-lgbtq-community-an-apology/article24881549.ece (Last visited on May 2, 2020).
[22](2017) 10 SCC 1.