Written by: Dhruv Prashar, LL.B, School of Law, Lovely Professional University
Introduction:
The journey towards equality and acceptance for the LGBTQ+ community has been a long one, filled with challenges, triumphs, and ongoing advocacy. In this blog, we delve into the rich history, pivotal moments and groups who have tirelessly worked to challenge societal norms, break down barriers, and pave the way for future generations.
Despite significant progress, the battle is far from over, and it is crucial to continue raising awareness, educating ourselves and others, and standing in solidarity with the LGBTQ+ community. Join us as we explore the triumphs and ongoing challenges of the LGBTQ+ fight for equality, highlighting the importance of empathy, understanding in creating a more inclusive and equitable society.
What is LGBTQ+
The LGBTQ community is a diverse group of people with a wide range of experiences. They come from all walks of life, and they live all over the world.
LGBTQ is an initialism that stands for lesbian, gay, bisexual, and transgender. It is an umbrella term for people who identify as lesbian, gay, bisexual, transgender, queer, or the "+" represents the inclusion of other identities and orientations within the community, such as asexual, intersex, and pansexual individuals. Each of these identities represents unique experiences and challenges, but they share a common bond in their non-normative gender and sexual orientations.
● Lesbian is a woman who is attracted to other women.
● Gay is a man who is attracted to other men.
● Bisexual is a person who is attracted to both men and women.
● Transgender is a person whose gender identity does not match the sex they were assigned at birth.
● Queer is a broad term that can be used to describe anyone who identifies outside of the traditional gender and sexuality norms.
● Questioning is a term for people who are still exploring their gender identity and/or sexuality.
LGBTQ people face many challenges, including discrimination, prejudice, and violence. However, they are also a resilient and vibrant community. They have made significant progress in recent years, and they continue to fight for equality and justice.
The Struggle for Equality:
1. Discrimination and Stigma: LGBTQ+ individuals have historically faced discrimination and stigmatization based on their sexual orientation or gender identity. This prejudice can manifest in various forms, including verbal abuse, physical violence, workplace discrimination, and unequal access to healthcare.
2. Legal Barriers: Many countries around the world have laws that discriminate against LGBTQ+ individuals. These discriminatory laws can include criminalization of same-sex relationships, restrictions on gender-affirming healthcare, and limitations on adopting children or forming families.
3. Mental Health Impacts: Ongoing discrimination and lack of legal recognition can have severe mental health consequences for LGBTQ+ individuals. High rates of depression, anxiety, and suicide attempts within the community are often attributed to these societal pressures.
Judicial Support
The struggle for LGBTQ+ rights has seen significant progress through legal battles. Following are the landmark judgments given in various cases.
The Naz Foundation v. NCR Delhi is a landmark decision by the Delhi High Court in India that was made on July 2, 2009. The case dealt with the constitutionality of Section 377 of the Indian Penal Code (IPC), which criminalized certain sexual acts "against the order of nature," effectively criminalizing homosexual activity.
The Naz Foundation, an NGO working on HIV/AIDS and sexual health, filed a Public Interest Litigation (PIL) challenging the constitutional validity of Section 377 IPC. They argued that the law violated the fundamental rights of LGBTQ+ individuals to equality, non-discrimination, freedom of expression, and personal liberty as guaranteed under the Constitution of India.
The Delhi High Court, in a historic judgment, held that Section 377 IPC, in so far as it criminalized consensual sexual acts of adults in private, was violative of Articles 21, 14, and 15 of the Constitution. The Court emphasized the importance of dignity, liberty, and privacy, and recognized the rights of LGBTQ+ individuals.
The judgment was groundbreaking and was celebrated as a significant step forward for LGBTQ+ rights in India. However, it was challenged in the Supreme Court of India, in December 2013.
Suresh Kumar Koushal and another v. NAZ Foundation and others
It was a significant and controversial decision made by the Supreme Court of India on December 11, 2013.
To give a bit of background, the Delhi High Court had, in 2009, decriminalized consensual homosexual activity among adults in private, by reading down Section 377 of the Indian Penal Code (IPC), which criminalized "carnal intercourse against the order of nature." The High Court had held that Section 377 violated the fundamental rights to equality, non discrimination, freedom of expression, and personal liberty under the Indian Constitution.
However, this decision was challenged in the Supreme Court, leading to the Suresh Kumar Koushal vs NAZ Foundation case. In a surprising move, the Supreme Court set aside the Delhi High Court’s judgment, effectively recriminalizing homosexual activity. The Supreme Court held that Section 377 was constitutionally valid, stating that the LGBTQ+ community constituted a "minuscule fraction of the country’s population," and that in 150 years, less than 200 persons had been prosecuted under Section 377.
This judgment was widely criticized for being regressive and violating the human rights of LGBTQ+ individuals. It led to a massive public outcry and a mobilization of the LGBTQ+ community and its supporters, demanding a change in the law.
The Court affirmed the constitutional rights to equality, nondiscrimination, freedom of expression, and personal liberty, and recognized the rights of LGBTQ+ individuals in India.
Navtej Singh Johar v. Union of India is a landmark judgment delivered by the Supreme Court of India on September 6, 2018, which decriminalized homosexuality in India. This case was a significant milestone in the fight for LGBTQ+ rights in the country.
The Case
In Navtej Singh Johar vs. Union of India, a batch of writ petitions were filed by five petitioners, including renowned dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur. They challenged the constitutionality of Section 377 IPC on the grounds that it violated their fundamental rights to equality, non-discrimination, freedom of expression, and personal liberty guaranteed under Articles 14, 15, 19, and 21 of the Constitution of India.
The Judgment
A five-judge constitutional bench of the Supreme Court unanimously ruled that Section 377, insofar as it criminalized consensual sexual conduct between adults of the same sex, was unconstitutional. The Court held that sexual orientation is a natural and inherent part of an individual’s identity and that discrimination on the basis of sexual orientation is a violation of freedom of expression.
The Court emphasized the importance of individual autonomy, the right to privacy (relying on its previous judgment in Justice K.S. Puttaswamy v. Union of India 2013, which recognized the right to privacy as a fundamental right), and the right to live with dignity. It acknowledged the historical discrimination and social ostracism faced by the LGBTQ+ community and called for their rights to be protected.
Impact:
The judgment was celebrated for its progressive stance and for upholding the rights and dignity of LGBTQ+ individuals in India. It overruled the Suresh Kumar Koushal judgment and restored the Delhi High Court’s decision in the Naz Foundation case. The Navtej Singh Johar case has been lauded for its comprehensive analysis of constitutional principles, its emphasis on individual rights and freedoms, and its role in advancing LGBTQ+ rights in India.
Conclusion:
The LGBTQ+ community's fight for equality is far from over, but significant progress has been made in recent years. Legal victories like Navtej Singh Johar vs. Union of India have paved the way for greater acceptance and recognition of LGBTQ+ rights in India and beyond. However, challenges persist, and ongoing advocacy, education, and support are essential in ensuring a more inclusive and equitable future for all individuals, regardless of their sexual orientation or gender identity.
It is important to remember that everyone deserves to be treated with respect and dignity.
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