Rights Of LGBT Community As Human Rights

Introduction:

People around the world face violence and inequality- and sometimes even torture execution – because of who they love, how they look or who they are. Sexual orientation and gender identity are integral aspects of our selves and should never lead to discrimination or abuse. In all cases LGBT people are harassed in the streets and beaten up only because of who they are[1]. A spate of violence against transgender people has claimed the lives of at least 369 individuals between October 2017 and September 2018. Many intersex people around the world are forced to undergo dangerous, invasive and completely unnecessary surgeries that can cause life-long physical and psychological side effects[2]. In this article I am going to write of how LGBT people lose all the basic rights that rest of the people have.

Rights that LGBT lose:

Freedom of speech and expression is a fundamental right which cannot be denied only based on their sexual orientation. This is international law. Too many people are being silenced only because of one’s sexual orientation. A free, independent and diverse media is crucial to inform the public and for giving LGBT voices the platform to speak out on issues that affect them. Through self-regulation, the media has a social and moral responsibility to play a role in combatting discrimination and promoting understanding between groups, as outlined in the Camden Principles on Freedom of Expression and Equality[3].Poverty is a multi-dimensional concept, where lack of resources is interconnected with lack of power and influence over one’s life and society at large. In order to be able to change ones situation, a person must enjoy fundamental human rights and personal security. LGBT persons are at greater risk of being affected by poverty, as heteronormativity, discrimination and criminalisation infringe on LGBT persons’rights, affect their health, their position in the labour market, their educational opportunities, their political participation and their access to social networks and services[4]. Considerably in the wake of decriminalizing same sex marriage in United States LGBT people have kept on being focused on savagely and peacefully who guarantee any level of strict inspiration for their wrongdoings. The Hate Crime Statistics Act of 1990 required data collection about crimes motivated by biases that included “sexual orientation.”[5] Since then, the FBI has produced an annual report with relevant statistics. In 2013, the FBI’s hate crime report began separately considering bias against “gender identity” and “gender” for the first time[6]. Britan, Bolivia, Fiji, Malta and Ecuador are the five countries in the world which gives equal constitutional rights to LGBT people. State laws and policies which should protect everyone from discrimination is against LGBT people. In more than one third countries of the world same sex relationship is criminalized. So it violates right to privacy and non-discrimination of those people. Different instances of unfair measures remember bans for lesbian, gay, promiscuous and transgender (LGBT) individuals holding certain occupations, prejudicial limitations on free discourse and open exhibitions, and the refusal of lawful acknowledgment of same-sex connections. Many States require transgender people to submit themselves to sterilization as a condition of obtaining legal recognition of their gender, without which many are forced to live on the margins of society, excluded from regular employment, healthcare and education, and denied other basic rights[7]. People from these communities face social discrimination from social stigma, bias at work, at home, at healthcare and in many other aspects. Individuals may be fired up from their jobs, bullied at school, denied appropriate medical treatment, disowned by parents, forced to marry and get pregnant, forced into psychiatric actions and hamper their reputation. For these intersex children differences arise from the childhood with many babies subjected to surgical and other interventions, performed with or without parents’ consent with the intention to erase these differences.

LGBT Rights in India:

India’s top court last year has struck down colonial era law which criminalizes homosexuality. “We still cannot marry, we still cannot adopt. There is a long way to go” says a LGBTQ+ activist. There is no official data on the LGBT+ population in India, the world’s largest democracy, but the government estimates there are 2.5 million gay people.LGBT+ rights activists say the true figure could be far higher and want authorities to spread awareness about gay rights to prevent last year’s verdict from fading into irrelevance[8]. The human rights of LGBT people around the world is coming into sharp focus. The preamble of Indian Constitution mandates justice, equity and fraternity to all. The right to equality and equal protection of laws are guaranteed by Article 14 and 21. In April 2014, the Supreme Court of India ruled in NALSA vs Union of India[9] that the rights and freedoms of transgender people in India were protected under the Constitution; in September 2018, the Supreme Court also decriminalized adult consensual same-sex relationships in the Section 377 judgment review.These judgments are considered a landmark both in terms of their expansive reading of constitutional rights and in empowering LGBT persons. In partially striking down Section 377, the Bench overruled Suresh Koushal 2013. In Suresh Koushal [10] case the Court had upheld the constitutionality of Section 377.Not only did the Bench find that Suresh Koushal failed to recognize how Section 377 violates fundamental rights, but further that it relied on a constitutionally impermissible rationale. Suresh Koushal used the miniscule minority rationale, which holds that since only a small minority of citizens are negatively impacted by Section 377, the Court need not intervene. The Constitution guarantees all citizens, independent of sexual orientation or gender identity, their fundamental rights[11]. The Court is concerned with safeguarding ‘constitutional morality’, not ‘popular morality’[12]. Other important case was Navtej Singh Johar v. Union of India[13]. In this case Supreme Court held unanimously that Section 377 of Indian Penal Code, 1860 which criminalized carnal intercourse was struck down. The petition, filed by dancer Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination[14]. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population[15]. The report quoted Akshat Agarwal, a Research Fellow of Vidhi Centre for Legal Policy, as saying, “While the decisions of the Supreme Court of India were momentous, it is now important to take the conversation forward and talk about the various laws that continue to exclude LGBT+ persons and deny their rights as equal citizens.”[16].

Right to marry:

Matrimonial laws aren’t blanket. There are incumbent legislation that is specific to certain religion including Hindu Code Bill. Hence, the path towards amendment can be taken up in specific cases like the recent one in which the bench of the Madras High upheld the marriage between a man and a trans-woman. This is said to be the first occasion when that Article 21 of the Constitution (Right to Life and Personal Liberty) was attested on account of a transperson.

Right to adopt:

Under the country’s family laws only marriage is only source of expression for emotional and financial dependency. Hence rights surrounding these institution for instance right to adopt is illegal for same of sex couples. The Hindu Adoptions and Maintenance Act 1956 states that unmarried female can adopt and male can adopt only if his wife is living.

Right to surrogacy:

The right to surrogacy is also barred in India and in Indian Legal System it is very difficult for LGBTQ+ people to get this right. The Surrogacy Bill enacted in 2019 mandates that this right is given to those people who are married for five years. Under the surrogacy bill the homosexuals have no rights but they would be given right to adopt under separate law.

Right to employment:

The report by the Vidhi Centre for Legal Policy highlights that the “workplace discrimination laws and maternity benefits laws fail to account for LGBTQ+ persons”. Apart from the fact that the HR Policy in most companies isn’t inclusive, our judicial provisions also do little when it comes to protecting a self-identifying member of the LGBTQ community from harassment. The Sexual Harassment at Workplace Act of 2013, for instance, only consider a female subject, completely forgoing “victim neutrality”. The Transgender Bill, which has now been passed by the Lok Sabha, will also do little by the way of ensuring employment for the trans-community[17].

Conclusion:

State should make sure that laws and policies they draft do not discriminate against these communities. This obligation transcends tradition, culture and religion. All states regardless of the history must not discriminate against these people. They must instead create laws to upbring them in the society. Government that does not give rights to LGBTQ people are in violation with international law. In recent years an array of new laws have been enacted to end discrimination against these communities.

Action Plan:

Government must:

Decriminalize consensual adult same-sex relations
Adopt anti-discrimination laws that prohibit discrimination based on sexual orientation
Enact laws to facilitate legal recognition of a person’s preferred gender without requiring sterilization, gender reassignment surgery or any other medical procedures or treatments to be carried out. Repeal laws that require sterilization of people who have sex reassignment surgery
Ensure that law enforcement, health, education, judiciary and other service personnel are sufficiently trained to avoid discrimination.
Adopt national action plans to implement antidiscrimination legislation in all sectors of society.

Media must: