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Legal Rights of LGBT Community in India

Updated: Jun 6, 2021

The LGBT community over the years in India has faced discrimination due to Sec 377 and lack of acceptance by society. In the past, many individuals have been intimated, arrested, and imprisoned by the police authorities under Sec 377. The act carried imprisonment for a term which may extend to ten years, and shall also be liable to fine.

The Judiciary of India has undertaken several landmark decisions which have ensured to protect the rights of the community, decriminalize homosexuality as a criminal offense. Navtej Singh Johar & Ors. v. Union of India thr. Secretary Ministry of Law and Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalized all consensual sex among adults, including homosexual sex as part of Sec 377.

Some of the other landmark judgments have been by the High Courts regards to live-in-relationship by a same-sex couple.

Although in terms of equal rights there is a long road ahead, couples of the same genders can't marry as it isn't legally recognized, LGBT couple can't adopt a child together as an ordinary married couple of opposite sex, this also affects the other areas for the couple such as buying of property together, maintaining of joint bank account and rights for protection in terms of separation by the couple. In the past, there have been attempts to legalize the marriage between same-sex couples through the Uniform Civil Code that would legalize same-sex marriage, but the code has been stalled due to objections from the religious communities.

In the recent hearing in February 2021 by Delhi High Court where three petitions were heard together, regards to recognizing same-sex marriage under the Hindu Marriage Act, the Special Marriage Act, and the Foreign Marriage Act, The Centre told the Delhi High Court that living together as partners and having a sexual relationship with same-sex individuals is not comparable with the Indian family unit concept. It also said the petitioners cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country. The government asked the Delhi High Court to dismiss the cases, arguing in its response that marriage is based on "age-old customs, rituals, practices, cultural ethos and societal values" and that there thus exists a "legitimate state interest" in preventing same-sex couples from marrying. A 4th petition was filled on On 24 May 2021, asking the court to declare that the Special Marriage Act applies to any two persons who wish to marry regardless of sex. In May 2021, the government asked the court to delay deliberations on the four petitions, stating that "nobody is dying because of the lack of marriage registration" and that the government's focus was on "urgent and immediate" pandemic-related issues. The next hearing is set for 6 July 2021.

Transgender identified as the third gender have equal fundamental rights as a citizen under Article 15 of the Indian Constitution and can't be discriminated on as a judgment passed by the Supreme Court of India in 2014 for National Legal Services Authority v. Union of India. Transgender women may marry under the Hindu Marriage Act, 1955

Transgender Persons (Protection of Rights) Act, 2019 is an act with the objective to provide for the protection of rights of transgender persons for their welfare and other related matters. It bans unfair discrimination against transgender people in educational establishment employment, healthcare services, access to the use of any public service, goods, owning of property, working in public or government establishment. The act also prescribes the offenses and penalty which shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with a fine. Although the act still faces backlash from the community for not taking suggestions such as reservation in education, jobs, lesser punishment for crimes against the community, and issuance of transgender certificates by district magistrate for identity.

On the brighter side, the acceptance of the LGBT community has increased over the years mostly in metro cities, the establishment of welfare schemes in public policies, and acceptance in corporate organizations. But overall there is a long road ahead regards to reforms in the system to ensure equality and justice for the LGBT community in all aspects such as legal acceptance of marriage, stringent laws which protect against discrimination, slander abuses, and a ban on forceful therapy and conversion methods.


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