CASE LAWS ON LGBT RIGHTS
Author: Ms. Jyoti Jha, JEMTEC, School of Law
LGBT community includes the following groups: Lesbians, Gays, Bisexuals, Transgender. Most
LGBT people in India remain closeted, fearing discrimination from their
families, who might see homosexuality as shameful.
In 2001, the Netherlands became the first nation to allow same-sex marriage. In 2003, the U.S. Supreme Court struck down anti-sodomy laws with the Lawrence v. Texas decision. In 2003, the U.S. Army allowed open homosexuals to serve in the military, reversing the earlier policy. Now modern people have come up with the idea that such discrimination is arbitrary and unnecessary. In India, there are several legal pronouncements that protected the rights of the people who belong to the LGBT community.
Some of the recent cases are:-
BATTLE OF NAZ FOUNDATION
The NAZ Foundation (India) Trust (NI) is a New Delhi based NGO that has been working on HIV/AIDS and sexual health from 1994 onwards. They filed a writ petition in the Delhi High Court challenging the constitutional validity of Section 377 of the Indian Penal Code. They submitted that Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. It brought the action in the public interest on the grounds that its work on combating the spread of HIV/ AIDS was being hampered. Both the Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare submitted legal opinions with respect to the writ petition. MHA was against this change whereas health ministry supported the Naz Foundation. The High Court of Delhi while pronouncing the judgment in Naz Foundation vs. Govt of NCT of Delhi gave a detailed analysis of the rights provided by the Constitution. The verdict was a landmark victory for equality and social justice. The High Court of Delhi concluded that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”.
The said decision was appealed against in the Supreme Court
of India in the Suresh Kumar Koushal and another v NAZ
Foundation and Otherscase
and it was held that the Delhi High Court was wrong in its findings and was
also wrong in reading down the section to allow consensual homosexual
activities between two adults of the same sex. The Court held that Section
377 is not violative of Articles 14, 15 and 21 and
that carnal intercourse, as intended and defined by the petitioners to mean
unnatural lust ought to be punished. Justice Singhvi also said that Section
377 is pre-constitutional legislation and if it were violative of
any of the rights guaranteed under Part III, then the Parliament would have
noticed the same and repealed the section long ago. Based on this reasoning, he
declared the section to be constitutionally valid. He also said that doctrine of
severability and the practice of reading down a particular section flows from
the presumption of constitutionality and that in the said case, the Delhi High
Court’s decision to read down the section was wrong because there is no part of
the section that can be severed without affecting the section as a whole. So,
the Supreme Court held that Section 377 of the
Indian Penal Code does not suffer from any constitutional infirmity and left
the matter to the competent legislature to consider the desirability and
legitimacy of deleting the Section from the statute book or altering the same
to allow consensual sexual activity between two adults of the same sex in
VS UNION OF INDIA
The judgment is popularly known as Transgender case delivered in pursuance of a PIL filed by the National Legal Services Authority (NALSA) seeking to address the grievance of the Transgender Community. The non-recognition of their sexual and gender identity is a violation of their various Fundamental and Human Rights. The judges heavily relied upon foreign decisions of various countries and finally come up with the guidelines which were directed to central and state to protect the right of people belong to this community.
- Hijras, eunuchs, apart from binary genders, be treated as “third gender” for the purpose of safeguarding their rights under Part III of Constitution and the laws made by Parliament and the State Legislature.
- Transgender person’s right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as the third gender.
- We direct the Centre and the State Governments to take steps to treat them as Socially and Educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments.
- The Centre and State Governments are directed to operate separate HIV zero-1surveilance centers since hijras/transgender face several sexual health issues.
- The Centre and State Governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
- The Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
- The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
- The Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
- The Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life. We are informed an expert committee has already been constituted to make an in-depth study of the problems faced by the transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with the recommendations within three months of its constitution. Let the recommendations be examined based on the legal declaration made in this judgment and implemented within six months”.
SINGH JOHAR VS. UNION OF INDIA
The Writ Petition has been filed on 27th April 2016 to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (“IPC”) on the specific ground that it criminalizes consensual sexual intercourse between adult persons belonging to the same sex in private. The petition was filed by five members of the LGBT Community, dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and businesswomen Ayesha Kapur. The petitioners claimed that the issues raised by them are different from those raised in the curative petition in Suresh Koushal’s case.
The petitioners contended that homosexuality under section 377 is violative of Art 14, 15, 19(1)(a), 19(1)(c) of the Constitution and concept of fraternity as enshrined in the Preamble. To make it a criminal offence is offensive of the well-established principles enshrined under Art21 of the Constitution. The respondent stated that there is no abuse of the right to privacy. The counsel contended that there is no personal liberty to abuse one‘s organs and that the offensive acts prescribed by Section 377 IPC are committed by abusing the organs. It will affect marriages.
The judgments declared that insofar as Sec 377 criminalizes consensual acts of adults in private, is violative of Art 14,15, 19 and 21 of the Constitution and hence unconstitutional. It was, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The court stated “reading down section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private so as to remove vagueness of the provision to the extent it is inconsistent with Part III of the Constitution of India.” The apex court further observed that “sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression”. The doctrine of progressive realization of rights which is a feature of constitutional law says that the State has an obligation to take appropriate measures for the progressive realization of economic, social and cultural rights. International agreements including UDHR, ICCPR, and the ICESCR also established that the criminalization of consensual acts between same-sex adults in private contravenes the right to equality, privacy, and freedom from discrimination.
S THARIKA BANU (TRANSWOMAN) VS. THE SECRETARY TO GOVERNMENT, HEALTH, AND FAMILY WELFARE DEPARTMENT, CHENNAI AND OTHERS
The petitioner was born as male and named as S.Patchaikili. The petitioner belongs to SC community by birth. As a male, he completed a higher secondary course due to chromosomal aberration, S.Patchaikili started identifying himself more like a female than a male. No one accepts, due to social stigma and therefore, the petitioner left the house. The petitioner underwent sexual reassignment surgery on 30.09.2015 and has been leading a life as a female. The respondent issued prospectus for the course of BSMS/BAMS/BNYS/BUMS/BHMS and the petitioner applied for the course BSMS. Since the petitioner successfully passed the +2 examination, she is entitled to a seat in the above-said course under the transgender category. Though the Hon’ble Supreme Court, as well as first bench of this Court, directed the respondents to provide a separate column for transgender, apart from male and female, the respondents have not provided a separate column for them in the prospectus.
The court directed to admit the petitioner/transgender into the course BSMS within one week of receipt of the notice. The State Government is directed to issue guidelines on the “Determination of the Community” and “Reservation in employment” in respect of the third gender. Further stated that “the Court hopes that this order would be the first step to throw open doors of educational institutions for the entry of “Transgenders” for their social empowerment, employment status, dignity, right, etc., which have been denied to them till date, violating the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India.”
SREEJA VS COMMR OF POLICE THIRUVANANTHAPURAM AND OTHERS 
The petitioner, a lady aged 40 years, is raising an allegation that her ‘lesbian partner’, Ms. Aruna, aged 24 years (hereinafter referred to as the ‘alleged detenue’) is under illegal confinement of her parents, against her free will. The petitioner seeks a writ of Habeas Corpus for commanding the production of the corpus of the alleged detenue and to set her at liberty. The alleged detenue had informed the petitioner that her parents had admitted her in the Government Mental Hospital at Peroorkada. Prima facie there is a case of wrongful confinement but the issue is whether she is permitted to lead a life in a relationship with the same gender and solemnize a valid marriage. petitioner placed much reliance on a decision of the Hon’ble Supreme Court in Navtej Singh Johar V. Union of India.
court held that “we cannot find that the ‘live-in relationship’ between the petitioner
and the alleged detenue will in any manner offend any provisions of law or it
will become a crime in any manner. On the other hand, if the jurisdiction
vested on this court is not exercised, it will amount to permitting a violation
of the Constitutional right to perpetrate.”
KS PUTTA SWAMY VS UNION OF INDIA
The court while discussing the privacy also considered those who belong to LGBT’s. The court observed in this case that “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders is not a sustainable basis to deny the right to privacy.”
Justice Radha Krishnan stated that “Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1) (a) of the Constitution.”
 Naz Foundation vs. Govt of NCT of Delhi, AIR (2009)
 Suresh Kumar Koushal and another v NAZ Foundation and
vs. Union of India, WRIT PETITION (CIVIL) NO.400 OF 2012
Singh Johar v. Union of India,
(2018) 1 SCC 791)
Tharika Banu (TRANSWOMAN) vs The Secretary to Government, Health and Family
Welfare Department, Chennai and others W.P.No.26628 of 2017
 S. Sreeja vs. The Commissioner of Police, Thiruvananthapuram and others
, WP(Crl.).No. 372 of 2018