September 16, 2020
Last Year, 6th September 2018, an important verdict would change the future of the country. Section 377 is a British-era law that criminalised same-sex relationships. However, last year, the Supreme Court of India decriminalised the law, bringing a win to the LGBTQIA+ community.
Read about India’s first Post-377 pride parade: First Pride Parade After Decriminalization Of Section 377
Since then, India has experienced colourful pride parades, education systems that have decided include LGBTQIA+ history, venues that are LGBTQIA+ exclusive or friendly, marriages of different LGBTQIA+ couples, etc. There has definitely been a growth in awareness and support for the community. However, has all this progress actually translated into rights for the LGBTQIA+ community?
Did you know this about Maharashtra? School Syllabus now includes LGBTQ+ history!
Recently, Vidhi Centre of Legal Policy conducted research on queer people and their rights in India. And, what they found was that there still exists a deficiency when it comes to rights for the community in the country. Particularly in the domains of family, employment, identity and violence.
Vidhi Centre for Legal Policy and Queer laws
Vidhi Centre for Legal Policy is a think tank. It was founded in 2013 by Arghya Sengupta, Debanshu Mukherjee, Dhvani Mehta and Alok Prasanna. The organisation functions independently and focuses on legal research, as the name suggests. Additionally, the goal of the organisation is to produce high-quality legal research that helps make, “better laws and improve governance for the public good”. The think tank works along with state governments as well as Ministries of the Central government.
Recently, the think tank conducted research under its new project, ‘Queering the Law: Making Indian Laws LGBT+ Inclusive’, which seeks to unearth the laws in the country that continue to discriminate against the LGBTQIA+ community. Such laws are function under the binary system of gender or assume that a relationship can only exist between a man and a woman.
In one of the reports, a research fellow, Akshat Agarwal said,
“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.”
-As reported by News 18
What are some of the rights that LGBTQIA+ still struggle with, in India?
Right to employment
There continues to be discrimination in the workplace against the LGBTQIA+ community. The report highlights, “workplace discrimination laws and maternity benefits laws fail to account for LGBTQ+ persons”. Whether it is gender identity or sexual orientation there seems to be laws that are either inadequate or absent within the workplace. This means that HR policies in many companies aren’t inclusive, and the judicial system does not provide many provisions that protect LGBTQIA+ employees from harassment. While recently Price Circle conducted the very first LGBTQIA+ career fair, companies need to become accepting of the community.
Read all about the Career Fair: India’s First LGBTQ+ Job Fair!
According to News 18, the 2013 Sexual Harassment at Workplace Act considers a female subject i.e. it does not consider “victim neutrality”.
Right to marry:
Abolishment of Section 377, while has recognised same-sex relationships, there still seems to be challenges when it comes to marriage equality. Tripti Tandon from Lawyer’s Collective told News 18 that “Matrimony laws aren’t blanket”. The problem is that the system of marriage is still largely seen as binary. However, in recent times we have seen that there have been multiple LGBTQIA+ marriages in the country including the first openly gay married couple in Kerala and the transgender marriage in Kolkata.
Read all about the Kolkata wedding: A Transgender Wedding under the Kolkata Rainbow
Right to Adopt and Surrogacy:
Since marriage equality in the country still hasn’t achieved inclusivity, this has an impact on any accompanying rights that come with marriage laws. In India, the family law only recognises marriage as the, “”only legitimate form of expressing emotional and financial dependency”, as reported by News 18. Therefore, other rights that surround the institution of marriage are not available to same-sex couples. This includes laws of custody, guardianship and even adoption.
Sonu MS and Nikesh Pushkaran, the Kerala gay married couple, for instance, are still unable to adopt a child. Their only hope remains a chennai-based LGBTQIA+ organisation. This organisation plans to approach the Supreme Court to legalise homosexual marriages. On the other hand, even laws on single parents restricts adoption for men and gay couples. According to the 1956 Hindu Adoptions and Maintenance Act, unmarried females can adopt. However, males can are only qualified to adopt if they have a wife living with them.
Even when it comes to Surrogacy, laws in the making are only going to make it more impossible for LGBTQIA+ couples to have children. The Surrogacy Bill, for example, seeks to ban commercial surrogacy. According to the bill, only couples who have been married for 5 or more years, are eligible for surrogacy.
According to Vidhi Centre for Legal Policy, making laws inclusive is a work in progress. The opposition to the transgender law in India shows that the LGBTQIA+ community should be consulted when developing rights.
Source Credit: Vidhi Legal Policy, News 18