PROTECTION OF LGBTQ RIGHTS AND LEGAL REFORMS

AUTHOR: VIDUSHI JAIN, SYMBIOSIS LAW SCHOOL , NOIDA

The paper tries to give a comprehensive account of the progress made in the protection of rights of LGBTQ through legal reforms and establish the remaining trends which are seemingly still to be overcome to achieve full equality. Advances in the protection of LGBTQ rights have been not only palpable but also very pronounced across the globe. This is with an impetus given by changing legal frameworks and societal attitudes. This paper analyses the historic background of the LGBTQ rights, the current state of legal protections in place, and key persistent challenges that LGBTQ individuals face. Despite the remarkable gains made, the rest of the world remains largely with no proper legal protections in place, and the enforcement of what exists will depend on the regions. Cultural stigmas and discrimination are primary barriers to full inclusion. In this regard, therefore, it would conclude that the constant effort in the themes of advocacy and legal reforms was important in the creation of an environment where people who thought they were LGBTQs could live without fear of discrimination or persecution.

Gender Identity , Anti-Discrimination, Civil Liberties , LGBTQ+ Rights.

Protection of LGBTQ rights and implementation of legal reforms are very vital in ensuring equality and equity for and among LGBTQ individuals. The paper explores key legislative measures, landmark court cases, and continuing challenges in the struggle for LGBTQ rights. The paper focuses on the historic past and the current situation of LGBT rights in India, closely examining some landmark court decisions, legislative amendments, and social changes. On the other hand, it emphasizes the importance that human rights must be advanced over those very solidly entrenched traditions of assigning equality and protection to transgender people. Rigid moral norms have historically handicapped the marginalized LGBT group, whose freedom of speech and choice was curtailed. The article aims to discuss the various paths followed by LGBT rights over time and to assess how practical it is to actually exercise these rights by determining the safeguards provided by the Constitution, case law, and other relevant legislation. This study makes a careful and compelling analysis about how the social attitudes, cultural trends, and policy changes shape an inclusive society towards the LGBT community. Furthermore, it aims to shed light on issues still found irrelevant, still side lined, and not dealt with properly, such as health inequities, socio-economic inequalities, and cultural stigma. Against this growing awareness and acceptance of diversity, it is perhaps no coincidence that the rights movement of the LGBTQIA+ across the globe has been gaining remarkable steam. Where societies are recognizing the fundamental importance of inclusivity and equality, it is the legal system that takes a crucial role in translating such ideals into real rights for queer and transgender individuals. Through this series of judgements, courts across India have prominently contributed towards this journey of change by vindicating the rights and identities of the LGBTQIA community. Lastly, the approach innovated in this judgment of the Supreme Court through its handbook fighting against gender stereotypes further cements this commitment towards making a society to better comprehend and treat people with equality. Some court judgments have very significant implications, but it is mostly stressed on the given fact that how they are paving their way forward to advance LGBTQIA+ and transgender rights while exploring the overlap with progressive guidelines in the SC handbook.

Alok Gupta, in "Section 377 and the Dignity of Indian Homosexuals", Economic and Political Weekly (41(46), 2006), zeroes in on how severely sodomy is penalized in India. Though the article has a wider theme involving homosexuality, it argues that Section 377 is much more about legalism about the anus than about legalism surrounding the anus per se. Decriminalization of sodomy, as Gupta suggests, would being gay people out of the shadows, and their dignity would also be restored. The article reveals wide implications for the LGBT community with legal reform in relation to promoting equality as well as human dignity movement in India. Puspesh Kumar in his book, "Queering Indian Sociology - A Critical Engagement," Centre for the Study of Social Systems, New Delhi, 2014, claims that Indian sociology is yet to deal with problems concerning caste, class, ethnicity, or experiences of LGBTIs. Likewise, other aspects of power, subjection, and dissenting voices are not represented aptly in the discipline. He draws attention to the hegemony in sexualities notably heterosexuality as taking a toll on non-heteronormative expressions of sexuality and argues that it is high time Indian sociologists tackle their stride in debates whether sexual promiscuity threatens society opening debates on broader sexual and social dynamics.. Danish Sheikh, "Queer Rights and the Puttaswamy  Judgement", Economic And Political Weekly, Vol. 52, 2017: The Puttaswamy judgement is a giant stride for future law interventions that will protect LGBTQ people, and thus is quite handy for gay rights activists. Douglas Sanders has done an analysis of how Section 377 and its long shadow in Asia are reflections of the continued power of British coloniality. In this light, modern decriminalization work is founded on broad grounds about human rights which are akin to the values provided for by Universal Declaration on Human Rights (UDHR).Janet E. Halley challenges the claim that a right to legal protection for sexual minorities should flow from their biological immutability, arguing instead that gay people and their conduct have a right to legal protection independent of these claims. He then explains different walls that the LGBTQ community needs to break through, which are anti-gay laws and discrimination at the work place. He also argues that homosexual and lesbian parents should be equal to heterosexual parents when it comes to assisted reproductive technology and the rearing of the child; in this movement, there is an attempt at generational harm and calls for equality.

The research intends to observe, for the present laws and constitutional provisions, whether they are satisfactory enough in India as far as the protection of LGBTQ individuals is concerned. This research plan follows a doctrinal approach by adopting "queer methodology" centered on issues of civil liberties. It draws upon primary sources like materials from the Supreme Court of India and relies on certain primary sources but has been backed up by consulting secondary sources accordingly. Primary sources contain international instruments, legislations, and case law. Books, journal articles, magazines, newspapers, reports, and internet resources make up the most significant group of secondary sources. The paper aims to be an exercise by the author, having gone through the resources; therefore, ensuring a comprehensive coverage.

• Institutional and Legal Barriers: Regardless of the equality discourse, the majority of LGBTQ+ individuals face significant institutional and legal barriers in accessing ART. Various jurisdictions continue to have very restrictive laws barring same-sex couples and, even in some jurisdictions, individuals from accessing ART-actually a reflection of the broader patterns of discrimination. Such legal obstacles appear primarily at the policy levels in terms of surrogacy, sperm donation, and IVF.

• Equality in Parental Rights: A basic tenet of the debate on LGBTQ+ rights to access ART is the equal recognition of parents irrespective of sexual orientation. Non-recognition of same-sex parents has been meted out in legal frameworks that bar gay and lesbian couples from receiving ART, amongst other lack of access to family initiation. Advocates who have been interested in pushing inclusive policies are of the view that parental rights should not be in any way defined by sexual orientation but by a commitment to raising a child.

• Generational Harm and Social Impact: The discriminatory laws on ART deny LGBTQ+ individuals the formation of families, leading to generational harm. This further pushes a vulnerable community to the fringes. Refusal of access to ART continues to perpetuate stigma and affects generations by discontinuing equal rights to family planning. Legal reforms are crucial to rectifying these wrongs to constitute building a fairer society, more inclusive of all.

• International Legal Developments: While some nations have gone leaps and bounds in attempting to level the playing field by providing equal access to ART for the LGBTQ+ population, the map is not yet levelled. Cases such as those seen in countries like Canada, the Netherlands, and some states of the United States have proven that it is indeed possible to bring about inclusive policies concerning access to ART. The most significant work, however, has yet to be done, therefore in regions where old-fashioned laws, outdated by traditional views of family, are still in force.

• John A. Robertson's Advocacy: For a long time, legal scholar John A. Robertson has been one of the most vocal proponents of equal access to ART. His work indicates denial of access to ART to LGBTQ+ individuals as infringing on fundamental human rights; it also fails to account for the ability of same-sex couples providing a loving and stable home for children. His arguments outlined reproductive rights that should develop to encompass family configurations rather than curtail progression opportunities for the same with LGBTQ+ families.

  
  

Navtej Singh Johar v. Union of India, 2018 S.C.C. Online S.C. 1350 case on 6th Sep, 2018 .In Section 377 matters, the Court held that the said provision was unconstitutional as it criminalized all sexual acts, which included those between consenting adults. Major decisions of the Supreme Court struck down the state laws criminalizing sexual relationships between consenting adults. It similarly addressed greater questions of human rights in National Legal Services Authority v. Union of India and Others (2014) 5 S.C.C. 438 by recognizing the rights of transgenders and constituted a precedent for the protection of sexual minorities under the Indian Constitution.case: In the writ petition filed in September 2012, transgender people were demanded equal rights and protection. The petitioner also pleaded that transgender people are recognized as a third gender and bestowed the same rights as cisgender people while acquiring official documents such as ration cards, voter IDs, passports, and driver's licenses. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1: The Delhi High Court concluded that Article 377 of the Indian Penal Code was. An unconstitutional order was overruled by the Apex Court. The Constitution of India is a socio-legal framework built upon a social ideology that is fundamental yet contextual, being in pace with evolution in mores. Simply stated, the Constitution protects the rights of individuals as regards life, liberty, and property, along with the dignity of each person as an individual in the country. Articles 37, 38, and 39 of the Constitution explicitly obligate the state to protect and promote the rights of minorities and other marginalized groups. In this manner, all citizens are enabled to enjoy basic human dignity. Article 37 thus outlines the obligation of states to shape their laws upon the Directive Principles of State Policy as found in Part IV of the Constitution. Although these are not justiciable, in fact, these direct the state to formulate laws which are reflective of the will of the majority. In the case of A.K. Gopalan, the Supreme Court further clarified that the DPSP articulated the intention of the legislature: to formulate a law which strives towards achieving the paramount and enduring values of the nation by an act of reason. It was thus achieved that the ideal of progress and justice met, particularly for the downtrodden sections in society. In September 2012, the NALSAHe applied to the court for a writ order ,demanding that trans persons be accorded the status of a separate gender category for the Issuing legal identification documents like birth certificates, passports, etc. driver's licenses, and identification cards and shall enjoy the same legal protections as any ordinary citizen and civil liberties.

The exact interests of this marginalized LGBTQ community with regard to sexual behaviour and gender identities require careful scrutiny of the legal issues they experience in the courts of justice. Now for more than a century, Indian law scholars have been debating ways to deal with cases involving gender non-conformity and unconventional sexual orientations. Matters of sexual orientation relating to sexual minorities under the Indian Penal Code of 1860 deal with aspects of LGBTQs. However, the implementation of these laws is at the hands of the state executive, which continues committing violations of LGBTQ rights. LGBTQ citizens coexist with the rest of society; their good or bad actions influence their loved ones and have broader implications for society. In this regard, it is a call for urgent protective legal measures for the LGBTQ. The present legal framework fails to ensure a just and safe environment, hence cannot protect their rights adequately. Some changes in relevant legal provisions by mentioning explicitly a variety of sexual practices and gender identities could significantly improve the Indian criminal justice system. Properly implementing such changes would reduce violations of fundamental rights of the LGBTQ group. The conclusion arrived at by this study will guide the policymakers who would advance amendments to the Indian Constitution so that the LGBTQ people can be lawfully recognized and accorded protection as a community in India. The coexistence of this recognition with pertinent legislative reform will better create respect for the LGBT community and maintain the principle of law and order. The present legislative framework is not strong enough to address the problem in this regard, making it a case for comprehensive reform.

1. Danish Sheikh, Queer Rights and the Puttaswamy Judgement, 52 Econ. & Pol. Wkly. 24 (2017).

2. Douglas Sanders, Section 377 and the Unnatural Afterlife of British Colonialism in Asia, 4(1) Asian J. Comp. L. 1 (2009).

3. Janet E. Halley, Sexual Orientation and the Politics of Biology: A Critique of the Argument from Immutability, 110 S. Afr. L.J. 1 (1993).

4. John A. Robertson, Gay and Lesbian Access to Assisted Reproductive Technology, 55 W. Res. L. Rev. 1 (2004).

5. Lovepreet Kaur, Exploring LGBTQ+ Equality in India: A Comprehensive Examination from Anthropological and Legal Perspectives, 7 Sexuality, Gender & Pol’y 12092 (2024), https://doi.org/10.1002/sgp2.12092.

6. Hasi Jain, From Judgments to Handbook: India’s Transformative Journey towards LGBTQIA+ Equality: Exploring Recent Court Rulings and the SC Handbook’s Impact on Queer and Transgender Rights, CJP (Aug. 30, 2023), https://cjp.org.in/from-judgments-to-handbook-indias-transformative-journey-towards-lgbtqia-equality/.

7. Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, 41 Econ. & Pol. Wkly. 4815 (2006).

8. Pushpesh Kumar, Queering Indian Sociology: A Critical Engagement, Centre for the Study of Social Systems, New Delhi (2014).

9. https://onlinelibrary.wiley.com/doi/10.1002/sgp2.12092

10. https://cjp.org.in/from-judgments-to-handbook-indias-transformative-journey-towards-lgbtqia-equality/