One year has passed since the Supreme Court of India in a historic judgment ruled that Section 377 of the Penal Code can no longer be used to criminalize consensual sex between people of the same gender.
Justice Indu Malhotra, one of the five judges who delivered four concurrent verdicts on September 6 last year, said society owes the LGBTQ+ community an apology for the historical wrongs perpetrated against it. The judgment came as a beacon of hope to the hitherto criminalized queer community.
But one year on, the community feels that the government has done little for them and that the fight for equality is unfinished. Activists and lawyers say they are vexed about not yet having the right to receive legal recognition of same-sex relationships and about the lack of protective laws against discrimination and violence.
“The community is thriving not because of the government but despite the government,” said queer activist Harish Aiyer.
Debottam Saha, one of the petitioners who challenged Section 377, said, “Although the Supreme Court verdict has helped many to come out of the closet, the government has been apathetic to our struggles.”
Lack of security
Saha, who was part of a pan-India group of 20 students and alumni of the prestigious Indian Institute of Technology who took the fight to the Supreme Court, added, “The government has taken no initiative for sensitization of the larger community to eliminate stigma and discrimination although it was suggested by the verdict.”
“Discrimination on the basis of sexual orientation is a violation of freedom of speech and expression,” Chief Justice of India Deepak Misra and Justice Ajay Manikrao Khanwilkar said in the landmark judgment in 2018.
A 2016 survey of Indian LGBTQ+ employees, the Mission for Indian Gay and Lesbian Empowerment, an advocacy group, found that 40% had been harassed at work and the majority were not covered by anti-discriminatory workplace policies. At least two-thirds of the respondents also reported having heard homophobic comments in the workplace.
Delhi-based lawyer Mihir Samson, who was part of the legal battle against Section 377, said, “We are aiming for an anti-discrimination law that not only applies to the government and its institutions but also extends to the private sector.”
Violence and harassment faced by LGBTQ+ persons have not decreased noticeably after the abrogation of Section 377 but it has let people assert their rights by approaching courts.
For instance, in October last year, the Delhi High Court granted police protection to a lesbian couple who fled their hometown in Rajasthan and came to Delhi feeling a threat to their lives from their respective families. Similar stories were found in Kolkata, in the eastern state of West Bengal and Varanasi, in the northern state of Uttar Pradesh.
Samson said, “We need a law that protects queer persons from violence perpetrated by their families and intimate partners. Persons belonging to the LGBTQ+ community often face domestic violence. They are sometimes thrown out of their houses by their families and unable to complete their education.” He noted that immediate steps needed to be taken to set up emergency shelters for queer runaway couples and individuals, and ensure their access to education and employment.
Members of the queer community are often targeted for extortion and threatened with being taken to the police or outed to their families or colleagues, said Saha. “We don’t have any law to protect us from this persecution. Neither do we have mental health support.”
A 2014 World Bank estimate shows that homophobia costs India around $30 billion a year (around 1.7% of national GDP) because of lower educational achievements, loss of productivity and the healthcare cost to LGBTQ+ people who are poor, stressed, suicidal or HIV positive.
Law is straight
Despite the Supreme Court’s progressive judgment, the overall legal regime for queer persons in India remains severely lacking.
“Laws governing inheritance, employment and marriage continue to treat males and females differently, and do not recognize genders outside the binary,” notes a recent report by Vidhi Center for Legal Policy, a think tank.
The report underlines the need for a “gender-neutral sexual harassment law” that would extend protection to queer persons. Currently, India’s sexual harassment and rape laws only provide recourse to cisgender (identifying as their sex assigned at birth) women and leave adult men, transgender and intersex persons vulnerable to such crimes.
“Queer persons also often face challenges when trying to claim the family property as theirs,” said Aiyar. The country’s inheritance laws also do not accommodate persons outside the gender binary.
Same-sex couples, in the absence of marriage rights, do not get adoption rights or spousal benefits such as medical and life insurances, Aiyar noted. “We need a strong companionship law making same-sex unions a legal contract.”
LGBTQ+ couples also miss out on financial benefits. Married spouses can make gifts, of property or other assets, to their partners without incurring tax liability. But a couple from the LGBTQ+ community cannot do the same in excess of Rs 50,000, as it will attract a gift tax.
“It is because one’s same-sex partner is considered a stranger to them in the eyes of the law unless they are married and recognized as family,” said Utsav Trivedi, an advocate in the Supreme Court specializing in finance. He suggested that the Special Marriages Act, 1954, could be expanded to bring in same-sex marriages. The law was enacted to facilitate inter-faith and inter-caste marriages and bypass the assumptions under personal laws of religious groups.
Laws based on binary gender affect transgenders the most. Take the case of the Navy.
In 2017, the Navy decided to discharge a serving Navy sailor – a trans woman (assigned male at birth) who underwent sex reassignment surgery—because females cannot work in the Navy as sailors. The former sailor has sought the Delhi High Court’s directions for reinstatement in the same rank and pay in the navy. The matter remains pending before the court.
The only bill the federal government is trying to enact for transgender people has been criticized for being “highly problematic.” The Transgender Persons (Protection of Rights) Bill 2019, passed by the Lok Sabha last month, provides an anti-discrimination framework and a national council to create policies and lays down the process to obtain identity documents.
But the transgender community is vehemently opposed to the law, which was drafted as a result of the landmark National Legal Services Authority v. Union of India judgment that extended fundamental rights to transgenders. For one thing, it lacks provision for affirmative action.
“The Transgender Persons Bill does not provide reservation or employment guarantees. Moreover, it has a lesser punishment for crimes against trans persons as compared to the penalty for crimes against women,” said activist Harish Aiyer.
Nevertheless the LGBTQ+ community is not completely hopeless as they prepare for a better future, said Aiyar, who added: “We want all the rights and we will fight for them all.”