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| image = India (orthographic projection).svg
| image = India (orthographic projection).svg
| caption = Area controlled by India shown in dark green;<br/>claimed but uncontrolled regions shown in light green.
| caption = Area controlled by India shown in dark green;<br/>claimed but uncontrolled regions shown in light green.
| legal_status = Illegal under [[Section 377 of the Indian Penal Code|Section 377 of the Indian Penal Code]]. Penalty: Up to life imprisonment<ref name="court1">{{cite news| url=http://articles.timesofindia.indiatimes.com/2013-12-12/india/45120907_1_delhi-hc-section-377-ipc-supreme-court | work=The Times Of India | title=Supreme Court makes homosexuality a crime again - The Times of India | date=12 December 2013}}</ref><ref name="court2">{{cite news| url=http://indianexpress.com/article/india/india-others/no-separate-proposal-to-repeal-or-amend-section-377-govt/ | work=The Hindustan Times | title=No separate proposal to repeal or amend section 377 : govt}}</ref><ref name="court3">{{cite news| url=http://economictimes.indiatimes.com/news/politics-and-nation/no-separate-proposal-to-repeal-or-amend-section-377-government/articleshow/45618509.cms | work=Economic Times | title=No separate proposal to repeal or amend section 377 : govt | date=23 December 2014}}</ref>
| legal_status = Illegal under [[Section 377 of the Indian Penal Code|Section 377 of the Indian Penal Code]]. Penalty: Up to life imprisonment and fines<ref name="court1">{{cite news| url=http://articles.timesofindia.indiatimes.com/2013-12-12/india/45120907_1_delhi-hc-section-377-ipc-supreme-court | work=The Times Of India | title=Supreme Court makes homosexuality a crime again - The Times of India | date=12 December 2013}}</ref><ref name="court2">{{cite news| url=http://indianexpress.com/article/india/india-others/no-separate-proposal-to-repeal-or-amend-section-377-govt/ | work=The Hindustan Times | title=No separate proposal to repeal or amend section 377 : govt}}</ref><ref name="court3">{{cite news| url=http://economictimes.indiatimes.com/news/politics-and-nation/no-separate-proposal-to-repeal-or-amend-section-377-government/articleshow/45618509.cms | work=Economic Times | title=No separate proposal to repeal or amend section 377 : govt | date=23 December 2014}}</ref>
| gender_identity_expression = Transgender people have a constitutional right to change gender in Tamil Nadu and Kerala; third gender recognised in Tamil Nadu and Kerala
| gender_identity_expression = Transgender people have a constitutional right to change gender in Tamil Nadu and Kerala; third gender recognised in Tamil Nadu and Kerala
| recognition_of_relationships = No recognition
| recognition_of_relationships = No recognition

Revision as of 08:39, 4 January 2018

LGBT rights in India India
Area controlled by India shown in dark green;
claimed but uncontrolled regions shown in light green.
StatusIllegal under Section 377 of the Indian Penal Code. Penalty: Up to life imprisonment and fines[1][2][3]
Gender identityTransgender people have a constitutional right to change gender in Tamil Nadu and Kerala; third gender recognised in Tamil Nadu and Kerala
MilitaryNo
Discrimination protectionsNo
Family rights
Recognition of relationshipsNo recognition
AdoptionNo
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Lesbian, gay, bisexual and transgender (LGBT) people in India face legal and social difficulties not experienced by non-LGBT persons. Sexual activity between people of the same gender is illegal, and same-sex couples legally cannot marry or obtain a civil partnership. As of 2017, however, the Supreme Court is considering whether to legalise same-sex sexual activity and a draft Uniform Civil Code, if approved in its current form, would legalise same-sex marriage in India.

Since 2014, "hijras" in India, have been allowed to change their gender without sex reassignment surgery, and have a constitutional right to register themselves under a third gender, both in Kerala and Tamil Nadu only. Additionally, some states protect hijras through housing programmes, welfare benefits, pension schemes, free surgeries in government hospitals and others programmes designed to assist them. There are approximately 4.8 million hijras in India.[4]

Over the past decades, some high-profile Bollywood films have dealt with gay issues. Nonetheless, most LGBT people in India remain in the closet, in fear of discrimination from families, who see homosexuality as shameful.[5] Reports of honour killings, attacks and beatings against members of the LGBT community are also common in India.[6][7][8]

Asia's first Genderqueer Pride Parade in Madurai. (2012) Anjali Gopalan is seen in the foreground.[9]

Law regarding same-sex sexual activity

The Goa Inquisition once prosecuted the capital crime of sodomy in Portuguese India[10][11], but not lesbian activity.[12]

The Mughal Empire combined a number of the preexisting Delhi Sultanate laws into the Fatawa-e-Alamgiri, mandating a common set of punishments for Zina (unlawful intercourse[13]), these could include 50 lashes for a slave, 100 for a free infidel, or death by stoning for a Muslim.[14]

The British Raj criminalised sexual activities "against the order of nature", arguably including homosexual sexual activities, under Section 377 of the Indian Penal Code, which entered into force in 1861. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution. Section 377 states that:[15]

  • 377: Unnatural offences.--Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

According to a previous ruling by the Indian Supreme Court, decisions of a high court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the high court in question has jurisdiction.[16]

There have been incidents of harassment of LGBT groups.[17]

On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral.[18] The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. This resulted in two judges of the Supreme Court reprimanding the Central Government for frequently changing its stand on the issue. "Don't make a mockery of the system and don't waste the court's time," an apex court judge told the Government.[19]

On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.[20][21][22] Justices G.S. Singhvi and S.J. Mukhopadhaya, however, noted that Parliament should debate and decide on the matter.[23] The full decision can be found here.

Human Rights Watch expressed worries that the Supreme Court ruling would render homosexual couples vulnerable to police harassment,[24] saying: "The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination"[25] The Naz Foundation (India) Trust stated that it would file a petition for review of the court's decision.[26]

On 28 January 2014, the Supreme Court of India dismissed the review petition filed by the Central Government, NGO Naz Foundation and several others, against its 11 December verdict on Section 377 of IPC.[27] In explaining the ruling, the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."[28]

On 18 December 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced the bill for the decriminalisation of Section 377, but the bill was rejected in the House by a vote of 71-24. However, Shashi Tharoor is planning to re-introduce the bill.[29]

On 2 February 2016, the Supreme Court decided to review the criminalisation of homosexual activity.[30] In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution, giving hopes to LGBT activists that the Court would soon strike down Section 377. The Court also ruled that a person's sexual orientation is a privacy issue.[31]

Recognition of same-sex relationships

Main article: Recognition of same-sex unions in India
Gay Pride March in Bangalore (2013)

Same-sex marriages are not legally recognised in India nor are same-sex couples offered limited rights such as a civil union or a domestic partnership. In 2011, a court granted legal recognition to one same-sex marriage, involving two women.[32] After marrying, the couple began to receive threats from friends and relatives in their village.

Their lawyer said the court had served notice on 14 of Veena's relatives and villagers who had threatened them with "dire consequences". Haryana has been the centre of widespread protests by villagers who believe their village councils or khaps should be allowed to impose their own punishments on those who disobey their rulings or break local traditions – mainly honour killings of those who marry within their own gotra or sub-caste, regarded in the state as akin to incest. Deputy Commissioner of Police Dr. Abhe Singh told The Daily Telegraph: "The couple has been shifted to a safe house and we have provided adequate security to them on the court orders. The security is provided on the basis of threat perception and in this case the couple feared that their families might be against the relationship."[33]

The couple eventually won family approval.[34]

As of 2017, a draft of a new Uniform Civil Code that would legalise same-sex marriage has been proposed.[35]

It defines marriage as "the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman a transgender with another transgender or a transgender with a man or a woman.All married couple and couples in partnership entitled to adopt a child. Sexual orientation of the married couple or the partners not to be a bar to their right to adoption. Non-heterosexual couples will be equally entitled to adopt a child".[36]

Discrimination protections

LGBT flag map of India

Article 15 of the Constitution of India states that:[37]

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

Transgender rights

In India, one group of transgender people are called hijras. They were legally granted voting rights as a third sex in 1994.[38] Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS.[39] On 15 April 2014, the Supreme Court of India declared transgender people as a socially and economically backward class entitled to reservations in education and jobs, and also directed union and state governments to frame welfare schemes for them.[40] The Court ruled that transgender people have a fundamental constitutional right to change their gender without any sort of surgery in Tamil Nadu and Kerala, and called on the Government to ensure equal treatment for transgender people. The Court also right that the Indian Constitution mandates the recognition of a third gender.[41]

In 2013, transgender and gender activists S. Swapna and Gopi Shankar Madurai from Srishti Madurai staged a protest in the Madurai collectorate on 7 October 2013 demanding reservation and to permit alternate genders to appear for examinations conducted by TNPSC, UPSC, SSC and Bank Exams.[42][43] Swapna, incidentally, had successfully moved the Madras High Court in 2013 seeking permission to write the TNPSC Group II exam as a ‘woman’ candidate. Swapna is the first trans person to clear TNPSC Group IV exams.[44]

On 24 April 2015, the Rajya Sabha unanimously passed the Rights of Transgender Persons Bill, 2014 guaranteeing rights and entitlements, reservations in education and jobs (2% reservation in government jobs), legal aid, pensions, unemployment allowances and skill development for transgender people. It also contains provisions to prohibit discrimination in employment as well as prevent abuse, violence and exploitation of transgender people. The bill also provides for the establishment of welfare boards at the centre and state level as well as for transgender rights courts. The bill was introduced by DMK MP Tiruchi Siva, and marked the first time the Upper House had passed a private member's bill in 45 years. However, the bill contains several anomalies and a lack of clarity on how various ministries will coordinate to implement its provisions.[45] The bill is still pending in the Lower House.

Social Justice and Empowerment Minister Thaawar Chand Gehlot stated on 11 June 2015 that the Government would introduce a new comprehensive bill for transgender rights in the Monsoon session of Parliament. The bill will be based on the study on transgender issues conducted by a committee appointed on 27 January 2014. According to Gehlot, the Government intends to provide transgender people with all rights and entitlements currently enjoyed by scheduled castes and scheduled tribes.[46]

The Transgender Persons (Protection of Rights) Bill, 2016, which was initially introduced to Parliament in August 2016, was re-introduced to Parliament in late 2017.[4]

State laws

See also: Transgender rights in Tamil Nadu and LGBT rights in Kerala § Transgender rights

The states of Tamil Nadu and Kerala were the first Indian states to introduce a transgender (hijra/aravani) welfare policy. According to the transgender welfare policy, transgender people can access free sex reassignment surgery (SRS) in government hospitals (only for male-to-female); free housing program; various citizenship documents; admission in government colleges with full scholarship for higher studies; alternative sources of livelihood through formation of self-help groups (for savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state to form a transgender welfare board with representatives from the transgender community. In 2016, Kerala started implementing free SRS in government hospitals.[47][48]

In July 2016, the state of Odisha enacted welfare benefits for transgender people, giving them the same benefits as those living below the poverty line. This was aimed at improving their overall social and economic status, according to the Odisha Department of Social Security.[49]

In April 2017, the Ministry of Drinking Water and Sanitation instructed states to allow transgender people to use the public toilet of their choice.[50]

On 28 November 2017, N. Chandrababu Naidu, the Chief Minister of Andhra Pradesh, announced the enactment of pension plans for transgender people.[51]. On 16 December 2017, the Andhra Cabinet passed the policy. According to the policy, the State Government will provide an amount of ₹1,500 per month to each transgender person above the age of 18 for social security pensions. In addition, the Government will construct special toilets in public places, like malls and cinema halls, for transgender people.[52]

Third-gender literature and studies

"Vaadamalli" by novelist Su.Samuthiram is the first Tamil novel about Aravaani community in Tamil Nadu published in 1994. Later, transgender activist A. Revathi became the first hijra to write about transgender issues and gender politics in Tamil. Her works have been translated into more than eight languages and act as a primary resource on gender studies in Asia. Her book is part of a research project for more than 100 universities. She is the author of Unarvum Uruvamum (Feelings of the Entire Body), the first of its kind in English from a member of the hijra community.[53][54] She also acted and directed several stage plays on gender and sexuality issues in Tamil and Kannada. The Truth about Me: A Hijra Life Story by transgender A. Revathi is part of the syllabus for final year students of The American College in Madurai. The American College is the first college in India to introduce third gender literature and studies with research-oriented seminars, and the Tamil terms for genderqueer people was coined in this college by gender activist Gopi Shankar.[55] Later, Naan Saravanan's Alla (2007) and Vidya's I Am Vidya (2008) were among early transwoman autobiographies.[56][57]

Living conditions

There are many avenues for LGBTQ communities in various metro cities for meeting and socializing, although not very openly. Some of them are GayBombay, Good as You, HarmlessHugs. Recently, a queer dating platform named Amour Queer Dating has been launched to help LGBTIQ people find long-term partners.[58]

In February 2017, the Ministry of Health and Family Welfare unveiled resource material relating to health issues to be used as a part of a nationwide adolescent peer-education plan called Saathiya. Among other subjects, the material discusses homosexuality. The material states, "Yes, adolescents frequently fall in love. They can feel attraction for a friend or any individual of the same or opposite sex. It is normal to have special feelings for someone. It is important for adolescents to understand that such relationships are based on mutual consent, trust, transparency and respect. It is alright to talk about such feelings to the person for whom you have them but always in a respectful manner."[59][60]

In 2017, Delhi held its tenth pride parade, attended by hundreds of people.[5] Goa held its first pride parade in October 2017.[61]

Politics

The All India Hijra Kalyan Sabha fought for over a decade to get voting rights, which they finally got in 1994. In 1996, Kali stood for elections in Patna under the then Judicial Reform Party and gave the Janata Dal and the BJP a bit of a fight. Munni ran for the elections as well for South Mumbai that year. They both lost.[62]

After the defeat of Kali and Munni, three years later, Kamla Jaan ran and won the position of the Mayor of Katni. Later, Shabnam Mausi was elected to the Legislative Assembly of Madhya Pradesh in 2002 as well. Over the next few years, multiple other transgender candidates won office. These include Heera who won a seat at the City Council of Jabalpur and Gulshan who was elected to the City Council in Bina Etawa. In December 2000, Asha Devi became the Mayor of Gorakhpur, and Kallu Kinnar was elected to the City Council in Varanasi.

Shabnam Mausi is the first transgender Indian or hijra to be elected to public office. She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003. In 2000, Shabnam Mausi became India's first eunuch MP. (Hijras were granted voting rights in 1994 in India.) In 2003, hijras in Madhya Pradesh announced the establishment of their own political party called "Jeeti Jitayi Politics" (JJP), which literally means 'politics that has already been won'. The party also has released an eight-page election manifesto which it claims outlines why it is different from mainstream political parties. Heera Bai became the first member of the Telangana Legislative Assembly to win a seat.[63]

Kalki Subramaniam is a transgender rights activist, writer and an actor. In the 2011 assembly elections, Kalki tried in vain to get a DMK ticket.[64] Again on March 2014, Kalki announced in Puducherry that she would contest a seat in an election from the Villupuram constituency in neighbouring Tamil Nadu.[65]

On 4 January 2015, independent candidate Madhu Bai Kinnar was elected as the Mayor of Raigarh, Chhattisgarh.[66][67][68][69]

Manabi Bandopadhyay became India's first transgender college principal on 9 June 2015 when she assumed the role of principal of the Krishnagar Women's College in Nadia district, West Bengal.[70][71]

On 5 November 2015, K. Prithika Yashini became the first transgender police officer in the state of Tamil Nadu. At the time, the Tamil Nadu police had three transgender constables, but Yashini became the first trans person to hold the rank of officer in the state.[72]

In a reply to a letter from an intersex rights activist Gopi Shankar Madurai, the Ministry of Health and Family Welfare, India replied that "Any kind of invasive medical procedure including sex reassignment surgeries are done only after thorough assessment of the patient, obtaining justification for the procedure planned to be conducted with the help of appropriate diagnostic test and only after taking a written consent of the patient/guardian".[73] Gopi Shankar Madurai was one of the youngest candidates,[74] and the first openly intersex and genderqueer candidate to contest an election in the Tamil Nadu Legislative Assembly election, 2016.[75][76][77][78]

On 12 February 2017, two transgender people were appointed by the Kolhapur District Legal Services Authority (KDLSA) as panel members for the Lok Adalat (People’s Court). 30 panels were appointed to settle general local disputes that arise within the community. Members of the KDLSA state: "Our main achievement was inclusion of transgenders as panelist in Lok Adalat. As per the Supreme Court's judgment, transgenders must be recognised as the third gender in our country. As per the norm, we have put in efforts and included two transgenders Mayuri Alawekar and Yuvraj Alavankar as panel members."[79]

Public opinion

Should same-sex marriage be legal? (2016)[80]

  Yes (35%)
  Against (35%)
  Don't know (30%)

Public opinion regarding LGBT rights in India is complex. According to a 2016 poll by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 35% of Indian people were in favor of legalising same-sex marriage, with 35% were opposed to its legalisation.[80]. A survey by the Varkey Foundation found that support for same-sex marriage was higher among 18-21 year olds at 53%.[81]

According to a 2017 poll carried out by ILGA, 58% of Indians agreed that gay, lesbian and bisexual people should enjoy the same rights as straight people, while 30% disagreed. Additionally, 59% agreed that they should be protected from workplace discrimination. 39% of Indians, however, said that people who are in same-sex relationships should be charged as criminals, while a plurality of 44% disagreed. As for transgender people, 66% agreed that they should have the same rights, 62% believed they should be protected from employment discrimination and 60% believed they should be allowed to change their legal gender.[82]

Notable Indian LGBTI rights activists

Name Details
Manabi Bandyopadhyay India's first openly transgender college principal and first transgender person to hold a PhD
Vinay Chandran Gay and human rights activist
Bobby Darling Transsexual actress
Tista Das Transsexual activist
Sushant Divgikar Mr. India Gay 2014
Pablo Ganguli Cultural entrepreneur, artist, director and impresario
Rituparno Ghosh Popular filmmaker, winner of 11 Indian National Film Awards
Anjali Gopalan Human rights activist
Andrew Harvey Author, religious scholar and teacher of mystic traditions
Harish Iyer Activist, columnist and blogger
Celina Jaitley Miss India 2001
Firdaus Kanga Writer and actor
Karpaga First trans person in India to perform a leading role in a mainstream movie
Saleem Kidwai Writer
Agniva Lahiri Social activist (PLUS Kolkata)
Nolan Lewis Mr. India Gay 2013
Leena Manimekalai Poet, writer and film maker
Shabnam Mausi First openly trans person to participate in Indian elections
Hoshang Merchant Teacher, poet and critic
Ismail Merchant Film producer and director
Raul Patil Mr. India Gay 2011
Zoltan Parag Mr. India Gay 2008
Onir Award-winning film director
Sridhar Rangayan Film maker, and founder and festival director of Kasish Mumbai International Queer Film Festival
R. Raj Rao Writer, professor of literature
A. Revathi Actor, artist, writer and theater activist
Wendell Rodricks Fashion designer and choreographer
Ashok Row Kavi Founder of Humsafur Trust
Aishwarya Rutuparna Pradhan First openly transgender civil servant, Odisha Financial Services officer
Nishit Saran Filmmaker and gay rights activist
Vikram Seth Writer
Parvez Sharma Writer and documentary filmmaker
Gopi Shankar Madurai Genderqueer activist, recipient of the Commonwealth Youth Worker Asia Finalist Award and founder of Srishti Madurai[83][84][85][86]
Manvendra Singh Gohil Hereditary Prince of Rajpipla
Ramchandra Siras Linguist and author
Living Smile Vidya Actor, artist, writer, and theater activist
Kalki Subramaniam Trans activist, actor, artist, writer and founder of Sahodari Foundation
Manil Suri Indian-American mathematician and writer
S. Swapna First transwoman to clear Tamil Nadu Public Service Commission exam and first transgender I.A.S aspirant.
Laxmi Narayan Tripathi Trans activist
Ruth Vanita Writer and academician
Rose Venkatesan First trans TV host in India
Riyad Vinci Wadia Film maker

Summary table

Same-sex sexual activity legal No (Court decision pending; penalty of up to life imprisonment or a fine)[1][2][3]
Equal age of consent No (Court decision pending)
Anti-discrimination laws in employment No (Pending for transgender people)
Anti-discrimination laws in the provision of goods and services No (Pending for transgender people)
Anti-discrimination laws in all other areas (incl. indirect discrimination, hate speech) No (Pending for transgender people)
Same-sex marriages No (Proposed)
Recognition of same-sex couples No (Proposed)
Stepchild adoption by same-sex couples No (Proposed)
Joint adoption by same-sex couples No (Proposed)
LGBT people allowed to serve openly in the military No
Right to change legal gender Yes/No (Since 2014) Tamil Nadu and Kerala only
Third gender recognised Yes/No (Since 2014) Tamil Nadu and Kerala only
Homosexuality declassified as an illness No
Access to IVF for lesbians No
Commercial surrogacy for gay male couples No
MSM allowed to donate blood No

References

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