A want to break free

The modern LGBTQI+ rights movement has its roots in the mid-20th century, although the struggle for acceptance and rights dates back much further.

A want to break free

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How many roads must a man walk down before you call him a man?

How many seas must a white dove sail before she sleeps in the sand?

— Bob Dylan, Blowin’ in the Wind


LGBTQI+ rights advocacy constitutes an indispensable and ever-evolving crusade committed to the attainment of equality, justice and dignity for individuals across the spectrum of sexual orientations and gender identities. This advocacy embodies an extensive array of initiatives designed to secure legal safeguards, eradicate discrimination and cultivate a culture of acceptance and inclusion. As society progresses and transforms, the significance of espousal of LGBTQI+ rights intensifies, becoming ever more paramount in the advancement of human rights and the promotion of social justice.

The entrenched beliefs regarding gender, often referred to as the gender binary paradigm, categorise individuals strictly as “woman” or “man”. This paradigm permeates all aspects of society, influencing social norms, legal frameworks and cultural practices. Challenging this rigid classification system, trans, intersex and non-binary individuals have long advocated for the recognition and respect of their basic human rights. Trans individuals, whose gender identity differs from the sex they were assigned at birth, seek acknowledgment and acceptance in their true gender. Intersex individuals, born with physical sex characteristics that do not fit typical binary notions of male or female bodies, call for an end to non-consensual medical interventions aimed at “normalising” their bodies. Non-binary individuals, who do not identify exclusively as male or female, demand the right to self-identify and to have their identities respected by institutions and society at large.

The modern LGBTQI+ rights movement has its roots in the mid-20th century, although the struggle for acceptance and rights dates back much further. Key historical milestones, such as the Stonewall Riots of 1969 (also known as the Stonewall Uprising) in New York, USA, catalysed the movement and brought widespread attention to the injustices faced by LGBTQI+ individuals.

The Stonewall Uprising commenced in the early hours of 28 June 1969, when New York City police conducted a raid on the Stonewall Inn, a gay club situated in Greenwich Village. The raid incited a riot among the bar’s patrons and local residents, as the police forcefully removed employees and customers from the establishment. This incident ignited six days of protests and violent confrontations with law enforcement on Christopher Street, adjacent streets and in nearby Christopher Park.

These events marked the beginning of a more organised and visible effort to challenge discriminatory laws and social norms. The landmark 2015 U.S. Supreme Court decision in Obergefell v. Hodges legalised same-sex marriage.

Over the decades, the movement has grown in scope and sophistication, encompassing a diverse array of strategies and initiatives. Early efforts focused primarily on decriminalising homosexuality and combating blatant forms of discrimination. Today, the movement addresses a broader spectrum of issues, including marriage equality, transgender rights, healthcare access and the rights of LGBTQI+ individuals.

The struggle for these communities is multifaceted. It involves fighting for legal recognition, access to appropriate healthcare, protection from discrimination, and the freedom to express their gender without fear of violence or prejudice. Legal recognition can include the ability to change one’s gender marker on identification documents and to have one’s chosen name and pronouns respected. In healthcare, it involves access to gender-affirming treatments and surgeries, as well as respectful and knowledgeable care from medical professionals. Protection from discrimination is crucial in all areas of life, including employment, education, housing and public services. Beyond legal rights, LGBTQI+ advocacy also focuses on changing societal attitudes and fostering a culture of acceptance and inclusion. This involves challenging stereotypes, combating hate speech, and promoting positive representations of LGBTQI+ individuals in media and public discourse.

Constitutional rights of LGBTQI+ individuals in India

Aiming to end the persecution faced by transgender individuals and to protect their rights, the Supreme Court of India recognised transgender people as the third gender in the landmark case of National Legal Service Authority v. Union of India. In this ruling, the court determined that the third gender should have access to the same fundamental rights as cisgender men and women. The court upheld the equality of transgender persons, providing them protection under Articles 14, 15, and 21 of the Constitution of India. Emphasising the importance of the right to dignity, the court granted proper recognition to an individual’s gender identity, including identities based on reassigned sex following sex reassignment surgery, affirming their fundamental right to be recognised as male or female.

“Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue,” ruled Justice K S Radhakrishnan.

Under the Indian Constitution, transgender individuals are entitled to legal protection in all areas of state action. Article 14 stipulates that the State shall not deny any person equality before the law or equal protection of the laws within the territory of India, thereby prohibiting discrimination on grounds of religion, race, caste, sex or place of birth. The right to choose one’s gender identity is essential for leading a life with dignity, which falls under the ambit of Article 21. In affirming the right to personal freedom and self-determination, the Court observed that “the gender to which a person belongs is to be determined by the person concerned.” The third gender is also included under the scope of Article 15, which prohibits discrimination on the basis of religion, race, caste and sex. As citizens, transgender individuals have the right to be free from discrimination based on their religion, caste, race, and sex, and they are entitled to the protection of their gender expression, including their manner of dress, actions and behaviour.

Article 16 can be interpreted to expand the definition of sex to include ‘psychological sex’ and gender identity within its purview, ensuring equality of opportunity in public employment. Transgender individuals, as citizens of India, have the right to employment and equal treatment in hiring decisions, and they should not face prejudice due to their gender identity.

Article 21, which deals with the protection of life and personal liberty, stipulates that no one may be deprived of their life or personal liberty except in accordance with legal procedure. Transgender individuals have historically been denied their right to life and personal liberty. As Indian citizens, they should have complete rights to safeguard their freedom. The Supreme Court has also acknowledged the right to dignity by incorporating gender identity under Article 21.

The case of Navtej Singh Johar v. The Union of India was decisive in decriminalising Section 377 of the Indian Penal Code. The petitioner argued that Section 377 violated Article 14 due to its ambiguity and failure to distinguish between consensual and non-consensual sexual acts, thus infringing on the right to equality. Furthermore, Section 377 violated Articles 15 and 19 by restricting the right to express one’s sexual identity and discriminating based on the sex of one’s sexual partners. The Honourable Supreme Court ruled that Section 377 should be repealed, reaffirming that homosexuality is a sexual orientation rather than an abnormality.

However, same-sex marriages are yet to be legalised in India.

The enactment of the Transgender Person (Protection of Rights) Act of 2019 mandates that educational institutions receiving government funding or recognition must ensure equitable access to sports, recreation and education for transgender students, devoid of discriminatory practices.

Given the historical disparities and impediments faced by transgender individuals in accessing adequate medical care, including significant health inequities leading to heightened vulnerability to despair, suicidal ideation, violence, harassment and HIV/AIDS, the imperative for governmental intervention is underscored. In accordance with the Transgender Person (Protection of Rights) Act of 2019, the government is obligated to undertake requisite measures to facilitate access to healthcare services for transgender individuals. Consequently, it behoves the government to enact appropriate measures aimed at furnishing transgender individuals with comprehensive healthcare provisions, encompassing specialised facilities for HIV monitoring and facilitating access to sex reassignment surgeries.

Homosexuality in Indian mythology

The recognition of gender fluidity, extending to both humans and yakshas, stands as an established concept within ancient Indian culture. Queer identities find their roots deeply embedded in the annals of Indian history, resonating across ancient epics, scriptures, mediaeval prose, poetry, as well as art and architecture.

Outlined below are a few notable instances that underscore the presence of homosexuality and the embracement of homoeroticism within the Indian cultural milieu.

Krittibas Ramayana enunciates the tale of King Bhagiratha, who was born of two women: The passage narrates that King Dilip was married to two wives, yet he passed away without leaving an heir. Subsequently, Lord Shiva manifested in the dreams of the queens, informing them that they would conceive a child if they engaged in intimacy with each other. Following this guidance, the widowed queens complied, resulting in one of them becoming pregnant. This pregnancy culminated in the birth of King Bhagiratha, renowned for his legendary accomplishment of bringing the River Ganga from heaven to earth.

The story of Shikhandi: Within the Mahabharata, the narrative of Shikhandini or Shikhandi unfolds, depicting her pivotal role in the demise of the formidable warrior Bhishma. Initially born as a daughter to King Drupad, she was raised as a man. Later in life, she sought the assistance of a yaksha to undergo a transformation, assuming a male form to partake in the battlefield of Kurukshetra and ultimately overcome Bhishma.

The birth of Lord Ayyappa: Matsya Purana has an intriguing story where Lord Vishnu transitioned into a beautiful woman, Mohini. He intended to trick the demons so that the gods drank all the amrut (holy water). Further, upon seeing Mohini, Lord Shiva fell in love with her, and their union led to the birth of Lord Ayyappa.

Varuna and Mitra: In the Rig Veda, there is a reference to the tale of Varun and Mitra, commonly referred to as Mitra-Varun, depicting them as a same-sex couple. They are regarded as symbolic representations of the two halves of the moon.

A prominent argument against homosexuality contends that it contradicts traditional Indian cultural values and ethics, often labelling it as unnatural. Ancient Indian mythology evidenced the existence of diverse sexual orientations and recognised the identity of homosexual and transgender individuals. However, the criminalisation of consensual homosexual conduct by the British reflected European moral standards rooted in their religious doctrines rather than indigenous Indian sensibilities. Hence, it becomes imperative to delve into the historical context of homosexuality in India and its integration within Indian values and cultural ethos. Through ancient texts, it becomes apparent that pre-colonial India exhibited a greater degree of tolerance towards diverse sexual expressions.

The writer is a lawyer, and a journalist on the staff of The Statesman