What Are the Legal Rights of the LGBTQ Community In India?

by Sukanya Majumdar
legal rights of the LGBTQ community in India.

After the decriminalisation of Article 377 it is clear that India is taking positive steps in same-sex relationships but what still remains unclear is the exact legal rights of the LGBTQ community in India.

In a one-on-one interview Usha Andeshwar, Mumbai-based lawyer and LGBTQ activist tells us in details about the rights the LGBTQ community enjoys and the rights they should have in future.

Recently, Taiwan became the first Asian country to legalise same-sex marriages. Does it have an impact on India?

India recently saw the decriminalisation of Article 377, however getting the same-sex marital right will take some time. The culture and every other aspect are different when it comes to Taiwan and other Asian countries and India.

Could you elaborate by making a comparison between the culture in Taiwan and the Indian culture?

India is a multi-lingual, multi-cultural, multi-religious country. Taiwan mainly comprises Buddhist and Christian population, unlike India where you get Hindus, Muslims, Christians, Jains and several other smaller religions and clans, who all have different perspectives and take on homosexuality. So legalisation of gay and lesbian marriage would certainly take some time in India.

Do you think the social class or the financial status of a person in India plays a key role in how they choose to come out, or how open they are about their sexuality?

Yes, it plays a very major role, even when you see the educational background of a person, it matters a lot. The Times of India published eminent Mumbai-based oncologist Dr Prasad Dandekar’s coming out as gay on the first page.

However, when someone from lower economic strata comes out as homosexual or transgender they might be disowned by their families or face a certain amount of stigma from the residents of the locality they reside in. Unless they have a strong financial background, be it in an urban or rural area of the country, it’s difficult to come out in the open.

The acceptance rate is still higher in the urban areas compared to the rural ones because the urban population is not surprisingly, more educated compared to their rural counterparts.

How far has the LGBTQ movement progressed in India?

legal rights of the LGBTQ community in India.

LGBTQ movement in India Image source

We have come a long way ever since we started the LGBTQ revolution and here we are today when 377 has actually been decriminalised. Before this many people were scared to even come out in the open about their partners. However, only passing the laws is never enough, practical implementation is needed to make society more aware of people having an alternative sexual orientation.

What is the legal scenario for the LGBTQ community in India right now?

Right now in India, the law is very clear when it comes to the LGBTQ. If they are dating they are allowed to have sex relationships in private. It’s about two consenting adults who are willing to spend time with each other in private. Again, if they do something in public, it might be considered an offence, like obscenity or public nuisance.

If two adults of the same sex are holding hands or kissing in public, then they will be considered liable for their actions. Earlier, even in private, they faced the risk of arrest or extortion, mostly by the police. This has definitely changed now.

What is India’s stance regarding adoption laws by single members of the LGBTQ community, or even homosexual couples who have been living together for long and want to adopt?

Adoption law was very strict from the very beginning. So even now, when a same-sex couple wants to adopt a child in India, a lot of factors come into play. Many celebrities, homosexuals like Karan Johar and Tushaar Kapoor have gone for surrogacy, a more recent example being Ekta Kapoor. But even the surrogacy laws are stricter now in India, following many instances of Western people coming to India resulting in the development of surrogacy tourism here. Even in the case of same-sex couples in India, there is no legal validity for adopting a child. If a single man or a  single woman goes for adoption, they may have better chances with the procedure.

Right now there is no marriage or adoption law in India for same-sex couples…

There is no negative law in India saying same-sex marriage in India cannot happen. However, on the flip side, there is no positive law in India too saying that it can happen.

legal rights of the LGBTQ community in India.

It is easier to adopt as single parent in India  Image source

So, if two members of same sex go to the Marriage Registrar’s office to get married, would they be straightaway rejected?

There have been many instances of same-sex couples getting married, but how many of them have actually approached the court and got the legal recognition they deserve? There is no valid marriage registration which has happened till now, even though there are famous personalities like Prasad Dandekar and his partner, who have been living together for long, as well as numerous other same-sex couples who have been living the life of a married couple.

How long do you think it will take before same-sex couples get legal marriage or adoption rights?

It will take minimum 10 years or more than 10 years from now for any significant legal change to be implemented, when it comes to the marriage and adoption rights of the LGBTQ+ community.

The activism of the LGBTQ community started in India as early as 1994, with the advent of the Humsafar Trust, which was the first MSM Organisation to cover this topic. With the 2018 judgement on decriminalisation of Section 377, we have come a long way but it has taken us more than 25 years, and we still have a long way to go.

A lot depends on political ideologies. The judgement has been passed by the judiciary however I don’t know how much longer it will take for it to be implemented in the Parliament in a proper manner. Even the Rights of Transgender Persons Bill was debated again and again before it was finally passed by the Rajya Sabha in 2015 and introduced in the Lok Sabha in 2016. The Bill officially recognises transgender marriage and members of the transgender community as brides.

legal rights of the LGBTQ community in India.

Same-sex couples cannot yet marry or adopt legally in India Image source

When it comes to social constraints, how many parents and family members of the LGBTQ community are actually supporting them completely? I know of a case of a lesbian couple, where one girl was taken abroad by her parents for treatment and cure of her condition they called homosexuality. They filed a police complaint and harassment charges against the other girl, her partner. She was falsely framed for prostitution and they said she was trying to push their daughter into the sex trade.

Imagine the situation of the partner, who is being called into the local police station by the police and asked if she is a prostitute in the nearby area. The police understands who is a transgender person but their understanding of lesbians or bisexuals is very less.

However, just passing laws is certainly not enough, we need to change as a society too and be more inclusive to the millions of LGBTQ people in India and make them a part of the mainstream culture.

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