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Queer Freedom? A Year After Section 377 Verdict, LGBT Community Still Don't Have These Rights

Illustration by Mir Suhail/News18.

Illustration by Mir Suhail/News18.

A report by the Vidhi Centre for Legal Policy found that a queer person's rights were still deficient in the domains of identity, violence, family and employment.

Angana Chakrabarti
  • Last Updated: September 6, 2019, 7:18 PM IST
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It’s been a year since Section 377 of the Indian Penal Code-- a draconian, British-era law criminalising same-sex relationship-- was read down. But the fight for equality is far from over and the battle ahead will be a long-drawn one, fraught with difficulties given that the LGBTQ+ community remain closed off to civil rights.

A report by the Vidhi Centre for Legal Policy found that a queer person's rights were still deficient in the domains of identity, violence, family and employment.

The report quoted Akshat Agarwal, a Research Fellow of Vidhi Centre for Legal Policy, as saying, "While the decisions of the Supreme Court of India were momentous, it is now important to take the conversation forward and talk about the various laws that continue to exclude LGBT+ persons and deny their rights as equal citizens."

From the right to own and inherit property to the right to adopt and marry, here's a looking glass into what the legal battle ahead for equality could look like for the LGBTQ community.

1) Right to marry: Matrimony laws aren't blanket, Tripti Tandon of the Lawyer's Collective told News18. These are incumbent on the legislation that is specific to certain religions, including the Hindu Code Bill. Hence, the path towards amendment can be taken up in specific cases like the recent one in which the bench of the Madras High upheld the marriage between a man and a trans-woman. This is said to be the first time that Article 21 of the Constitution (Right to Life and Personal Liberty) was affirmed in the case of a transperson.

2) Right to adopt: Under the country's family laws, only marriage is the "only legitimate form of expressing emotional and financial dependency". Hence, rights surrounding the institution, for instance, the right to adoption is closed off to same-sex couples. The Hindu Adoptions and Maintenance Act, 1956 states that while "unmarried" females can adopt, males only fulfil the prerequisite "if he has a wife living".

Take the case of Nikesh Usha Pushkaran and Sonu MS, the first openly married gay couple in Kerala, for instance. Although the decriminalisation of homosexuality rang in a new era, life has been bitter-sweet given that they still can't adopt. Their only hope now remains a Chennai-based LGBTQI organisation, who are planning to approach the Supreme Court to legalise homosexual marriage.

3) Right to Surrogacy: The right to surrogacy also remains a far-off distance for the LGBTQI community in the current legal framework and in case the upper house passed the pending Surrogacy Bill, the exclusion of the LGBTQI community will be further cemented. The bill seeks to ban commercial surrogacy in the country and has already been passed by the Lok Sabha. The bill states that only couples who have been married for at least five years are eligible for surrogacy.

4) Right to employment:  The report by the Vidhi Centre for Legal Policy highlights that the "workplace discrimination laws and maternity benefits laws fail to account for LGBTQ+ persons". Apart from the fact that the HR Policy in most companies isn't inclusive, our judicial provisions also do little when it comes to protecting a self-identifying member of the LGBTQI community from harassment. The Sexual Harassment at Workplace Act of 2013, for instance, only consider a female subject, completely forgoing "victim neutrality". The Transgender Bill, which has now been passed by the Lok Sabha, will also do little by the way of ensuring employment for the trans-community.

The Supreme Court had last month dismissed a petition a review petition seeking various civil rights, including, marriage, adoption and surrogacy. Tandon, however, quipped in the end that the way forward cannot be through blanket petitions.

"It can only be by challenging each of the existing laws."

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