People around the world face violence and inequality—and sometimes torture, even execution—because of who they love, how they look, or who they are. Sexual orientation and gender identity are integral aspects of our selves and should never lead to discrimination or abuse. Human Rights Watch works for lesbian, gay, bisexual, and transgender peoples’ rights, and with activists representing a multiplicity of identities and issues. We document and expose abuses based on sexual orientation and gender identity worldwide, including torture, killing and executions, arrests under unjust laws, unequal treatment, censorship, medical abuses, discrimination in health and jobs and housing, domestic violence, abuses against children, and denial of family rights and recognition. We advocate for laws and policies that will protect everyone’s dignity. We work for a world where all people can enjoy their rights fully. Lesbian, gay, bisexual and transgender (LGBT) people in India face certain legal and social difficulties not experienced by non-LGBT persons. Sexual activity between people of the same gender is illegal, and same-sex couples cannot legally marry or obtain a civil partnership. India does, however, legally recognize Hijras as a gender separate from men or women alongside neighboring Pakistan, to legally recognize a third gender.
Law regarding same-sex sexual activity
Homosexual intercourse was made a criminal offense under Section 377 of the Indian Penal Code, 1860. 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. According to a 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. However, even there have been incidents of harassment of homosexual groups.
On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalization of homosexual activity, stating that in India, homosexuality is seen as being immoral. The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalizing 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.
Recognition of same-sex relationships
Same-sex marriages are not legally recognized in India, nor are same-sex couples offered more limited rights such as a civil union or a domestic partnership. This may change, at the local level, in light of a landmark court opinion in the city of Gurgaon.
In 2011, the court granted legal recognition to a same-sex marriage, involving two women. After marrying, the couple began to receive threats from friends and relatives in their village.
Earlier studies by the National Gay and Lesbian Task Force Policy Institute, including an analysis of 21 different local surveys between 1980 and 1991, found widespread discrimination across the country against gay men and lesbians. According to the report, as many as 44 percent of respondents in some cities reported employment discrimination as a result of their sexual orientation. Thirty-two percent reported discrimination in renting a housing unit. The study also said that gay men and lesbians reported discrimination in public restaurants and in receiving health services, obtaining insurance and in education.
Legislative attempts to enact anti-bias laws protecting gay men and lesbians have occurred at the federal, state and local level. In Congress, the effort to enact equal protection laws, including coverage for gay men and lesbians, has been underway since 1975, when Rep. Bella Abzug, D-N.Y., introduced the first lesbian and gay civil rights bill.
Since then, 12 states and the District of Columbia have enacted laws barring job discrimination on the basis of sexual orientation. The Human Rights Campaign also reports that 23 states and the District of Columbia have enacted state hate crime laws that include protections against violence motivated by sexual orientation bias.
The states Tamil Nadu and Kerala in India were the first 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 the Government Hospital (only for MTF); 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 programme (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 through government hospitals.
In India one group of transgender people are called Hijras. They were legally granted voting rights as a third sex in 1994. Due to alleged legal ambiguity of the procedure, Indian transgender individuals do not have access to safe medical facilities for SRS. On 15 April 2014, Supreme Court of India declared transgender people as a socially and economically backward class entitled to reservations in Education and Job, and also directed union and state governments to frame welfare schemes for them. On 24 April 2015, the Rajya Sabah 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, prevent abuse, violence and exploitation of transgender people. The Bill also provides for the establishment of welfare boards at the Centre and State level, and for Transgender Rights Courts. The Bill was introduced by DMK MP Tiruchi Siva, and marked the first time the House had passed a private member’s bill in 45 years.
Therefore in my view they should be given their rights without any discrimination on their gender.