On 17th October, the Indian Supreme Court delivered a historic judgment on the recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage. There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgments in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.
The Judgement of Justice D Y Chandrachud may be considered as progressive as it makes many observations and directions for the safeguard of the dignity of queer community. It directed Central and State Govs to take measures to stop violence and discrimination against LGBTQ People.
Discrimination faced by LGBTQ+
The observations of Justice DYC, were as follows-
- “Despite the de-criminalization of queer relationships and the broad sweep of the decision in Navtej, members of the queer community still face violence and oppression, contempt, and ridicule in various forms, subtle and not so subtle, every single day. The State (which has the responsibility to identify and end the various forms of discrimination faced by the queer community) has done little to emancipate the community from the shackles of oppression.
- The ghost of Section 377 lives on in spite of the decriminalization of the sexual offence and the recognition of the rights of queer persons in Navtej. The law, in the form of Section 377, imposed social morality on homosexual relationships. The legal regime was the chariot which propels social norms on love and unions. The impact of Section 377 on society must be viewed in terms of its effect on the social conceptions of love and companionship.
- Section 377 enforced morality through law by shaping beliefs about queer identity. This far-reaching impact of the legal regime is one of the primary reasons for the continuing, widespread revulsion against the LGBTQIA+ community even after homosexual sexual acts have been decriminalized. The lack of sensitization and the ensuing discrimination has pushed the members of the community into the proverbial closet.
- For many members of the LGBTQIA+ community, expressing their sexual orientation and gender identity is an act of defiance which requires strength and courage. The ostracism extends across the full range of social values, from parenting to public office.
- The discrimination faced by the LGBTQIA+ community in various forms is, in so many ways, a product of social morality as much as it is a product of the lack of effort from the State to sensitize the general public about issues concerning queer rights.
- Social norms and beliefs which were internalised over centuries were not overhauled at the stroke of midnight when the nation became the source of its destiny and when the Constitution was adopted in 1950. Similarly, the stigma against the members of the LGBTQIA+ community did not end with a stroke of the pen when this Court decriminalized consensual homosexual sexual activity.
- Despite this Court recognizing that sexual orientation is a core and innate trait of an individual, the members of the queer community continue to face economic, social and political oppression in both visible and invisible ways. At a primary level, they face oppression because of their inability to express their gender identity due to the fear of public disapproval.
Researchers have recorded incidents where the public has subjected members of the queer community to violence for publicly displaying affection towards one another. A woman who eloped with another woman was beaten, stripped and paraded around the village within a blackened face and a garland of shoes around her neck.
- Queer individuals who are from socio-economically marginalised backgrounds are at an even greater risk of being subject to harassment. The LGBTQIA+ community also faces discrimination in the public space because of the lack of accommodation in the public sphere for persons who do not conform to the gender binary. All the services provided by the State including public washrooms, security check points, and ticket counters at railway stations and bus depots are segregated based on a strict gender binary.
- Transwomen have recounted experiences of being asked to shift to the men’s queue in security check points. Although they are women and identify with the female gender, they are forced to accept a third party’s assessment of their gender as being male. Just as a cisgender woman may feel intensely uncomfortable at using facilities meant for men, transgender women too may feel very uncomfortable. Over time, misgendering a person can have deleterious effects on their mental health and negatively impact their ability to function in the world.
- Places of education and employment are also not spaces where gender identity and sexual orientation may be expressed devoid of discriminatory attitudes. The members of the queer community may be forced to quit their education or their job if they face oppression in these spaces. This would mean that they do not have equal opportunity.
- In professional environments, members of the queer community may face various forms of discrimination which may range from being denied opportunities to secure jobs to not being invited to office gatherings and to being passed over for promotions. A human rights organization interviewed 3,619 transgender persons out of which only 12% were employed, with half of them earning less than Rs. 5,000 per month.
- Contrary to popular perception, the significant percentage of unemployment in the transgender community is not because transgender persons do not wish to work or because they prefer to beg, but because employers are unwilling to employ them due to their gender nonconformity. In another study conducted by the National Human Rights Commission (NHRC) it was revealed that seventy-five percent of transgender persons in the National Capital Region and eighty-two percent of transgender persons in Uttar Pradesh never attended school or dropped out before tenth grade.
- Further, members of the transgender community face difficulty in obtaining proper identification documents which prevents them from accessing even those opportunities which are available to them The biological family is often the first site of violence and oppression for the queer community.
It begins with family members rejecting the gender identities of their transgender children or consenting to “gender normalizing surgeries” for their intersex children (that is, those who have reproductive or sexual anatomy that does not fit into an exclusive male or female sex classification) without giving the child an opportunity to choose for themselves.
- At a very young age, they face familial rejection. Instead of being nurtured with love and affection, they face contempt because of their identity which in turn makes them vulnerable and inexpressive. The natal families of some homosexual persons force them to marry a person of the opposite sex once they come to know about their sexual orientation. A woman also recounted that she was wary of communicating the truth about her sexual orientation to her family because she was worried that they would stop her from going to school.
- Another woman recounted that after she disclosed her sexual orientation to her family, her movements were constantly monitored and even if she went away from home for an hour, her phone would be traced with the assistance of the Station House Officer. Families also consider a queer person’s desire of gender expression to be a mental illness which requires cure. A person from the queer community recounted being forced to undergo ‘conversion therapy’ where they were given electroconvulsive shocks.
- Another queer person recounts the harrowing experience that they underwent at a rehabilitation centre:
“It was only later that I realised that I had been shifted to another rehabilitation centre […]. Here, I was undressed and checked by a female warden. Afterward, I went to sleep for the night.
There was one bathroom in this rehabilitation centre, which everyone used together. There was no door, and there was no question of privacy. I have never been to jail in my life, but I’ve heard that it’s better than this.”
- The transgender community is also discriminated against in other ways. The members of the community are not treated in a dignified manner in the healthcare sector for reasons which range from administrative formalities which are not gender-inclusive to a lack of knowledge about gender-related diseases.
Similarly, the community also faces discrimination in the housing sector. Studies have shown that it is very difficult for members of the queer community to rent a house. Some members of the queer community recounted that they have shifted houses twice in four years because of neighbours who assumed that they had parties and caused disturbances.
State also involved in Discrimination
- Often, instruments of the State which are tasked with protecting human rights, perpetuate violence. Police and prison officials exhibit violence towards the queer community. Research conducted by the National Institute of Epidemiology involving around 60,000 transgender participants revealed that the law enforcement agencies are the largest perpetrators of violence against the transgender community.
- A trans-woman lodged in a prison housing two thousand male inmates recounted the violence that she faced during her imprisonment. She reported that the male prisoners sexually assaulted and mentally harassed her. Lesbian and gay couples often approach the police for protection from family violence. However, instead of granting protection to the couple, the police ‘hand over’ the couple to their families.
- In one such case, the police colluded with the family despite court orders granting protection to a couple from the queer community. The parents of a cis-woman (who was in a relationship with a trans man) filed a missing persons case, The couple already had already filed an affidavit in court that they were in a live-in relationship. However, the police ‘tracked them down’.
- In some instances, the family’s complaint is not recorded by the police. Instead, they try to force persons of the queer community to speak to their family. The violence and the discrimination that the queer community is subjected to leads to them being closeted or feeling compelled to imitate the expressive attitudes of heterosexual persons.
NALSA Judgment and Transgender Protection Act
- This Court in NALSA v. Union of India (2014), declared that the transgender community must not be subsumed within the gender binary and must be treated as a “third gender” in the eyes of the law. This Court also directed the Central and the State governments to take steps to address the stigma and oppression faced by the community and create public awareness about the community and their struggles.
- Parliament enacted the Transgender Persons (Protection of Rights) Act 2019 to protect the rights of the transgender community and provide welfare measures for their betterment. The enactment aims to protect the transgender community from discrimination and includes provisions for providing them with opportunities in the educational and social sectors.
- However, in spite of the decision of this Court in NALSA (supra) and the provisions of the Transgender Persons Act, members of the transgender community continue to be denied equal citizenship. They face immense physical and sexual violence. They are often forced to undergo sex-reassignment surgeries before their rights as transgender persons are recognized, and are frequently subjected to hate speech. Stereotypes about the community are also reinforced in the media.”
Supriyo @Supriya Chakraborty & Anr. V. Union of India (2023)
 In Navtej Singh Johar v. Union of India (2018), the Supreme Court had declared Section 377 of IPC unconstitutional.
 Maya Sharma, Loving Women: Being Lesbian in Underprivileged India (2nd edn, Yoda Press 2021)