Lgbtq rights in india and usa : a comparative analysis

“ LGBTQ RIGHTS IN INDIA AND USA : A COMPARATIVE ANALYSIS ”

Prof. Sinjini Sen

Assistant Professor, NMIMS School of Law

SUBMITTED BY:

JOYSREE DAS

TABLE OF CONTENTS

LGBTQ rights in India and USA : A Comparative Analysis

1. 
   ABSTRACT:
   

This research paper starts with introducing the LGBTQ community. This is followed by a brief history of their struggle for rights and issues faced. It concisely states some initiatives by the UN and reviews some landmark judgements of India and the US. The theme of this research paper is to analyse the evolution of LGBTQ laws in India and USA. Highlighting some major problems faced by LGBT people and how we plan out countermeasures to tackle them to achieve a peaceful world, is the main issue of this article.

3. INTRODUCTION:

Around the world, people are under attack for who they love, how they dress, and ultimately for who they are. In quite a lot of countries around the world being gay, bisexual, transgender or intersex menas living with daily discrimination. This dscrimination could be based on your sexual orientation (who you are attracted to), gender identity ( how you define yourself, irrespective of your biological sex), or gender expression ( how you dress up). From bullying and calling names to denying a job or healthcare the extensive range of erratic treatment faced is undeniably damaging.

According to the Oxford Dictionary LGBTQ is a abbrebiation for Lesbian, Gay, Bisexual, Transgender and Queer (or questioning).¹ These terms are used to describe a person’s sexual orientation or gender identity.In a lot of cases LGBTQ people were harassed in public sometimes even killed. A spurt of violence against trans people has claimed the lives of 369 individuals between October 2017 and September 2018. Many people around the world are forced to go through unnecessary surgeries that can cause life risk and psychological defects in the future. LGBT (or GLBT) is an initialism in use since the 1990s that is an adaptation of the initialism LGB which was used to replace the term gay in 1980s in ‘reference to the LGBT community.² This was because the stalwarts believed that the term ‘gay community’ did not accurately represent all those to whom it reffered. The acronym serves as an umbrella term to label issues pertaining to sexality gender identity and sexual orientation.

1867- the first time a self proclaimed gay person spoke out publicly for gay rights.

About 40 people were killed in the United States 40 in a deadly mass shooting around 2 am at the gay nightclub Pulse in Orlando, Florida.

We can clearly see that life as a transgender is far from easy. In several countries, being a LGBTQ is dangerous and often life threatening.

Here is a brief view of life of LGBTQ community around the world.

Fifty years since the 1969 Stonewall Riots in New York City, which sparked an LGBT rights movement, 36% of countries are yet to legalize homosexuality. Precisely acts remain a criminl offense in 72 countries, including 45 in which sexual relationships between women are outlawed. Moreover eight countries impose death penalty on homosexuality according to an annual report by the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA).³ Southern and east Africa, the Middle East and south Asia persist with the most draconian practices. The Western Hemisphere and the Western Europe are comparatively tolerant. But Britain was by no means a frontrunner when it moved 52 years ago to partly decriminalize homosexuality. Some 20 other countries had already led the way, including France, Belgium, the Netherlands, Brazil and Argentina, all of whom had legalised it well before 1900.

In Iran, Sudan, Saudi Arabia and Yemen, homosexuality is still punishable by death, under sharia law. In two other countries Syria and Iraq the death penalty is carried out by non state actors, including Islamic State.

Russia recetly intoduced a law forbidding the promotion of homosexuality and was condemned by the Europe court of human rights for a 2013 law prohibiting the spread of “propaganda of non-traditional sexual relations” ⁴ among minors.

The idea of Human rights rests on the notion that all humans are equal. It follows that all humans have dignity and thus should be treated equally. Anything that vitiates dignity of humans paves the way for discrimination. In the recent years with the adoption of new legal laws the LGBTQ community are coming into sharper focus around the world.

• 
  Who are LGBTQ?
  
• 
  Laws governing LGBTO
  
• 
  Present Situation
  
• 
  Int rights in UN
  
• 
  Issues laws in USA
  
• 
  Issues laws in India
  
• 
  Analysis
  

The earliest LGBT rights association can be traced back to the 19th century. During the 18th and 19th century, homosexuality was considered to be against the law of nature. Around the 1800s a British secret society started reforming for the rights of homosexuals, keeping their identities a secret. At this time a sexologist named havelock Ellis brought out a book ‘Sexual Inversion’ which was overly criticized.

USSR took the first bold move to decriminalize homosexuality in the 1920s. But this victory was short lived as the society was too narrow minded and Stalin re-criminalized homosexuality again. In 1945, after World War II a Homophile movement started in some European countries and continued to about 1970. Another movement called Gay Liberation Movement went on for four years starting from 1970. Following this Homosexual groups like Gay Liberation Front (GLF) and Gay Activists’ Alliance (GAA) were formed.

Numerous setbacks were faced by the LGBTQ community in the post Independence era. The first prominent prtest for gay rights couldbe traced back to Aug 11, 1992. The association was

In India, Shakuntala Devi was the first to publish a study on homosexuality in 1977. The initiative to repeal section 377 of Indian Penal Code about unnatural offenses stating homosexuality was by AIDS Bhedbhav Virodhi Andolan in 1991. It gained momentum when a Public Interest Litigation was filed by Naz Foundation in Delhi High Court.The supreme Court on 6th september decriinalised homosexuality.

A five-judge constitution bench, led by Cheif Justice of India (CJI) Dipak Misra held that criminalisation of consensual sexual conduct between adults of same sex under section 377 of th IPC is unconstitutional.

The LGBTQ people face extensive discrimination residing in a society where heterosexuality is commonly accepted sexual orientataion prevailing in the society. They are often the victims of exclusion and various forms of homophobic violence all around the world. Such tremendous prejudice not only denies them from employment, housing, employment etc but also marginalizes them and makes them socially excluded. The term itself contains a lot of problems not only socially but also in the virtual mindset of the people. Some of the issues faced by the people of this community are:⁵

1. 
   Social Exclusion
   

Impact of social exclusion

• 
  Dropping out of schools
  
• 
  Leaving home and family
  
• 
  Unable to find jobs
  
• 
  Unaware of rights
  
• 
  Attempt suicide
  

The apprehension of family problems deterred adolescents from talk about their LGB identity with their families. This fear was recently curbed as youth and support clubs came up which provided sources of information, and guidance. Until recently it was not clear how families react⁶ to adolescents coming out. A research from FAP⁷ (Family Acceptance Project) shows it. Families play a very important role in keeping in check of the mental well being of these individuals.⁸ The research analysed more than about 100 behaviours. They found that when the families out of concern blocked access to their gay friends or LGBT resources the adolescents felt that their families did not love them. This lack of communication causes several family conflict. Thus the best way to deal with it would be to accept them and help them fit in with thier heterosexual counterparts.

Some factors that establish homophobia on a larger scale are moral, religious and political beliefs. There is no concise definition of ‘homophobia’ as it covers a wide range of conduct and perspective. Homophobia becomes in everyday life in the form of jokes, physical abuse and negative media attacks. Most people have been brought with the in built perception of homosexuality being a deliquent, thus they supress their identity. Moreover it brings them at crossroads on whether to reveal their true selves or not. This denying and suppression of such an important part of themselves usually creates a huge impact on their future relationships.

LGBT people suffer from considerable socioeconomic inequalities at their workplace. Often they are fired on the basis of their sexual orientation. As a result there is instability in employment and ultimately poverty rates increase.

When LGBT people are expelled from their workplace because of their identities, it becomes hard to secure a decent livelihood. The problem arises when LGBT people are denied housing. Transgender people are not allowed to decide which gender they are most comfortable with in the sheltre system.

LGBT students face harassment in schools everyday. According to Sara Kost⁹ Studies done by the Gay,Lesbian, and Straight education Network (GLSEN) report that 9 out of 10 students face harassment in schools. Most students skip school because of it and their grades reflected it.

Health professionals can often be judgemental or less informed about LGBT resources. Unable to find proper healthcare these people often keep away from seeking help owing to negative experiences.
5. Psychological Impact

People of this community has an increased risk of psychiatric problems ranging from depression, anxiety, substance abuse and its related comorbidities. Younger same sex couples have less mental distress compared to their elder counterparts.¹⁰ Bisexual men have a higher rate of psychiatric problems¹¹ while their female counterparts¹² have a higher affinity towards alcohol consumption.¹³ The main element associated with this cognitive distress is the negative perception of the society towards this community.¹⁴

7 PRESENT SITUATION :

be treated with respect as anyone else is treated. All we want is equality.”

• 
  Petra E., Biloxi, MS, October 4, 2017
  

Nineteen countries in the world including South Africa, Canada, USAand Colombia recognise same sex marriage.

Opposed to accepting same sex marriage 73 countries including Morocco, Nigeria and Myanmr criminalized homosxuality.

In Egypt, same sex unions and marriages are not legal.

International legal instruments take the form of a treaty. A state expresses its consent to be bound by a treaty by ratification or accession.

European countries have protected the rights of these sexual minorities. Stand of India at UN regarding LGBT issues have been disappointing so far. The resolutions passed by the UN have created a positive impact all over the world.

The binding treaties can be used to force the government to respect the provisions relevant to LGBT rights. The non binding treaties can be used to mortify states who care about public image.

Some ways by which the UN has supported LGBTQ people are:

1. 
   In 2011 the UN Human Rights Council passed a wide ranged resolution¹⁵ expressing concerns on raging violence towards people with unusual gender identity and sexual orientation, enacting the first UN study based on LGBTQ issues.
   
2. 
   In 2012, the UNGA (UN General Assembly) passed a resolution¹⁶ on executions on the grounds of the victim’s sexual orientation.
   
3. 
   In 2013 the High Commissioner for UNHCR launched a campaign to promote LGBTQ rights. The ‘Free and Equal’ campaign¹⁷ reached a lot of people through traditional and social media.
   
4. 
   In August 2015, the UN Security Council held a meeting to address the human rights of LGBT people under ISIS. The convocation was summoned by the USand Chile.
   
5. 
   The UN refugee agency has tremendously helped LGBTQ people in escaping abuse and persecution. They played a crucial role in assisting them to reside and find a favourable environment.
   
6. 
   In September 2016 the UN appointed Vitit Muntarbhorn as its Independent Expert on Sexual Orientation and Gender Identity, to improve the lives of LGBTQ people around the world.
   
7. 
   In July 2017, the UN Human Rights office condemned the ban¹⁸ imposed on qualified people serving in the military, in the USA.
   

According to WHO this reclassification will reduce social stigma and promote acceptance.

On New Year’s Eve 2018, marriage of same sex was celebrated with fireworks in Sydney’s Harbour Bridge in Australia.

LGBT rights have made considerable progress in the past few years, but in some parts. In other parts of the world LGBTQ people face tremendous discrimination and stigmatization and also death in certain places.

India witnessed an upsurge of activism after the 2013 Supreme Court judgement ( the era of Kaushal judgement) which considered homosexals as criminals. Following this “biggest setback to the movement of LGBT rights”²⁰ the Supreme Court of India deleted Section 377 IPC from the statute to amend the erroneous nature of the previous judgement.

India maintained its past position on LGBTQ rights by abstaining from voting at UN Rights Council on the resolution to renew the mandate of independent expert on protection against violence and discrimination based on Sexual Orientation and Gender Identity (SOGI) .

The Government of India should come out of its conservative nature and take concrete steps to wipe off homophobia.
7.2) Indian Judgements

1. 
   Naz foundation Vs Government of NCT Delhi²¹
   

Section 377 - Unnatural offences: Criminalises whoever has carnal intercourse against the order of nature. The Court ruled in favour of the petitioner stating that the section was unconstitutional as it violated the right to dignity and privacy conferred by the European Court of Human Rights and the Universal Declaration of Human Rights as well as the case of Francis Coralie Munllin²².

The judgement given by the Delhi High Court in 2009 stated that Section 377 violated articles 14,15 and 21. The court held that the objective of the law ( enforcement of public morality ) was irrational and unjust.Under article 15 the court concluded that discrimination on grounds of sexual orienttion and preference was not permisible.

2. 
   Suresh Kumar Koushal Vs Naz Foundation²³
   

The Supreme Court of india

3. 
   Navtej Singh Johar vs. Union Of India (2018)²⁴
   

The most eminent part of the indian court’s decision is that it acknowledged the state’s responsibility to help curb the stigma attached to the trans community. Furthermore it did not use a universal standard of human rights to decriminalize homosexuality. Moreover the court could have set mechanisms to allow reconciliation of LGBT children and their parents. Doing so would help parents forcing arranged marriages that can lead to trauma and help mop out the practice of ‘corrective rape’.

1. 
   One, Inc.vs. Olesen (1958)²⁵ : The FBI and the US post Office declared that : The Homosexual Magazine as obscene and therefore not deliverable. The case reached the apex court which ruled in favor of the magazine, making it the first supreme court case in favor of homosexuals.
   
2. 
   Bowers vs. Hardwick ( 1986)²⁶ : The US Supreme Court (5-4) declared that consenting adults do not have a constitutional right to engage in homosexual acts in private. It criminalised consensual sodomy.
   
3. 
   Boy Scouts of America vs. Dale (2000)²⁷ : The Court held (5-4) that the Boy Scouts had a right to impose a ban on gays, as it was against the nature of the organisation.
   
4. 
   Lawrence vs. Texas (2003)²⁸ : The US Supreme Court²⁹ (6-3) overturned the ruling of the case Bowers vs. Hardwick³⁰ (1986), which banned homosexual sodomy. The verdict was recognised as a historic move in the evolution of civil rights in the US.
   
5. 
   United States v. Windsor (2013)³¹ : The Supreme Court declared section 3 of DOMA (Defense of Marriage Act³² 1996) as unconstitutional. It was held that the Act denied equal protection of rights by disallowing gay marriages. It stated that the section 3 of DOMA deprived people of liberty provided by the Fifth Amendment.³³
   

The new understanding was based on investigations and through research which showed that homosexual people could not be differemtiated from heterosexual on the basis of psychological impairments, impediments in judgements, or other major problems.

It is merely an unconventional life-choice. Most of the abnormalities ascertained is due to the predominantly³⁴ stubborn, narrow minded archetypes of or society.

It is time that humanity needs to be more tolerant of diversity. Majorities within democracies should focus on resolving issues of minorities with respect.

We should pay more heed to their humanity than on their sexual orientation.
9 CONCLUSION :

Homosexuality is natural, human mind has no control of it. There are different theories constructed for same sex behaviour in humans. Homosexual individuals have sexual orientation which are very different from traditional beliefs. Hence there is a perceived threat directed at them stemming from certain societal and religious aspects.

It is very important to make people aware of the LGBT community. At the end of the day social change has very little to do with law. Human rights are natural rights which are indestructible and inalienable. There is an urgent need to spread awareness about the challenges faced by these minorities and establish proper guidelines to help them feel a part of us.

The tussel to safeguard the rights of the LGBTQ will not be won simply by removal of section 377. Victory will finally be reached when everyone in India, whether in big cities or towns, in hospitals or offices, will truly believe that LGBTQ people are no different; that they have the same capacity to love, build long lasting relationships, and be good humans as everyone else. We can help improve the situation by spreading awareness, by talking about the issue openly. This might eventually bring about a positive change in public notions, which will lead to a better society.

I would like to end by a couplet by the great Persian poet Hafiz of Shiraz

“Every foundation that you see is defective.

Except the foundation of love which is without defect”


10 SUGGESTIONS:

There is no specific solution to guantee them a world free of discrimination, but there are certain meaures which can be adopted to achieve our goal effectively.

1. 
   Support the all the people of LGBT community- young, elderly, transgender people.
   
2. 
   To devise collaborations on cross-issue work that effectively deals with issues affecting low incomes of LGBT people.
   
3. 
   To educate people and make people about LGBT issues. Concerns should be addressed. To promote safety and health among LGBT individuals.
   

1. 
   To encourage students to respect everybody. This will prohibit bullying,harassment and violence.
   
2. 
   To promote a healthy and peaceful environment that accepts all kinds of people without judging them.
   

4. 
   Local policy makers and authorities should be more accepting of gender variant people and treat them as equals.
   
5. 
   Abolishing stigmatization of homophobic terms.
   
6. 
   Develop initiative to create support employers for LGBT people in the workplace.
   
7. 
   Health professionals should be trained for better understanding the problems of these people and proper psychological help should be provided.
   

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2. 
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4. 
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5. 
   The Family Acceptance Project (FAP) is a community research, intervention, education, and policy initiative started in 2002. FAP studies how family acceptance and rejection affect the health, mental health, and wellbeing of lesbian, gay, bisexual, and transgender (LGBT) youth. FAP is affiliated with San Francisco State University.
   
6. 
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7. 
   Kost, Sara (March 1, 200); LGBT students face harassment in Schools; Retrived 12 feb 2014
   
8. 
   Gonzales G, Henning-Smith C (2015) Disparities in health and disability among older adults in same-sex cohabiting relationships. J Aging Health 27: 432-453.
   
9. 
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10. 
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11. 
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12. 
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13. 
    Kimberly Carter Kelly, Defense of Marriage Act,
    
14. 
    WHO takes transgenderism out of mental illness category, by Agence France-Presse, Wed 20 June 2018 01:13BST
    
15. 
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16. 
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1. 
   Suresh Koushal v. Naz Foundation, (2014) 1 SCC 1
   
2. 
   Francis Coralie Munllin vs. Administrator, Union of Delhi and Others, (1981) 2 SCR 516.
   
3. 
   United States vs. Windsor, (2013) 570 US 744
   
4. 
   Lawrence vs. Texas (2003) 539 US 558
   
5. 
   Boy Scouts of America et al. vs. Dale, ( 2000) 530 US 640
   
6. 
   Bowers vs. Hardwick (1986) 478 US 186
   
7. 
   One, Inc vs. Olesen (1958) 355 US 371
   
8. 
   Navtej Singh Johar vs. Union of India (2018) WP (Crl.)No. 76/2016
   
9. 
   Naz FGovernment of NCT of Delhi and others WP (C)No. 7455/2001
   

1. 
   Kimberly Carter Kelly, Defense of Marriage Act, https://www.britannica.com/topic/Defense-of-Marriage-Act
   
2. 
   Melvin I. Urofsky, Bowers v. Hardwick, https://www.britannica.com/event/Bowers-v-Hardwick
   
3. 
   Brian P. Smentkowski, Supreme Court of the United States, https://www.britannica.com/topic/Supreme-Court-of-the-United-States
   
4. 
   WHO takes transgenderism out of mental illness category, by Agence France-Presse, https://www.theguardian.com/society/2018/jun/20/who-takes-transgenderism-out-of-mental-illness-category, Wed 20 June 2018 01:13BST
   
5. 
   https://twitter.com/UNHumanRights/status/890569746835492864
   
6. 
   https://www.unfe.org/
   
7. 
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8. 
   https://documents-dds-ny.un.org/doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf?OpenElement
   
9. 
   Kost, Sara (March 1, 200); LGBT students face harassment in Schools; Retrived 12 feb 2014 from http://www.examiner.com/articlelgbt-students-faceharassment-schools.
   
10. 
    International Journal of Interdisciplinary and Multidisciplinary Studies (IJIMS), http://www.ijims.com/uploads/cae8049d138e24ed7f5azppd_597.pdf, 2014, Vol 1, No.5, 317-331.
    
11. 
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12. 
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13. 
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1. 
   Constitution of India
   
2. 
   Constitution of the United States of America