BACKGROUND

GUIDE

All India Political

Party Meet

MODERATOR, Utkarsh Tanwar

#CelebratingtheCulturesofIndia
 LETTER FROM THE EXECUTIVE BOARD

Dear Prospective Members,

On behalf of the Executive Board, we extend awarm welcome to all of

you and congratulate you on being apart of METANOIA
INTERNATIONAL MUN 2023.

The committee being simulated, unlike most other simulations you must
have heard of or been apart of; focuses on political intellect and analytical
application of thoughts and strategic application of thoughts in resolving
impending politically sensitive bilateral issues.
Kindly note that we are not looking for existing solutions, or statements
that would be acopy paste of what the kind of leader you are representing
has already stated; instead we seek an out of the box solution from you,
while knowing and understanding your impending political and
ideological limitations.

This Introductory guide would be as abstract as possible, and would just

give you abasic perspective on what you can expect from the committee
and areas within which your research should be focused at this given point
of time. Given the extremely political and volatile nature of this
committee, your presence of mind and politico-analytical aptitude is
something which we at the executive board would be looking to test.
Kindly do not limit your research to the areas highlighted but ensure that
you logically deduce and push your research to areas associated with the
issues mentioned.

Also, unlike most conventional/unconventional committees you

have attended, this committee shall have “substantive”
intervention by the Executive Board.

The objective of this background guide is to provide you with a ‘background’

of the issue at hand and therefore it might seem to some as
not being comprehensive enough. If you feel that the Guide does not cover
all the issues and it could have been compiled in abetter way by giving
more information or links or better arguments ‘for’ and ‘against’, we think
that would be the appropriate time to pat our backs for we successfully
managed to compile a‘Background Guide’ and not a‘Study Guide’ which
most of the Executive Board members fail to differentiate. We feel that
‘study guides’ are detrimental to the individual growth of the delegate since
they overlook avery important part of this activity, which is- Research. We
are sure that this background guide will give you aperfect launching pad to
start with your research.

The usage of internet in the committee is prohibited, barring the devices

the Executive Board, the Secretariat and the Conference Staff are
carrying.
Wishing you all good luck and hoping to see you all at this conference
discussing imperative issues of national concern.
Warm Regards......
Utkarsh Thanwar

(Moderator)

[email protected]
Following is a suggested pattern for researching (if required):

➢Research on the allotted personality, understanding his/her thinking about the

agenda.
➢Comprehending the Party Policy of the allotted Personality. It includes
understanding the ideology and principles adopted by the party on the agenda. It
further includes studying past actions taken by the party on the agenda and other
related issues –specifically analyzing their causes and consequences.
➢Researching further upon the agenda using the footnotes and links given in
the guide and from other sources such as academic papers, institutional reports,
national reports, news articles, blogs etc.

➢Understanding policies adopted by different political parties and major parties

involved in the agenda. Including their position, ideology and adopted past
actions.

➢Characterizing the agenda into sub-topics and preparing speeches and

statements on them. It is the same as preparing topics for the moderated
caucuses and their content.
➢Preparing alist of possible solutions and actions that can be adopted on the
issue as per your party’s policies.
➢Assemble proof/evidence for any important piece of information/ allegation
you are going to use in committee
➢Keeping your research updated using various news sources, especially news
websites given in the proof/evidence section.
➢Lastly, we would request all the delegates to put sincere efforts in preparation
and research for the simulation and work hard to make it afruitful learning
experience for all.

Alot of members have doubts such as what they are supposed to write or how
should they structure their speech. This is completely up to the member. The
maximum we can do is to tell you according to our experiences about how
speeches are structured and content chosen for them accordingly. These are:

•Premise – Analysis – Example

•Problem – Solution – Benefits

•Past – Present – Future Scenario

•What – So what – Now what

There can be more structures. These are some of them which the members of
the Executive Board have seen.
:
NoteThe best way to debate in any format is to clearly state your opinion
and justify it with substantive rational sources.

PROOF/EVIDENCE IN COMMITTEE

1.Government Reports (Each ministry publishes its own reports including

External Affairs Ministry)
2.Government Websites

3.Government run News channels i.e. RSTV, LSTV, DD News 4.Standing

Committee Reports/ Commission Reports
5.RTI Proofs

6.Parliamentary Standing Committee reports

7. Questions and Answers of the parliament

NOTE:Under no circumstances will sources like Wikipedia
(http://www.wikipedia.org/), Amnesty International (http://
www.amnesty.org/) or newspapers like Times of India (http://
timesofindia.indiatimes.com/), etc. be accepted as PROOF/ EVIDENCE. But
they can be used for better understanding of any issue or even be brought up
in debate if the information given in such sources is in line with the beliefs of
the Government.

Introduction
6th of September 2018 was not an ordinary day. Something momentous happened on the day that
“blew alife of “constitutionality” in the dead members of the LGBTQIA+ community, who have
been subjected to centuries of mind-numbing toil. What marked the day special for the LGBT+
community was that the Supreme Court of India delivered ahistorical verdict decriminalising
homosexuality by partially striking down Section 377 of IPC.

The LGBT community all across the country erupted in the jubilant celebration enjoying their
victory against the 200-year-old British-era law, that criminalised same-sex relationship. The
significance of this whole judgement can be surmised in the light of the statement made by
Justice Indu Malhotra while reading her 50-page verdict that “History owes an apology to the
members of this community and their families, for the delay in providing redressal for the
ignominy and ostracism that they have suffered through the centuries” .

However, this landmark event should not be construed as the culmination of more than two
decades of alegal fight against the draconian law but rather should be understood as abeginning of
anew era in the fight for LGBT Rights. It would not be wrong to say that the repealing of the colonial
law was merely atip of the iceberg and the LGBT community in India has amuch larger and bigger
struggle ahead of them.

Despite homosexuality been decriminalised, the laws in India still remain hostile and prejudicial
towards the LGBT community in several ways.The reason behind this is that there exists an
enormous gap between the legislative and the judicial development of LGBT laws in India. So,
though the Supreme Court of India through the landmark judgements of National Legal Services
Authority v. Union of India , Navtej Singh johar v. UOI , and Justice K.S.Puttaswamy v. Union of
India (Puttaswamy) has laid the groundwork to confer upon the queer and non-binary community
abundle of basic human rights, but the legislature has failed to keep up with the recent
developments.

So essentially speaking, the same-sex couples now have the legal right to cohabit and conduct
their personal affairs without any fear of persecution but are still denied equality of treatment
in various aspects. Thus, it is imperative to take the conversation forward and talk about the
various laws that continue to discriminate against the LGBT+ persons. It includes anti-
discriminatory laws such as no recognition of same-sex marriages, no rights for adoption,
surrogacy etc.
So, the fight for equality continues as there is along battle waiting ahead, swarmed with numerous
difficulties given that the LGBTQ+ community remains closed off to civil rights.

Evolution of LGBT Rights

Section 377 of IPC which criminalised all kinds of non-procreative sexual intercourse was enacted
in the pre-independence era by the British colonial Government. The despotic law was not only
directed against the homosexuals but also covered all other forms of non-traditional sexual
intercourse even in the course of heterosexual union. So this law was nothing but aresidue of the
orthodox Victorian morality which had no place in a democratic country like India.

However, it took more than 70 years and almost 2decades of the long legal battle to scrape down
this old age law that had become aweapon to harass and exploit all those who didn’t conform with
the traditional binary of sexuality and gender. But before proceeding to understand how the current
laws in India, even after the scrapping of Section 377, are insufficient in securing basic human
rights to the LGBT+ community in India. Let us first trace back the history of the LGBT rights
movement in India, discussing some landmark Judgements and their impact on the LGBT Rights
movement to have a comprehensive discussion further.

Though the beginning of the LGBT rights movement can be traced back to the early 1990s but all
the major developments that happened since then can be discussed in the reference of the
following key judgements and their aftermath.

Naz Foundation Govt. v. NCT of Delhi

Background: In July 2001, eager to press charges under Section 377 of IPC, Lucknow police
raided a park and detained a few men on the suspicion of them being homosexuals.

The police also arrested nine more men associated with “Bharosa Trust”, an NGO which was
working to create awareness amongst people about safe sexual practices and STD’s. These
people were then accused of running asex racket and were denied bail. It was then that The
Lawyers
Collective, alegal aid organisation, came forward and established that the charges pressed against
these people were false and finally they were released.

After the Lucknow incident, an NGO Naz Foundation along with Lawyers Collective went ahead
and filed apetition before the Delhi High Court in 2001 challenging the constitutional validity of
Section 377 of IPC.

Arguments: The petitioner argued that Section 377 of IPC violated the fundamental right to life
and liberty, right to privacy and dignity, right to health, right to equality and freedom of
expression. It was also submitted that the law undermined the public health efforts that aimed at
reducing the risk of transmission of HIV/AIDS, as the fear of prosecution under the Section
prevented people from talking openly about sexuality and lifestyle.

Judgement:Finally, In 2009 in the case of Naz Foundation Govt. v. NCT of Delhi , the High Court of
Delhi held that Section 377 of IPC imposed an unreasonable restriction over two adults engaging in
consensual intercourse in private. Thus, it was in direct violation of their basic fundamental rights
enshrined under Articles 14,15,19 and 21 of the Indian Constitution.

Suresh Kumar Koushal vs Naz Foundation

Background: Various Individuals and faith-based groups vehemently rejected the idea of
decriminalizing homosexual relationships, in light of India’s rich history bathed in ethics and
tradition. They further appealed before the Supreme Court of India to reconsider the
constitutionality of Section 377.

Judgment: When the community, after eight years of along battle, was just letting out asigh of
relief, the Supreme Court on 11th December 2013, overturned the judgment of the Delhi High
Court and re-criminalised homosexuality. Abench of Justice GS Singhvi and Justice SJ
Mukhopadhaya Court held that LGBT+ persons constituted a‘minuscule minority’ and therefore did
not deserve constitutional protection and further observed that Section 377 of IPC did not suffer
from the vice of unconstitutionality.

Aftermath: But the silver lining was that the Suresh Kumar Koushal V. Naz Foundation judgement,
instead of putting ahalt on the LGBT movement has rather rekindled anew wave of activism in
India. The Supreme Court’s iconoclastic judgement faced immense criticism from every nook and
corner for erasing basic human rights of homosexuals. The result was that public discourse about
LGBT rights witnessed an upsurge in India.
National Legal Services Authority v. Union of India
Background: The transgender community in India has been the worst sufferer of exploitation
amongst the whole LGBT+ community due to their degraded social, educational and economical
status. These people have never been considered as apart of society and have always been
subjected to exploitation, ostracisation, humiliation and violence either in the hands of society or
the authorities in power. The constant rejection and not having access to resources, these people
often resort to beggary or prostitution, making them more vulnerable to discrimination, STD’s and
crimes such as human trafficking.

But the 2014 Judgement of the Supreme Court brought in anew ray of hope and euphoria for
these transgender people as for the first time in the history, they were recognised as the third
gender.

Issue: In National Legal Services Authority vUnion of India , the Supreme Court had to decide upon
the question of whether there was aneed to recognise the hijra and transgender community as
athird gender for the purposes of public health, education, employment, reservation and other
welfare schemes.

Judgement: The Supreme Court in its landmark judgement created the ‘third gender’ status for
hijras or transgenders. As earlier, the transgender people were forced to describe themselves as
either male or female, but after the judgement, they could proudly identify themselves as
transgender. But apart from this, what made this judgement so special was that it laid down the
framework to guarantee the transgender community awhole spectrum of basic human rights
which can be surmised as follows:

1. The court held that the non-recognition of their identities was in violation of Article
14,15,16 and 21 of the Constitution of India.
2. The Supreme court further directed the Government of India to treat the members of
“Third Gender” as an economically and socially backward class.
3. It was also stipulated that government should make proper policies for the transgender
community in the light of Articles 15(2) and 16(4) to ensure equality of opportunity in
education and employment As per the judgement, the third gender would be
categorised as other backward classes [OBC] to confer them the benefit of reservation
in relation to government jobs and educational institutions.
4. The court also took cognizance that a conflict between one’s birth gender and identity
is not essentially a pathological condition. So, rather than adopting a “treatment of the
abnormality”, the focus should be on “ resolving distress over a mismatch”.

In simple words, it means that the court recognised the difference between both the gender
and biological components of sex. The court defined biological characteristics to include
genital, secondary sexual features, chromosomes etc. but defined gender attributes as one’s
self-image i.e.
an individual’s deep emotional or psychological sense of sexual identity and character which is
not restricted to the binary sense of male and female but can lie on a broad spectrum.

Aftermath: After this judgement, transgender people now can change their gender without
undergoing asex reassignment surgery Additionally, they have aconstitutional right to identify and
register themselves as the third gender. Apart from this, various state government took small steps
to benefit the transgender population by making policies of health and housing. However, a major
blow to this judgement came after the passing of Transgender Persons Bill, 2018 the various
intricacies of which will be dealt with later in this article.

K.S. Puttaswamy v Union of India (2017)

Background: In the Suresh Kumar Koushal V. Naz Foundation judgement when the Naz Foundation
argued before the Supreme court that Section 377 of IPC violated the right to privacy, the Supreme
court went on length giving adetailed account of constitutional jurisprudence and the evolution of
the right to privacy. However, after establishing the vital significance of this right, the court
underestimated the right to privacy argument in the context of 377. The court recogonised that
although there have been cases of misuse of Section 377 against the LGBT+ community putting
their privacy and integrity at stake on the pretext of blackmailing, harassing or torture, and in
general. But the same has never been the objective of the section as the section itself neither
authorises nor condones such treatment and thus is not reflective of the fact that such law is
beyond the vires of constitution.

Judgment: However in KPuttaswamy V. Union of India case, (popularly called as Aadhar

judgement) Justice Chandrachud’s opinion featured asection titled “discordant notes.” It basically
dealt with two Supreme court judgements. The first was about the infamous case of Additional
District Magistrate, Jabalpur vS.S. Shukla which upheld the denial of basic fundamental rights
while the second part referred to the Koushal case rejecting the rhetoric of the “so-called” rights of
the LGBTQ+ community.

Justice Chandrachud observed that sexual orientation also falls within the wide ambit of right to
privacy. Puttaswamy decision notes also registered the criticism about minimis hypothesis
principle used in the Koushal judgement and stated that the minuscule population of LGBT+
cannot be the ground to deprive them of the basic fundamental rights and such curtailment of
the fundamental right cannot be held tolerable even when afew, as opposed to alarge number of
people, are subjected to hostile treatment.

This acknowledgement is important because of the reasons:

1. In Koushal judgment it was argued that only a few people were prosecuted under the
offence of section 377 thus it does not have much significance. However, what was
largely ignored was the fact that since consent does not play any significance in the
 prosecution of section 377, the numbers cannot be a valid proof of the extent of use of
this section as they cannot indicate the instances of consensual sexual encounters.
2. Another thing that this observation established is that the real impact of the law is not
only restricted to the prosecution or punishment but even includes an indirect impact
which even involves the creation of a hostile environment for LGBTQ+ community.

The Supreme Court’s ruling on the right to privacy as an inherent fundamental right under Article
21 in the Indian Constitution, sparked hopes amongst the queer community that the Court would
soon strike down Section 377.

Navtej Singh Johar V. Union of India

Background: After the overruling of the Delhi High Court judgement in 2013, homosexuals were
again considered as criminals.

India witnessed an increasing number of LGBT rights protests when some high profile names
including hotelier Keshav Suri, Ritu Dalmia, dancer Navtej Singh Johar among many others
came forward and filed the petition before the Supreme court challenging the constitutional
validity of Section 377 of IPC.

Arguments: The Supreme court agreed to refer the issue to alarger bench and heard several
petitions in relation to it. The Government further stated that it will not interfere and will leave
the matter to be decided in accordance with the wisdom of the court. Arguments were
advanced that section 377 violated the constitutional rights to privacy, freedom of expression,
equality, human dignity and protection from discrimination.

Judgement: The Court finally gave its verdict on 6th September 2018 and it can be summarised
as follows:

1. The court unanimously ruled that Section 377 is unconstitutional as it infringes the
fundamental rights of intimacy, autonomy and identity. and decriminalised
homosexuality by reading down Section 377 to exclude consensual intercourse
between adults of the same sex/gender.
2. The court rationalised that the Section 377 is vague and does not create intelligible
differentia between what is “natural” and what is “unnatural”. It also curbs freedom of
expressing one’s sexual identity, ie. right to freedom of expression as enshrined under
Article 19 of the Indian constitution.
3. The court further opined that the sexual orientation is an inherent part of self-identity
and invalidating the same is denying the right to life and the fact that they constitute a
minuscule section of the population cannot be a valid justification to deny them this
right.
 4. The court also heavily criticised the Koushal judgement and called it irrational,
arbitrary and manifestly unconstitutional.
5. It was also emphasised that discrimination on the basis of sexual orientation is
unconstitutional considering it is a natural phenomenon as proven by scientific and
biological facts.
6. The Supreme court also directed the government to create public awareness regarding
LGBT rights and to eliminate the stigma surrounding the LGBT people. The judges
further elaborated upon the issues surrounding mental health, dignity, privacy, right to
self-determination and transgenders.

Transgender Persons (Protection of Rights) Bill, 2019

Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect
the rights of the Transgender Community by prohibiting discrimination against them with
regards to employment, education. healthcare, access to government or private
establishments. But in the name of empowering the community, the bill further exposes them
to institutional oppression and dehumanises their body and identity.

The trans community in India has vehemently rejected the bill citing following provisions of the
bill as they infringe their fundamental rights and do not comply with the NALSA judgement.

1. The bill snatches from an individual the right to determine his/her sexual orientation
which is an integral component of the right to privacy as pronounced in the NALSA
judgement. As per the bill, the change of gender identity in documents can only be
done after proof of sex reassignment surgery which must be certified by the District
Magistrate. This takes away from the Trans community the basic human right of
autonomy and privacy and further exposes them to harassment in the hands of
authorities.
2. Another discriminatory aspect of the bill is that the punishment prescribed in the case
of ‘ Sexual abuse against Transgender’ is only of two years while a similar kind of
offence if, happened against women attracts a serious punishment extending up to 7
years. Thus, stipulating different levels of punishments for the same nature of crime
only on the basis of gender identity is inherently discriminatory, arbitrary and against
the equal protection clause.
3. The bill is also worthy to be criticised as the bill erroneously neglects the viciousness
and atrocities that transgenders encounter within their own family. The law disentitles
them from leaving their families and joining the trans-community thus infringing their
right to be a part of any association and right to movement. The only recourse
available to the trans community in case of family violence are the rehabilitation
centres.
4. Although the bill seeks to provide “inclusive education and opportunities” to the
transgender community but fails to lay down any concrete plan to achieve the same.
There are no provisions in relation to providing any scholarships, reservation,
 changing the curriculum to make it LGBT+ inclusive or ensuring safe inclusive
schools and workplaces for the trans-community.

Therefore, it can be concluded that on one hand where the courts are taking progressive steps to
empower and uphold the rights of LGBTQIA+ community, on the other hand, the legislature is
invalidating the same rights. It is high time that the government should acknowledge and frame
laws in accordance with the landmark judgement else the LGBTQ community will continue to
face setbacks in their struggle to have the same rights as those available to heterosexual people.

The way forward

After having such acomprehensive discussion about the evolution of the LGBT rights movement in
India and understanding the relevance of various judicial pronouncements, we are in aposition to
proceed towards the understanding of how these judgments will shape the future of the LGBT
rights movement in India.

Therefore it becomes important to consider here that the significance of the NALSA judgement
and Navtej Singh Johar judgement is not only limited to the recognition of third gender identity
and decriminalisation homosexuality. But these judgements are also progressive because apart
from deciding upon the issue in hand, they even laid down the basic groundwork to confer ahost
of other civil rights which were earlier not available to the LGBT community but are ordinarily
enjoyed by the heterosexual persons and cisgender persons.

These civil rights include the right to marriage, right to adoption, right to surrogacy, right against
discrimination, freedom from sexual assault etc.

Same-sex Marriages
Special Marriage Act of 1954 lays down provision for people of India and all Indian nationals in
foreign countries allowing them to marry irrespective of their faith, caste and religion. So, while
the marriage laws in India have evolved progressively with time but there is no such provision for
the same-sex couples to marry, which seems reasonable also considering it’s only been two
years when the Supreme court decriminalised homosexuality. However, sooner or later the
legislature has to deal with these questions.

There are several petitions on same-sex marriages pending with the courts. So the next onus on
the LGBT activists is to encourage and demand from the government to formulate legislation
permitting LGBTQ couples to marry, adopt and inherit their spouse’s property. However, the fact
is that although the Union government, in 2018 left it for the court to decide on the legality of
section 377, but has also indicated that it is likely to oppose any petition for same-sex marriage.
But this seems to be contradictory in the light of the judicial pronouncements considering that if
we really want to adhere to the principle of equality in the context of LGBT people then the right
to marry, bequeath property, share insurance (medical and life) are all part of this.
Therefore,denial of these basic rights only on the basis of sexual orientation is objectionable and
unconstitutional violating the constitutional rights of right to equality (Article 14) and liberty
(Article 19).

Relevance of marriage

Marriage has been one of the strongest and most important institutions of human society. With
time it has evolved and changed its forms but what didn’t change is that marriage continues to
be auniversal fact. This has more relevance especially in the case of India, where the concept is
so deeply entwined that everyone is expected to be a part of it.

In India, marriages and weddings are considered as asacred thing. Marriage apart from regulating
sex life is also arelationship grounded on economical and emotional interdependency. The
religious ceremonies conducted are all considered an essential part of marriage. This perhaps
explains why the LGBT community in India is so eager to get the legal right to marry or why there
are so many instances of gay and lesbian marriages performed in India by the exchange of garlands
in temples or quasi-legal friendship contracts in several reported cases.

The denial of marriage rights to LGBTQ+ people deprives same-sex couples of social and legal
recognition as well as the state benefits that married persons enjoy. However, it is essential to
point out that the institution of marriage since its inception has been exclusionary towards
certain communities of people and whenever any group of people has been included or
excluded from being able to marry, it has always been accompanied with abattle between public
policy, religion, and social norms.

Is right to marry a legal right

Right to marry is not expressly mentioned in the constitution. But, in the landmark case of Lata
Singh v. State of Uttar Pradesh AIR 2006 SC 2522 the supreme court interpreted it to be apart of
Article 21 of the Indian constitution. The supreme court in this case of inter-caste marriage
stated that after aperson becomes major, he/she can marry whomsoever he/she likes. The court
further opined that the maximum the parent can do is that they can cut all their ties from the
children but can’t threaten or kill them.

Right to marriage is also recognised at International level in human rights charter under the
heading of “right to have afamily” and under various other covenants, but are these laws
inclusive enough to include same-sex marriages is still abig question. Another very
important thing that should be pointed out here is the fact that even when the corners of the
whole world are expanding, Indian society is still conservative and people still don’t prefer
or allow their children to marry inter-caste. Even today people are killed because of
marrying in different caste and
religion, then it seems reasonable that the idea of same-sex marriage is even more difficult to
accept.

However, this reason cannot be avalid justification to deny the whole LGBT+ community the
right to marry just because they have adifferent sexual orientation from others. Apart from this,
it also raises another very pertinent question that whether the opinion of the majority holds
more significance in the eyes of law that it can deprive an individual of the personal autonomy
and basic right to his/her own life.

Instances of same-sex marriages

Despite there being no legislation in India governing same-sex couple marriages. LGBT people
still marry and there have been instances when the courts have recognised these kinds of union.

After the decriminalisation of homosexuality in 2009, the Haryana court effectively recognised
marriage between two lesbians. But amore significant judgement came in 2019 after the
scrapping of Section 377 by the Supreme court. In 2019 abench of Madras High court upheld
the marriage between abiological man and atrans woman under the Hindu marriage act 1956
and the court further directed to register their marriage.

Some similar instances of acceptance of same-sex marriages can also be found at the community
level. In 1988 two police women married each other in aHindu ceremony Though not registered
but their marriage was accepted and supported by their families and the community. Apart from
this, similar kind of same-sex marriages have been happening in small village Angaar in Gujarat
amongst the Kutchi for the past 150 years, where both the bride and bridegroom are men.

Further, it’s also very important to note that most such same-sex marriages, especially lesbian
marriages, have largely happened between small-town, lower-middle-class or between non-
English speaking women who are not even connected to the LGBT movement.

Personal Laws and Same-sex marriages

Family laws in India are categorised under two heads i.e. personal and secular laws:

1. Secular laws are applied to all the citizens regardless of their faith, caste etc. ie.
Special Marriage Act.
2. Personal laws differ from religion to religion. There are primarily four personal laws
governing marriages in India.
● Hindus, Sikhs, Buddhists and Jains are governed by the Hindu Marriage Act.
● Muslims are governed by Sharia law.
 ● Christians are governed by Christian marriage Act.
● Parsis are governed by the Parsi Marriage and Divorce Act, 1936.

On examining the religious standing of same-sex marriages in India it can be summarised as

follows:

Hinduism: While the followers of Hinduism have different stances on homosexuality as awhole.
However, there is enough literature available in Hinduism that speaks volume about same-sex
relationships and as an extension to same-sex marriages.

There are temples carvings in India depicting same-sex relationships. Instances can also be found
in various mythical stories such as God Ayappa being born out of Lord Shiva and Lord Vishnu. Story
of Bhagiratha being born from two women who had sexual intercourse under divine blessings,
description of homosexual acts in Kamasutra, aqueer character ‘Sikhandi’ in Mahabharata and
homosexual Tantric rituals are some historical evidences of same-sex relationships. However, in
certain texts homosexuality is condemned but it is mainly on the premise that humans give
unnecessary importance to sex.

Islam: Islamic Shariah law is extracted from the Quran and Muhammad’s Sunnah. It’s very clear in
Islam that homosexuality is apunishable sin. This view remains the same in all four primary
schools of Sunni jurisprudence. Further according to Islamic principles Muhammad stated that
effeminate men and masculine women deserves to be cursed and should be thrown out of houses.

Christianity:The only confusion regarding homosexuality in Christianity is about the question that
how should homosexuals be treated. Should they be considered as criminals or should their
behaviour be rectified. In both cases, the position is clear that homosexuality is condemned in
Christianity.

Parsis: In Zoroastrianism too, homosexuality is considered something evil and is strongly

forbidden. However, there are certain followers who support LGBT+ people and consider the above
interpretation as adistortion of the basic principle of “good thought, good word, good deed”.

Jainism and Buddhism:In Jains, the stance is very clear. They discourage all kinds of sexual
activities that are not done for the purpose of reproduction which means apart from
homosexuality, even premarital sex, heterosexual sex or sex for fun is also not allowed.

While Buddhists say that till the time any sexual activity is consensual and is out of affection it is
permissible. Dalai Lama also has asimilar stance that homosexual sex is allowed provided nobody
is harmed and it’s completely consensual.

Sikhism: In Sikhism, since the religious texts remain silent on this aspect they don’t hold any
same-sex marriages in their gurudwaras.
The significance of discussing the religious standing of same-sex marriages is an essential pre-
requisite before drafting any policy or law on same-sex marriages. As essentially all the personal
laws governing marriages are derived from the available religious literature itself.So bearing in
mind that homosexuality is considered something as vile and unacceptable in most of the religions
except Hinduism and Buddhism. Therefore, any amendments in the personal laws regarding
LGBT+ cannot be a practical solution in the status quo.

Further, this also must be viewed in the light of the fact that anumber of previous attempts to
enact uniform civil code (UCC) were met with deep resistance in India as minorities fear that UCC
will restrict their freedom of religion. This is primarily the reason why the law commission in
August 2018 rejected the UCC as a recommendation.

In such asituation, the most viable manner of attaining legislative recognition of same-sex
marriages would be an amendment of the Special Marriage Act which will be discussed later in this
article.

Recent developments

In the Navtej Singh Johar judgement, Justice Chandrachud observed that the manner in which an
individual wants to exercise intimacy is beyond the legitimate interest of the state. But despite
granting everyone the right to intimacy the judgement did not direct the government to frame or
amend laws to recognize such alternate forms of union or otherwise. As essentially speaking
when Justice Misra recognised the right to the union under Article 21, the word “union” was used
in the context of companionship and not in the reference to marriage.

It is also important to point out that the LGBT rights activists have suggested various reforms to
the law commission to make the family laws inclusive for same-sex couples as well but the same
has not received any due consideration from the law commission.

However, with the Supreme court decision in NALSA judgement and more recently in Navtej
Singh Johar judgement, some of these restrictions can now be potentially challenged under
the robust framework of equality and non-discrimination that has been recognised.

Making marriage laws inclusive of LGBT+ community

In order to recognize same-sex marriages, some new laws will have to drafted, modified or
inserted, as the present laws cannot be applied in the case of LGBT marriages. There are 3ways by
which the marriage laws can be made LGBT+ inclusive.

1. One view suggests that same-sex marriages can be permitted after reinterpreting,
modifying or amending the existing laws or by making the language of the act
gender-neutral.
 2. The second view suggests that same-sex marriages should be permitted after drafting a
whole new Act by considering the LGBT+ as a separate community.
3. The third view suggests that considering India is still not progressive enough and open
to the idea of LGBT marriages, the legislature instead of legalising same-sex
marriages can rather give them a different status such as that of a civil partnership,
where they may not have all the rights of marriage but can still enjoy various other
significant rights like sharing of insurance, filing joint tax returns etc. ie. it can be
rather recognized as a relationship based on emotional and economical
interdependency.

Exploring the options

Out of all these alternatives, the second option i.e. to draft awhole new law for the same-sex
marriages keeping in mind the needs and vulnerabilities of LGBT+ people seems to be the
most ideal way to ensure marriage equality. However, considering the nature of the Indian
landscape where the notions of morality and traditions are deeply entrenched in society,
drafting aseparate law governing LGBT marriages is still very distant.

So, what can be amore practical solution in the status quo is to either amend, modify or make the
language of the existing laws neutral to be inclusive of LGBT+marriage, or the second option is to
legalise an alternative form of marriage. Therefore, in order to understand the practicability of this
concept, let’s discuss what are the major problems that will arise in implementing these
suggestions and what can be the possible solutions.

Amending, modifying or changing the language of the laws

There can be anumber of problems that may arise in adopting this method which is discussed as
follows:

Importance of defining the terms

i) ‘Husband’ and ‘wife’

Since it is anormal understanding that the husband is considered to be amale and the wife is
considered to be afemale. But in case of LGBT marriage since both the partners are of the same
gender this definition cant be applied.

Further, If the meaning of the terms husband and wife are not properly interpreted then it will
result in ambiguity with regards to the application of the law. For instance, Section 27(1-A) of
the Special Marriage Act, 1954 provides the grounds on which awife can take divorce but in
case of LGBT marriages there is confusion regarding the term wife. Therefore, Section 3of the
Act i.e. definition clause can be reinterpreted to remove the ambiguity in LGBT marriages.
ii) Prohibited degree

As per the Special Marriage Act (also in the Hindu Marriage Act), there are certain prohibited
degrees of relations between which the marriage can’t take place. However, the degree of
these relationships varies in the case of both men and women. But since the LGBT marriages
don’t happen between a male and female, thus these terms will need to be redefined.

iii) Sodomy

In the case of the Special Marriage Act (Hindu Marriage law and Parsi law as well), sodomy is a
ground for divorce. But after striking down of Section 377, these terms need to be redefined.

iv)Grounds for divorce

Though grounds like adultery, desertion and cruelty are applicable to both the genders but their
interpretation varies in case of men and women. Thus this power imbalance has to be clearly
defined in the case of same-sex marriages.

Conjugal bond

Since consummation is an important prerequisite of avalid marriage. and absence of it can render
amarriage voidable such as in case of impotency, thus it will have to be redefined in the case of
homosexual marriages. As this concept of consummation is premised on cisgender male and
cisgender female relationship, it can technically render every LGBT marriage null and void.

Implications of changing one’s gender identity

After the NALSA judgement, since each individual has the right to identify himself/ herself as the
third gender and also can undergo sex reassignment, therefore, the gender assigned at birth is not
permanent and can change afterwards in some cases. So, while making changes in the law, legal
rights and obligations of people undergoing such transition also need to be defined.

Alternative model

Since heteronormative ideas are so deeply embedded in the institution of marriage, thus, there are
suggestions according to which instead of adding or substracting in existing laws to make them
inclusive of same-sex marriages, rather we need to reconsider our definition of family to include
families of choice with greater levels of flexibility so those who opt out of traditional family
structure may not be disadvantaged.

It basically implies that other forms of sexual intimacy based on economical and emotional
interdependency should be legitimised such as anon-conjugal caregiving relationship in case of
LGBT marriage.
It can be an arrangement of acivil union or civil partnership such as those recognised in Tasmania
under Relationship Act, 2003 , Civil Partnership Act, 2004 in the UK, where such unions allow the
partners for joint tax returns, insurance, pension and other rights and obligations, but are more
flexible than marriage. Similarly, same-sex marriages are also recognised in Canada since 2005
and South Africa since 2006.

These unions are basically registered significant partnerships based on care while other essentials
of amarriage such as cohabitation are not integral. In France also under the system of Pacte civil
de solidarite , two individuals can enter into arelationship of obligation and co-dependence and
can decide the terms on their own.

Adoption, Guardianship and Surrogacy

Adoption

In India, adoption is governed by both secular as well as religious laws. In the case of Hindus, it
is governed by Hindu adoption and maintenance Act, 1956 while there are no personal laws
regarding adoption in case of Muslims, Christians, Parsis etc.

But apart from this, there is another law i.e. Juvenile Justice care and protection of children Act,
2015 (JJ Act) , read with the adoption regulations of 2017 framed by the Central Adoption
Resource Agency (CARA). This act is secular and allows adoption regardless of the religion of the
person.

Regulations on Adoption

Hindu Adoption and Maintenance Act, 2005

HAMA provides that aHindu married man or woman can adopt achild with the consent of their
partner. However, this permission will not be required in the case if the partner is of unsound mind,
or has renounced the world or has changed his/her children. Similarly, this law also allows single
men and women to adopt achild, provided they have attained the age of majority and are not of
unsound mind.

Adoption regulation

The Adoption Regulation Act is much more stringent in terms of regulations than the HAMA.
Similar to the case of HAMA, here also the single men and women can adopt as long as they
are mentally, emotionally and financially stable and are not suffering from any life-threatening
disease. Apart from this, the act does not allow asingle man to adopt agirl child but asimilar
restriction does not apply to awoman and she can adopt amale child. This is different from
HAMA where even asingle male can also adopt agirl child provided there is an age gap of
twenty years between the two.

Same-sex couples and transgender people

Although Section 377 of IPC has been decriminalised still the law debars LGBTQIA+ community
from adopting children altogether. This demonstrates the homosexual couples are not equal
before the law.

How the adoption laws discriminate the LGBTQIA+ couples

1. According to regulation 5(3) of the Adoption Regulation Act, 2017 , only a couple
having a stable relationship of two years is eligible to adopt a child. Further, the
section uses the words “husband” and “wife” which basically means that it does not
recognize the right to adoption in case of same-sex couples.
2. Since there is a different set of adoption rules applied in the case of men and women
thus, the applicability of such laws with regards to trans-couples will lead to
ambiguity.
3. Further, in the light of NALSA judgement since people have the right to choose their
gender and undergo sex reassignment surgery as well. Thus if in case a woman adopts
achild but then undergoes sex change become male, so there is a very little clarity
about the legal implications of the same.

There is no denying the fact that adoption is acomplex issue and even heterosexual couples also
have ahard time in adopting achild considering the anti-trafficking laws. But the fact is that at least
aheterosexual couple can apply for adoption while the same-sex couples are not even allowed to
adopt.

Inferior family argument

Another reasoning behind not allowing same-sex couples to adopt is that every child must be able
to know the value of both amother and afather. Thus same-sex couples should be denied the right
to adopt as the child should not be raised in an “inferior family”. However, what is ironical is the
fact that law can abandon achild to be raised as an orphan without both the parents rather than
being brought up by homosexual and trans couples.

Disturbingly the law continues to disentitle the LGBTQIA+ couples from adopting achild even
when there are more than 20 million orphans and abandoned children in India, out of which most
of them are living in abysmally poor conditions.
Same-sex marriages are not recognised

Another reason that since same-sex marriages are not legal in India, therefore homosexual
couples are not allowed to adopt a child together.

Guardianship

Overview

Guardianship essentially refers to aset of rights and obligations that an adult has over the
personhood and property of aminor. Guardianship and custody are very closely related. In India,
guardianship in case of Hindus is governed by Hindu Minority Guardianship Act 1956 (HMGA) while
the Guardianship and wards Act 1956(GWA) is asecular law that is applicable to all the citizens.

Background

In India, traditionally only the father was considered as anatural guardian and had the sole right
over the child. Further, as per Section 6of the Hindu Marriage Act, the mother can have the
guardianship right over the child only after the father.

This was reinterpreted in the case of Geeta Hariharan V. Reserve Bank of India , where the court
pronounced that the expression “after the father” should not be construed that mother can have
guardianship right after the death of the father but rather means that such right can be even
exercised in the absence of afather. Such as in the case when the father is not providing for the
child financially, emotionally or materially.

Recent developments

In 2010, the parliament amended the law to provide equal guardianship rights to both mother and
father. In 2015, in the case of ABC V. NCT of Delhi, the court gave avery liberal judgement and
recognised the guardianship rights of the unwed mother and further went on to stipulate that it’s
not essential for the mother to disclose the name of the father.

Heteronormative Presumptions

Though the language of the act is gender-neutral, it is premised on the notions of the gender
binary. Thus, the existence of LGBTQIA+ parents or transgender parents where the gender is
not clear, the application of these laws will pose some problems, hence it is important to
define such terms.
Best Interest of the child

The principle of “best interest of the child” is the main consideration behind granting anyone
custody or guardianship. The court takes cognisance of the fact that custody of the child is
given to the person who displays care, concern and can provide afamiliar environment to the
child. This principle is extremely flexible and can be incorporated into a variety of fact
situations.
So, in order to bring aguardianship law inclusive of the LGBT+ community ie. in compliance with
the NALSA and Navtej Singh Johar judgment, the language of the law should go beyond the
binary so that such individuals regardless of gender, the structure of relationship or sexual
orientation can become guardians. But essentially speaking, this will significantly depend upon
how the term “best interest of the child” shall be interpreted by the court of law in the context
of LGBTQIA+ community.

Surrogacy

According to the new surrogacy bill passed in the parliament, single people and LGBTQIA+
couples are prohibited to have their own children through surrogacy.

Although the bill has been passed with an aim to prohibit commercialisation of surrogacy and
prevent exploitation of mother and child, instead of fulfilling the objective it has been reduced
to an ”inflexible” piece of legislation that reiterates the notions of “archaic family system”
which is not in sync with the present reality.

Restrictions and Regulations

The provisions of the bill passed are so stringent that even aheterosexual couple cannot easily
satisfy the requirements of the law to be eligible for surrogacy. The bill inter-alia states that the
surrogate mother must be a“close relative”, without defining the term, or the condition that the
couples must have been married for the past five years without taking into account their age and
how late they must have been married etc. Further, the law does not allow any unmarried men or
women, or LGBTQIA+ couple to become parents through surrogacy.

Fails to establish nexus with the prime objective

As per the legislature, the sole intention of the bill is to protect the rights of surrogate mothers and
to ban the commercial surrogacy in India. However, the provisions and the object of the bill
appears to have no rational nexus with each other as if this would have been the prime objective of
the legislature then more focus would have been given to rehabilitation and integration of the
surrogate moms into our societal framework.

Criticism
The bill is worthy to be criticised as it excludes avast section of society from being eligible to
have achild through surrogacy. The bill prohibits surrogacy only on the basis of the marital status
or sexual orientation of an individual and also imposes extreme conditions even in the case of
heterosexual couples. It suffers from various loopholes that are needed to be addressed as the
present law is discriminatory against a lot of people.

LGBTQIA+ couples are most vulnerable in the group

Therefore, on analysing these conditions, thinking about granting the right to surrogacy to the
LGBTQIA+ community looks even amore distant dream. Another very important point that
should be considered here is that the people other than belonging to the LGBT community,
such as single women, single men etc. at least have the right to go for adoption or can become
legal guardians while sadly LGBTQIA+ couples are not even allowed to adopt or become
guardians also.

Inheritance laws

Background

Inheritance and succession laws in India are governed by amix of personal laws and secular laws.
Hindus are governed by Hindu Succession Act, 1956 , while Muslims and Parsis have their own
customary laws and then there is an Indian succession Act, 1925 which after aseries of
amendments now applies to all the Indians who are married under Special Marriage Act, 1954.

Gender of the Intestate

The most significant difference between the Indian Succession Act 1925 and the other personal
laws is with regards to the rights of women in the matters of inheritance. While in the case of
personal laws, there is adifferent scheme of inheritance for males and females but no such
differentiation exists in the Hindu Succession Act 1956. In the Indian Succession Act 1925, the
law provides auniform scheme regardless of the gender of the heir and the determining factor is
the nearness in relation to the deceased. This implies that the surviving spouse and lineal
descendants are made primary heirs, regardless of the gender.

Making the laws Gender Neutral

Similar to the other laws it is implicit that the word “marriage “in the inheritance laws is
restricted only to the heterosexual marriages. So before this law can be applied in the case of
LGBT+ couples it is essential the law recognises same-sex marriages. Apart from this, another
point is to consider is that although the gender is irrelevant and the inheritance happens on
the
basis of nearness, yet it is essential that the language should be made completely neutral so
that even transgender people or the person who undergoes sex change shall not be
discriminated.

Case laws

In 2016, Himachal Pradesh High Court in the case of Sweety(eunuch) V. General Public the court
recognised the right of the appellant sweety “guru” over her deceased chela’s property following
the “guru-chela parampara” in the Hijra community. The court recognised the appellant as the
family of the deceased and her legal heir. This was in line with the 1990 judgement of the Madhya
Pradesh High court in the case of Ilyas Ors. V. Badshah where the court, despite knowing the
religion of the deceased, held that as per the custom of the Hijra community the property shall not
be willed away outside the Hijra community.

However, what is unfortunate that though there have been constant demands about the legal
recognition of Hijra families especially after the NALSA judgement, the law continues to undermine
the legal existence of such families firstly in the subsequent versions of the Private member bills in
2014 and then after the passing of the Transgender Persons (Protection of Rights) Bill, 2019 .

Protection against discrimination at the workplace

LGBT workplace survey of 2016 showed that more than 40% of LGBT people in India have
faced harassment at their workplace because of their gender/ sexual identity. Many LGBT
people often have to hide their sexual identities because of the fear of potential
discrimination or losing their jobs. Therefore the access to employment and discrimination at
the workplace continues to pose a challenge for the LGBTQIA+ community.

Transgender people are the worst sufferers

i) Unorganised/ Informal Sector

This situation gets even more depressing in the case of transgender people who often have low
levels of literacy, poor access to education and vocational training, and face amuch more
violent form of discrimination at the workplace. Thus having no other alternative the
transgender people often resort to begging or sex work wherein they are disproportionately
targeted by the enforcement agencies and are often booked under Immoral Trafficking Act
(1956) and anti-beggary laws.
ii) Instances of workplace discrimination

There have been several instances of workplace discrimination against the transgender people all
across the country. One of the publicised cases in this regard is the case of Manish Kumar Giri
Alias Sabi Giri Vs Union Of India And Ors.

In the instant case, Sabi Giri, (was earlier aboy named Manish Kumar Gir) who suffered from the
Gender dysmorphia and when underwent asex change operation was dismissed from the navy.
Military in defence said that the present rules and regulations do not allow the sailor’s continued
employment in the navy owing to his altered gender status.

The case was argued in Delhi High court wherein the court suggested the Navy find an alternative
job for Giri. Thus despite having no proof of Sabi not being able to do her job after her sex
reassignment surgery she was thrown out of her job and was rather offered ajob as adata entry
operator. Apart from this, the petitioner also testified against the discrimination meted out to her
during the course of her employment, highlighting the dark truths about work-place discrimination
and the lack of awareness on the issue of transgender rights.

However, it is also important to mention here that the Equal Remunerations Act, 1956 prohibits
discrimination between men and women at the stage of recruitment but makes such exceptions
in the case of military service where such discrimination is permitted but still the removal of the
sailor only on the basis of gender identity is arbitrary, discriminatory and illegal.

Similarly, in the cases of Jacqueline Mary V. Superintendent of police , G.Nagalakshmi V. Director

General of Police where the petitioners identifying as females were removed from their posts on
the ground that upon medical examination it was found that they had intersex variations hence
can’t hold the post that was reserved only for females.

Although the court ruled in favour of the petitioners in all the above-mentioned cases these
incidents of discrimination reflects gross inequality and do not conform with the NALSA ruling.
Therefore, it is submitted that this will keep on continuing until the employment laws are not
amended to be inclusive of people falling outside the gender binary.

Transgender Persons (Protection of Rights) Bill 2019

The Transgender Persons (Protection of Rights) Bill 2019 as already discussed suffers from various
loopholes especially concerning the fact that how it certifies one to be atransgender or not but
what is worth considering is that the bill at least provides protection to the gender community in
certain aspects of employment.

As according to sub-section(b) and subsection(c) of Section 3, the bill prohibits any person or
organisation from discriminating against transgenders in matters of employment, recruitment,
promotion and other related issues. But all these protections provided can’t be availed and
utilised
fully until and unless the government make amendments with regards to how the transgender
must be certified and recognised by the law.

There is another very point to consider here, that the plight of the transgender people is not only
restricted to discrimination at workplaces but also extends to the access to education, schooling
and vocational training. Though essentially speaking Section 14 of the Bill facilitates the
appropriate Government to formulate welfare schemes and programmes for livelihood of
transgender persons including their vocational training and self-employment.

But considering the extreme social, economical and educational backwardness, all these
objectives cannot be achieved till the time the transgender people will not be eligible for
reservation as was also pronounced in the NALSA judgement.

LGBTQIA+ community

Apart from facing regular discrimination and harassment at the workplace, there are some other
reasons also to substantiate that the present employment laws are not inclusive of the
LGBTQIA+ community.

As essentially employment and labour laws touch various aspects of employment such as
employment benefits, terms and conditions, gratuity benefits, insurance, anti-discriminatory
policies, maternity benefits etc, discussing each in detail is beyond the scope of the article.
However, some of the points are discussed below:

No recognition of LGBTQIA+ families

i) Workmen’s Compensations Act, 1923

Although Section 2of this act provides acomprehensive list of dependants, but all these terms are
defined only in the reference with the heterosexual families.

Further, it’s very essential to define the “dependants” because dependants are entitled to the
monetary benefit. Under the worker compensation insurance, it is mandatory for every employee
to nominate at least one dependent. Therefore the term “dependants” must be redefined in the
context of same-sex unions and LGBTQIA+ families to provide them equal incentives in
employment as available to a heterosexual individual.

ii) Payment of Gratuity Act, 1972

The Payment of Gratuity Act, 1972 requires the employer to nominate people so that if in case
the employer dies, then the gratuity benefits are conferred to the nominee. But for the purpose
of this Section 2(h) of the act defines the term “family” which includes spouse, children,
dependent
parents and any adopted child. Therefore, the current definition of “family” eliminates the
possibility of recognising LGBTQIA+ family from its ambit.

iii)Factories Act, 1968

The Factories Act of 1968 is structured on aprotectionist approach and lays down various
restrictions concerning the employment of women such as regulations of limiting their work hours
from six to seven among many others. So, the current rules and regulations fail to recognize people
not fitting in traditional notions of the gender binary.

The provisions which are confined to the gender binary exist not only in these discussed laws but
extend across a range of other employment and Labour laws as well.

Maternity Benefits

At present Maternity Benefit Act of 1961 provides maternity leaves and benefits only to the
cis-gendered women who give birth, adopt or rely on surrogacy to have achild. Essentially
speaking there are two implications of this law.

1. Firstly, it reiterates the same archaic ideas and notions that it is the sole responsibility
of the mother to take care of and nurture the child while the father can be waived off
this duty.
2. Secondly, it does not take into cognizance the fact that there can be a possibility of
alternate families such as the LGBTQIA+ families.

Therefore it is essential that the language of this law must be gender-neutral so that even LGBT+
families can also have access to parental benefits and further it can also serve as aprogressive
step in the direction to eliminate sexual biases reinforced by the maternity benefit legislation.

Protection against sexual harassment at workplace

The present law i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition &
Redressal) Act, 2013 regarding the sexual harassment recognises only women as avictim and does
not take into account the harassment can happen irrespective of the gender of the person. That is,
the aggrieved party can even be amale, transgender or any person belonging to LGBTQIA+
community as well. Therefore what we rather need is gender-neutral laws in relation to
harassment at workplaces.

But there is another very important argument that can be advanced here i.e. the “sexually coloured
remarks” or “unwelcome behaviour” may have adifferent interpretation and scope in the case of
LGBTQIA+ community. Thus, considering the rampant transphobia and homophobia, it is essential
that the gender-neutral harassment laws must also be accompanied with strong anti-
discriminatory policies to prevent misuse of such laws against the LGBTQIA+ community.
Organisations can formulate their own policies

Although the amendments in employment and labour laws to make them inclusive of LGBTQIA+
community is the need of the hour. However, amore structural and substantial change cannot be
realised until and unless the private and public organisations are eager to shape policies and rules
to make the workplaces LGBTQIA+ inclusive.

These may include making policies such as granting equal benefits to LGBT+ couples as those
available to heterosexual partners, adopting comprehensive anti-discriminatory laws,
supporting LGBT+ employee support groups, granting leaves for gender-conforming processes,
and organising awareness and sensitisation programs.

Summary

Therefore it can be summarised that:

1. Taking into consideration the inequality and harassment faced by the

LGBT+community in employment it becomes essential for the government to make
new laws or amend existing laws to make workplaces safe for LGBT+ people.
2. Further what needs to be ensured is the fact that the future legislation on transgender
rights must align with the NALSA judgement and provide reservations in public
education and employment.
3. The laws also need to be radically reimagined to confer all the employment benefits to
the LGBT+ couples which are available to a heterosexual couple.
4. While the efforts should be directed to make gender-neutral harassment laws but at the
same time both the public and private sector, must also frame anti-discrimination
policies and undertake positive measures to eliminate prejudiced stereotypes rooted in
homophobia and transphobia.

Protection against bullying in Educational Institutions

In asurvey conducted by the United Nations cultural Agency on the 400 LGBT+ youth in India, it
was revealed that over 60% of LGBT+ youth faced bullying in middle school /high school, 43%
reported incidents of being sexually harassed in school, with 70% suffering from anxiety and
depression and shockingly 33% of them even drop out because of bullying altogether.

These statistics are enough to send chills down anyone’s spine as across the country the LGBT+
youth are subjected to extreme physical, mental and emotional abuse. This stands in clear
violation of equal protection clause and violates Article 14 of the Constitution of India”, apart
from denying these children protection against discrimination, right to life and right to education
enshrined under Article 15, Article 21 and 21A respectively. Section 377 is history but young
LGBT Indians need concrete policies to protect them from Bullying.
Discrimination against LGBT+ in schools

The stories are many and varied, as are the geographies. LGBT+ students are labelled, bullied and
abused on aregular basis. There have been several instances of homophobia and blatant
discrimination against young ‘queer’ students. This gets even worse in the case of transgender
students.

In Chennai, the school bullies started by harassing and teasing asix-year-old boy for walking in a
feminine way and then resorted to stone-throwing when the transgender girl –initially raised as a
boy –started wearing girls’ uniform, aged 10. Similarly, in April 2018, ateenage student from a
reputed girls’ school in Gopalapuram Chennai when confessed on asocial media site that her first
crush happened to be agirl classmate, was ridiculed by her teachers and school authorities to an
extent that her principal even said that she should go and kill herself.

The stigma surrounding LGBT+ people is so much that threats of rape, incidents of hitting,
groping and kicking, being locked in aroom, having nasty rumours spread about them or
having their belongings stolen are some of the things that LGBT students face regularly.

Consequences of bullying

Unfortunately, unable to cope up with this trauma, some drop out of school or develop deep
psychological problems and some get so affected that they are driven to commit suicide as
happened with a15-year-old boy in Tiruchirapally. There are anumber of cases of such
homophobic and transphobic violence- often acutely reported, even when gets reported yet
receives no due attention from the media, authorities, psychologists or the government combined
with inadequate or non-existent support and redress systems.

Reasons for bullying

The common thread binding is that all these incidents are nothing but amanifestation of deep-
rooted prejudice and discriminatory attitudes that continue to prevail in these institutions.

There are many instances when teachers have been known to publicly issue statements such
as homosexuality being adisease, spread by the Internet and can be cured. This goes along way
in normalising the bullying and ragging culture against the LGBT students. Therefore, it is
essential to sensitise school staff and students about the LGBT+ rights issue.

Suggestions

i) Sex Education
Status quo:

The need for sex education: It is unimaginable to think about shaping an open positive discourse
about LGBT+ rights in the school setting, considering the historical attitude that Indian schools
have displayed in relation to doing anything that is related to sex. Further, what should be noted
is that discussions on sexual awareness and education among youth are not only avoided but
rather often discouraged and receive a lot of backlash and criticism.

Adolescence Education Programme (AEP):

When, in 2007, the central government in collaboration with NCERT, NACO and UN agencies tried
to introduce the Adolescence Education Programme (AEP) in all secondary and higher secondary
schools aiming to educate children it was immediately banned by thirteen states. They submitted
that the explicit content designed to impart comprehensive sexuality education under the AEP
went against Indian culture and morality.

The sole step that the schools have taken so far is restricted only up to holding discussions on
good touch and bad touch to prevent child sexual abuse. Thus in the status quo, school
continues to consider homosexuality adisease and sexual relationship as “immoral”
reiterating those same old age notions of prejudices and ignorance.

Need for sex education:

Various Researches have shown that Comprehensive Sexuality Education (CSE) that is scientifically
correct, gender-sensitive and life skills-based, age and culture appropriate can provide young
people with useful skills and knowledge about sexuality and lifestyle.

Therefore it becomes extremely important to design, formulate and implement acomprehensive

sexual awareness programme which will not only educate the youth, about menstruation, sexual
harassment and risk of STDs but will also be useful for addressing the concerns of same-sex
relations and LGBTQIA+ community. This will make students better and responsible citizens by
making them aware of the wide spectrum of gender-diverse identities around them.

Further efforts should be directed at updating the curriculum on health and gender to ensure that
they must comply with the legal guidelines on transgender rights in NALSA Vs. Union of India,
and on rights of LGBT persons in Navtej Johar Vs Union of India.

Therefore, CSE should be made compulsory at schools, as apart of academic requirement and not
only a single class in a month.

Making anti-bullying laws

At present, there are no concrete anti-bullying legislation or rights-based policy regulating bullying
and discrimination in India. The policy must address the homophobic and transphobic
violence, including bullying which will also align with the mandate to ensure the right to quality
education for all in learning environments that are non-violent, safe and inclusive.

i) Status quo

The only step that has been taken in this regard is that CBSE has issued certain guidelines to all
its affiliated schools to follow

This includes forming acommittee to deal with ragging and bullying and to punish the bullies
with measures such as giving them awritten warning and may also read to rustication. It also
directs schools to form committee members including vice-principal, asenior teacher,
counsellor, doctor, parent-teacher representative, legal representative, school management
representative and peer educators.

But unfortunately, there exists ahuge gap in the implementation of these guidelines. As most of
the schools still don’t comply with all these norms and guidelines and further there is no stringent
mechanism to ensure that schools follow these directives by CBSE.

However, what is praiseworthy is that the Directorate of Education (Lt Governor) in Delhi has
notified the inclusion of a‘transgender’ child within the meaning of ‘child belonging to the
disadvantaged group’, as defined in S. 2(d) of the RTE Act. But in order to make schools asafe
and inclusive space for LGBT+ people, it is essential that other states shall also take some such
progressive steps.

ii) Cross-country narrative

Across Asia, there have been some encouraging advances to stop discrimination and bullying
against the LGBT youth. For instance, in 2017, the Japanese government brought
amendments to the national bullying prevention policy to specifically protect LGBTQIA+
youth. Similarly, in 2013 the Philippines drafted alaw that instructs schools to address ragging
and bullying in reference to gender identity and sexual orientation.

Therefore, it is submitted that it is essential to bring necessary amendments in the National

Education Policy (NEP) to enumerate strict anti-bullying laws while identifying discrimination
based on sexual orientations and gender identity. This apart from protecting vulnerable students
can also be asignificant step in acknowledging diversity as well. Further, efforts must be directed to
train school staff to provide them with the necessary skills and knowledge to encounter such
abuse.
Discrimination against LGBT+ in colleges and Higher Educational
Institutions

The incidents of violence against LGBTQIA+ communities in colleges are also rampant. There
are stories of LGBTQIA+ students being bullied, ragged, sexually harassed and abused. This
induces queer students to quit studies as constant discrimination and harassment chips away at
their self-worth.

However, what must be appreciated is that the University Grants Commission (UGC) has always
been very prompt in taking actions against such complaints and has taken promising initiatives to
stop homophobic and transphobic bullying. This is evident from the fact that UGC Anti-Ragging
Regulations (2009) binds both public and private universities to take cognizance of complaints of
homosexual assaults. Further, in 2016, UGC has also recognised gender identity and sexual
orientation as the grounds for ragging and discrimination.

However, despite such guidelines and policies, most of the universities across the country have
failed to take note and have done very little to check harassment of LGBT students. Therefore, it
is essential that all universities incorporate anti-ragging policies in their prospectus with
regards to the prohibition of discrimination based on sexual orientation or gender identity.

Conclusion
It is submitted that although the landmark 2018 court ruling and 2014 NALSA judgment were a
huge leap in the advancement of LGBT+ rights movements in India. But still, the LGBT people in
India are not equal and don’t have the same rights as those available to aheterosexual person.
Further, they are still subjected to violence, discrimination in all spheres of life.

It is very important to educate people about LGBT rights. Human rights are natural rights which
are inalienable, indestructible and are conferred upon everyone since birth. It is essential that
people take note of the fact that homosexuals are not sick, they are not aliens, their sexual
orientation is perfectly in tune with the dictates of nature.

LGBTQ rights should be recognised as part of human rights. Non Recognition of same-sex
marriages, not allowing adoption, guardianship, surrogacy, IVF, not having access to safe and
LGBT+ inclusive schools, colleges and workplaces are all violative of Article 14, 15, 19, 21, 29.
Further, discrimination solely on the grounds of sexual orientation violates Article 14, 15, 21 in
relation to Army, Navy, Air force Act.

The universal law of Human Rights states social norms, custom, culture or traditions can never be
avalid justification to suppress another individual from asserting his/her fundamental and
constitutional rights.
If we start justifying everything on the basis of cultural views, societal values and public policy
then there would have been no progressive legislation enacted in our country and we would
have never been able to eliminate the social evils of child marriage, Sati, dowry, and infanticide
etc.
It will lead to greater inclusiveness and will help in bringing the LGBTQIA+ into the mainstream of
society and can go along way in ‘transforming our nation sustainably into an equitable and vibrant
knowledge society’

Note:Please note that nothing mentioned in this background may be

used as an
established fact in committee without the presentation of acredible source and
substance mentioned. The guide may act only as asource for your basic
understanding of the agenda.
Reiterating, kindly do not limit your research only to these points and feel free to
broaden your horizons of research. This is just alist of topics you should cover
and is areflection of the direction in which we intend to see the flow of debate in
the committee.
For any further queries kindly feel free to mail the Speaker directly at the email
ID given above in the letter from the Executive Board.