Othering of LGBTQIA+: The Science of Subtle Discrimination

[This Blog is part of A Conversation on Inclusivity Series]

The decriminalisation of homosexuality in 2018 was celebrated as one of the historic milestones in the struggle for inclusivity and equality by civil rights activists. It was seen as the start of a journey that would continue to recognize many more rights. The believers in equality took a sigh of relief that with the course of time several rights like the right to marry, and the right to have a family would also be recognised. However, this hope was shattered when the Supreme Court observed that there was no fundamental right to marry in Supriyo @ Supriya Chakraborty & Anr. v Union of India. What led to this backward-looking judgment? It was the same Supreme Court that famously said, “Love is Love”. 

Benjamin N. Cardozo’s concept of judicial urge emphasizes the role of personal belief and experiences in judicial decision-making. It is hard to get rid of subconscious biases in judicial decision-making. It is because of this subconscious bias that the judges are unable to get rid of patriarchy, which leads us to the larger debate of “Law is Male”, of which the flagbearers were Catherine Mackinnon and Carol Smart, who cautioned against relying on law as a medium of social change. They believed that the law is inherently male and perpetuates inequality by affirming power imbalances and legitimizing male dominance. 

The new Bhartiya Nyaya Sanhita chose to omit Section 377 of the Indian Penal Code, 1860, which is extremely problematic. The only available legal remedy for sexual violence against transgender persons is under the Transgender Persons (Protection of Rights) Act, 2019, which provides for a disproportionately mild punishment for a variety of offences. Moreover, the Act requires individuals seeking legal recognition of their gender identity to obtain a certificate from the District Magistrate, which violates their fundamental right to privacy. 

The Prevention of Sexual Harassment Act, 2013 continues to not be gender-neutral, providing no relief to LGBTQIA+ individuals who are extremely vulnerable to sexual harassment at workplaces. The Surrogacy Regulation Act, 2021 excludes LGBTQIA+ and single fathers from opting for surrogacy. The State may ensure that identifying as LGBTQIA+ will not land you in prison, but it stops short of granting the right to marry or form a family—even though science makes such possibilities viable, the State continues to deny them. LGBTQIA+ individuals may adopt singly, but same-sex couples cannot adopt jointly under current adoption laws and CARA guidelines. 

There is no dearth of jurisprudence to recognize the right to equality. India needs to realign with global human rights standards. India has recognized the Yogyakarta Principles and the Universal Declaration of Human Rights. India can draw inspiration from countries like the United States, South Africa, and Taiwan, which have legalized same-sex marriages. Sadly, the community continues to face discrimination, which is legitimised by the State. The State must adhere to constitutional morality, a concept championed by Dr. B.R. Ambedkar, which mandates adherence to constitutional values such as equality, liberty, and fraternity, even when these values conflict with popular or majoritarian beliefs. Until then, the notion that the theory of law remains inherently male continues to hold true. 

Dr. Manika Kamthan is an Assistant Professor at the School of Law, UPES

{The opinions expressed herein are the author's own and do not necessarily reflect the views of the University.}