POSITION OF SEXUAL MINORITIES IN
INDIA AND USA: A COMPARATIVE ANALYSIS

INTRODUCTION:

One
of the biggest concerns in today’s progressive society is the heavy encroachment
of human rights. Even though development of society is a continuous and
increasing trend today, it is proving to be ineffective in guaranteeing basic
and uniform human rights to every individual irrespective of their identity.
Human right laws and agencies aim at the prevention of such violation and to
secure even rights to all as human rights are very basic in nature and should
be enjoyed by all regardless of their age, sex, caste, nationality, creed etc.
yet there exists disparities in observing such laws and warranting such rights
and the sexual minorities have been found as the frequent and perpetual victim
of such intolerance.

We
live in a society which often tends to discard anything that doesn’t strictly
adhere to the common perception of most individuals. As a result,
heterosexuality has become the median of forming opinion and common consensus
of sexual orientation and homosexuality or any other sexuality which doesn’t
conform to such belief is considered improper or inappropriate. Consequence of
such has been seen through behavioral disparities towards them in workplace,
public domain and in ensuring rights to them.

Despite
the huge wave of human rights activism and upliftment of the minority category,
the position of the sexual minorities remains stagnant if not worse in some
countries. Where we see in some parts like USA LGBT rights have been made
available through colossal struggle, we also find places like Africa which
remain regressive when it comes to such recognition and to the extent of criminalizing
such practices. Therefore prejudice towards the sexual minorities have
prevailed through ages and continue to halt the progress of humanity.

Human
rights development framework employed by many International Agencies is known
as capabilities approach1.
Under this, the progress plan is to increase the human capabilities which
include making a living, access to education, having full health etc. The
similar approach can be used by the sexual minority community to generate
development scheme.2

 

CRITICAL HUMAN RIGHTS CONCERNS RELATED TO
SEXUAL ORIENTATION AND GENDER IDENTITY AND THE CHALLENGES FACED:

Where
on one hand the entire world is struggling for equal rights of women or upliftment
of the minority or underprivileged groups, on the other hand blatant violation
of human rights on the footing of sexual orientation nonetheless continues to
be a stark and distressing reality. They continue to face hindrance in securing
the basic human rights for them and encounter restrictions in various facades
of life. From education to securing justice to privacy or even in as basic as
right to full health to which every human being is entitled by virtue of being
a human, sexual minorities often find them in a deprived condition. Through
this sub-head let me throw light on some of critical human rights concerns.

·        
Right
to privacy:

Right
to privacy accorded to heterosexuals is in wide contrast to the homosexuals.
Homosexual actions are banned in numerous countries which attaches a social
stigma.3 It
is also observed that the age limit for consensual homosexual acts is higher
than that of consensual heterosexual acts compelling them to veil their real
identity in fear of vexation and harassment.4

·        
Right
to Human and Personal Security:

Denial
of the basic human right of personal security is not only ruthless but also
cruel in the face of humanity. No one should be subjected to the constant fear
of persecution and being singled out. Sexual minority groups face the wrath of
law because of the criminalization of homosexuality to the extent of death
penalty in some of the countries.5
Therefore it is needless to say that it is a gigantic intrusion of a major
right which clearly indicates the meager status of the sexual minority
brackets.

·        
Right
to Physical and Mental Health:

Ignorance
and lack of adequate training of the physicians often lead to poor health
assessment of these minority brackets.6
Because of the stigma attached to such people, they often think twice or take a
step back when it comes to availing of the health benefits or regular
examination which leads to not only poor health conditions but also death and
diseases arising out of lack of proper treatment.

Criminalization
attached with homosexual deeds often deters such groups from approaching the
physicians in case of problems arising out of such sexual activities which lead
to not only physical concerns but also numerous mental issues.

·        
Right
to Form a Family:

The
rights granted by the government in several countries to heterosexual families
irrespective of legal recognition are next to non-existent in the case of same
sex families.7
According to a report of the UN High Commissioner for Human Rights (2011) , the
onus to safeguard entities from prejudice on the footing of sexual orientation
not only encompasses that unmarried same-sex couples are regarded in the
similar way as unmarried opposite-sex couples but also to ensure they are permitted
to the same benefits as them8.
The uncertainty whether the requisite that states should be compelled to allow
same-sex marriages legal still suspends before various UN treaty bodies.

·        
Right
to Education:

Education
is a primary need for every human being as a part of a decent living.
Unfortunately LGBTI community often is deprived of such a fundamental right on
account of the disgrace and stigma attached to them. They are often denied
admission in educational institution as the society still continues to corner
them and think association with such brackets can be a cause of humiliation. As
a result such individuals feel a need to hide their identity and orientation to
avoid hassle and physical and mental turmoil as they are constantly subjected
to ridicule and hostility by other individuals in such institution. Consequence
of such can vary from dropping out of such institution to mental disturbances
and a poor mental and physical health of such minorities.

·        
Right
to Freedom of Expression, Opinion and Association:

It’s
a shame that where almost all countries have recognized the elementary right of
freedom of expression, opinion and association of every human being, yet the
people falling under the category of sexual minority are far away from the
comfort of exercising such rights. What should constitute as a basic and
indispensable right for everyone is a luxury and a far reaching dream for such
brackets.

Because
of the stigma and dishonor attached to such people by the society, it often
difficult for them to be open about who they are and instead of voicing their
opinion they choose to lead a discreet life. As their rights are not recognized
by the states it becomes difficult for them to come out as who they are and
often peaceful associations by the LGBTI communities contesting for their
rights are interpreted as hostile acts and are barred by the state and police
forces.9 So
the sexual minorities are restricted from implementing even the most basic of
rights in lieu of granting all such human rights to them by the states.

·        
Right
to Freedom of Movement and Request Asylum:

Often
LGBTI feel the need to escape from their birth countries due to lack of
acknowledged rights. In such scenario they frequently face the right to refuge
in destination countries due to the disgrace attached to their sexual
orientation.10
But according to the guidelines of the United Nations High Commissioner for
Refugees, refugee shelter should be rendered to such individuals who have
bolted from their countries in fear of persecution and vexation.11

Free
movement is also a distant dream for the LGBTI as they either face barriers on
such account or have to avail overpriced private transportation to evade public
transport in fear of ridicule and mockery.

·        
Right
to Redress and Accountability:

Law
enforcement services present in every country make it their top priority to
protect each and every citizen from violence, third party attack, or any kind
of savagery. What about the sexual minorities? Are they receiving same kind of
shield and equal protection as of the rest of the public? Well, the answer
would be no. Not only the level of protection is not same but we see numerous
occasion of hostility towards them on the foundation of their orientation.

Since
it is criminalized it a distant dream for the LGBTI to seek and also avail such
remedy in case of such act of aggression towards them. This leads to very
insignificant accountability of such belligerent act by others and they escape
any kind of punishment in absence of laws or penalty.

 

ISSUES AND LAWS PRESENT IN USA AND INDIA:

·        
Issues
in USA:

It
was in the book “Society and the Healthy Homosexual” that the term “Homophobia”
was introduced for the first time by Psychologist George Weinberg in the year
1972. Ever since that year the term “homophobia” spread. In this book the
author advocated that it is not homosexuality which should be treated as a danger
but it rather should be the outgrowing resentment towards the homosexuals that
can prove to be a risk for the society. Thereafter in the year 1973, the Board
of Directors of the American Psychiatric Association asserted that
homosexuality should not be allied with mental illness.12

Issues
faced by LGBT community in USA majorly include health disparity, poverty,
employment discriminations, bullying faced in school and other educational
institutions and violence. According to a report made by the FBI in the year
2013, 21% of the hate crimes were reported against the sexual minority groups.13
Although 22 states in USA declared that job discrimination based on sexual orientation
is illegal yet it prevails and such people lack the necessary Federal
protection. Discrimination also subsists in the field of insurance as it has
been observed that transgender are often denied insurance coverage under the
policies present.

·        
Legal
position in USA:

In
the year 2015 through the case of Oberegefell V. Hodges, the US Supreme Court
in the year 2015 announced same-sex marriage as legal across United States.
This was recognized as one of the milestones in the premise of civil right
cases of USA that came up with the ground-breaking judgment of legalizing same
sex marriage and endowed the LGBT community with the basic right of right to
form family. Also consequence of this judgment was that couples of same-sex
marriage were now allowed to adopt child but the polies regarding the adoption
varies from state to state  as many state
still  doesn’t permit this right to
unmarried couples and has put a ban on it in contrast to states which has
granted this right to all couples.

When
we talk about protection from discrimination in USA on basis of sexual
alignment, we see that there is no express federal law for such purpose. All we
find is a few federal executive mandates but such directives provide even
lesser protection than the federal laws of the state. Automatically these
create more avenues for discernment in many states in the various segment of
house accommodation, public and private services as well. Consequently the
hardships and challenged faced by the sexual minorities are way more than the
Non-LGBT community.

The
span from 1996 to 2015 in USA was a favorable one as it paved way for many LGBT
rights. The US Supreme Court through four major verdicts ensured certain level
of equality for them. The verdicts included:

·        
The usual protected class identified based on
homosexuality was barred by the decision.

·        
The US Supreme court was also successful in dropping
sodomy regulations nationally.

·        
Section 3 of the Defense Marriage Act was
knocked down as well.

Despite
such developments, the right concerning family and the anti-discrimination
regulations still fluctuate from state to state. There is also no explicit statute
for employment discrimination based on such inclination.14 Although
some level of safeguard is accorded to government employees but such is not
stretched enough to cover the private sector employees. Prejudice towards
transgender is comparatively higher than other sexual minorities as seen in
form of violence, assault, housing disadvantages, poverty etc. Transgender activists
avow all-sex restrooms and additionally access to gendered restrooms as a
substance of choice, wellbeing, protection, and privacy. Same rights for all
can be observed but with huge gaps and disparities as we find in case of
intersex people. But with the progression the intersex activists have also been
successful in coming into the limelight.

 

·        
Issues
in India:

Living
in a country where heterosexuality is considered as an accepted norm it sure is
tough for the sexual minority brackets to flourish and gain equality. In this
situation their social well-being is at huge risk as they are often the prey of
social exclusion, brutality, illegal detention, police harassment, etc.15  One major problem subsisting is India is the
heterosexual marriage against will which eventually lead to unhappy life,
divorce and mental disturbance.

 Legal heritance is often denied to such
individuals and they end up feeling secluded and invisible in the community. Also
media sources which should be utilized majorly for the betterment of the LGBT
community plays an unconstructive part in portraying them as aggressive and
illicit.

·        
Legal
Position In India:

Legal
discrimination against the LGBT community in India persists in various modes
but the most awful or infamous of all is Section 377 of the Indian Penal Code
which originated from the British colonial times through their legislation. Ironically,
such a provision is not anymore in the British statute but continues to be
valid and legal in the Indian Penal Code.

Section
377 of Indian Penal Code:

“Unnatural
offences.–Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal, shall be punished with 1*imprisonment
for life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.”16

On the analysis of the
section we find certain lacunas in the provisions:

·        
The section fails to clearly distinguish between consensual and
coercive sexual activities.17

·        
The term “unnatural offences” has been defined in an outdated
fashion and also no rights of sexual minorities have been recognized.18

Although Article 15 of
the Indian Constitution states:

“Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall
not discriminate against any citizen on grounds only of religion, race, caste,
sex, and place of birth or any of them

(2) No citizen shall,
on grounds only of religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or condition with regard
to

(a) access to shops,
public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells,
tanks, bathing ghats, roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the general public.”19;

Yet the Article
excludes sexual orientation as a ground for discrimination.

The year 2014 was a
landmark year which contributed majorly for the upliftment of the transgender
as they were granted the right to change gender without sex reassignment surgery
and were recognized as the third gender nationwide.

It is to be noted that
as of 2018, the Supreme Court is doubtful and reconsidering whether to legalize
same-sex sexual activity and to draft a Uniform Civil Code which on approval
could lead to legalization of same-sex marriage.20

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Development-Agenda-for-Sexual-and-Gender-Minorities.pdf

2 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Development-Agenda-for-Sexual-and-Gender-Minorities.pdf

3 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

4 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

5 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

6 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html

7 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html

8 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

9 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

 

10
Id

11 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

12 http://blogs.law.columbia.edu/genderandsexualitylawblog/files/2012/04/Sexual-Stigma-and-Sexual-Prejudice-in-the-United-States-A-Conceptual-Framework.pdf

13 http://www.globalequality.org/storage/documents/pdf/iccpr_lgbt_shadow_report_2010_final.pdf

14 http://www.globalequality.org/storage/documents/pdf/iccpr_lgbt_shadow_report_2010_final.pdf

15 http://www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf

16 Section
377, Indian Penal Code.

17 http://www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf

18 Id.

19
Article 15 Indian constitution.

20 http://www.catchnews.com/amp/india-news/a-new-ucc-for-a-new-india-progressive-draft-ucc-allows-for-same-sex-marriages-85386.html