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  • May 30, 2019
    Introduction Since a very long time, the LGBTQ community has been facing injustice, torture, inequality, taunts, physical and sexual abuse. Being homosexual is not a disease but is natural. There have been a lot of legal development in protecting the rights of LGBTQ and in terms of a legal standpoint, India is now doing very well in maintaining the rights of the LGBTQ community. However, when it comes to societal development, there is a still a lot of work that has to be done. Though the trans-genders are given the legal status of third gender and have same fundamental rights as other citizens, they still face a lot of discrimination and criticism by the society. They are still seen as a social outcast. However, a lot of communities see hijras as spiritual and consider their blessings as an important part of marriages and when children are born in the family. Homosexual teenagers still are victims of bullying and teasing in schools. The are not only taunted by friends but even by their own family. They are also considered as mentally ill people. LGBTQ community are not given jobs or housing facilities because of which they cannot maintain a basic livelihood. Moreover, they are sexually abused by friends, relatives and sometimes even law enforcement authorities. They are also discriminated against in multiple occasions which is against their right to equality which Article 14 of the Indian Constitution guarantees.  A lot of members of the LGBTQ community are made to undergo shock therapy for forceful sexuality conversion which is a grave violation of their basic human rights. Just like anybody else, the LGBTQ community has the right to decide what should be and should not be done to their bodies and nobody can force that upon them.   Judicial Approach As per Section 377 of the Indian Penal Code, 1860, “Unnatural Sexual Offences” is a crime. But, it does not define what “unnatural” actually is in the penal code because of which, a lot of members of the LGBTQ community have faced humiliation, violence including violence from police, blackmailing, sexual abuse, etc.  Section 377 of IPC was a major obstacle between LGBTQ community and their human rights.   National Legal Services Authority v Union of India (2014) is a landmark judgement of the Supreme Court of India. It declared “trans-genders” as third gender and affirmed that fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. This judgement is a major step towards gender equality in India. Moreover, the court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.  In 2009, Delhi High Court decriminalized section 377 of the Indian Penal Code, 1860 in the famous Naz Foundation v Govt. of NCT of Delhi case. However, this judgement was later waived off by the Supreme Court. The Supreme Court considered the LGBTQ community as a minuscule minority which does not need any protection of rights.  In 2018 September, the Supreme Court of India pronounced Section 377 as unconstitutional and decriminalized homosexuality. The five-judge bench- comprising Chief Justice of India Dipak Misra and Justices R.F Nariman, A.M Khanwilkar, D.Y Chandrachud and Indu Malhotra were unanimous in its decision. They said that section 377 is irrational arbitrary and incomprehensible as it fetters the right to equality for LGBT community. LGBT possess same rights as other citizens. What society thinks has no say to when it comes to people’s freedoms. They further said that social morality cannot violate the rights of even one single individual and society owes an apology to the LGBTQ community. “Members of LGBT community and their family members are owed an apology from society for being denied equal rights over the years,” said Justice Malhotra.   Conclusion In conclusion, though the law has accepted the LGBTQ community as one among us, the society has not and still considers them as an outcast. Though they are equal in law, they are unequal in eyes of society. I propose the following suggestions: Creation of more NGOs that will work towards the rights of LGBTQ community. Promoting and Spreading awareness about homosexuality and how it is not a disease but is natural. Creation of adequate and proper housing and healthcare facilities for trans-genders. Unemployment needs to be minimized in the LGBTQ community so that they can promote and support a proper livelihood. Hijras should not have to be forced to become sex workers.  Physical, mental and sexual abuse against the LGBTQ should not be made fun of but should be taken seriously. Police should not abuse, but protect the LGBTQ just like how they would for other citizens. More and more people should be encouraged to accept the LGBTQ as a part of our society and not as an outcast. LGBTQ community should be taken care of through love, understanding and support. Just because their sexuality is different, we do not have the right to be unfair to them and ill-treat them. It is important to promote the idea that the homosexuals are also as normal as heterosexuals.
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