‘LGBTQ community devoid of key rights’, reveals report
Ten months after the Supreme Court decriminalized consensual adult same-sex relationships, and five years after it conferred legal identity to transgender persons, the community of Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) persons remains bereft of a host of rights, a comprehensive report released by the International Commission of Jurists (ICJ) on Saturday revealed.
The directives of the 2014 judgment, Nalsa versus Union of India, which recognized the third gender as a legal identity — in particular, those that pertain to the provision for welfare schemes, entitlements such PAN card and passport, and access to public facilities like shelter homes, toilets and transportation, among other things — have not been uniformly followed by different states, the report found.
The report, titled ‘Living With Dignity: Sexual Orientation and Gender Identity-based Human Rights Violations in Housing, Work, and Public Spaces in India’, aims to assess the extent to which the government has been able to protect the human rights of LGBTQ persons, as well as offer policy recommendations to secure their rights.
The ICJ team filed 60 Right to Information applications to various state governmental departments, including those of Delhi, Tamil Nadu and Kerala, and central departments like the Unique Identification Authority of India, Central Board of Secondary Education, Department of Personnel and Training. It received 49 responses, which showed a lack of uniformity in the approach towards the rights and entitlements of transgender persons.
For instance, while the Director General of Income Tax (systems) stated that no documentary proof of gender identity was required in application as well as correction of gender in PAN cards, the Consular Passport and Visa Division of the ministry of external affairs stated that a medical certificate was mandatory in cases where change of sex was being sought.
The Nalsa judgment, however, specifically stated that asking for proof of change of gender was unconstitutional.
On access to public toilets and public transport, RTIs to the ministry of civil aviation, Centre for Railway Information System, ministry of drinking water and sanitation and Metro corporations, including Delhi, Chennai, Kochi, Kolkata, Bangalore, Mumbai, Hyderabad and Lucknow, elicited a range of responses.
While the aviation and railways departments failed to provide a response on the use of toilets by transgender persons, none of the eight Metro corporations had any guidelines in place for separate security queues and bathrooms for transpersons, despite clear directives by the Supreme Court five years ago.
The Kolkata Metro Rail Limited, which is working on an East-West Corridor project, however, stated that “seats and compartments reserved for women will be available for use by transwomen, transmen whose official identification states ‘female’, and transgender persons.”
“Progressive jurisprudence from their Supreme Courts have placed India and Nepal in the position of being leaders regionally on protection of LGBTQ rights. The challenge now for India is effective implementation. As we have tried to document, mere decriminalization has not ended the widespread discrimination against the LGBTQ persons seeking to exercise their rights. Long-term solutions will require both legal and policy change, as well as public sensitization,” said Frederick Rawski, director, Asia and Pacific, ICJ.
In September 2018, the Supreme Court ruled that Section 377 of the Indian Penal Code — which outlawed adult consensual same-sex intercourse — was unconstitutional, effectively decriminalizing homosexuality.
The report also documents the violations and barriers faced by LGBTQ persons from different castes, regions, genders, disability status, and religions. It spoke to 65 people across six states about their experiences in accessing housing, work and public spaces. It offers a framework of Indian and international laws, and human rights treaties India has ratified, to offer suggestions on how these can be overcome.