Sexual Minorities

A sexual minority is a group whose sexual identity, orientation or practices differ from the majority of the surrounding society. Primarily used to refer to lesbian, gay, bisexual, or non-heterosexual individuals, it can also refer to transgender, non-binary (including third gender) or intersex individuals.

LGBTQIA+ Community

The term LGBT stands for Lesbian, Gay, bisexual, and Transgender. There is often confusion and people find it difficult to differentiate between Transgenders and Intersex people. Here is a simple distinction between these terms:

• Transgender are people who are born with typical male or female anatomies but feel as though they have been born into the “wrong body“.
  • For Ex:  a person who identifies as transgender or transsexual may have typical female anatomy but feel like a male and seek to become male by taking hormones or electing to have sex reassignment surgeries.
  • People who are transgendered have an internal experience of gender identity that is different from most people.
  • Transsexual: Those who have permanently changed their identities through surgery.
• Intersex conditions: People with anatomy that is not considered typically male or female.
  • Most people with intersex conditions come to medical attention because doctors or parents notice something unusual about their bodies.
  • In contrast, Many people confuse transgender and transsexual people with people with intersex conditions because they see two groups of people who would like to choose their own gender identity and sometimes those choices require hormonal treatments and/or surgery.
  • These are similarities. It’s also true, albeit rare, that some people who have intersex conditions also decide to change genders at some point in their lives, so some people with intersex conditions might also identify themselves as transgender or transsexual.
• Gender Queer: Non-Binary: They express a combination of masculinity & femininity. A person who does not subscribe to conventional gender distinctions but identifies with neither, both, or a combination of male and female genders.
  • Identified as bigender, trinder, or pangender.
• Eunuch generally refers to a man who has been castrated to serve a specific social function.
• Hijra are eunuchs, intersex people, and transgender people.
  • They are also known as Aravani, Aruvani, Jagappa, or Chhakka (derogatory),
  • In India, they prefer to call themselves Kinnar or Kinner, referring to the mythological beings that excel at song and dance.
  • In Pakistan, they are called Khawaja Sira—the equivalent of transgender in the Urdu language.

Issues faced by Sexual minorities in India

• Social Stigma and Discrimination: Sexual minorities, including LGBTQIA+ individuals, often face ostracism, bullying, and violence in families, schools, and workplaces.
• Legal Challenges: Although Section 377 was read down in 2018 (decriminalizing homosexuality), same-sex marriage and adoption rights are still not legally recognized.
• Sexual freedom: It involves the right to express one’s sexual orientation, preferences, and identity without fear or discrimination. Earlier under Section 377, any relation which is not between a ‘male’ and ‘female’ were criminalised. This has created a stigma over time.
• Lack of Legal Protection: Absence of anti-discrimination laws specific to sexual orientation and gender identity in employment, education, housing, and healthcare.
• Mental Health Issues: Higher incidence of depression, anxiety, and suicidal tendencies due to identity suppression, isolation, and lack of support.
• Economic Marginalization: Limited job opportunities due to bias and exclusion from mainstream economic activities. People discriminate against these communities and often do not provide jobs easily.
• Healthcare Disparities: Inadequate access to LGBTQ+ sensitive healthcare, especially for transgender persons.
• Identity and Documentation Issues: Difficulty in changing gender or name on official documents, impacting access to services.
• Violence and Abuse: Vulnerable to harassment, assault, and corrective rape, often with little police support.

Social Empowerment of the Sexual minorities

The empowerment of the LGBT community was a herculean task because most forms of sexual relationships between people from amongst the community were criminalised. Thus, empowerment involves two steps:

1. Decriminalisation of sexual relations
   1. Empowerment of the Communities.

Decriminalisation of sexual relations

Before 2014, Section 377 of the IPC prohibited any carnal intercourse (sex) against the order of nature with any man, woman or animal. This means that consensual intercourse between same-sex adults (homosexuals) is also a crime.

A series of judgements decriminalised same-sex relations in India.

Naz Foundation v National Capital Territory of Delhi (2009):

In this case, the Delhi High Court judgement  ruled that:

• Section 377 was unconstitutional.
• It violated the fundamental right of life and liberty (Art 21) and the right to equality (Art 14) as guaranteed in the Constitution.

Koushal v. Naz Foundation case

In 2013, the Supreme Court (SC) overturned the Delhi HC judgement. It caused a huge uproar as the Supreme Court was seen as failing in its responsibility to protect the fundamental rights of its homosexual citizens. There was a feeling that, though well-intentioned, the courts were also capable of violating constitutional rights.

Many Curative Petitions had been filed to review the judgement:

• Curative petition: a relatively new process by which the Supreme Court may choose to exercise its inherent powers to review its own decision. It is only exercised extremely rarely.
• Condition: whether an aggrieved person is entitled to any relief against the final judgement/order of the Supreme Court, after dismissal of a review petition.

In January 2014, the Supreme Court, stating that the petitions raise “significant questions of constitutional law”, referred these petitions to a 5-judge Constitutional bench. It had been observed that courts across the country had begun narrowing the impact of the SC decision through their judgements since this point in time.

NALSA case (2014):

The SC held that hijras and transgenders should be treated as a ‘third gender’ for accessing public services. But, since Transgender community’s sexual orientation is criminalized by Section 377, this judgement could be seen as disagreeing with the criminality of 377.

• Formal legal recognition: A ‘third gender’ option was to be now available in railway reservation forms, ration card applications, passport applications, and Life Insurance Corporation proposal forms.
• Right to self-determination of gender, male & female or transgender without the mandate of a medical certificate or sex-assignment surgery (SRS).
  • The judgement said that “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity”.
  • Comment: Hence, medical procedures should not be required as a pre-condition for any identity documents for transgender & intersex persons, nor should there be any requirement for a mental health assessment.

Right to Privacy case(2017):

The Supreme Court of India gave a landmark judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India of 2017.

It said “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.  Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15(Prohibition of discrimination) and 21 of the constitution… “

It opened the gate for the decriminalisation of sexual orientation.

Navtej Jauhar V/s Union of India:

In 2018, the SC referred a writ petition filed by five gay and lesbian members of the LGBT community to a five-judge Constitutional Bench to strike down colonial Section 377. It built upon the Right to Privacy case and adjudged that “a section of people cannot live in fear of a law which criminalizes their sexual orientation”.

Constitutional bench in 2018

The final judgment came in 2018 when a five-judge Constitutional Bench of the Supreme Court unanimously struck down Section 377, affirming LGBTQ rights and dignity. 

Rights of Transgender Persons Act, 2019:

• It defines “Transgender”: A transgender is a person whose sense of gender — gender identity — does not match with the gender assigned to that person at birth, as well as transmen, transwomen, those with inter-sex variations, the gender-queer, and those who designate themselves based on socio-cultural identities such as hijra, araavani, kinner, and jagota.
  • Legal aid, pensions, unemployment allowances and skill development for transgender people.
  • It prohibits discrimination against a transgender person in areas such as education, employment, healthcare, and place of residence. It directs the central and state governments to provide welfare schemes in these areas.
  • It Prevent abuse, violence and exploitation of transgender people.

Offences against transgenders

Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years imprisonment and a fine.

• Forced or bonded labour (excluding compulsory government service for public purposes),
• denial of use of public places,
• removal from households, and villages,
• physical, sexual, verbal, emotional or economic abuse. 

Penalties for these offences vary between six months and two years, and a fine.

Certificate of Identity:

A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’. 

• A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female. 
• NALSA judgement: right to self-determination of gender, male & female or transgender without the mandate of a medical certificate or sex-assignment surgery(SRS).

National Council for Transgender Persons (NCT) :

The NCTP with the following main functions:

• Advising central government on policies, programmes, legislation etc.
• Monitoring and evaluating the impact of policies and programmes.
• Redressing grievances of transgender persons.
• Performing such other functions as prescribed by the Centre.

Term: The members of the council other than the ex officio members, shall hold office for a term of 3 years.

Problems with the Transgenders Act

• The removal of the clauses that provided for the setting up of National and State Transgender Welfare Commissions is another incapacitating deletion. The government envisions that it would be a massive bureaucratic structure without enforcement abilities, rendering it powerless to be a protector of rights.
  • The 2% reservation provision provided in the 2014 bill on the mandate of NALSA judgment has been removed.
  • Ban on forcible separation of transgender persons from their families, except through court orders. It has been revised to cover transgender children. Earlier it covered adults as well, but the committee had noted that it was within the family that many transgender persons faced harassment and abuse, and were driven to flee their homes.
  • Several Civil Rights missing: The Bill does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights, thereby continuing to deprive transgender persons of their fundamental rights and the constitutional guarantee provided by the Supreme Court in NALSA.
  • Gender-sensitive rights missing: Free from domestic violence, sexual assault etc. Transgenders are the most affected people by sexual violence, yet the gender-specific criminal procedures do not address their woes.

It Criminalizes begging:

It makes it an offence for someone to compel or entice a transgender person into seeking alms. When begging itself is no longer seen as an offence, it may harm the community if such a means of livelihood- in the absence of employment is Criminalized. [Section 19]

• These provisions could give immunity to the police to exert force on transgender persons and “rehabilitate” them in beggars’ homes or detention centres against their will.
• Such harsh measures have also been criticised by the Delhi High Court in Harsh Mander v. Union of India, 2018, declaring provisions of the Bombay Prevention of Begging Act, 1959 as unconstitutional on grounds that it violates Article 14 and Article 21, and affects the rights of persons who have no other means of sustenance but to beg.

Definitions of Sex:

The definition of transgender persons in the Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-queers’. 

• However, these terms have not been defined.
• Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and ‘woman’.  It is unclear how such laws would apply to transgender persons who may not identify with either of the two genders.
• A better definition might be “gender fluid”.

Transgender Persons (Protection of Rights) Rules, 2020

• Certificate: District Magistrate will certify the gender of a person based on an affidavit by the applicant, without any medical or physical examination.
  • Review all other government schemes to include transgender: Provides for review of all existing educational, social security, health schemes, welfare measures etc. to include transgender persons.
  • Transgender-sensitive infrastructure such as separate wards in hospitals and washrooms be constructed within two years of the Rules being notified.
  • Directions For state governments:
    • Welfare board: State governments to constitute welfare boards for transgender persons to facilitate access to schemes and welfare measures framed by the Centre.
    • Prohibition of discrimination within the government: State governments are required to take steps to prohibit discrimination of transgender persons in any government or private organisation, or private and public educational institution under their purview.
    • State governments have to set up Transgender Protection Cells to monitor cases of offences against transgender persons.

Welfare programs for Transgenders

SMILE (Support for Marginalised Individuals for Livelihood and Enterprise)

It is a Central Sector scheme run by the Department of Social Justice & Empowerment.  It provides for welfare measures to the Transgender community and the people engaged in the act of begging.

This includes two sub-schemes –

1. ‘Central Sector Scheme for Comprehensive Rehabilitation for Welfare of Transgender Persons’
2. ‘Central Sector Scheme for Comprehensive Rehabilitation of Persons engaged in the act of Begging’.

It strengthens and expands the reach of the Rights that give the targeted group the necessary legal protection and a promise of a secure life.

Central Sector Scheme for Comprehensive Rehabilitation for Welfare of Transgender Persons

The Sub-scheme – ‘Central Sector Scheme for Comprehensive Rehabilitation for Welfare of Transgender Persons’ includes the following components-

• Scholarships for Transgender Students: Scholarships for students studying in IX and till post-graduation to enable them to complete their education.
• Skill Development and Livelihood: Skill Development and Livelihood under the PM-DAKSH scheme
  • ‘PM-DAKSH’(Pradhan Mantri Dakshta Aur Kushalta Sampann Hitgrahi) portal & app to make the skill development schemes accessible to the target groups of Backward Classes, SCs and Safai Karamcharis.
  • Implemented from the year 2020-21.
  • Eligible target groups are being provided skill development training programmes on up-skilling/reskilling, short-term training programmes, long-term training programmes and entrepreneurship development programs (EDP).
  • Eligibility: Marginalized persons of SC, OBC, Economically Backward Classes, DNTs, Sanitation workers including waste pickers, manual scavengers, transgenders and other similar categories.
• Composite Medical Health: A comprehensive package in convergence with PM-JAY supporting Gender-Reaffirmation surgeries through selected hospitals
• Housing in the form of ‘GarimaGreh’: Shelter Homes where food, clothing, recreational facilities, skill development opportunities, recreational activities, medical support etc. will be provided
• Provision of Transgender Protection Cell: in each state to monitor cases of offences and to ensure timely registration, investigation and prosecution of offences.
• E-Services (National Portal & Helpline and Advertisement) and other Welfare Measures

Comprehensive Rehabilitation of Persons engaged in the act of Begging

The sub-scheme ‘Comprehensive Rehabilitation of Persons engaged in the act of Begging’ includes-

• Survey and identification: Survey and Identification of beneficiaries shall be carried out by the Implementing Agencies.
• Mobilization: Outreach work will be done to mobilize the persons engaged in begging to avail the services available in the Shelter Homes.
• Rescue/ Shelter Home: The shelter homes will facilitate education for children engaged in the act of Begging and children of persons engaged in the act of Begging.

Additionally,

• Skill development/vocational training will be provided to attain capacity, capability and desirability so that they can sustain and live a life of dignity by engaging in self-employment.
• Pilot projects were initiated on Comprehensive Rehabilitation in ten cities namely Delhi, Bangalore, Chennai, Hyderabad, Indore, Lucknow, Mumbai, Nagpur, Patna and Ahmedabad. 

Facilities for sexual minorities at hospitals:

The National Health Mission (NHM) and the Kerala Health Department are jointly launching an awareness campaign to ensure equity in access to healthcare services for all citizens, regardless of their gender.

Related FAQs of Sexual Minorities