The transgender community may have become a part of the policy framework, but in light of the 2014 judgement upholding the sodomy law, the LGBQ community may have a long way to go before their voices are heard. The differences between the two communities are based on the differences between understanding gender and sexuality, even though both communities deserve same basic human rights.
Trans Community VS the LGBQ Community
The reason the two communities are separate is because courts have drawn a distinction between the two communities on the basis of gender and sexuality. While the gays, lesbians and bisexuals are identified by their sexuality, transgender people are characterised by their gender nonconformity.
Gender identity and sexual orientation are not the same. Sexual orientation refers to an individual's enduring physical, romantic, and/or emotional attraction to another person, while gender identity is about which gender one identifies with the most.
There is a common misconception that the transgenders are gay, probably due to being clubbed together with the LGBQ community – but they may be straight, bisexual, lesbian, gay, or asexual. The reason behind the misconception is that when the gay activists first started working towards equality, they naturally clubbed the transgenders together as well.
Both the communities face almost the same issues of hate crimes, discrimination, lynching, prevalence of HIV-AIDS, prostitution, along with lack of recognition, but the underlying issues are quite different. The fact that in most other countries, unlike India and Pakistan, the LGBQ community got recognition before the transgender community further led to more misconceptions.
The fact that sex and sexuality is considered a taboo topic even amongst the educated class in India is a major reason for the transgender community receiving recognition while the LGBQ community is being left to fighting for its rights.
Recognition and Respect for the LGBTQ Community
There can be many approaches as far as getting recognition and respect for the LGBTQ community is concerned. Firstly, one’s sexual orientation or gender identity can be treated as a matter of privacy in which the state should not intervene.
The same logic would make criminalising gay sex against one’s Right to Privacy which is a part of Article 21 of the Constitution. Secondly, the human rights approach would also give the community a right to freedom of expression. In either case, the reasons behind supporting one community apply to the other as well.
The reason the transgender community got recognition in India is because they have been recognised as economically and socially backward class of society, in the same category as SCs and STs. Their recognition comes from the fact that most transgenders can’t find employment and end up as sex workers.
‘Inclusion’ of the LGBQ Community
The same cannot be said about the LGBQ community, which often hides their sexuality in a bid to be accepted as part of society.
The William’s Institute in USA recently published research which links economic development of a country to social inclusion of the LGBQ community. It found that in developing economies, by not recognising the rights of the LGBQ community, the overall development of the country takes a backseat.
The inclusion of this community, on the other hand, has led to economic growth and increased productivity. The reasoning behind this is that by criminalising the community, the country is hampering its available human resource, which could’ve contributed in economic activity.
The 2014 study by the World Bank on “The Economic Cost of Homophobia in India” has revealed that India suffers a loss between 0.1 to 1.7 percent of GDP or about 2-30 billion USD because of homophobia.
Section 377 costs the nation between 712 million to 23.1 billion USD in health costs (HIV, depression and suicides). There's a price to be paid for bigotry, and the whole nation is paying it.
Section 377 which criminalises the actions of the LGBTQ community in India dates back to 1860 and was introduced by the British. Ironically, homosexuality is not a crime in Britain anymore, and wasn’t a crime in India till the country was colonised.
The law criminalises carnal intercourse against the order of nature including fellatio and anal sex.
While talking about the transgender community the Supreme Court said that “recognition of transgenders as a third gender is not a social or medical issue but a human rights issue. Transgenders are also citizens of India. The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”
If that be the case, then the LGBQ community should also be recognised and provisions should be made for them as citizens of India.
Lack of Awareness
As per the suggestions made by the Chief Justice of India, the matter of recognition and inclusion of the LGBQ community must be debated in parliament. India must take into account the presence of homosexuality in its own historical records and the right of each individual to freedom of expression while taking steps towards repealing Section 377. The biggest roadblock for the LGBQ community is the lack of public awareness.
Due to the lack of information, there are many misconceptions which have lead to hate crimes against the community. By accepting the transgender community, it’s being hoped that the people would realise the suffering endured by the LGBQ community. Despite having different underlying issues of gender and sexuality both the communities belong to India and are its citizens.
The civil society must work towards informing the citizens about the struggle of both the groups so that they can make informed decisions while electing their representatives.
(The writer is a Research Assistant to legislators at the Rajiv Gandhi Institute of Contemporary Studies, Jawahar Bhavan. She can be reached kamikaze_mahila. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)