LGBT rights in Kerala

Lesbian, gay, bisexual and transgender (LGBT) people in Kerala face legal and social difficulties not experienced by non-LGBT persons. However, Kerala has been at the forefront of LGBT issue, along with its neighbour Tamil Nadu.[1] Whilst Lesbians, gays and bisexual remain marginalised due to laws in India, transgender people have secured legal rights in India. Kerala became one of the first States in India to follow this up with a welfare policy for the transgender community and in 2016, introduced free Sex Reassignment Surgery (SRS) through government hospitals.

As a part of its Transgender Policy, the government introduced 'Gender Taxi' along the lines of 'She Taxi' which will be owned and operated by transgender people.[2]

Queer pride rallies also played a vital role in changing the mindset of Kerala's society. The last pride march were conducted in August 11 2016 at Kozhikode.

Law regarding same-sex sexual activity

Homosexual intercourse was made a criminal offence under Section 377 of the Indian Penal Code, 1860. This made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.

According to a ruling by the Indian Supreme Court, decisions of a High Court on the constitutionality of a law apply throughout India, and not just to the territory of the state over which the High Court in question has jurisdiction.[3] However, even there have been incidents of harassment of homosexual groups.[4]

On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral.[5] The Central Government reversed its stand on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. This resulted in two judges of the Supreme Court reprimanding the central government for frequently changing its stand on the issue. "Don't make a mockery of the system and don't waste the court's time," an apex court judge told the government.[6]

On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.[7][8][9] The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that parliament should debate and decide on the matter.[10] The full decision can be found here.

On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.[11] In explaining the ruling the bench said: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."[12]

On December 18 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced the bill for the decriminalisation of Section 377, but the bill was rejected by the house by a vote of 71-24. However, Shashi Tahoor is planning to re-introduce the bill.[13]

Human rights groups expressed concerns that this would render homosexual couples vulnerable to police harassment, saying: "The Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination"[14] The Naz Foundation (India) Trust stated that it would file a petition for review of the court's decision.[15]

On February 2 2016, the Supreme Court decided to review criminalisation of homosexual activity.[16]In 2016, Kerala mooted free sex-reassignment surgeries in Government hospitals after it introduced the first State government policy on transgenders.[17][18]

Recognition of same-sex relationships

Same-sex marriages are not legal in India. However, in the recent times, movements demanding the same has been vociferous in Kerala.

Transgender rights

Kerala has been at the forefront of Transgender rights movement in India and was one of the first to introduce welfare policy for the group in 2015. In 2016, the State government followed this up with introduction of free Sex Reassignment Surgery (SRS) in government hospitals and budgetary allocation for the same. Kannur, a Northern District, in 2016 allocated a part of its budget towards the employment and skill training programs for transgenders in Kerala. It is also one of the few states with vocal transgender community that has staged numerous 'pride parades' in the past decade.

Thiruvanathapuram MP, Shashi Tharoor, is one of the strong proponents of LGBT rights and introduced a private member's bill twice in the Lok Sabha for repulsion of Section 377 that criminalises sexual activity 'against the order of the nature'. Section 377 is allegedly widely misused by the police to harass LGBT community members.

In 2016, President Pranab Mukherjee also opened a 'Gender Park' in Kozhikode aimed at researching for policy with regards to the LGBT community and its empowerment. The State Government has mooted several pilot initiatives to empower the group through this mechanism and is one of the first of its kind in India.

Kerala has also empowered the transgender community with voting rights and strong social awareness and protection programs. It's also stood strongly against the discrimination of Transgenders in educational campuses.

References

  1. ↑ "Kerala Government Has Unveiled A Policy To Enforce Constitutional Rights Of Transgenders". The Huffington Post. Retrieved 2016-06-28.
  2. ↑ "After She-Taxi, Kerala to launch G-Taxi for transgenders". Times of India. Thiruvananthapuram. PTI. 31 January 2016. Retrieved 25 March 2016.
  3. ↑ Kusum Ingots v. Union of India, (2004) 6 SCC 254: "An order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."
  4. ↑ Pervez Iqbal Siddiqui (28 December 2010). "Crackdown on gay party in Saharanpur, 13 held". The Times of India. Retrieved 20 January 2011.
  5. ↑ Mahapatra, Dhananjay (23 February 2012). "Centre opposes decriminalisation of homosexuality in SC". Economic Times. Times Internet. Retrieved 9 September 2014.
  6. ↑ "Supreme Court pulls up Centre for flip-flop on homosexuality". The Indian Express. 28 February 2012. Retrieved 9 September 2014.
  7. ↑ "Supreme Court sets aside Delhi High Court judgment in Naz Foundation; Declares S.377 to be constitutional".
  8. ↑ Nelson, Dean (11 December 2013). "India's top court upholds law criminalising gay sex". London: The Telegraph. Retrieved 11 December 2013.
  9. ↑ "Supreme Court makes gay sex punishable offence, again; Twitter war breaks out between those for and against the verdict". DNA India. Retrieved 11 December 2013.
  10. ↑ "Homosexuality is criminal offence: Supreme Court". Economic Times. 11 December 2013. Retrieved 11 December 2013.
  11. ↑ "Supreme Court refuses overruling its Verdict on Section 377 and Homosexuality". IANS. Biharprabha News. Retrieved 28 January 2014.
  12. ↑ J Venkatesan (11 December 2013). "Supreme Court sets aside Delhi HC verdict decriminalising gay sex". The Hindu. Chennai, India. Retrieved 2013-12-12.
  13. ↑ "India parliament blocks MP's bill to decriminalize gay sex". Rappler.
  14. ↑ Harmit Shah Singh (11 December 2013). "India's Supreme Court declares homosexual sex illegal". CNN.
  15. ↑ "Naz Foundation to file review petition against SC order on section 377".
  16. ↑ ABC News. "ABC News". ABC News.
  17. ↑ Devasia, TK. "Why Kerala's free sex-change surgeries will offer a new lifeline for the transgender community". Scroll.in. Retrieved 2016-03-19.
  18. ↑ "How Kerala left the country behind on transgender rights | Latest News & Updates at Daily News & Analysis". dna. Retrieved 2016-03-19.
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