LGBT rights” are the rights of lesbian, gay, bisexual, and transgender people to live freely without discrimination and enjoy equal rights, personal autonomy, and freedom of expression and association.
The relationships between the free exercise of religion, freedom from others’ religious exercise, and the freedom of all to participate as equals in public life—indeed, the very meaning of “religious freedom” and “equality.” For many people who are identified as transgender, bisexual, queer, lesbian, or gay (LGBTQ), the Supreme Court’s 2015 “Obergefell v. Hodges” [1]decision, which recognized the freedom of same-sex couples to marry, was a Happy moment. Religious freedom” is defined in Article 18 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.”
The research paper aims to find out whether Religious Freedom and LGBT Rights Have Common Ground, is religious freedom associated with higher or lower levels of social hostilities involving religion, is religious freedom higher or lower in countries where there is higher support for LGBT rights, is support for LGBT rights increasing or decreasing in countries with higher levels of religious freedom and so on.
Keywords
Religious Freedom, LGBTQ, Religious exercise, Human rights, Freedom of Expression and Association.
Introduction
A quote from an iconic novel says “Love him and let him love you. Do you think anything else under heaven really matters?” – James Baldwin. These words evoke millions of people who felt like their emotions were invalid because of the gender of their choice. With this quote, Baldwin assured them that it did not matter because the choice is choice the right to freedom of religion or belief of all human beings during their life course, including that of LGBT persons, must be
recognized. Religious authorities have a responsibility to ensure that religion and tradition are not used to promote discrimination against people based on their sexual orientation and gender identity. Choices made by LGBT people in the name of religion are often cited as justification for prosecution and other inflicting actions in the legal system. Currently, 69 countries ban same-sex relationships or gender expression, with some even imposing the death sentence for same-sex relationships.
Research Methodology
This paper is descriptive and the qualitative research is based on secondary sources for the deep analysis of LGBTQ rights, human rights, religious freedom, freedom of expression, and association in India. Secondary sources of information like newspapers, journals, and websites are used for the research.
Review of literature
After the legalization of same-sex marriage, the battle between religious institutions and the LGBTQ+ community became a major topic of focus, especially about the LGBTQ+ adoption system. Current politicians and the court system have been slow to enact monumental changes to the system to make adoption more accessible to the LGBTQ+ community. Other disciplines including economics and sociology analyze the LGBTQ+ adoption system and find it to be inefficient and unfair to LGBTQ+ individuals and children seeking adoption. Religiously affiliated adoption agencies argue that they should not have to place children with LGBTQ+ parents if this violates their religious beliefs. Slowly shifting societal views and Republican-leaning states that rely on votes from their religious constituents have been slow to accept scientific justifications advocating for LGBTQ+ parents and instead are siding with religious-based discrimination or are creating more hoops for LGBTQ+ families to have to jump through to be able to adopt. Analyzing the work that has already been done in the fields of economics, sociology, politics, and law on LGBTQ+ adoption shows how LGBTQ+ adoption has progressed and where these fields are currently on this issue. It also shows that despite how vastly different these fields are they are all united in their ways behind the LGBTQ+ community. Bringing this together helps LGBTQ+ advocates and academics understand the current research so that they can continue working toward LGBTQ+ equality, especially in the adoption system.
Arguments
1. Do religious freedom and LGBTQ rights have common ground?
Religious freedom” is defined in Article 18 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance. ”
LGBT rights” are the rights of lesbian, gay, bisexual, queer, and transgender people to live openly without discrimination and enjoy equal rights, personal autonomy, and freedom of expression and association.” Social hostilities involving religion” are hostile acts by private individuals, organizations and social groups that restrict religious beliefs and practices. These include mob or sectarian violence, crimes motivated by religious bias, physical conflict over conversions, harassment over attire for religious reasons, and other religion-related intimidation and violence, including terrorism and war.
Gay: – A man who is sexually attracted to the man.
Bisexual: – Someone whose sexual and romantic feelings are attracted toward both genders.
Transgender: – It is an umbrella term that holds a diversity of gender expression and identities including bi-genders, cross-dressers, transsexuals, etc.
Queer: – Someone who is attracted to multiple genders and whose gender identity or sexuality does not match society’s traditional beliefs. They feel that they lose their sexuality if they begin a monogamous relationship.
The issue of homosexuality in India has always been a debated issue. During the ancient period, the Rig Veda, which dates back to 1500 BC, talks about Thadani, one of the earliest cosmologies found in Rig Veda belonging to dual feminine deities- Dyva.[2] It represents a union of two females that can be seen as lovers, mothers, sisters, etc. According to the ancient texts, the symbol of Yoni consists of two points of light represented by female twins thus giving the notion of homosexuality. The Kamasutra- an ancient treatise on sexology specifies three types of genders- prakriti, strip prakriti, and Tricia prakriti which are nowadays called man, woman, and third sex. The third sex was further categorized into gays and lesbians. It shows that people were more open and unconventional towards love and gender equality during ancient times.
2. Is religious freedom associated with higher or lower levels of social hostilities involving religion?
- The Government Restrictions Index (GRI) measures government laws, policies, and actions restricting religious beliefs and practices. The GRI comprises 20 measures of
restrictions, including efforts by the government to ban faiths, prohibit conversion, limit preaching, or give preferential treatment to one or more religious groups.
- The Social Hostilities Index (SHI) measures acts of religious hostility by private individuals, organizations, or groups in society. This includes religion-related armed conflict or terrorism, mob or sectarian violence, harassment over attire for religious reasons, and other forms of religion-related intimidation or abuse. The SHI includes 13 measures of social hostilities.
Social hostilities involving religion, including violence and harassment against religious groups by private individuals and groups, declined in 2019, according to Pew Research Center’s 12th annual study of global restrictions on religion, which examines 198 countries and territories.
3. Is support for LGBT rights increasing or decreasing in countries with higher levels of religious freedom?
The average level of religious freedom is 36% higher in countries with higher levels of support for LGBT rights than in countries with low levels of support for LGBT rights. In the one-third of countries scoring the highest on support for LGBT rights, the level of religious freedom was 7.5 compared with only 5.5 in the one-third of countries scoring at the bottom of the scale on support for LGBT rights
FACTORS THAT CONTRIBUTE TO LGBTQ EQUALITY[3]
The continuous struggle for legal equality for the community rests on the following constitutional principles:
- Equal protection of the law and prohibition of any discrimination based on gender, religion, sex, and other disabilities.
- The Right to Privacy is also provided to the community as it is the choice of an individual to make decisions about personal intimate relationships.
- The Right to freedom of speech and expression stands valid to formally recognize homosexuality in society.
- It also includes the right to form social and political organizations to protest peacefully and speak publically to highlight LGBTQ issues.
INDIAN CASE LAWS AND JUDGMENTS PASSED IN THE HISTORY OF THE LGBTQ COMMUNITY
In Naz Foundation vs. Government of NCT Delhi[4], the writ petition was filed in the Delhi High Court stating that section 377 is unconstitutional and violates the fundamental rights enshrined in Articles 14, 15, 19, and 21 of the Indian Constitution. Section 377 also creates obstacles in combating the spread of HIV/AIDS by the gay community. The court held the landmark judgment in the Favour of the LGBTQ community stating section 377 does not differentiate between public and private acts, consensual or non-consensual acts, therefore, it is unconstitutional in the eyes of the law.
Although the judge gave a ray of hope to the LGBTQ class, it was challenged in the Supreme Court in Suresh Kumar Koushal & Anr vs Naz Foundation & Ors[5]. The court held that section 377 is unconstitutional, and it does not criminalize any community or identity. It only identifies such acts that are against the order of nature which if committed would lead to an offense. This judgment created an era of darkness in the lives of LGBTQ people. The darkness is removed in the case of the National Legal Services Authority (NALSA) vs. the Union of India6. The Supreme Court in this regard held that Article 14 does not exclude the term ‘person’ and it recognizes transgenders as the citizens of this country. The NALSA case is the landmark case for transgender rights in the country. The court also presented stringent guidelines that every state must follow to provide legal protection of laws to transgenders in every sphere of life.
In Justice K.S.Puttaswamy (Retd) vs. The Union of India[6], the apex court held that the right to privacy is an integral part of Article 21 and it is extended to every individual irrespective of gender identity and sexual orientation. Thus, the bench gave the right to privacy to the members of the LGBTQ community and held that the state authorities must not interfere while exercising the practice of homosexuality.
In Navtej Singh Johar vs. The Union of India Ministry of Law and Justice[7], the apex court gave its landmark judgment of decriminalizing all consensual sex including homosexuality. The court
further held that section 377 violates articles 14, 15, 16, and 19 (1) of the Indian Constitution and it should not be exercised against the dignity and autonomy of any individual.
The order passed by the Supreme Court in Shafin Jahan vs. Asokan K.M.[8] stated that it is a fundamental right of every individual to choose a partner of his/her choice which can be extended to the same sex.
HIGHLIGHTING THE CASE OF ‘GAURI SAWANT’
NATIONAL LEGAL Ser.Auth vs. Union of India & Ors (2012-2014)[9]
Gauri established the Sakhi Char Chowki Trust in 2000 to help the people of her community. The non-profit organization provides counseling to transgender people and endorses safe sex practices in the community. She also fought for the adoption rights of transgender people. She became the first transgender person to file a petition for this in the Supreme Court of India. Another major petition filed by Gauri was the National Legal Services Authority (NALSA) case where she urged the Supreme Court to recognize transgender as the third gender. Gauri is also the goodwill ambassador of the Election Commission in Maharashtra. She has also worked to get basic rights to the LGBTQ community. Later, the NALSA made the third gender eligible to get Aadhaar cards.
CONCLUSION AND SUGGESTIONS
“All we want is equality”
The story of religious freedom and LGBTQ rights in the twenty-first century has entirely been one of judicial action. It is time for the American people to take back the pen and write our common future together.
To do that, we must see, acknowledge, and advocate for one another. We must put away the fantasy that there is a future we can achieve in our lifetimes in which we get everything we want or where everyone does what we think is best. We must decide that such a future would require a betrayal of our values and of the dignity of those who disagree with us, whatever our position on discrete issues might be. We must reject politicians and activists whose aggrandizement depends on our failure to acknowledge and act considering this reality. In earnest, we should seek to protect LGBTQ rights and religious freedom. We need civic leaders who will uphold the value of both and acknowledge the insufficiency of only pursuing one or the other, even at a political cost.
AUTHOR
ANUSHKA SINGH UNIVERSITY COLLEGE OF LAW, OSMANIA UNIVERSITY, HYDERABAD
[1] OBERGEFELL VS HODGES CASEhttps://constitutioncenter.org/the–constitution/supreme–court–caselibrary/obergefell–v–hodges , (Last visited sep.13,2023)
[2] Satyanarayana dasa, the vedic view on homosexuality, https://www.jiva.org/the–vedic–view–on–homosexuality/ ,(last visited sep.13,2023)
[3] Factors that contribute to LGBTQ, equality https://theamikusqriae.com/legal–position–of–lgbtq–rights–in–theindian–judiciary/ ,(last visited sep.13,2023)
[4] Naz Foundation vs Government of Nct of Delhi and …, Appeal (2009)
[5] Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, CIVIL APPEAL NO.10972 OF 2013(2013) 6 National Legal Ser.Auth vs Union Of India & Ors, WRIT PETITION (CIVIL) NO.400 OF 2012(2014)
[6] Justice K.S.Puttaswamy(Retd) … vs Union Of India And Ors., WRIT PETITION (CIVIL) NO 494 OF
2012(2017)
[7] Navtej Singh Johar vs Union Of India Ministry Of Law And …, WRIT PETITION (CRIMINAL) NO. 76 OF 2016(2018)
[8] Shafin Jahan vs Asokan K.M., )(2018)
[9] National Legal Ser.Auth vs Union Of India & Ors, WRIT PETITION (CIVIL) NO.400 OF 2012(2014)