Menu

Title: The Intersection of Religious Freedom and LGBTQ+ Rights

Publications, Research paper

Author: Shivanshu Mishra, 2nd Semester, Campus Law Center, Faculty of Law, University of Delhi.

Abstract

LGBT rights refer to the essential freedoms that lesbian, gay, bisexual, and ambisexual people have to live true lives, free from prejudice, and to have equal rights, individual independence, and the ability to express and associate with others. The ideals of equality in public life and religious freedom are inextricably linked to these rights. LGBTQ people celebrated a huge win when the Supreme Court decided in Obergefell v. Hodges [1] in 2015, upholding same-sex couples’ ability to get married.

Article 18 of the Universal Declaration of Human Rights defines religious freedom as the freedom to practice one’s religion, thoughts, and conscience as well as the ability to publicly and privately express one’s ideas.

The purpose of this research study is to investigate whether there is any shared ground between the domains of LGBT rights and religious freedom. It also explores the connection between religious freedom and religiously motivated social conflict, evaluating whether nations with more religious freedom have fewer religiously motivated social disputes. Furthermore, the study looks into whether support for LGBT rights and religious freedom are related, as well as whether support for LGBT rights changes among nations with varying levels of religious freedom. The ultimate purpose of this research is to promote greater understanding, tolerance, and inclusivity in society by shedding light on the complex interactions between religious freedom and LGBT rights through rigorous analysis and inquiry.

  1.  Obergefell v. Hodges, 576 U.S. 644 (2015), available at https://constitutioncenter.org/the-constitution/supreme-court-case-library/obergefell-v-hodges (last visited Sep. 13, 2023).

Keywords: Freedom of Expression and Association, Human rights, LGBTQ, Religious exercise, Religious Freedom. 

Introduction 

A poignant quote from the renowned author James Baldwin, found within the pages of an iconic novel, resonates deeply: “Love him and let him love you. Do you suppose anything differently under heaven really matters?” These words hold immense significance for countless individuals who have felt their emotions invalidated due to societal judgments based on their chosen gender. Through this quote, Baldwin reassures them that such judgments hold no sway, as the fundamental right to freedom of religion or belief must be upheld for all individuals, including those within the LGBTQ+ community. It is incumbent upon religious authorities to ensure that faith and tradition are not wielded as tools of discrimination against individuals based on their sexual orientation or gender identity. Too often, the choices made by LGBTQ+ individuals in alignment with their religious beliefs are unfairly used against them in legal proceedings, perpetuating unjust outcomes. Shockingly, in the present day, 69 countries actively prohibit same-sex relationships or expressions of gender, with some even sanctioning the harshest of penalties, including death, for such unions.

Research Methodology 

This paper adopts a descriptive approach, employing qualitative exploration grounded in secondary sources to conduct an in-depth analysis of LGBTQ rights, human rights, religious freedom, freedom of expression, and association in the context of India. Secondary sources such as scholarly journals, reputable publications, and credible websites serve as the basis for the exploration and examination of these multifaceted issues. Through a comprehensive review and synthesis of existing literature and research findings, this paper aims to provide a nuanced understanding of the status, challenges, and advancements pertaining to LGBTQ rights and related freedoms in India. By drawing upon a diverse array of secondary sources, including academic studies, reports, and legal documents, this research endeavors to offer valuable insights into the complex dynamics shaping the landscape of rights and liberties for LGBTQ individuals and communities in India.

Review Of Literature 

Following the legalization of same-sex marriage, the intersection between religious institutions and the LGBTQ community has become a focal point of contention, particularly concerning LGBTQ adoption rights. Despite strides in marriage equality, lawmakers and judicial bodies have been sluggish in enacting significant reforms to make adoption more accessible to LGBTQ individuals and couples. This delay has prompted scrutiny from various academic disciplines, including economics and sociology, which have identified systemic barriers and legal obstacles hindering LGBTQ individuals and children from accessing adoption services.

Religiously affiliated adoption agencies have raised objections, asserting that they should not be compelled to place children with LGBTQ parents if it conflicts with their religious beliefs. Additionally, societal attitudes, particularly in democratically inclined countries reliant on religious voter bases, have been slow to evolve, with some policymakers prioritizing religious doctrines over empirical evidence supporting LGBTQ parenting.

An analysis of existing research across fields such as economics, sociology, politics, and law highlight the progress and remaining challenges within the LGBTQ adoption landscape. Despite their divergent methodologies and perspectives, these disciplines converge in their support for LGBTQ rights, underscoring a shared commitment to advocating for equality and inclusivity within the adoption system.

This collective understanding aids LGBTQ advocates and scholars in navigating the current landscape and informs ongoing efforts to advance LGBTQ equality, particularly within the adoption arena. By synthesizing insights from diverse academic disciplines, stakeholders can continue working collaboratively towards achieving parity for LGBTQ individuals and families in adoption policies and practices.

Arguments 

  1. Are LGBTQ rights and religious freedom compatible?
    Article 18 of the Universal Declaration of Human Rights defines “religious freedom.” “Everyone has the right to freedom of thought, conscience, and religion; this right includes the freedom to change one’s religion or belief and the freedom to express one’s religion or belief in deification, practice, tutoring, and observance, whether one does so privately or publicly, alone or in community with others.” 

The term “LGBT rights” refers to the freedom of expression, association, and special autonomy that are all afforded to lesbian, gay, bisexual, queer, and ambisexual individuals, as well as the ability to live openly and without discrimination. “Social conflict involving religion” refers to aggressive behaviors by social groupings, associations, and private individuals that restrict religious practices and beliefs. These include acts of mob or insular violence, crimes driven by prejudice based on religion, altercations over conversions that end in violent altercations, the right to wear religious vestments, and various acts of intimidation and violence pertaining to religion, such as war and terrorism.

A lesbian is a woman who is drawn to other women sexually.
A man who is attracted to men sexually is said to be gay.
A bisexual person is attracted to people of both genders on a romantic and sexual level. The term “transgender” is used to describe a broad range of gender expression and individuality, including transsexuals, bisexuals, and cross-dressers.
A person who is attracted to several genders and whose gender identity or sexual orientation deviates from conventional social norms is considered queer. If they start a monogamous relationship, they believe they would lose their freedom to fornicate. 

In India, the topic of homosexuality has never been easy to discuss. One of the most prominent cosmologies established in the Rig Veda, which dates back to 1500 BC, discusses Thadani, which is related to the binary womanlike deities Dyva [2]. It symbolizes the joining of two women who may be viewed as sisters, lovers, mothers, etc. The idea of homosexuality is attributed to the sign of Yoni, which in old textbooks is depicted as two points of light that are womanlike twins. 

Three categories of gender prakriti, strip prakriti, and Tricia prakriti which are modern terms for man, woman, and third sex are described in the ancient sexology treatise Kamasutra. Gays and lesbians were further divided into the third sex. It demonstrates how attitudes about gender equality and love were more liberal and nonconformist in the past.

  1. Is there a correlation between religious freedom and higher or lower levels of religious conflict in society? 
  • Government policies, initiatives, and actions that restrict religious activities and beliefs are measured by the Government Restrictions Index (GRI). The 20 measures of limitations that make up the GRI include attempts by the government to outlaw some faiths, prohibit conversion, restrict preaching, or grant special status to one or more religious organizations.
  1.  Acts of religious hostility committed by private individuals, associations, or social groups are measured by the Social Hostilities Index (SHI). This covers the right to wear religious vestments for security purposes, terrorism or fortified conflicts linked to religion, as well as other types of intimidation or abuse related to religion. Thirteen social hostility measures are part of the SHI. According to Pew Research Center’s 12th annual assessment on global restrictions on religion, which looks at 198 countries and homes, social conflict involving religion, including violence and opportunity against religious groups by private individualities and groups, decreased in 2019. 
  2. Does support for LGBT rights increase or decrease in nations with highly developed levels of religious freedom?
    Compared to nations with poor support for LGBT rights, those with advanced support for LGBT rights have an average position on religious freedom that is 36 points higher. The score for religious freedom was 7.5 in the one-third of nations that supported LGBT rights the highest, compared to just 5.5 in the one-third of nations that supported LGBT rights the lowest. 

Elements that support LGBTQ equality [3]
The following indigenous values serve as the cornerstone of the community’s ongoing fight for legal parity: 

The equal protection of the law and the outlawing of any distinction based on a person’s gender, 

  1.  Satyanarayana Dasa, The Vedic View on Homosexuality, https://www.jiva.org/the-vedic-view-on-homosexuality/ (last visited Sep. 13, 2023).
  2.  Factors That Contribute to LGBTQ Equality, https://theamikusqriae.com/legal-position-of-lgbtq-rights-in-the-indian-judiciary/ (last visited Sep. 13, 2023).

sexual orientation, religion, or other disability.
• The freedom of speech and expression is valid to formally celebrate homosexuality in society; it also includes the right to form social and political associations to protest peacefully and speak publicly to punctuate LGBTQ issues. 

• The community is also granted the right to privacy, as it is up to each individual to make opinions about specific intimate relationships. 

Indian case laws and judgments passed in the history of the LGBTQ community 

A writ suit was filed in the Delhi High Court in Naz Foundation vs. Government of NCT Delhi [4], contending that section 377 is unconstitutional and infringes upon the abecedarian rights upheld in Articles 14, 15, 19, and 21 of the Indian Constitution. Additionally, Section 377 makes it more difficult to stop the gay community’s transmission of HIV and AIDS. Section 377 is illegal because it does not distinguish between activities that are private or public, consenting or non-consensual, according to the court’s landmark ruling in favor of the LGBTQ community. 

In Suresh Kumar Koushal & Anr. vs. Naz Foundation & Ors, the Supreme Court heard a challenge to the judge’s decision, despite the fact that it offered the LGBTQ community some optimism [5]. The court ruled that section 377 does not criminalize any community or identity and is therefore unlawful. It only recognizes comparable deeds that violate the natural order and would constitute an infraction if carried out. LGBTQ people’s life entered a dark period as a result of this ruling. In the case of the Union of India v. National Legal Services Authority (NALSA) [6], the shadows are lifted. In this regard, the Supreme Court ruled that transgender people are recognized as citizens of this nation under Article 14, which does not include the term “person.” The nation’s seminal case pertaining to transgender rights is the NALSA case. The court also established stringent rules that all states must adhere to in order to grant transgender people legal protection under the law in 

  1.  Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277 (Del HC)
  2.  Suresh Kumar Koushal & Anr v. Naz Foundation & Ors, Civil Appeal No. 10972 of 2013 (2013); National Legal Ser. Auth v. Union of India & Ors, Writ Petition (Civil) No. 400 of 2012 (2014).
  3. Union of India v. Nat’l Legal Servs. Auth. (NALSA), (2014) 5 S.C.C. 438 (India).

all areas of their lives. The highest court in India declared in Justice K.S. Puttaswamy (Retd) v. The Union of India [7] that everyone has the right to privacy, regardless of gender identity or sexual orientation. As a result, the bench upheld the LGBTQ community’s right to privacy and ruled that state authorities could not interfere with a person’s ability to practice homosexuality. 

The supreme court issued a historic ruling in Navtej Singh Johar v. The Union of India Ministry of Law and Justice [8], allowing all consensual sex, including homosexuality. The court additionally said that section 377 should not be used in opposition to the autonomy and dignity of any living person and that it violates articles 14, 15, 16, and 19(1) of the Indian Constitution.
The Supreme Court’s ruling in Shafin Jahan v. Asokan K.M. [9] declared that everyone has the fundamental right to select a partner of their choosing, including those of the same sex. 

THE CASE OF ‘GAURI SAWANT’ NATIONAL LEGAL Ser. Auth vs. Union of India & Ors. (2012- 2014) [10]

Gauri established the Sakhi Char Chowki Trust in 2000 to help the people of her community. The non-profit association provides comforting to ambisexual people and endorses safe sex practices in the community. She also fought for the adoption rights of ambisexual people. She came the first ambisexual 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 prompted the Supreme Court to fete transgender as the third gender. Gauri is also the goodwill minister of the Election Commission in Maharashtra. She has also worked to get introductory rights to the LGBTQ community. latterly, the NALSA made the third gender eligible to get Aadhaar cards.

  1. Justice K.S. Puttaswamy (Retd) v. Union of India and Ors., Writ Petition (Civil) No. 494 of 2012 (2017).
  2. Navtej Singh Johar v. Union of India Ministry of Law and …, Writ Petition (Criminal) No. 76 of 2016 (2018).
  3.  Shafin Jahan v. Asokan K.M. (2018).
  4.  National Legal Ser. Auth v. Union of India & Ors, Writ Petition (Civil) No. 400 of 2012 (2014).

METHOD

The method used in the research paper is primarily doctrinal legal research, which involves a detailed analysis of legal texts, case law, and secondary sources to understand and describe the legal landscape concerning the intersection of religious freedom and LGBTQ rights. This method is analytical and descriptive, focusing on interpreting existing legal materials to draw conclusions about the current state of law and its impact on society. The paper analyzes statutes, case law, legal principles, and doctrines. For instance, it reviews landmark cases like Obergefell v. Hodges and various Indian case laws such as Naz Foundation vs. Government of NCT Delhi and National Legal Services Authority vs. Union of India. The research extensively uses secondary sources like scholarly articles, legal documents, and reports to understand the current legal framework and its implications on LGBTQ rights and religious freedom. The paper operates within a legal theoretical framework, examining how laws and legal interpretations affect the rights of LGBTQ individuals and the principle of religious freedom. It describes existing laws and legal judgments, and provides an analysis of their impact on society, specifically on the intersection of LGBTQ rights and religious freedom.

SUGGESTIONS

To uplift the legal position of the LGBTQ+ community in India, several key strategies and actions can be pursued:

  1. Legislative Reforms: Advocate for comprehensive legislative reforms to recognize and protect the rights of LGBTQ+ individuals. This could entail the implementation of anti-discrimination laws that specifically forbid discrimination on the basis of sexual orientation and gender identity as well as the removal of discriminatory statutes like Section 377 of the Indian Penal Code.
  2. Policy Advocacy: Engage with policymakers and government officials to develop and implement policies that promote LGBTQ+ rights and inclusion across various sectors, including education, healthcare, employment, and housing. This may involve conducting research, building coalitions, and lobbying for policy changes at the local, state, and national levels.
  3. Legal Advocacy: Provide legal support and representation to LGBTQ+ individuals who face discrimination, harassment, or violence. This could involve establishing legal aid clinics, training lawyers and advocates on LGBTQ+ rights issues, and litigating cases to challenge discriminatory practices and laws.
  4. Public Awareness and Education: Conduct public awareness campaigns and educational programs to challenge stereotypes, dispel myths, and foster understanding and acceptance of LGBTQ+ individuals and communities. This could include workshops, seminars, and media campaigns aimed at raising awareness about LGBTQ+ rights and issues.
  5. Capacity Building: Build the capacity of LGBTQ+ organizations and community groups to advocate for their rights effectively. This could involve providing training, resources, and technical assistance on advocacy strategies, organizational development, and coalition building.
  6. Alliance Building: Forge alliances and partnerships with other social justice movements and marginalized communities to build solidarity and collective power. By working together, diverse groups can amplify their voices and leverage their resources to advance shared goals of equality and social justice.
  7. Legal Literacy: Promote legal literacy and empowerment among LGBTQ+ individuals and communities to ensure that they are aware of their rights and how to access legal remedies when those rights are violated. This could involve developing educational materials, conducting know-your-rights workshops, and providing legal information and referrals.
  8. Sensitivity Training: Provide training and sensitization programs for law enforcement officials, healthcare providers, educators, and other key stakeholders to ensure that they understand and respect the rights and dignity of LGBTQ+ individuals. This could help reduce discrimination and improve access to services and support for LGBTQ+ communities.

By pursuing these strategies and actions in a coordinated and sustained manner, it is possible to uplift the legal position of the LGBTQ+ community in India and advance towards a more inclusive and equitable society for all.

Conclusion

In exploring the intricate balance between religious freedom and LGBTQ rights, this paper navigates through historical contexts, legal frameworks, and societal dynamics to decipher where common ground exists and where tensions arise. As society evolves, so too do its interpretations of religious doctrines and human rights, often leading to clashes between tradition and progress.

The Supreme Court’s pivotal 2015 decision in Obergefell v. Hodges marked a milestone for LGBTQ rights, yet the journey towards full equality remains fraught with obstacles. The intersection of religious beliefs and personal freedoms has sparked contentious debates worldwide, manifesting in legal battles, social conflicts, and political standoffs.

Delving into the question of whether religious freedom and LGBTQ rights can coexist harmoniously, this paper illuminates the complexities inherent in reconciling deeply held beliefs with the imperative of equal treatment for all individuals. Historical precedents, such as ancient texts acknowledging diverse expressions of love and gender, offer glimpses of inclusivity amidst a backdrop of societal norms.

Analyzing the correlation between religious freedom and social conflicts involving religion reveals a nuanced landscape where government policies and societal attitudes intersect. While progress has been made in some regions, challenges persist, often exacerbated by entrenched biases and political considerations.

The way that LGBTQ rights are developing in nations with differing levels of religious freedom further emphasizes how intertwined these problems are. The likelihood of achieving real equality and inclusivity for all people, regardless of sexual orientation or gender identity, varies along with support for LGBTQ rights.

Through landmark legal cases and grassroots advocacy efforts, strides have been made towards recognizing the inherent dignity and autonomy of LGBTQ individuals. From challenging discriminatory laws to advocating for adoption rights and legal recognition, activists like Gauri Sawant have been instrumental in shaping the trajectory of LGBTQ rights in India and beyond.

In conclusion, the quest for balance between religious freedom and LGBTQ rights is an ongoing journey fraught with challenges and opportunities. As societies grapple with competing values and priorities, it is imperative to foster dialogue, empathy, and mutual respect to navigate towards a future where all individuals can live authentically and free from discrimination.