ABSTARCT
This paper aims to provide a comprehensive exploration of homosexuality in contemporary society, shedding light on the diverse experiences, challenges, and contributions of individuals identifying as homosexual. By examining the multifaceted aspects of homosexuality, including its social, cultural, and psychological dimensions, this study seeks to foster a deeper understanding and appreciation of the complexity of human sexuality. This paper also provides a comprehensive analysis of the ongoing discourse surrounding homosexuality. It delves into the viewpoints of the petitioner and respondent in key legal cases, as well as the author’s personal perspective. By examining the historical context of homosexuality, societal attitudes, and legal developments, the paper aims to offer a nuanced understanding of the topic. The exploration of landmark cases and relevant legislation provides a framework for understanding the challenges faced by the LGBTQ+ community. Ultimately, the paper encourages an open dialogue that promotes acceptance, equality, and respect for diverse sexual orientations, while acknowledging the significance of historical milestones in the fight for LGBTQ+ rights.
It examines the historical and psychological context of homosexuality, tracing its evolution from marginalized status to greater acceptance and legal recognition in many parts of the world. Furthermore, the paper investigates the social and cultural factors that shape and influence the experiences of homosexual individuals, including societal attitudes, religious beliefs, and legal frameworks. By fostering awareness and acceptance, it aims to contribute to orientation.
By highlighting the voices and experiences of marginalized communities within the broader spectrum of homosexuality, this research seeks to amplify their narratives and promote social justice.
KEY WORDS
Homosexuality, Lawrence v. Texas, stonewall riot, sodomy, adoption, marriage.
INTRODUCTION
In recent decades, discussions surrounding human sexuality have gained significant momentum, sparking a paradigm shift in societal attitudes and understanding. Among the many facets of human sexuality, homosexuality has emerged as a topic of profound significance, challenging long-standing norms, and fostering a much-needed dialogue on diversity and inclusion. This paper aims to delve into the multifaceted dimensions of homosexuality, shedding light on its various manifestations, experiences, and implications in today’s world. Before getting directly into the nuance of homosexuality firstly we need to know what exactly homosexuality is so, Homosexuality refers to sexual or romantic attraction, affection, or behaviour between individuals of the same sex. It is a natural variation of human sexual orientation and is considered one of the dimensions of human sexuality. Homosexuality can be experienced by both men and women, and individuals who identify as homosexual are commonly referred to as gay (for men) or lesbian (for women).([1]) Sexual orientation, including homosexuality, is believed to be a complex interplay of biological, genetic, hormonal, and environmental factors. It is important to note that homosexuality is not a choice or a lifestyle; rather, it is an inherent aspect of a person’s identity.
Homosexual individuals may form deep emotional and romantic connections with individuals of the same sex, and their attractions, desires, and relationships can be as meaningful and fulfilling as those experienced by heterosexual individuals. These attractions can encompass emotional, sexual, and/or romantic feelings and can manifest in various ways, just like in any diverse range of human relationships. Let’s know more about the history of Homosexuality.
RESEARCH METHODOLOGY
Through an interdisciplinary approach, this research draws upon a range of scholarly literature, empirical studies, and personal narratives to unveil the intricacies of homosexuality.
REVIEW LITERATURE
(a) “Coming Out and Disclosure: LGBT Persons Across the Life Span” by D’Augelli (2006): This review paper examines the processes and implications of coming out as lesbian, gay, bisexual, or transgender (LGBT), exploring the psychological and social factors involved.
(b) “Global Perspectives on Same-Sex Marriage: A Neo-Institutional Approach” by Borrelli and Armstrong (2016): This study examines the global discourse on same-sex marriage, analysing the factors influencing the legalization and recognition of same-sex unions in different countries.
(c) “Global Perspectives on Same-Sex Marriage: A Neo-Institutional Approach” by Borrelli and Armstrong (2016): This study examines the global discourse on same-sex marriage, analysing the factors influencing the legalization and recognition of same-sex unions in different countries.
HISTORY
Understanding the history of homosexuality allows us to appreciate the struggles, milestones, and complexities surrounding the LGBTQ+ community’s pursuit of equality and acceptance. By examining historical narratives, we can foster empathy, challenge prejudice, and work towards a more inclusive and understanding society.
The history of homosexuality is a complex and diverse subject that has evolved over centuries, reflecting changing cultural, social, and legal attitudes towards same-sex relationships. While the understanding and acceptance of homosexuality have varied across different cultures and time periods, homosexuality itself is a deeply ingrained aspect of human nature.
In ancient civilizations such as ancient Greece and Rome, same-sex relationships were acknowledged and sometimes celebrated. Homosexuality was often integrated into religious and social practices, and it was not uncommon for prominent figures to engage in same-sex relationships. However, these societies also had their own specific norms and expectations regarding gender roles and power dynamics within same-sex relationships.
With the rise of Christianity and the spread of Abrahamic religions, attitudes towards homosexuality began to shift. Homosexuality was increasingly condemned as sinful, immoral, and unnatural. Religious doctrines and societal norms played a significant role in shaping negative perceptions and stigmatization of same-sex relationships. This condemnation continued throughout the Middle Ages and into the early modern period.
During the 19th and 20th centuries, medical and psychological theories emerged attempting to pathologize homosexuality. These theories classified homosexuality as a mental disorder or deviant behaviour, leading to discrimination, persecution, and attempts to “cure” individuals of their same-sex attractions. One of the fine examples is of the famous author “Oscar Wilde” ([2]) who was a homosexual. Oscar kept his homosexuality hidden for obvious reasons. He was married and had two children. In 1891, he began an affair with Lord Alfred Douglas, a young British poet and aristocrat sixteen years his junior.
The Marquess of Queensberry, Lord Douglas’s father, was outraged when he discovered their romance. He made the decision to expose Oscar. Because homosexuality was a criminal offence in England at the time, this completely damaged Oscar’s public image. In 1895, he was charged with gross indecency after being accused of having an affair with a British aristocracy. It was not until the mid-20th century that movements advocating for LGBTQ+ rights began to gain momentum.
One of the landmark incidents that acted as a catalyst for the struggle of the status of homosexuality. The “Stonewall riots of 1969”([3]) marked a turning point in the LGBTQ+ rights movement. It was a series of spontaneous demonstrations by members of the LGBTQ+ community in response to a police raid at the Stonewall Inn, a gay bar located in New York City’s Greenwich Village. The event is widely regarded as a pivotal moment in the history of the LGBTQ+ rights movement in the United States.
During the 1960s, LGBTQ+ individuals faced widespread discrimination and harassment, and homosexuality was criminalized in many parts of the country. The Stonewall Inn, like other gay bars at the time, was a safe haven for the LGBTQ+ community, offering a space where they could socialize and be themselves. On the night of June 28, 1969, a routine police raid was conducted at the Stonewall Inn. However, instead of complying quietly as had often been the case, patrons and neighbourhood residents resisted the arrest and harassment by the police. The crowd’s frustration and anger over ongoing police harassment, combined with their sense of community and solidarity, sparked several days of protests, clashes, and demonstrations. The protests following the raid at Stonewall Inn are significant because they marked a turning point in the LGBTQ+ rights movement. They galvanized the community and led to the formation of activist organizations and the emergence of a more visible and vocal movement advocating for LGBTQ+ rights.
The events at Stonewall Inn were followed by the first gay pride parades, which were held in New York City and other cities to commemorate the anniversary of the riots. These parades have since become an annual tradition, known as Pride Month, celebrating LGBTQ+ identities, advocating for equality, and raising awareness about the ongoing struggles and achievements of the LGBTQ+ community.
The Stonewall riots are widely regarded as a catalyst for the LGBTQ+ rights movement, inspiring subsequent activism, advocacy, and legal reforms that have contributed to greater recognition and acceptance of LGBTQ+ individuals and their rights in many parts of the world.
Following this event, there was a growing push for recognition, equality, and legal protections for individuals with diverse sexual orientations. Over the years, numerous countries decriminalized homosexuality and enacted anti-discrimination laws. Landmark legal cases, such as the United States Supreme Court’s ruling in Lawrence v. Texas (2003) and Obergefell v. Hodges (2015), have played a pivotal role in advancing LGBTQ+ rights and legal recognition of same-sex relationships.
However, it is important to note that despite significant progress in many parts of the world, LGBTQ+ individuals continue to face discrimination, social stigma, and legal challenges in numerous countries. The fight for LGBTQ+ rights and acceptance remain ongoing, with ongoing debates surrounding issues like same-sex marriage, adoption rights, and transgender rights.
STATUS IN INDIA
Homosexuality as a concept still holds lots of stigma in India as these people are not considered same as normal people. Earlier people use to consider this as a disorder or use to ask the homosexual people to shed their feelings away or they were even boycotted from the society itself. Even after the de-criminalisation of homosexuality in India in 2018 which was a result of more than 2-decade long struggle, people don’t treat homosexual as equal, they are still discriminated. Rules related to adoption, guardianship, personal law still act as a hurdle in the life of homosexuals to live a normal life. Despite the landmark judgements like of National Legal Services Authority v. Union of India, Navtej Singh johar v. UOI, and Justice K.S. Puttaswamy v. Union of India (Puttaswamy) which provided basic human rights to the LGBT community, laws in India still remains hostile towards them as there is a lack of legislative measures. It is quite evident from the discriminatory rules such as non-recognition of same sex marriage, adoption etc. But the rights which LGBT community have this time is not a one-day struggle but the result of whole lot of judicial upheaval. Case like NALSA v. UOI, Navtej singh johar v UOI, justice KS Puttaswamy v UOI, Naz Foundation Govt. v. NCT of Delhi, Suresh Kumar Koushal vs Naz Foundation, lead to the evolution of LGBT rights in India. Now we will deal with these cases in brief to understand the evolution of LGBT community rights in India.
- Naz Foundation Govt. v. NCT of Delhi ([4])
Background: In Lucknow in 2001 there was a raid in a park were few men arrested on suspicion that they are homosexuals. Police arrested few other people of an NGO. They were denied bail on the ground that they are running a sex racket. Then a Legal organisation named The Lawyers Chamber came into picture and then they were released. After there release an NGO named Naz Foundation along with the lawyers chambers filled a petition in Delhi high court on questioning the constitutionality of section 377 of IPC.
Judgement: In 2009, it was held in this case that section 377 act as an interference in someone’s personal life as it is in direct violation of article 14,15,19,21 of the constitution.
- Suresh Kumar Koushal vs Naz Foundation ([5])
Background: Various groups were against the constitutionality of section 377 as they considered it against their moral and ethical values. So, they appealed in SC to reconsider the decision.
Judgement: In 2013, decision of Delhi High Court was overruled by the Supreme Court which again re-criminalised homosexuality. This led to increase in activism as this decision was an attack on the rights of homosexuals.
- National Legal Services Authority v. Union of India ([6])
Background: In these protests transgender community were the most sufferers among the whole LGBT community as they were less educated or were from poor background
Judgement: In this case transgender were given the criteria of third gender as earlier they have had to chose between men and women but now, they can identify themselves as third gender. There were many others decision of supreme court that acted in favour of LGBT community.
- Navtej Singh Johar V. Union of India ([7])
Background: After overruling the Delhi High Court Judgement in 2013, Homosexuality was again criminalised. This gave rise to series of protests which even included some high profiles names like dancer Navtej Singh Johar, Ritu Dalmia etc. They came forward and filled a petition in supreme court against section 377 of Indian penal code.
Judgement: In this case section 377 was declared unconstitutional as it acted as an infringement on the fundamental right of privacy of an individual. It decriminalised homosexuality by reading down the section 377 and decriminalised the consensual intercourse between same gender. In this case judgement of koushal Singh case was highly criticised and declared irrational.
Apart from all these cases there is an important bill that was brought in 2019 to improve the condition of homosexuals in the society. As per the 2011 census there are more than 4 lakh transgenders in India but despite of this number they are still discriminated or humiliated in the society for being transgender.
In December 2018 Lok Sabha passed a bill titled “Transgender Persons (Protection of Rights) Bill, 2016” which defined the word transgender and tried to eliminate the discriminate which transgender face in case of employment, education, healthcare, public facilities etc.
This bill defines transgender as someone whose gender doesn’t match with the gender which was assigned to them at the time of birth i.e., men or women. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra. This bill also talks about gender identity certificate which will be given by district magistrate indicating the gender as “transgender”. It also provides for the establishment of “National council for transgender person”. This bill is not considered a success as it provide less penal for certain offence like sexual abuse against transgenders. It is also questioned on the point of gender identity certificate as it doesn’t provide provision for self determination of gender. Here comes the main point of concern i.e., implementation. Even if a bill is too good but not implemented properly then there is no use of making even an extraordinary bill.
Rights related to marriage
Despite the decriminalisation of homosexuality, till date same sex marriage has not been decriminalised. Right to marriage has not been explicitly given in constitution but it was given in case of Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522([8] ) that it a part of right to life under article 21 of constitution and a person have right to choose person of their own choice for marriage. Special marriage act was brought in 1954 to provide legal protection to marriage out of one’s own religion, country etc., but till date its not openly acceptable as in many cases couples are killed, harassed by their own parents, society. Its quite evident from this that merely passing judgement or bills would not suffice as its implementation would be the most important aspect to rely on. The decriminalisation of section 377 was not the end of activist’s struggle as they have to fight many more battles to get the homosexual’s rights recognised. There were few instances where same sex marriage was upheld by the court itself one of the fine examples is of Madras high court where in 2019 after decriminalisation of homosexuality a marriage between a trans women and biological men was recognised and was directed to register their marriage. Certain changes like amending the existing laws or to bring a whole new law to recognise the same sex marriage. These laws should be made gender neutral so that there is no discrimination and also homosexuals will be able to get the perk or benefits which other spouse get.
Rights related to adoption
In India adoption is governed both by religious as well as secular law. Under Hindu religion we have laws related to adoption but for Christian, Muslim, Parsis we don’t have separate personal law. But the secular laws which we have are discriminatory against homosexual as only a couple who have been in a stable relationship for at least two years are allowed to adopt a child, according to Regulation 5(3) of the Adoption Regulation Act of 2017. Furthermore, the clause employs the terms “husband” and “wife,” implying that same-sex couples do not have the right to adopt. Also, as there is a different set of adoption standards applied to men and women, the applicability of such laws to trans-couples will be ambiguous. Furthermore, in light of the NALSA decision, people have the right to select their gender and undergo sex reassignment surgery. Thus, if a woman adopts a kid but then undergoes sex change and becomes male, there is no certainty about the legal implications.
There is no doubting that adoption is a complicated topic, and because of anti-trafficking legislation, even heterosexual couples have difficulty adopting a kid. However, a heterosexual couple can apply for adoption, whereas same-sex couples are not even permitted to adopt.
Another reason for restricting couples of the same sex to adopt is that every child must understand the importance of both a mother and a father. As a result, same-sex couples should be denied the right to adopt so that the child is not reared in an “inferior family.” What is paradoxical is that the legislation allows a child to be raised as an orphan without both parents rather than being raised by homosexual and trans couples.
Disturbingly, the legislation continues to bar LGBTQIA+ couples from adopting a child, despite the fact that India has over 19 million orphans and abandoned children, the majority of whom live in deplorable conditions. Another issue is that because same-sex marriages are not legal in India, homosexual couples cannot adopt a kid together.
CASE LAW
- LAWRENCE V. TEXAS ([9]) – Lawrence v. Texas was a landmark United States Supreme Court case in 2003 that struck down the sodomy law in Texas and, by extension, invalidated similar laws in 13 other states. The case revolved around the constitutionality of a Texas statute that criminalized same-sex sexual activity between consenting adults, commonly referred to as “sodomy laws.” In 1998, John Lawrence and Tyron Garner were arrested and charged under the Texas statute after police officers entered Lawrence’s home and discovered them engaged in intimate sexual conduct. The men were convicted of deviate sexual intercourse, a misdemeanour offense, and were fined. Lawrence and Garner challenged the constitutionality of the law, arguing that it violated their right to privacy and equal protection under the Fourteenth Amendment of the United States Constitution. The case eventually made its way to the Supreme Court, where the majority opinion, delivered by Justice Anthony Kennedy, held that the Texas statute violated the Due Process Clause of the Fourteenth Amendment. The Court ruled that the state’s interest in regulating private sexual conduct between consenting adults did not justify the intrusion into their personal and private lives. The decision effectively overturned the Court’s previous ruling in Bowers v. Hardwick (1986), which had upheld the constitutionality of sodomy laws. The Lawrence v. Texas decision had significant implications for the LGBTQ+ community and the recognition of their rights. It not only invalidated sodomy laws in Texas and other states but also established a precedent that laid the foundation for subsequent legal victories in favour of LGBTQ+ rights, including the recognition of same-sex marriage in the landmark case Obergefell v. Hodges (2015). The Lawrence ruling recognized that intimate consensual sexual activity between adults is a private matter protected by the fundamental right to privacy. It marked a significant step towards decriminalizing homosexuality and challenging discriminatory laws and practices against LGBTQ+ individuals. The decision played a crucial role in shaping the legal landscape for LGBTQ+ rights in the United States, promoting greater equality, dignity, and acceptance for sexual minorities.
SUGGESTIONS
Bringing about positive changes in the lives of homosexuals requires a multifaceted approach that addresses legal, social, and cultural aspects. Governments should enact and enforce comprehensive anti-discrimination laws that protect individuals based on sexual orientation. This includes ensuring equal rights in areas such as employment, housing, healthcare, and adoption. Legal recognition of same-sex marriages and partnerships, as well as the extension of benefits and protections to same-sex couples, is crucial in promoting equality. Education systems should also incorporate comprehensive sex education that includes discussions on sexual orientation and diverse identities. This can help dispel myths, reduce prejudice, and foster understanding and acceptance of homosexuality from an early age. Raising awareness through public campaigns, media, and community outreach programs can also play a significant role in challenging stereotypes and promoting inclusivity. As homosexual individuals often face higher rates of mental health issues due to societal stigma and discrimination. It is vital to provide accessible and inclusive mental health support services that cater to the specific needs of the LGBTQ+ community. This includes training healthcare providers to be sensitive to the unique challenges faced by homosexual individuals and offering resources for counselling and support groups.
CONCLUSION
At last, it is crucial to recognize that homosexuality is a normal and natural variation of human sexuality, deserving of respect, acceptance, and equal rights. In many parts of the world, progress has been made toward greater societal acceptance and legal recognition of same-sex relationships as in more than 30 places around the world same sex marriage is legal. ([10]) However, discrimination, prejudice, and social stigmatization continue to persist in various societies, highlighting the ongoing need for education, advocacy, and inclusivity to create a more equitable and supportive environment for individuals who identify as homosexual.
Name-Sonam
College- Hidayatullah national law university
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