Rainbow Charter | How the International Community is Moving beyond Decriminalising Homosexuality

Rainbow Charter is a column on international law and queer rights, with a keen focus on macro international law as well as deeper micro LGBTQ laws. This column also maps the current LGBTQ laws based on geographic regions and also aims to summarise progressive LGBTQ judgements from around the world and how it shapes the international context.

Recently, the Supreme Court of India decriminalised Section 377 of the Indian Penal Code. While this judgment, by itself, is monumental in affirming the individuals’ right against discrimination on grounds of sexual orientation, concerns relating to its true scope continue to remain. To believe that the rights of the community have been vindicated simply because of decriminalising homosexuality would be a misstep in understanding the holistic approach necessary to be adopted to truly integrate and promote their interests. For instance, without the right to be legally wedded as a couple, the same-sex couple is at an obvious disadvantage when compared with heterosexual ones; without a comprehensive law detailing adoption by same-sex couples, their right to have a family remains unfulfilled; without stringent punishments against those who commit hate-crimes against persons of this community, they still remain largely vulnerable with little to no viable recourse available to them.

Decriminalisng homosexuality in isolation, without recognizing them as first-class citizens entitled to the same rights as others would be tokenistic. International jurisprudence on this is responding to this concern through the passage of remarkable judgments being delivered by several international organizations such as the European Court of Human Rights (ECHR) and countries’ apex courts.

LGBTQ and Hate Speech

Recently, the ECHR in the case of Identoba and others v. Georgia, was unique in observing that violent and abusive treatment of individuals of the LGBTQ meeting peacefully amounts to a violation of Article 3 of the European Convention on Human Rights. Article 3 of the Convention secures the rights of all individuals against torture, inhuman treatment and punishment. This was read along with Articles 14 and 11 dealing with the right to equality and the right to freedom of association respectively. This observation of the Court is relevant specifically for the recognition that assault and insults on grounds of sexual orientation is more severe than discrimination – it amounts to torture.

Closer to home, Justice Indu Malhotra in her judgment in Navtej Singh Johar aptly put it – History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. Similar reasons formed the basis for the passage of the SC and ST (Prevention of Atrocities) Act, 1989. Considering the dreadful experiences of the members of the community, it was imperative that a separate legislation be made addressing issues concerning them exclusively. Therefore, the passage of the new Transgender Bill, 2016, although having more flaws than benefits, in relation to the criminalising and dehumanising treatment against the LGBTQ community is a step in the right direction.

Legal recognition for same-sex couples

An important and obvious element of decriminalising homosexuality is granting them legal recognition as a couple should they wish to be so recognised. Leaving aside the discrimination faced by the community in the hands of the society despite existing legal mandates, legally too, this issue has not been completely tackled. That is to say that despite the right to equality being fundamental, the law in many countries, in their present form, does not afford the same rights available to heterosexual couples to same-sex couples. In such cases, intervention by supranational bodies such as the ECHR can be hugely beneficial as they have the power and authority to surpass and eliminate existing legal disabilities coming in the way of same-sex couples who wish to obtain legal recognition for their union.

In one such case, namely Taddeuci and McCall v. Italy, the Apex Court of Italy refused to acknowledge the status of a same-sex unmarried partner as a family member. When one of the partners wished to move to Italy in order to be closer to his partner who is an Italian national, the Court refused and declined his request to obtain a visa on family grounds. Given that generally, in Italy, unmarried partners are given the status of family members and that same-sex marriages are legal, this was in clear contravention to the right to equality along with the right to the privacy of one’s home and family life and therefore discriminatory. On an application being filed before the ECHR, by relying on a former judgment, it sided with the applicants and upheld the Articles 14 and 8 of the European Convention of Human Rights.

Adoption and Same-sex Couples

The lack of legal recognition given to same-sex couples also hinders their eligibility when it comes to adoption in India. According to the law as it presently stands, a child can be adopted by a married couple or by single individuals only. Considering that same-sex couples cannot be recognised as married, it can be concluded that they are also prohibited from adopting. Individually, however, there is nothing in the law prohibiting a person belonging to the LGBTQ community from getting registered in the process of adoption. Laws such as these prevent same-sex couples from starting their own families on their terms – a right that is available to all heterosexual couples. Marriage being the precondition to adopt as a couple, the lack of marital status puts them at an obvious disadvantage.

In another landmark judgment, the United States Supreme Court, in the year 2016, upheld the right of same-sex couples to adoption thereby awarding them with the same parenting rights as heterosexual couples. The lack of adoption and parenting rights being granted to same-sex couples is premised on the misconceived notion that they are, by the nature of their relationship, unfit to be parents. Even though the United States Supreme Court in Obergefell legalised same-sex marriages and awarded the community all civil rights that come along with the marital status, the question of abortion rights were affirmed again in this case.

These judgments pave the way ahead for India where the jurisprudence on Queer rights is still nascent. However, the road ahead seems steep – especially considering that all the rights discussed above can be introduced more ably by the Parliament and not so much by the Judiciary. With the recent dismissal of the petition demanding civil rights for the community and India’s abstention from voting on LGBTQ rights at the United Nations, the community still remains vulnerable – exposing once again, the pitfalls of the Section 377 verdict.

Uttanshi Agarwal is a Research Associate with the Feminist Justice vertical at One Future Collective.

Disclaimer: Views shared in this article are personal and may not represent that of the organisations.