Author: Iqra Siddiqui, LL.M.
BEYOND THE HORIZON OF IDENTIFICATION: ISSUE OF NON ACCEPTANCE OF LGBTQ WITH REFERENCE TO SOCIOLOGICAL THEORIES AND INDIAN LEGAL FRAMEWORK
Gender identity and sexual orientation are the concepts which have been in controversy over a long time period. Sexual orientation reflects the sex of the person to whom one is attracted, sexually and romantically while the term Gender Identity describes an individual’s inner sense of belonging to the male or the female gender category. This Article critically analyses the reasons pertaining to non acceptance of LGBTQ’s sexual orientation in context of the Indian society with special reference to the Gender Socialization Theory, Functionalist Theory, and Labeling Theory of sociology. Further, the article claims that mere identification does not amount to acceptance. The claim is established by analyzing the shortcomings of the Indian legal framework. The law can pave a way for social inclusion of the marginalized LGBTQ community in the Indian society, if it is framed as per the need of the hour. The Indian Society is constantly evolving and the law must evolve with it, in order to redefine its nature and composition.
Identification is the first step towards recognition. One of the major factors designated, to assign a person’s identity, is the gender of that person. This determination is made at the birth of a child and accordingly a generalization of choices begins. The nursery is painted blue or pink leaving no option for a rainbow to spring.
Gender stereotyping is a frequently observed in all the dimensions of Indian society irrespective of culture, religion or origin. It has a keen association with the sexual orientation of an individual. The LGBTQ individuals become prey to this gender stereotyping of the society. A LGBTQ person’s sexual orientation starts getting challenged, as soon as hormonal changes occur at the age of puberty. A state of complete dilemma leaves these teenagers in an unusual distress regarding their sexual orientation not falling in conformity with their identity.
HARMONIZING GENDER IDENTITY AND SEXUAL ORIENTATION
Gender Identity was coined as an expression in middle of 1960’s as describing a person’s inner sense of being a male of a female and henceforth belonging into the respective category. This concept further evolved over time to involve those people who do not identify themselves in either of the aforementioned categories. Persons self perceived gender, irrespective of their biological sex, is Gender Identity. Sexual orientation is a term relating to the sex of those individuals towards whom one is attracted, sexually and romantically.
These concepts are severely misunderstood by the Indian society and hence the LGBTQ are treated as “the odd one out”. Homosexuality is considered as a defect or disease and many a times people try getting it cured through medication, meditation or spiritual means. The issue begins with a person realizing a sense of belonging to the homosexual community and the challenge of accepting it as a reality. Homosexuals harmonize their gender identity with their sexual orientation diversifying themselves from the clutches of a heterosexual society.
SOCIOLOGICAL THEORIES ENCIRCLING HOMOSEXUALITY
GENDER SOCIALIZATION THEORY- This theory is based on the procedure or technique, males and females learn to be masculine or feminine through primary group interactions/ family and the way they are socialized into “traditional” gender roles. Implying this theory, a newborn is treated either as a male or as a female child. As per the general practice, men are expected to display strength and courage in every situation whereas women should have traits like grace and beauty. This construct is implied on every individual and it becomes a guiding light of day to day conduct. This socialization occurs at every phase of life irrespective of the social agents one is surrounded by.
FUNCTIONALIST THEORY- Society is treated as an interrelated structure, like a social institution, with specific functions which are put together by applying consensus for letting the society function properly and to reproduce itself.  If any part of the society fails to work properly, the entire organism looks for a way to correct it so that the equilibrium is attained. In simple words, if there is any behavior, conduct/ practice that is perceived to be interfering the social structure, society will look for a way applying shared norms and values, to discard it.
LABELLING THEORY- This theory is based on the idea, that behaviors become deviant only when society labels them so. The members of the society, who decipher certain conducts as deviant or bizarre, and then label individuals based on their understanding of deviance or non deviance. This theory focuses on, what labels are applied on whom and by whom, why are they applied and what is the consequence of such labeling.
SIMILITUDE WITH INDIAN SOCIETY
Family is considered to be the smallest unit of a society. The definition of family has changed from time to time but in generally the tradition and legal understanding of family is limited to married couples with children. India adheres to this understanding, which becomes a major hindrance, in acceptance of LGBTQ’s sexual orientation. Here, only a male and female are considered eligible to be a couple.
Since birth a person’s gender is socialized and accordingly that person is expected to behave. If a man fails to show masculinity, he is shamed. If a woman does not display femininity, she is boycotted. The traits assigned to genders should be reflected in a person’s behavior, to be included in the society. Those who fail to comply by these traits are considered as ‘flawed’. Who does what, is based on a command, not a choice. Stereotypes like: Homosexual couples cannot be an eligible parent are entangled in the Indian society. If a person is perceived to be incapable of fulfilling a social role, then that person will be eliminated from the social structure, irrespective of that person’s capability of fulfilling that role.
The major function of a family, in a society, as per the functionalist, is to reproduce and expand. The LGBTQ’s relationships are discarded by the Indian society, basically because they cannot reproduce and hence does not lead to development. Neither they contribute to the stability nor do they maintain the social solidarity, in the society. Indian society being governed by religious laws, do not recognize marriages between same sex couples.
Homosexuals carry labels given by the society, of having low moral values, sexually incapable or psychologically incapable. They are considered deviant just because their sexual orientation is different from the mainstream. This impacts the life of homosexuals so drastically that, they generate a lower self esteem, leading to lack of confidence, affecting all arenas of their life.
SHORTCOMINGS OF INDIAN LEGAL FRAMEWORK: A MAJOR FACTOR FOR NON ACCEPTANCE OF LGBTQ
The fight for recognition was won by the LGBTQ, with the Partial decriminalization of section 377 I.P.C. This judgment removed one of the major difficulties, faced by homosexuals. Now, their identity is not criminalized; being a homosexual is now legal in India. But, is recognition, all that is needed, for a fulfilling life?
The transgender persons (protection of rights) Act, 2019, includes trans-men, trans-women, persons having inter sex variations, individuals having socio cultural identities and gender queers within the definition of transgender persons. Though there is a lot of diversity within the homosexual community, still the act shadows it and portrays the entire community under a narrower term ‘Transgender Persons’. The Act confers anti discriminatory rights and certain beneficial entitlements in areas of education, employment, health and welfare of transgender persons. It also provides for ‘self perceived gender identities’ yet it requires the transgender persons, to obtain a certificate of identity from the District Magistrate. The Act fails to make it clear, how transgender person will be treated under Indian civil and criminal laws, as they recognize only male and female gender.
“A marriage is solemnizes between a male and a transwomen, both professing Hindu religion, is a valid marriage in terms of section 5 of Hindu Marriage Act, 1955 and the Registrar of Marriage is bound to register the same.” Arunkumar and Another v The Inspector general of registrar and Ors, WP (MD)No.4125 of 2019 and WMP( MD) No.3220 of 2019,Madras High Court (2019).
The court in this case, recognized a transwoman as a ‘bride’ under section 5 of Hindu Marriage Act, referring to self determination, individual autonomy and the freedom of self expression, summing up a transgender person’s right to marry, the Madras High Court recognized it as the first case of transgender marriage in India.
The Matrimonial laws still do not include marriages between the homosexuals and are dependent on a legislation which could grant the homosexuals, Right to Marry ,as already declared by the Madras High Court, a right within article 21 of the Constitution. If this right is granted, by way of legislation, it will lead to break further barriers for the homosexuals which will eventually bring them out of the stigma attached to their existence.
Indian laws are prejudiced against homosexuals in terms of Adoption and Surrogacy Rights. They are deprived of the privilege, to have a family. They cannot adopt nor can they be surrogate parents. The Gender Socialization theory is so deep rooted in the Indian society that it diminishes the possibility of operating the functional theory for the homosexuals. In spite of the technological developments like surrogacy, homosexuals remain childless and despite of so many orphans being parentless, the homosexuals cannot adopt.
TO MOVE BEYOND THE HORIZONS: IMMIDATE REQUIREMENT OF AN EVOLVING SOCIETY
As a country, India is still under the tag of “developing” and “evolving” but the determination cannot be solely limited to the per capita income or standard of living. A country will actually show growth by breaking the bondages which weigh it down. The basic understanding of human rights, need to develop. The discriminatory mindset needs to evolve. If legislations grant the LGBTQ, basic rights like Marriage, Adoption and Surrogacy, this will be a great leap towards social inclusion of these marginalized groups.
Indian society has developed over time, through change, yet it is threatened, by change. It has accepted the diversity on cultural, linguistic and religious grounds, which is manmade, but is not ready to accept the diversity of Nature, in form of LGBTQ. The fear of breaking the social structure, which is also manmade, makes it unsusceptible to the idea of change. The country preaching “unity in diversity” fails to acknowledge a slight variation in its own kind.
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