The institutions from British Colonialists still affect the community today in ways that enable discrimination against LGBTQ communities. Since 1835, sexual intercourse between persons of the same sex has been illegal under section 377 of the Indian Penal Code. Section 377 states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with [imprisonment for life] or with imprisonment of either description for a term that may extend to ten years, and shall be also liable to a fine…Penetration is sufficient to constitute the carnal intercourse”.
In 2009, Section 377 was contested but did not reach a final verdict by the Indian Supreme Court. This attempt only rendered backlash and reported police brutality and sexual harassment to this vulnerable community.
On September 6th, 2018, The Indian Supreme Court reached a verdict on Section 377 – decriminalizing the act of same sex. This was a monumental moment for India’s LGBTQ community.
Discrimination and hate crimes against the LGBTQ community and MSM individuals still persist today because lawful protections for these communities are missing. There are many reports of harassment and abuse against the community from the general public and the government. The International Gay and Lesbian Human Rights Commission (IGLHRC) reports show that police brutality in the form of violent attacks, unlawful arrests, and blackmailing, are common occurrences against the LGBTQ community in India.
In Tamil Nadu, where the SCHOD headquarters are located, “hijras” are recognized legally as a third gender which gives the group some civil rights. It is possible to get a third gender identity recognized in a passport and voting card, but there is no uniform national praxis.
Legal support for the LGBTQ community is still quite unknown. The taboo around this topic unfortunately continues to put LGBTQ individuals at high risk. It is important to remember that while male to male sexual relations are now legal, relationships are still not permitted. This means that men who have sex with men are still not allowed to legally or publicly have a loving relationship. According to both Indian law and societal norms, there is a difference between homosexuality, which would imply a loving relation and men who have sex with men, which would mean a purely sexual relationship.
Currently, sex operations are legal in India but are not funded by the government. Doctors in India are not trained in sex operations, which puts individuals at high risk of infection and complications in the future. Furthermore, doctors who support the LGBTQ community and will do a transition surgery are few and far between. Hence the issue of medical access to this community.
Since 1994, around 40 organizations that work for LGBTQ human rights have appeared. India’s LGBTQ movement is comprised of demonstrations and parades against discrimination and oppression, however numbers of participants still remain low due to fear. During the last few years, film festivals with LGBTQ themes have been held and newspapers and websites for LGBTQ advocacy have started. The first Pride parade in India was first held in Calcutta in 2003 where a hundred persons participated. During the spring of 2009, parades were held in Bangalore, Calcutta and in New Delhi, the first parade held in the capital. The biggest Indian parade was held in January 2011 in Mumbai with 3000 participants.