POSITION OF SEXUAL MINORITIES ININDIA AND USA: A COMPARATIVE ANALYSISIntroduction:Oneof the biggest concerns in today’s progressive society is the heavy encroachmentof human rights. Even though development of society is a continuous andincreasing trend today, it is proving to be ineffective in guaranteeing basicand uniform human rights to every individual irrespective of their identity.Human right laws and agencies aim at the prevention of such violation and tosecure even rights to all as human rights are very basic in nature and shouldbe enjoyed by all regardless of their age, sex, caste, nationality, creed etc.yet there exists disparities in observing such laws and warranting such rightsand the sexual minorities have been found as the frequent and perpetual victimof such intolerance. Welive in a society which often tends to discard anything that doesn’t strictlyadhere to the common perception of most individuals. As a result,heterosexuality has become the median of forming opinion and common consensusof sexual orientation and homosexuality or any other sexuality which doesn’tconform to such belief is considered improper or inappropriate.
Consequence ofsuch has been seen through behavioral disparities towards them in workplace,public domain and in ensuring rights to them.Despitethe huge wave of human rights activism and upliftment of the minority category,the position of the sexual minorities remains stagnant if not worse in somecountries. Where we see in some parts like USA LGBT rights have been madeavailable through colossal struggle, we also find places like Africa whichremain regressive when it comes to such recognition and to the extent of criminalizingsuch practices. Therefore prejudice towards the sexual minorities haveprevailed through ages and continue to halt the progress of humanity. Humanrights development framework employed by many International Agencies is knownas capabilities approach1.
Under this, the progress plan is to increase the human capabilities whichinclude making a living, access to education, having full health etc. Thesimilar approach can be used by the sexual minority community to generatedevelopment scheme.2 Critical Human Rights Concerns Related ToSexual Orientation and Gender Identity and the Challenges Faced:Whereon one hand the entire world is struggling for equal rights of women or upliftmentof the minority or underprivileged groups, on the other hand blatant violationof human rights on the footing of sexual orientation nonetheless continues tobe a stark and distressing reality. They continue to face hindrance in securingthe basic human rights for them and encounter restrictions in various facadesof life. From education to securing justice to privacy or even in as basic asright to full health to which every human being is entitled by virtue of beinga human, sexual minorities often find them in a deprived condition. Throughthis sub-head let me throw light on some of critical human rights concerns.· Rightto privacy:Rightto privacy accorded to heterosexuals is in wide contrast to the homosexuals.
Homosexual actions are banned in numerous countries which attaches a socialstigma.3 Itis also observed that the age limit for consensual homosexual acts is higherthan that of consensual heterosexual acts compelling them to veil their realidentity in fear of vexation and harassment.4· Rightto Human and Personal Security:Denialof the basic human right of personal security is not only ruthless but alsocruel in the face of humanity. No one should be subjected to the constant fearof persecution and being singled out. Sexual minority groups face the wrath oflaw because of the criminalization of homosexuality to the extent of deathpenalty in some of the countries.5Therefore it is needless to say that it is a gigantic intrusion of a majorright which clearly indicates the meager status of the sexual minoritybrackets.· Rightto Physical and Mental Health:Ignoranceand lack of adequate training of the physicians often lead to poor healthassessment of these minority brackets.
6Because of the stigma attached to such people, they often think twice or take astep back when it comes to availing of the health benefits or regularexamination which leads to not only poor health conditions but also death anddiseases arising out of lack of proper treatment. Criminalizationattached with homosexual deeds often deters such groups from approaching thephysicians in case of problems arising out of such sexual activities which leadto not only physical concerns but also numerous mental issues.· Rightto Form a Family:Therights granted by the government in several countries to heterosexual familiesirrespective of legal recognition are next to non-existent in the case of samesex families.7According to a report of the UN High Commissioner for Human Rights (2011) , theonus to safeguard entities from prejudice on the footing of sexual orientationnot only encompasses that unmarried same-sex couples are regarded in thesimilar way as unmarried opposite-sex couples but also to ensure they are permittedto the same benefits as them8.
The uncertainty whether the requisite that states should be compelled to allowsame-sex marriages legal still suspends before various UN treaty bodies.· Rightto Education:Educationis a primary need for every human being as a part of a decent living.Unfortunately LGBTI community often is deprived of such a fundamental right onaccount of the disgrace and stigma attached to them. They are often deniedadmission in educational institution as the society still continues to cornerthem and think association with such brackets can be a cause of humiliation. Asa result such individuals feel a need to hide their identity and orientation toavoid hassle and physical and mental turmoil as they are constantly subjectedto ridicule and hostility by other individuals in such institution. Consequenceof such can vary from dropping out of such institution to mental disturbancesand a poor mental and physical health of such minorities.· Rightto Freedom of Expression, Opinion and Association:It’sa shame that where almost all countries have recognized the elementary right offreedom of expression, opinion and association of every human being, yet thepeople falling under the category of sexual minority are far away from thecomfort of exercising such rights. What should constitute as a basic andindispensable right for everyone is a luxury and a far reaching dream for suchbrackets.
Becauseof the stigma and dishonor attached to such people by the society, it oftendifficult for them to be open about who they are and instead of voicing theiropinion they choose to lead a discreet life. As their rights are not recognizedby the states it becomes difficult for them to come out as who they are andoften peaceful associations by the LGBTI communities contesting for theirrights are interpreted as hostile acts and are barred by the state and policeforces.9 Sothe sexual minorities are restricted from implementing even the most basic ofrights in lieu of granting all such human rights to them by the states.· Rightto Freedom of Movement and Request Asylum:OftenLGBTI feel the need to escape from their birth countries due to lack ofacknowledged rights.
In such scenario they frequently face the right to refugein destination countries due to the disgrace attached to their sexualorientation.10But according to the guidelines of the United Nations High Commissioner forRefugees, refugee shelter should be rendered to such individuals who havebolted from their countries in fear of persecution and vexation.11Freemovement is also a distant dream for the LGBTI as they either face barriers onsuch account or have to avail overpriced private transportation to evade publictransport in fear of ridicule and mockery.· Rightto Redress and Accountability:Lawenforcement services present in every country make it their top priority toprotect each and every citizen from violence, third party attack, or any kindof savagery. What about the sexual minorities? Are they receiving same kind ofshield and equal protection as of the rest of the public? Well, the answerwould be no.
Not only the level of protection is not same but we see numerousoccasion of hostility towards them on the foundation of their orientation.Sinceit is criminalized it a distant dream for the LGBTI to seek and also avail suchremedy in case of such act of aggression towards them. This leads to veryinsignificant accountability of such belligerent act by others and they escapeany kind of punishment in absence of laws or penalty.
ISSUES AND LAWS PRESENT IN USA AND INDIA:· Issuesin USA:Itwas in the book “Society and the Healthy Homosexual” that the term “Homophobia”was introduced for the first time by Psychologist George Weinberg in the year1972. Ever since that year the term “homophobia” spread. In this book theauthor advocated that it is not homosexuality which should be treated as a dangerbut it rather should be the outgrowing resentment towards the homosexuals thatcan prove to be a risk for the society.
Thereafter in the year 1973, the Boardof Directors of the American Psychiatric Association asserted thathomosexuality should not be allied with mental illness.12Issuesfaced by LGBT community in USA majorly include health disparity, poverty,employment discriminations, bullying faced in school and other educationalinstitutions and violence. According to a report made by the FBI in the year2013, 21% of the hate crimes were reported against the sexual minority groups.13Although 22 states in USA declared that job discrimination based on sexual orientationis illegal yet it prevails and such people lack the necessary Federalprotection. Discrimination also subsists in the field of insurance as it hasbeen observed that transgender are often denied insurance coverage under thepolicies present.
· Legalposition in USA:Inthe year 2015 through the case of Oberegefell V. Hodges, the US Supreme Courtin the year 2015 announced same-sex marriage as legal across United States.This was recognized as one of the milestones in the premise of civil rightcases of USA that came up with the ground-breaking judgment of legalizing samesex marriage and endowed the LGBT community with the basic right of right toform family. Also consequence of this judgment was that couples of same-sexmarriage were now allowed to adopt child but the polies regarding the adoptionvaries from state to state as many statestill doesn’t permit this right tounmarried couples and has put a ban on it in contrast to states which hasgranted this right to all couples.Whenwe talk about protection from discrimination in USA on basis of sexualalignment, we see that there is no express federal law for such purpose.
All wefind is a few federal executive mandates but such directives provide evenlesser protection than the federal laws of the state. Automatically thesecreate more avenues for discernment in many states in the various segment ofhouse accommodation, public and private services as well. Consequently thehardships and challenged faced by the sexual minorities are way more than theNon-LGBT community.Thespan from 1996 to 2015 in USA was a favorable one as it paved way for many LGBTrights.
The US Supreme Court through four major verdicts ensured certain levelof equality for them. The verdicts included:· The usual protected class identified based onhomosexuality was barred by the decision.· The US Supreme court was also successful in droppingsodomy regulations nationally.· Section 3 of the Defense Marriage Act wasknocked down as well.Despitesuch developments, the right concerning family and the anti-discriminationregulations still fluctuate from state to state. There is also no explicit statutefor employment discrimination based on such inclination.
14 Althoughsome level of safeguard is accorded to government employees but such is notstretched enough to cover the private sector employees. Prejudice towardstransgender is comparatively higher than other sexual minorities as seen inform of violence, assault, housing disadvantages, poverty etc. Transgender activistsavow all-sex restrooms and additionally access to gendered restrooms as asubstance of choice, wellbeing, protection, and privacy. Same rights for allcan be observed but with huge gaps and disparities as we find in case ofintersex people.
But with the progression the intersex activists have also beensuccessful in coming into the limelight. 1 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Development-Agenda-for-Sexual-and-Gender-Minorities.pdf2 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Development-Agenda-for-Sexual-and-Gender-Minorities.pdf3 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf4 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf5 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf6 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html7 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html8 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf9 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf 10Id11 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf12 http://blogs.law.columbia.edu/genderandsexualitylawblog/files/2012/04/Sexual-Stigma-and-Sexual-Prejudice-in-the-United-States-A-Conceptual-Framework.pdf13 http://www.globalequality.org/storage/documents/pdf/iccpr_lgbt_shadow_report_2010_final.pdf14 http://www.globalequality.org/storage/documents/pdf/iccpr_lgbt_shadow_report_2010_final.pdf