While the Union government has made it clear that it would not contest the demand to decriminalise gay sex provided the Supreme Court does not go into issues of marriage, adoption, and other civil rights concerning the LGBTQ (lesbian, gay, bisexual, transgender and queer) community, exactly a year ago, a parliamentary panel had taken an entirely contrarian and rather assertive stand on the issue in support of all kinds of civil rights for people across the sexual spectrum.
In its report on The Transgender Persons (Protection of Rights Bill), submitted in July 2017, the Standing Committee on Social Justice and Empowerment, under the chairpersonship of BJP MP Ramesh Bais, criticised the government’s Bill on transgender rights for entirely glossing over crucial civil rights issue. Stating that transgender persons risk being criminalised under Section 377 unless they are granted civil rights, the report added, “The Bill does not refer to important civil rights like marriage and divorce, adoption, etc, which are critical to transgender persons’ lives and reality, wherein many are engaged in marriage like relations, without any legal recognition from the State.” It went on to state that the proposed legislation “must recognise transgender persons’ right to marriage, partnership, divorce and adoption, as governed by their personal laws or other relevant legislation”.
The panel also asked for recognising ‘alternative family structures’ of transgender persons such as the Hijra or Aravani family system, wherein the community elders adopt young transgender children. To ensure that such structures are not criminalised, it asked that family be defined under the Bill as “a group of people related by blood, marriage or by adoption of a transgender person.”
The Parliamentary Committee report thus became the first official document to ever acknowledge non-heteronormative family structures and relationships even as the NDA government has remained reluctant to amend IPC Section 377 despite the Supreme Court judgment of 2013, which upheld Section 377, leaving it to the legislature to amend it if necessary.
While the Bill referred to the Parliamentary Committee was solely on transgender persons’ rights, the panel went beyond its brief and took a bold stand in its preface to the report. Assuring the LGBTQ community that a “historic shift is underway, you are not alone in your struggle for the end of violence and discrimination. It is a shared struggle”, the panel said, “While there is no shame in being gay, lesbian, bisexual, transgender or intersex or even straight — there is a most certainly shame and dishonour in being a homophobe, a transphobe and a bigot”.
In its affidavit filed in the court on Wednesday, the Ministry of Home Affairs urged the court to restrict itself to deciding on the constitutional validity of Section 377 to the extent that it applies to “consensual acts of adults in private” while emphasising that any issues other than this is beyond the scope of reference made to the Constitution Bench.