A decade lost: How LGBTQIA+ rights fared under BJP govt and the way forward

The rights and lives of LGBTQIA+ persons have found at least a cursory mention in the manifestos of several political parties this election. But queer persons say it is no credit to the ruling BJP or the opposition.
Activists Harshini Mekala, Priyank Sukanand, Vyjayanti Vasanta Mogli and Busaina Ahamed Shah
Activists Harshini Mekala, Priyank Sukanand, Vyjayanti Vasanta Mogli and Busaina Ahamed ShahImage designed by Dharini Prabha
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In the past 10 years, the Bharatiya Janata Party (BJP)-led Union government has “hardly impacted our lives,” queer persons in India say when asked about a decade of governance under Prime Minister Narendra Modi. “Despite decades of activism and ten years of the landmark NALSA v. Union of India judgement, the police or the state machinery are far from understanding our concerns. We still have to fight in police stations and courts just to exercise basic rights,” says LGBTQIA+ rights advocate Indrajeet Ghorpad.

Even as BJP campaigns for a third term in the 2024 Lok Sabha elections, the party seems largely oblivious to the LGBTQIA+ community at large. In its manifesto, it has made but one vague poll promise to the transgender community — to expand an existing shelter scheme for trans individuals. Trans persons’ long standing demand for horizontal reservation has once again been overlooked, while other gender and sexuality minorities within the LGBTQIA+ spectrum have been invisibilised altogether.

Queer persons TNM spoke to say that a decade ago, however, their rights and lives were unlikely to have even been considered an election issue. Today, though largely reduced to lip service, they have found at least cursory mention in the manifestos of several major and minor political parties, including the Congress and the Communist Party of India-Marxist (CPI-M). This is no credit to either the party in power or the opposition, LGBTQIA+ individuals say, pointing out that it is instead the result of relentless grassroots activism by community members across the country. 

“It is sad that 10 years have passed and the Union government has done nothing to protect LGBTQIA+ rights, including policy changes even in healthcare,” says Priyank Sukanand (he/him), co-founder of Queer Collective India. He says this is why this election is as crucial as ever for the queer community. “It is important to make the right choice — to choose a government that also wants to choose and protect us.”

What the party manifestos say

Bharatiya Janata Party

The ruling BJP’s manifesto contains two sentences, a total of 47 words, pertaining to the transgender community. It makes no mention of any other community that falls under the LGBTQIA+ umbrella. 

Under the promise of widening “the network of Garima Grahas for transgenders (sic),” the party promises in the manifesto to expand the scheme to “cater to the needs” of transgender individuals. Garima Grahas is a shelter project that was piloted in 2021 by the Union government for destitute and abandoned trans persons.

Indrajeet calls this promise “obnoxious,” pointing out that even the existing Garima Grahas were pushed to closure due to delays in government funding. “Some people (who run the shelters) had to take personal loans because there was no payment for a year. So their promise falls flat now,” he says. Besides, the party has also not specified how it plans to carry out this ‘expansion’, or what are the specific ‘needs’ that they plan to cater to.

The other promise BJP makes in its manifesto is to cover all eligible trans persons under the Ayushman Bharat Yojana and issue identity cards to “ensure their recognition nationwide.” But it is to be noted that the Ministry of Social Justice and Empowerment already issues transgender identity cards.

The BJP has notably not been LGBTQIA+ allies by principle, with its leaders frequently making regressive statements about the community in the Parliament and the Union. In 2022, BJP’s Member of Parliament (MP) Sushil Kumar claimed that same-sex marriages were “against our culture and ethos” and that it would “cause complete havoc with the delicate balance of personal laws in the country.” The Union government had also strongly opposed the petitions seeking marriage equality in the Supreme Court, calling it an ‘urban and elitist’ issue.

Indian National Congress

The Congress, on the other hand, has a section for “Senior Citizens, Persons with Disabilities, and LGBTQIA+” under the title ‘Equity’ in its ‘Nyay Patra’. The party has made two promises that pertain to the queer community:

> Articles 15 and 16 of the Constitution will be expanded to prohibit discrimination on the ground of ‘disability’, ‘impairment’, or ‘sexual orientation’.

> A law to recognise civil unions between couples belonging to the LGBTQIA+ community will be ushered in after wide consultation.

During the marriage equality case, however, Rajasthan — which was the only Congress-run state to respond to the court — had notably opposed the petitions. When community members called out the Congress for this, senior Congress leader Shashi Tharoor claimed this was just the state government’s opinion and not the official party stand. “Personally many of us as individuals support you. State governments take their own positions. As far as I am aware an official party stand on the issue has not yet been announced,” he said.

Indrajeet also questions why the Congress manifesto mentions that “wide consultation” will be conducted to grant the rights for a community. “Of course, there should be a consultation with the right stakeholders. But what does Congress mean by ‘wider consultation’? Are they going to go by majoritarian views again?”

Communist Party of India (Marxist)

The CPI(M), of all the parties, has the most elaborate promises for the LGBTQIA+ community. This includes legal recognition to same sex couples “similar to civil union/same-sex partnerships”; legislations similar to the Special Marriage Act, 1954, enabling the partner to be listed as dependent for legal purposes; a comprehensive anti-discriminatory bill covering LGBTQIA+ community; reservation in education institutions; and the ensurement of horizontal reservation in employment. Horizontal reservation has been a long standing demand of the trans community in India. The manifesto, however, does not make clear who will be covered under the reservation.

The CPI(M) also promises to ensure that crimes against queer persons are treated with equal severity as that against non-queer persons. It further mentions sensitisation of staff in educational spaces; enforcement of UGC’s 2016 anti-ragging policy amendment that addresses ragging based on sexual orientation and gender identity; and the ensurement of accessible and safe bathrooms for trans, intersex, and gender nonconforming students, staff, and faculty. 

Additionally, the party says it would ensure that “sex change” (aka gender affirmation) surgeries would not be done without the individual’s informed consent. It also promises to amend the Transgender Persons (Protection of Rights) Act, 2019 to address concerns raised by the community, though it hasn’t clarified what the said concerns are.

All of the CPI(M)’s promises to the LGBTQIA+ community, however, come under the heading “Transgender”.

Nationalist Congress Party (Sharadchandra Pawar)

The NCP(SP), led by Ajit Pawar, broke off from the Nationalist Congress Party in 2023 and is now part of the INDIA bloc, contesting from ten out of 48 seats in Maharashtra. The party’s manifesto has made seven promises under the heading “LGBTQIA+” in the ‘Social Justice’ section of their manifesto:

  • Legal recognition: Ensure legal rights of LGBTQIA+ individuals, including marriage, adoption, and healthcare access.

  • Inclusive education: Provide educator training on LGBTQIA+ issues and foster safe and supportive educational environments for LGBTQIA+ students.

  • Healthcare access: Guarantee inclusive healthcare services, including gender affirming care, mental health support, and HIV/AIDS prevention and treatment.

  • Hate crime legislation: Enact laws targeting hate crimes against LGBTQIA+ individuals and train law enforcement agencies to effectively handle such crimes.

  • Community support services: Invest in youth centres, counselling, and support groups to tackle community-specific challenges and enhance well-being.

  • Workplace inclusivity: Implement policies to eliminate discrimination, harassment, and bullying based on sexual orientation or gender identity.

  • Public awareness campaigns: Conduct sensitisation initiatives to dismantle stereotypes, diminish stigma, and cultivate understanding and acceptance of LGBTQIA+ individuals.

Notably, NCP(SP) MP Supriya Sule had introduced a Private Member’s Bill for queer persons in the Parliament in April 2022 (when she was an NCP MP before the split). The Bill, named The Special Marriage (Amendment) Bill, 2022, proposed amendment to the Special Marriage Act to solemnise marriages between any two persons of same sex and to substitute ‘spouse’ instead of ‘husband and wife’ in the Act.

What about horizontal reservation?

None of the parties, except CPI(M), promised to implement reservation for the trans community.

Trans and RTI activist Vyjayanti Vasanta Mogli says the need of the hour for trans persons is horizontal and interlocking reservations, which should be made applicable across the spheres of public and aided education, employment, and all government schemes. Queer rights activist Busaina Ahamed Shah (she/they) also states that trans persons need more representation in public spaces, offices, and educational institutions. “The government has to think about how to do that, especially when they also cut across the social strata. There is a lot of advocacy demanding horizontal reservation for trans persons. That is something that should come about at least in the next term,” she says.

The past decade for LGBTQIA+ persons

One visible change LGBTQIA+ persons have witnessed over the past decade is how the community, particularly trans persons, are portrayed in the media and other public spheres. Harshini Mekala, a trans activist, actor and model says, “While trans persons were always portrayed as beggars or with vulgar undertones, we are given dignified roles now.” 

Harshini says it was after the 2014 NALSA judgement that trans persons started seeing such smaller positive shifts in their lives. The 2014 case titled National Legal Services Authority v Union of India, widely known as the NALSA case, is considered a landmark judgement that recognised that transgender persons and people with intersex variations have the right to self-identify their gender. The judgement essentially set the ball rolling for LGBTQIA+ rights in India, says Indrajeet.

The other major such judgement was the 2018 Navtej Johar judgement, which read down Section 377 of the Indian Penal Code (IPC) that criminalised consensual same sex relationship. “It was the Supreme Court that affirmed the rights of LGBTQIA+ persons and not the government. In the last 10 years, the BJP-led government has hardly impacted the lives of queer people,” says Priyank.

Busaina adds that a change is definitely visible in the landscape of queer rights, but it is mostly because of “people working on the ground, responsible journalism, literature, etc.”

But in the meantime, “we have also lost a lot of queer people in the past 10 years,” Priyank points out, adding that it was high time India woke up to protect its LGBTQ citizens.

The Union government has done some notable work concerning the trans community in the past decade, says Vyjayanti. “After the SC order, the government brought in Transgender Persons Protection Act, 2019 and Transgender Persons Protection Rule, 2020. These were the first pan-India legislative and statutory framework intended to advance the rights and lives of trans persons,” she says.

But it is not as though the legislation was entirely the way the trans community wanted it to be, Vyjayanti points out. “It is progressive at some levels, but not at others. The statutes — both the Act and Rule — are especially silent on reservation for trans persons. They also leave a lot to be desired in terms of punishment for crimes against trans persons. While Sections 375 and 376 of the IPC are stringent with respect to sexual assault against cisgender women, similar violence against trans persons is met with a joke of a punishment of six months to two years. Such offences against trans persons are even allowed bail at the police station, which is not the case for sexual assault against cisgender women. We fear that this would unintentionally incentivise criminally predisposed sexual assaulters and predators to focus on trans persons,” she says.

Vyjayanti also admits that the Union government has done barely anything for the LGBQIA+ community at large. “Even the census only records trans persons, not the others. It is true that awareness about trans persons is poor, but it is even worse when it comes to LGBQ+ persons.”

Indrajeet also alleges that whenever the government had a chance to make a difference in the lives of LGBTQIA+ persons, it hasn’t acted in a favourable way. “Take the recent appointment of members to the National Council for Transgender Persons. There are no trans or intersex persons on the council. Instead there are three cis women, of whom one is openly transphobic and another is Islamophobic,” he says.

In February this year, Prime Minister Modi had claimed in the Parliament that the world is discussing “what India has done for transgenders (sic).” Modi said, “We have given transgenders (sic) an identity. As many as 16,000-17,000 from the community have been given identity cards."

Indrajeet calls this a “baseless” statement. “We know the extent to which the Union government is against trans rights. In Kerala, when the High Court allowed a trans woman to enter the NCC (National Cadet Corps), the Union government even appealed the decision. This is how anti-LGBTQIA+ the Union government is. Such statements are mere tokenism”.

According to Priyank, there are five main challenges that the queer community in India is currently facing — discrimination, lack of legal protection, unemployment, little to no intervention from the healthcare department, and violence and harassment. “The LGBTQIA+ community needs inclusive policies to protect us from violence, from discrimination in workplaces, inclusive healthcare policies that also includes our same sex partner; and inclusive educational institutions,” he says. 

What we should envision for the future, Priyank says, is an India that is not tormented by the violence, harassment, and discrimination of its LGBTQIA+ citizens. “Let us hope for an India built with its love, kindness, and inclusivity.”

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