LGBTQI+ Community in India

History of LGBTQ+

LGBTQ+ is an umbrella term used to refer to lesbian, gay, bisexual, transgender, queer and intersex. LGBTQI+ people represent a subset of individuals among the broader category of sexual and gender diverse individuals. Sexual orientation, gender identity and expression (SOGIE) is diverse and spans cultures across the world.

Out of all the letters in the acronym LGBTQI, the L was the first to come into existence. LGBTQ+ traces its history since the second century but it started gaining social ground in the 17th century. Karl Heinrich Ulrichs, a 19th-century, German lawyer, and writer who may have identified as gay was the first to try to represent his community. The two symbols of the community that are recognized internationally are the pink triangle and the rainbow flag.

Population in India

The Registrar General of India (RGI), during Enumeration of Census 2011, for the first time provided three code i.e. Male-1, Female-2 and other-3 for enumeration. This was at the discretion of the respondent. In case the respondent wished to record neither ‘1’ nor ‘2’ then enumerator was instructed to record sex as ‘other’ and give code ‘3’. It is important to note that the Census of India does not collect any data specifically on ‘transgender’. Thus, the category of ‘other’ would not only include ‘transgender’ but also any person who desires to record sex under the category of ‘other’. It is also possible that some transgender would have returned themselves either male or female depending upon their choice. The population of ‘other’ as per Census 2011 is 4,87,803.

Discrimination against LGBTQ

LGBTQI+ people are discriminated against in the labour market, in schools and in hospitals, mistreated and disowned by their own families. They are less likely to access health services and engage with healthcare workers due to stigma and discrimination and bear a disproportionate burden of adverse physical and mental health outcomes.  As a community, they are more likely to experience human rights violations including violence, torture, criminalization, involuntary medical procedures, and discrimination. In addition, they face denial of care, discriminatory attitudes, and inappropriate pathologizing in healthcare settings.

Legal provisions in India for LGBTQ+ Community

Department of Social Justice and Empowerment, Ministry of Social Justice and Empowerment is the nodal Ministry for Welfare for Transgender Persons. The Ministry enacted the Transgender Persons (Protection of Rights) Act, 2019 and provisions of the same came into force on 10.01.2020. The Ministry has also prepared “The Transgender Persons (Protection of Rights) Rules, 2020” for effective implementation of the provisions of the Act and the same has been notified in the Gazette of India on 29.09.2020. Further, in accordance with the provisions of the said Act, the Ministry, vide notification dated 21.08.2020, has constituted the National Council for Transgender Persons. 

Transgender Persons (Protection of Rights) Act, 2019

The Act has following provisions: -

•  Non discrimination against a Transgender Person in educational institutions, employment, healthcare services etc. 
• Recognition of identity of Transgender Persons and to confer upon them right to self perceived gender identity.
• Provision of right of Residence with parents and immediate family members.
• Provision for formulation of welfare schemes and programmes for education, social security and health of Transgender Persons.
• Provision for National Council for Transgender Persons to advice, monitor and evaluate measures for the protection of their rights.

The Act makes all the stakeholders responsive and accountable for upholding the principles underlying the Act. It will bring greater accountability on the part of the Central Government and State Governments/Union Territories Administrations for issues concerning Transgender persons. 

To access the complete Act, click here.

The Transgender Persons (Protection of Rights) Rules, 2020

The Ministry of Social Justice and Empowerment, on 25th September 2020, notified the Transgender Persons (Protection of Rights) Rules, 2020. The Rules were issued in exercise of its powers conferred under Section 22 of the Transgender Persons (Protection of Rights) Act 2019 (‘2019 Act’).

The Rules address the following points:

• Certificate of Identity: Rule 3 prescribes that the application for obtaining a Certificate of Identity must be submitted, either by post or online, to the District Magistrate within whose jurisdiction the transgender person resides.
• Welfare measures: Rule 10 provides that a Welfare Board be constituted to facilitate the access to schemes and welfare measures taken by the Government for the protection of transgender persons’ rights.
• Provisions of Non-Discrimination: The Rules have provided mechanisms for ensuring non-discrimination of transgender persons in public life. For example, the Rules require setting up a  Transgender Protection Cell under the charge of the District Magistrate and the Director-General of Police to monitor cases of offences against transgender persons.
• Equal Opportunity in Employment:  Rule 11 provides that all establishments shall ensure that they provide a safe environment and equal opportunities by incorporating infrastructure adjustments, recruitment, employment benefits and promotion for transgender persons. It is mandatory for all establishments to publish their Equal Opportunity policy.
• Grievance Redressal: Rules direct the Government to establish a grievance redressal mechanism within one year and put into place a monitoring system for tracking the complaints. Further, Rule 13 provides that the complaints officer should be appointed. They should inquire into complaints within 15 days of receiving the complaint and the resolution of grievances should take place within 30 days from the filing.
• National Council: The Rules state that the National Institute of Social Defence shall give secretarial assistance to facilitate the discharge of functions of the National Council for Transgender Persons.

To access the complete Rules, click here.

National Council for Transgender Persons

In exercise of the powers conferred by section 16 of the Transgender Persons (Protection of Rights) Act, 2019 (40 of 2019), the Central Government has constituted a National Council for Transgender Persons vide notification dated 21st August, 2020. The Union Minister of Social Justice & Empowerment will be Chairperson (ex-officio) and Union Minister of State for Social Justice & Empowerment will be Vice-Chairperson (ex-officio).

The National Council shall perform the following functions, namely:

• to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons;
• to monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons;
• to review and coordinate the activities of all the departments of Government and other Governmental and non-Governmental Organisations which are dealing with matters relating to transgender persons;
• to redress the grievances of transgender persons; and
• to perform such other functions as may be prescribed by the Central Government.

The other members of the Council include representatives of various Ministries/Departments, five representatives of transgender community, representatives of NHRC and NCW, representatives of State Governments and UTs and experts representing NGOs.

A Member of National Council, other than ex officio member, shall hold office for a term of three years from the date of his nomination.

To access the Notification, click here.

Welfare schemes

The Ministry of Social Justice and Empowerment has formulated a National level umbrella scheme namely “SMILE - Support for Marginalized Individuals for Livelihood and Enterprise”, which includes two sub-schemes - ‘Comprehensive Rehabilitation for Welfare of Transgender Persons’ and ‘Comprehensive Rehabilitation of persons engaged in the act of Begging’.

This umbrella scheme would cover several comprehensive measures including welfare measures for both transgender persons and persons who are engaged in the act of begging with focus extensively on rehabilitation, provision of medical facilities, counseling, education, skill development, economic linkages etc with the support of State Governments/UTs/Local Urban Bodies, Voluntary Organizations, Community Based Organizations (CBOs) and institutions and others. 

1. TG certificate and ID card : A transgender person can apply for certificate and identity card from across the country. The Transgender certificate & identity card are nationally recognised and provided by the Ministry of Social Justice & Empowerment. The certificate is a mandatory document to avail the welfare measures being provided under the SMILE scheme. To apply online, click here.
2. Scholarships : The Ministry of Social Justice & Empowerment is providing scholarships studies in India to Transgender students studying in classes IX and above to provide financial assistance to the Transgender students studying in classes IX and X, and at post matriculation or post-secondary stage and beyond that till post-graduation to reduce the incidence of drop-out and aid the transition from the elementary to the secondary stage. Four Scholarship categories are available: 
   • Scholarships for secondary school (9th & 10th) Transgender students.
   • Scholarships for senior secondary (11th & 12th) education.
   • Scholarships for students (Undergraduate/Diploma).
   • Scholarships for students (Post-graduation).
   To know more details and apply online, click here.
3. Skill Training : There are two types of skill development training programmes that are provided :
   • Short Term Training Programmes (200 hours to 600 hours and upto 6 months).
   • Long Term Training Programmes (5 months and above and usually up-to 1 year) (up to 1000 hours).
   • To know more details and apply online, click here.
4. Composite Medical Health : The objective of the scheme is to provide health Insurance coverage to all Transgender persons living in India to improve their health condition through proper treatment including sex re-assignment surgeries as well as medical support. The scheme would cover all Transgender persons not receiving such benefits from other centre/state sponsored schemes. To know more details and apply online, click here.
5. Garima Greh: Shelter Homes : The main aim of Garima Greh is to provide shelter to Destitute & abandoned Transgender persons with basic amenities like shelter, food, medical care and recreational facilities. Besides that, it will provide support for the capacity-building/skill development of Transgender persons. To know more details and apply online, click here
6. Recognition & Appreciation : To encourage online skill training & employment opportunities for transgender persons and provides recognition/incentives to those applicants who have done courses.

To know more details, click here.

Source : Ministry of Social Justice and Empowerment