POSITION of their identity. Human right laws and

POSITION OF SEXUAL MINORITIES IN
INDIA AND USA: A COMPARATIVE ANALYSIS

Introduction:

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One
of the biggest concerns in today’s progressive society is the heavy encroachment
of human rights. Even though development of society is a continuous and
increasing trend today, it is proving to be ineffective in guaranteeing basic
and uniform human rights to every individual irrespective of their identity.
Human right laws and agencies aim at the prevention of such violation and to
secure even rights to all as human rights are very basic in nature and should
be enjoyed by all regardless of their age, sex, caste, nationality, creed etc.
yet there exists disparities in observing such laws and warranting such rights
and the sexual minorities have been found as the frequent and perpetual victim
of such intolerance.

We
live in a society which often tends to discard anything that doesn’t strictly
adhere to the common perception of most individuals. As a result,
heterosexuality has become the median of forming opinion and common consensus
of sexual orientation and homosexuality or any other sexuality which doesn’t
conform to such belief is considered improper or inappropriate. Consequence of
such has been seen through behavioral disparities towards them in workplace,
public domain and in ensuring rights to them.

Despite
the huge wave of human rights activism and upliftment of the minority category,
the position of the sexual minorities remains stagnant if not worse in some
countries. Where we see in some parts like USA LGBT rights have been made
available through colossal struggle, we also find places like Africa which
remain regressive when it comes to such recognition and to the extent of criminalizing
such practices. Therefore prejudice towards the sexual minorities have
prevailed through ages and continue to halt the progress of humanity.

Human
rights development framework employed by many International Agencies is known
as capabilities approach1.
Under this, the progress plan is to increase the human capabilities which
include making a living, access to education, having full health etc. The
similar approach can be used by the sexual minority community to generate
development scheme.2

 

Critical Human Rights Concerns Related To
Sexual Orientation and Gender Identity and the Challenges Faced:

Where
on one hand the entire world is struggling for equal rights of women or upliftment
of the minority or underprivileged groups, on the other hand blatant violation
of human rights on the footing of sexual orientation nonetheless continues to
be a stark and distressing reality. They continue to face hindrance in securing
the basic human rights for them and encounter restrictions in various facades
of life. From education to securing justice to privacy or even in as basic as
right to full health to which every human being is entitled by virtue of being
a human, sexual minorities often find them in a deprived condition. Through this
sub-head let me throw light on some of critical human rights concerns.

Right to privacy:

Right
to privacy accorded to heterosexuals is in wide contrast to the homosexuals. Homosexual
actions are banned in numerous countries which attaches a social stigma.3 It
is also observed that the age limit for consensual homosexual acts is higher
than that of consensual heterosexual acts compelling them to veil their real
identity in fear of vexation and harassment.4

Right to Human and Personal Security:

Denial
of the basic human right of personal security is not only ruthless but also cruel
in the face of humanity. No one should be subjected to the constant fear of
persecution and being singled out. Sexual minority groups face the wrath of law
because of the criminalization of homosexuality to the extent of death penalty
in some of the countries.5 Therefore
it is needless to say that it is a gigantic intrusion of a major right which
clearly indicates the meager status of the sexual minority brackets.

Right to Physical and Mental Health:

Ignorance
and lack of adequate training of the physicians often lead to poor health
assessment of these minority brackets.6 Because
of the stigma attached to such people, they often think twice or take a step
back when it comes to availing of the health benefits or regular examination
which leads to not only poor health conditions but also death and diseases
arising out of lack of proper treatment.

Criminalization
attached with homosexual deeds often deters such groups from approaching the
physicians in case of problems arising out of such sexual activities which lead
to not only physical concerns but also numerous mental issues.

Right to Form a Family:

The
rights granted by the government in several countries to heterosexual families
irrespective of legal recognition are next to non-existent in the case of same
sex families.7
According to a report of the UN High Commissioner for Human Rights (2011) , the
onus to safeguard entities from prejudice on the footing of sexual orientation
not only encompasses that unmarried same-sex couples are regarded in the
similar way as unmarried opposite-sex couples but also to ensure they are
permitted to the same benefits as them8. The
uncertainty whether the requisite that states should be compelled to allow same-sex
marriages legal still suspends before various UN treaty bodies.

Right to Education:

Education
is 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 on account of the
disgrace and stigma attached to them. They are often denied admission in
educational institution as the society still continues to corner them and think
association with such brackets can be a cause of humiliation. As a result such
individuals feel a need to hide their identity and orientation to avoid hassle
and physical and mental turmoil as they are constantly subjected to ridicule
and hostility by other individuals in such institution. Consequence of such can
vary from dropping out of such institution to mental disturbances and a poor
mental and physical health of such minorities.

Right to Freedom of Expression, Opinion and
Association:

Right to Freedom of Asylum and Request Asylum:

Right to Redress and Accountability:

 

 

 

 

 

 

 

 

 

1 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Development-Agenda-for-Sexual-and-Gender-Minorities.pdf

2 https://williamsinstitute.law.ucla.edu/wp-content/uploads/Development-Agenda-for-Sexual-and-Gender-Minorities.pdf

3 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

4 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

5 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf

6 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html

7 http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html

8 http://www.institut-fuer-menschenrechte.de/uploads/tx_commerce/e-info-tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf