The rainbow of freedom is covered by the grey clouds of rigid beliefs. They were not accepted then and they are still fighting a battle for rights which they are entitled since birth but were denied the same due to societal norms. The LGBTQI+ community is a group of people who believe that love has no barriers and that gender is not limited to the sex which a person acquires by birth. Section 377 of the Indian Penal Code, 1860 was labeled as ‘unnatural offences’ which criminalized intercourse between people of the same sex or with animals. This section was termed as unconstitutional on 6th September 2018 by the Supreme Court of India. The people belonging to the LGBTQI+ community have always been scared to exercise their rights before Section 377 was repealed from the law of the country. The reason they were scared was that the society looked upon them as if they were aliens to the existence of the human species and that they deserved all the hatred from society as whatever the people from the LGBTQI+ community would feel was wrong. Even today, after same-sex intercourse, is legal, people are not willing to accept homosexuals as normal people because of the continued tradition of not doing so. Children are taught in Indian families to live up to the expectation of society. Is this the kind of society that we expect the youth of today to live up to? The youth will not even consider the opinions of society as its thought process is shallow to this level.
Difference between Sex and Gender
The sex of a person can either be male, female or intersex (possessing organs belonging to both the sexes that are male as well as female). This classification is known as the biological identity of a person which he/she/they acquire/s by birth. This identity cannot be changed. The gender of a person does not necessarily correspond to the sex that the person acquires by birth. Gender is not limited to heterosexuality (being attracted to the opposite sex) but also includes other forms like homosexuality (being attracted to the same sex), pansexuality (being attracted to any person despite their religion), and so on. This difference is the key to ensuring that people are clear about what they want and also to change the traditional beliefs of society which believed that sex and gender are the same.
Meaning of LGBTQI+ Community and its Sub-groups
The LGBTQI+ community stands for people belonging to Lesbian, Gay, Bisexual, Transgender, Queer and Intersex genders. This community also has other sub-groups based on the preference of people. In today’s contemporary times, people are aware of this community to a great extent but they are not aware of the sub-groups. ‘Lesbian’ is a term used for women who are interested in women and ‘gay’ is a term used for men who are interested in other men. ‘Bisexual’ means people who are interested in both men as well as women and ‘transgender’ means a person whose sexual identity which is assigned to that person at birth does not correspond to the person’s gender identity. ‘Queers’ are people who are confused about their gender identity and are still in the phase of figuring it out and ‘intersex’ means people who are born with characteristics of both, the male as well as the female sex.
There are many other sub-groups such as asexual (not feeling the need to have to indulge in sexual activities with anyone), pansexual (holds the capability to love another person irrespective of their gender identity), agender (a person who identifies as having no gender), bigender (a person who possesses the cultural characteristics of both men and women) and gender fluid (a person whose gender identity is not fixed. Such people may feel like one gender on one day and at times like another gender on other days.) There are many more subgroups apart from the ones which I have mentioned. LGBTQI+ is not limited to gays and lesbians but covers all sorts of gender identities and is inclusive in nature. Even after being so inclusive, the people from this community have to face trauma because of the narrow-mindedness of society.
Pansexual people are those who love the heart of the other person and are capable of doing so beyond the barrier of sex and gender. For such people, the gender of their partner plays no significant role in their life. Even though pansexuals are included under the umbrella of the LGBTQI+ community, they can fall in love with people who are heterosexual as well. This is because the gender of their partner is not relevant to them.
Polyamory is the practice of engaging in multiple emotional, romantic and sexual relationships with multiple people at the same time with the consent of all the partners involved. This practice is not widely accepted by the societies of both India as well as abroad. This is because society has evolved with the thought process of having only one partner at a time irrespective of what the person who is actually involved in the relationship feels like. The choice of individuals is suppressed by societal pressure which is wrong.
Difference between Pansexuality and Polyamory
Pansexuality deals with people getting involved in others irrespective of their gender and polyamory mean the practice of having multiple partners at the same time with the consent of all the partners. Pansexuality is a sub-group of the LGBTQI+ community whereas polyamory is not limited to the LGBTQI+ community as it can involve heterosexual people as well who are willing to have relationships on emotional and physical levels with multiple partners at the same time. The practice of polyamory is not restricted to a particular gender which means that pansexuals can also indulge in polyamory.
The legality of Pansexuality in India
When Section 377 of the Indian Penal Code, 1860 was quashed by the apex court of India in 2018, there was a ray of hope for the people belonging to the LGBTQI+ community as it was legally permitted for same-sex couples to indulge in sexual intercourse. People belonging to the pansexual community were deeply relieved as no one would question them about their sexual desires for people of any gender. Quashing of Section 377 meant that pansexuals were in a position to mentally as well as physically attach themselves to gays, lesbians, queers, heterosexuals and so on. It is the legal right of pansexuals to live their life without the barriers of society which meant that only a man and a woman can be partners. But do the end of the problem there? No, they do not.
Conversion therapies have long been practiced in India to change the gender identities of people. Conversion therapy is the practice of converting the sexual orientation and gender identity of people to align with their heterosexual identities and their sexual orientation. Conversion therapy was used and is still used to convert people belonging to the LGBTQI+ community to heterosexuals. This therapy includes counseling, replacement or removal of genitals to align with the sexual orientation of the person, psychoanalytic therapy, social skills training and visualization. These practices are harmful and can result in damage to the mental health of the person on whom it is performed. These conversion therapies should be performed only with the consent of the patient and forced conversion therapies should not be allowed as per law.
In the case of S Sushma & Anr vs. Commissioner of Police & Ors. (2021), two women ran away to Chennai from their respective houses in Madurai after facing opposition from their families as they were a lesbian couple. They started their life in Chennai when the police interrogated them as a missing complaint was lodged by both the families of the women. The women approached the High Court of Madras seeking a notice against their parents as well as the police which were a threat to the lives of the couple. The parents of the women tried to use conversion therapy to convert them into heterosexuals to which the women did not give consent. This is the landmark case through which Justice N Anand Venkatesh prohibited the practice of conversion therapy throughout the state of Tamil Nadu. This was a progressive step which reflected that the LGBTQI+ community is as normal as the heterosexuals and that there is no need to convert their gender and sexual orientation to match the thought process of society. This broadened the umbrella of the rights of the pansexuals and gave them legal status to support their cause and live a peaceful life.
The legality of Polyamory in India
Relationships and marriages have long been associated with the religion which one follows which is why there are ‘personal laws’ which lay down what is right and what is wrong according to the various religions. In India, there are 4 types of personal laws which are; Hindu law, Muslim law, Parsi law and Christian law. These laws govern the rules of marriage according to the religion to which a person belongs. These laws do not talk about relationships which exist without marriage as they were codified in the era in which there were no couples without marriage.
Marriage under Muslim Personal Law
The clauses under the ‘Muslim Personal Law Application Act (Shariat) of 1937, as construed by the All India Muslim Personal Law Board, apply to Muslims in India. This act lays down the rules and regulations which are to be followed by all Muslims with respect to Muslim marriage, divorce, custody of children, conduct and so on. Under this act, it is specified that a Muslim man is permitted to get married to 4 women at the same time and also be the father of the children delivered by those 4 women. According to the act, any woman is permitted to get married to only 1 man at a time. This means that unless the woman is divorced or her husband dies she cannot get married to another man while being married to one. The women are in no position to stop their husbands from getting married to another woman as it would mean that they are going against the law.
Marriage under Hindu Personal Law
Under Section 11 of the Hindu Marriage Act, 1955 it is a punishable offence to get married to more than one person except when the partner dies or the marriage is dissolved through divorce. Bigamy (having two partners) or polyamory (having multiple partners) is not allowed by personal law for the people of the Hindu religion.
Polyamory and Personal Laws
Polyamory is not accepted in Hindu law but is accepted in Muslim law to a certain extent. The laws which have been mentioned above do not support polyamory even today. This is because if any woman of Islam faith wants to indulge in polyamory with the consent of all the partners, she is unable to do so because the law forbids it. Even in Hinduism, people are not allowed to marry more than one person which again restricts polyamory. Provisions have to be made in the law of the country which makes sure that the right of people who follow polyamory is not taken away from them and that they are able to live a free life just like others. I have taken the example of two religions but there are many other religions in which the practice of polyamory is not accepted and the people who practice it by going against the law are disrespected and looked down upon by society. LGBTQI+ community is also getting affected by the rigid behavior of society as there are people who practice polyamory in this community as well. There is a need for the parliament to amend the personal laws of the country which will help solve these issues and make the world a better place to live in.
Through this article, I have made an attempt to educate the masses about the differences between pansexuality and polyamory, the legalities of the same and the social difficulties which the people who indulge in polyamory and are a part of the LGBTQI+ community face on a regular basis. I believe that as a lawyer it is my duty to bring about awareness about such issues which society does not bother to even consider as ‘issues’. Through this analysis of the personal laws of the country, I have realized that there is a need to amend certain laws for the purpose of inclusivity in society and this article is a small step in achieving the same.