Gender Laws Worldwide: From LGBTQIA+ Rights to Marriage Equality

Chakradhar kale 29/08/2023 6 min read

Introduction

Gender is a vastly misunderstood concept. The traditional thought says that there are only two genders which are male and female. Kids in Kindergarten are also taught that gender can either be masculine or be feminine. Gender is also falsely associated with bodily features oftentimes. The concept gender being a major social taboo to be discussed in India needs to be discussed explicitly in order to understand national and international Gender laws.

Gender is a social construct. Gender can be defined as characteristics of men, women, boys and girls observed by the society. Gender is a mental identity with which an individual identifies themselves. Gender as a houses an array of various different and unique identities. Apart from Male and female, the LGBTQIA+ stands for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual and the '+' stands for other identities which are not explicitly covered.

As of now, in 2023, 107 different and unique gender identities stand registered. This fact explains how dynamic the issue of the gender is and how wider it's ambit actually is as against to the traditional belief.

The LGBTQIA+ and Women are often seen as the sections which are vulnerable to discrimination, exploitation, assaults, beatings, harassments and humiliation in public. Gender laws are specifically meant to protect their rights and interests and to uplift their social standing.

In India, In the 1990s, the first LGBTQ+ organization, the AIDS Bhedbhav Virodhi Andolan (ABVA), was founded in Delhi to fight against discrimination and violence faced by the LGBTQ+ community.

Countries around the world have different created laws which protect these vulnerable groups and allows them to live a life of dignity. This also helps in creating an equal ground for all the genders.

Western countries have been witnessing the LGBT rights struggle since the end of the World War II. USA officially recognised Pride Month in 1999. There has been plan activism in the USA since 1945 to 1968.

Gender laws in India

In India, The Protection of Women From Domestic Violence act (2005) addresses the problem of Domestic Violence on women in household settings. Under this law, a women can claim immediate civil remedy within 60 days. The law also ensures Right to Residence under section 17. The law also provides for temporary custody of child.

The Sexual Harrasment of Women at Workplace (Prevention, prohibition and redressal) Act (2013) mandates safe working environment for women. Moreover, the Maternity Benefit act (1961) provides for maternity benefits and leaves for working women. The Scheduled Castes and Scheduled Tribes (Prevention of atrocities) act (1989) also protects women from Scheduled Castes from Sexual assaults, caste based discrimination and violence.

The Criminal Law (Amendment) Act 2013

This law was introduced as the aftermath of the Nirbhaya Case in which changes were brought in the IPC on the recommendations of The Justice Verma Committee.

Following are some of the most important judgements regarding gender equality.

Navtej Singh Johar v. Union of India (2018)

This judgement struck down a portion of the section 377 of the IPC which earlier criminalized same-sex relationships, making it legal for two adults of same sex to have relationships.

National Legal Services Authority v. Union of India (2014)

This judgement recognised the third gender and allowed them to use it as their self identity promoting non-discrimination and gender equality.

Arunkumar & Another v. Inspector General of Registration & Another (2019)

Under this judgement, the court allowed a same-sex couple to marry under the Special Marriage Act. This highlighted the need for the legal recognition of the same.

Gender laws around the world reflect varying political, social and cultural opinions around the world. These laws majorly focus on gender equality and protection of vulnerable individuals from assaults, exploitation, discrimination, slurs, humiliation and other such social problems.

United States

Violence against Women act (VAWA) recognises and deals with domestic violence, sexual assault, attack on privacy, stalking and dating assaults. This act specifically protects women the crimes they can be vulnerable to.

Title IX of the Education Amendments of 1972 prohibits sex based discrimination in any federally funded school.

Sweden

Discrimination Act (2008) criminalizes discrimination based on gender identity or expression, among other protected grounds. Parental leave act provides parenting and caretaking leave to working parents for promoting gender equality in parenting and caretaking of children.

France

Equality and Citizenship Law (2016) Criminalizes street harassment and mandates fines for public sexual harassment and humiliation. Gender Equality in the Workplace Enforces pay transparency and gender equality measures at workplace to ensure gender equality and a more equal and accessible workplace environment.

South Africa

Promotion of Equality and Prevention of Unfair Discrimination Act (2000) recognises discrimination on various grounds, including gender.Recognition of Customary Marriages Act (1998) Recognizes both civil and customary marriages and promotes gender equality within marriages.South Africa is also the first African country to legalise same sex marriages through a court ruling in 2005.

Japan

Act on the Prevention of Spousal Violence and the Protection of Victims (2001) does Aim to prevent domestic violence and protect victims.

Act on the Promotion of Gender Equality in Employment (1999) ensures equal treatment and opportunity for men and women in the workplace.

Australia

Sex Discrimination Act (1984) Prohibits discrimination based on marital status, sex, and pregnancy, among other factors.

Paid Parental Leave Scheme: Provides paid leave for parents, contributing to gender equality in caregiving of children. This promotes equality among working parents engaged in raising children.

Canada

Canadian Human Rights Act criminalizes discrimination based on various grounds, including gender identity and gender expression.Criminal Code Amendments (1992) gives measures to address sexual assaults and domestic violence.Canada is also the first American country to legalise same sex marriage in 2005.

Netherlands

Netherlands was the first country in the world to legalise same sex marriages in year 2001. Since then, 17 European countries which are Austria, Belgium, Britain, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Norway, Portugal, Spain, Sweden, Slovenia and Switzerland. Most also allow same-sex couples to adopt.

Mexico

Mexico was the first Latin American country to legalise same sex marriages in 2010.

Argentina

Argentina was the first South American country to legalise same sex marriages in 2010.

New Zealand

New Zealand is the oceanian country to legally recognise same sex Marriages in 2013.

Republic of Ireland

Republic of Ireland issued an referendum in 2015 to Legally recognise same sex marriages.

Taiwan

Taiwan is the first Asian country to have legalised same sex marriages.

Cuba

Cuba is the first One party state to legally recognise same sex Marriages. Cuba's new family code also allows "altruistic" surrogacy, wherein a woman gives birth to a baby on behalf of another woman or couple but no money changes hands putting a bar for expenses. Some countries allow same-sex couples to enter civil partnerships but not to marry. These are the Czech Republic, Croatia, Cyprus, Estonia, Greece, Hungary and Italy.

In Russia, homosexuality was considered a crime up to 1993 and a mental illness until 1999. Now legal, a 2013 law still punishes the promotion of homosexuality among minors.

In Hungary, a law passed in 2021 made "promoting" homosexuality or gender change to minors punishable by capital punishment.

Assisted reproduction for lesbian couples is allowed in 12 European countries which are the Nordic countries, Belgium, the Netherlands, United Kingdom, Spain Austria, Ireland and France.

"Altruistic" surrogacy is legalised in Belgium, the Netherlands and the United Kingdom but France, Germany, Italy, Spain, Sweden and a few of other countries forbid all surrogacy.

Same-sex marriage, is defined as the marriage of two people of the same legal sex. As of 2023, marriage between same-sex couples is legally performed and recognized in 34 countries that have a total population of more than 1 billion people (17% of the world's population).

Adoption rights are not necessarily covered, though most states with same-sex marriage allow those couples to jointly adopt as other married couples can. In contrast, 35 countries (as of 2023) have definitions of marriage in their constitutions that prevent marriage between couples of the same sex, most enacted in recent decades as a preventative measure. Some other countries have constitutionally mandated Islamic law, which is generally interpreted as prohibiting marriage between same-sex couples. In six of the former and most of the latter, homosexuality itself is criminalized. There are records of marriage between men dating back to the first century.[1] It is legally recognized in a large majority of the world's developed democracies; notable exceptions are Italy, Japan, South Korea, and the Czech Republic. It is not yet recognized in any of the world's Islamic polities. Some countries, such as China and Russia, restrict advocacy for same-sex marriage

Same Sex laws do no always provide for adoption rights. Most nations which legally recognise same sex Marriages generally allow them to adopt a child as other parents. 35 countries have a definition of marriage which prohibits same sex couples from marrying. Some other countries which have constitutionally mandated Islami Law also prohibit same sex Marriages.

Notably, Italy, Japan, South Korea and the Czech Republic still do not legally recognise same sex marriages.

Important International Judgements

"The Court acknowledged that a number of Contracting States had extended marriage to same-sex partners, but went on to say that this reflected their own vision of the role of marriage in their societies and did not flow from an interpretation of the fundamental right as laid down by the Contracting States in the Convention in 1950. The Court concluded that it fell within the State's margin of appreciation as to how to regulate the effects of the change of gender on pre-existing marriages."

— European Court of Human Rights, Schalk and Kopf v Austria

American Anthropological Association on 26 February 2004 stated that :

"The results of more than a century of anthropological research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. Rather, anthropological research supports the conclusion that a vast array of family types, including families built upon same-sex partnerships, can contribute to stable and humane societies."

American Academy of Pediatrics in 2006, concluded the following:

"There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents' sexual orientation and any measure of a child's emotional, psychosocial, and behavioral adjustment... The rights, benefits, and protections of civil marriage can further strengthen these families."

Gender equality in literature

The book "Ministry Of Utmost Happiness" by Arundhati Roy sheds light on the life of Anjum who is a born as a transgender in a densely packed gully-mohalla setting of old Delhi. The book does, very beautifully in an artistic way, discuss the plight of Anjum in a typical Indian Society.

Also, the book "Seeing Like a Feminist" by Nivedita Menon discusses about gender equality at length and presents researches and proofs whenever necessary. The book discusses at length about the discrimination faced by women in India and the world. It also discusses the idea of the LGBTQIA+ and their rights and their life in societies around the world.

Conclusion

Currently, same-sex marriage is not recognized in India. The country’s legal system does not provide for marriage equality. Such marriages are also not entertained in inheritance rights, joint property ownership, and adoption rights. The landmark judgement of Navtej Singh Johar v. Union of India, given by the Supreme Court in 2018, decriminalized homosexuality in India by striking down Section 377 of the IPC. This has been a big achievement for the LGBTQ+ community in India, recognizing their right to love and intimacy without fear of prosecution. LGBTQIA+ rights in India still face various problems due to resistance rooting from the society. Although the future seems to be hazy for LGBTQIA+ rights in India, positive developments from the grounds may be expected to create conducive circumstances for the change to happen ultimately. It's the time that we begin recognising the inevitable parts of our society and make the world an inclusive place wherein everyone feels valued and their rights get enough and required recognition so that no section of the society feels secluded and insecure.