India's Supreme Court makes key privacy ruling"/>

Issue:  Vol. 48 / No. 3 / 18 January 2018
 

Activists have challenged the India Supreme Court's upholding of Section 377, which outlaws same-sex relationships in India's penal code. Photo: Courtesy NDTV
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India's Supreme Court, in a blow to the government, ruled August 24 that privacy is a fundamental right.

The nine-judge decision came in a case that challenged the government on the mandatory Aadhaar card, which uses a 12-digit unique identity number based on a biometric and demographic area of each Indian.

The judges agreed with the petitioners, emphasizing the protections provided by the constitution include free speech, rule of law, and "guarantees against authoritarian behavior," Human Rights Watch officials wrote in a blog post announcing the decision.

The ruling, under Article 21 in India's constitution, has far-reaching implications, especially for Section 377 of the country's penal code, a British colonial-era law that outlaws "unnatural" sex acts and has been used against gays.

LGBT Indians have been waiting for a Supreme Court ruling on a new case brought against Section 377. That case will be reviewed by a larger bench of Supreme Court judges.

In 2009, the Delhi High Court ruled the 1860 law was unconstitutional under Articles 14, 15, and 21 of the Indian Constitution. But in 2013, the Supreme Court reinstated the law, stating that it only affected a "minuscule" community and that only Parliament could change the law.

Violators of the law could face up to 10 years imprisonment if caught. Only a few charges have been brought against some men since 377's reinstatement.

The Indian Constitution's Article 14 guarantees equality, privacy, and freedom of expression; Article 15 prohibits discrimination based on religion, race, caste, sex, or place of birth, but it doesn't include sexual orientation and gender identity; and Article 21 guarantees the right to life and personal liberty.

In 2014, months after the Supreme Court's decision to uphold criminalizing same-sex relationships, the court legally recognized the "third sex," hijras or transgender individuals. The law granted transgender people government issued identification cards and mandates to set up social programs to integrate them into Indian society.

In their ruling last week, the judges scorned the 2013 Supreme Court decision, pointing out that the judges "erroneously relied upon international precedents," calling the thinking "unsustainable." They said that the law had a chilling effect on "the unhindered fulfillment of one's sexual orientation, as an element of privacy and dignity," reported HRW.

At least three of the five separate, but concurring, judgments in the ruling explicitly tackled the implications of privacy as a fundamental right on Section 377 or the sexual orientation of a citizen, reported the Wire.

Focusing on LGBT Indians, the judges noted in the decision that within the past 150 years only 200 people have been prosecuted for committing offences under Section 377 of the Indian Penal Code.

They continued, writing that LGBT rights are not "so-called rights, but real rights founded on sound constitutional doctrine."

"The rights of the lesbian, gay, bisexual, and transgender population cannot be construed to be 'so-called rights,'" the judges wrote. "The expression 'so-called' seems to suggest the exercise of a liberty in the garb of a right, which is illusory. This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not 'so-called' but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination."

The judges further declared in the decision, "Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform."

However, the judges stopped short of overturning the 2013 Supreme Court ruling.

"Since the challenge to Section 377 is pending consideration before a larger bench of this court, we would leave the constitutional validity to be decided in an appropriate proceeding," the judges wrote.

Several bills introduced by lawmakers since 2013 to overturn 377's reinstatement haven't passed.

LGBT South Asian and human rights activists who have been pushing for overturning 377's reinstatement have been emboldened by the Supreme Court's decision, reigniting calls to overturn it.

 

Australians rush to register for same-sex marriage vote

Record numbers of Australians rushed to register ahead of the postal vote for same-sex marriage, as thousands took to the streets of Melbourne in protest.

In total, 90,000 new voters were added, the Australian electoral commission reported August 24, the deadline.

Registration has been higher for people under the age of 40, Australia's Electoral Commissioner Tim Rogers told the media.

Nearly 16 million people are now registered to vote in one of the few English-speaking countries not to have legalized same-sex marriage.

Multiple polls show more than 60 percent of Australians support same-sex marriage.

Australia is one of the few democratic countries with mandatory voting in general elections, but this ballot is non-compulsory and the vote is nonbinding.

"This amazing result is a tribute to the thousands of people around the country that have made this happen," Equality Campaign Executive Director Tiernan Brady told Gay Star News.

"It's also a reflection of the amount of energy that will be required if our LGBTI friends and family members are to win the same dignity and status as other Australians," he continued. "We are not complacent about this at all. This may be one of the most successful enrolment campaigns, but if we are to achieve equality, supporters need to ensure they vote 'yes' and post their ballots back."

Ballots will arrive in voters' mailboxes starting September 12 and continue through the middle of the month.

The results will be published by the Australian Bureau of Statistics November 15.

Leading up to the voter registration deadline, anti-marriage equality campaign material began to appear on the streets with fliers and posters in Melbourne and Sydney.

The material signaled a potentially vitriolic campaign ahead for same-sex marriage in Australia.

An estimated 15,000 marriage equality demonstrators took to the streets in Melbourne for the annual rally in support of same-sex marriage over the weekend, according to Anthony Wallace, rally organizer of Equal Love.

Prime Minister Malcolm Turnbull, who supports same-sex marriage, hasn't fared as well in the polls, he and his party are at a six-month low among voters, according to media reports.

The vote has been criticized for what many call an unnecessary expense to taxpayers at $96 million when Parliament could avoid a vote by passing same-sex marriage legislation.

 

Canada to issue 'third gender' passports

Gender non-conforming Canadians will be able to choose to identify as "X" on their passports starting Thursday (August 31).

Immigration, Refugees and Citizenship Canada will introduce an interim measure that will allow people to self-identify an unspecified gender on government issued identification, including passports.

"By introducing an 'X' gender designation in our government-issued documents, we are taking an important step toward advancing equality for all Canadians regardless of gender identity or expression," Immigration Minister Ahmed Hussen said in a statement, reported CBC News.

The law requires a sex designation on travel documents under the International Civil Aviation Organization rules. "X" is one of three sex markers allowed.

Gender variant Canadians said that they were excited to be able to change their sex marker on their IDs.

"I'm thrilled, it's a step forward for our society. It's progress," Laura Budd, who plans to switch her gender marker to an 'X' soon, told CBC News.

The Canadian government warned that travelers with the "X" marker traveling to non-gender-conforming-friendly countries should be aware of advisories and laws in the destination country.

Canada joins Australia, India, Nepal, New Zealand, and Pakistan issuing gender-neutral passports.

 

Got international LGBT news tips? Call or send them to Heather Cassell at Skype: heather.cassell or oitwnews@gmail.com.

 

 






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