May 22, 2024

Voice of Barristers

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Brazil supreme court voted to make Homophobia a crime, Indian parliament should also take steps to make homophobia a crime. An including changes which had taken place after Navtej Singh Johar case.

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Homophobia is a negative attitude and feeling towards homosexuality or the same kind of sexual attributes being a lesbian, gay, bisexual or transgender. It can be based on the fear, ignorance or often due to religious belief. Homophobia can be differentiated as institutionalized homophobia and internalized homophobia. There are also divided as social, emotional and rationalized homophobia and sexism, which is an intolerant personality.

Institutionalised homophobia:

Religious homophobia: Many religions have the anti-homosexual teachings, where the intensity of the homophobia is either neutral or incorporated to treat the homosexuals as a third gender. On the other hand, some religions also encourage same sex marriages. Some also serve the spiritual aspect of the LGBT community.


Verses that condemn the LGBT community have been present in the Old and New Testaments of the Bible. The Jews and the Christianity oppose homosexuality. The Catholic Church on homosexuality is that the same sex behavior should not be observed. The Catechism Churches proposes that “homosexuality is disordered. They are contrary to the nature. On any circumstance, it should not be approved.


In major Islamic sects homosexuality is opposed. In countries like Afghanistan homosexuality has death penalties. The Al-Fahitha Foundation were condemned to death, because of the threat and because they come from conservative families, and protecting their identities and maintaining secrecy.

State sponsored Homophobia:

This includes hate speech, criminalization, penalization and other forms of discrimination, and violence.

Past and Present Government:

The earlier government in most of the countries condemned the LGBT community. Police rounded up gays and lesbians regularly. Homosexuality is considered equally to abortion and divorce of legal marriages in most of the countries. Homosexuals were murdered legally.

Internalized Homophobia:

This is the negative attitudes, beliefs, and prejudice of the homosexuality and LGBT community that a person with the same sex attraction turns inward on themselves either they are identified or not as LGBT. It depends on the degree of internalized either their ideas are consciously or unconsciously affected. Most of the studies have shown that homophobia people are likely to have a repressed homosexual desires. Internal struggle of emotions, social beliefs and strong sexual and homosexual desires may occur. This discordance can cause clinical depression and a higher rate of suicide among the LGBT youth.

Social Homophobia:

The fear of being identified as a gay or lesbian in a society is the social homophobia. In sports, homophobia is rampant. Distancing themselves from the LGBT community and reaffirming as heterosexuals to gain social validation and protection to their gender. This can cause repression and denial reaction.

The Brazilian Supreme Court in the month of June 2019 has declared that homophobia as a crime. Eight if the eleven judges vote for this decision.

Justice Gilmar Mendes states, “Sexual orientation and gender identity are essential to human beings, to the self determination to decide their own life and seek happiness”.

In a country like Brazil racism was made a crime in 1989 with prison sentences up to 5 years. At present the court’s judges ruled that homophobia should also be under the crime law, until the country’s Congress approves legislation specifically deals with the LGBT discrimination. The judges declared that it was the country’s Congress has left the LGBT community unprotected.

The lack of the Congress Legislation has led to the framing of the rules and has not supported homophobia and only the legislature has the power to create “types of crimes” and to set punishments. Brazil is still a dangerous country for LGBT community, where same sex marriages are legal but.

In India, steps were taken to create homophobia as a crime. The petition filed by Navtej Singh Johar, a dancer and identified as a member of the LGBT community challenged to the Penal Code of the Section 377, which originally stated that criminalized ‘carnal intercourse against the order of nature’ was unconstitutional in so far as it is criminalized sexual conduct between adults of same sex. The petitioner rose on the ground that constitutional rules are violated the privacy of freedom of expression, equality, human dignity and protection from discrimination.

The Five- Judge bench of the Indian Supreme Court held that Section 377 of the Penal Code, 1860 so far applied to the consensual sexual conduct between adults in private was unconstitutional.

The court reiterated the decision in National Legal Services Authority v. Union of India that gender identity to one’s personality and denying the same would be violative of one’s dignity.

The court also reiterated the decision on K.S.Puttaswamy v. Union of India denying LGBT community and its right to privacy is violative of the fundamental rights.

The court affirmed that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state and it does not harm public decency or morality”

The court also reaffirmed the decision in Shafin Jahan v. Asokan K.M. and Shakthi Vahini v. Union of India that adults right to choose partner of his/her life is individual liberty.

J. Malhotra states, homosexuality is “not an aberration but a variation of sexuality”.

J. Chandrachud opinionated, law must take positive steps for equality “equal citizenship in all its manifestations”.

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