- Janusz Korczar

1. Introduction

The United Nations Convention on the Rights of Children^[2] ("UNCRC") provides for the rights of all children, viz., persons under 18 years of age. These rights inter alia include the right not to be discriminated against (art. 2), the right to life, survival and development (art. 6), the right to express their views (art. 13) and for those views to be respected (art. 12), protection from violence, abuse and neglect (art. 19), access to health services, particularly primary health care (art. 24), right to an adequate standard of living (art. 27), right to education (art. 28), protection from drug abuse and sexual exploitation (arts. 33 and 34), and protection from abduction, sale and trafficking (art. 35).

India's commitment to children is evident through the several Constitutional provisions that are dedicated to the protection and development of children. The Constitution of India ("the Constitution") secures for all citizens, including children, certain inalienable fundamental rights, including the right to equality and equal protection of laws (art. 14), right to life and personal liberty (art. 21), and a prohibition on trafficking of human beings and forced labour (art. 23). Apart from these, the Constitution goes the extra mile making special provisions for children (art. 15(3)), upholding their right to education (art. 21A), prohibiting child labour (art. 24), protecting children of tender age from abuse (art. 39(e)), urging the State to provide early childhood care and education for all children up to 6 years of age (art. 45) and to raise the level of nutrition and standard of living, and improvement of public health (art. 47). Most importantly, art. 39(f) of the Constitution provides that children be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Supplementing the above provisions, the Union and State Governments have enacted laws and developed National and State level policies, respectively, in the interest of children. However, the condition of children in India at large has not faced a shift in its course as expected. Amidst this, the visibility of queer children and their right to Sexual Orientation (gay, lesbian, bisexual, pansexual, etc.) and Gender Identity (transgender, intersex, and queers) ("SOGI") is a long tunnel without a flicker of light.

2. Queer Children- A sub-community neglected by law in India

Until 6 September 2018, when the Supreme Court of India held Section 377 of the Indian Penal Code, 1806 to be unconstitutional in part, adults involved in consensual homosexual acts were criminals in the eyes of the law in India.^[3] The ground-breaking judgement did breathe some justice into the lives of the queer community. But all that it assured them was protection from being criminally prosecuted for their SOGI. The community is still fighting its battle to be recognised as equal citizens of the country^[4]- to secure equal marriage rights and the consequent legal protections and entitlements that are available to heterosexual married couples in India- in simple words, to let them be.

The laws are silent. To complicate, the gender specificity of provisions under the Indian personal laws are reflective of prejudice, lack of awareness towards the LGBTQ+ community ("the community"), and the looming queerphobia. The little respite that the community has had is its own conviction and relentless power to fight, allyship from amidst the society and a subset of the Bar and the Bench,^[5] and the presence of community members within the system who have been striving for change. However, this is a long drawn battle. And as in the case of all battles, children are the most affected and unthought-of.

In India, the major legislations concerning children are The Juvenile Justice Act, 2015 ("JJ Act"), and the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act").

The JJ Act, under Section 1(4), envisages children under two broad circumstances, i.e. children in need of care and protection and children in conflict with the law. The POCSO Act, as the title suggests, deals with the protection of children from offences of sexual assault, sexual harassment and pornography and provides for the penal prosecution of such offenders.^[6] Neither of these legislations directly protect or deal with the rights of children who face discrimination and threat to their body and dignity on the basis of their SOGI.

Another legislation that contemplates affected children is The Protection of Women from Domestic Violence Act, 2005. However, under the said Act, an "aggrieved person" is only a "woman who is or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent."^[7] A "child" as defined under this Act^[8] is only an ancillary protected under the Act. Meaning, that a child subjected to domestic violence on account of their SOGI cannot avail of any protection under the provisions of this Act.

Consent of a minor is not recognised under Indian law. Therefore, NGOs involved in supporting LGBTQ+ individuals are not empowered to deal with queer children and teenagers, especially when such children have fled or have been sent out of their homes on account of their SOGI, and once again, there is no data available on this aspect.^[9]

This leaves them with many doors to run out of but none to knock on in search of acceptance and protection.

3. State of Queer Children in India

The United Nations Children's Fund ("UNICEF"), in its most recent 2021-report of The State of the World Children ("the Report"),^[10] chose Children's Mental Health as its central theme. The report states that children and young people who are lesbian, gay, bisexual, transgender, queer/questioning or other (LGBTQ+) are vulnerable and prone to chronic social stress and stigma- such as bullying and perceived parental rejection, which can be linked to the high prevalence of mental health conditions in them.^[11] Citing several studies, the report posits that children and young people identifying on the non-binary spectrum are confronted with significant and intersecting forms of discrimination which lay spokes in access to opportunities and expose them to violence,^[12] consequently placing them at a greater risk to their mental health. Available data based on global level studies are distressing.

A report based on the Millennium Cohort Study in the United Kingdom exposed that LGBTQ+ 14-year-olds were five times more likely to have depressive symptoms and experience self-harm compared to their heterosexual peers.^[13] Other common vulnerabilities included bullying, victimisation, physical inactivity, food restriction, poor body image and substance use. These children also additionally expressed lower life satisfaction and self-esteem and said they were less connected with their caregivers.

The issue not being limited to the United Kingdom, a meta-analysis of the mental health of young LGBTQ+ people showed elevated rates of suicide attempts, anxiety and depression.^[14] Particularly, instances of depression were associated with bullying by peers and friends, rejection by family, hate crimes, internalised oppression, the stress of concealing and managing their stigmatised identity, and maladaptive coping.^[15] In addition, it was observed that young LGBTQ+ people, especially those who identify as male or are born with male genitalia, are at greater risk of school-based victimisation, which can impact academics, health and development.^[16] Another study goes to show that young people who identify as non-binary run the risk of experiencing worse mental health outcomes, less social support and are at greater risk of abuse and victimisation.^[17]

Citing data pertaining to the years 2019 and 2016 from the United States, which indicate that the proportion of LGBTQ+ individuals between 12- to 14-years of age who died by suicide was three times higher than 25- to 29-year-olds^[18] and that lesbian, gay or bisexual 14- to 18-year-olds were almost three times more likely to have seriously contemplated suicide than their straight-identifying peers,^[19] respectively, the Report distressingly records that adolescents who identify as LGBTQ+ are a particular risk group for suicide.^[20] There is evidence to show that the present-day LGBTQ+ youth are more likely to have attempted suicide than those in previous generations, despite rising social acceptance in much of the world.^[21]

There seems to be no reliable or substantial data on queer/LGBTQ+ children/adolescents neither on a pan-India basis nor with specific demographic reference to individual States.

A 2018 report published by the Ministry of Women and Child Development, Government of India, has mapped data pertaining to Child Care Institutions under the Juvenile Justice (Care and Protection of Children) Act, 2015 and other institutions.^[22] However, the report suffers from two fundamental constraints. First, the scope of the said report is limited to institutionalised children only and, therefore, is far from giving a complete picture, if at all it is a picture. Second, the report has gender-classified data under the heads "boys", "girls", and "transgender" and is therefore exclusionary.

It would not be too far stretched to assume that the numbers pan-India will, in any way, be less dreadful.

The UNCRC Committee General Comment (GC15) on the right of the child to the enjoyment of the highest attainable standard of health (art.24),^[23] in Paragraph II(B)(8), in line with Article 2 of the United Nations Convention of Rights of the Child has inter alia recognised SOGI as grounds of discrimination and has reiterated the obligation of State Parties to ensure that children's health is not undermined as a result of discrimination which is a significant factor contributing to vulnerability.

As evidence shows, LGBTQ+/ queer children and youth are a risk group for bullying and discrimination at school by peers, abandonment by parents, compulsion into unscientific processes such as "conversion therapy", homelessness, sexual abuse, trafficking, violence, drug abuse, malnutrition, Sexually Transmitted Diseases (STDs), lack of access to health care, trauma and several other mental health issues such as anxiety, depression, as a result of constant societal scrutiny, alienation and discrimination. The above list of problems is, however, not exhaustive.

4. The Intersecting Rights Violation

The broad categories of rights of children are their right to life (health and survival), right to education, right to protection and right to participation. These rights are, in a way, interdependent on each other. For instance, a child would not be in a position to access their right to education unless they are physically and mentally healthy enough to attend school. This shows the interdependence between the right to education and the right to life. Similarly, a child who is not even protected against physical or mental abuse has no way of accessing their right to participate in their own life. Therefore, each of these broad rights is inalienably interdependent and interwoven with each other in terms of the ability of children to realise each of them. The legislative neglect of queer children creates a situation where these rights are affected in an intersecting manner.

LGBTQ+ individuals, especially children and youth, face unique and distinct health challenges. These challenges include physical trauma from torture and everyday mental abuse, which results in profound depression and anxiety; substance abuse problems; physical and domestic violence; and exposure to communicable diseases such as tuberculosis and even HIV. In fact, sex trafficking, which LGBTQ+ youth are a high-risk group, has been linked to HIV/AIDS. This link has important consequences for LGBTQ+ individuals and overall public health policies.^[24] Forced into commercial sex work, LGBTQ+ individuals who are trafficked are at high risk of contracting sexually transmitted diseases, which increases the risk of contracting HIV. Sex trafficking has additionally been associated with contributing to new strains of the virus that are resistant to treatment. More research, health promotion, and awareness are needed to address the wide range of health disparities affecting LGBTQ+ victims of sex trafficking.^[25]

Studies indicate that stigma and minority stress are determinants of LGBTQ+ health disparities among youth.^[26] The minority stress theory refers to the "excess stress to which individuals from stigmatised social categories are exposed as a result of their social, often a minority position",^[27] and therefore indicates that health disparities observed in LGBTQ+ populations do not reflect psychological issues inherent to LGBTQ+ individuals, but rather are the end result of persistent stigma directed toward them.^[28]

Hatzenbuehler ML, et al.,^[29] observes that such stigma and minority stress exist across three levels. Namely, individual (self-stigma and disclosure), interpersonal (abuse, rejection and discrimination), and structural (State policies and institutional practices) levels for LGBTQ+ youth, and that multi-component interventions must be developed to target and reduce negative consequences among LGBTQ+ youth. Children, as such, find themselves not being heard sufficiently or allowed their right to participate, and in the case of LGBTQ+ children, not only are they not heard but are dismissed and ridiculed simply because of the way they are born.

There have been several reports of LGBTQ+ suicides. A news report from October 2015 reported as many as 16 LGBT suicides in 18 months in Tamil Nadu alone, the victims being between the age group of 18-30.^[30] In mid-2019, a 19-year old boy in Chennai was pushed to take his life after he was 'ridiculed for being homosexual.'^[31] In February 2022, a 16-year old boy in Faridabad lost his life to suicide. In his suicide note, he had written that he faced harassment and discrimination owing to his SOGI, at school.^[32]

The decision to end one's life is certainly no decision made overnight and is an unfortunate outcome of sustained deterioration and injury to mental health arising out of family and societal scrutiny, ostracisation, and exposure to queerphobic and unsafe environments right through their formative tender years and adolescence. In light of the same, it is imperative and crucial to address the protection and survival of queer/LGBTQ+ children.

In 2019, UNESCO, in partnership with a Chennai-based NGO Sahodaran, conducted a survey study^[33] among sexual and gender minority youth in Tamil Nadu schools on the various forms of SOGI-based violence, bullying and harassment. According to this report, 60% of high and middle school students and 50% of higher secondary students reported physical bullying, and 43% of primary school students reported sexual bullying as a consequence of their SOGI. Among those who reported the incidents (which is a minuscule percentage), following the principle of victim-shaming/blaming, 29% of students were asked to "change" their feminine "mannerisms" and "behaviours" to avoid bullying. It is distressing to note that 33.2% of queer students' key reason for dropping out of school was SOGI-based bullying and harassment.

The education system, especially at the school level, plays a crucial role in normalising the SOGI spectrum, and failure to extend acceptance of LGBTQ+ children will lead to violation of the intersecting rights of the child. That there is no norm or Standard Operating Procedure in place for educational institutions across the nation mandating inclusionary practices and that there is literally no one to question or keep a check on entities that discriminate against children based on their SOGI reflects poorly on the efforts of the State in the interest of LGBTQ+ children. This by itself is discriminatory.

The National Council for Educational Research and Training ("NCERT") published a training manual for teachers titled 'Inclusion of Transgender Children in School Education: Concerns and Roadmap' ("the Manual"). The purpose of the Manual was to sensitise teachers and educators on aspects of gender diversity with a focus on gender-nonconforming children and transgender children. However, the Manual was subsequently taken down from the NCERT website.

Irrespective of their SOGI, children require legal protection from abusive, violent and sexually exploitative adults. The underreporting of sex trafficking among LGBTQ+ individuals by local and national governments makes it difficult to understand the specific nature of the crimes and the total number of people affected.^[34] While many LGBTQ+ children are not sexually active, they still face discrimination and abuse based on the perception that they are.^[35]

5. Judicial Allyship

The Indian Judiciary has expressed allyship through a number of significant judgements. However, being two of the most significant judgements that almost set the wheels in motion, neither National Legal Services Authority v. Union of India ("NALSA")^[36] nor Navtej Singh Johar v. Union of India,^[37] addressed the issue of rights of queer children. However, Navtej recognised that 'Sexual orientation is immutable, since it is an innate feature of one's identity, and cannot be changed at will.'^[38]

The Madras High Court rendered two pathbreaking judgements that address some of the issues faced by LGBTQ+ children in India.

Firstly, in April 2019, in Arunkumar and Anr. v. Inspector General of Registration and Ors.,^[39] the Court upheld the right to informed consent for intersex children. The Bench inter alia took note of the World Health Organisation's report, "Sexual Health, Human Rights and the Law", which proposed a 'deferment of Intersex Genital Mutilation (IGM) until the intersex persons are old enough to make decisions for themselves, and the Supreme Court's decision in NALSA that no person shall be forced to undergo any medical procedures to be able to legally assert their gender identity. In doing so, the Hon'ble Court, as a first of its kind, prohibited the performance of sex reassignment surgery on intersex infants and children.

Subsequently, in June 2021, the Hon'ble Madras High Court in S. Sushma and Anr. v. Commissioner of Police and Ors.,^[40] took de-stigmatisation of the LGBTQ+ community to the next level. Amongst many other reforms that the decision brought in place, it banned "conversion therapy" for the first time in the nation.^[41] In what came before the Court as a mere petition seeking protection against police harassment and a threat from family members of the Petitioners, who are a homosexual couple, the case has become a symbol of judicial allyship and would form part of history in the movement for equal rights for the LGBTQ+ community. Apart from dealing with "conversion therapy", it led to the revamping of medical school curricula that contained unscientific literature on SOGI.^[42] It further issued directions to all Ministries and Government Departments involved in school and higher education to change the curriculum and train teachers towards SOGI inclusivity^[43] and issued guidelines for health workers, parents, etc. Further, the Court condemned the NCERT for removing the Manual, calling it a 'knee jerk reaction'.^[44] The Court sought a status report from NCERT on the training manual and directed that the Council publish the training module by the academic year beginning in 2022, as undertaken by the Council.^[45] A glossary of terms (prepared under the consultation of the Community) to be used while addressing the LGBTQ+ community was also appended, and the State Government was directed to publish the same.^[46]

Most importantly, the case stands as testimony to how the journey from queerphobia to allyship requires nothing but some humanity, empathy and an open mind.

However, these two judgements, amongst several other queer-affirmative judgements, are cases where adults approached the Judiciary and eventually, the rights of children falling under the category came to be affirmed. This, however, cannot remain the sole remedy for the multitude of challenges and injustice faced by LGBTQ+ children across the board.

6. Optional Protocol on Complaints Mechanism- An Alternative Remedy?

A roundabout remedy for solving the legislative shortcoming and lack of avenues for redressal is the Optional Protocol to the UNCRC on Communications Procedure ("CRC-OP3"). The Protocol or the 'complaints procedures' is a quasi-judicial mechanism that allows children, groups of children or their representatives claiming that their rights under the UNCRC and other Child Rights Conventions have been violated to file a complaint or communication before the relevant 'treaty body,' i.e. the Committee on the Rights of the Child ("the Committee"). It is necessary that the violation alleged must have been committed by the State Party to the Convention, and such State Party must have recognised the competence of the Committee to receive such complaints through ratification of, accession to, the CRC-OP3. However, India is not a signatory to the Protocol^[47] , and therefore, this route is ruled out.

7. Way Forward and Conclusion

Queer/LGBTQ+ children must be instilled with the confidence and assurance that their SOGI will have nothing to do with the love and affection they receive from their family and the society, that their identity will in no way impede their peace and safety and most importantly if at all they are let down by this society, the State, as parens patriae will stand up for them and protect their fundamental rights. This can only be achieved by making comprehensive laws that are SOGI inclusive. Policies and Standard Operating Procedures that do not have as much force as that of law will not serve the queer children enough as they are the most vulnerable of vulnerable. Unlike adults, children can neither be expected nor pushed to fight legal battles to secure their fundamental human rights.

It is the duty of the State and each and every individual to ensure that children are allowed to be themselves and are given the opportunity and resources to grow to their fullest potential possible without any form of apprehension or fear of not being accepted for who they naturally are. They must be allowed to peacefully exercise their right to self-determination and participation, and their right to non-discrimination cannot be jeopardised at any cost.