Shri Vaishnav Vidyapeeth Vishwavidyalaya

Shri Vaishnav Institute of Law

Session 2023-28

B.A.L.L.B. (First Year)

Term Paper

Topic: History and Rights LGBTQ+ in India

Submitted to: Ms. Mansi Trivedi

Submitted by: Nidhi Soni
Enrollment no.: 2317BALLB0015471
Date of submission: 13th December, 2023

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 History and Rights LGBTQ+ in India

Abstract

Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) rights in India have evolved in recent
years. However, LGBTQ citizens still face certain social and legal difficulties as compared to the
people who do not belong to that community. It is duty of the court to pass just and reasonable
order, duty of the Government to ensure that verdict reaches to the general public and duty of the
public to welcome the decision of the court with open arms. However, with regard to the Rights
of LGBTQ+ people, even though the Supreme Court of India in Navtej Singh Johar vs. Union of
India judgement, 2018 stepped up by abolishing the part of Section 377 of Indian Penal Code
which criminalized act of homosexuality, the Government and the public also failed to utilize the
judgment to the fullest as even after nearly 30 Months of passing of the landmark judgment, the
situation with regard to LGBTQ Community has not improved much. The Central and State
Government failed to make any special provisions for upliftment of LGBTQ people and the
Community also failed to get societal acceptance from the citizens of the country. The paper
looks at the long struggle of LGBTQ Community for basic Fundamental Rights and the
Discrimination they face in different spheres of life with special reference to Transgender people
and Judicial Pronouncements. The paper finally analyzes the road ahead for the LGBT
Community and what further legal and social changes are needed for LGBT individuals to gain
full acceptance and equality within the conservative Indian society
Keywords: LGBTQ+, Homosexuality, Unnatural, Transgender, Social Acceptance

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I. Introduction

“I am what I am, so take me as I am” – Johann Wolfgang von Goethe

Shakespeare says through one of his characters in a play ―What’s in a name? If we call a rose
by any other name, then also it would smell the same. This conveys that what really matters is
the essential qualities of the substance and the fundamental characteristics of an entity but not the
name by which ‘it’ or ‘a person’ is called. Similarly, people cannot be differentiated or
discriminated or denied Basic Human Rights, just on the basis of their sexual preferences.

The idea of human rights rests on the central premise that all humans are equal. It follows that all
humans have dignity and all humans should be treated as equal. Anything which undermines that
dignity is a violation as it violates the principle of equality and paves the way for discrimination.
Such discrimination also violates the basic essence of the preamble of the Indian Constitution
which mandates justice and equality of status for everyone in all spheres whether it is social,
economic or political.

Gay Pride parades that are held in Delhi, Kolkata and Bangalore on 29 July, 2008 is a clear
example that LGBT and Queer identities may be acceptable to more Indian youths than ever
before, but within the boundaries of family, home and school, constant struggle is faced by the
community.

II. What is LGBTQ+ ?

The term ‘LGBTQ+’ is used to denote following sects of people :

Lesbian: A lesbian means, a woman who is sexually attracted to a woman.

Gay: A gay means, a man who is sexually attracted to the man.

Bisexual: A bisexual person is someone who is sexually attracted to people of both sexes.

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Transgender: It is a term used to define people whose gender identity and gender expression,
differs from that usually associated with their birth sex.

Queer: Queer is a term used to refer to sexual and gender identities who are neither heterosexual
nor cisgender (opposite of transgender). The term ‘Queer’ in itself is a community as they
generally go for using pronouns instead of being restricted to, He, She etc.

The ‘+’ in ‘LGBTQ+’ signifies that the above list is not exhaustive it includes other categories as
well like Pansexual, Asexual, Intersex etc.

III. History of Homosexuality In India: Since 1860 section 377 was in force, and it played a
vital role against the LGBT people. Whenever they had been caught either for staying together or
for any other reason, they suffered a lot from society as well as from police authority.

They have always been tortured by the police authority for their sexual orientation or behaviour.
Section 377 was a weapon to dominate the LGBT people. Thomas Macaulay drafted the Indian
Penal Code, and this provision was based upon the Buggery Act 4 .

This Act defined buggery as unnatural sexual activity, i.e., Same-sex intercourse, which is
against the will of God and criminalized that kind of activity. In 1828, the Buggery Act5 was
replaced by the Offences against Person Act 1828 , which. Beliefs about the Etiology of
Homosexuality and about the Ramifications of Discovering Its Possible Genetic Origin, The
Offences against Persons Act, 1828 (9 Geo. 4 c. 31).

Indian Journal of Law and Legal Research Volume III Issue II | ISSN: 2582-8878 4 broadened
the area of unnatural sexual performances, and this act was helpful to prosecute the rapists.
However, it also included homosexuals within the meaning of unnatural sexual activities. Section
377 penalizes unnatural offences, i.e., offences against the order of nature.

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In order to understand whether homosexuality is against the order of nature or not, we need to
find out the meaning of the phrase "order of nature". Order of nature means the happenings
which are considered normal and such happenings are expected to occur naturally without
human interference. According to section 377, intercourse between man and woman is
considered natural, and any other carnal intercourse like anal or oral is unnatural. Hence, as per
this section, a sexual relationship between two opposite sex is natural.

How do we determine what is natural and unnatural? It can be seen that what was considered
unnatural at an earlier point in time is no longer natural and vice versa. Let us take the example
of polygamy. Before coming into force of the Hindu Marriage Act, 1955, ‘polygamy’ was in
practice, and people did not find it unnatural, while if we saw the practical situations of the
society, women suffered a lot because of the practice of polygamy. The Hindu Marriage Act,
1955 had been enacted with many important objectives, including, among other things, the
abolition of polygamy. So, when polygamy, which was once unnatural, has become natural, why
the relationship between two same-sex people is not becoming natural? It is shocking and
unfortunate to see that it took nearly 158 years after the passage of the Indian Penal Code to
decriminalize consensual sexual activity between homosexuals! Homosexuality means sexual
desire or behavior directed toward people of one’s own sex or gender i.e., when a person is
attracted towards the same gender to which he belongs, the he is said to be Homosexual. It is not
a new concept, it has been prevalent in India from a very long time. Ancient texts like Rig Veda
which dates back to around 1500 BC and sculptures depict sexual acts between women as
revelations of a feminine world where sexuality was based on pleasure and fertility. The
description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim
Nawabs & Hindu Aristocrats, male homosexuality in the Medieval Muslim history like Malik
kafur are some historical evidences of same-sex relationships.

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Amara Das Wilhelm in her book1 compiled years of extensive research of Sanskrit texts from
medieval and ancient India, and proved that homosexuals and the “third gender” were not only in
existence in Indian society back then, but were also widely accepted. In the Kama Sutra, a 2nd
century ancient Indian Hindu text, the chapter “Purushayita” in the book mentions that lesbians
were called “Swarinis”. These women often married other women and raised children together.
They were also readily accepted both within the ‘third gender’ community and ordinary society2.

However, these experiences started losing their significance with the advent of Vedic
Brahmanism and, later on, of British Colonialism. Giti Thadani (a researcher) claims that Aryan
invasion dating back to 1500 B.C began to suppress homosexuality through the emerging
dominance of patriarchy.

In the Manusmriti there are references to punishments like loss of caste, heavy monetary fines
and strokes of the whip for gay and lesbian behavior. Imposing of these punishments clearly
indicate that Homosexuality was practiced at that time. Since 1974, homosexuality ceased to be
considered an abnormal behavior and was removed from the classification of mental disorder.

This clearly shows that how, with time, homosexuality has gone on from being completely a
natural act to being an unnatural act which is against the order of the nature.

1 Amara Das Wilhelm, Tritiya-Prakriti: People of the Third Sex: Understanding Homosexuality,

Transgender Identity and Intersex Conditions through Hinduism 24 (Xilbris Corporation, 2013)

2 Amara Das Wilhelm, Tritiya-Prakriti: People of the Third Sex: Understanding Homosexuality,

Transgender Identity and Intersex Conditions through Hinduism 24 (Xilbris Corporation, 2013)

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IV. Is Homosexuality Unnatural ?

In 2018, Commenting upon the landmark judgment ‘Navtej Singh Johar V. Union of India’ of
The Hon’ble Supreme Court against Section 377, Rashtriya Swayamsevak Sangh (RSS) leader
Mr. Arun Kumar uttered the word – “unnatural” in his comments. He stated:

“Gay marriage and relationship are not compatible with nature and are not natural, so we do not
support this kind of relationship. Traditionally, India’s society also does not recognize such
relations.”3

Indian Penal Code was enacted in 1860. Thus, it is a Victorian era draconian law which
criminalizes the homosexuality based on Judeo-Christian theology rather than on science. The
law relegated some people to inferior status based solely on how they looked or who they loved,
invaded their privacy, and degraded their dignity. Sexual orientation or gender identity should not
be a deciding factor in determining the role play of any individual in a progressive society but,
section 377 of Indian Penal Code, 1860 did that.

The act of engaging in Sexual activity with the same sex was considered ‘against the order of the
nature’ which as per Section 377 IPC includes homosexual and transgendered community.
However, this is a completely bizarre argument because according to various researches,
Homosexuality exists in at least 1500 species of animals especially in dolphins. So, if it is
prevalent in so many Species, then how can a single specie i.e., Human Beings declare it to be
against the order of Nature.

V. Is Homosexuality Anti-Religious?

Every religion has their own religious texts and writings which they blindly follow but these
Religious writings have now become outdated and has been wrong at many levels from the very
start for example untouchability is justified in various Hindu Religious books. According to
many religious and ancient books, the practice of untouchability and differentiation on the basis
of race and caste was justified at that time to ensure proper functioning. This practice continued
till a provision was added in The Constitution of India prohibiting the practice of untouchability.

3
Supra 2.
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Contrary to untouchability, many religious experts consider Homosexuality as Anti-religious but
it is not true at all as there are many ancient Indian texts which contain the verses supporting the
LGBT community. The Hindu epics mention several characters who demonstrate a range of
sexual orientations and gender identities, including Shikhandi, Chitrangada (wife of Arjuna and
mother of Babruvahana), and Brihannala from the Mahabharata. None of these characters are
discriminated against because of sexual orientation or gender identity in the sacred text. Rather,
they are all treated with respect, and judged by their abilities rather than their sexuality. The
Arthashastra has numerous mentions of LGBT individuals in various professions free from any
persecution. And the stories of Ardhanareeshwara (Shiva as half-man, half-woman) and Lord
Ayyappa who was born to Shiva and Mohini (Female avatar of Lord Vishnu) indicate the subtle
approach that Hinduism adopts towards matters of gender. Apart from the texts, even the
Monuments have depicted existence of homosexuality. The scriptures and monuments in
Khajuraho, Madhya Pradesh depict the existence of homosexuals during the past and thus are a
proof that they were accepted as a part of the society rather than being anti-religious.

VI. Problems Faced by LGBTQ

Even though we might call ourselves advance and modern generation but it is disheartening to
see the atrocities faced by people belonging to LGBTQ Community at different places and
environment. Some of the common problems which they face are:

According to UNESCO Report of 2018, LGBTQ Children face a lot of bullying in schools,
colleges etc. and are also discriminated. This act of bullying and discrimination leaves a
permanent scar in their life and it often takes them years to get out of that. (UNESCO Report,
2018)

If a person declares himself or is found to be belonging to LGBTQ Community then generally a

bounty is set for their Secret Honor Killings. Recently, many people have become victim of such
honour killings.

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Women suffer the most for belonging to LGBTQ Community as when a woman declare herself
as a lesbian or a bisexual, then the family generally suggests them to go for sanctioned corrective
rapes in which a woman has sexual intercourse with a man without her will to treat the ‘Disease
of Homosexuality’.

LGBTQ People not only face discrimination in schools and colleges but this menace does not
end even after the completion of their education, they are also Discriminated while getting jobs
as no employer wants to hire a person with a different sexual preference as that idea does not go
well with the society and is often questioned by other employees. Thus, they are unable to get
better pay jobs and are stuck in the vicious circle of poverty.

Non-acceptability of LGBTQ is not only prevalent in rural areas but also in urban families as the
families in urban areas are more concerned about their status in the society that they tend to
forget their duties towards their children and often throw them out of the houses in order to
prevent their social status when they find out that their child belong to LGBTQ Community.

LGBTQ people are often thrown to correction centers where they are administered psychotic
drugs as part of ‘corrective therapy for Homosexuality’. They get so addicted to these drugs that
even after getting out from the torture of correction centers, they find solace in drugs and other
psychotropic substances and thereby, become addicted to it.

People belonging to LGBTQ Community are often isolated from everyone, which leads them
into depression.

• THE CHALLENGES FACED BY HOMOSEXUALS

If a person belongs to the LGBT community, it is highly unlikely that he/she will be accepted
with open hands by the society. Generally, they are discriminated on the basis of their
orientation. Consequently, they have to face numerous problems viz.:

i) Marginalization: Marginalization is one of the major problems faced by homosexuals.

Marginalization means treating a person as peripheral. Sometimes, society refuses to
accept them so that it becomes difficult for them to live as an individual. They are

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 stigmatized and get negative attitudes from society. They want to contribute in every
sphere of society, but they are not allowed to participate equally because they are
marginalized. We can term it as the social exclusion of homosexuals. Marginalization of
LGBT people often starts from the family where they are born. “In research, it is found
that approximately 8% of transgender adults experienced homelessness in the past year
in the United States of America. 6% of African American sexual minorities experienced
housing instability. 71% of sexual minorities experienced homelessness for the first time
as an adult and 20% of sexual minorities experienced homelessness before the age of
18.”4
ii) Harassment and Torture: It can hardly be seen that a teenager, who is found as
homosexual, has not been harassed or tortured in school by friends. The harassment is
not limited to the schools only; people from the LGBT community face problems
everywhere, be it in school or college, or streets. Sexual violence is experienced by
lesbians, gays, transgenders, bisexuals at a higher rate than straight people. The Centres
for Disease Control and Prevention (CDC), in National Intimate Partner and Sexual
Violence Survey, found that: 8 Bianca D.M. Wilson, Soon homelessness among LGBT
Adults in the U.S., [Link]
us/ (4th January, 2022 02:43 P.M.) Indian Journal of Law and Legal Research Volume III
Issue II | ISSN: 2582-8878 7
• 44% of lesbians and 61% of bisexual women experience rape, physical violence or
stalking by an intimate partner, compared to 35% of straight women.

• 26% of gay men and 37% bisexual men experience rape, physical violence or stalking
by an intimate partner, compared to 29% of straight men.

• 40% of gay men and 47% of bisexual men have experienced sexual violence other than
rape, compared to 21% of straight men.5

4
Bianca D.M. Wilson, Soon Kyu Choi [Link], Homelessness among LGBT Adults in the U.S.
5
Human Rights Campaign, Sexual Assault and the LGBT Community, [Link],

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iii) Rejection: Rejection which the LGBT people usually face may be of types i.e., rejection
from the family and rejection from the society. If a person is gay or lesbian in society, he
or she is always rejected by society. Even if it is known to the family members that any
child is found as gay or lesbian, he or she is ignored or marginalized by the family
members.
iv) Homelessness: Homelessness is one of the biggest problems faced by people of being
queer. In New York, 40% of the LGBT people are homeless and staying on the streets.
They are simply thrown out of their homes for being queer. Even the domestic violence
shelters also refuse to give shelter to them. Because of this homelessness, these people
become addicted to drugs or sometimes they become sex workers. Furthermore, they
also have to face financial problems.
v) Mental Weakness: Mental weakness is the common result that comes in the mind of
LGBT people. When they need companion or support, they are usually rejected by the
family and society and even by their friends. Because of this type of rejection, they start
suffering from mental issues like going under depression. Sometimes they attempt to
self-harm or try to commit suicide. This suicidal attempt is very commonly found in the
mind of LGBT people.

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VII. Section 377 Indian Penal Code, 1860

Section 377 of the Indian Penal Code, a figment of colonial creation, criminalized unnatural
sexual acts ‘since its application as law in 1862’. Homosexuality falls within such acts and may
attract punitive measures.6

The Now Redundant Provision of Section 377 of Indian Penal Code, 1860 (Herein after referred
to as IPC) talked about Unnatural offences and stated that whoever voluntarily has carnal inter-
course against the order of nature with any man, woman or animal shall be punished with Life
Imprisonment or Rigorous Imprisonment of up to 10 years.

This offence was made non-bailable and cognizable offence in which sodomy and homosexuality
was considered one and the same thing. A homosexual man was viewed as a ‘type of person’
who has only anal intercourse with his partner. However, the emotional attachments, fantasies
and other desires were not given due consideration. Thus, de jure, it was an attempt to
criminalize sodomy while de facto it was an attempt to criminalize and stigmatize
homosexuality.

In Fazal Rab Vs State of Bihar, 1983, The Hon’ble Supreme Court was dealing with a case
where a man had homosexual relations with a boy with the consent of the boy. The court
observed that the offence under Section 377, IPC implies sexual perversity. Considering the
consent of the boy and no use of force by the adult, the Supreme Court reduced the sentence
from 3 years rigorous imprisonment to six months rigorous imprisonment. This clearly implied
that even though the homosexual act was consensual, but by virtue of Section 377 of IPC, he was
still imprisoned. By applying Section 377 IPC in such a manner, the court completely violated
his Fundamental Right to Live with dignity (Article 21), Fundamental Right to freedom to
express (Article 19(1)(a)) among many other fundamental rights.

Section 377, not only deals with homosexuals but also punishes heterosexual couples engaged in
sodomy i.e., if a married couple engages in ‘Anal Intercourse’ instead of ‘Normal Intercourse’,
then both Husband and Wife will be considered guilty, if the wife consented for anal intercourse
but, if she did not, then the husband alone will be considered guilty under Section 377 IPC.

6
R.A. Nelson, Indian Penal Code 3738 (S.K. Sarvaria Ed., 9th ed.2003).
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In India, Marriage is taken as an implied consent by the wife for ‘normal’ sexual intercourse and
not for ‘anal’ sexual intercourse i.e., if a couple has married, then it will be presumed that both of
them have consented to have sexual relations. So, if the husband does Marital Rape on her wife
i.e., forcefully, without her consent have ‘normal sexual intercourse’ with her, then this, will not
be termed as offence of rape, if the wife is aged 18 years and above. This is a big blow to the
Indian Penal Code as it allows heinous offence like a marital rape but punishes for the consenting
sexual act amongst same sex consenting adults.

In 1994, a controversy emerged when a medical team visited the Tihar Jail in Delhi and reported
a high incidence of sodomy in the male wards. They recommended making provisions for
condoms, as there was a risk of HIV infection being transmitted into the jail inmates. The jail
authorities abstained from making provisions for condoms since it will mean that they are
approving a crime and aiding and abetting an offence under the IPC. 7 As a consequence of the
inactivity of the prison staff, the AIDS Bhedbhav Virodhi Andolan filed a petition in the Delhi
High Court challenging the official position and the constitutionality of Section 3778.

(A) Naz Foundation Govt. v. NCT of Delhi, 20099

In July 2001, Lucknow police raided a park and detained a few men on the suspicion of
them being homosexuals and then were charged under section 377 IPC. The police also
arrested nine more men associated with ‘Bharosa Trust’, an NGO which was working to
create awareness amongst people about safe sexual practices and STDs by distributing
pamphlets providing tips on safe sex to homosexuals. These people were then accused of
running a sex racket and were denied bail10.

7
SiddharthNarrain, The Queer Case of Section 377 ([Link]
acts/06_siddharth.pdf ; last accessed on 27th March, 2021).
8 Ruth Vanita,Queering India 15(2002).

9
WP(C) No.7455/2001, Delhi High Court; Decision on 2nd July, 2009.

10 Arvind Narrain, The Articulation of Rights Around Sexuality and Health: Subaltern Queer Cultures in India in the
Era of Hindutva in health and human rights 153 (2004)

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As Gupta11 argues, ‘the Lucknow incidents show that the mere existence of Section 377, even if
it cannot and is not being enforced in prosecuting sexual acts in private, adds a certain
criminality to the daily lives of homosexual men and puts them under the gaze of the law and a
constant threat of moral terrorism’. After this, Naz Foundation (a non-governmental organization
working on HIV/AIDS and sexual education and health since 1994) filed a petition in 2001
before the Delhi High Court challenging the constitutional validity of Section 377 of IPC.[12]12

The petitioner argued that Section 377 of IPC violated their fundamental right to life and liberty,
right to privacy and dignity, right to health, right to equality and freedom of expression. It was
also submitted that Section 377 undermined the public health efforts which aimed at reducing the
risk of transmission of sexually transmitted diseases like HIV/AIDS, as the fear of prosecution
under this Section prevented people from talking openly about their sexuality and lifestyle.

Finally, in 2009, Delhi High Court held that Section 377 of IPC imposed an unreasonable
restriction over the two consenting adults from engaging in sexual intercourse even in private.
Thus, it was in direct violation of their basic fundamental rights enshrined under Articles 14, 15,
19 and 21 of the Constitution of India. The instant reaction to the judgment was of extreme
elation from the sexual minorities across the nation while religious leaders condemned it with
equal passion13.

11
Supra 4

12
About Us – Naz Foundation. (n.d.), from [Link] website: [Link] .org/aboutus/(last
access ed on 3rd April, 2021).

13
About Us – Naz Foundation. (n.d.), from [Link] website: [Link] .org/aboutus/(last
access ed on 3rd April, 2021).

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VIII. Curious Case of Savita and Beena

On 22 July 2011, two women, Savita and Beena shocked the world by becoming the first lesbian
couple to be legally married in India.

They both knew each other from their childhood. Savita had been forced into an arranged
marriage in 2010 with a police constable from her village, but after five months of marriage, she
ran away because of the repeated abuses by her husband and her in laws. The Local Panchayat
dissolved the Marriage. Her Uncle again tried to marry her off later after which, Savita decided
to kill herself but was saved by Beena. There was open declaration in the village to kill Savita,
but, Beena took Savita to her house to keep her protected.

Later, they both filed affidavit in the Gurgaon court with evidences, that they are married as
husband and wife. The additional sessions judge Vimal Kumar of Gurgaon Court in its order
based on a 2009 ruling from the Punjab and Haryana High Court to “ensure help and give
assistance to runaway couples and on the basis of Naz Foundation Case, on 25 July, stated that
Beena and Savita had filed an affidavit that they were married, but did not comment on the
validity of the marriage. Thereby, not explicitly accepting the union but also not rejecting it
altogether.

(A) Suresh Kumar Koushal v. Naz Foundation, 2013

After eight years of a long battle, When the LGBTQ+ community was just letting out a sigh of
relief; various Individuals and faith based groups out rightly rejected the idea of decriminalizing
homosexual relationships as held by Delhi High Court in Naz Foundation Govt. V. NCT of
Delhi, 2009, citing India’s rich history bathed in ethics and tradition. They filed an appeal before
the Supreme Court of India to reconsider the constitutionality of Section 377.

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The division bench of Justice GS Singhvi and Justice SJ Mukhopadhaya in Hon’ble Supreme
Court on 11th December 2013 overturned the judgment of the Delhi High Court and re-
criminalized homosexuality. The bench held that LGBT+ persons constituted a ‘minuscule
minority’ and therefore did not deserve constitutional protection and further observed that
Section 377 of IPC did not suffer from the vice of unconstitutionality and thus, is totally
constitutional. Supreme Court vehemently ignored basic fundamental rights under Article 14, 15,
19 and 21, just because LGBT constituted miniscule minority, passing the essence of the
Constitution of India.

But the silver lining of this judgment was that, instead of putting a halt on the LGBT movement,
it rather rekindled a new wave of activism in India. The Supreme Court’s regressive judgement
faced immense criticism from every nook and corner for erasing basic human rights of
homosexuals. The result was that public conversation about LGBT rights witnessed an upsurge
in India, which later turned into a massive movement.

IX. Rights of transgender people

The main activists during the mass LGBT movement belonged to the Transgender Community as
they have been the worst sufferer of exploitation amongst the whole LGBT+ community in India
due to their degraded social, educational and economical status. These people have never been
considered as a part of society and have always been subjected to exploitation, ostracization i.e.,
exclusion, humiliation and violence either in the hands of society or the authorities in power.

The constant rejection and not having access to resources, these people often resort to beggary or
prostitution, making them more vulnerable to discrimination, STD’s and crimes such as human
trafficking. But, the 2014 Judgement of the Supreme Court in NALSA V. Union of India,
2014 brought in a new ray of hope and euphoria for these transgender people as for the first time
in the history; they were recognized as the third gender.

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

The issue before the Hon’ble Supreme Court in this case was whether there was a need to
recognize the hijra and transgender community as a third gender for the purposes of public
health, education, employment, reservation and other welfare schemes?

The Supreme Court in this landmark judgement created the ‘third gender’ status for hijras or
transgenders. As earlier, the transgender people were forced to describe themselves as either
male or female, but after the judgement, they could proudly identify themselves as transgender or
Third Gender. The Judgment also laid down the framework to guarantee the transgender
community a bunch of basic human rights which can be summarized as follows:

The Supreme Court held that the non-recognition of their identities was in violation of Article 14,
15, 16 and 21 of the Constitution of India.

The Supreme Court further directed the Government of India to treat the members of “Third
Gender” as an economically and socially backward class in terms of giving them reservation. It
also stipulated that government should make proper policies for the transgender community in
the light of Articles 15(2) and 16(4) to ensure equality of opportunity in education and
employment as per the judgement, the third gender would be categorized as other backward
classes [OBC] to confer them the benefit of reservation in relation to government jobs and
educational institutions.

The court also took cognizance that a conflict between one’s birth gender and identity is not
essentially a pathological condition. So, rather than adopting a ‘treatment of the abnormality’, the
focus should be on ‘resolving distress over a mismatch’. In simple words, it means that the court
recognized the difference between both the gender and biological components of sex. The court
defined biological characteristics to include genital, secondary sexual features, chromosomes etc.
but defined gender attributes as one’s self-image i.e., an individual’s deep emotional or
psychological sense of sexual identity and character which is not restricted to the binary sense of
male and female but can lie on a broad spectrum.

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After this judgement, transgender people now can change their gender without undergoing a sex
reassignment surgery. Additionally, they also have a constitutional right to identify and register
themselves as the third gender. Apart from this, various state governments took small steps to
benefit the transgender population by making policies of health and housing. However, a major
blow to this judgement came after the passing of Transgender Persons Bill, 2018

X. Transgender persons (protection of rights) bill, 2019

Transgender Persons (Protection of Rights) Bill, 2019 was enacted with an objective to protect
the rights of the Transgender Community by prohibiting discrimination against them with
regards to employment, education, health care, access to government or private establishments.

But in the name of empowering the community, the bill further exposed them to institutional
oppression and dehumanizes their body and identity. Some lacunas with the Bill are:

The bill takes away the right from transgender people to determine their sexual orientation. As
per the bill, the change of gender identity in documents can only be done after proof of sex
reassignment surgery which must be certified by the District Magistrate. This not only affects
autonomy and privacy of transgender people, but also exposes them to harassment in the hands
of authorities.

Punishment for Sexual abuse against Transgender is only two years imprisonment as per
Transgender Persons (Protection of Rights) Bill of 2019 whereas, a similar kind of offence if,
happened against women attracts a serious punishment under IPC extending up to 7 years
imprisonment.

There are no provisions in relation to providing any scholarships, reservation or changing the
school curriculum to make it LGBT+ inclusive or ensuring safe inclusive schools and
workplaces for the trans community.

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XI. Government’s View on LGBT+

‘You don’t have to be a cow, to fight for animal rights!’ Shashi Tharoor

On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the
decriminalization of homosexual activity by Delhi High Court, stating that in India,
homosexuality is seen as being immoral. The Central Government reversed its stand on 28
February 2012, asserting that there was no legal error in decriminalizing homosexual activity. On
December 18, 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced
the bill for the decriminalization of Section 377, but the bill was rejected by the house by a vote
of 7124.

In 2016, Kerala mooted free sex reassignment surgeries in Government hospitals after it
introduced the first State government policy on transgender people. This was a positive move by
the state government, giving a hope that from this time onwards, all the steps taken in respect of
people belonging to LGBT Community will be in the positive direction. But, recently, on 25
February 2021, the Central Government side in a case stated in Delhi High Court that marriage
can only be between biological man and woman, strongly opposing validation of same sex
marital unions.

On 5th March 2021, The Hon’ble Supreme Court of India issued notices to the Centre and other
parties after hearing a Public Interest Litigation (PIL) challenging Health Ministry guideline
banning transgender and gay persons from donating blood. A three-judge bench, headed by Chief
Justice of India (CJI) SA Bobde, was hearing a petition filed by one T Santa Singh challenging
the constitutional validity of Section 12 and 51 of the Guidelines on Blood Donor Selection and
Blood Donor Referral, 2017, issued by the Ministry of Health and Family Welfare. The rule
imposed a complete ban on members of the LGBT community and female sex workers from
donating blood considering these groups to be in high-risk of contracting HIV/AIDS infection.
So, instead of checking the blood sample of people who are donating blood, the guidelines are
arbitrarily excluding LGBT Community from donating blood.

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The above instances clearly states that the stance of central and state government on Rights of
LGBT Community is going back and forth and it still is not determined whether the Government
approve of the whole community or not.

(A) K.S. Puttaswamy v. Union of India, 2017

In the Suresh Kumar Koushal V. Naz Foundation judgment when the Naz Foundation argued
before the Supreme court that Section 377 of IPC violated the right to privacy, this argument was
not given much importance as Right to privacy was not a settled law. Then in
2017, Puttaswamy Judgment basically focused only on right to privacy and declared it as an
intrinsic part of right to life under article 21 and therefore declared it as a fundamental right.

But this case is also closely related to rights of LGBT because of Justice Chandrachud’s opinion
in the Puttaswamy judgment under the heading titled ‘discordant notes’ in which he rejected the
rhetoric opinion of the court in Suresh Kumar Koushal Case and observed that sexual orientation
also falls within the wide ambit of right to privacy. Moreover, under Section 377, a third party
could sue the partners who voluntarily entered into sodomy thereby infringing on the right to
personal liberty and privacy as enshrined in the Fundamental Rights of the
Constitution. Puttaswamy decision notes also registered the criticism about hypothesis principle
used in the Suresh Kumar Koushal judgment and stated that the minuscule population of LGBT+
cannot be the ground to deprive them of the basic fundamental rights and such curtailment of the
fundamental right cannot be held tolerable even when a few are subjected to hostile treatment, as
opposed to a large number of people.

The USA Supreme Court observed in Lawrence v. Texas14, ‘the choice of sexual orientation is
part of the intimate and personal choices and falls under the zone of privacy because it is a
choice central to personal dignity and autonomy as well as central to the liberty protected by the
Fourteenth Amendment of the American constitution’.15 Similarly, the Constitutional Court of
South Africa observed in National Coalition of Gay and Lesbian Equality v. Minister of
Justice16, ‘If, in expressing one’s sexuality, one acts consensually and without harming the other,
invasion of that precinct will be a breach of privacy.’17

14 559 US 538 (2003)

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(B) Navtej Singh Johar v. Union of India, 2018

After the Hon’ble Supreme Court in Suresh Kumar Koushal Case overruled Delhi High Court
judgement of 2013, homosexuals were again considered criminals for doing consensual sexual
acts. After which, India witnessed an increasing number of LGBT rights protests when some
high-profile names including hotelier Keshav Suri, Ritu Dalmia, dancer Navtej Singh Johar
among many others came forward and filed the petition before the Supreme court challenging the
constitutional validity of Section 377 of IPC.

The Supreme court agreed to refer the issue to a larger bench and heard several petitions in
relation to it. The Government further stated that it will not interfere in the matter and will leave
it to be decided by the Supreme Court in accordance with its own wisdom. Petitioners argued
that section 377 violated their constitutional rights to privacy, freedom of expression, equality,
human dignity and protection from discrimination.

The 5-judge bench finally gave its verdict on 6th September 2018 and unanimously held that:

Section 377(1) is unconstitutional up to the extent of consensual intercourse between adults as it

infringes the fundamental rights of intimacy, autonomy and identity. Thereby, decriminalized act
of homosexuality.

Section 377 is vague and does not create intelligible differentia between what is “natural” and
what is “unnatural”.

It also curbs freedom of expressing one’s sexual identity, ie. right to freedom of expression as
enshrined under Article 19 of the Indian constitution.

The sexual orientation is an inherent part of self-identity and invalidating the same is denying the
right to life.

15 Rachel Sweeney, Homosexuals and the Right to Privacy, 34 CUMB L REV 171

16
(CCT11/98) [1998] ZACC 15:1999 (1) SA 6
17
Ibid
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Not giving them basic rights just because they constitute a minuscule section of the population
cannot be a valid justification to deny them this right.

The court also heavily criticized the Koushal judgement and called it irrational, arbitrary and
manifestly unconstitutional.

It was also emphasized that discrimination on the basis of sexual orientation is unconstitutional
because sexual orientation is a natural phenomenon as proven by scientific and biological facts.

The Supreme court also directed the government to create public awareness regarding LGBT
rights and to eliminate the stigma surrounding the LGBT people. The judges further elaborated
upon the issues surrounding mental health, dignity, privacy, right to self-determination and
transgenders.

(C) Arun Kumar v. Inspector General of Registration, 2018

It is a case from the Madras High Court which reads into the category of brides Under Hindu
Marriage Act, 1955 to also include transwomen. As per Hindu Marriage Act, 1955 the definition
of marriage only includes men and women. This judgment expanded the category of women to
include transgender people to identify as women to be brides as well. It takes the clause of self-
identification as has been mentioned in the NALSA judgment, where a person can identify as any
gender identity without needing a State or external body to verify their identity.

Evolving this clause, The Court said that if an individual wishes to identify as a transwoman,
then they have the constitutional right. This, among many other cases, lays the foundation for
marriages within the LGBTQ+ community broadening the right to marry.

However, this does not mean that LGBTQ+ have right to marry in India in every case. There is
no Supreme Court Judgment as of now to allow it.

XII. Conclusion

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There is not an iota of doubt regarding the fact that all the judgments related to LGBT People
will shape the future of the LGBT rights movement in India. The significance of
the NALSA judgement and Navtej Singh Johar judgement is not only limited to the recognition
of third gender identity and decriminalization of homosexuality. But these judgements are also
progressive because apart from deciding upon the issue in hand, they have even laid down the
basic groundwork to confer a host of other civil rights which were earlier not available to the
LGBT community but are ordinarily enjoyed by the heterosexual persons and cisgender persons.
These civil rights include the right to marriage, right to adoption, right to surrogacy, right against
discrimination, freedom from sexual assault etc.

But, even after so many developments, LGBT People are still struggling to get the societal
validation. A Supreme Court Judgment can merely pass a resolution, but it is the duty of the
society to not discriminate against LGBT People and to make them feel inclusive. Merely
allowing Sexual Acts between the same sex couple will not bring them at the equal peril as the
other citizens as the future of same sex marriage, Legal Sanctity of adoption by same sex couple,
right against oppression etc. are still uncertain and the community is still fighting for it. So, the
battle is clearly not yet won, there is a long road ahead to make India an inclusive country in the
true sense.

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