National University of Advanced Legal Studies, Kochi

DISSERTATION SUBMITTED IN PARTIAL FULFILMENT OF THE

REQUIREMENTS FOR THE DEGREE OF MASTERS OF LAWS (2020-21) ON
THE TOPIC

THE STATE OF LGBTIQA+ RIGHTS IN INDIA AND TAKING THE

NARRATIVE FORWARD: LIVING FREE AND EQUAL

Under The Guidance and Supervision Of

Prof. (Dr.) Mini.S

Submitted by: -

DIANA LAURENCE PAUL

Register No: LM0120021 LL.M (CONSTITUTIONAL AND ADMINISTRATIVE LAW)

i|Page
 CERTIFICATE

This is to certify that DIANA LAURENCE PAUL, Reg. No: LM0120021 has submitted her
dissertation titled, “The state of LGBTIQA+ rights in India and taking the narrative

forward: Living Free and Equal”, in partial fulfillment of the requirement for the award of
Degree of Master of Laws in Constitutional and Administrative Law to the National University of
Advanced Legal Studies, Kochi under my guidance and supervision. It is also affirmed that, the
dissertation submitted by him is original, bona-fide and genuine.

Date: 11-10-2021
Place: Ernakulam
Prof. (Dr)Mini.S,
Guide and Supervisor,
Professor of Law,
NUALS, Kochi.

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 DECLARATION

I declare that this dissertation titled, “The state of LGBTIQA+ rights in India and taking the
narrative forward: Living Free and Equal”, researched and submitted by me to the National
University of Advanced Legal Studies in partial fulfillment of the requirement for the award of
Degree of Master of Laws in Constitutional and Administrative Law, under the guidance and
supervision of Prof (Dr)Mini.S is an original, bona-fide and legitimate work and it has been
pursued for an academic interest. This work or any type thereof has not been submitted by me or
anyone else for the award of another degree of either this University or any other University.

Date :11-10-21
Place: Ernakulam Diana Laurence Paul
[Link]: LM0120021
LL.M (Constitutional And Administrative Law)
NUALS

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 ACKNOWLEDGEMENT

I thank Almighty for His countless blessings. Before getting into the thick of things, I would like
to add a few words of appreciation for the people who have been a part of this research work, right
from its inception. This dissertation is the result of the pertinent efforts and contributions of many
a people around me. I take this opportunity to extend my heartfelt gratitude and sincere regards to,
Prof. (Dr.) Mini.S, for her constant guidance, support and encouragement throughout the tenure
of this dissertation. Her valuable suggestions and enlightening discussions have played an
instrumental role in the successful completion of this dissertation. This idea would have not
blossomed in absenteeism of her extensive supervision. I’m deeply indebted to her for taking out
time from her busy schedule and entertaining my queries.

I sincerely thank the National University of Advanced Legal Studies, for having given me the
opportunity to conduct such extensive research in the topic, in furtherance of Masters of Law
Degree. I would like to extend my gratitude to the Vice-Chancellor Prof. (Dr.) K.C Sunny for his
constant encouragement and support.

I would further extent my deep-felt gratitude to the faculty of NUALS for their constant
encouragement. I convey my gratitude to Ms. Nanditha Narayan, for having given me initial
guidance in selection of an area for research and her inputs. I would also like to thank the library
staff for the support rendered in collecting and compiling material for this research.

This dissertation was completed during the COVID 19 pandemic crisis when the whole world is
battling and like everyone, the researcher also had to face her fair share of emotional turmoil due
to the uncertain situations. I must express my very profound gratitude to my dear family, friends
and batch-mates for their constant support and encouragement during the troubling times. I feel
blessed to have this circle of well- wishers who have always known ways to keep my spirits high.

DIANA LAURENCE PAUL

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 LIST OF ACRONYMS & ABBREVATIONS

1. AIDs: Acquired Immune Deficiency Syndrome

2. AIR: All India Reporter
3. Apr.: April
4. Cri. LJ: Criminal Law Journal
5. cl.: Clause
6. Cir.: Circuit
7. Dr.: Doctor
8. DB: Division Bench
9. DEL: Delhi
10. DLT: Delhi Law Times
11. ECHR: European Court of Human Rights
12. Feb.: February
13. Govt.: Government
14. Hen.: Henry VIII
15. IPC: Indian Penal Code, 1860
16. ILO: International Labour Organisation
17. Lah.: Lahore
18. LR: Law Review
19. LGBTQA: Lesbian Gay Bisexual Transgender Queer Asexual
20. Mad.: Madras
21. Mar.: March
22. NALSA: National Legal Services Authority
23. No.: Number
24. Ors.: Others
25. P.: Page
26. Para: Paragraph
27. POCSO: The Protection of Children from Sexual Offences Act, 2012
28. Prof.: Professor
29. SA: South Africa

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30. Sect.: Sector SCC Supreme Court Cases
31. SCR: Supreme Court Reporter
32. STDs: Sexually Transmitted Disease
33. &: And
34. U.D.H.R: Universal Declaration of Human Rights
35. UN: United Nation
36. U.O.I: Union of India
37. U.P: Uttar Pradesh
38. U.S.A United States of America
39. v.: Versus
40. WHO: World Health Organization
41. W.P: Writ Petition

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 TABLE OF CASES
Indian Cases
1. Anamika v. Union of India, (17.12.2018- DEL HC).
2. Arunkumar v. Inspector General of Registration WP(MD)No.4125 of 2019
3. Brother John Antony v. State, 1992 Cri LJ 1352, 1359(Mad).
4. Bandhua Muki Morcha v. Union of India and others (1997) 10 SCC 549.
5. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
6. Government v. Bapoji Bhatt (1884) 7 Mysore LR 280.
7. State of Gujarat v. Bachmiya Musamiya 1998 (2) Gujarat L R 2456
8. K.S. Puttuswamy v. Union of India, (2018) 1 SCC 809.
9. Lingala Vijaykumar v. Public Prosecutor, Andhra Pradesh 1978 SCC
10. Lohana Vasanthlal Devchand v. The State AIR 1968 Gujrat 252.
11. M v. H, (1999) 2 SCR 3.
12. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
13. Mihir v. State of Orissa 1992 Cr LJ 488
14. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1)
SA 6 (CC).
15. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
16. Navej Singh Johar v. Union of India, (2018) 1 SCC 791.
17. Naz Foundation v. Govt. Of NCT of Delhi (2009) 160 DLT 277 (DB).
18. Olga Tellis and others v. Bombay Municipal Corporation AIR 1986 SC 180.
19. Pooran Ram vs State of Rajasthan 2001 Cr LJ 91.
20. State v. Sheodayal, AIR 1956 Nagpur 8
21. State of Kerala v. K Govindan (1969) Cr LJ 818.
22. Sudesh Jhaku v. K C Jhaku, 1998 Cri LJ 2428.
23. Sunil Batra vs Delhi Administration 1978 SCC (4) 494
24. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1 SCC 1.
25. S Sushma v. Commissioner of Police W. P. No. 7284 of 2021
26. United States v. Smith, 574 F.2d 988 (9th Cir. 1978).
27. Yusuf Khan Alias Dilip Kumar and Ors. v. Manohar Joshi and Ors. (2000) 2 SCC
696.

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Foreign Cases

1. Caleb Orozco v. Attorney General of Belize, Claim no. 668/2010 (2016).

2. DP Minwalla v. Emperor, AIR 1935 Sind 78.
3. Delwin Vriend & ors. v. Her Majesty the Queen in Right of Alberta & ors.,
(1998) 1 SCR 493.
4. Dudgeon v. The United Kingdom (1982) 4 ECHR 149.
5. Egan v. Canada, (1995) 2 SCR 513.
6. Euan Sutherland v. United Kingdom, (2001) ECHR 234
7. Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass.2003).
8. Justice Kennedy, Lawrence v. Texas, 539 US 558, 18 (2003)
9. Khanu v. Emperor AIR 1925 Sind 286.
10. Khanu v. Emperor AIR 1934 Lah. 261.
11. Kimberly Hively v. Ivy Tech Community College of Indiana, 830 F.3d 698 (7th
Cir. 2016).
12. Lawrence v. Texas, 539 U.S. 558, 562 (2003).
13. Nicholas Toonen v. Australia Communication, No. 488/1992, UN Doc
CCPR/C/50/D/488/1992 (1994).

14. Noshirwan vs Emperor AIR 1934 Sind 206.

15. Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., 576 US
(2015).
16. Queen Empress V. Khairati I.L.R. 6 All 205
17. Roberts v. United States Jaycees, 468 U.S. 609, 610 (1984).
18. S. v. Kampher, 1997 (4) SA 460 (C).
19. Schwenk v. Hartford, 204 F. 3d 1187 (9th Cir. 2000).

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 TABLE OF CONTENTS

SL NO. CONTENTS PG.

NO.
1 CHAPTER: I – INTRODUCTION 1-
1.2 SECTION 377 & LGBT ACTIVISM IN INDIA 16
1.3 EMERGENCE OF QUEER ACTIVISM IN INDIA
1.3.1 FIGHTING FOR THE RIGHT TO LOVE: THE STRUGGLES OF QUEER WOMEN.
1.3.2 WIDENING THE SPECTRUM OF QUEER CONCERNS: THE EMERGENCE OF
GENDER IDENTITY-BASED STRUGGLES
1.4 THE STRUGGLE AGAINST THE VIOLENCE OF ‘NORMAL TIMES’
1.5 RESEARCH PROBLEM
1.6 RESEARCH OBJECTIVE
1.7 HYPOTHESIS
1.8 RESEARCH QUESTIONS
1.9 RESEARCH METHODOLOGY
1.10 SCHEME OF THE STUDY

2. CHAPTER: II -CRITICAL ANALYSIS OF THE EXISTING INDIAN LEGAL 17-

FRAMEWORK 40
2.1 LEGAL PROVISIONS AND CONSTITUTIONAL PROTECTION OF LGBTQIA+
MINORITIES IN INDIA
2.2 THE INCIDENT THAT TRIGGERED THE TRANS ACTIVISM IN INDIA
2.3 LAW’S RELATIONSHIP WITH GENDER AND SEXUALITY
2.3.1 THE TRANSGENDER IDENTITY AND THE LAW
2.3.2 PROVISIONS OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS)
ACT,2019
2.3.3 ARTICLE 14 AND TRANSGENDERS
2.3.5 ARTICLES 15 & 16 AND TRANSGENDERS
2.3.6 ARTICLE 19(1)(a) AND TRANSGENDERS
2.3.7 ARTICLE 21 AND THE TRANSGENDERS

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2.4 PERSONS WITH INTERSEX VARIATIONS AND THE LAW
2.5 SEXUAL ORIENTATION AND THE LAW
2.5.1 SECTION 377 AND ITS DECRIMINALIZATION
2.5.2 ON THE ANVIL OF ARTICLE 14
2.5.3 ON THE ANVIL OF ARTICLE 15
2.5.4 ON THE ANVIL OF ARTICLE 19
2.5.5 ON THE ANVIL OF ARTICLE 21
2.6 GENDER NEUTRALITY AND THE LAW
3. CHAPTER: III – JUDICIAL RESPONSES IN PROMOTING AND 41-
PROTECTING LGBTIQA+ COMMUNITY 58
3.1 COLONIZATION AND CRIMINALIZATION
3.2 KHAIRATI AND THE QUESTION OF GENDER IDENTITY
3.3 NOWSHIRWAN V. EMPEROR: CALLING A NEW WORLD INTO BEING
3.4 FROM SODOM TO GOMORRAH
3.5 FROM GROSS INDECENCY TO SEXUAL PERVERSITY
3.6 NAZ FOUNDATION V. NCT DELHI: THE PROMISE OF HOPE
3.7 SURESH KUMAR KOUSHAL AND THE FAILURE OF CITIZENSHIP
3.8 NATIONAL LEGAL SERVICES AUTHORITY v. UNION OF INDIA
3.9 THE RIGHT TO PRIVACY PAVES THE WAY FOR LGBTIQA+ RIGHTS IN
INDIA
3.10 NAVTEJ SING JOHAR AND OTHERS V. UNION OF INDIA: A BATTLE FOR
ALL
4 CHAPTER: IV – A COMPARATIVE STUDY ON THE VARIOUS EXISTING 59-
COMPREHENSIVE ANTI LGBTIQA+ DISCRIMINATORY LEGISLATIONS 83
IN SOUTH AFRICA, CANADA, USA
4.1 SOUTH AFRICA
4.1.1 HISTORY
4.1.2 THE LAW REFORM MOVEMENT CHALLENGES THE PENALIZATION OF
SAME-SEX RELATIONSHIPS
4.1.3 THE FINAL CONSTITUTION’S RETENTION OF THE SEXUAL ORIENTATION
CLAUSE

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4.1.4 CONSTITUTIONAL COURT CASES AND VICTORIES FOR THE LGBTIQA+
COMMUNITY
4.1.5 EXTENDING THE RIGHTS ACCORDED TO SAME-SEX LIFE PARTNERS
4.2 CANADA
4.2.1 DISCRIMINATION ON THE GROUND OF SEXUAL ORIENTATION: THE
HISTORICAL BACKGROUND
4.2.2 GAY LIBERATION IN THE 1970s
4.2.3 THE 1980s
4.2.4 THE HIA/AIDS CRISIS
4.2.5 THE 1990s AND 2000s
4.2.6 THE 2010s AND BEYOND
4.3 USA
4.3.1 THE BEGINNING OF THE GAY RIGHTS MOVEMENT
4.3.2 THE GAY RIGHTS MOVEMENT SINCE THE MID-20TH CENTURY
4.3.3 GAY POLITICAL VICTORIES
4.3.4 OUTBREAK OF AIDS
4.3.5 GAY MARRIAGE AND BEYOND
4.3.6 TRANSGENDER RIGHTS
4.3.7 THE CURRENT STATE OF THE LGBTIQA+ COMMUNITY IN THE USA
4.4 INDIA
5 CHAPTER: V - CONCLUSION AND SUGGESTIONS 84-
92
6 BIBILIOGRAPHY a-h
APPENDIX i

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 1. CHAPTER -I
INTRODUCTION

The term "lesbian, gay, bisexual, and transgender, gender diverse, intersex, queer, asexual, and
questioning (LGBTIQA+)," which is more commonly abbreviated as LGBT, refers to a broad
coalition of groups that are diverse in terms of gender, sexual orientation, race/ethnic origin, and
socioeconomic status. The communities encompassed by this widely used umbrella term face
distinct gender identity and sexual orientation issues. The LGBT community represents the various
aspects of gender, sexuality, romance, and other spectrums, and diversity, self-love, acceptance,
courage, and sympathy are humane virtues. India is the homeland and birthplace of the Hijra
community, a term that translates as transgender. This community was once revered and
considered holy messengers, and their blessings were sought on significant occasions such as
marriage and childbirth. The community is now treated as beggars, and the term Hijra is
frequently used as a derogatory slur.1 The broad concepts of sexual orientation and gender identity
are critical for comprehending the term LGBTIQA+ in its entirety. In developed and developing
countries, LGBTIQA+ is referred to by a variety of acronyms and terms. The wide range of terms
and languages related to them are given below.
• sex
• bodies
• gender
• sexuality
• sexual attraction
• experiences
• legal and medical classifications
It is critical to acknowledge the complexity of people's lived experiences and recognize that the
aspects mentioned above may apply differently and at different times throughout an individual's

1
India and the Evolution of LGBTQIA+ Rights, LAW EXPRESS (Last accessed on, July 29, 2021, 10:45 AM),
[Link]

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 life.2 One could argue that the focus on diversity within sex, gender, and sexuality brings LGBT
communities together. The numerous terms associated with LGBTIQA+ can be classified into the
following categories:
1. Bodies, gender, and gender identities.
2. Sexual orientations
3. Societal attitudes/issues

Bodies, gender, and gender identities

The term gender refers to the social characteristics of people that have historically been classified
according to an assumed difference between the sexes. Gender, as a component of the social-
cultural context, conveys social meaning in the form of femininity and masculinity. Gender
dictates how an individual expresses their gender through signs and signals. Gender norms define
an individual's clothing, physical appearance, as well as behavior, and mannerisms. Numerous
ways in which we deviate from these narrowly defined and rigid gender norms. Certain women
may feel more masculine, while certain men may feel more feminine, while others may feel neither
or reject gender entirely.
Cisgender/cis: When a person's gender corresponds to the sex they were assigned at birth, the
term "gender identity" is used.
Gender binary: The spectrum-based division of gender into two categories, man and woman,
according to biological sex.
Gender identity: Refers to how people perceive and describe themselves – whether they are male,
female, a mix of both, or neither.
Gender pronouns: These are how a person chooses to publicly express their gender identity by
using a pronoun, whether gender-specific or gender-neutral. (GLHV, 2016). It includes the more
traditional and gender-neutral pronouns such as they, they are, ze, hir, and others.
Genderqueer/non-binary gender: Gender-neutral and androgynous are terms used to describe
people who do not identify as solely male or female and may express themselves in ways other

2
National LGBTI Health Alliance. (2013a). LGBTI Cultural Competency Framework: Including LGBTI people in
mental health and suicide prevention organisations. Newtown: LGBTI Health Alliance (Last accessed on July 29 1
P.M)) [Link]/sites/default/files/Cultural%20Competancy%[Link].

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than woman or man. The two terms have slightly different meanings. Some people use them
interchangeably, but not everyone thinks they are the same thing.
Gender questioning is not always an identity, but it is sometimes used by people unsure of their
gender or transitioning. This is because their gender identity shifts over time.
Gender dysphoria: Gender dysphoria was previously referred to as "gender identity disorder," It
refers to psychological distress caused by a mismatch between an individual's gender identity and
the sex assigned at birth. Gender dysphoria affects people of all gender identities.
Intersex: Individuals with anatomical, chromosomal, and hormonal characteristics that differ
from medical and conventional understandings of male and female bodies are transgender. (Sex
Discrimination Amendment Act (Sexual Orientation, Gender Identity, and Intersex Status) 2013
(Sex Discrimination Amendment Act (Sexual Orientation, Gender Identity, and Intersex Status)
2013) (Cth). Intersex people can be "neither fully female nor fully male," "a combination of female
and male," or "neither fully female nor fully male."3
Sex: Anatomical and physiological chromosomal and hormonal characteristics make up a person's
sex. Sex categorizes people as male or female at birth based on their external anatomical features.
Although sex is not always explicit, some people are born with intersex characteristics, and
anatomical and hormonal features can change over time.
Sistergirl/Brotherboy: These are terms used in the aboriginal and Torres Strait Islander
communities to describe their cultural identities and roles. Sistergirl is a term used to describe
feminine spirit people who were born male. 2016 (GLHV). Brotherboys are Indigenous people
who are born female but have a male spirit. (GLHV, 2016).
Transgender/Trans/Gender diverse: People whose internal gender identity differs from those
typically associated with the sex, regardless of whether their internal gender identity is outside or
within the gender binary. Transvestite/Crossdresser, Non-, Pre-, and Post-Op Transsexuals, and
those who identify as Trans/Transgender, apart from, or in addition to binary Male and Female,
may use "Trans" as an abbreviation shortcut for the entire non-conforming to birth sex transgender
spectrum of Transvestite/Crossdresser, Non-, Pre-, and Post-Op Transsexuals, and those who
identify as Trans/Transgender. Transgender people can identify as female, male, or both. They can

3
AIZURA ET. AL., GENDER QUESTIONING 69 (Melbourne: Trans Melbourne Gender Project, GLHV, &
Rainbow Coalition.2010).

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choose not to identify as either gender; they can move freely between the gender binary or reject
it entirely.
People who identify as transgender/trans or gender diverse may choose to live their lives with or
without modifying their bodies, clothing, or legal status and with or without medical treatment or
surgery. Man, woman, transwoman, transman, trans guy, transmasculine, transfeminine, trans,
gender-diverse, genderqueer, gender-non-conforming, non-binary, poly gendered, pan gendered,
and many other terms are used to describe transgender/trans or gender diverse people (see Aizura
et al., 2010).
The sexual orientations of transgender/trans or gender diverse people are the same as the rest of
the population. The sexuality of transgender/trans or gender various people is referred to in terms
of their gender identity rather than their sex. He, she, they, hu, fae, ey, ze, zir, and hir are all
pronouns that transgender/trans or gender diverse people can use. It is disrespectful and harmful
to use incorrect pronouns to refer to or describe transgender/trans or gender diverse people.

Sexual Orientations

Aromantic/aro: Someone who does not find romantic attraction appealing. Aromatic people may
or may not consider themselves to be asexual.
Asexual/ace: A sexual orientation describes people with little to no sexual attraction in or outside
of relationships. People who identify as asexual can have romantic interests at any point along the
sexuality spectrum. In asexual people, a lack of sexual attraction does not always imply a lack of
libido or sex drive.
Bisexual: An individual attracted sexually, romantically, or emotionally to people of the same
gender and people of another gender. Bisexuality does not presuppose the existence of only two
genders. (2017, Flanders, LeBreton, Robinson, Bian, and Caravaca-Morera)
Gay: A person, usually a man, is sexually and romantically attracted to other men of the same
gender. Additionally, the term "gay" can refer to being sexually and romantically attracted to other
women.
Heterosexual: A person who is attracted to people of the opposite gender sexually and
emotionally.

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Lesbian: A woman establishes her primary loving and sexual relationships with other women
when she identifies as a woman.
Pansexual: A person who, regardless of gender identity, is sexually and romantically attracted to
everyone.
Queer: Sometimes used as an umbrella term to describe a range of sexual orientations and gender
identities. Although once used as a derogatory term, now it is used by some (often young people)
to describe their gender identity or sexual orientation outside the heteronormative binary.
Sexual orientation: The term sexual orientation refers to an individual's sexual and romantic
attraction to another person. This can include but is not limited to heterosexual, lesbian, gay,
bisexual, and asexual. However, it is essential to note that these are just a handful of sexual
identifications – the reality is that there is an infinite number of ways in which someone might
define their sexuality. Further, people can identify with asexuality or sexual orientation regardless
of their sexual or romantic experiences. Some people may identify as sexually fluid; their sexuality
is not fixed to any one identity.

Societal attitudes/Issues

Cisnormativity: Cisnormativity is the belief that everyone, or nearly everyone, is cis-gendered

and will identify with the gender assigned to them at birth. The existence of transgender/trans and
gender-diverse people is erased by cisnormativity.
Heteronormativity: The societal normalization of a belief that heterosexual relationships are the
only natural, normal, and legitimate expressions of sexuality and relationships, while other
sexualities or gender identities are unnatural and dangerous to society. (GLHV, 2016).
Heterosexism: Describes a social system based on the assumption that everyone is heterosexual
and that heterosexuality is inherently superior and normal. Homophobic and transphobic
prejudices, violence, and discrimination against non-heteronormative sexualities and gender
identities, as well as intersex varieties, are all fueled by heterosexism (Fileborn, 2012; GLHV,
2016).
Homonormativity: Within the queer community, homonormativity refers to the privileging of
specific people or relationships (usually cis-gendered, white, gay men). This term also implies that

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LGBTIQA+ people will conform to mainstream, heterosexual culture, such as accepting marriage
and monogamy as natural and normal.
Homophobia and biphobia: Fear, hatred, intolerance of – or discomfort that exist about people
who are not heterosexual.
Misgendering: When a person's gender identity is not reflected in how they are described or
addressed. (GLHV, 2016). This can include incorrect pronoun usage (she/he/they), familial titles
(father, sister, uncle), and other words with traditionally gendered meanings (pretty, handsome,
etc.). It is best to inquire about a person's preferred words at a convenient time.
Transphobia: Prejudices and stereotypes about transgender/trans and gender diverse people cause
fear, hatred, and discomfort.

Within the LGBTIQA+ communities, there are significant differences. Respect and
acknowledgment for how people describe their genders, bodies, and relationships is demonstrated
by understanding LGBTIQA+ terminology and inclusive language (National LGBTI Health
Alliance, 2013b). In organizations that use inclusive languages, such as schools, workplaces, and
services, people feel more welcome. It is worth noting that there can be many disagreements about
terminology and language both within and outside the LGBTIQA+ community (GLHV, 2016).
On September 16, 2006, at a press conference in New Delhi, the following open letter was released
in support of repealing Section 377 of the Indian penal code, addressed to "the government of
India, members of the judiciary, and all citizens.": "To create a truly democratic and plural India,
we must all work together to combat laws and policies that violate human rights and restrict
fundamental freedoms." This is why concerned Indian citizens and persons of Indian ancestry urge
removing section 377 of the Indian penal code, an 1861 colonial-era statute that criminalizes
passionate love and private, consenting sexual actions between adults of the same sex. This old,
outdated, and heinous law has served no useful purpose in independent India, as it did in the past.
Due to widespread intolerance and abuse, millions of gay and bisexual men and women have been
forced to live in fear and secrecy, at great personal and familial cost to their communities. It is
especially disgraceful that homophobic officials have recently used Section 377 to suppress the
work of legitimate HIV prevention organizations, leaving gay and bisexual men in India even more
vulnerable to HIV infections. Such violations of human rights would be deplorable in any modern
society. Still, they are especially so in India, founded on the principle that all people have equal

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access to fundamental rights, regardless of their background. Section 377, on the other hand,
presumptively treats those who love people of the same sex as criminals, which is a violation of
fundamental human rights, particularly the rights to equality and privacy, which are enshrined in
our constitution as well as the binding international laws that we have embraced, such as the
international covenant on civil and political rights.

Let us never forget the indisputable truth expressed in the Universal Declaration of Human Rights'
first article, which states that "everyone is entitled to all the rights and freedoms outlined in this
Declaration, without distinction of any kind." The repeal of Section 377, which is currently being
challenged in the Delhi high court, will bring us closer to our goal of achieving a just, pluralistic,
and democratic society. In India, there should be no discrimination based on sexual orientation.
This cruel and discriminatory law should be repealed in the name of humanity and our constitution.
Sincerely
… … … … … … … … … …”4
The LGBT Voices for the first time by the Indian judiciary when the Delhi high court decided in
favor of homosexuals. Despite the uproar, the most surprising aspect of the Delhi High Court's
decision in Naz Foundation v. Union of India5 is the case's conclusion: that law has no place in the
bedroom of consenting adults engaging in an activity that causes no harm to anyone.6 However,
despite being the custodian and protector of all people's fundamental rights, including minorities,
India's supreme court chose to show the polar opposite of compassion by passing the ball to a
majoritarian Parliament.7 The LGBT community's fight for fundamental rights continues, but
many homosexuals have given up hope and returned to the closet. The LGBT community's struggle
for basic rights continues, but many homosexuals have given up hope and returned to the closet.

1.2 SECTION 377 & LGBT ACTIVISM IN INDIA

4
Amartya Sen, ‘Backing gay rights', Times of India, (Sep 17 2006) [Link]
content/uploads/2013/12/377_OpenLetter_AmartyaSen.pdf.
5
Naz Foundation v. Union of India 160 (2009) DLT 277 (129).
6
S.377 reads: Unnatural Offences: whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for
term which may extend to ten years, and shall also be liable to fine. Explanation: penetration is sufficient to constitute
the carnal intercourse necessary to the offence described in this section.
7
Suresh Kumar Kaushal V. Naz Foundation, (2014)1 SCC 1.

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Section 377 of the Indian Penal Code, 1860, which conceptualized 'queer' as unnatural, was India's
first spark for emerging queer political consciousness. It is worth noting that supposedly foreign
law has survived for over 154 years, defying both anti-colonial resistance and the establishment of
a democratic India that guarantees Fundamental Rights to its citizens.8 For the first time,
homosexuality was explicitly criminalized as 'unnatural sex,' with a severe punishment ranging
from life imprisonment to death. In 1837, Lord Macaulay drafted the Indian Penal Code. Even so,
it was not until 1860 that it became law.9 While homosexuality was criticized in pre-colonial texts
such as the Manu smriti, it is unclear whether the punishment sought to punish homosexuality per
se or more general sexual transgression or caste norm violations.10 This is enforced by laws such
as the notorious Section 377 of the Indian Penal Code and the Criminal Tribes Act, 1871, which
came into effect on September 6, 2018. Section 377 was declared unconstitutional by the five-
judge panel because it criminalized two adults of the same sexual orientation having consensual
sexual intercourse, which was a matter of utmost privacy. The court overturned the bench's
decision in Suresh Kumar Kaushal v. Naz Foundation.11 The Supreme Court cited its own decision
in National Legal Services Authority v. Union of India,12 in which it stated that "gender identity is
intrinsic to one's personality, and denying it would be a violation of one's dignity." Discriminating
against LGBT people because they are a minority of the population would violate their
fundamental right to privacy.

1.3 EMERGENCE OF QUEER ACTIVISM IN INDIA

The struggle against this marginalization of homosexuals gave birth to a queer political
consciousness forged in the crucible of legal battles. Activist publications such as the 'Less the

8
Petersen, Carole J: Hong Kong and the Unprecedented Transfer of Sovereignty: Values in Transition: The
Development of the Gay and Lesbian Rights Movement in Hong Kong, 19 Loyola Los Angeles INT’L L.330 337-340
(1997).
9
CORRINNE LENOX & MATTHEW WAITES, HUMAN RIGHTS,SEXUAL ORIENTATION AND GEDNER
IDENTITY IN THE COMMON WEALTH 83-124 (Human Rights Consortium, Institute of Commonwealth Studies,
London,2013).
10
Queen Empress V. Khairati I.L.R. 6 All 205.

11
Supra note 7, at 114.
12
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

8|Page
Gay Report' (1991), 'Campaign for Lesbian Rights' (CALERI Report) 1997), 'Humjinsi' (1999),
and the PUCL-Karnataka report on Human Rights Violations Against Sexuality Minorities and the
Transgender Community in 2001 and 2003, respectively, signaled the emergence of queer political
consciousness. These documents were significant milestones for change and created a foundation
for demand for rights because they articulated a more excellent vision for queer rights.

When the AIDS Bedhbhav Virodhi Andolan (ABVA) organized a public demonstration against
police harassment of gay people in 1992, it was the first collective and public response to the
various injustices perpetrated on queer people. This is India's first documented gay rights protest.
The subject of both opposition and demand for rights became visible when secretive and silent
same-sex interaction became visible. ABVA asked, "When will the police get rid of its
homophobia?" Is it illegal for two consenting adults (of the same sex) to meet in a public place,
become friends, and have a healthy conversation about sexuality or any other topic—which may
or may not lead to sexual activity in a non-public place?13

Through the groundbreaking report Less Than Gay on queer rights, the ABVA provided a
prophetic vision of queer rights for the first time. It placed the violence against gays and lesbians
in the context of a larger culture of intolerance among the medical community, activist groups, and
even intellectual circles. The report discussed subversive queer desire as well as gay men and
lesbians' "intimate experiences, fears, and longings." It successfully provided an explanatory
framework as early as 1991, which was then picked up and elaborated on by queer activism in the
following years.14 The ABVA protest against police harassment in 1992 was not the last, and there
would be many more over the next two decades. The willingness to respond to violations had
become a defining feature of queer activism, attracting national and even international attention.
Several local campaigns against police harassment and violence (like the ABVA protest in 1992)
were launched.15

1.3.1 FIGHTING FOR THE RIGHT TO LOVE: THE STRUGGLES OF QUEER WOMEN.

13
ABVA Memorandum to the Commissioner of Police, New Delhi, 11.08.92 on file with the Alternative Law Forum.
14
AIDS Bedhbhav Virodhi Andolan, Less Than Gay: A Citizen's Report on the Status of Homosexuality in India,
ABVA (May 12, 2019, 21:41 PM), [Link]
15
Gay Community seek reforms in archaic sexuality law, Times of India, (17 August 2005).

9|Page
While the 1992 ABVA protest was the first public demonstration, Leela and Urmila, two
policewomen, decided in 1988 that they wanted social recognition for their relationship and
marriage. Although both women were dismissed from service on the flimsy grounds of a "long
leave of absence," their brave act inspired emerging queer activism.16 ABVA referred to Leela and
Urmila as "frontier women in the country's social landscape with their courageous and unusual
marriage."17

The much-publicized marriage of Leela and Urmila was followed by ABVA's 'Like People Like
Us' Fact-Finding Report in 1999 on Mamta and Monalisa's joint suicide attempt. Lesbian and
bisexual women are frequently trapped in a prison whose walls are made up of gender and sexuality
norms, according to the report. It showed how patriarchal constraints suffocate lesbian expressions
of personhood to the point where suicide appears to be the only option left.18 While the report
started a conversation about some of the most pressing issues confronting queer women in India,
the controversy over the film Fire brought queer women into the national spotlight. Deepa Mehta
directed the film, which delicately depicted a relationship between two women.19The film should
be banned, according to the Hindu Rights Activist. Following a tumultuous debate in the Indian
Parliament, the Supreme Court intervened to prevent the film from being outlawed completely.20
The Shiv Sena's decision to attack theatres where Fire was being screened turned an academic
debate into a raging street battle. Such blatant attacks on the screening of Fire galvanized Indian
civil society to defend the core democratic value of "freedom of speech and expression." These
extremist groups worked tirelessly to prevent the screening of Fire and then reacted similarly when
another controversial film, Girl Friend, was released almost ten years later.21

The fight to prevent Fire's release and screening was framed as a free speech issue, almost
consciously obscuring the film's portrayal of lesbianism. As a result of this omission, CALERI

16
JAISINGH INDIRA, HUMJINSI 92 (1999, Bina Fernandez).
17
Supra note 14 at 50.
18
See: V. N., Deepa. 'Queering Kerala', in Gautam Bhan and Arvind Narrain (eds), Because I Have a voice: queer
politics in India New Delhi: Yoda Press 175-196 (2005).
19
Deepa Mehta Fire (1996) http: / / WWW [Link] /title /tt0116308/.
20
Yusuf Khan Alias Dilip Kumar and Ors. v. Manohar Joshi and Ors. (2000) 2 SCC 696.
21
Sena turns the heat on Girlfriend, Times of India, (June 15 2021 01:45 PM)
[Link]

10 | P a g e
(Campaign for Lesbian Rights) was formed to bring lesbian rights to the forefront of the debate.
The articulation of lesbian rights, on the other hand, was fraught with anxiety. As one of the main
characters put it:

Even as the organizers prepared for the demonstration, there was a division among us. Some
[protesters] objected to the use of the term "lesbian" in the press release. Instead of 'women-women
relationships,' there was pressure to speak about 'women-women relationships.' There were some
issues with the term sexuality. There was a claim that the average person on the street was
unprepared to hear these words.22

In the words of another protagonist, CALERI's work "challenged the assumption that lesbianism
was a "question of personal choice—thus not a legitimate area of concern when the broader
framework is human rights."23 The mainstream human rights movement was forced to deal with
the ban on Fire as a matter of freedom of expression and lesbian rights, thanks to the efforts of
CALERI and others.

1.3.2 WIDENING THE SPECTRUM OF QUEER CONCERNS: THE

EMERGENCE OF GENDER IDENTITY -BASED STRUGGLES.

Lesbian, gay, and bisexual issues were at the forefront of queer activism in the late 1980s and early
1990s. As the 1990s progressed, however, a growing number of articulate transgender women
joined the queer movement. The publication of the PUCL Report on 'Human rights violations
against the transgender community was the first public acknowledgment of the transgender
community's concerns. The 2003 report highlighted the issues and concerns of the transgender
community by focusing on the stories of hijras and kothis, broadening the definition of who is
queer beyond lesbian, bisexual, and gay identities. This was significant because lesbian, gay, and
bisexual people had previously been the focus of queer activism. The report from 2003 also
emphasized the importance of including gender-based demands in queer activism, such as the right

22
Ashwini Sukthankar, Lesbian Emergence (Campaign for Lesbian Rights, A Citizen's Report, August 1999 New
Delhi) 19 (1999).
23
Id.

11 | P a g e
to define and express one's gender identity.24 The source of 'extraordinary' violence was the
'everyday' transgression of gender norms, so sexual orientation could no longer be the sole basis
of queer politics.25 By focusing on the rights of hijras and kothis, the 2003 report also introduces
queer politics to class and economic disparities, which are a significant source of division in Indian
society.26The demands for gender identity documents, ration cards, voting rights for hijras, and
access to free healthcare and education result from an inclusive queer politics that sees the hijra
community through multiple lenses, including gender, sexuality, religion, caste, and class.

1.4 THE STRUGGLE AGAINST THE VIOLENCE OF “NORMAL TIMES”.

The ABVA's first gay protest, demonstrations around the Fire, and Lucknow arrests were
watershed moments in queer activism. In two separate reports published in 2001 and 2003, the
PUCL-K documented the violence faced by the queer community. The impact of Section 377 had
to be understood not only in terms of decided cases but also in terms of the filing of an FIR or the
mere threat to file an FIR, as well as sexual violence, extortion, abuse, outing, and illegal police
detentions, all of which leave no legal trace, according to the 2001 report. Apart from the law, the
police, the family, the medical establishment, and popular culture are among the structures
responsible for queer oppression, according to the 2001 report.27
Their inability to exercise civil rights is a result of the daily violence they face. Queer people are
excluded from the state's records as citizens, deserving of privileges and benefits because they are
a priori criminals. Queer desire and its potential to form meaningful relationships are silenced,
except when referred to as 'unnatural intercourse,' which is neither named nor prohibited in civil
law. We can conclude from a thorough examination of the laws governing marriage, divorce,

24
The term gender identity itself made its belated way into international law with the Yogyakarta Principles on the
application of international human rights law in relation to sexual orientation and gender identity (2007). It can be
argued that the reason gender identity became an important concern was itself due to the reporting of violations from
the global south, where it became increasingly apparent that gender identity was the core axis of human rights
violations. For a record of violations based on gender identity, see WWW. [Link], accessed on 10th
December,2013
25
Gayatri Reddy, With Respect to Sex, 17 Indian J Gend Stud 215(2006).
26
Gupta, Alok, Englishpur ki Kali (2005) in Gautam Bhan and Arvind Narrain (eds) Because I Have a Voice. New
Delhi: Yoda Press. (Last accessed on June 23, 2021, 11.05 P.M) [Link]
27
PUCL-K, Human Rights Violations Against Sexual Minorities in India: A Case Study of Bangalor, www. [Link]
(Last accessed on July 24 2021, 10.00 P.M).[Link]
[Link]

12 | P a g e
inheritance, labor, and insurance that we must be related by blood or marriage to benefit from any
of these laws. A gay or lesbian partner would be ineligible to inherit property upon their partner's
death, as well as any labor law benefits or insurance policy benefits because all of these benefits
are reserved for members of the 'deserving' homosexual family.28 Section 377, the essential legal
roadblock, remained in place to address the broader range of issues that define the "ordinariness
of everyday violence." Queer activists have attempted to focus on matters other than 377 at various
times; however, attention has invariably returned to the infamous section as the law has remained
a significant impediment to other legal reforms. Lesbians, gays, bisexuals, and hijras can all come
together at queer pride marches. In a broad sense, it cultivated a diverse and vibrant community
that transcended class and gender lines.

1.5 RESEARCH PROBLEM

The Constitution of India lays down a non-discriminatory approach towards its citizenry regardless
of the gender identity and the sexual orientation of the individual and guarantees equality of law
and equal protection of law. The present study intends to analyse the positioning of the
LGBTIQA+ community with respect to comprehensive anti-discriminatory laws in India and
simultaneously draw a comparison between other jurisdictions. With the help of doctrinal method,
the proposed study attempts to establish the need for transgender inclusiveness of sexual offences
under criminal law in India to further the human rights approach and guarantee constitutional
protection of the fundamental rights to the community. The study strives to lay emphasis on the
categorization of non-consensual sexual offences as applicable to the community rather than
bringing it under the umbrella of unnatural offences in entirety. The study further examines and
reflects on the relevant constitutional and criminal law provisions, studies the judgement of the
courts, reviews the systematic studies previously conducted and the principles laid down in
international covenants to strengthen the argument of LGBTIQA+ barriers to full acceptance in
society despite of legalizing the laws in favour of them.

28
DESAI MIHIR, HUMJINSI 92 (Bina Fernandez 1999).

13 | P a g e
1.6 OBJECTIVIES

1) Trace out the provisions which are not sufficient to protect the LGBTIQ communities civil
and political rights and followed by the composition of them and difficulties nowadays.
2) Find out the current legal position of LGBTIQ community in India with special Reference
to Kerala.
3) To conduct a comparative study on the Comprehensive Anti LGBTIQ Discriminatory laws
existing in USA, Canada and South Africa
4) Trace out the provisions of Anti-Discriminatory Legislations in USA, Canada and South
Africa that can be incorporated in Transgender protection Rights Act 2019.
5) Find out some legal suggestions for the amendment of Transgender Protection Rights Act
2019 to close the loopholes.

1.7 HYPOTHESIS

• The LGBTIQA+ communities face a wide range of violations and barriers to full
acceptance in society despite of legalizing the laws in favour of them.
• The new legislation Transgender Persons (protection of rights) Act 2019 purports to
protect transgender rights causes a huge blow to India's already vulnerable
transgender community and undoes a lot of progress made over the past few years.

1.8 RESEARCH QUESTIONS

1. Does India have an explicit comprehensive Anti-Discriminatory code for the

upliftment of LGBTIQ community?
2. What are the major loopholes in the newly enacted legislation (Protection of
Transgender Rights Act 2019) meant to benefit transgender community?
3. What is the major missing in India's Transgender Protection Rights Act 2019, when
compared to the already existing legislations in USA Canada and South Africa.?
4. What are the major issues facing by LGBTIQ community which is very specific to
India and that is not existing in another part of the world?

14 | P a g e
5. What effect does cultural lag have on the advancement of the life of LGBTIQ
community?
6. What is the role of judiciary in promotion and protection of the LGBTIQ community?

1.9 RESEARCH METHODOLOGY

Limited by the time horizon, the methodology employed in conducting this research is doctrinal.
The reliability and dependability of the study mainly depends upon the methodology adopted. The
Doctrinal study is based on the collection of data from primary and secondary sources. The primary
sources of data used include statutes, regulations, declaration, notifications, guidelines and
committee reports. The secondary sources of data used are books, dictionaries, encyclopedia,
journals, newspapers and websites.

1.10 SCHEME OF THE STUDY

Chapter I of the dissertation titled “INTRODUCTION” tries to identify the area of study and lays
down the aims and objectives behind the research study and introduces the contemporary
positioning of the LGBTIQA+ community as being the oppressed and vulnerable class in the
society even after its historical presence for centuries and followed by the second chapter.

Chapter II of the dissertation titled “CRITICAL ANALYSIS OF THE EXISTING INDIAN

LEGAL FRAMEWORK” wherein the positioning of the community in terms of the civil and
criminal rights they have in India. It also dealt in detail with constitutional provisions of
LGBTIQA+ minorities in India. Factors like legality of homosexuality, protection from sexual
offences against the LGBTQA community, etc. are determined. The chapter then acknowledges
the decriminalization of Section 377 IPC, through the Navtej Singh Johar decision of the Supreme
Court, to the extent of consensual carnal intercourse/sexual conduct between two adults in private
without any discrimination premised on the sexual orientation and/or gender identity. However,
the chapter criticizes the failure on part of the court to equate non-consensual instances of carnal
intercourse with sexual assault as provided for under Section 375 IPC and identifies the need to
amend the criminal law with respect to sexual offences and make it transgender inclusive, presently
exclusive to women, owing to the vulnerability of the community. The chapter also acknowledges

15 | P a g e
the Transgender Act and its short comings. This section is followed by chapter III of the
dissertation.

Chapter III of the dissertation titled “JUDICIAL RESPONSES IN PROMOTING AND

PROTECTING LGBTQIA+ COMMUNITY” aims to trace back the history of trans activism
in India and development of legal and constitutional rights of the community in addition to their
recognition through the NALSA judgment is discussed. The objective is to analyse development,
both social and legal, in the stature of the LGBTIQA+ community and the role of judiciary in such
elevation. The chapter is then followed by the chapter four.

Chapter IV of the dissertation titled “A COMPARATIVE STUDY ON THE VARIOUS

EXISTING COMPREHENSIVE ANTI LGBTIQA+ DISCEIMINATORY
LEGISLATIONS IN USA, CANADA AND SOUTH AFRICA” wherein the positioning of the
community in terms of the civil and criminal rights they have in India and other jurisdictions
including Canada, South Africa, United States of America is ascertained. Factors like legality of
homosexuality, protection from sexual offences against the LGBTQA community, etc. are
determined. The chapter is then followed by chapter four.

Chapter V of the dissertation titled “CONCLUSIONS AND SUGGESTIONS” illustrates the

justification of the hypothesis in affirmation and reasserts the need for transgender neutrality of
sexual offences so as to extend the protection to the transgender community and secure for them
both social and legal liberty and a dignified life to co-exist in the society and break hetero-
normative societal standards prevailing for centuries.

16 | P a g e
 2. CHAPTER II
CRITICAL ANALYSIS OF THE EXISTING INDIAN LEGAL
FRAMEWORK

“Seven or eight years ago, I was in Kolkata for Durga Puja. When seven to eight guys approached
us and called us out of line, I was standing in line with four of my transgender friends to attend
the ceremony. We approached them, oblivious to what was going on. They then began abusing us
by touching us in various parts of our bodies forcefully. We screamed because it happened in
public. However, no one came to our aid.”29

Individual autonomy, equality, and liberty without discrimination, as well as dignified recognition
of identity and privacy, are the overarching ideals that form the four cardinal pillars of our
Constitution, laying the foundation for fundamental rights and secluding certain sections of the
society, separating them from the social mainstream, and compelled them to live in the shackles
of prejudiced notions, dogmatic social norms, parochial mindset, rigid stereotypes, and blinkered
perceptions.30 Regardless of race, caste, sex, religion, community, or socioeconomic status, the
inherent spirit of our Constitution is to offer every subject of our nation an equal opportunity to
grow as a human being, whether he is the majority of the minority. The state must guarantee that
no human being ought to be victimized. Granville Austin outlined three distinct strands of the
Indian Constitution in his analysis of the first 50 years of its operation: (i)protecting national unity
and integrity, (ii)establishing the institution and spirit of democracy, and (iii) promoting social
changes. In what he brilliantly defines as “a seamless web,” the Strands are mutually dependent
and intimately intertwined. Moreover, there cannot be social reforms until it is ensured that each
country’s citizens can exploit his/her potentials to the maximum. Although drafted by the
Constituent Assembly, the Constitution was meant for the people of India. That is why it is given
by the people to themselves, as expressed in the opening words “We the People.” In the past, India
has abstained from resolutions that sought to protect persons from violence and discrimination
based on sexual orientation and gender identity. The ‘abstention’ was troubling as the Constitution
is quite evident in protecting all persons from violence and discrimination. The virtual gift granted

29
UMA CHAKRAVARTI, GENDERING CASTE 18 (Sage Publications,2018).
30
Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.

17 | P a g e
to ordinary people by this Constitution is known as “basic rights,” which can also be referred to as
“human rights.” As a result, it is the state’s responsibility to ensure that no human being is
victimized.

In heteronormative societies, the male-female dichotomy has created havoc for the LGBTIQA+
community. Though they are in the minority, they too have a level with sacred rights. However,
the sexual offenses and sexual exploitations committed against the LGBTIQA+ community owing
to their distinct sexual orientation and gender identity is a radical departure from the traditional
approach of equality of law. Gender identities and non-normative sexual orientations have
impacted the connection between the law and the public. Consequently, it is necessary to briefly
review the many discourses and controversies surrounding the legislation and its relationship with
gender and sexual identities. These insights intend to light the systemic issues concerning law’s
attempt to regulate gender and sexual orientation.

Given that an individual’s sexual orientation and gender identity are distinct, one would wonder
why sexual orientation and gender identity are discussed. Indeed, whether someone is transgender
or cisgender has nothing to do with lesbian, gay, bisexual, or straight. Despite their differences,
sexual orientation and gender identity are inextricably intertwined in society and politics.
Discrimination based on sexual orientation and gender identity is frequently perpetrated by the
same individual or organization: the social policing of gender standards. Lesbians and transgender
women, for example, are both regarded as breaching socially created norms about what it means
to be a woman in many parts of the world. Even though transgender women break gender norms
through their gender identity and lesbians break gender norms through their sexual orientation,
both are seen as violating gender norms. Intersex issues and LGBT issues are frequently
intertwined. Intersex people face prejudice because their bodies do not fit social standards for what
it means to be a man or a woman, much as LGBT people face discrimination. After all, they defy
cultural norms about “manhood” and “womanhood.” As a result, intersex concerns are frequently
considered alongside LGBT issues by human rights advocates. The acronyms LGBTI (with the
“I” meaning for “intersex”) and SOGISC (with the “SC” standing for “sex characteristics”) are
becoming incredibly common.

18 | P a g e
2.1 LEGAL PROVISIONS AND CONSTITUTIONAL PROTECTION OF LGBTQIA+
MINORITIES IN INDIA:

In its historic decision National Legal Services Authority of India vs. Union of India, the Supreme
Court of India (‘Supreme Court’)31 (‘NALSA’) recognized fundamental rights of transgender
persons arising out of Article 14 (‘right to equality), Article 15 (‘prohibition of discrimination),
According to the Indian Constitution, Article 16 (‘equality of opportunity in matters of public
employment), Article 19 (right to freedom of expression’), and Article 21 (‘right to live with
dignity) are among the most important rights guaranteed.32The Court also recognized the
fundamental rights of the transgender community under the Indian Constitution and human rights.
It declared that all the civil and criminal statutes that do not recognize the third gender would be
discriminatory in light of Article 15 of the Constitution. Under Article 15 of the Constitution, any
discrimination on the ground of “sex” is prohibited at the instance of the state. However, in this
case, there is an issue regarding the rights of the Lesbians, Gays, and Bisexuals people that whether
they are included in this decision because of the specific acknowledgment of the Transgenders in
India. Although, Justice Radhakrishnan and A.K. Sikri mentioned in their judgment in the point
19 and 20 by including the definition of ‘gender identity and ‘sexual orientation’ in which gender
identity refers to the term in which each person felt internal and individual expression of gender
which may or may not correspond with the sex assigned to them at birth. It, therefore, refers to an
individual’s self-identification as a man, woman, transgender, and other identified category.

On the other hand, Sexual Orientation refers to an individual who attains physical, romantic, and
emotional attraction to another person. The Court interpreted “sex” to include sexual orientation
and gender identity of an individual. The decision directed affirmative action on the Central and
State Governments to ensure non-infringement of fundamental rights, public health, and social
welfare in light of the Yogyakarta principles.33 This brought a sigh of relief to the LGBTQA
community, as their human rights were upheld despite their small numbers;34 however, the

31
NALSA at Writ Petition (Civil) No.400 of 2012
32
Id.
33
Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual
Orientation and Gender Identity, INTERNATIONAL COMMISSION OF JURISTS.
34
NALSA, supra note, 12 at para 123.

19 | P a g e
pragmatic reality remained unchanged. This was followed by the Supreme Court’s ruling in Navtej
Johar vs. Union of India35 (‘Navtej Johar’) decriminalizing consensual sexual relationships
between adults of the same gender by reading down section 377 of the Indian Penal Code, 1860
(‘IPC’).36 Before British colonization, there were no laws against same-sex relations in India.

Indeed, some Hindu traditions positively celebrated homosexuality alongside heterosexuality as

part of the spectrum of human sexuality and erotic desire. Homosexuality, however, was
criminalized by the British during their rule in India under Section 377 of the Indian Penal Code
(IPC) in 1861, inspired by the 1553 Buggery Act that outlawed homosexuality in England. Since
then, the LGBTIQA+ community has suffered ridicule, denial of basic rights, a sense of gender
identity, and abuse at the state authorities and the society. Their existence was ad infinitum
questioned on the grounds of social morality, public indecency, and obscenity. The community
struggled to pave its path and co-exist in society at the cost of humiliation and disgrace. The mere
presence of law criminalizing same-sex relations, irrespective of whether being consensual or non-
consensual, gave room for exploitation of the LGBTQA community.37 With this judgment, the
Supreme Court has affirmed the legal recognition of the LGBTIQ+ community and widened the
scope of LGBTIQ+ rights in India. While Navtej Johar is a relatively new judgment and still awaits
legal developments on the issue of further civil rights of the LGBT+ community, it has been almost
five years since NALSA was delivered.

The most significant legal endeavor following NALSA was drafting a law outlining the precise
framework for transgender people to exercise their rights. The Ministry of Social Justice, in a
conversation with the trans activism, constituted an expert committee to make recommendations
in furtherance of the judicial mandate in the NALSA decision, and based on this report, the Rights
of Transgender Bill, 2014was introduced and adopted by the Rajya Sabha and the same was sent
to the Lok Sabha for consideration. The Bill had an inclusive definition of transgender. 38

35
Navtej Johar, WP (Crl.) No.76/2016.
36
Indian Penal Code 1860 $ 377.
37
Geetanjali Misra, Decriminalizing Homosexuality in India, TAYLOR AND FRANCIS GROUP (Last accessed on
June 3, 2021) [Link]
38
All persons whose own sense of gender does not match with the gender assigned to them at birth. They will include
trans-men & trans-women (whether they have undergone sex reassignment surgery or hormonal treatment or laser
therapy, etc.), gender queers and a number of socio-cultural identities, such as kinnars, hijras, aravanis, jogtas, etc.

20 | P a g e
Meanwhile, in 2016, the speaker allowed the introduction of a fresh bill for the transgender
community, as a private member’s Bill, called The Transgender Persons (Protection of Rights)
Bill, 2016. The latter Bill suffered from significant shortcomings and was heavily criticized by the
transgender community,39 advocates or lawyers, NGOs, students, and the other activist and also
failed to secure the mandates so declared by the NALSA decision. The failure of Bill is threefold,
firstly, then it does not appreciate the diversity within the transgender community, that is, Lesbians,
Gay, Bisexual, Transgender, Queer, Asexual persons, jogappas, hijras, aravanis, kinnars, and other
socio-cultural gender identities instead it defined transgender person as someone who is not wholly
a male or a female or neither a male nor a female or a combination of male and female and thereby
retaining the male-female dichotomy and; Secondly the Bill recognizes sexual offences and
violence against the community as crimes punishable with petty punishment of 6 months to 2 years
and does not include them within the ambit of sexual offences under the IPC, and; lastly, unlike
the 2014 Bill which provided for reservation for transgender persons in public education and
employment, the Bill remained silent on the aspect of affirmative action on part of the central and
state Government in terms of reservations for employment and education40to ensure adequate
representation of the otherwise marginalized community and further the mandate laid down by the
NALSA decision. After the appointment of the standing committee, around 55 recommendations
were proposed. However, all of them were blatantly rejected. The Bill was kept intact in its original
form.41 It was again introduced in Lok Sabha on 19th July 2019, in 17th Lok Sabha on 5th August
2019 it was passed there passed and on 26th November 2019, i.e., on the Constitution Day it is
also passed in Rajya Sabha and received the assent from the President of India on 5th December
2019. Now, the Transgender Persons (Protection of Rights) Bill has become an Act intending to
protect the rights of the transgender, their welfare, and other related matters.

The discussion in parliament neither suggested an amendment in the criminal and civil law include
the third gender within the statute, nor did they recognize the instances of sexual assault and

39
Shreya Ila Anasuya, ‘Why the Transgender Community is Angry Over a Bill Meant to Protect Their Rights, THE
WIRE (July 24, 2021, 10.04 AM) [Link]
meant-to-protect-their-rights.
40
Aniruddha Dutta, Contradictory Tendencies: The Supreme Court’s NALSA Judgment on Transgender Recognition
and Rights,5 JILS 235 (2017).
41
Rachana Mudraboyina and L.C. Kranti, A Critiques of the Transgender Persons (Protection of Rights) Bill, 2018,
HUMAN RIGHTS LAW NETWORK (May 12, 2021, 11:31 AM),
[Link]

21 | P a g e
violence against the community at the behest of the governmental agencies and by other
individuals in the society. In light of the above discussion, it becomes critical to highlight the gaps
in our legislative framework for LGBTIQ+ inclusion and insist on their correction to do justice to
the LGBTIQ+ community’s struggle.

2.2 THE INCIDENT THAT TRIGGERED THE TRANS ACTIVISM IN INDIA

The AIDS Bhedbhav Virodhi Andolan published a report in 199142 revealing the atrocities faced
by the transgender community like sexual violence, exploitation, assault, and extortion under the
garb of Section 377 of the IPC, recommending that the said law should be repealed. 43 Following
this in 1994, the medical officers in Tihar jail concluded that 90% of the inmates in prison indulged
in consensual homosexual activity and recommended facilitation of condoms to prevent STDs.
However, Kiran Bedi, inspector general of Tihar Jail, refused the facilitation of condoms on the
pretext that it will promote homosexuality and consensual sexual conduct amongst homosexuals
which is punishable under Section 377 IPC.44 A writ petition was filed by ABVA for declaration
of Section 377 as unconstitutional on the anvil of Article 14, 15, 19 and 21 of the Constitution and
calling on the judiciary to repeal the said provision of law. Per contra, it was contested that Section
377 IPC should not be repealed. It keeps the principles of legal moralism intact and upholds the
majoritarian morality, and its declaration as ultra vires the Constitution will be against public
morality, public order, and decency. Even though the petition was dismissed in 2001 on technical
grounds, it laid the foundation for trans activism in India and across South Asia to recognize their
gender identity and substantial rights associated with it. This sparked outrage, and for the first
time, members of the community and transgender activists came out of the closet to support the
LGBTQA community’s rights.

42
AIDS Bhedbhav Virodhi Andolan, Less Than Gay: A Citizens’ Report on The Status of Homosexuality in India,
ABVA, (May 12, 2021, 21:41 PM), [Link]
43
Id.
44
Supra note 40, at 230.

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2.3 LAW’S RELATIONSHIP WITH GENDER AND SEXUALITY

The relationship of the law with non-normative gender identities, sexual orientation is to be
discussed with utmost importance in the present scenario. In essence, the LGBTIQ+ community
of the society has denied the fundamental rights and dignified status to a Section owing to the
prevailing norms in the society. These insights intend to light the systemic issues concerning law’s
attempt to regulate gender and sexual orientation.

2.3.1 THE TRANSGENDER IDENTITY AND THE LAW

Contemporarily and historically, transgenderism prevailed across the globe, including in the
Native American culture,45 Indian culture,46 and Greco-Roman culture.47 In addition to this, even
many deities sported a blend of feminine and masculine characteristics or were capable of shifting
from one gender to the other.48 Every society is deemed to be heterogeneous comprising of only
two genders – the male and the female and the third gender often remains unrecognized. This paves
a path for identity crisis amongst the minority community. Due to either societal pressure or legal
formalities, they have to opt-out of the two genders. They do not connect with the gender; they are
confused about their identity and often feel trapped in their bodies in the dichotomous gendered
society. This is a radical departure from the traditional approach of equality law, i.e., wherein
discrimination is prohibited based on human traits that are immutable, i.e., traits that were not
chosen49 put, the language of rights, including the right to equality, presumes that the subject of
rights has specific immutable characteristics. It is wrong to discriminate based on the
characteristics that one was born into and, by implication, cannot be altered. Scholarship speaks
of the transgender identity as broadly encompassing those individuals who do not identify with the
sex (and consequently gender) assigned to them at birth.50 In the Indian context, the term

45
Two Spirit People
46
Men that choose to worship the feminine aspect of the divine through voluntary castration or because they were
born intersexed.
47
The god Hermaphrodites, son of Hermes and Aphrodite; and the acceptance of the cross-dressing behaviour of
Hercules and Achilles.
48
Dionysus; Lord Vishnu the male counterpart and Goddess Mohini, the female counterpart of the same Deity.
49
Jessica A Clarke, Against Immutability, The Yale Law J 125 (2015).
50
Paisley Currah, Gender Pluralism under the Transgender Umbrella, Transgender Rights (University of Minnesota
Press, 2006) NALSA, Para 11.

23 | P a g e
transgender has also been understood as incorporating multiple cultural identities that do not fit
into the strictly defined identities of male or female. Similarly, persons with intersex variations
whose genitalia do not fit into the neat boundaries of either sex male or sex female,51 challenge the
sexed foundations of the society as well.52 In a culture where discrete and binary gender divisions
are essential and based on “objective” biological attributes of genitalia, bodies that threaten such
divisions threaten the whole system upon which such binary gender rests.53 However, despite the
biological, behavioral and psychological diversity of identities, distinct separation based on sex
and gender continues to be enforced by the law - a body of knowledge whose normative basis is
deeply entrenched in the binary gender/sex model. The law, as a consequence, has invisible all
those identities and bodies that do not fit into the strict categories of strictly male or strictly female
and privileges those who do.54

In India, this deprivation struggle is also drawn from the governmental policy framework
recognizing only two sexes in according right to vote, marry, claim property, a formal identity
through passport, or other governmental identities. Their inability to procure subsidies for food,
health, employment, or education further adds to their misery, forcing them to either engage in sex
work or beggary, thereby exposing them to violence and vulnerability at the instance of the law
enforcement agencies. It is significant to note that an individual cannot replace his/her sexual
orientation or identity to adhere to society’s normative standards.

Shakespeare once said, “What is in a name?” which in the present tense can be understood that for
identification, the name may be a convenient concept. However, the characteristically essence is
the core of the identity and not the name per se. The Supreme Court in 2014 gave legitimate
recognition to the third gender furthering their fundamental and constitutional rights.55

51
Id.
52
Ana Lúcia Santos, Beyond Binarism? Intersex as an Epistemological and Political Challenge, Revista Crítica de
Ciências Sociais, 6 (2014).
53
Erin Lloyd, Intersex Education, Advocacy & the Law: The Struggle for Recognition and Protection 11 Cardozo
Women’s L.J. 283 (2005).
54
Dorian Needham, A Categorical Imperative: Questioning the Need for Sexual Classification in Quebec, 52 Les
Cahiers de Droit 71-106 (2011).

55
NALSA, supra note 12, at para 12.

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Despite this, NALSA struggles with defining whom a “transgender person” is, showcasing the
tense relationship between the law and the politics of gender identities. The Supreme Court runs
through a range of identities, including individuals whose gender does not conform with the sex
assigned at birth,56 those who identify as neither male nor female,57 the various cultural identities
in India such as kothis, arvanis, jogtas, etc.58 At the end, as evident in the operational part of the
judgment, specifically Direction 1, the Supreme Court reduces the transgender identity to the most
visible non-normative gender identity in India, i.e., the hijra identity.59 Further, the judgment only
makes a passing reference to transgender men,60 thereby relegating them to the background. At the
Consultation, it was stated that despite the NALSA judgment, gender continues to be treated as a
legal category and not a constitutional category. This is not the case with sex which was and
continues to be treated as a constitutional category. Thus, while the categories of male and female
are viewed through the lens of sex, it is only the category of transgender that is viewed through
the lens of gender. Consequently, “transgender” is the first gender (unlike male and female, which
are still considered categories of sex) as opposed to the third gender.

Given the diversity of gender identities and expressions that fall within the ambit of “transgender,”
countries around the world that recognize the rights of transgender persons, instead of treating
“transgender” as a protected category, recognize the right to “gender identity” and “gender
expression.”61 This avoids the risk of the law being under-inclusive. In addition to protecting
identity, it also protects gender-based expression - which may or may not is linked to one’s gender
identity. However, in India, the approach towards transgender rights has been different. The 2016
Bill explicitly defined the category of “transgender” and guaranteed certain rights to such a
category of persons. While the 2016 Bill conflated the transgender identity with persons with
intersex variations,62 an issue that led to outrage among transgender persons, the 2018 Bill
amended the definition and broadly defined transgender persons as persons whose gender does not

56
Id. at para 11.
57
Id. at para 14.
58
Id. at para 44.
59
Id. at para 129(1).
60
Id. at para 46.
61
PAISLEY CURRAH, GENDER PLURALISM UNDER THE TRANSGENDER UMBERLLA,3-31(University
of Minnesota Press 2006).
62
Transgender persons (Protection of Rights) Bill Clause 2(i).

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match with the gender assigned to them at birth.63 Again this Bill was introduced in Lok Sabha in
2019 and approved by Rajya Sabha and finally got the assent from President of India 0n 5th
December 2019. Now, the Transgender Persons (Protection of Rights) Bill has become an Act,
with an objective to protect the rights of the transgender, which is still faced by many criticisms
from the transgender community itself.

2.3.2 PROVISIONS OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS)

ACT,2019

This is the first Act in India that describes the rights of transgender persons. The Act also talks
about discrimination or unfair treatment against education, employment, health, right to
movement, residence, or unfair treatment in Government or private organizations about the job.
The Act recognized the identity of a transgender person on the ground of an application and then
the certificate of identity issued by the District Magistrate. In the case of a minor, the application
shall be made by the parents. The certificate is issued by DM regarding his identity, which gives
the right to transgender person as proof of his identity that he is transgender. By the issuing of this
certificate, if a Transgender wants surgery to change his gender, either as male or female, then
again, he has to file an application to the District Magistrate along with the certificate which has
been issued by the Medical Superintendent or Chief Medical Officer (CMO) then revised
certificate shall be issued by District Magistrate (DM). Provided that change in gender and revised
certificate issued shall not affect that person’s right in the Act.
This Act has also given provisions by the appropriate Government which will work for the welfare
of Transgender people, like protection and rehabilitation. The Government will take measures for
their rescue, protection, welfare, and promotion and participate in cultural and recreational
activities.

This Act further provides the system of nondiscrimination in employment; every establishment
shall provide all the basic facilities to transgender. The establishment has to designate a complaint
officer to listen to a complaint if any violation of a right is held. No transgender child will be

63
The Transgender Persons (Protection of Rights Bill) 2018.

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separated from the family unless a competent court has made an order and every transgender
person has a right to live freely as per his own choice.

The appropriate Government will also provide the education, social security, and health of
transgender persons. This Act says that Transgender people shall get education in government-
funded institutions and opportunities for sports without discriminating. Government shall
formulate schemes and plans for their livelihood. Most importantly, the appropriate Government
shall provide medical facilities to such person’s sex reassignment surgery, counseling before and
after surgery, and provision of medical expenditures. The Government will set up separate human
centers of immunodeficiency to follow the rule issued by the appropriate authority, i.e., the
National AIDS control organization.

Further, the Establishment of National Council for transgender persons and the council shall
consist of Union Minister who will be chairperson, Vice-Chairperson as State minister, member,
each representative from different offices like HRD, Home affairs, Ministry of welfare, etc. and
must be working in Government of India and must not be less in rank from Joint Secretary. The
Central Government may appoint one representative from all four regions. The five members of
the Transgender Community from each state and Union territory, and all four regions by rotation,
are to be nominated by the appropriate Government and five from non-government organizations
(NGO’s) who work for them and shall hold the position for three years. The National Council shall
perform various functions to answer the problems or solve the queries of transgender persons,
formulate policies, programs, and evaluate and monitor the policies designed for achieving the
equality of the transgender community. In the Act of Chapter VIII, offenses and penalties if any
of the person who denies the transgender to access public place or forces a transgender person to
leave his home or his living place harms or damage the life of Transgender person, causing abuse,
etc. that shall be punishable with imprisonment which shall not than six months and may extend
to 2 years and with a provision of fine.

In a nutshell, it does not recognize the third gender, their self-identity, and self-determination in
law; the Act does not make provisions for the reservation of the LGBTQA community as socially,
and educationally backward class for education and employment to ensure adequate representation

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of the marginalized community nor do the provisions lay down the with respect to health care,
legal awareness or welfare schemes amongst the community and thereby, maintains the status quo
of the community in terms of social exclusion and vulnerability as against the NALSA mandate of
inclusion. This Act particularly states about the transgender person, not about Lesbian, Gay, or
Bisexual. This Act does not prescribe the punishment for their begging and not the punishment for
the rape of a transgender person as mentioned in the IPC under section-375 and 376. This Act is
silent about marriage rights, property rights, succession rights, and adoption rights of Transgender
people. The Act has laid down less punishment in case of infringement.

2.3.3 ARTICLE 14 AND TRANSGENDERS

According to Article 14 of the Indian Constitution, the state shall not deny equality before the law
or equal protection of the laws to “any individual” located inside Indian territory. Equality entails
the free and equal enjoyment of all rights and liberties. The right to equality has been proclaimed
a fundamental feature of the Constitution; therefore, treating equals as unequal’s or unequal’s as
equals will violate the Constitution’s basic structure. Equal protection is also guaranteed under
Article 14 of the Constitution, implying a positive obligation on the state to achieve equal
protection of the law through required social and economic changes. Everyone, including TGs, is
entitled to equal protection under the law, and nobody is denied that right. Article 14 does not limit
the term ‘person’ to males or females. Those who are neither male nor female, known as hijras or
transgender people, fall under the definition of a ‘person’ and are therefore entitled to legal
protection under the law in all spheres of state activity, including employment, healthcare, and
education, as well as the same civil and citizenship rights as every other citizen of this country.
Thus, discrimination based on sexual orientation or gender identity jeopardizes equality before the
law and equal protection under the law and violates Article 14 of the Indian Constitution.

2.3.4 ARTICLES 15 & 16 AND TRANSGENDERS

Articles 15 and 16 prohibit discrimination against any citizen for specified reasons, including race,
gender, or national origin. Indeed, both Articles prohibit all forms of gender bias and
discrimination based on gender.

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Articles 15 and 16 aimed to outlaw discrimination based on sexual orientation, acknowledging that
sex discrimination is a historical reality that must be addressed. The Constitution’s authors, it
appears, highlighted the fundamental right against sex discrimination in order to avoid the direct
or indirect attitude of treating people differently for not complying with binary gender stereotypes.
Gender and biological characteristics are both distinct components of sex. While biological
elements such as genitals, chromosomes, and secondary sexual features are included, gender
aspects such as self-image, a profound psychological or emotional sense of sexual identity, and
character are included. As a result, under Articles 15 and 16, discrimination based on sex
encompasses discrimination based on gender-based on sex. As used in Articles 15 and 16, it does
not refer exclusively to biological sex between males and females. However, it is intended to
encompass individuals who identify as neither male nor female.

TGs have been refused entrance to public venues systematically under Article 15(2) rights that are
not subject to any handicap, liability, restriction, or condition. TGs have also been denied the
special measures contemplated under Article 15(4) to advance people who are socially and
educationally backward (SEBC) as they are and so legally entitled and eligible to receive SEBC
subsidies. The state is obligated to take affirmative action for its advancement to make amends for
generations of injustice. TGs are also entitled to unrestricted economic, social, cultural, and
political rights, as gender-based discrimination violates fundamental freedoms and human rights.
Additionally, TGs have been denied rights under Article 16(2) and discriminated against based on
sex in employment or public office. Additionally, TGs are entitled to appointment reservations
under Article 16(4) of the Constitution. The state is obligated to take affirmative action to ensure
their representation in public services is equitable.

Articles 15(2) to (4) and 16(4), taken together with the Directive Principles of State Policy and
various international instruments to which India is a signatory, call for social equality, which the
TGs can only achieve if they are given the facilities and opportunities they need to live in dignity
and on an equal footing with the other genders.

2.3.5 ARTICLE 19(1)(a) AND TRANSGENDERS

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Article 19(1) of the Constitution provides many fundamental rights, subject to the state’s ability
to restrict their exercise. Article 19 does not confer any rights on someone who is not an Indian
citizen. Article 19(1) ensures those fundamental rights are recognized and protected as natural
rights inherent in a free country’s citizen position. According to Article19(1) (a) of the
Constitution, all citizens have the right to freedom of speech and expression, including the right to
self-expression of gender identity. Gender identity can be represented in various ways, including
clothing, speech, action, or conduct. No restriction on one’s appearance or choice of clothing is
permissible, subject to the limitations outlined in Article 19(2) of the Constitution.

2.3.6 ARTICLE 21 AND THE TRANSGENDERS

Article 21 of the Constitution of India reads as follows:

“21. Protection of life and personal liberty – No person shall be deprived of his life or personal
liberty except according to procedure established by law.” Article 21 of the Indian Constitution is
the heart and spirit of the document since it speaks of the rights to life and personal liberty. The
right to life is a fundamental right, and no one, not even the state, can violate or revoke it. Article
21 encompasses all facets of life that contribute to a person’s purpose. Article 21 safeguards the
dignity of human life, individual autonomy, and the right to privacy, among other things. The right
to dignity has been recognized as a necessary component of the right to life and is guaranteed to
all humans. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC
608 (paras. 7 and 8), this Court held that the right to dignity is an integral part of our constitutional
culture, which seeks to ensure the full development and evolution of individuals, which includes
“expressing oneself in a variety of ways, freely moving about, and mixing and commingling with
fellow human beings.”

At the heart of one’s fundamental right to dignity is that one’s gender identification is recognized.
A person’s sense of self and identity are fundamentally shaped by their gender, as previously
stated. As a result, the legal recognition of gender identity is a component of the right to dignity
and freedom provided by our Constitution and laws.

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As discussed previously, articles 14, 15, 16,19, and 21 do not expressly exclude
Hijras/Transgender people from their scope. However, Indian law, on the whole, recognizes the
paradigm of binary genders of male and female, based on one’s biological sex. As previously
stated, we cannot accept the Corbett principle of the “Biological Test,” preferring instead to follow
the individual’s psychology when identifying sex and gender, and hence choose the “Psychological
Test” to the “Biological Test.” The binary notion of gender is reflected in the Indian Penal Code,
for example, Section 8, 10, etc. The laws related to marriage, adoption, divorce, inheritance,
succession, and other welfare legislation like NAREGA 2005. Non-recognition of the identity of
Hijras/Transgender people in the various legislations denies them equal protection of the law, and
they face widespread discrimination.

Article 14 uses the term “person,” and Article 15 uses the terms “citizen” and “sex,” as does
Article 16. Article 19 also uses the term “citizen.” The term “person” was used in Article 21. All
these expressions, which are “gender-neutral,” evidently refer to human beings. Hence, they take
Hijras/Transgender people within their sweep and are not limited to the male or female gender. As
previously said, gender identity is at the core of oneself, based on self-identification rather than
surgical or medical treatments. Gender identity, in our opinion, is an inherent element of sex, and
no person, including those who identify as the third gender, can be discriminated against based on
gender identity.

2.4 PERSONS WITH INTERSEX VARIATIONS AND THE LAW

Another major shortcoming of the law lies in its conflation of persons with intersex
variations64with transgender persons and the consequent invisibilities of persons with intersex
variations.65 Such conflation was first witnessed in the NALSA judgment66 and subsequently in
2019 Transgender persons Act. While at a fundamental level, both the intersex and transgender
rights movements share a common goal in eliminating harmful practices based on sex and gender

64
Solidarity Foundation, ‘What if it is Neither?’, [Link]
document/_1540443194000-[Link] (Last accessed on February 19, 2021).
65
Id.
66
NALSA, supra note 12, at para 107.

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stereotypes,67issues faced by the two communities are primarily distinct and separate. For starters,
persons with intersex variations may not identify as transgender persons. Instead, one of the
primary concerns of the intersex community lies in the pathologizing of their bodies and their
consequent otherization. Such pathologizing starts at infancy when persons with intersex
variations are subject to surgery.68Their bodies can be coerced into one of the two recognized sex
categories, i.e., male or female. Such surgeries are generally not medically necessary, and may end
up destroying reproductive capacities, sexual functions and pleasure, as well as eliminating options
for the expression of gender and sexual identity.69 When performed without informed consent,
such surgeries amount to discrimination based on a failure to live up to the stereotypes associated
with male and female genitalia.70 In India, there is no law which prohibits the practice of such
surgeries at birth.71 Further, while the category of “sex” in Article 14 and 15 can be argued to also
include “intersex” there is no direct judicial pronouncement recognizing intersex status as falling
within the category of sex, and courts continue to often conflate persons with intersex variations
with transgender persons, thus creating a messy and deeply problematic legal
jurisprudence.72 While legislating and judicially pronouncing on transgender rights and intersex
rights, the Government and the judiciary must keep in mind the above concerns.

2.5 SEXUAL ORIENTATION AND THE LAW

“The state cannot demean their existence or control their destiny by making their private sexual
conduct a crime”.73

67
Greenberg, Julie A., Intersexuality and the Law: Why Sex Matters New York University Press (February 1,
2021,9.29 PM), [Link]
68
I Want to Be Like Nature Made Me, (Last accessed on July 12,2021).
[Link]
69
NALSA, supra note 12, at para 107 and Graham Mayeda, Reimagining Feminist Legal Theory: Transgender
Identity, Feminism and the Law,17 CJWL 423 (2005).
70
Id.
71
Malta is the first country which has outlawed surgery on intersex infants via the Gender Expression, Gender Identity,
and Sex Characteristic Act, 2015. Similarly, California via its Senate Concurrent Resolution No. 110 has formally
condemned surgery on intersex infants.
72
The conflation of persons with intersex variation and the transgender identity is reflected in several judgments
including NALSA, Nangai v. Superintendent of Police ([Link].587 of 2014); G. Nagalakshmi v. Director General
of Police ([Link].38029 of 2015).
73
Justice Kennedy, Lawrence v. Texas, 539 US 558, 18 (2003).

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In academic writing, sexual orientation has been defined as the exclusive attraction to the
alternative or similar sex, i.e., whether the object(s) of one’s desire is of the same or different sex
than oneself.”74 Thus, sexual orientation is always understood as relational, i.e., it requires
consideration of the sex of the person in question and the sex of the person to whom such person
is attracted. Therefore, while gender, sex,75 and sexual orientation may often be conflated, they are
distinct conceptual categories. Thus, gender identity and sexual orientation, as already indicated,
are different concepts. However, these conflations occur both socially and, in the law, where
orientation is seen as a sexual performance of gender where gender is determined by sex. In simpler
terms, both law and society often see gender as being determined by sex.76 Thus a person with so-
called male genitalia is expected to conform to masculine behavioral traits. At the next level, there
is also a conflation between gender and sexual orientation. A person who displays masculine
behavioral traits is thus expected to be attracted to a person displaying feminine behavioral traits
of the opposite sex. Law’s relationship with sexual orientation has traditionally been associated
with criminalization in the form of anti-buggery laws.77 In India, section 377 of the IPC
criminalized “carnal intercourse against the order of nature,” thereby criminalizing all no
procreational sex between adults. While instances of prosecution under the provision were limited,
it had seen widespread use as a tool of persecution.78

2.5.1 SECTION 377 AND ITS DECRIMINALIZATION

Section 377 of the IPC states that any person who voluntarily has carnal intercourse against the
order of nature with a man, woman, or animal will be said to have committed an unnatural offense.
However, the words’ carnal intercourse against the order of nature is not defined and remain
ambiguous and up to the judiciary’s interpretation. It takes into account unnatural offenses ranging

74
Mary Ann Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and
Feminist Jurisprudence,105 Yale L.J. 1 (1995).
75
JUDIT BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY, 22 (Routledge
1999).
76
Francisco Vlades, Unpacking Hetero-patriarchy: Tracing the conflation of sex, gender and sexual orientation to
its origins, 8(1) Yale L.J. 168 (1996).
77
Such criminalization has been associated with the application of a Judeo-Christian conception of morality, generally
see, Navtej Singh Johar v. Union of India.
78
Unnatural Offences Obstacles to Justice in India Based on Sexual Orientation and Gender Identity, International
Commission of Jurists, [Link] (Last accessed on July 13, 2021).

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from touching another person with an unnatural lust to carnal intercourse.79 Initially, the judiciary
interpreted it to include only coitus per anum80 but later read it to include coitus per os.81 In
addition to this offense of bestiality,82 buggery, sexual relation between females, males,83 mutual
masturbation between same sex84 and different-sex partners, oral sex, anal sex, etc. are included
within the domain of ‘carnal intercourse against the order of the nature. That is, any (un)consensual
penile-animal, penile-oral, and penile-anal, howsoever minimal, amounts to carnal intercourse.
The law under Section 377 is gender-neutral and includes sexual conducts of both heterosexuals
and homosexuals; however, the burden of law has often fallen on the latter only.85

The Wolfenden Committee86 in 1957 in its report concluded that the purpose of criminal law is to
preserve public decency and morality and furthered the thesis of Mill that argued private space
should be free from state interference.87 That is to say, criminalizing consensual homosexuality in
private space between two adults neither fits in the theoretical nor operational realm of criminal
law88 and hence should be decriminalized as it is a matter of private morality. 89 After the battle
fought in the Naz Foundation decision and it’s overruling in the Suresh Koushal decision, the
prima facie question with respect to homosexuality under Section 377 IPC was whether it is
premised on the theory of legal moralism as propounded by Lord Devlin and James Fitz James
Stephen or on the Harm principle advocated by Prof. HLA Hart and John Mill.90 While the fifth
and the fourteenth law commission and the decision of Suresh Koushal were driven by the Devlin
approach and asserted that immorality per se is a reason sufficient for state interference and did
not favour decriminalization of homosexuality; the Naz Foundation decision of the Court was
based on assertion of the Wolfenden committee report and the argumentation of Prof. HLA Hart

79
Philips Oliver, Sexual Offences in Zimbabwe: Fetishisms of Procreation, Perversion and Individual Autonomy,
(Last accessed on July 14,2021). [Link]
80
Government v. Bapoji Bhatt (1884) 7 Mysore LR 280.
81
Khanu v. Emperor AIR 1925 Sind 286.
82
Id. at 261.
83
DP Minwalla v. Emperor, AIR 1935 Sind 78.
84
Brother John Antony v. State, 1992 Cri LJ 1352, 1359(Mad).
85
Supra note 37.
86
Wolfenden Committee, Report on Homosexuality and Prostitution, (Chairman: Sir John Wolfenden, 1957).
87
H.L.A Hart, Law, Liberty and Morality, 9 Am.J. Juris. 88 (1963).
88
K.I. Vibhute, Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay of Law and
Morality, 51 JILI 12 (2009).
89
Wolfenden Committee, supra note at 57, Section 61.
90
Vibhute, supra note 88, at 15.

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stating that state should not interfere in the matters of private sexual morality unless it causes harm
to others and thereby seeking intervention on part of the judiciary to acknowledge the sexual
autonomy of an individual and right to privacy of the two consenting homosexual adults in
private.91

The constitutional bench of the Supreme Court unanimously declared Section 377 of the IPC as
unconstitutional to the extent it criminalizes consensual sexual conduct between two adults in
private, be it between homosexuals, heterosexuals, same-sex or transgender sex,92 however, it
continues to govern non-consensual sexual acts against adults, minors and acts of bestiality.93 The
Court further held consensual sexual conduct between two adult homosexuals is natural and not
‘against the order of the nature’ – a pre-requisite under Section 377 and stated
“It is irrational, indefensible, and manifestly arbitrary. The LGBT community possesses the same
human rights, constitutional and fundamental rights as other citizens do since these rights are
inherent in individuals as natural and human rights. Section 377 violates Articles 14, 15, 19, and
21 of the Constitution.”94

2.5.2 ON THE ANVIL OF ARTICLE 14

The Court held that it violated Article 14 of the Constitution as it rendered differential treatment
to the transgender community premised only on their sexual orientation. The Supreme Court
reinforced its anti-majoritarian role and showcased its commitment towards constitutional
principles by adopting an individualistic approach. The Court considered the two-fold-test of (i)
intelligible differentia and (ii) rational nexus between the differentia and the object sought to be
achieved by the provision.95 The Court held that the purpose of Section 377 was to protect women
and children from carnal intercourse and after the 2013 amendment,96 Section 375 of the IPC97 and
POSCO98 sufficiently serve this purpose, and the incidental effect is that even consensual sexual

91
Id.
92
Supra note 30, at para 97, 156, 252, 253.
93
Id. at para 21
94
Id. at para 156.
95
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
96
The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013(India).
97
The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012(India).
98
The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

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acts, neither harming the women nor the children, are criminalized and only victimizing the
LGBTQA community who indulge in such sexual conduct.99 The failure within the provision to
distinguish between consensual and non-consensual sexual conduct is patently arbitrary.100 In
addition to this, all kinds of sexual conduct of the homosexuals is penalized while only certain
specific conducts of the heterosexuals, which are against the order of the nature, are penalized as
per Section 377 calling for unequal treatment. The Court held that.
“Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is,
therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the
LGBT community by subjecting them to discrimination and unequal treatment.”101

2.5.3 ON THE ANVIL OF ARTICLE 15

While deciding the constitutional validity of Section 377 IPC on the parameters of Article 15, the
Court held that “sex” under Article 15 includes sexual orientation and any discrimination on this
ground alone amounts to discrimination under Article 15. Like another citizenry, the LGBT
community is equally entitled to protection at the instance of the state102 J. Chandrachud stated
that Section 377 induces silence and stigmatization of the LGBT community and buds the notions
of societal morality which does not accept certain relations, as being against the order of the
nature.103 The Court in the following words held
“Sex, as used in Article 15, refers not only to an individual’s biological characteristics but also to
his or her sexual identity and character.” The LGBT community is a sexual minority that has
suffered from unjustified and unwarranted hostile discrimination. It is equally entitled to the
protections afforded by Article 15.104 The fact that only a minuscule fraction of the country’s
population constitutes the LGBT and that in the last 150 years, less than 200 persons have been
prosecuted under Section 377, is neither here nor there.”105

99
Supra note 30, at para 237.
100
Id. at Para 14, 94, 239
101
Id. at Para 253 (xv).
102
Id. at Para 15.
103
Id. at 52.
104
Id. at 15.1, 15.2.
105
Supra note 70, at para 95.

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2.5.4 ON THE ANVIL OF ARTICLE 19

The constitutional bench unanimously held that Section 377 violates the right to freedom of
expression protected under Article 19 of the Constitution. The Court observed that homosexuality
and sexual orientation are biological phenomena inherent in every individual, and a person has no
control over them.106 Owing to the harassment, the community fears coming out of the closet and
revealing their gender identity and sexual orientation. Unlike heterosexuals, they do not express
and nurture their relationships which affect not just their minds but also physical health. 107 The
consensual sexual acts of the community in private are not harmful or injurious to any other
member of the society and hence cannot be included within the ambit of reasonable restrictions
under Article 19(2) on the grounds of public decency, morality and order.108 J. Chandrachud
further held that “the right to intimacy includes the right to the choice of partner and by
criminalizing consensual same-sex relations under Section 377 amount to the denial of this
right.”109

2.5.5 ON THE ANVIL OF ARTICLE 21

The Court had previously escalated the right to privacy from a legal right to a fundamental right
included within the ambit of Article 21 of the Constitution. Moreover, the right to sexual privacy
emanates from the right to privacy constitutionally protected, and any provision in violation of this
right is unconstitutional. The Court recognized that the right of homosexuals to enjoy their
fundamental right to a dignified living protected under Article 21 and criminal prosecution under
Section 377 curtails this right and liberty110 of the LGBT community from engaging in consensual
sexual conduct.111
For the reasons above, the Court declared Section 377 as unconstitutional to the extent it
criminalizes consensual sexual conduct and asserted that regardless of the number of individuals,

106
Id. at para 253.
107
Id. at para 17.
108
Id. at para 245.
109
Id. at para 67, 151.
110
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
111
Supra note 70, at para 16.1.

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the Court must interfere if a fundamental right is being violated.112 The reasoning laid down in
Suresh Koushal is fallacious and impermissible within our constitutional framework. 113 The
Supreme Court ruling of Section 377 has helped many people to open up about their sexual
orientation and speak freely about it on Social media as well. They were seen celebrating the
victory after the verdict. Earlier, being gay in India meant being rejected by family, ostracized by
the community, and even facing violence. However, with time the attitudes of family members
have been gradually shifting towards a better side.
The penultimate question after the partial decriminalization of Section 377 is how far this legal
change will penetrate the society.114 The questions of the civil realm regarding the acceptance of
same-sex marriage, adoption, discrimination at the workplace, etc. are unanswered.115 Similarly,
in the criminal realm, the scope of application of sexual offenses, presently exclusive to women,
on the LGBTQA community, whether non-consensual sexual assault will amount to rape under
Section 375 and 376 or will it remain to be punishable as sodomy only under Section 377 IPC, the
inclusion of the transgender community under the Sexual Harassment at Workplace Act,116 are
questions yet to be answered.

2.6 GENDER NEUTRALITY AND THE LAW

While the Constitution of India recognizes equality before the law 117 and the equal protection of
laws, gendering of laws is the norm and, in many instances, is even desirable.118 Gendering of laws
refers to the law covering only specific gender identities, particularly women, within its scope. For
instance, the Constitution recognizes and protects “any special provision for women and children”
under Article 15(3). Such a provision indicates substantive equality based on recognizing that the

112
Id. at Para 253(ii).
113
Id. at Para 156(v).
114
Supra note 37.
115
Id. at 24
116
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2012, No. 14, Acts
of Parliament, 2012 (India).
117
Gendering of laws is distinct from the gendered drafting of laws since the former comprises situations where law
covers only a particular gender identity within its scope. For instance, rape laws recognize only (cis) women as victims
of the offence. Gendered drafting of laws on the other hand are a form of drafting where all nouns and pronouns used
in the drafting of laws are male, thus presuming that the norm of humanity is male.
118
Gendering of laws is desirable since the recognition of particular gender identities such as female is necessary to
make special provisions in the law. Neutral application of law that is agnostic to identities may actually result in
discriminatory outcomes since such neutral laws may not account for the vulnerabilities associated with identities.

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guarantee of equality should be amongst equals. Substantive equality implies equality of outcomes
and the equality of opportunity instead of mere equality of treatment. Since different degrees of
vulnerability may be associated with identities, equal formal treatment may not achieve true
emancipation. Thus, laws have to recognize identities, including gender identities, to accommodate
the different vulnerabilities associated with them. The Constitution of India thus, while
recognizing that laws should not discriminate based on sex, allows for special provisions for
women and children, thereby acknowledging historical disadvantages of such identities compared
to cisgender men. The gendering of laws, however, is not only restricted to considerations of
substantive equality. In many cases, the content of law may be informed by the deep-seated
assumptions of the gender binary. However, laws that operate in the binary automatically
discriminate against identities, such as transgender persons outside this binary.

Further, laws operating in the binary may also flow from heteronormative assumptions and
therefore may not account for non-heterosexual orientations. For instance, laws operating in the
binary may assume that only men and women can have a sexual relationship, erasing sexual
attraction/ experiences that may fall outside the binary. Navtej Johar and NALSA’s recognition of
the rights of LGBT+ persons bring questions of discrimination through the operation of gendered
laws to the fore since it recognizes gender identities besides male and female and sexual
orientations besides heterosexuality. In this context, ‘gender neutrality or the neutral treatment of
all genders in-laws becomes an intuitive response. However, the operation of gender neutrality is
far more complex in practice than it appears in theory. In India, while debates regarding gender
neutrality have primarily centered around criminal law, laws governing inheritance, employment
and marriage continue to treat males and females differently. They do not recognize genders
outside the binary. While non-discriminatory treatment against identities existing outside the
binary has become an imperative post NALSA, conceptually based on the same principles, the
legal treatment of the binary in the law itself may merit re-examination.

Because India is such a large and diverse country, people’s perceptions and experiences with
LGBTI people differ significantly. The disparity between urban and rural India and differences in
language, caste, social class, and gender contribute to the difficulty of fully comprehending this
subject. However, we do know that India’s LGBT population is not a “minuscule minority.” They

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have a powerful voice that will not be silenced any longer in their fight for equality. However, if
the civil rights of LGBT people in India are to be safeguarded, much more needs to be done. They
have the inalienable right to define themselves on their terms, in their languages. They are free to
express themselves and their identities without fear of retaliation or violence. They are human
beings with human rights, and they must be recognized as such in the society in which they reside.

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 3. CHAPTER – III
JUDICIAL RESPONSES IN PROMOTING AND PROTECTING
LGBTIQA+ COMMUNITY

“I am what I am, so take me as I am”119

Three years ago, the Supreme Court decriminalized homosexuality, citing Goethe and Leonard
Cohen, Shakespeare, and Oscar Wilde in a landmark decision that signaled freedom for millions
of members of the LGBTQ+ community. The Indian Supreme Court issued a 495-page landmark
decision on LGBT rights and love on 6 September 2018. “Navtej Singh Johar v. Union of India”120
is arguably one of the most progressive and comprehensive verdicts in this field of law that the
world has ever seen. The five-judge constitutional bench, led by then-chief justice Dipak Misra,
read down portions of a 158-year-old colonial law under Section 377 of the Indian Penal Code,
which criminalized consensual gay sex. “The verdict was delivered with such grace and sincerity
that it justified the entire ordeal. Even British philosopher John Stuart Mill said, ‘However, society
has fairly supplanted individuality.’ It filled my heart with joy. Nobody could ever again make us
feel ashamed. We were not afraid of the law. Suri writes, “The country’s highest court sided with
us.”

3.1 COLONIZATION AND CRIMINALIZATION

The queer (1) struggle in India has had a complicated relationship with the law. Nothing
exemplifies this complexity better than the vexed relationship with the anti-sodomy law in India,
Sec 377 of the Indian Penal Code (IPC).121 The British colonizers introduced this law in 1860 is
influenced by Victorian morality. As Justice Chandrachud puts it, “the British conceived,
legislated, and enforced India’s anti-sodomy law without any public debate.” Homosexuality was

119
Johann Wolfgang von Goethe, German Philosopher quoted in Navtej Singh Johar v. Union of India, 2018 (1)
SCC 1, September 6, 2018.
120
Supra note 30.
121
Challenging the Anti Sodomy Law in India: Story of a Continuing Struggle Arvind Narrain, (Last accessed on
June 25, 2021) [Link]
Arvind-Narrain.

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so repugnant to the moral principles he espoused that Macaulay [the law’s drafter] believed the
idea of a discussion was repulsive.”

3.2 KHAIRATI AND THE QUESTION OF GENDER IDENTITY

Queen-Empress v. Khairati122 is the first case documented in which Section 377 was used against
a person identified by the court as a ‘eunuch.’123 The ironically named Justice Straight was called
upon to adjudicate whether a person who was arrested by the police on the grounds of habitually
wearing women’s clothes had committed the offense under Section 377. The medical examination
of Khairati, according to the judicial record, showed that Khairati had ‘syphilis and exhibited signs
of a habitual sodomite, had indeed committed the offense of sodomy.’124 The sessions court judge
noted:

The man is not a literal eunuch, but he was apprehended by police while visiting his village. He
was discovered singing dressed as a woman among the women of a particular family. After being
examined by the Civil Surgeon, it is determined that he possesses the characteristic mark of a
habitual catamite – the dilation of the anus orifice into the shape of a trumpet – as well as being
infected with syphilis in the same region in a manner that evinces unnatural intercourse within the
last few months.125 Justice Straight decided that while he ‘appreciate[d] the desire of the authorities
at Moradabad to check these disgusting practices,’ he was unable to convict Khairati, as ‘neither
the individual with whom the offense was committed nor the time of committal nor the place is
ascertainable.’126 Although Khairati was acquitted in the end, one should note the gratuitous
violence of arresting a person merely because their gender does not match their biological sex. All

122
Supra note 10, at 205.
123
The term ‘eunuch’ is today seen as a derogatory reference to the transgender section of society known as the hijra
community. This community in India has a recorded history of more than 4000 years. Most hijras live in groups that
are organized into seven gharanas (houses), situated mainly in Hyderabad, Pune and Bombay. Each house is headed
by a nayak, who appoints gurus, spiritual leaders who train their chelas (wards) in badhai (dancing, singing and
blessing), and protect them within and outside the community. The system replicates matriarchy, creating
interdependence between the ageing guru and the chela who has been cast out of her family. The nayak and senior
gurus acting as lawmakers decide any disputes that take place among the hijras, and administer punishments such as
imposing fines and expulsion from the community
124
Supra note 10, at 4.
125
Id.
126
Id.

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in all, the figures of authority were complicit in weaving a discourse based upon an attitude of
disgust towards Khairati, who transgressed the existing social norms of gender and sexuality. The
silence in the judgment is the voice of Khairati herself. It can be inferred that Khairati, though born
a man, identified as a woman and lived her life as one. The fact that she never denied having
‘dressed and ornamented as a woman’11 can be interpreted as an indication of how vital her chosen
gender was to her. It was her gender transgression that implicated Khairati as a potential criminal
under Section 377, a reality that she never denied but continued to own stubbornly. Her insistence
on her chosen gender gave Khairati a dignity that was difficult to obliterate.

Khairati’s case points to the fact that transgressive gender is mainly absent in the colonial legal
record. The fragment that records Khairati’s travails speaks to the question of a more considerable
absence from the history of the lives and stories of those who were persecuted on the grounds of
their gender identity. Khairati’s story also points to the work to find and tell how the law in colonial
India was used for persecution based on gender identity.

3.2 NOWSHIRWAN V. EMPEROR: CALLING A NEW WORLD INTO BEING127

In a 1935 decision from Sind, a province of Pakistan, Nowshirwan Irani, a young Irani shopkeeper,
was charged with having committed an offense under Section 377 with youth aged about 18 called
Ratansi. According to the prosecution, Nowshirwan invited Ratansi to his house, locked the door,
and began taking liberties with the young man, who resisted the overtures and desired to leave.
This incident was discovered when Solomon, a police officer, and his friend Gulubuddin peered
“through a chink in the door panels” and observed the two attempting to commit sodomy.
The judge was not convinced by the prosecution story that Nowshirwan had forced Ratansi to have
carnal intercourse. He believed Ratansi had been made to pose as a complainant and, as a result,
made hopelessly discrepant statements. The judge was unwilling to rely on the testimony of
eyewitnesses Solomon and Gulubuddin, whose behavior he found peculiar. Further, the medical
evidence could prove neither forcible sexual intercourse (the prosecution story) nor an attempt to
commit the act of sodomy. According to the judge, ‘as the appellant had not progressed beyond a
certain stage of lascivious companionship, even in the worst-case scenario, I believe he does not

127
Noshirwan v. Emperor AIR 1934 Sind 206.

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deserve to be convicted of any of the offenses with which he was charged or could have been
charged.”128 The two accused were released. Their conviction was set aside as the act of sodomy
was never completed. On his admission, the judge reprimanded one of the men, Ratansi, for being
a “despicable”129 specimen of humanity for being addicted to the “vice of a catamite.”130 Once
again, we associate the person – a catamite – with the action rather than alone. However, the
relevance of the association of the act with the person is never explained. The tragic story of
Nowshirwan and Ratansi speaks to the absence of a specific vocabulary. The language of love and
intimacy, longing and desire, and the expression of spontaneous bodily affection find no safe
habitation within the terms of the law, which degrades such experimental creation of new forms
of intimacy. One could look at Nowshirwan and Ratansi as being unwitting frontiersmen in the
history of the battle against Section 377 and as being among its first recorded tragic victims.
Nowshirwan’s story remains emblematic of the ethical and moral poverty of the judicial discourse,
even though it grappled with homosexual expression for more than 158 years. It is important to
note that despite the Indian Constitution coming into force with the language of equality, non-
discrimination, and dignity, the judiciary in the postcolonial era continued to characterize
homosexuality with terms such as ‘unnatural,’ ‘perversity of mind’ and ‘immoral.’ The ethical
language of dignity and rights were never perceived as applying to LGBT persons (see Narrain,
2008).

3.3 FROM SODOM TO GOMORRAH

In Bapoji Bhatt,131 the appellant faced S 377 charges for alleged oral sex with a minor. In the
absence of any other statute dealing with child sex abuse more appropriately, the case was charged
and tried under S 377, making no distinction between consensual and non-consensual sex. The
courts determined that the definition of “carnal intercourse against the order of nature” could not
be expanded to include acts of oral sex. They thus dismissed the case because “the act must occur
in that part of the body where sodomy is typically committed.”132 In defining what constituted

128
Id.
129
Supra note 10, at 208.
130
Id.
131
Government v. Bapoji Bhatt (1884 (7) Mysore LR 280).
132
[Link] 282.

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‘carnal intercourse against the order of nature’ in Lohana Vasanthlal Devchand v. The State,133the
court noted that ‘the act of oral sex involves enveloping of [the] penis by the mouth, thus creating
an alternative socially unacceptable activity, which is against the order of nature.

The judiciary used this idea of sex without the possibility of conception over the last 149 years to
characterize homosexuality as a ‘perversion,’ ‘despicable specimen of humanity,’ ‘abhorrent
crime,’ ‘result of a perverse mind’ and ‘abhorred by civilized society. The judicial interpretation
included both acts of consensual sex and sexual assault under its catchall category of ‘carnal
intercourse against the order of nature. Technically speaking, Sec 377 does not prohibit
homosexuality or criminalize homosexuals as a class but targets sexual acts instead. However,
because these sexual actions are exclusively associated with homosexuals, homosexuals are the
only group subject to prosecution under the legislation. The Indian Constitution has never
impacted the judicial understanding of Sec 377. Since 1860, through over fifty years of the Indian
Constitution, the judiciary continues to follow the colonial justices of the Khanu era in defining
homosexuals as ‘despicable specimens of humanity. The right to equality, dignity, or the right to
expression has never been seen fit to apply to lesbians, gays, bisexuals, hijras, or others whose
sexuality does not conform to the heterosexual norm.

3.4 FROM GROSS INDECENCY TO SEXUAL PERVERSITY

Oliver Philips argues in his analysis of Zimbabwe’s anti-sodomy jurisprudence that the need for
labels to fit various sex possibilities has resulted in a “continual process of definition, denigration,
and capitulation.”134 The debate over the scope and application of 377 lasted well into independent
India’s 1960s and 1980s. The Gujarat High Court heard an appeal against a conviction for oral sex
with an underage boy in Lohana Vasantlal. The court determined that oral sex was imitative of
anal sex in terms of penetration, orifice, enclosure, and sexual pleasure, thus comparable to anal
sex and punishable under S 377.

133
Lohana Vasanthlal Devchand v. The State AIR 1968 Gujrat 252.
134
Supra note 79, at 184.

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The “imitative” criteria were expanded in the State of Kerala versus K Govindan,135 in which thigh
sex was added to the laundry list of unnatural acts. The court applied the mock test “the male organ
is ‘inserted’ or ‘thrust’ between the thighs, there is ‘penetration’ to constitute an unnatural
offense.”136 The critical factor here is not the coercive aspect of the sexual activity, which would
be appropriate given the facts of the case, but the act’s ability to be accommodated within the
definition of “carnal intercourse against the natural order.” Without discussing a private space for
consensual sexual acts, the growing association between sodomy, perversity, and homosexuality
was solidified in the case of Pooran Ram vs. State of Rajasthan, 137 in which a homosexual was
equated with a rapist. According to the court in Pooran Ram, “perversity” in sexual offenses can
result in “homosexuality or the commission of rape.”138 In numerous cases,139 involving prison
conditions in India, judges have cited the presence of homosexuals and the imminent (and almost
unavoidable) possibility of homosexual sex as a significant aggravating factor contributing to the
prison’s deplorable state. While reflecting on the prison conditions in the case of Lingala
Vijaykumar vs. Public Prosecutor, Andhra Pradesh, the eloquent justice Krishna Iyer stated that
“these adolescents, when ushered into jail with sex-deprived ‘Lepers’ scattered about, become
homosexual offerings with nocturnal dogfights.”140 The comment, characteristic of Justice Iyer’s
distinct approach, highly indicates how the Indian judiciary views homosexuality. Thus,
homosexuals become recognized as predators and coercive sexual partners. Thus, homosexuals
become recognized as predators and coercive sexual partners. Moreover, homosexuality has
become the face of the general discourse on perversity.

Notably, all of the preceding cases involve non-consensual activities. While S 377 does not
preclude consensual activities, the term “voluntary” in the statute’s language renders consent
irrelevant. Thus, oral, anal, and thigh sex and mutual masturbation are all punishable acts, even
when two consenting adults engage in the acts in a private sphere. Indeed, in Mihir vs. the State of
Orissa,141Pasayat J clarified that the victim’s consent is irrelevant under S 377 because “unnatural

135
State of Kerala v. K Govindan (1969) Cr LJ 818.
136
Id. at, para 20.
137
Pooran Ram v. State of Rajasthan 2001 Cr LJ 91.
138
Id. at, para 31.
139
Sunil Batra v. Delhi Administration 1978 SCC (4) 494.
140
Lingala Vijaykumar v. Public Prosecutor, Andhra Pradesh 1978 SCC.
141
Mihir v. State of Orissa 1992 Cr LJ 488.

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carnal intercourse is abhorred by civilized society.” Justice Pasayat categorically compares
consensual homosexuality to rape.

Sodomy laws are only helpful in prosecuting cases of non-consensual sex. However, this cannot
be used to justify the retention of anti-sodomy laws or legitimize the common law offense of
sodomy. Justice Ackermann, in his opinion decriminalizing consensual sodomy in South Africa,
stated that “the fact that the ambit of the offense was extensive enough to include ‘male rape’ was
coincidental.”142 Prosecuting non-consensual sexual acts under sodomy laws trivializes the sexual
offense’s coercive elements, as “...the charge focuses on the priori “unnaturalness” of male-male
sex.”143 State vs. Brother John Antony144 was a 1992 case brought by students of a boarding school
against a teacher who compelled them to perform oral sex on him and masturbated them. Once
again, the “unnaturalness” of the action takes precedence in this case. The fact that “an assault
(possibly violent) occurred is of secondary important.”145 The judgment delves deeply into the
definition of sexual perversion and discusses other forms of sexual deviance such as
“tribadism,”146“bestiality,”147 and “masochism,”148 among others. “Fetishism,”149 “exposure,”150
and “sadism”151and concludes, using the mock test, that mutual masturbation falls within 377
because “the petitioner’s male organ is said to be tightly grasped by the victims’ hands, forming
an orifice-like structure for manipulation and movement of the penis through insertion and
withdrawal.”152

142
National Coalition of Gay and Lesbian Equality v. Minister of Justice 1999 (1) SA 6 (CC), para 69.
143
Supra note 17 at 193
144
Brother John Antony v. State 1992 Cr LJ 1352.
145
Id.
146
Supra 27 at 1353, ‘Tibadism: Friction of the External Genital Organs by One Woman on Another by Mutual
Bodily Contact for the Gratification of the Sexual Desire’.
147
Ibid ‘Bestiality: Sexual Intercourse by a Human Being with a Lower Animal’.
148
Ibid at 1354’ Masochism: Opposite of Sadism and Sexual Gratification Is Sought from the Desire to be Beaten,
Tormented or Humiliated by One’s Sexual Partner’.
149
Supra 27 ‘Fetishism: Experiencing Sexual Excitement Leading to Orgasm from Some Part of the Body of a
Woman or Some Article Belonging to Her’.
150
Id. ‘Exhibitionism: Exposure of Genital Organs in Public’.
151
Id. ‘Sadism: A Form of Sexual Perversion in Which the Infliction of Pain and Torture Act as Sexual Stimulus’.
152
Similarly in cases like Calvin Francis vs State of Orissa 1992 (2) Crimes 455 and State of Gujarat vs Bachmiya
Musamiya 1998 (2) Gujarat L R 2456, the judgments are only concerned with the unnaturalness of the sexual act
involved and not the plight of the victim.

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This has a significant impact on the concept (or lack thereof) of consent in 377 cases, as decisions
dealing with non-consensual sexual activities undermine “the victim’s creation” and thus render
“the non-existence of a victim”153 irrelevant in cases of consensual sexual activities. The National
Commission for Women in 1993154 advocated the deletion of Section 377 to give legitimacy to
same-sex relationships between consenting adults. Even though it was considered a progressive
step, the commission did not consider the community’s views and concerns. Additionally, for more
than a decade, the bill laid dormant.

3.5 NAZ FOUNDATION v. NCT DELHI: THE PROMISE OF HOPE

At various times, activists have wondered whether Sec 377 is the be-all and the end-all of our
struggle and whether the courts are ever capable of taking this issue on board and delivering a
favorable judgment. This process of discussion, with many confusions and little clarity as to the
course of action, received a focal point with the petition challenging Sec 377 that was filed
unilaterally by the Lawyers Collective on behalf of Naz Foundation (India) Trust, a non-
governmental organization, before the Delhi High Court in 2001. The petition argued that Section
377 was unconstitutional to the extent that it prohibited sexual actions between consenting adults
of the same sex in private. Additionally (in technical words), the petition requests that the act be
‘read down’ to exempt same-sex acts between consenting adults in private, allowing for the
ongoing use of Sec 377 in cases of child sexual abuse.

However, this petition faced massive criticism from the LGBTIQ community as they felt that there
had been no consultation before filing the petition. The community members articulated a strong
disagreement with challenging Sec 377 based on the right to privacy, arguing that while it may be
a legal strategy, it did not reflect the normative claims of the community. One of the valid points
put forward by the community was that privacy, when viewed as the freedom to be themselves at
home, free from state control, was a class-bound concept. Not many other than some privileged
Lesbian, Gay, Bisexual, Transgender (LGBT) members had the luxury of having homes and
enjoying the right to privacy. In fact, for most kothis, hijras, and lower-income gays and lesbians,

153
Supra 26
154
Sexual Violence against Women and Children Bill, 1993.

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private space was a privilege they did not have. If the court were to go ahead and decriminalize
same-sex activity between adults in private, it would make no significant difference to their lives.
This critique eventually fed back into the nature of the legal intervention, with the privacy
argument being distinguished into zonal privacy and decisional privacy with Voices Against 377
making the argument that privacy was not a concept of space alone (i.e., I have a right to do what
I want in my home) but rather a concept about the autonomy of decision-making when it came to
personal decisions such as the decision about how and with whom to forge affectionate and
relational ties.155 For next seven years the meetings hosted by Lawyers Collective and Naz
Foundation s contributed towards Sec 377 becoming a more politicized issue in the community.
To provide greater thrust to the cause, the National AIDS Control Organization and’ Voices
Against 377’ extended their support to the petition.156 In 2009, the first-time judiciary moved
outside the range of responses through Justice Shah and declared the 150 years old draconian law
as unconstitutional and legalized homosexual activities between consenting adults. This decision
can be characterized as representing the quality of judicial empathy. The judgment is of vital
importance as the judges’ questions, and comments revealed not the intention to humiliate but
instead in response to a trans activism movement, upholding the rights of privacy and dignified
life of the LGBQA community. Chief Justice Shah communicated this empathy in ample measure
upholding the spirit of the constitution, breaking the hetero-normative societal standards, and
accommodating the voices of the sexual minority. In addition, ‘Moral indignation, however, long,
is not a valid basis for overriding individuals’ fundamental dignity and privacy rights. In our view,
constitutional morality must take precedence over dignity and private rights, even if this is the
majority view.’157 Moreover, the theme of constitutional morality derived from constitutional
values brings about a paradigm shift in how the law looks at LGBT persons. This created a magical
space for the LGBTIQ community, who were so used to the sneers and jeers of society, suddenly
felt that they were being heard and respected. Simply through the art of empathetic listening, the
judges restored dignity to a section of society upon whom the government seemed intent on
pouring nothing but contempt and scorn.

155
ANNIE, CLOSE RANGE: BROKEBACK MOUNTAIN AND OTHER STORIES 298 (Harper Perennial,
London, New York 2006).
156
Supra note 5, at 277.
157
Id. note at para (86).

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However, this journey of victory from Nowshirwan to the Naz Foundation, in some ways, proved
fragile, as the decision in 2013 in Suresh Kumar Koushal v. Naz Foundation158was to show.

3.6 SURESH KUMAR KOUSHAL AND THE FAILURE OF CITIZENSHIP

Suresh Kumar, an astrologer who had nothing to do with the litigation so far, petitioned the
Supreme Court challenging the historic Delhi High Court Judgment just seven days after the Naz
Foundation decision. He was joined subsequently by 14 others from the spectrum of Indian society,
comprising all religions, all united by one thing only, opposition to the Naz judgment. 159 This
vociferous opposition from representatives of all significant Indian faiths prompted those in favor
of the Delhi High Court judgment. As a result, the parties before that court, Voices Against 377
and Naz Foundation, were joined by 19 parents of LGBT persons, 14 mental health professionals,
11 law teachers, 16 teachers, and Shyam Benegal, a public-spirited intellectual, who all filed
interventions before the Supreme Court. On 11 December 2013, a two-judge bench of the Indian
Supreme court chose to disregard the violations it had caused. The judges ignored the actual
impacts that section 377 has on queer lives and concluded:

A minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals, or

transgender people, and in last more than 150 years, less than 200 persons have been prosecuted
(as per the reported orders) for committing offenses under Section 377 IPC, and this cannot be
made the sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21
of the constitution.160

158
Supra note 7, at 1278
159
Suresh Kumar Koushal and another v. Naz Foundation and others, Special Leave Petition (SLP) no. 15436 of 2009
was the first SLP to be filed against the Naz judgment. Since then, 15 other parties have also filed SLPs challenging
the Naz judgment: Apostolic Churches Alliance through its Bishop v. Naz Foundation; S.K. Tizarawala v. Naz
Foundation; Bhim Singh v. Naz Foundation; B. Krishna Bhat v. Naz Foundation; B.P. Singhal v. Naz Foundation;
S.D. Pratinidhi Sabha v. Naz Foundation; Delhi Commission for Protection of Child Rights v. Naz Foundation; Ram
Murti v. Government of NCT of Delhi; Krantikari Manuvadi Morcha Party v. Naz Foundation; Raza Academy v. Naz
Foundation; Tamil Nadu Muslim Munnetra Kazhagam v. Naz Foundation; Utkal Christian Council v. Naz Foundation;
Trust Gods Ministry v. Naz Foundation; All India Muslim Personal Law Board v. Naz Foundation; Joint Action
Kannur v. Naz Foundation.
160
Suresh Kumar Koushal v. Naz Foundation, 2013 (15) SCALE 55: MANU/ SC/1278/2013.

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The decision is best described in Vikram Seth’s eloquent words as a ‘bad day for law and love’
(2013). The judgment was heavily criticized for displaying poor legal reasoning – even lack of
fundamental legal analysis – as well as a lack of understanding of the queer issue. 161 Dhavan
described it as hurriedly written, deeply flawed, contradictory, and contrary to constitutional
understandings.”162 The judgment chose a narrow, formalistic focus and failed to demonstrate why
it concluded that Section 377 was constitutionally valid. It seems the court entirely neglected its
role of guardian and showed a complete lack of understanding of how Section 377 has impacted
and still impacts LGBTIQ people. Beyond equality, privacy, and dignity, the one concept
developed in the Naz judgment has important implications, and not just for India. The vague
formulation of section 377 in this inspirationally Benthamite Code was deliberate — Macaulay,
its drafter, wanted to avoid any discussion of ‘an odious class of offenses’ which a clearer phrasing
could have given rise to.163 The provision then traveled around the British Empire, is the main
reason that about four in five Commonwealth nations still criminalize homosexuality. Many
commentators have already pointed out the spectacular lack of legal aptitude, understanding of
human rights, and compassion in Koushal.164The ruling based on the Indian Constitution’s
commitment to protecting fundamental rights of minuscule groups, as articulated by Dr.
Ambedkar, was failed to appreciate in Koushal’s judgment. The Naz court applied this notion of
constitutional morality derived from Dr. Ambedkar and the notion of inclusiveness as expressed
in 1947 by Jawaharlal Nehru165to LGBT persons.
While the reasoning is a critical component of the law, judicial decisions are delivered at their best
with a profound empathy for human suffering. A court moved by human suffering produces
judgments like the pavement-dwellers (Olga Tellis).166 The bonded laborers (Bandhua Mukti
Morcha).167 It could be argued that ruling based on profound appreciation to human suffering,

161
Raveev Dhavan, SC judgment on Section 377: a flawed pre-retirement order written in a rush. The Times of India,
(Last accessed on July 26, 14:15 PM) [Link] judgment-on-Section-377-A-
flawed-pre-retirement-order-written-in-a-rush/ articles how/[Link]
162
Id.
163
Report of the Indian Law Commission on the Penal Code, October 14, 1837, 3990-91. See also Alok Gupta, Section
377 and the Dignity of Indian Homosexuals Economic and Political Weekly (July 26,2021, 9:29 PM).
164
Surabhi Shukla, Media Stories on 377 SC Judgment, ORINAM BLOG (July 27, 2021 9:25 PM)
[Link]
165
In his ‘Tryst with destiny’ speech, Constituent Assembly, delivered at midnight, 14−15 Aug. 1947, on the eve of
independence, available at: [Link] [Link]/en/[Link]?id=214&tmpl=component (Last
accessed on July 27, 10.00 PM)
166
Olga Tellis and others v. Bombay Municipal Corporation AIR 1986 SC 180.
167
Bandhua Muki Morcha v. Union of India and others (1997) 10 SCC 549.

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judges embody a form of constitutional compassion that should be at the heart of the judicial
function. Referring to Gandhi, he said: ‘The ambition of the most remarkable man of our
generation has been to wipe every tear from every eye. That may be beyond us, but as long as there
are tears and suffering, so long our work will not be over. The first structural failing, which many
progressives point to as an example for how the judiciary should be formed, is the Supreme Court’s
near-complete abandonment of the idea of separation of powers and metamorphosis into a populist,
legislative court of governance. The second failure, which derives from the first, is the court’s
frequent inability to explain. Koushal exemplifies two Supreme Court structural failings. The court
turned a blind eye to human misery for its decisions and the legal academies to hold it accountable
for this failure. For all those who believe in the fundamental rights of individuals to express
themselves irrespective of the barriers of caste, religion, and sexuality, the decision in Koushal
represents an undeniable setback.

3.7 NATIONAL LEGAL SERVICES AUTHORITY v. UNION OF INDIA

A little over four months since the severe setback, those involved in the Suresh Kumar Koushal
case gave trans activism throughout the country. In 2014 the blossoming activism led to a
remarkably progressive judgment in National Legal Services Authority v. Union of
India,168 wherein the court explicitly recognized the identity of the third gender, protecting their
fundamental rights under Article 14 of the Constitution of India, 1950. The judges began with a
powerful acknowledgment of the wrongs inflicted on the transgender community.
Our society frequently mocks and victimizes the transgender community. They are marginalized
and treated as untouchables in public spaces such as railway stations, bus stops, schools,
workplaces, malls, theatres, and hospitals, even though the moral failure stems from society’s
unwillingness to contain or embrace diverse gender identities and expressions. This mindset must
change.169 The judges traced a place for the transgender community and recognized a cultural
sanction to transgender existence. In the court’s opinion, this society was not discriminated against
and was a part of the ruling class under the Muslim Mughal rulers. In 1871 the British passed the
Criminal Tribes Act under which the very existence of the hijra community was rendered criminal.

168
NALSA supra note 12, at 112.
169
Id. para at 1–2.

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By referencing the unjust arrest of Khairati,42, which, as noted above, was the first documented
case of the use of Section 377, the judges recognized that using it formed another part of the
colonial apparatus that ends up targeting the hijra person. The court held that “person” under article
14 is not limited to mean a man and a woman but extends to the transgender community and holds
that t the denial of rights to the transgender community is a violation of the right to equality (Article
14), the right to non-discrimination (Article 15), the right to affirmative action (Article 16), the
right to freedom of expression (Article 19(1)(a)) and the right to dignity (Article 21).

The National Legal Services Authority judgment (NALSA judgment) is particularly innovative in
its understanding and was a progressive step to safeguard the constitutional offspring in line with
constitutional morality. The decision also identified the legal recognition of gender identity and
freedom guaranteed under our constitution. The NALSA judgment was remarkable as it upheld
the rule of law, regardless of the numerical significance of the community and the normative
societal standards of morality. The state and central governments were directed to recognize the
self-identified gender of persons, be they male, female, or third gender, without surgery being a
prerequisite. Following the legitimate recognition of the third gender as an integral part of personal
autonomy and self-expression, the law prohibiting rape and other sexual offenses should have been
gender-neutral, as the trans community, like women, now falls under the oppressed and vulnerable
category, making them susceptible to sexual violence and harassment as a result of societal power
dynamics.170 The Court has also recognized the LGBTQA community as a vulnerable and
oppressed class in the NALSA decision and gave legal recognition to the community.

A study conducted by Alok Gupta on over 50 reported judgments under Section 377 reflected that
over the past 50 years, 30% of the cases dealt with sexual assault and abuse of minors. The
remaining dealt with non-consensual sexual activities with women and between men. Prosecution
of cases involving consensual sexual conduct under Section 377 was almost none. Instead, the
police agency grossly misused the law for exploitation and harassment of the LGBTQA
community by charging them under Section 377.171 Later, the accused persons are either

170
State v. Sheodayal AIR 1956 SC 8
171
Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, ECONOMIC AND POLITICAL WEEKLY,
4817 (May 08, 2019, 15:30 PM), [Link]

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discharged by the police officer owing to a lack of substantial medical evidence to prove carnal
intercourse against the order of the nature, or a closure report is filed leading to the release of the
accused person.172 Section 377 was being used as a tool for sexual violence, exploitation or
harassment by the governmental institutions and agencies against the sexual
minorities.173 Acknowledgment of the vulnerability of the LGBTQA community and the fact that
the people who belong to it are whole human beings with rights in NALSA, won back part of what
was lost through Koushal.

3.8 THE RIGHT TO PRIVACY PAVES THE WAY FOR LGBTQ RIGHTS IN INDIA

In 2017, in the case of Puttaswamy v. Union of India,174 did take the drastic step of overruling the
Kharak Singh and M.P. Sharma cases. The Supreme Court gave an expansive interpretation of
privacy. It held that it is a fundamental right.175 Additionally, the court, taking a critical view of
the regressive step taken in the Suresh Koushal decision, observed that sexual orientation is an
essential attribute of privacy.176 Equal protection necessitates the non-discriminatory protection of
each individual’s identity. People with diverse sexual orientations do not present any psychological
impairment or deficiency that would justify applying a law distinct from those with a heterosexual
sexual orientation and criminalizing their sexual actions. This observation of the Supreme Court
raised the hopes of the transgender community concerning their spatial privacy, decisional privacy,
or privacy of choice. The Delhi High Court has corrected the long-standing mistake made by the
Delhi High Court. It has incorporated the right to consensual, private, homosexual sex under the
right to privacy.

3.9 NAVTEJ SINGH JOHAR AND OTHERS v. UNION OF INDIAA: A BATTLE FOR
ALL

172
Id. at 4819-4820.
173
K.I. Vibhute, Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay of Law and
Morality, JOURNAL OF INDIAN LAW INSTITUTE, 12 (May 08, 2019, 16:03 PM),
[Link]
174
K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809.
175
Id.
176
Id.

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In 2018, several writ petitions were referred to the Supreme Court to adjudicate on “right to
sexuality,” “right to sexual autonomy,” and “right to choice of a sexual partner” guaranteed by
Article 21 of the Constitution of India. It was also prayed by the petitioners to declare Section 377
of the Indian Penal Code as unconstitutional. One of such petitions presented by dancer Navtej
Singh Johar before the three-judge bench referred to the Suresh Koushal case. The three-judge
bench felt that there were many aspects to be considered and referred to the Constitutional Bench,
and five other petitions were joined to this petition. The government, through an affidavit,
articulated that the court may determine the constitutionality of Section 377 IPC as per its wisdom.
Considering the petitions and examining the same through various aspects, the learned five-judge
bench of the Apex Court declared section 377 of IPC unconstitutional. The court declared the
section unconstitutional to the extent that it criminalizes consensual sexual conduct between two
adults in private, regardless of whether they are homosexuals, heterosexuals, same-sex partners,
or transgender individuals. It does, however, continue to regulate non-consensual sexual acts
against adults, minors, and bestial acts. It does, however, continue to regulate non-consensual
sexual acts against adults, minors, and bestial acts. The judges are moved by the LGBT
community’s suffering, as evidenced by both the content and tone of the verdict. It contrasts with
the previous “Koushal”-verdict in 2013 wrote about “so-called rights” of “a minuscule minority.”
Even the NALSA verdict of 2014 focused on the transgender community being colored by pity
rather than genuine compassion and recognition of responsibility.

In “Navtej Singh Johar,” the verdict begins with Chief Justice Misra quoting Goethe: “I am what
I am, so take me as I am.”

Justice Malhotra goes on to state that “History owes an apology to the members of this community
and their families for the delay in providing redress for the centuries of ignominy and ostracism.”
In this case, the judges apologized for being wrong and letting the LGBTIQ community suffer at
society’s hands and sought to atone for it by promising that things must become better today and
in the future for LGBTIQ persons. Though the verdict applies in India, the words have a universal
application.

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As mentioned above, through mobilization against section 377, the court took a shift from
criminalization approach to human rights approach; and from majoritarian morality to
constitutional morality, holding that constitutional morality cannot be martyred for social
morality177nor can the two be substituted for each other; constitutional morality will always trump
social morality.178 Justice Deepak Misra held,

“Under the guise of social morality, members of the LGBT community must not be outlawed or
subjected to stepmotherly treatment by society; if such treatment is permitted to continue, the
constitutional courts, which are tasked with protecting fundamental rights, will be failing in their
duty.”179

The court also held that retention of Section 377 conforms to the heterosexual expectations of
society. In doing so, it perpetuates discrimination owing to a symbiotic relationship between anti-
homosexual legislation and traditional gender roles. The judges discarded the social concerns and
saw the LGBT struggle as part of a necessary feminist struggle leading to the progressive
realization of the right of the sexual minorities and furthering transformative constitutionalism.
While the LGBT problem has been framed primarily in terms of rights, civil questions such as
same-sex marriage, adoption, workplace discrimination, and so on remain unaddressed. Similarly,
in the criminal realm, the scope of application of sexual offenses, presently exclusive to women,
on the LGBTQA community, whether non-consensual sexual assault will amount to rape under
Section 375 and 376 or will it remain to be punishable as sodomy only under Section 377 IPC, the
inclusion of the transgender community under the Sexual Harassment at Workplace Act,180 are
questions yet to be answered.
In “Navtej Singh Johar,” the judges do not engage much in this discourse. Since ancient times,
over 2,000 years of Indian literature [demonstrates] those homosexual relationships have
flourished within the community and have been embraced in a variety of forms,” Justice
Chandrachud writes in a footnote, referring to the work of Ruth Vanita and Saleem Kidwai. When
it comes to morality, the judges are concerned with “constitutional morality,” a term initially

177
Supra note 30, at 253(v).
178
Id. at para 80-81.
179
Id. at para 122.
180
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (India).

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proposed by Dr. Ambedkar. “Constitutional morality is not a natural sentiment,” the judges quote
him as stating. It needs to be nurtured. The courts’ principle of non-retrogression, which states that
once rights are recognized, they cannot be taken away, is very significant.

In numerous subsequent cases, the courts have maintained this progressive stance. In Arunkumar
v. Inspector General of Registration,181 the Madurai Bench of the Madras High Court upheld the
marriage of a trans woman and a cis man in 2019. It confirmed that it was valid under the 1956
Hindu Marriage Act. Additionally, the court stated that a ‘bride’ included any intersex/transgender
person identified as female. It was observed that “the only factor to consider is how the individual
perceives herself.” Despite the law’s hetero-normative definition of consummation as one between
a cis male and cis female, the court’s validation of this marriage demonstrates the court’s
willingness and capacity to interpret beyond the traditional definition of gender identity.

While considering a petition filed by a lesbian couple seeking protection from police and family
harassment, the court noted that the LGBTQIA+ community “cannot be left in a vulnerable
environment” where their safety and protection are not guaranteed. Additionally, J. Venkatesh
volunteered to participate in psychological and educational sessions with a professional
psychologist to unlearn and overcome his prejudices toward the queer community and better
understand their struggles. He distinguished himself as a queer community ally by stating that
“[i]gnorance is no excuse for normalizing any form of discrimination.” J. Venkatesh also noted in
his judgment the importance of the legislature enacting legislation and the importance of protecting
queer persons from the hostile environment(s) until then. As a result, he issued guidelines to ensure
the safety and protection of queer people’s rights. The guidelines were issued to educate law
enforcement and corrections officers, the judiciary, educational institutions, and physical and
mental health professionals about LGBTQIA+ issues. In this regard, the most recent and
consequential judgment was issued on 7 June 2021 by J. Anand Venkatesh of the Madras High
Court in S Sushma v. Commissioner of Police,182 which has been lauded as a gift to the LGBTQ
community during pride month.

181
Arun Kumar v. Inspector General of Registration WP(MD)No.4125 of 2019.
182
S Sushma v. Commissioner of Police W. P. No. 7284 of 2021.

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The most notable aspect of the guidelines was the directive to the Union and State Governments
to prohibit medical professionals from attempting to ‘cure’ or ‘change’ queer people’s gender
identity and sexual orientation. Additionally, it was stated that strict action should be taken against
any medical professional who engages in any form or method of conversion therapy, including the
revocation of their license to practice. Furthermore, the rules prioritized public outreach, directing
Anganwadis (Indian rural child care centers) and other shelter houses to protect and shelter trans
persons. The state created public awareness campaigns on LGBTQIA+-related topics. Another
noteworthy point in these guidelines was the direction to the judiciary, which stated that any issue
involving the LBGTQIA+ community must be addressed sensitively, and the appropriate adaptive
mechanism – such as counseling, monetary support, or legal assistance – must be implemented
following the facts and circumstances of each case. The overarching goal of these guidelines was
to establish a safe(r) space for the LGBTQ community.

Although India established a precedent by formally adopting the Yogyakarta Principles in the
NALSA case and decriminalizing ‘unnatural sex’ in the Navtej Singh Johar case to protect the
right to life, liberty, and privacy, the country continues to lag in granting sexual minorities their
due [and inherent] rights, recognition, and representation – not only in the judiciary but also in the
public sector. By recognizing the diversity of partnerships and families, the preceding decisions
functioned as a spark in the struggle against marginalization and social exclusion. As former Chief
Justice Deepak Mishra stated in the Navtej Singh Johar case, constitutional morality must prevail
over social morality to protect the LGBTQIA+ community’s rights. Thus, these decisions
demonstrate the judiciary’s capacity to adapt, depart from conventional understandings of socio-
legal phenomena, and foster a more inclusive environment. Perhaps the best assurance is the
societal transformation demanded by the judges, which the LGBT movement and its allies have
fought for and must continue to fight for in numerous ways.

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 4 CHAPTER -IV
A COMPARATIVE STUDY ON THE VARIOUS EXISTING
COMPREHENSIVE ANTI LGBTIQA+ DISCRIMINATORY
LEGISLATIONS IN SOUTH AFRICA, CANADA, USA

4.1 SOUTH AFRICA

‘I am fighting for the abolition of apartheid. Moreover, I fight for freedom of sexual orientation.
These are inextricably linked with each other. I cannot be free as a black man if I am not free as
a gay man.
Simon Nkoli, first Gay and Lesbian Pride March in Johannesburg, South Africa, 1990. (Luirink,
2000)

4.1.1 HISTORY

South Africa became the first country to constitutionally ban discrimination on the grounds of
sexual orientation and gender identity (SOGI), and the same were entrenched in the permanent
constitution in 1996.183 Clearly, this is no small achievement, and the success speaks to the
extraordinary legal and political context of South Africa today. In the Apartheid era, which
officially lasted from 1948-1994 (Thompson, 1990), the country was governed by the National
Party, where homosexuality was considered a criminal offense punishable with imprisonment. The
community was coerced to undergo gender reassignment surgery to cure their sexual orientation
and keep it within the bounds of the societal hetero-sexual norms. This law led to the harassment
and social exclusion of the LGBTQA community in Africa. The battle spawned the gay and lesbian
groups, which sought to elevate LGBT problems to the forefront of the anti-apartheid movement
both in South Africa and overseas.184

183
Constitution of the Republic of South Africa, 10th December 1996 available at
[Link]
184
J COCK, ENGENDERING GAY AND LESBIAN RIGHTS: THE EQUALITY CLAUSE IN SOUTH
AFRICAN CONSTITUTION 36 (Woman's Studies International Forum 2002)

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The connections between the anti-apartheid campaign and the struggle for LGBT rights are best
exemplified by the legendary narrative of Simon Nkoli, an activist against both apartheid and
institutionalized homophobia. He established the first mass-based black gay and lesbian
organization, the Gay and Lesbian Organisation of the Witwatersrand (GLOW).185 He stated: “I
am fighting for the abolition of apartheid, and I fight for the right of freedom of sexual orientation.
These are inextricably linked with each other. I cannot be free as a black man if I am not free as a
gay man.”186 He insisted upon the inseparability of the struggles against apartheid and
homophobia, challenging his comrades in both movements to fight together.187 Simon’s story is
well-known in South Africa. However, it needs to be spread throughout the global LGBT
community. His effort symbolizes a new and inspiring type of action that is not sectarian nor
exclusive but rather encompasses the most comprehensive concept of human suffering. There is
no inspirational figure in India quite like Simon Nkoli, who spans the worlds of anti-imperialism
and the right to self-definition. However, like Simon Nkoli, another renowned hero fought both
external (imperialist) and internal (caste) control. Dr. B.R. Ambedkar was a significant figure - the
first untouchable leader of modern times and a politician, lawyer, and statesman who tirelessly
fought against upper caste India’s discriminatory attitudes against the Dalit group.188 While there
is no evident connection between the Dalit community’s fight and that of the LGBT community,
there is a fundamental one. According to Dr. Ambedkar, morality could never be used to justify
depriving a minority of their rights.

4.1.2 THE LAW REFORM MOVEMENT CHALLENGES THE PENALIZATION OF

SAME-SEX RELATIONSHIPS.

“The gay community grew, and there were more parties than ever recorded previously. Individuals
appeared to set aside their differences, and everyone pitched in.”

185
R Louw, Sexual orientation,8 South African Human Rights Yearbook 260, 245-266 (1997)
[Link]
186
Marc Epprecht, "Unnatural Vice" in South Africa: The 1907 Commission of Enquiry, 134, Int. J. Afr. Hist. Stud
124-140, (2001).
187
Ryan Richard Thoreson, Somewhere over the Rainbow Nation: Gay, Lesbian and Bisexual Activism in South Africa,
34, J. South. Afr. Stud. 679-697, (2008).
188
See generally Gail Omvedt (2004). The word Dalit, which means 'oppressed', is a self-description of what were
called the 'untouchable' communities.

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 - ‘Hannah,’ participant in the Law Reform Movement

In the early months of 1968, it was revealed that the South African government was considering
toughening the country’s already strict anti-homosexuality legislation. The majority of Afrikaners
in government were members of the NGK – the Nederduitse Gereformeerde Kerk – or, in English,
the Dutch Reformed Church (DRC), which backed apartheid and viewed homosexuality as a sin
or mental disorder at the time. The government had established a Parliamentary Select Committee
to determine what reforms to make and how far to go. Julian was representing “the LGBT
community of South Africa” in opposing any further tightening of the homosexuality laws. To
combat prosecution, white homosexual and lesbian organizations formed the Law Reform
Movement. On April 10, 1968, South Africa hosted its first LGBT public assembly. This group’s
tactics included pushing legislators to modify the proposed legal modifications. This organization
of the country’s LGBT community and subsequent mobilization against planned Immorality Act
amendments were later regarded as “the beginnings of a gay movement in South Africa.”

One of its subcommittees produced submissions to parliament, while another collated the most
recent psychiatric and scientific research on homosexuality. A third was devoted to fundraising by
organizing events in members’ homes and other private settings throughout the country.

Additionally, the fundraising committee arranged a public meeting at the Park Royal Hotel near
Johannesburg’s Joubert Park - the country’s first mass conference of homosexual men and
lesbians. The Law Reform Movement rejoiced that the new legislation maintained the
criminalization of homosexual behavior at parties but did not extend it to private homosexual acts.
The movement had accomplished its primary objective of ensuring LGBT people’s right to privacy
in their sexual lives. The movement disintegrated following this, yet this represents a watershed
point in LGBTQIA+ history.
• Inclusion of sexual orientation in the Republic of South Africa’s Interim Constitution Act
200 of 1993
• Inclusion of sexual orientation in the Republic of South Africa’s Interim Constitution Act
200 of 1993

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 • Prior to the 1980s, homosexuality was a common occurrence in the gold mines of South
Africa.

There had been little sign of gay rights struggle.189 To discourage non-procreative sex, the law
dictated that ‘while homosexual acts in private [were], in effect, of no legal consequences behavior
associated with homosexual practices, such as sodomy, “unnatural” sexual acts including
masturbation, and acts designed to promote “homosexual behavior” [were] proscribed.’ It was
legal to be labeled as a homosexual but illegal to engage in homosexual sex practices.190 However,
during the 1980s, gay life was politicized.191The Gay Association of South Africa (GASA) was
the first vibrant gay and lesbian organization established in Johannesburg in 1982.192Its primary
purpose was to act as a social hub for white middle-class gay men.193 Until the late 1980s, the
African National Congress lacked a policy on sexual orientation, with some senior party officials
dismissing LGBT matters as irrelevant.194 In the late 1980s, ANC firmly committed to removing
all forms of discrimination and oppression extend to protecting gay rights in a liberated South
Africa.195The process of all-party negotiations led to the drafting of series of Bill of rights: the
Charter of Social Justice (by a group of progressive legal academics); the government Law
Commission draft Bill of Rights; the ANC draft Bill of Rights; the National Party government
draft; as well as those of other political parties196 and subsequently the enactment of the Interim
Constitution, which included a Bill of Rights to see South Africa through the general elections of
1994 and five years after that. The ANC draft Bill of Rights included a mention of sexual

189
M Gevisser, A different fight for freedom: A history of South African lesbian and gay organisation from the
1980s to the 1990s" in M Gevisser & E Cameron (eds) Defiant Desire Gay and Lesbian Lives in South Africa 14 -86
Johannesburg, (1995).
190
G. Isaacs and B. McKendrick, Male Homosexuality in South Africa: Identity Formation, Culture and Crisis 151
(Cape Town, Oxford University Press (1992)
191
P de Vos ,"The 'inevitability' of same-sex marriage in South Africa's post-apartheid state" (2007) 23 SAJHR 432-
465 at 435.
192
Id.
193
Id. at 50.
194
EC Christiansen "Ending the apartheid from the closet: Sexual orientation in the South African constitutional
process" (1997) 32 International Law and Politics 997-1058 at 1024.
195
T. Mbeki to P. Tatchell, 24 November 1987, in Hoad et al., Sex and Politics, p. 149.
196
H. Corder et al., A Charter for Social Justice (1992); S.A. Law Commission, Project 58: Group and Human
Rights, Working Paper 25 (1989); S.A. Law Commission, Interim Report on Group and Human Rights (1991);
African National Congress, A Bill of Rights for a New South Africa - A Working Document by the ANC
Constitutional Committee (1990); S.A. Government, Proposals on a Charter of Fundamental Rights (1993);
Democratic Party, Draft Bill of Rights (1993).

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orientation (albeit not within the primary equality guarantees). The ANC’s 1992 policy conference
explicitly endorsed the anti-discrimination principle regarding sexual orientation.197The fact that
most parties agreed that express or implicit anti-discrimination protection for gays and lesbians
must be included is extraordinary. However, it did not ensure that the Interim Constitution included
an explicit reference to sexual orientation.198 While drafting the constitution’s interim rights, the
Technical Committee of Theme Committee Four of the Constitutional Assembly199 wielded
tremendous influence over the substantive rights. Moreover, on a practical level, once rights were
entrenched, they could not easily be omitted from the permanent constitution, even if technically
permissible under law. Further, enumeration in the Interim Constitution was necessary to secure
inclusion in the permanent version. Finally, a list of essential rights dubbed the Bill of Rights
included an equality clause prohibiting discrimination on particular grounds, including sexual
orientation. Thus, section 8(2) of the Constitution of the Republic of South Africa Act 200 of 1993
(the Interim Constitution) prohibited direct or indirect discrimination based on sexual orientation.

4.1.3 THE FINAL CONSTITUTION’S RETENTION OF THE SEXUAL

ORIENTATION CLAUSE

On May 8, 1996, South Africa became the first country to prohibit discrimination based on sexual
orientation constitutionally. Two years later, these interim constitutional safeguards were
strengthened and incorporated into the eventual “final” constitution, passed by the democratically
elected Constitutional Assembly. Section Nine of the 1996 South African Constitution’s Bill of
Rights200 forbids public and private discrimination based on sexual orientation.201The 1996
Constitution’s inclusion of an explicit prohibition on discrimination based on sexual orientation

197
E Cameron, Sexual orientation and the Constitution: A test case for human rights, 110 SALJ 450-472 at
451(1993).
198
C Christiansen, Ending the apartheid from the closet: Sexual orientation in the South African constitutional
process,32 International Law and Politics 997-1058 at 1031(1997).
199
The Technical Committee of Theme Committee Four dealt with fundamental rights. The mandate and work of
this Committee was guided by Constitutional Principle II, which states: "Everyone shall enjoy all universally
accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched
and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter
alia the fundamental rights contained in Chapter Three of the Constitution."
200
S. AFR. CONST. (1996) Ch. 2, Sec. 9(3), 9(4); similar protections were included in the Interim Constitution, S.
AFR. INTERIM CONST. (Act 200 of 1993) Ch. 3, Sec 8(2). See infra-Part II.D. for a comparison of the textual
language
201
Supra note 197.

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was a notable victory. The new South African Constitution forbids discrimination based on “race,
gender, sexual orientation, pregnancy, marital status, ethnic or social origin, color, sexual
orientation, age, disability, religion, conscience, belief, culture, language, or birth.” The South
African Parliament adopted the constitution by an overwhelming majority, with the African
National Congress (ANC), the Pan African Congress, and the National Party. The ANC, which
controls over sixty percent of parliament seats, has consistently opposed discrimination based on
sexual orientation, in part due to the long engagement of gay and lesbian activists in the anti-
apartheid battle. The current South African posture towards its gay and lesbian citizens contrasts
starkly with the legal status of gays and same-sex sexual activity in other countries.

4.1.4 CONSTITUTIONAL COURT CASES AND VICTORIES FOR THE LGBTIQA+

COMMUNITY.

Despite the 1996 Constitution’s ban of unjustified discrimination based on sexual orientation,
legislation outlawing consensual intercourse between two males and other discriminatory laws
remained on the books. Negative social attitudes about LGBT individuals were widespread as well.
Lobby groups and LGBT rights activists made it abundantly evident that additional legal and social
changes were required to make the constitution relevant.

Edwin Cameron, a well-known homosexual rights activist and lawyer, collaborated with other
activists in this legal sphere to develop a litigation strategy for the NCGLE. It was built on a
‘gradualist approach’ with a list of movement objectives. It proposed that litigation starts with the
least controversial and most winnable objectives, such as decriminalizing same-sex sexuality and
achieving an equal age of consent. After that, the strategy would focus on specific partnership
rights, eventually recognizing same-sex marriage and adoption. The National Coalition for Gay
and Lesbian Equality and the South African Human Rights Commission challenged the
constitutionality of current legislation criminalizing sodomy in the case of the National Coalition
for Gay and Lesbian Equality v. Minister of Justice and Others. The court concentrated on the
equality clause and applied established standards for assessing unjustified discrimination. In its
landmark decision, the court analyzed the adverse social and psychological effects of criminalizing
sodomy on gay men and concluded that it impairs their dignity profoundly. The Sodomy Act’s

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provisions were judged to be unjust and ruled illegal. This was a significant victory for the
LGBTQIA+ community, as it established a precedent for future decisions.

4.1.5 EXTENDING THE RIGHTS ACCORDED TO SAME-SEX LIFE PARTNERS

The LGBT community has consistently made substantial courtroom victories to increase its
freedoms. After the Immigration Act recognized lesbian and gay relationships, several more
instances established rights for same-sex life partnerships. These included pension benefits
(Satchwell v. President of the Republic of South Africa, 2002), adoption rights (Du Toit v. Minister
of Welfare and Population Development, 2003), and the right of a lesbian couple to artificial
insemination (Satchwell v. Minister of Welfare and Population Development, 2003). (Satchwell
v. Minister of Welfare and Population Development, 2003). (J v. Director-General, Department of
Home Affairs, 2003). These lawsuits involved the unjustified discrimination of specific laws and
the violation of the partnership’s dignity. They resulted in the courts rewriting the word’s or
permanent same-sex life partnership’ to include same-sex couples in the scope of the rights at
issue.

Since 2000, about 40 lesbians have been murdered, and each week, approximately ten lesbians are
raped by men who believe they are ‘correcting’ the women’s sexual inclinations. Qualitative
research uncovered offenders’ beliefs that rape will ‘cure’ lesbians of their lesbianism and convert
them to heterosexuality. Additionally, gay males have frequently been abused and terrorized. In
the early 2010s, a team of serial killers murdered approximately eight LGBT males. Thus, despite
constitutional rights, the LGBT community is subjected to an onslaught of terrible violence. Since
the 2000s, the Forum for the Empowerment of Women (FEW) and others have spoken out against
this form of abuse. The Anti-Hate Crime Task Force was formed and charged with developing a
response to violence against LGBTI groups. However, because authorities do not record separate
statistics on killings motivated by homophobia, developing a sustainable program to address hate
crime is complex.

Beverley Palesa Ditsie, a member of Nkateko, stated: “Even after the new constitution was
approved in 1996, which guaranteed our rights, the violence and intimidation persisted unabated,

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particularly for those of us living in townships, rural areas, homophobic homes, and communities.
We marched to demonstrate our commitment to reclaiming our dignity and our proper place in
society.” Several active and visible LGBTQIA+ organizations continue to battle against hate
crimes and violence.

4.2 CANADA

4.2.1 DISCRIMINATION ON THE GROUND OF SEXUAL ORIENTATION: THE

HISTORICAL BACKGROUND

Legal discrimination against same-sex-oriented people prevailed in Canada until recently, and it
was a significant homophobic barrier to recognizing same-sex-oriented people’s human rights.
Homosexuality was declared illegal in the early colonial period, and the penalty for “the
abominable act of buggery” (also known as sodomy) was death. In 1861, the law was slightly
modified when the sentence became imprisonment for ten years to life. However, throughout the
next century, the laws governing “homosexuals acts” became increasingly strict. Beginning in
1890, accused gays were usually charged with the crime of “gross indecency.” In 1948 and 1961,
the penal law was amended to further prohibit homosexuality by creating the categories of
“criminal sexual psychopath” and “dangerous sexual offender.” In the late 1960s, two significant
events triggered the liberalization of Canadian laws and attitudes. Everett George Klippert, a
mechanic from the Northwest Territories jailed in 1965 on accusations of “gross obscenity,” was
the first of them. His sentence was prolonged indefinitely after he was declared a “serious sexual
offender” by prison psychiatrists, a decision that was questioned and criticized in the mainstream
media.

The decision by the British parliament to decriminalize certain gay offenses was the second.
Following the publishing in 1957 of a public inquiry known as the Wolfenden Report, which urged
decriminalization, debate on the topic had been rising in British and Canadian media for the
previous decade. Those suggestions were finally implemented in the summer of 1967, and with
the humiliating Klippert scandal still raging, some members of Canada’s parliament, including
Justice Minister Pierre Trudeau, began pressing for reform. Following Trudeau’s election to the

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prime minister’s office, his government passed Bill C-150 in May 1969, decriminalizing gay sex
for the first time in Canada’s history.

Amendments to the Criminal Code came into effect in August 1969, making private sexual actions
between two consenting adults permissible (over the age of twenty-one). Even though the word
“gay” did not exist in the amendment, same-sex-oriented people and others began to refer to it as
the “homosexual law” because it allowed Canada’s same-sex-oriented population to come out of
the closet. Following this modification of the Criminal Code, homosexual and lesbian groups
sprouted up throughout Canada, rapidly growing in membership.202

“The 1970s are hailed as the decade of [lesbian and] gay rights” in Canada.203 This decade saw the
rise of a growing number of political action groups that lobbied hard for “sexual orientation” to be
included among the forbidden grounds for discrimination mentioned in human rights laws across
the country. Except for the Quebec Charter of Human Rights, this effort was unsuccessful in the
1970s.204

4.2.2 GAY LIBERATION IN THE 1970s

During this period, gay liberation was essentially a predominantly white movement, but not
exclusively male. During the 1970s, the women’s movement was a powerful magnet for lesbian
activists. Despite mainstream feminism’s unwillingness to address lesbian issues, many women
decided to join the feminist movement rather than gay liberation. Gay liberation militants used the
term “gay” to refer to both males and women. Throughout the 1970s and succeeding decades, the
link between lesbian and gay male politics was a source of contention. By contrast, it is not until
the 1980s that race becomes an explicit factor in lesbian and gay politics.

202 202
MARION FOSTER & KENT MURRAY, A NOT So GAY WORLD: HOMOSEXUALITY IN CANADA
29(1972).
203
EVELYN KALLEN, LABEL ME HUMAN: MINORITY RIGHTS OF STIGMATIZED CANADIANS (1989)
at 168
204
Id. at 169.

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 In August 1971, Ottawa hosted the country’s first gay rights demonstration. The marchers, whom
groups organized from Ottawa, Toronto, and Waterloo, Ontario, as well as Vancouver and
Montreal, presented a brief to parliament seeking civil rights and held posters declaring the gay
liberation movement’s slogans.205 Its objectives were to bring lesbians and gays out of the closet,
to develop a gay community, to achieve societal acceptability for homosexuality, and to liberate
sexuality more broadly from the tight constraints of a patriarchal and heterosexist social structure
roles. However, in the near term, gay liberation was premised on defining and proclaiming gay
and lesbian identity and establishing an institutional and organizational foundation for its
consolidation.

However, in the near term, gay freedom was premised on defining and proclaiming gay and lesbian
identity and establishing an institutional and organizational foundation for its consolidation. Civil
rights demands were inspired by the strategic and ideological framework established by the US
civil rights and women’s movements. While achieving rights was significant in and of itself, it was
also a strategy for establishing a social movement, establishing a homosexual community, boosting
gay consciousness, and bringing gays out of the closet, in short, for the development of political
identity. Brian Waite, the article’s author, said that “Winning this demand will not eliminate our
persecution in and of itself, but many gay men and women will develop a greater sense of pride
and consciousness in the process of fighting for it.206 The publisher, Pink Triangle Press, also
launched the Canadian Lesbian and Gay Archives in 1973, which has grown to be a recognized
historically significant collection of LGBT content. The true objective of gay liberation was
societal reform, and if establishing a lesbian and gay community was critical to accomplishing this
aim, the first step in establishing a social movement was for people to come out “Exit.” Gay
liberation organizations in the 1970s pushed for legal equality through legislative reforms to
human rights codes on both the federal and provincial levels. During the 1970s, the three regional
organizations interested in asserting rights claims in the courts were GATE Vancouver, CGRO,
and the ADGQ. These organizations served as the LGBT liberation movement’s organizational,
strategic, and ideological backbone core. Despite its limited size, GATE Vancouver (1971-1980)

205
Brief footage of this demonstration can be seen in the film Jim Loves Jack: The James Egan Story (Toronto:
David Adkins Productions, n.d.)
206
Brian Waite, "Strategy for Gay Liberation," The Body Politic 3 (1972), 4.

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was the city’s primary gay liberation group. Its head, Maurice Flood, was a significant theorist of
gay liberation. Its publication, Gay Tide, served as a vital instrument for the organization and
analysis of gay liberation and served as the impetus for GATE’s Litigation. The Supreme Court of
Canada heard the Gay Tide issue for the first time. The ADGQ was a Montreal-based civil rights
organization that was Quebec’s leading gay liberation organization.

However, the ADGQ instance demonstrates that the exception to the rule—inclusion of sexual
orientation in human rights codes—was unavailable as a tool for organizing the Quebec
movement. The Coalition for Homosexual Rights in Ontario, founded in 1975, was one of
Canada’s few provincial-level gay rights organizations (GO). GATE Toronto and GO, both of
which represented urban areas, were outspoken supporters of homosexual freedom and the civil
rights approach. Together with others from around the country, these organizations created the
pan-Canadian National Gay Election Coalition (NGEC) in 1974, followed by the National Gay
Rights Coalition (NGRC) from 1975 to 1980. Despite this, the 1970s saw the birth and fall of a
pan-Canadian lesbian and homosexual rights coalition that aimed to put a wide variety of rights
concerns on the Canadian political agenda by mirroring the civil rights frame of member
organizations. Until the establishment of pan-Canadian AIDS organizations,3’ the National Gay
Election Coalition of 1974 and the National Gay Rights Coalition were the only national lesbian
and gay organizations (EGALE).

Additionally, the late 1970s saw two significant legislative reforms. Québec revised its Human
Rights Code in 1977 to prohibit discrimination against individuals based on their sexual
orientation. That same year, the Canadian Immigration Act was revised to remove an immigrant
prohibition on gay men.

4.2.3 THE 1980s

While LGBT rights progressed, homosexuals and lesbians continued to experience discrimination,
including police harassment. Tensions reached a zenith in 1981 in Toronto, resulting in what
became known as Canada’s Stonewall. On February 5, 1981, the Toronto Police Department
conducted raids on four bathhouses, resulting in the arrest of nearly 300 males. The following day,

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a crowd of 3,000 marched toward the 52 Division police precinct and Queen’s Park, shattering car
windows and starting fires along the way. Such raids persisted in Canada over the next two
decades, culminating in a 2002 attack on a Calgary bathhouse. In Toronto, where relations with
the police were especially tense, the raids culminated in a police search of the Pussy Palace, a
women-only event, in 2000. Charges were dropped, and the ensuing lawsuit resulted in the creation
of training programs for Toronto police officers on how to engage with members of the LGBT
community.

Additionally, the 1980s saw a number of significant judicial successes. In 1982, Canada returned
its constitution to the United States and enacted the Charter of Rights and Freedoms, laying the
foundation for numerous subsequent equality judgments. In 1985, Section 15 of the Charter
became effective, guaranteeing the “right to equal protection and benefit of the law without
discrimination, including, but not limited to, discrimination based on race, national or ethnic
origin, color, religion, sex, age, or mental or physical disability” — but not sexual orientation.
Svend Robinson, a British Columbia MP, came out as Canada’s first openly gay member of
parliament in the spring of 1988.

4.2.4 THE HIA/AIDS CRISIS.

In the 1980s, Canada also experienced the HIV/AIDS epidemic outbreak, which negatively
affected the LGBT community. Throughout the decade, gay men believed that the medical
establishment and the government were ignoring their health and increasingly took issues into their
own hands.

The movement became increasingly organized and politically proactive as the crisis worsened.
AIDS Vancouver launched Canada’s first AIDS service group in 1983, providing care to
individuals living with HIV or AIDS. In the same year, Gays in Health Care, the Hassle-Free
Clinic, and The Body Politic formed the Toronto AIDS Committee, subsequently renamed the
AIDS Committee of Toronto. Another watershed moment occurred in 1988 when AIDS Action
Now (AAN) was founded; a group used direct action to pressure governments into taking
significant action to confront the problem.

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The first AAN action was a protest against a drug study in Toronto for Pentamidine, a medicine
already licensed in the United States for AIDS patients. AAN delivered coffins to the Toronto
General Hospital, where the research was conducted, pleading for the medicine to be quickly
available. Protests were successful, and within two years, Brian Mulroney’s administration
developed a policy allowing access to experimental treatments and launching the country’s first
national AIDS strategy. AAN established its treatment registry, the Canadian AIDS Treatment
Information Exchange, which collaborates with health care organizations around the country,
including the Prisoners HIV/AIDS Support Action Network and the HIV/AIDS Legal Clinic of
Ontario.

The impact of HIV/AIDS continues to be seen; at the end of 2016, the Public Health Agency of
Canada projected that roughly 63,000 Canadians were living with the disease. It is
disproportionately prevalent not only among gay men but also among Indigenous people and
residents of HIV-endemic nations.

The epidemic’s stigmatizing effect on gay males has also continued and in several ways. In the
mid-1980s, the Red Cross, which managed Canada’s blood donor system at the time, introduced a
regulation prohibiting any guy who had sex with another man even once since 1977 from donating
blood. This restriction remained in place until 2013 when it was altered to allow males to donate
if they had not had sex with another man in the preceding five years. Canadian Blood Services,
which now administers the blood donor system, decreased the period of ineligibility from five to
one year in 2016. Héma-Québec, which oversees the province’s blood donor system, also lowered
the ineligibility term during that period.

4.2.5 THE 1990s AND 2000s

A cascade of legal victories for LGBT people followed from precedents set in the 1980s. As
homosexuals and lesbians became more visible, these changes reflected the community’s sustained
and growing acceptance within mainstream Canadian culture.
• Several of these victories occurred on the courtroom floor. Among them were

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 a 1992 federal court decision lifting the ban on gays and lesbians serving in the military,
• The Supreme Court’s 1994 judgment permitting gays and lesbians to apply for refugee
status based on their fear of persecution in their home countries, and
• A 1995 Ontario ruling was allowing same-sex couples to adopt.
Additionally, the Supreme Court declared in 1995 that Section 15 of the Charter of Rights and
Freedoms, which provides the “right to equal protection and benefit of the law without regard for
discrimination,” recognized sexual orientation as a forbidden ground of discrimination. This
decision came as a consequence of an appeal filed by Jim Egan and Jack Nesbit against a decision
by Health and Welfare Canada to deny Nesbit spousal benefits under the Old Age Security Act.
While Egan and Nesbit lost their appeal, the Supreme Court’s decision that the Charter protects
sexual orientation set the door for future legal challenges to discriminatory legislation. Sexual
orientation was included in the Canadian Human Rights Act the following year, including federally
controlled activities.

In 1999, the Supreme Court declared in M v. H that same-sex couples in common-law relationships
must be allowed the same rights as opposite-sex spouses. The federal government enacted Bill C-
23 in 2000 to bring federal statutes into compliance with the ruling.

In 2000, the Supreme Court decided in favor of Vancouver’s Little Sister’s bookstore, holding that
gay publications, even sexually explicit, are protected under the Charter’s freedom of speech
protections. The store had sued Canada Customs for multiple confiscations of LGBT materials.
However, the issue persists, with LGBT bookstores charging that Customs guards
disproportionately invoke the Supreme Court’s 1992 Butler decision to discriminate against
homosexual and lesbian publications. That judgment established the authority to seize media
involving scenes of sex combined with acts of violence and cruelty.

Additionally, these years saw the debut of several openly homosexual and lesbian politicians.
Glenn Murray became North America’s first out gay mayor in 1998 when he was elected mayor
of Winnipeg. Libby Davies of the New Democratic Party became the country’s first openly lesbian
member of parliament in 2001. Scott Brison was appointed the country’s first out homosexual
cabinet minister in 2004. Another milestone was eventually achieved when Kathleen Wynne

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became the province’s first openly gay or lesbian premier in 2013 after being chosen as the Ontario
Liberal Party’s new leader. In spring 2014, she became Canada’s first openly homosexual or
lesbian premier.
Much of the news for LGBT Canadians in the early 2000s focused on the question of same-sex
marriage. The Ontario Superior Court determined in 2002 that outlawing same-sex marriage
violated Charter rights. In 2003, a similar judgment was made in British Columbia. Michael
Leshner and Michael Stark became Canada’s first same-sex couple when the Ontario Court of
Appeal upheld the verdict in 2003.

By 2005, only Nunavut, the Northwest Territories, Alberta, and Prince Edward Island permitted
same-sex marriage. Bill C-38 became law on July 20 of that year, making Canada the fourth
country in the world to permit same-sex marriage. Canada raised the age of sexual consent from
14 to 16 in 2008. Consent for anal sex, on the other hand, remains at 18, prompting claims of
discrimination against LGBT adolescents.

4.2.6 THE 2010s AND BEYOND

In the 2010s, many of the LGBT community’s challenges centered on youth and trans persons,
with bullying protection and gender identity becoming essential causes.
Bullying in schools has been a major source of worry among Canadian homosexuals and lesbians.
While several provinces have implemented anti-bullying legislation, regulations passed in 2012
and 2013 in Ontario and Manitoba mandate all publicly funded institutions, including religious
schools, to recognize student-organized gay-straight alliances.
Trans people’s rights in Canada remain at the forefront of the fight for equality. Bill C-16,
introduced by the federal government in 2017, updated the Canadian Human Rights Act to add
gender identity and expression as banned grounds of discrimination. Additionally, it amended the
Criminal Code to include gender identity and expression. As a result, the legislation strengthens
protections against hate propaganda and hate crimes directed against transgender and gender-
diverse individuals. Additionally, all provinces and territories mention gender identification
expressly in their human rights codes.

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Transgender activists have also made it simpler for transgender individuals to change their gender
on official documents without gender reassignment surgery. In 2012, the Ontario Human Rights
Tribunal declared the surgical clause unconstitutional, and the British Columbia legislature and an
Alberta court followed suit in 2014. In 2015, the Manitoba government repealed the surgical
provision. By 2018, every other province and territory had adopted the same policy.
The conflict between LGBT rights and religious liberty has also been highlighted. Trinity Western
University (TWU), a private Christian university in British Columbia, wanted to commence
operations of a law school in 2016. Both the British Columbia government and the Federation of
Law Societies of Canada have approved the proposal. However, the Ontario, Nova Scotia, and
British Columbia bar associations have stated that they will not recognize graduates due to the
school’s communal covenant, which requires students to abstain from sexual intercourse “that
undermines the sacredness of marriage between a man and a woman.” While the courts in Nova
Scotia and British Columbia sided with TWU, the Ontario Court of Appeal ruled against the
institution, describing the mandatory covenant as “very discriminatory” toward the LGBTQ
population. TWU and the Law Society of British Columbia both appealed to the Supreme Court
of Canada in 2017. The Supreme Court unanimously declared in June 2018 that law societies had
the jurisdiction to withhold accreditation to TWU based on the requisite covenant. TWU
discontinued its requirement that all students joined the covenant in August 2018.
With the gradual advancement of rights for LGBT Canadians, many have shifted their attention to
the plight of gays and lesbians who experience more brutal persecution abroad. These instances
have become the focal point of a large number of today’s Pride festivities. This culminated in 2014
when Toronto hosted the fourth World Pride Event, which included a week-long symposium on
human rights.

4.3 USA

“Equality means more than passing laws. The struggle is won in the hearts and minds of the
community, where it counts.”
- Barbara Gitting
Lesbian, bisexual, gay, transgender, and queer (LGBTQ) issues have received increased attention
in society in the last decade. Changes in public sentiments regarding LGBTQ individuals and the

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right to marry and recent Supreme Court rulings that have struck down bans on gay marriage are
indicative of continuing increases in acceptance of the civil liberties of LGBTQ individuals.
According to Flores (2014), public acceptance of LGBTQ rights has doubled since the early 2000s.
Nearly 60% of Americans currently favor LGBTQ marriage, 63% support adoption rights, and
72% support job discrimination protection. Additionally, due to the Obergefell v. Hodges Supreme
Court decision, all 50 states in the United States have legalized gay marriage (2015). In June, fifty
years ago, members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community
responded violently to a police raid at New York City’s Stonewall Inn, dubbed the Stonewall Riots.
Considered the first big demonstration for homosexual equality, the Riots spurred following June
gay pride parades. President Bill Clinton proclaimed June 1999 as “Gay and Lesbian Pride
Month.” President Barack Obama renamed the month “LGBT Pride Month” in 2009.

4.3.1 THE BEGINNING OF THE GAY RIGHTS MOVEMENT

The gay rights movement, often known as homosexual rights or gay liberation, has made
tremendous strides during the last century, particularly in the last two decades. Henry Gerber, a
German immigrant, formed the Society for Human Rights in Chicago in 1924, the country’s first
known gay rights organization. Gerber’s modest organization published a few issues of the
“Friendship and Freedom” newsletter, the country’s first gay-interest publication. Despite the
creation of such groups, homosexual political engagement was typically hidden. The organization
disbanded in 1925 due to police raids—but 90 years later, the United States government classified
Gerber’s Chicago home as a National Historic Landmark. The homosexual rights movement
stalled for the next few decades. However, LGBT people in various parts of the world were briefly
in the spotlight. WWII and its aftermath began to alter that dynamic. The conflict drew a large
number of young people to cities and elevated the LGBT community’s visibility. During World
War II, the Nazis imprisoned homosexual men in concentration camps, marking them with the
infamous pink triangle insignia used to identify sexual offenders. However, there was an increased
political activity, with a strong emphasis on decriminalizing sodomy.

4.3.2 THE GAY RIGHTS MOVEMENT SINCE THE MID-20th CENTURY

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In the 1960s, the LGBT rights movement made some early strides. Illinois was the first state to
repeal anti-sodomy laws in 1961, essentially decriminalizing homosexuality. Dr. John Oliven
created the term “transgender” in 1965 in his book Sexual Hygiene and Pathology to refer to
someone who was born into the body of the incorrect sex. Despite this development, LGBT
individuals were often subjected to harassment and persecution in public spaces like pubs and
restaurants. In New York City, gay men and women could not be provided drink in public due to
liquor laws that deemed homosexual gatherings “disorderly.”
Gay political organizations proliferated throughout the 1970s and 1980s, primarily in the United
States and Europe, eventually extending to other world regions. Their relative size, strength, and
success and their tolerance by authorities varied substantially. In the United States, organizations
such as the Human Rights Campaign, the National Gay and Lesbian Task Force, and ACT UP
(AIDS Coalition to Unleash power) began agitating for legal and social reforms; in the United
Kingdom, Stonewall and Outrage! began agitating for similar reforms; and dozens and dozens of
similar organizations began agitating in Europe and elsewhere.

4.3.3 GAY POLITICAL VICTORIES

In the 1970s, the growing visibility and involvement of LGBT individuals aided the movement on
several fronts. For example, the New York Supreme Court ruled in 1977 that transgender woman
Renée Richards could compete in the United States Open tennis tournament. The Supreme Court’s
judgment in law was the first big step toward constitutionalizing LGBT rights.207 In it, the court
invalidated a Texas statute that criminalized certain forms of private consensual sexual contact
between individuals of the same sex.208 The court’s tone was forceful and rather eloquent at times.
“When sexuality is manifested overtly in intimate activity with another person, the action might
serve as a component of a more durable personal tie. The constitutional guarantee of liberty
protects LGBT individuals’ right to make this choice.”209 In Goodridge v. Department of Public
Health,210 the Massachusetts Supreme Judicial Court held that legislation denying same-sex
couples the benefits and obligations of civil marriage violated the state constitution’s principles of

207
Lawrence v. Texas, 539 U.S. 558 (2003).
208
Id. at 578.
209
Id. at 567.
210
Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass.2003)

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liberty and equality.211 The entire concept of an amendment gained traction following Lawrence
and Goodridge. After the Lawrence decision, the White House began investigating the prospect of
an amendment.212The president did not advocate an amendment until after Goodridge when he
stated that the Massachusetts decision was one of the grounds for his endorsement. 213Since the
Goodridge ruling, the amendment has been debated twice on the floor of both chambers of
Congress.

While the Federal Marriage Amendment’s definition of marriage is deeply founded in national
culture, the notion of constitutionalizing it is wholly alien to that heritage. The amendment would
trample on values cherished by this nation since its inception. Along with transferring authority
from legislators to courts, the amendment would impose present-day ideals on future generations.

4.3.4 OUTBREAK OF AIDS

The onset of AIDS in the United States dominated the 1980s and early 1990s campaign for LGBT
rights. In 1981, the Centers for Disease Control and Prevention released a paper detailing the
infection of five previously healthy homosexual men with an uncommon form of pneumonia. In
1987, advocates for gay rights conducted the second National March on Washington for Lesbian
and Gay Rights. This was the first time that ACT UP (AIDS Coalition To Unleash Power), an
advocacy group dedicated to improving the lives of AIDS patients, garnered national attention,
according to the organization.
Bill Clinton campaigned for president in 1992 on a promise to end the military’s prohibition on
homosexuality. However, after failing to secure sufficient support for such an open policy,
President Clinton signed the “Don’t Ask, Don’t Tell” (DADT) policy into law in 1993, allowing
gay men and women to serve in the military as long as they kept their sexual orientation hidden.
President Obama fulfilled a campaign pledge to repeal DADT in 2011; at the time, over 12,000

211
[Link] 968.
212
Mike Allen & Alan Cooperman, Bush Plans to Back Marriage Amendment, WASH. POST (Last accessed on
Aug 15, 2021) [Link]
213
Elisabeth Bumiller, Bush Backs Ban in Constitution on Gay Marriage, N.Y. TIMES (Last accessed on Aug 25,
2021) [Link]
[Link].

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officers had been fired from the military for refusing to conceal their sexual orientation. On
September 20, 2011, Don’t Ask, Don’t Tell was formally repealed.

4.3.5 GAY MARRIAGE AND BEYOND

In 1992, the District of Columbia passed laws allowing homosexual and lesbian couples to register
as domestic partners, thereby granting them some of the same privileges as married couples (Three
years before, the city of San Francisco approved a similar ordinance, and California later expanded
those rights to the entire state in 1999).

In 1993, Hawaii’s highest court declared that prohibiting gay marriage would violate the state’s
constitution. However, state voters disagreed and approved legislation prohibiting same-sex
marriage in 1998.

Federal politicians also disagreed, and in 1996, Clinton signed the Defense of Marriage Act
(DOMA) into law. The law prohibited the federal government from awarding same-sex couples
federal marriage benefits and permitted states to refuse to recognize same-sex marriage certificates
from other states.

While marriage rights have regressed, homosexual rights campaigners have achieved other
successes. Courts were given the authority to impose harsher sentences on people convicted of
crimes motivated by the victim’s sexual orientation when a new anti-hate crime act was passed in
1994.

More than half of LGBTQ Americans report concealing a personal connection and altering other
elements of their personal or professional lives to avoid discrimination.
Additionally, President Barack Obama signed a new hate crime legislation into law in 2009. The
new law, usually known as the Matthew Shepard Act, increased the 1994 hate crime statute’s
authority.

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In vengeance for the 1998 murder of Matthew Shepard, who was pistol-whipped, tortured, chained
to a fence, and then left to die, the perpetrators committed this act. The assassination was believed
to have been motivated by Shepard’s perceived homosexuality. President Obama fulfilled a
campaign pledge to repeal DADT in 2011; at the time, over 12,000 officers had been fired from
the military for refusing to conceal their sexual orientation.
A few years later, the Supreme Court struck down Section 3 of DOMA, which permitted the
government to deny married same-sex couples federal benefits. DOMA was quickly rendered
ineffective when the Supreme Court ruled in 2015 that states cannot prohibit same-sex marriage,
effectively legalizing gay marriage throughout the country.

4.3.6 TRANSGENDER RIGHTS

The Boy Scouts of America dropped its ban on openly gay leaders and workers following that
landmark 2015 verdict. Moreover, in 2017, it lifted a century-old ban on transgender males,
bringing it into line with the Girl Scouts of the United States of America, which has long been
accepting LGBT leaders and children (the organization had accepted its first transgender Girl
Scout in 2011).

In 2016, the United States military dropped its prohibition on openly transgender service members.
A month after Eric Fanning was appointed Secretary of the Army, making him the first openly gay
secretary of a United States military branch. In March 2018, President Donald Trump issued a new
transgender policy for the military, effectively excluding most transgender people from serving in
the military once again. President Biden signed an executive order overturning this rule during his
sixth day in office, which became effective on January 25, 2021.

While LGBT Americans now have same-sex marriage rights and a slew of other rights that
appeared unthinkable a century ago, supporters’ work is far from complete. LGBT Americans
continue to face a lack of universal anti-discrimination rules in the workplace. Gay rights advocates
must also contend with an expanding number of state laws allowing companies to refuse service
to LGBT individuals based on religious convictions, as well as “bathroom laws” prohibiting
transgender individuals from using public restrooms that do not correspond to their biological sex.

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 4.3.7 THE CURRENT STATE OF THE LGBTIQA+ COMMUNITY IN THE USA

For the bulk of its four years in power, the Trump administration launched an all-out assault on
LGBTQ people’s rights, supported discriminatory legislation, and erected roadblocks to essential
government services. The administration’s damages worsened existing inequities and disparities
between LGBTQ and non-LGBTQ persons in areas such as health, employment, the judicial
system, encounters with law enforcement, education, housing, and immigration. The real-world
effects of these policies have harmed the daily lives of LGBTQ people, particularly LGBTQ
persons of color who live at the intersection of several identities and face multiple forms of
systematic and institutional discrimination. In collaboration with the impartial and independent
research organization NORC at the University of Chicago, the Center for American Progress
designed one of the most comprehensive surveys to date on the lives, attitudes, and experiences of
LGBTQ Americans. The survey interviewed 1,528 self-identified LGBTQ persons aged 18 or
older and was conducted June 9–30, 2020, using NORC’s Ameri Speak online panel.

Major findings from the survey include:

· More than one in three LGBTQ Americans, including more than three in five transgender
Americans, have suffered prejudice in the last year.
· Discrimination has a detrimental effect on the mental and economic well-being of many LGBTQ
Americans, with one in two reporting moderate or severe psychological effects.
· To avoid discrimination, more than half of LGBTQ Americans report concealing a personal
connection and altering other elements of their personal or professional lives.
The Biden-Harris campaign pledged to fight for LGBTQ rights, stating, “As President, Biden will
stand with the LGBTQ+ community to ensure America finally lives up to the promise upon which
it was founded: equality for all.” He will demonstrate moral leadership by advocating for equal
rights for all LGBTQ+ individuals, ensuring that our laws and institutions safeguard and enforce
their rights, and advancing LGBTQ+ equality globally.214

214
Joe Biden, “Out for Biden,” [Link] (last accessed on July 28, 2021 11.00 PM).

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4.4 INDIA

In India, Section 377 exists since the Britain Buggery Act, 1533 enacted by King Henry VIII, when
the country was colonized, prohibited carnal intercourse against nature’s order and termed it an
unnatural offense. This led to the marginalization of the LGBTQA community since the Victorian
era. While the law of a similar nature was abolished in many western countries, post-colonial
countries like Africa and Asia continued to retain it. The community has suffered ridicule, denial
of basic rights, a sense of gender identity, and abuse at the state authorities and society. Their
existence was ad infinitum questioned on the grounds of social morality, public indecency, and
obscenity. The community struggled to pave its path and co-exist in society at the cost of
humiliation and disgrace. In 2009, the community in Delhi had a glimpse of hope when the Delhi
High Court limited the scope of the law under Section 377 IPC to consensual sexual intercourse
between two consenting homosexual adults. The rationale was to secure health care for the
community which was otherwise prone to HIV/AIDS. However, the decision gave no legitimate
recognition to the third gender, and the hetero-normative societies understood only the male-
female dichotomy. The atrocities faced by the community were untold until 2010 when Professor
Siras was suspended from the Aligarh University after having clandestinely photographed with
another man in a compromising position within the four walls of his house without any concern as
to his privacy. The mere presence of law criminalizing same-sex relations, irrespective of whether
being consensual or non-consensual, gave room for exploitation of the LGBTQA community.215
A consolidated compendium shows blackmail, extortion, sexual assault, including rape by the
investigating agency, sexual hate crimes, and sexual assault.216 Abuse of power by the police
officials is a matter of routine owing to the age-old intolerance against the sexual minorities in the
societal structure.217 Thereafter, in an appeal against the Naz Foundation decision, the Supreme
Court in 2013218reinstituted the provision of Section 377 IPC as it was prior to the 2009 decision
holding it to be constitutional. The court further reiterated that the decisions of the foreign courts
are only persuasive and not binding on the Indian Courts, and a law should not de decriminalized
and be made unconstitutional only because courts in other jurisdictions are following this trend.

215
Geetanjali, supra note 37 at 5, 24
216
Id. at 24-25.
217
Id. at 26-28.
218
Supra note 7, at 1.

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The court went on to say that Indian society is not ready for this revolutionary reform, especially
when the LGBTQA community constitutes only a minuscule minority. The judgment led to
LGBTQA processions and pride parades criticizing the decision as regressive and thus, caused hue
and cry throughout the nation. After this uproar and trans activism throughout the country, the
Supreme Court in 2014, in the case of NALSA v. Union of India, legally identified the third gender
and the transition from one gender to another. In furtherance, the court also recognized the
community’s fundamental rights under the Indian Constitution and human rights. It declared that
all the civil and criminal statutes that do not recognize the third gender would be discriminatory in
light of Article 15 of the Constitution. In accordance with Article 15 of the Constitution, any
discrimination on the ground of “sex” is prohibited at the instance of the state. The court interpreted
“sex” to include the sexual orientation and gender identity of an individual. The decision directed
affirmative action on the part of the Central and the State Governments to ensure non-infringement
of fundamental rights, public health, and social welfare of the community in light of the
Yogyakarta principles.219 This gave a sense of relief to the LGBTQA community as their human
rights were upheld even though they are insignificant in number;220 however, the pragmatic reality
remained unchanged despite the recognition. The Ministry of Social Justice, in a conversation with
the trans activism, constituted an expert committee to make recommendations in furtherance of
the judicial mandate in the NALSA decision, and based on this report, the Rights of Transgender
Bill, 2014was introduced and adopted by the Rajya Sabha and the same was sent to the Lok Sabha
for consideration. The Bill had an inclusive definition of transgender.221 Meanwhile, in 2016, the
speaker allowed the introduction of a fresh bill for the transgender community, as a private
member’s bill, called The Transgender Persons (Protection of Rights) Bill, 2016. The latter bill
failed to secure the mandates so declared by the NALSA decision. The failure of bill is threefold,
firstly, then it does not appreciate the diversity within the transgender community, that is, Lesbians,
Gay, Bisexual, Transgender, Queer, Asexual persons, jogappas, hijras, aravanis, kinnars, and other
socio-cultural gender identities instead it defined transgender person as someone who is not wholly
a male or a female or neither a male nor a female or a combination of male and female and thereby

219
Yogyakarta, supra note 33 at 16.
220
NALSA, supra note 12, at 9, Para 123.
221
All persons whose own sense of gender does not match with the gender assigned to them at birth. They will include
trans-men & trans-women (whether they have undergone sex reassignment surgery or hormonal treatment or laser
therapy, etc.), gender queers and a number of socio-cultural identities, such as kinnars, hijras, aravanis, jogtas, etc.

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retaining the male-female dichotomy and; Secondly the bill recognizes sexual offences and
violence against the community as crimes punishable with petty punishment of 6 months to 2 years
and does not include them within the ambit of sexual offences under the IPC, and; lastly, the bill
remained silent on the aspect of affirmative action on part of the central and state government in
terms of reservations for employment and education222to ensure adequate representation of the
otherwise marginalized community and further the mandate laid down by the NALSA decision.
After the appointment of the standing committee, around 55 recommendations were proposed.
However, all of them were blatantly rejected, and the bill was kept intact in its original form. 223 A
modified version of this 2016 Act, called the Transgender Persons (Protection of Rights) Bill, the
Lok Sabha passed 2018 falls short of embracing the struggle of the LGBTQ community. In
essence, the opinion of the community itself was not taken into account. In a nutshell, it does not
recognize the third gender, their self-identity, and self-determination in law; the bill does not make
provisions for the reservation of the LGBTQA community as socially and educationally backward
class for education and employment to ensure adequate representation of the marginalized
community nor do the provisions lay down the with respect to health care, legal awareness or
welfare schemes amongst the community44 and thereby, maintains the status quo of the
community in terms of social exclusion and vulnerability as against the NALSA mandate of
inclusion.

222
Aniruddha, supra–Chapter I at 4, 235
223
Rachana Mudraboyina and L.C. Kranti, A Critiques of the Transgender Persons (Protection of Rights) Bill, 2018,
Human Rights Law Network (Last accessed on August 5, 2021, 11:31 AM),
[Link]

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 CHAPTER -V
CONCLUSION AND SUGGESTIONS

“History owes an apology to the members of this community and their families, for the delay in
providing redressal for the ignominy ad ostracism that they have suffered through the centuries”224

Constitutions are not merely charters of governance; they are also ethical documents that lay down
a collective commitment that community members make to set principles and to each other about
the kind of life they would wish to pursue. Thus, the political form that we choose to govern our
societies is not separable from how we govern ourselves as individuals and in our relations to each
other. Who or how I choose to love is, then, both an individual choice and a question of political
form and expression? Following Jawaharlal Nehru’s Quote included in the court’s judgment of
words being ‘magical things,’ one way of reading the constitution is to see it as a city of words
built on the foundation promise made in its preamble towards securing for its citizens Justice,
Liberty, Equality, and Fraternity. It is important to recall that these are virtues that justify why we
give ourselves a constitution.

The law manifesting Victorian ideologies was retained in Section 377 IPC, making the
community’s existence in public thorny. The community has remained in the closet for decades,
and still, they and their families have faced sexual assault, violation, and exploitation, which
cannot be undone. The legislature and the executive have failed in their obligation to protect this
community from the institutional ideologies at the instance of the police agencies and from the
societal perception of their immoral existence. For decades, the LGBTQA community has been a
marginalized and vulnerable section of society, compared to persons who identify as heterosexual.
This is linked to homophobia (the fear or hatred of homosexuality) (the fear or hatred of
homosexuality). While many nations have made considerable gains in advocating for human
rights, LGBT rights continue to fight for universal recognition. Due to the omission of sexual
orientation from the 1948 Universal Declaration of Human Rights, some people view LGBT rights

224
Supra note 30, at 791.

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as problematic. The statement does mention, however, that “everyone is entitled to all of the rights
and freedoms enumerated in this declaration without regard for any discrimination.”

People are increasingly expressing their sexual orientation openly and mobilizing to demand their
rights. As a result of the work of these organizations and their allies, global recognition of LGBT
rights is increasing, and governments in certain countries are beginning to pass legislation
supporting LGBT rights and anti-discrimination laws. International human rights organizations
with clout, such as Amnesty International and Human Rights Watch, have maintained successful
campaigns. In the coming years, the most critical issues for LGBT rights on a global scale will be
eradicating persecution based on sexual orientation; ensuring legal protection against hate crimes
and hate propaganda; ensuring equal rights and privileges (marriage, common-law partnerships,
medical decision-making, wills and estates, parenting and adoption); and working to combat
homophobia and heterosexism.

Through its decisions in NALSA and Navtej Singh Johar, the Supreme Court has attempted
progressive realization of the fundamental and human rights of the community. The court has
legitimized their existence as the third gender in the society and further decriminalized consensual
sexual conduct between adults in private. Legal recognition and acceptance of their sexual conduct
are of no avail until and unless the laws and the policy framework are instituted to encourage the
community to come out of the closet with an assurance to protect the sexual citizenship, sexual
rights, and dignity of the individual members of the community. Presently, the criminal law
discriminates between the victims of sexual offenses based on their gender; In contrast, the sexual
offenses committed against women are made punishable; those against the LGBTQA community
are not even recognized in the statute book.

Additionally, failure on the part of the court to associate non-consensual carnal intercourse,
between two adults, against the order of nature as sexual assault has abridged the community’s
aspirations as such acts continue to fall within the umbrella of Section 377 of IPC. Such
interpretation of the law is erroneous and manifestly discriminatory on the anvil of Article 15 of
the Constitution and antithetical to the principle of equality enshrined under Article 14 of the
Constitution. The non-categorization of sexual offenses that can be committed against the

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LGBTQA community as against the specific categorization of offenses that can be committed
against women is problematic. The victims of similar sexual offenses cannot be given
discriminatory treatment at the instance of the state solely on the premise of gender identity and
sexual orientation. A sexual assault against the LGBTQA community should be punished likewise
and with the same impact, seriousness, and range of quantum of punishment as in the case of
women without diluting it under the ambit of unnatural offense.

It is therefore imperative to cause the amendment to the existing criminal law provided for under
IPC and other laws like the Sexual Harassment of Women at Workplace and the Domestic
Violence Act, which fall within the criminal realm to recognize that sexual offenses can be
committed against the sexual minorities and are punishable with the same seriousness regardless
of the gender of the victim. In accordance with Wolfenden Committee Report and the criminal
jurisprudence asserted by it, the accused is punished for the sexual offense committed by him, and
the punishment is not premised on the gender of the victim. As far as the point of vulnerability is
concerned, the LGBTQA community, just as women, are vulnerable to sexual violence,
harassment, and exploitation, as established in the chapter. The community needs ample protection
from the state to further their substantive rights as recognized by the judiciary, including the right
to choose a sexual partner and have consensual sexual activities in private. Despite the transgender
movement’s spectacular gains over the previous decade, which has resulted in more public
awareness and substantial legislative triumphs, trans persons continue to confront open prejudice,
a high rate of violence, and poor health outcomes. Trans individuals of color frequently experience
much worse health and economic results as they negotiate several oppressive systems.

In most EU Member States, same-sex couples lack the same protections and rights as opposite-sex
couples. As a result, individuals face discrimination and disadvantage when accessing social
security programs such as health care and pensions. The majority of LGBT people continue to
conceal their sexual orientation or face harassment in the workplace out of fear of losing their jobs.
Young LGBT persons are particularly susceptible because they face estrangement from family and
friendship networks, harassment at school, and invisibility, resulting in academic
underachievement, school drop-out, mental illness, and homelessness in certain situations. LGBT
persons are denied equitable access to vital social commodities such as employment, health care,

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education, and housing. However, it also marginalizes them in society, putting them in vulnerable
groups at risk of social exclusion. I am going to highlight some of the significant issues confronting
LGBT people worldwide:

1. Marginalization and Social Exclusion: At the individual, interpersonal, and societal

levels, marginalization is at the heart of exclusion from fulfilling whole social lives.
Marginalized people have a limited amount of control over their lives and available
resources; they may become stigmatized and are frequently the target of opposing public
opinions. The stigma associated with sexual orientation and gender identity or expression
that deviates from the anticipated heterosexual, non-transgender norm keeps many LGBT
persons on the periphery of society. This marginalization isolates LGBT persons from
several support structures, frequently including their own families, resulting in limited
access to resources that many others take for granted, such as medical care, justice, legal
services, and education. Additionally, due to a lack of other resources, many LGBT
youngsters are forced to engage in criminalized activities such as sex work to live, pushing
them farther into the outskirts of society and exposing them to a greatly increased risk of
HIV.
2. Legal Injustice: LGBT groups have a critical stake in issues of legal injustice. Certain
segments of the LGBT community suffer disproportionately from violence and
discrimination, sometimes at the hands of law enforcement authorities. There have been
numerous reported cases of police brutality directed at LGBT individuals in the United
States in recent years. Numerous police departments continue to face allegations of
insensitivity, including failing to respond adequately to violence directed at LGBT persons.
For example, LGBT people of color, teenagers, and sex workers are disproportionately
vulnerable to police misbehavior and abuse; transgender people are more likely to be
targeted by police and handled inappropriately or abusively while in police custody.
Individuals who identify as LGBT are not legally protected from abusive and
discriminatory behavior. Numerous oppressive legal regulations and statutes deny LGBT-
identified individuals the same fundamental human rights and privileges as non-LGBT
individuals.

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3. Victims of hate Crimes and Violence: Lesbian, Gay, Bisexual, and Transgender
individuals, as well as those assumed to be LGBT, are often targets of hate crimes and
violence. Throughout their lives, LGBT persons face stigma and prejudice and are
frequently the subject of sexual and physical abuse, harassment, and hate crimes.
4. Challenges facing LGBT elders: As they age, lesbian, gay, bisexual, and transgender
(LGBT) people encounter a number of unique concerns. They frequently lack proper health
care, cheap housing, and other necessary social services as a result of institutionalized
heterosexism. Numerous issues confronting LGBT elders also derive from the fact that
they frequently lack the same family support systems as heterosexual people. There is a
dearth of information about LGBT elders as a result of government and academic
researchers’ widespread inability to include questions about sexual orientation and gender
identity in their studies of the elderly. Legal and legal frameworks historically
discriminated against LGBT persons have social and economic ramifications, denying
LGBT elders access to financial resources and community support networks.
5. Poor Economic Condition and Discrimination in the Workplace: Apart from
homophobia, lesbian, gay, bisexual, and transgender persons face daily discrimination and
poverty. Discrimination against LGBT individuals in the workplace is a significant factor
in the socioeconomic status discrepancies LGBT people face. Gay and transgender people
face socioeconomic inequality in large part as a result of widespread occupational
discrimination. Discrimination immediately results in job insecurity and high turnover,
increasing homosexual and transgender people’s unemployment and poverty rates, as well
as the income difference between LGBT and straight people. According to economist Lee
Badgett’s 1998 research, Income Inflation: The Myth of Affluence Among Gay, Lesbian,
and Bisexual Americans, LGBT persons do not earn more than heterosexual people.
Badgett emphasizes the economic diversity of LGBT populations, noting that LGBT
persons frequently earn less than their heterosexual colleagues.
6. Problems of Terminology: Problems in language occur when terminology is unclear or
when terminology has been associated with negative stereotypes. When the language is too
vague, problems occur concerning lesbians, gay men, and bisexual persons, or the concepts
are poorly defined. Language may be ambiguous in reference, so the reader is uncertain
about its meaning or inclusion and exclusion criteria; The term homosexuality has

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 historically been associated with deviance, mental illness, and criminal behavior, and
discriminating language may perpetuate these negative preconceptions. Sexual orientation
is favored over sexual preference in psychological writing to refer to lesbian, gay, bisexual,
and heterosexual people’s sexual and affectional relationships.
7. Barriers to Care: People who are lesbian, gay, bisexual, and transgender (LGBT) face
particular obstacles, barriers, and challenges that frequently make it challenging to find and
receive competent and affirming healthcare. Heterosexist assumptions can adversely affect
the quality of treatment, and fear of a negative experience keeps many LGBTs from seeking
help. Organizations and individual therapists are not always LGBT-friendly, and some
therapists may not even recognize their heterosexism. The death of activist Ananya Kumari
Alex, 28, the first transgender candidate in the state to contest the assembly elections, has
snowballed into a controversy after her friends and family members alleged negligence by
Renai Medicity, where she underwent sex reassignment surgery. “There was apparent
negligence by the hospital and the doctor who performed the surgery. Institutional murder
of Ananya Kumari; According to the Transgender Survey Kerala (2014), 54% of
transgender people in Kerala earn less than 5000 rupees per month and just 11.6 percent
work in regular employment. In Kerala, about 90% of transgender students drop out of
school as a result of taunting from classmates, instructors, neighbors, and family. The
primary conclusion derived from these facts is that society actively excludes transgender
people from reaching freedom. They are pushed into poverty and have a worse level of
living as a result of the stigma and social rejection they suffer.
The hour needs to extend the principle of equality, make the existing criminal law transgender-
inclusive, and recognize the legal space for the community. As per the statistical report issued by
Equaldex on homosexual activity, India is one of the 150 countries wherein homosexual activities
have been legalized. The decriminalization of sexual conduct between all consenting adults was
an awaited step towards recognizing the substantive rights of the LGBTQA community.

SUGGESTIONS

After the research, the researcher noticed that though our country guarantees human rights to its
citizens, a minority of the Indian population that term themselves to be LBGT’s have been

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neglected. Thus, in light of the above-mentioned discussion, the following proposals can be made
for recognizing the role that individuals and institutions can play.
1. Support the most marginalized LGBT community—people of color, low-income, young,
elderly, and transgender.
2. Collaborate on cross-issue work that addresses LGBT issues affecting low-income and
people of color.
3. Engage foundation personnel in public education about issues impacting LGBT low-
income individuals and LGBT persons of color, particularly those involving transgender
individuals.
4. Schools and teacher education programs are legally obligated to address LGBT problems
and concerns. Schools can employ the following policies and procedures to help promote
health and safety among LGBT youth:
I. Encourage pupils to treat one another with respect and prevent bullying, harassment, and
violence towards any student.
II. Establish safe spaces, such as counselors’ offices, designated classrooms, or student
groups, where LGBTQ students can receive assistance from administrators, teachers, and
other school personnel.
III. Encourage the formation of student-led and student-organized school organizations
dedicated to fostering a safe, inviting, and accepting school environment (e.g., gay-straight
alliances, which are school clubs open to youth of all sexual orientations).
IV. Ascertain that health curricula and educational materials include information pertinent to
LGBTQ adolescents regarding HIV, other STDs, and pregnancy prevention, including
ensuring that curriculum and educational materials employ inclusive language and
terminology.
V. Encourage school districts and faculty to establish and publish training on providing safe
and supportive school settings for all students, regardless of sexual orientation or gender
identity, and encourage faculty to attend these sessions.
VI. Facilitate access to community-based clinicians familiar with delivering health care to
LGBTQ kids, including HIV/STD testing and counseling. Facilitate access to community-
based providers who have expertise working with LGBTQ youth in need of social and
psychiatric care.

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5.) Consider LGBT issues as a central theme in all economic and racial justice work.
6.) Advocate on behalf of LGBT racial and economic justice efforts with charitable counterparts.
7.) The media must play a responsible role in changing society’s attitudes by reporting on LGBT
issues and creating a culture of tolerance and freedom for minorities.
8.) Legal funds need to be created to take on Public Interest Litigation on LGBT issues.
9.) Health practitioners must get training to raise their awareness of LGBT identification as a
possible risk factor for self-harm, suicidal behavior, and depression. Respective authorities should
guarantee that LGBT people have access to and use health, mental health, and social care services.
10.) National and state governments should establish programs to assist employers in creating
more welcoming and inclusive workplaces and workplace cultures for LGBT individuals.
11.) To combat domestic and public violence, the domestic violence statute must be amended to
include non-spousal and parental abuse.
12.) Police reforms must be introduced & implemented. Police at all levels should undergo
sensitization workshops to break down their social prejudices and train them to accord sexual
minorities the same courteous & humane treatment they give towards the general public. Also,
transparency should be adopted in dealing with sexual minorities.
13) Avoid using stigmatizing or pathologizing terminology when referring to homosexual men,
lesbians, and bisexual individuals (e.g., “sexual deviant,” “sexual inversion”).
14.) Local authorities, policymakers, schools, and families need more education on accepting
gender‐variant children, treating people of different sexuality and gender identity equality, and
applying for policies and programs in a ―friendly manner, rather than being hostile.
15.) The LGBT people must also educate themselves more. During visits to NGOs, many leave
schools in between, are not educated enough, or lack seriousness towards their studies. Many of
them are engaged in the typical barber work, fashion designing, & other such vocational jobs. Few
of them pick up prostitution as an easy way to make money. All this leads to failure to influence
the general public’s mindset and ultimately leads to hatred, disrespect, and non-acceptance on the
part of society.
16.) On the whole, they have to boost up their self-esteem, earn respect so that their issues can be
seriously considered & supported by society at large. They need to bring political awareness &
send representatives to parliament; only then can a favorable legislature be expected. Because the

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crux remains that until & unless they are not supported by society, neither legislature nor judiciary
will stand beside them.

Therefore, to conclude, one can say that progressive steps have been taken towards the
acknowledgment of the rights of the LGBTQA community; however, to ensure penetration of this
legal change in the society, questions of civil and criminal realm relating to the substantive rights
have to answer at the instance of the legislature at the earliest. Mere decriminalization of
consensual sexual conduct between consenting adults does not do justice to the LGBTQA
community; instead, it opens up avenues to be addressed by the legislature to ensure that the state
protects this marginalized community, its sexual rights, gender identity, and orientation. The state
has to protect individuals, regardless of their gender identity and sexual orientation, from sexual
offenses, exploitation, and violence by enacting separate legislation or amending the existing ones
and simultaneously furthering the mandate of the international covenants, which India is a
signatory. The state is also obligated to ensure that the community is not harassed, at the instance
of the police agency, while exercising their right to consensual sexual conduct in private. To
cherish the liberty so declared in favor of the sexual minorities, it is imperative to extend legal
protection to the community against sexual offenses and incidentally give them the social
acceptance they were deprived of centuries.
“So long as you do not achieve social liberty, whatever freedom is provided by the law is of no
avail to you.”

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 BIBILIOGRAPHY

➢ STATUTES AND LEGISLATIONS

1. The Buggery Act, 1533
2. The Canadian Human Rights Act, 1985
3. The Constitution Of India, 1950
4. The Criminal Law (Amendment) Act, 2013
5. The Criminal Law (Amendment) Act, 2018
6. The Gender Motivated Violence, Act, 2000
7. The Indian Penal Code, 1860
8. The International Covenant On Civil And Political Liberty, 1967
9. The Protection Of Women From Domestic Violence Act, 2005
10. The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And
Redressal) Act, 2013
11. The Sexual Offences Act, 1967
12. The Protection Of Children From Sexual Offences Act, 2012
13. The United Nations Convention Against Torture And Other Cruel Inhuman And
Degrading Treatment Or Punishment, 2008
14. United Nations Human Rights Council, Discriminatory Laws and Practices and Acts
of Violence against Individuals Based On Their Sexual Orientation and Gender
Identity, HRC/19/41/2011.
15. The Universal Declaration Of Human Rights, 1948
[Link] Principles On The Application Of International Human Rights Law In
Relation To Sexual Orientation And Gender Identity, 2006

a|Page
➢ BOOKS
1. AMARTYA SEN, THE IDEA OF JUSTICE, MASS: BELKNAP PRESS OF HARVARD
University Press, Cambridge 2009

2. EVELYN KALLEN, LABEL ME HUMAN: MINORITY RIGHTS OF

STIGMATIZED CANADIANS 168 (1989)
3. GAUTAM BHAN, BECAUSE I HAVE A VOICE: QUEER POLITICS IN INDIA
468(2003)

4. GEDNER IDENTITY IN THE COMMON WEALTH 83-124 (Human Rights Consortium,

Institute of Commonwealth Studies, London,2013).

5. HLA HART, LAW, LIBERTY AND MORALITY, 88 Oxford University Press (1963).

6. JAISINGH INDIRA, HUMJINSI 92 (1999, Bina Fernandez).

7. JOHN RAWLS, JUSTICE AS FAIRNESS, The Philosophical Review (1958)

8. JUDIT BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF

IDENTITY, 22 (Routledge 1999).

9. O’ PHILLIPS, SEXUAL OFFENCES IN ZIMBABWE: FETISHISMS OF

PROCREATION, PERVERSION AND INDIVIDUAL AUTONOMY, University of
Cambridge185 (1999)

10. PAISLEY CURRAH, GENDER PLURALISM UNDER THE TRANSGENDER

UMBERLLA,3-31(University of Minnesota Press 2006).

11. TARYNN M. WITTEN AND ELLER, ANTI-TRANSGENDER VIOLENCE: THE

“INVISIBLE” HUMAN RIGHTS VIOLATION, Peach Review: An International 1 (1999).

12. G. ISAACS AND B. MCKENDRICK, MALE HOMOSEXUALITY IN SOUTH AFRICA:

IDENTITY FORMATION, CULTURE AND CRISIS (Cape Town, Oxford University
Press, 1992)
13. MARION FOSTER & KENT MURRAY, A NOT So GAY WORLD:
HOMOSEXUALITY IN CANADA 29(1972)
14. UMA CHAKRAVARTI, GENDERING CASTE 18 (Sage Publications,2018).

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➢ REPORTS

1. Wolfenden Committee, Report on Homosexuality and Prostitution, (Chairman: Sir

John Wolfenden, 1957).

2. People’s Union for Civil Liberties, Report on Human Rights Violation against the
Transgender Community, PUCL-K (May 03, 2019, 17:22 PM),
[Link]
e_Transgender_Community.pdf.

3. Ministry of Law, Government of India, Committee on Amendments to Criminal

Law (Chairperson: Justice J.S. Verma, 2013).

4. Ministry of Law, Government of India, One Hundred and Seventy Second report
on Review of Rape Laws, LAW COMMISSION OF INDIA (2000).

➢ JOURNALS/ARTICLES

1. Ann P. Haas, Philip L. Rodgers, and Jody L. Herman, Suicide Attempts among
Transgender and Gender-Nonconforming Adults, AMERICAN FOUNDATION FOR
SUICIDE PREVENTION AND THE WILLIAMS INSTITUTE. Retrieved from
[Link]
[Link]
2. Animesh Sharma, Section 377: No Jurisprudential Basis, ECONOMIC AND
POLITICAL WEEKLY. Retrieved from [Link]
3. Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of Victims,
Perpetrators, and Harm in Feminist Theories of Rape, 36 HARVARD JOURNAL OF
LAW & GENDER 503 (2013) Retrieved from
[Link]
es

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4. Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, ECONOMIC AND
POLITICAL WEEKLY. Retrieved from [Link]
5. Catherine Taylor, Every Class in Every School: Final Report on the First National
Climate Survey on Homophobia, Biphobia and Transphobia in Canadian Schools,
EGALE CANADA. Retrieved from
[Link]
final-report-first-national-climate-survey-homophobia
6. California Coalition AGAINST Sexual Assault, Focusing on Pride: Supporting Lesbian,
Gay, Bisexual and Transgender (LGBT) Survivours of Sexual Assault, CALIFORNIA
COALITION AGAINST SEXUAL ASSAULT. Retrieved from
[Link]
7. Corinne Lennox and Mathew Waites, Human Rights, Sexual Orientation and Gender
Identity in the Commonwealth: From History and Law to Developing activism and
transnational dialogues, UNIVERSITY OF LONDON. Retrieved from
[Link]
8. Dipika Nath, We’ll Show You You’re a Woman: Violence and Discrimination against
Black Lesbians and Transgender Men, HUMAN RIGHTS WATCH. Retrieved from
[Link]
discrimination-against-black-lesbians-and
9. Don Operario, Toho Soma, Kristen Underhill, Sex Work and HIV Status among
Transgender Women: Systematic Review and Meta-Analysis, JOURNAL OF
ACQUIRED IMMUNE DEFICIENCY SYNDROMES. Retrieved from
[Link]
10. Emily F. Rothman, Deinera Exner, Allyson L. Baughman, The Prevalence of Sexual
Assault Against People Who Identify as Gay, lesbian or Bisexual in the United States: A
Systematic Review, SAGE JOURNALS. Retrieved from
[Link]
11. Ending Acts of Violence and Related Human Rights Violations based on Sexual
Orientation & Gender Identity, HUMAN RIGHTS COUNCIL ON LGBT RIGHTS.
Retrieved from [Link]

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12. Flavia Agnes, Law, Ideology and Female Sexuality Gender Neutrality in Rape Law,
ECONOMIC AND POLITICAL WEEKLY. Retrieved from
[Link]
13. Geetanjali Misra, Decriminalizing Homosexuality in India, TAYLOR AND FRANCIS
GROUP. Retrieved from [Link]
8080%2809%2934478-X
14. Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law,
CAMBRIDGE UNIVERSITY PRESS. Retrieved from
[Link]
law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-
law/9BC983FB009B7BBDEB78CED0BC5144C0
15. Harvey J. Makadon, Ending LGBT Invisibility in Health Case: The First Step in Ensuring
Equitable Care, CLEVELAND CLINIC JOURNAL OF MEDICINE. Retrieved from
[Link]
16. High Court of South Africa (Witwatersrand Local Division): National Coalition for Gay
and Lesbian Equality et al. v. The Minister of Justice et al., INTERNATIONAL LEGAL
MATERIALS. Retrieved from [Link]
17. Jamie M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara
Keisling, Injustice at Every Turn: A Report of the National Transgender Discrimination
Survey, NATIONAL CENTER FOR TRANSGENDER EQUALITY AND NATIONAL
GAY AND LESBIAN TASK FORCE. Retrieved from
[Link]

18. Jennie Popay, Sarah Escorel, Mario Hernandez, Heidi Johnston, Jane Mathieson and
Laetitia Rispel, Understanding and Tracking Social Exclusion, WORLD HEALTH
ORGANIZATION. Retrieved
from[Link]
nal report_042008.pdf
19. Jo Beall and Laure-Helene Piron, Department for International Development - Social
Exclusion Review, OVERSEAS DEVELOPMENT INSTITUTE. Retrieved from
[Link]

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20. Jordi Estivill, Concepts and Strategies for Combating Social Exclusion: An Overview,
INTERNATIONAL LABOUR OFFICE. Retrieved from
[Link]
21. K.I. Vibhute, Consensual Homosexuality and the Indian Penal Code: Some Reflections
on Interplay of Law and Morality, JOURNAL OF INDIAN LAW INSTITUTE.
Retrieved from [Link]
22. Karel Blondeel, Violence Motivated by Perception of Sexual Orientation and Gender
Identity: A Systematic Review, BULLETIN OF WORLD HEALTH ORGANIZATION.
Retrieved from [Link]
23. Mark L. Hatzenbuehler, Katie A. McLaughlin, Susan Nolen-Hoeksema, Emotion
Regulation and Internalizing Symptoms in a Longitudinal Study of Sexual Minority and
Heterosexual Adolescents, THE JOURNAL OF CHILD PSYCHOLOGY AND
PSYCHIATRY, WILEY ONLINE LIBRARY. Retrieved from
[Link]
24. National Coalition of Anti-Violence Programs, Hate Violence against Lesbian, Gay,
Bisexual, and Transgender People in the United States, NATIONAL COALITION OF
ANTI-VIOLENCE PROGRAMS. Retrieved from [Link]
content/uploads/2017/05/2013_NCAVP_HVReport_MR.pdf
25. Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, SEATTLE
JOURNAL FOR SOCIAL JUSTICE. Retrieved from
[Link]
26. Rachana Mudraboyina and L.C. Kranti, A Critiques of the Transgender Persons
(Protection of Rights) Bill, 2018, HUMAN RIGHTS LAW NETWORK. Retrieved from
[Link]
2019
27. Rebecca L. Stotzer, Violence against transgender people: A review of United States data,
ELSEVIER AGGRESSION AND VIOLENT BEHAVIOUR, Retrieved from
[Link]
28. Robert Wintemute, Sexual orientation and the charter: The achievement of formal legal
equality, 1985-2005 and its limits, MCGILL LAW JOURNAL, Retrieved from
[Link]

f|Page
29. Robin M. Mathy, Susan D. Cochran, Jorn Olsen, Vickie M. Mays, The Association
Between Relationship Markers of Sexual Orientation and Suicide: Denmark, SOCIAL
PSYCHIATRY AND PSYCHIATRIC EPIDEMIOLOGY. Retrieved from
[Link]
30. Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to
the ‘Inclusive’ Approach, NUJS LAW REVIEW. Retrieved from
[Link]
31. Sakshi Raje, Transgender: The Human Rights, LAW TIMES JOURNAL. Retrieved from
[Link]
32. Sarah S. Willen, Michael Knipper, Cesar E Abadía-Barrero, Nadav Davidovitch,
Syndemic Vulnerability and The Right to Health, THE LANCET JOURNAL. Retrieved
from [Link]
33. Simon Bronitt and Ashutosh Misra, Reforming Sexual Offences in India: Lessons in
Human Rights and Comparative Law, GRIFFITH ASIA QUARTERLY. Retrieved from
[Link]
34. Vishakha Choudhary and Vishesh Sharma, The Transgender Persons (Protection of
Rights) Bill, 2018: A Tale of Reneged Promises, OXFORD HUMAN RIGHTS HUB.
Retrieved from [Link]
bill-2018-a-tale-of-reneged-promises/
35. Zoë D. Peterson, Emily K. Voller, Melissa A. Polusny, Maureen Murdoch, Prevalence
and Consequences of Adult Sexual Assault of Men: Review of Empirical Findings and
State of the Literature, CLINICAL PSYCHOLOGY REVIEW. Retrieved from
/[Link]

➢ Websites

i. [Link]
ii. [Link]
iii. [Link]
iv. [Link]
v. [Link]

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 vi. [Link]
vii. [Link]
viii. [Link]
ix. [Link]

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 APPENDIX
The National University of Advanced Legal Studies, Kochi
Kalamassery, Kochi – 683 503, Kerala, India

CERTIFICATE ON PLAGIARISM CHECK

1. Name of the Candidate Diana Laurence Paul

2. Title of Thesis/Dissertation “The state of LGBTIQA+ rights in India

and taking the narrative forward: Living
Free and Equal”,
3. Name of the Supervisor Prof. (Dr.) Mini S

4. Similar Content (%) Identified

5. Acceptable Maximum Limit (%)

6. Software Used

7. Date of Verification

*Report on plagiarism check, specifying included/excluded items with % of similarity to be

attached in the Appendix

Checked By (Name, Designation &Signature) :

Prof. (Dr.) Mini S

Associate Professor (Law)
NUALS, Kochi

Name and Signature of the Candidate :

Diana Laurence Paul

Name & Signature of the Supervisor :

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 Prof. (Dr.) Mini S

Plagiarism Report

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