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LGBTQ+ IN INDIA: AN EVALUATION Keywords: LGBTQ+ Community, Gender
OF THEIR SOCIO-LEGAL and sexuality, Social and Legal acceptance,
ACCEPTANCE Gender-based discrimination

By Surbhi Jhanwar, Komal Kriti Uraon and I. INTRODUCTION

Nikha Goyal “Equality means more than passing laws.
From Hidayatullah National Law University, The struggle is really won in the hearts and
Raipur minds of the community, where it really
counts.” – Barbara Gittings.
ABSTRACT
The discussion on the LGBTQ Community
The cry for change in the Indian society is and their rights has gained huge momentum
getting louder day by day but the period of in the past few years. After a long struggle of
transition is a long-drawn process. However, overcoming the hardships for recognition
the Indian Judiciary has stood the test of time through rallies, activism, petitions, etc., India
by ensuring justice and securing the interests is finally among the countries that have
of the underprivileged. The recent Navtej legally recognized Homosexual intercourse.
Singh Johar judgement of 2018 is one such However, social acceptance is still an
event in the history of Indian society which obstacle in the road of equality.
celebrates the triumph of humanity and Homosexuals, even at present have to deal
peaceful coexistence over the age-old notions with problems like discrimination and
which are discriminatory and irrelevant in the harassment for being who they are; there is
present. This research paper analyses the still a lot of stigma attached to their gender
extent to which the LGBTQ+ Community is identity. Besides the social unacceptance,
socially and legally accepted in the Indian India is yet to legally recognize issues like
Society. Furthermore, it digs into the history same-sex marriage, adoption, inheritance
of India to understand the perspective of rights, etc. which are significant to human
ancient Indian society regarding the life.
LGBTQ+ community. Through this paper, an The paper begins by exploring ancient Indian
attempt is made to expose the hardships faced society. The historical evidence found among
on a daily basis by the community and their the various pieces of literary texts and
views. It further tries to study the perspective monumental carvings suggests the
of non-LGBTQ+ people on the same. prevalence of the LGBTQ+ community from
Moreover, the paper debates why a legal the very beginning. This is followed by an in-
acknowledgment for the LGBTQ+ depth analysis of the social hurdles
community is the need of the hour. Taking encountered by the community. The section
into account the socio-legal aspect of the deals with major problems such as rejection
situation it is observed that there is a need for from the family and society, sexual
social awareness and state’s intervention to harassment and abuse, same-sex marriage,
improve the condition of the LGBTQ Child adoption by homosexual couples,
community. discrimination at educational institutions and
workplace, etc. The next section analyzes the
legal aspect of the issue by taking into
consideration various laws and cases dealing
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with the same. The paper takes into understanding of the concept vary. In some
consideration both the perspective of societies, it is widely accepted while for
LGBTQ+ and non- LGBTQ+ individuals. others it's a crime. A wide spectrum of
sexualities and its existence is not an alien
II. METHODOLOGY concept to India. Instances of homosexuality
The research data is collected by conducting and its acknowledgment in the country are
surveys through separate questionnaires for evident through various texts of literature,
the LGBTQ+ and the Non-LGBTQ+ mythology, and some historical monuments.
community. A total of Fifty-two participants Hinduism is the third largest religion in the
from the LGBTQ+ community and One world with as many as 1.25 billion followers
Hundred participants from the Non- which constitutes roughly about 15-16% of
LGBTQ+ community participated in the the total world population. Hindus consider
survey. The responses of the respondents Vedas and other ancient texts which are as
were analyzed to understand the concept old as 6,000 BCE as sacred and binding. The
from the grass-root level. For further research existence of homosexuality can be seen in our
and data collection books, journals, e- ancient scripts like Jathaka tales, Puranas,
articles, research papers, etc. were referred. Bhaghavatha, Kamasutra, the great epics: the
The individuals belonging to the LGBTQ+ Ramayana & the Mahabharata, Manusmriti
community who have already revealed their (the oldest law code of conduct). The
identity to the society were approached for sculptures and imagery on temples all around
the survey. For the purpose of citation the country, literature works and tales,
OSCOLA 4th edition has been used. ancient law books, and ancient sacred
religious scriptures indicate the existence of
III. OBJECTIVE
homosexual activities in some form or other
● To understand the concept of LGBTQ+.
in ancient India. The Khajuraho temples
● To examine the historical evidence
located in the Chhatarpur district, Madhya
supporting the existence of gender fluidity in
Pradesh are one such example that
ancient Indian society.
substantiates the fact. The walls of this
● To highlight the issues and challenges faced
monument are covered with various carvings
by the LGBTQ+ community.
and sculptures including those depicting
● To analyse the attitude of society towards the
copulation between same-sex couples.
community and their willingness to accept
The reference of the origin of a third sex child
them.
can be found in chapter 3, verse 49 of the
● To evaluate the extent of Legal recognition
Manu Smriti: “A male child is produced by a
granted to the community.
greater quantity of male seed, a female child
IV. HISTORY OF LGBTQ+ COMMUNITY by the prevalence of the female; if both are
IN THE INDIAN SOCIETY equal, a third-sex child [napumsaka] or boy
Instances of homosexuality can be found and girl twins are produced; if either is weak
throughout the world and India is no or deficient in quantity, a failure of
exception to this. However, the outlook of conception results”. 1 The epic, Ramayana,
people in different societies and their written by Maharishi Valmiki belonging to

1
G. Buhler (trs), Manusmriti: The Laws of Manu,
(Library of Alexandria, 2012) 13.
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the Treta Yuga (second of the four yugas) against the order of the society under Article
mentions a sexual encounter between two 377 of the Indian Penal Code (IPC). In
women. Another great epic Mahabharata contrast with India under colonial rule,
talks about Shikhadini, a transgender, who ancient India, i.e., India before the British
was a great warrior and also defeated rule was quite liberal and was relatively
Bhishma, the Kuru Prince. tolerant in its approach toward the LGBT.
Vedic India welcomed the LGBT people in
The Hindu epics mention several other its rich culture and heritage 4. The Law
characters that demonstrate a wide range of criminalizing homosexuality brought in the
gender identities, indicating the country by the British colonizers has been
acknowledgment of gender fluidity by one of the most oppressive and unfair acts of
Hinduism. Chitrangada (wife of Arjuna), the British rulers, especially towards the
Brihannala from the Mahabharata, LGBTQ+ Community. India was one of the
Ardhanarishwara (Lord Shiva as half-man, first few colonies under British rule to outlaw
half-woman) and Lord Ayyappa {born to same-sex relations. Though post-
Shiva and Vishnu (as Mohini)} are more such Independence India did recognize the Right
examples reflecting the subtle approach of to Equality, Right to freedom under the
the Hindus towards the LGBT in ancient constitution but homosexuality remained a
India. criminal offense. It is only after a long
struggle and activism that Homosexual
Homosexuality, although a familiar concept relations are no more considered a legal and
in Hinduism, was not always accepted. The punishable offense. In 2009, Delhi high court
Manu Smriti prescribes certain punishments struck down some portion of the section as
for Homosexual activities. For instance the unconstitutional and recognized the LGBTQ
punishment given to an older woman for rights but the Judgment was overturned by
having a relationship with a virgin woman the Supreme Court in the year 2013. Finally,
was to get her head shaved or cut two of her on September 6, 2018, the Hon’ble Supreme
fingers and ride on a donkey through the Court of India gave the historical verdict of
town.2 Another verse mentioned in Manu decriminalizing consensual same-sex
Smriti prescribes a punishment of a fine of relations and ruled that Article 377 of the
“two hundred (panas), pay the double of her IPC, insofar as it applied to Homosexuality is
(nuptial) fee, and receive ten (lashes with a) violative of their fundamental rights granted
rod”3 for a relationship between two virgin in the constitution.
women. Religious works of religions other
than Hinduism also works as evidence V. SOCIAL ACCEPTANCE
supporting the existence of homosexuality in
the ancient India. Although change is constant in the institution
of society, it is difficult for people to deviate
India, under the British rule in 1861, from their customs and beliefs. However, in
criminalized homosexuality and considered it order to form a better society for all, such

2
G. Bulher (trs), Manusmriti: The Laws of Manu, 4
Amara Das Wilhelm, ‘Tritiya-Prakriti: People of the
(Library of Alexandria, 2012) 55. Third Sex’, (Xlibris Corporation, 2004).
3
Ibid.
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deviation becomes necessary. “Popular to…individuals of a different gender or the
morality or public disapproval of certain acts same gender or more than one gender.”8
is not a valid justification for restriction of the
fundamental rights under Article 21. Popular
morality, as distinct from a constitutional
morality derived from constitutional values,
is based on shifting and subjecting notions of
right and wrong. If there is any type of
“morality” that can pass the test of
compelling state interest, it must be
“constitutional” morality and not public
morality.”5
A. FINDINGS The majority of the respondents, who were
1. LGBTQ+ people’s response to the survey willing to disclose their identity belonged to
On the basis of sex identity, 38.5% of the the age group of 16-25 years followed by the
respondents were male, 59.6% were female people belonging to the age group of 26-40
and 1.9% were intersex. Furthermore, on the years and very few from the remaining.
basis of sexual orientation and gender
identity, 17.3% of the respondents identified
themselves as Lesbians, 25 % identified
themselves as Gay, 15.4% identified
themselves as Bisexuals, 3.8 % identified
themselves as Transgender, 28.8% identified
themselves as Queer & 17.3% identified
themselves as others. Here we would like to
clarify the difference between sex, gender
identity, and sexual orientation. People
generally consider both the terms to be the
same. Sex is a social status usually based on
genital appearance. 6 Persons may be female, 1.1. Troubles faced while accepting
male, or intersex. The term gender identity oneself as a part of the community
was coined by Robert Stoller in1964, 7 which While accepting oneself as a part of the
is an individual’s understanding of their LGBTQ+ Community a person encounters
gender and their internal sense of self. many challenges. The fear of negative
Whereas, sexual orientation is a person’s response and rejection compels them to bury
“emotional, affectional and sexual attraction their true identity. Discrimination, isolation,
5
Gobind v. State of Madhya Pradesh & anr. A.I.R. 7
Stoller, R. J., ‘A contribution to the study of gender
1975 S.C. 1378 identity’ (1946) vol 45(issues 2 to 3) The International
6
Devor, H., ‘Toward a Taxonomy of Gendered Journal of Psychoanalysis, 220
8
Sexuality’ (1994) Journal of Psychology and Human International Commission of Jurists, Yogyakarta
Sexuality, 23 Principles on the Application of International Human
Rights Law in relation to Sexual Orientation and
Gender Identity (Yogyakarta Principle, 2007)
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bullying, social stigma, marginalization are
the other factors that keep oneself away from
coming out to society. Self-acceptance
among LGBTQ+ youth can be strengthened
with the help of the family’s support and
through parental support LGBTQ+, youth
can be encouraged to utilize resources that
assist in the growth of positive sexual
orientation.9 It was found in the survey that abuse from their family which created a
61.5 % of the respondents faced trouble while societal pressure upon them to marry. To
accepting themselves as a part of the avoid such pressure and the conflict arising
LGBTQ+ Community and the major from the clash of traditional beliefs and their
challenge to them was coming out to the sexuality, they left their home. 10 Being a
family and society about their identity. Other member of the LGBTQ+ Community 80.8%
key challenges identified were self- of the respondents faces problems while
acceptance, declination of their sexual finding a life partner or are pressurized to
orientation by family and society, and not marry against their will; 34.6% faces
getting legal acceptance. problems while pursuing the career of their
choice; 50% faces problems due to lack of job
opportunities for them; 46.2% faces
problems in getting medical facilities; 82.7%
faces discrimination at their workplace.

1.3. Education
Many students from LGBTQ+ Community
face harassment and bullying in the
educational institution where they are
expected to be safe. During our research, it
was found that education of 69.2% of the
people from the community was affected due
to their sexual orientation. It was observed in
a study, by Naz Foundation in 2005 that due
1.2. Challenges faced by the community to harassment and violence by classmates and
As per the study by V.Chakrapani on Kothi teachers 50 percent of MSM respondents
identified MSM, about half of the who were the victim of such act faced
respondents underwent violence & verbal problems during their academics.11 An option

9
Mohr Jonathan, Fassinger Ruth, ‘Self-acceptance investigation’ (2007) AIDS Education and Prevention,
and self-disclosure of sexual orientation in lesbian, 346 .
gay, and bisexual adults: An attachment perspective’ 11
M. V. Lee Badgett, ‘The Economic Cost of Stigma
(2003) Vol-50 Journal of Counseling Psychology, 482 and the Exclusion of LGBT People: A Case Study of
10
Venkatesan Chakrapani, Peter A. Newman,Murali India’ (2014) World Bank Document,
Shunmugam, Alan McLuckie, and Fredrick Melwin, <http://documents1.worldbank.org/curated/en/52726
‘Structural violence against Kothi-identified men who 1468035379692/pdf/940400WP0Box380usion0of0L
have sex with men in Chennai, India: a qualitative GBT0People.pdf> accessed 5 June 2020
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of ‘other’ was included under the gender
section in the 2011 Indian census and it was
found that 74% of the people selecting ‘male’
& ‘female’ options were literate while only
46% of those selecting ‘other’ option were
literate.12

1.4. Sexual harassment/ abuse

As per Monro, 2005, transgender people
encounter various difficulties due to their
sexualities such as interacting with societies
that don’t recognize them, discrimination by
sexual health services, are more vulnerable to 1.5. Decriminalization of homosexuality
sexual violence and rape, etc. 13As per the The majority of the respondents believe that
Centers for Disease Control and Prevention the recent judgment of the Supreme Court of
(CDC), lesbian, bisexual, and gay people decriminalization homosexuality under
encounter more or higher rates of sexual Section 377 in India is one step closer
violence as compared to straight people. 14 towards their legal acceptance, but societal
69.2 % of our respondents reported that they acceptance is still a farfetched dream.
have faced verbal form of sexual harassment “Yes, but the most important part is to
or abuse, 55.8% of them faced physical form change the mindset of the people from the
of sexual harassment or abuse, and 34.6% of earlier generations. Abolishing 377 did give
them have faced online sexual abuse while us a sense of freedom but at the end of the day
only 13.5% reported that they never faced acceptance from our closest ones is what
any form of abuse or sexual harassment. matters.” (Respondent)

1.6. Same-sex marriage

There is a wide range of benefits such as
maintenance, pension etc. that are given to
married couples but are denied to
homosexual couples. Many such couples just
want legal recognition of their partnership
without any discrimination.15 Many

12
UNDP, ‘Measuring LGBTI Inclusion: Increasing 14
Mikel L. Walters, Jieru Chen, Matthew J. Breiding,
Access to Data and Building the Evidence Base’ ‘The National Intimate Partner and Sexual Violence
(2016), UNDP, NewYork Survey: 2010 Findings on Victimization by Sexual
<https://globalphilanthropyproject.org/wp- Orientation’ (2013) National Center for Injury
content/uploads/2016/11/Measuring-LGBTI- Prevention and Control Centers for Disease Control
Inclusion-Research-Paper-July-5-submitted-for- and Prevention Atlanta
Montevide....pdf> accessed 8 June 2020 (Georgia)<https://www.cdc.gov/violenceprevention/p
13
Surya Monro PhD, ‘Beyond Male and Female: df/nisvs_sofindings.pdf> Accessed 8 June 2020
Poststructuralism and the Spectrum of Gender’ (2005) 15
Thomas John, ‘Liberating Marriage: Same-Sex
International Journal of Transgenderism, 3 Unions and the Law in India’ in Arvind Narrain(eds.)
& Alok Gupta(eds.), Law Like Love (Yoda Press 2011)
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homosexual couples believe that marrying a
person of one’s choice is a personal decision
and no one else (especially state) should
exercise control over it.16 Nearly 59.6% of
the respondents believe that same-sex
marriage should be legalized as marrying the
person of one’s choice is a part of liberty and
equality.
“… We still don't have human rights like
starting our own family and getting married.
We don’t have property rights or neither are
we acknowledged as an equal part of the
society.” (Respondent) 1.8. Change in people’s attitude
About 51.9% of the respondents are certain
that in the present era of globalization, people
will change their attitude towards gay culture
in India, while 46.2% are unsure about such
a change.
“I do not live in India, but I live in the US. I
am grateful for the rights that I have here, but
it took a long time. India is moving much
faster than the US did. I think it will happen
soon and it makes me proud to be Indian.”
(Respondent)

1.7. Child adoption 2. Non - LGBTQ+ people’s response to the

The majority believe that care and survey
consistency matter more than the sexuality of Out of the 100 respondents, only 5% felt that
the person for being a good parent. Every they were well versed about the LGBTQ+
respondent agrees that homosexual couples Community while the majority felt that they
should be allowed to adopt children. were either having enough (50% of the
“I expect the government to include people respondents) or a little (42% of the
from the community in legal aspects, giving respondents) knowledge of the community.
people from the community adoption and The remaining 3% had no knowledge about
marriage rights, education, and proper the community. The majority (nearly 74%)
healthcare facilities.” (Respondent) felt that they would be comfortable being
around a person belonging to the LGBTQ+
Community while only 3% said that they
won’t be so, and the rest were unsure about
it. 91 % of the people consider the LGBTQ+

16
Mary L. Bonauto, ‘Goodridge in Context’ (2005)
Vol-40 Harv. C.R.-C.L. L. Rev. 1
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Community people as normal human beings 2.3. Sexual harassment/ abuse
and only 1% considered them to be abnormal. The authorities are less likely to be reported
about the hate crimes against homosexuals
2.1. Family’s attitude due to homophobic and trans-phobic nature
Only 4% felt that their family would be of Criminal justice system.18 In our research,
welcoming and supporting the people it was found that the majority of the people
belonging to the LGBTQ+ Community and are aware of the incidents of sexual
43% felt that their family will be hesitant at harassment and abuse occurring against the
first but will eventually support them. people of the LGBTQ+ Community.
Around 15% of the people felt that their
family will not be welcoming of people of the
community. Remaining considered that their
family members will be neutral towards such
people.

2.2. Equal treatment

99 out of 100 believe that people from the
LGBTQ+ community should be treated on an
equal plane with others. The people from the
LGBTQ+ community have to face a lot of
discrimination which prevents them from
taking benefits of their social, cultural, civil,
political, and economic rights. They are 2.4. Decriminalization of homosexuality
treated as unequal in various aspects of life, 77% of the respondents support the Supreme
such as they are unable to access healthcare Court’s judgment of decriminalization of
due to stigmatization faced by them from the homosexuality in India whereas 38% of the
health service providers, they are refused respondents are against it. Even though the
rental accommodation many times from ruling of decriminalization of homosexuality
landlords, they have to face discrimination is a positive step towards their betterment but
and harassment at the workplace or an it’s still not enough as per Indian
educational institution.17 On 21 August, 2020 psychologists. “Society is still not really
'National Council for Transgender Persons' accepting, that’s the sad part…. We still have
was set up by government to observe and a lot of work to do” says Hemchand. 19
analyse the effect of government policies and
programmes on the transgenders. 2.5. Same-sex marriage
With regards to the legalization of same-sex
marriage, 73% of the respondents were

17
Home Office, Country Information and Guidance 19
Rebecca A. Clay, ‘Decriminalizing homosexuality
India: Sexual orientation and gender identity (2014) in India’ (2019) 50 (2), American Psychological
18
Gregory M. Herek, Jeanine C Cogan, Joseph Roy Association<
Gillis,‘Victim experiences in hate crimes based on https://www.apa.org/monitor/2019/02/homosexuality
sexual orientation’ (2002)58(2) Journal of Social -india> Accessed 15 June 2020
Issues 319
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supportive of it and 16 % were neutral about
it. Others were against it due to certain
reasons such as it is unnatural, or it is against
the traditional concept of marriage between a
man and a woman, or that such marriages are
a threat to the survival of society as such
couples cannot reproduce.

2.7. Military
According to the Indian military,
homosexuals cannot be allowed in the
military as it could have various adverse
effects on the military and is unacceptable
due to the conservative nature of the army. 20
From the study of the armed forces of Israel,
2.6. Child adoption it was found that the knowledge of gay peers
87% of the respondents believe that didn’t decrease the unit cohesion.21 In our
homosexual couples should be allowed to survey, it was found that the majority of the
adopt children as one’s sexuality does not respondents agree that the people belonging
affect the person’s eligibility to be a parent. to the LGBTQ+ community are equally
1% believe that allowing so would weaken eligible to be in the military as other citizens
the institution of family and 4% think that it and only 4% disagree with it.
would affect the development of the child.

20
Pritika Jain, ‘Should the Homosexuals Be Allowed 21
Danny Kaplan, Amir Rosenmann, ‘Unit Social
To Serve In Armed Forces: A Critical Analysis’(2015) Cohesion in the Israeli Military as a Case Study of
20(2) IOSR-JHSS 12 “Don’t Ask, Don’t Tell,’ (2012) 33(4) Political
Psychology 419
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discrimination in the workplace due to their
sexual orientation. 23

2.9. Movie & social media

The misconstrued demonstration through the
media about homosexuals has created a
negative impact on the mind of the viewers
which has resulted in worsening the situation
for the LGBT community. 24 Although
homosexuals are widely represented in the
mainstream media but not in a justified
manner and such negative representation has
a more intense effect on the audience rather
2.8. Workplace than the positive depiction. 25 60 out of 100
43% of the respondents strongly disagree respondents believe that the image of the
with the statement that an employer should LGBTQ+ Community is affected to some
have the right to decline a position to an extent by the way of their portrayal in movies
LGBTQ+ person solely based on their sexual and social media.
orientation or gender identity. Lee Badgett,
an economist, in her report on income “Many movies should come up to portray the
inflation observed that LGBT people’s love of same-sex couples and take those live
earning is lesser than non-LGBT people.22 cases who have gone through difficulties and
56% of the respondents (college-educated, leading a respectable life in society, instead
white-collar LGBT workers in India) of a of just portraying some random stories.”
survey conducted in 2013 experienced (Respondent)

22
ibid 7. 25
Mabokela Sedibu Evelyn, ‘The viewers’ perception
23
ibid 8. on the portrayal of gays and lesbians in selected
24
Iman Tagudina, ‘Media Representations of the television programmes’(M.A thesis, University of
LGBT Community and Stereotypes’ Homophobic Limpopo 2015)
Reinforcement’ (Department of communication
Ateneo De Nanila University 2012)
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will change their attitude towards gay culture
in India while 19% do not think so.

2.10. Awareness among students B. Analysis

About 4% of the respondents do not agree The term gender and sex are generally used
with the thought of educating students about interchangeably in India; which might be the
the LGBTQ+ Community in the schools. reason that majority don’t recognize the
From the National School Climate Survey, difference between the two. Indeed, both the
201726 it was found that students having terms are closely linked but they don’t act as
LGBTQ-inclusive courses are less likely to a substitute for each other. It can be inferred
receive the word “gay” in a negative sense, that much recognition is given to the
received fewer remarks on gender expression biological difference, i.e., sex while the
in a negative way, and had better academic psychological and emotional one, i.e., gender
performance than those without such lessons is overlooked by society. In the survey, we
in their school. The majority of the LGBTQ found that the people belonging to the
students, in schools having an LGBTQ- LGBTQ+ community recognized the
inclusive curriculum, reported that the fellow difference between their sex and gender
students were more welcoming of them. 27 thoroughly whereas non-LGBTQ+ people
“Deprivation of the knowledge of the may not be aware of the same due to the fact
LGBTQ+ community is the main reason that their sex and gender are the same.
people are unable to hugely accept them.”
(Respondent) More number of people who came forward
for the survey belonged to the age group of
2.11. Change in people’s attitude 16-40 and unfortunately no one above 60.
The majority of the respondents are certain The reason that a greater number of young
that in the present era of globalization, people people were responsive to our survey might
be that due to decriminalization of
homosexuality more people can open up
26
JG Kosciw ,EA Greytak, AD Zongrone, CM Clark, GLSEN, ‘State Inclusive Curricular Standards’,
27

& NL Truong, ‘2017 School Climate Survey’ (GLSEN, New York 2019)
(GLSEN 2018) <https://www.glsen.org/activity/inclusive-
curriculum-standards> accessed 18 June 2020
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about their identity but before 2018 set up to create awareness in the society. The
homosexuality was a crime and was highly majority agrees that LGBTQ+ inclusive
stigmatized by the society. Thus, due to lack curriculum should be introduced in schools to
of legal protection many elders have make educational institutes safe for them and
suppressed their identity. After such a to make people aware that it is not a separate
lifetime of stress and vulnerability to ill- community but a part of society itself.
treatment, many LGBTQ+ elders have Furthermore, about 13.5% of our LGBTQ+
isolated themselves and are less likely to respondents are unaware of social support
open up. Hence, the LGBTQ+ people systems working for their community and
belonging to the age group of 16-40 were thus are denied the resources which can be
more easily approachable than those above beneficial for their growth and development.
40. The survey data demonstrate that the general
response of the LGBTQ+ community people
When asked about problems faced by the was that they never thought of changing their
LGBTQ+ community majority responded sex identity. This implies that they are happy
that they faced trouble while coming out to with who they are and want others to know
family and society about their identity and that it’s natural rather than a choice or
also that they face various types of decision. While 9.8% of the respondents
discrimination which shows that there is no thought about changing their identity, this
equal treatment meted out to them. 76.5% of might be due to societal pressure and
the LGBTQ+ respondents faced sexual unacceptance.
harassment or abuse in their life while only
62% of the non-LGBTQ+ respondents are 81.5% of the non-LGBTQ+ respondents and
aware of such incidents of sexual violence 46.2% of the LGBTQ+ respondents think that
against the LGBTQ+ community people. in the present era of globalization people will
This shows that since a very little number of change their attitude towards gay culture in
people can come out in open about their India. Most of the non-LGBTQ+ respondents
identity because of the unwelcoming nature think that the LGBTQ+ community people
of the society, many heinous crimes taking are a normal human being, worthy for the
place against them are also suppressed in society, should be treated equally with other
silence. and support the decriminalization of
homosexuality, same-sex marriage, adoption
A common opinion is that social media and of children by homosexual couples, this
movies have a great influence on the mind of shows that more people are having a positive
the audience. Generally, the way the attitude towards the community. However,
LGBTQ+ community is portrayed in these most of the LGBTQ+ community people are
platforms creates a negative impression about still not sure that people’s outlook towards
them. Furthermore, the majority of the them is changing, this generates a need for
respondents never came across any more interaction between them and other
society/club supporting such a community members of the society.
this shows that the problems of the
community are overlooked by society and VI. LEGAL RECOGNITION
therefore more such clubs/societies should be

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Prior to the British rule, Indians embraced the Among the various drawbacks of having
idea of homosexuality and the homosexuals Section 377, one was the probability of
were treated at par with the other members of having repercussions on the fight against
the society. The Britishers' homophobic HIV/AIDS in India. An example of the
attitude gave furtherance to the enactment of pernicious effect of s.377 on HIV prevention
a new law in the colonised India, occurred in 1994 when a group of physicians
criminalising homosexuality. The Indian recommended that condoms should be
Penal Code (IPC) was introduced in India in distributed in a Delhi prison where high rates
the year 1860 and s.377of IPC was inserted of homosexual sex were reported. The prison
in 1861 which read as: authorities refused because homosexual sex
was a crime under s.377 and that distribution
“s.377. Unnatural offenses: Whoever of condoms would mean condoning a
voluntarily has carnal intercourse against the criminal act.31
order of nature with any man, woman or
animal shall be punished with imprisonment In response to the above 1994 Prison case,
for life, or with imprisonment of either ABVA filed a petition challenging the
description for a term which may extend to constitutionality of s.377 of IPC. However,
ten years and shall also be liable to fine. because of the irregular funds, the
Explanation: Penetration is sufficient to organization was unable to engage a regular
constitute the carnal intercourse necessary to lawyer & on the date of the hearing, the case
the offense described in this section. ”
28
was dismissed. This marked the beginning of
The above-mentioned section of IPC was the legal battle for restoring the rights of the
modeled on the Buggery Act of 1533, which homosexuals.
defined ‘buggery’ as an act of unnatural
sexual offense against the will of God and i. Naz Foundation v. Govt. of NCT,
Man. Later on the courts defined it to include Delhi & Ors. (2009)
only anal penetration and bestiality. There Naz Foundation then, along with Lawyers
were other similar colonial legislations and Collective asked the Supreme Court to
legal provisions that specifically criminalized review the dismissal of the petition. The
transgender and intersex persons in India. For Supreme Court then ordered that the grounds
example, the Criminal Tribes Act of 1873 for the dismissal were not valid & asked the
punished the eunuchs ‘dressed or ornamented Delhi High Court to rehear the case. In the
like a woman’ for appearing in a public street year 2009, the Supreme Court held that
taking part in any public exhibition. Other treating consensual sex between adults as
such legislations are The Telangana crime is a violation of constitutionally
Eunuchs Act,29 enacted in 1919 & The prescribed rights; however, the law would
30
Karnataka Police Act 1963 . continue to apply to non-consensual, penile,
non-vaginal sex involving minors. 32

28
s.377 of Indian Penal Code 1860 (IN) 31
Agoramoorthy G, Hsu M, ‘India's homosexual
29
s.4 of the Telangana Eunuchs Act 1919 (IN) discrimination and health consequences’ (2007) 41(4)
30
s.36A of Karnataka Police Act 1963 (IN) Rev. Saúde Pública 657
32
Naz Foundation v. Govt. of NCT, Delhi and Ors.
(2009) 160 DLT 277
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personal intimacies, the sanctity of family
ii. Suresh Kumar Koushal v. Naz life, marriage, procreation, the home and
Foundation (2014) sexual orientation.”35 Finally, the year 2018
In Suresh Kumar Koushal v. Naz changed the outlook of society at gender, sex,
Foundation33, the decision of the Delhi High and sexuality.
Court in ‘Naz Foundation case’ (2009) was
challenged. The petitioners contended that v. Navtej Singh Johar & Ors. v. Union
S.377 is gender-neutral & does not of India (2018)
discriminate based on the person committing The 5-judge Bench held that section 377 of
the act. The Supreme Court pronounced the the colonial legislation is violative of Art.14,
decision that S.377 of IPC does not suffer 15, 19 and 21 of the Constitution of India.
from any constitutional infirmity. After the This case highlighted the discrepancies
‘Suresh Kumar Koushal case’, there have between s.377 of IPC and the guaranteed
been plentiful discussions in an attempt to rights of Indian Constitution to respect
overrule the decision of the case. privacy, liberty, and non-discrimination. This
implies that the content of the rights
iii. National Legal Services Authority sanctioned in Articles 14, 15, 19, and 21
(NALSA) v. Union of India (2014) based on which same-gender relations have
In April 2014, the Supreme Court passed a been decriminalized is much broader and will
judgment in the ‘NALSA case’34 holding that encompass a range of civil rights.36
the right to identify oneself as male, female, Legally, the decision makes persecution of
or transgender is a part of the fundamental same-sex couples intractable and
rights guaranteed under the Constitution. It organizations working on issues of sexual
was held that the right to one's gender identity rights with LGBT communities now have
and sexual orientation is an integral part of more freedom to operate without police
the right to life and dignity and there is no harassment. However, the verdict is only one
need for medical assurance of the same. The step towards equality and acceptance for
fight for equality for those who fall beyond LGBT individuals.
the mainstream notions of gender gained
impetus with the Supreme Court’s judgment A. Human Rights
in this case. “Some say that sexual orientation and
gender identity are sensitive issues. I
iv. K.S. Puttaswamy v. Union of India understand. Like many of my generation, I
(2017) did not grow up talking about these issues.
In this judgment, the Supreme Court held that But I learned to speak out because lives are
the right to equality, life, and fundamental at stake, and because it is our duty under the
freedoms constitutes within themselves the United Nations Charter and the Universal
right to privacy. It further held that “Privacy Declaration of Human Rights to protect the
includes at its core the preservation of rights of everyone, everywhere.” — UN

33 35
Suresh Kumar Koushal v. Naz Foundation (2014) 1 K.S. Puttaswamy and Anr v. Union of India and Ors.
SCC 1 (2017) 10 SCC 1
34 36
National Legal Services Authority v. Union of India Navtej Singh Johar vs Union of India, Para 156
(2014) 5 SCC 438
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Secretary-General Ban Ki-Moon to the discrimination legislation or complaint
Human Rights Council, 7 March 2012 structures connotes absence of protection for
LGBT persons from discrimination in
United Nation’s effort education, at the workplace, in the workforce,
In 2011, the UN Human Rights Council within the health care system, etc. It further
passed the ‘Human Rights, Sexual suggests a lack of legal protection from
Orientation, and Gender Identity’ sexual, verbal, and physical violence and
37
Resolution which was introduced by South harassment due to sexual orientation,
Africa. Such human rights violations have expression, or gender identity.
been a constant concern of the human rights Discriminatory legal systems reserve some
institutions of the United Nations since the rights for heterosexuals such as marriage,
early 90’s. The Human Rights Council has adoption, succession, etc. Such a legal system
appointed independent experts to report on creates a constant fear of persecution in the
the burning human rights challenges. minds of LGBTQ+ persons and deprives
Agencies have been appointed to monitor the them from claiming protection from
compliance of states with the internationally discrimination and violations.
38
established human rights treaties.
The Charter of the United Nations According to the survey for the Non-
(1945) encourages "respect for human rights LGBTQ+ community people, 99% of
and fundamental freedoms for all without respondents are of opinion that people
distinction.” The Universal Declaration of
39
belonging to the LGBTQ+ community
Human Rights (1948) states:40"Everyone is should be treated at par with others.
entitled to all the rights and freedoms If an individual expresses' his or her sexuality
outlined in this Declaration, without without other individuals' harm of interest,
distinction of any kind."41 any invasion of this state will result in a
breach of privacy. 42The right to self-identity
Article 14, 15, 19 & 21 of Indian is one of the intrinsic rights under the right to
Constitution and human rights life with dignity, and article 21 mandates the
The interrelationship of the principles of anti- state to protect this facet of right from
discrimination and equality is among the violation. Article 21 also secures the right of
most fundamental elements of international the transgender communities to live a
human rights law. Lack of anti- dignified life.

37
Edward Jordan, ‘South Africa and sexual orientation forth in this Declaration, without distinction of any
rights at the United Nations: Batting for both sides’ kind, such as race, colour, sex, language, religion,
(2017) 44(2) Politikon 205 political or other opinion, national or social origin,
38
Office of High Commission, ‘Combatting property, birth or other status.
Discrimination Based on Sexual Orientation and 41
Juneau Gary, and Neal S. Rubin, ‘Are LGBT rights
Gender Identity’ United Nations Human Rights human rights? Recent developments at the United
<https://www.ohchr.org/en/issues/discrimination/pag Nations’ (2012) 23(2) American Psychological
es/lgbt.aspx> accessed 10 July 2020 Association
39
Charter of United Nations and Statute of the <https://www.apa.org/international/pi/2012/06/un-
International Court of Justice 1945, c I art 1 (3) matters> accessed 25 July 2020
40 42
Universal Declaration of Human Rights 1948, art 2 The National Coalition for Gay and Lesbian
- Everyone is entitled to all the rights and freedoms set Equality v. The Minister of Justice 1999 (1) SA 6
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B. Transparency and openness of sexual respondents agree with the statement that the
identity and orientation in India government should revisit the existing laws
According to the survey of the LGBTQ+ for the protection of civil and constitutional
community, 41.7% admits that one of the rights of the LGBTQ+ community.
challenges faced while identifying
themselves as a part of the LGBTQ+ The draft submitted by the Law Commission
community was lack of Legal Acceptance. in 2016 provided for homosexual marriage &
A state’s stillness on the rights and existence live-in relationships, ruling out any kind of
of LGBTQ+ persons in many countries gender-based discrimination for marriage,
contravenes the principles of good adoption, inheritance.
governance and transparency. There are
enormous threats to amassing data relating to The Transgender Persons (Protection of
LGBT groups such as public health statistics, Rights) Act, 2019 was enacted to enable for
sexual identity, etc. In states with weak the protection of rights for transgender their
democratic organizations and weak welfare and other relevant schemes. Under
institutions, most of the marginalized and this, to lawfully sanction one’s transgender
stigmatized groups not only suffer from identity, the Act makes it compulsory for the
biased treatment from the governmental individual to apply for a ‘Transgender
entities but also have difficulties in gathering Certificate’, which will label their gender as
information on policies that are affecting transgender. Under new rules for acquiring
their lives. the ‘Certificate of Identity’, there is a
requirement of submitting a psychologist's
Legal norms and rules as enshrined in the report. Furthermore, a person who changes
human rights instruments should apply to their gender identity through surgery has to
LGBTQ+ persons also and governments acquire a ‘revised certificate’ issued by the
should be made accountable for the District Magistrate. The District Magistrate
observance of those rights. The right to has to judge the authenticity of the
participation is imperative and inextricably application, although they can submit proof
related to fundamental democratic principles. of their surgery for gender confirmation. The
Worthwhile participation is dependent on the rules make the procedure of gender
realization of several human rights. 43 reassignment and identification cumbersome
and intrusive. The rules are unclear on how
According to the survey for the Non- the accuracy or correctness will be judged.
LGBTQ+ persons, 93% of respondents think The inclusion of psychologists, medical
that there is a need for special laws to protect proofs, and district administrators go against
the rights and interests of the LGBTQ+ the right of “self-declaration” as recognized
community. Similarly, according to the under the ‘NALSA judgment’.44
survey for the LGBTQ+ community, 94% of

43
Department for Empowerment (Democracy, Human 79568ea24a80bda21/human-rights-of-lesbian-gay-
Rights and Gender Equality), ‘Human Rights for bisexual-and-transgender-persons-conducting-a-
Lesbian Gay, Bisexual and Transgender Persons’ dialogue_3327.pdf> accessed on 20 June 2020
(SIDA) 44
Shruti Jain, ‘Pride Month 2020: Evaluating the
<https://www.sida.se/contentassets/083aa1b914594f4 Transgender Persons Act, 2019’ (ORF, 2 July 2020),
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The LGBTQ+ community people have 1952, and Workmen’s Compensation Act,
limited rights and face many social 1923 are given only to those related by blood
difficulties that are unknown to the majority or marriage and are denied to the LGBTQ+
of Non-LGBTQ+ people. Even though the community people. 46
colonial law is repealed, there is no specific
law that protects the persons from the
LGBTQ+ Community from discrimination. D. Military
Following the survey data for the Non-
LGBTQ+ community, 85% of respondents
C. Workplace equality agree while 4% disagree with the statement
According to the survey for persons from the that people belonging to the LGBTQ+
LGBTQ+ community, 82.7% of respondents community are equally eligible to be in
have faced discrimination at their workplace. military service as other citizens from the
While 50% of them are facing a lack of job non-LGBTQ+ community.
opportunities. According to the survey for the
Non-LGBTQ+ community, 68% of In 2018, Ms. Jagdambika Pal from the
respondents disagree with the statement that Bharatiya Janata Party introduced a bill
an employer should have the right to decline seeking amendments in the Air Force Act,
any person from the LGBTQ+ community, a 1950 Army Act, 1950, and the Navy Act,
position on office because of their sexual 1957 so as to provide an equal opportunity to
orientation and gender identity. the LGBT community people to serve in the
armed forces.47After BSF, CRPF is ready to
Cases of termination of employment recruit transgender persons.
highlight the persisting discrimination on
gender identity & orientation. Back in the E. Marriage, adoption, and inheritance
year 1998, two women constables from According to the survey for the Non-
Madhya Pradesh Special Armed Forces were LGBTQ+ community, 73% of respondents
discharged from service because they support the statement that same-sex or
married each other. The ostensible grounds homosexual marriage should be legalized.
for discharge were unauthorized absence and However, 17% of respondents do not support
conduct of unbecoming public servants. the legalization of same-sex marriage,
However, none of the service rules define believing that it is unnatural or against the
homosexuality as misconduct. 45 tradition or a threat to survival. While 92.3%
of the respondents from the LGBTQ+
Furthermore, economic benefits like community think that same-sex marriage
Employment Provident Fund Scheme, should be legalized because the freedom of

<https://www.orfonline.org/expert-speak/pride- 47
‘Parliament winter session: Bills seek ban on non-
month-2020-68965/>accessed 16 July 2020 veg food at official events, rights to LGBT to serve in
45
Bina Fernandez, ‘Hum Jinsi - A Resource Book on armed forces’ The New Indian Express (New Delhi, 28
Lesbian, Gay & Bisexual Rights in India’ (1999) December 2018)
ICHRL 71 <https://www.newindianexpress.com/nation/2018/de
46
s. 2(g) Employment Provident Fund Scheme 1952 c/28/parliament-winter-session-bills-seek-ban-on-
(IN) and s. 2(d) Workmen’s Compensation Act, 1923 non-veg-food-at-official-events-rights-to-lgbt-to-
(IN) serv-1917748.amp> accessed 2 August 2020
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choice to marry is a species of the principle transgender and transgender and cis-gender
of equality and liberty and denying the same persons are being registered under the
is discriminatory. Special Marriage Act, 1954, the law
recognizes only persons of opposite genders
It is an undeniable fact that the initial focus in a romantic monogamous meeting to be
of the 2018 judgement was on worthy of protection.52
decriminalizing consensual sexual acts. But
this, however, is only the initial stage. It However, 5.8% of respondents think that
would require statutory recognition of long- same-sex marriage should not be legalized
term same-sex relationships, on par with because they believe that marriage is merely
heterosexual marriages. There are feasible an obligation and an important aspect of
aspects to seek social and legal recognition of human life can be enjoyed even without
same-sex unions. Certain legal perks such as marriage. With a similar mindset, the
succession, maintenance, and pension rights Uttarakhand High Court has acknowledged
are available only to married couples and not that though the parties living together are of
to same-sex couples. The courts have been same-sex and therefore, cannot enter into
48
playing a vital role in protecting them. Even wedlock, they still have the right to be in a
though same sex- marriage is still invalid in live-in relationship. 53 Though there is no
India but the Gurgaon Court in 2011 specific law protecting the parties in live-in
recognized the lesbian marriage.49 In April relationships, few legislations have been left
2019, the High Court of Madras recognized untouched for liberal interpretation by the
the right of transgender women to be married courts to prevent partners in live-in
under the Hindu Marriage Act, 1956.50 relationships from misusing it.54These
include the Code of Criminal Procedure,
Legislations such as the Special Marriage 1973,Domestic Violence Act, 200555, and
Act, 1954,51 although allows marriage
between two persons namely a male and a
female, has nowhere mentioned homosexual
marriage. Although marriages between a

48 53
ibid 10. Madhu Bala v. State of Uttarakhand 2020 SCC
49
Dr. S.A.K. Azad, Prafulla Kumar Nayak, ‘Same Sex OnLine Utt 276
marriages in India, United States of America, 54
Astha Saxena, ‘Live-In Relationship and Indian
European Union: A Comparative Analysis’ (2016) Judiciary’ (SCC Online blog, 23 January 2019)
vol. 3 Internal Journal for Academic Research 22 <scconline.com/blog/post/2019/01/23/live-in-
50
Arunkumar and Sreeja v. Inspector General of relationship-and-indian-judiciary/> accessed 6 August
Registration (2019) Writ Petition (MD) No.4125 of 2020
55
2019 and Writ Petition (MD)No.3220 of 2019 s.2(f) of the Domestic Violence Act, 2005 defines:
51
s.4(c)Special Marriage Act, 1954 (IN) Domestic relationship means a relationship between
52
Niharika Alva, ‘First Transgender Marriage two persons who live or have, at any point of time,
registered in Karnataka’ Times of India (New Delhi, lived together in a shared household, when they are
24 January 2018) related by consanguinity, marriage, or through a
<https://timesofindia.indiatimes.com/city/bengaluru/f relationship in the nature of marriage, adoption or are
irst-transgender-marriage-registered-in- family members living together as a joint family.
state/articleshow/62632252.cms> accessed 8 August
2020
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Evidence Act, 187256.57 In a case,58The to have vehement opposition and be delayed.
Supreme Court held that the right of a person In matters of inheritance, personal laws
to be in a live-in relationship comes within govern the succession rights of transgender
59
the ambit of the right to life. children. For this, the transgender children
need to identify themselves as either male or
The draft submitted for Uniform Civil Code female; this binary gender identity makes
to the Law Commission proposed for the discrimination based on sex (Art.15) as the
same-sex marriage defining marriage as “the Act does not talk about transgender. Being a
legal union as prescribed under this Act transgender is no ground for disqualification
between a man with a woman, a man with from the property.
another man, a woman with another woman,
a transgender with another transgender or a 87% of the respondents from the Non-
transgender with a man or a woman". LGBTQ+ community think that homosexual
Partnership/Live-In Relationship has been couples should have adoption rights. While
defined as “living together of a man with a 5% think that they should not be allowed to
woman, a man with another man, a woman adopt as it would weaken the institution of
with another woman a transgender with family and would affect the development of
another transgender or a transgender with a the child. Similarly, for adoption, the
man or a woman.” This provides that any two Uniform Civil Code draft proposes that
people who have been in partnership for more irrespective of couples being married or in a
than two years shall have the same rights and partnership or their sexual orientation, they
duties towards one another as a married should be allowed to adopt a child. And in the
couple. The registration of such a partnership matters of succession and inheritance, it says
shall be mandatory. 60
that upon the parents’ death, the child
If India were to adopt a uniform civil union (adopted or biological) is eligible to hold an
model, it would not only generate a need of equal share regardless of its sexual
enacting a new law governing civil unions orientation and gender. 61The Central
but also of amending the relevant legislation Adoption Resource Authority (CARA)
on adoption, succession, pensions, etc. so that guidelines for adoption has made it difficult
a partner in a civil union is given the for the unmarried couples and single persons
equivalent status as a spouse and is to adopt. Similarly, the Surrogacy
considered to be a ‘family’. However, (Regulation) Bill, 2020, excludes persons
legislation, especially on such issues is likely

56
s.114 of the Evidence Act, 1872 - Where a man and Indian News (New Delhi, 13 October 2017)
a lady live respectively for a long spell of time as a <http://www.catchnews.com/india-news/a-new-ucc-
couple then there would be an assumption of marriage. for-a-new-india-progressive-draft-ucc-allows-for-
57
Ministry of Home Affairs, Committee on Reforms of same-sex-marriages-85386.html> accessed 15 August
Criminal Justice System, 2020
<https://indialawyers.files.wordpress.com/2009/12/cr 61
‘Allow gay marriages, give couples police protection
iminal_justice_system.pdf>181-194. if needed, suggests draft Uniform Civil Code’
58
S. Khushboo v. Kanniammal (2010) 5 S.C.C. 600 (SCROLL, 13 October 2017)
59
Art. 21 of the Constitution of India 1950 (IN) <https://scroll.in/latest/853850/allow-gay-marriages-
60
Anurag Dey, ‘A New UCC for New India? give-couples-police-protection-if-needed-suggests-
Progressive draft allows for same sex marriages’ draft-uniform-civil-code> accessed 16 July 2020
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from the LGBTQ+ community to opt for the homicide of LGBT persons. In February
surrogacy. 62 2014, a man was murdered by his former
partner who was afraid that their relationship
F. Abuse and sexual harassment would become known to others.64
It has been found in the survey (for LGBTQ+
community) that 13.5% of respondents have The approach of courts has been inconsistent
never faced harassment and abuse. However, when it comes to issues of violence being
69.2% of the people have faced verbal faced by LGBTQ+ persons. Under ICCPR
abuse/harassment, 55.8% have faced and the Convention Against Torture, the
physical abuse/harassment and 34.6% of State is duty-bound to stop, prevent, and
people have faced online abuse/harassment. penalize family members that commit torture
In addition to this, few people have faced or other ill-treatment and is further obligated
both verbal as well as physical to protect stigmatized individuals (including
abuse/harassment. About 38% of the non- the LGBTQ+ persons) from torture and ill-
LGBTQ+ respondents were unaware of such treatment.65
incidents of abuse and harassment faced by
the LGBTQ+ community. It is usually very difficult to register a
criminal complaint against family members
While the Constitution of India recognizes because victims are unwilling to file criminal
equality before the law and the equal complaints due to pressure from family & are
protection of laws, the gendering of laws is usually told by the police to “settle”.
the rule and, in many instances, even Moreover, criminal laws on rape and sexual
expedient.63 harassment recognize, only women as
potential victims of sexual crimes.66
Reports suggest that LGBTQ+ persons in According to the law, transgender persons
India are subjected to blackmail. Country with a government-approved female identity
Reports for 2014 reveal that LGBT persons document can access legal remedies under
have experienced physical attacks as well as criminal law67. Justice Verma Committee, a
rape. Sources report on multiple instances of
62
Aniruddha Ghosal, ‘The New Surrogacy Bill won’t 65
ICJ, ‘Unnatural Offences: Obstacles to Justice in
let Live-In and LGBTQ Couples Become Parents’ India Based on Sexual Orientation and Gender
NEWS (New Delhi, 18 December 2018) Identity’(International Commission of Jurists, 2017)
<https://www.news18.com/news/india/the-new- <https://www.icj.org/wp-
surrogacy-bill-wont-let-live-in-and-lgbtq-couples- content/uploads/2017/02/India-SOGI-report-
become-parents-1979055.html>accessed 5 June 2020 Publications-Reports-Thematic-report-2017-
63
The gendering of laws refers to the law covering ENG.pdf> accessed on 18 July 2020.
66
only certain gender identities, particularly women, s.354B, 354C, 354D, 375, 376, 376A, 376B, 376C,
within its scope. For instance, rape laws recognize 376D, 509, IPC (IN)
only (cis) women as victims of the offence. Gendered 67
A. Chatterjee, ‘Loopholes in third gender law aid 4
drafting of laws on the other hand are a form of rapists to get bail’ Pune Mirror (Pune, 8 August 2017)
drafting where all nouns and pronouns used in the <https://punemirror.indiatimes.com/pune/civic/looph
drafting of laws are male, thus presuming that the oles-in-third-gender-law-aid-4-rapists-to-get-
norm of humanity is male. bail/articleshow/59960595.cms> ; PTI, ‘Uttarakhand
64
PTI, "Nine-Month-Old Murder Mystery Solved, HC Seeks Reply from Police on Transgender's Plea
Police Claim” Press Trust of India (26 February 2014) Against Refusal of FIR On Rape Complaint’ (Live
Law, 9 January, 2019) <https://www.livelaw.in/news-
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government established advisory body and There is a need for revision of existing laws
NGOs, have both advocated for gender- for protecting the interests of the LGBTQ+
neutral laws for victims of sexual community, at the same time, it will not be
68
violence. These serve as helpful examples feasible to amend every law. Hence, special
of initiatives taken by lawyers and judges in laws should be enacted for a limited period
69
favor of LGBTQ+ persons. until the mainstream society fully accepts
them.
Lesbian, bisexual, cis-gendered women and
transgender persons with a government- VII. CONCLUSION
approved female identity document can also By looking into history, it is evident that the
approach civil remedies under the domestic Indians are not unaware of the existence of
violence law, the Protection of Women the LGBTQ+ people. However, most of the
from Domestic Violence Act, 2005 people are inhospitable towards them. It is
(PWDVA).70 The need for free and informed explicitly clear from the survey that a lot of
consent of the patient before conducting people are willing to accept the people of the
medical treatment is set out by the Supreme LGBTQ+ community as a part of society.
Court and High Court of Karnataka as well in However, due to the lack of interaction
the Indian Medical Council Regulations of between both the communities, there is a
2002, which lays down the code of ethics to difference of opinion about the changing
which medical professionals must comply outlook of the society towards the LGBTQ+
71
with. Community. There is a lack of government
intervention & initiation of progressive
Under the domestic Indian Law, forced measures for the furtherance of the
detention in one’s home or a medical center community’s cause. From considering the
is a violation of one’s right to life and liberty extent of legal acceptance it is observed that
72
guaranteed under Article 21 . Moreover, if the present laws and statutes are not effective
committed, it amounts to offenses of enough to protect and safeguard the rights
wrongful confinement and restraint as per the and interests of the community.
IPC, which carries sentences of up to three
years under special circumstances.73 There hasn’t been much improvement in the
situation of the LGBTQ+ Community and

updates/uttarakhand-hc-police-transgenders-plea- ambit, covering a broad range of abuses or threats of

refusal-fir-rapecomplaint-141982> accessed 18 July abuse – physical, sexual, verbal, economic and
2020 emotional. PWDVA, s.2&3, perpetrators of domestic
68
The Justice Verma Committee was set up to violence may include any person the female victim is
recommend amendments to the Indian criminal law to related to by “consanguinity, marriage, or through a
the Government in 2012, urged that sexual offence relationship in the nature of marriage, adoption or are
laws be gender-neutral with respect to victims. family members living together as a joint family.”
71
Justice Verma Committee, Report of the Committee on Dr. Ramcharan Thiagarajan Facs v. Medical
Amendments to Criminal Law (2013) pt II para 3 Council of India W.P. No. 11207/2013, paras. 4(g)-8
69
Anamika v. Union of India W.P. (Crl) 2537/2018; High Court of Karnataka and Samira Kohli v. Dr.
IPC, s.354A.High Court of Delhi Prabha Manchanda & anr. Appeal (C) 1949/2004,
70
PWDVA is a female victim-centered federal civil paras. 14-19 Supreme Court of India
72
law which provides a gamut of civil remedies to art.21 of Constitution of India, 1950 (IN)
73
women victims of domestic violence. It has a wide s. 339-348 IPC (IN)
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 SUPREMO AMICUS

VOLUME 21 ISSN 2456-9704

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society needs to be educated and made aware
of gender identities through various
sensitization programs and campaigns. The
words such as ‘Gay’, ‘Hinjara’, ‘Chakka’
etc., should not be used in a negative
connotation as portrayed in highly influential
platforms such as movies and social media.
After the 2018 Judgement of
decriminalization of homosexuality, the next
major step expected from the judiciary is to
legalize same-sex marriage and grant
adoption and surrogacy rights to homosexual
couples. To conclude, although the survey
data suggests that the majority of the non-
LGBTQ+ people are supportive of the
legalization of same-sex marriage and child
adoption by homosexual couples but in
reality, there is still a long way to go to
achieve these basic rights.

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PIF 6.242 www.supremoamicus.org