Imagine living in a world where you have to hide who you are and who you love and have to face rejection, harassment, and violence for being yourself. Deciding to overcome this struggle and coming out to the public can cause social exclusion, even from one’s own family. This is the reality for many people who belong to the LGBTQIA+ community in many countries across the world. They continuously see basic human rights denied to them and suffer constantly from the risk of social exclusion because of their identity.
This community of sexual and gender minorities, through long struggles and movements, has been officially recognized for its rights in several nations. However, in many parts of the world including India, the LGBTQIA+ community still faces various forms of discrimination and violence for their identity and who they love. The issues faced by this community are not only personal but also social and political. They are human rights issues that affect the well-being and dignity of millions of people around the world. In light of the national attention that the community is receiving in legal and media arenas, there is a need to understand this issue better.
Sex, Gender and Sexuality
This community is considered a minority based on their sex, gender and sexuality. Sex refers to the biological, physical, and genetic differences between males and females, such as their reproductive organs and chromosomes. Gender on the other hand refers to the personal and social identity, expression, and role of a person, such as whether they identify as a man or a woman.
Some people’s sex and gender match, while others do not. For those who identify as the same gender as their assigned sex at birth, they can be called cisgender whereas those who do not are referred to as transgender.
Sexuality or sexual orientation refers to whom a person is attracted to. In umbrella terms, those who are attracted to the same sex are termed homosexuals and those who are attracted to the opposite sex are termed heterosexuals. People who identify outside of the traditional notion of male and female, or cisgender and heterosexual are included in the LGBTQIA+ community.
When people identify as gay, lesbian or bisexual, they are referring to their sexuality, those who identify as transmen, trans women, non-binary etc are referring to their gender identity and when terms male, female, intersex etc. are used, they are referring to their sex.
LGBTQIA+ as an Acronym
LGBTQIA+ is an acronym that stands for lesbian, gay, bisexual, transgender, queer, intersex, asexual, and other identities and orientations that are not included in the mainstream categories of gender and sexuality. It is a term that aims to be more inclusive and respectful of the diversity and fluidity of human identity and expression. It also represents a social and political movement that advocates for the rights and dignity of people who do not conform to the norms and expectations of society based on their gender and sexuality. A brief explanation of what each letter in LGBTQIA+ means:
- L stands for Lesbian, which is a woman who is attracted to other women.
- G stands for Gay, which is a man who is attracted to other men, or a general term for people who are attracted to the same gender as themselves.
- B stands for Bisexual, which is a person who is attracted to both men and women or more than one gender.
- T stands for Transgender, which is a person whose gender identity does not match the sex they were assigned at birth. Transmen are those who have female as their assigned sex at birth, later identified as a man and trans woman is someone who had male as their assigned sex at birth, later identified as a woman. Transgender people may or may not choose to undergo medical or social transition to align their appearance and expression with their gender identity.
- Q stands for Queer, which is an umbrella term for people who do not identify with the binary categories of male and female, or heterosexual and homosexual. Queer can also be a political term that challenges the dominant norms and structures of society. Some people may use queer to say that they are not heterosexual or cis-gender.
- I stands for Intersex, which is a person who is born with variations in their sex characteristics, such as chromosomes, hormones, genitals or reproductive organs. It is different from transgender, as transgender refers to one’s gender identity while Intersex refers to the sex or the biological characteristics of a person. They are not mutually exclusive and often overlap. Intersex people may or may not be considered transgender in India, depending on their gender identity and expression
- A stands for Asexual, which is a person who does not experience sexual attraction to anyone, or has a low or absent interest in sexual activity. Asexual people may or may not have romantic attraction or relationships with others.
- + stands for the plus sign, which represents the other identities and orientations that are not covered by the previous letters, such as pansexual, demisexual, agender, bigender, genderfluid, genderqueer, non-binary, polyamorous, etc.
LGBTQIA+ rights and inclusion
Human rights are the basic rights and freedoms that belong to every person, regardless of their sexual orientation, gender identity, or sex characteristics. The right to life, right to equality and non-discrimination, right to privacy, right to health, right to work, right to family and right to social inclusion are some of the rights mentioned under the Universal Declaration of Human Rights. These are just some of the human rights that are necessary for the LGBTQIA+ community, but they are not exhaustive. However, due to social stigma, the LGBTQIA+ community is often denied these rights and is isolated from society by facing discrimination and violence.
All human rights are interrelated, indivisible, and universal, and they apply to everyone without exception. The violations of their human rights can also have negative impacts on their social and economic inclusion. Therefore, it is essential that they have these rights and be included in all spheres of society.
A brief overview of the history of LGBTQIA+ people and their rights
The history of the LGBTQIA+ community in the world dates back to the first recorded instances of same-sex love and sexuality in ancient civilizations, such as China, Greece, Rome, India, Egypt, Mesopotamia, and others. In many of these cultures, homosexuality and transgender identity were not seen as abnormal or sinful, but rather as natural variations of human expression. Some of these cultures also recognized and respected a third gender or a spectrum of genders, such as the Hijras in India, the Kinnars in Nepal, the Two-spirits in Native American tribes, the Mahu in Hawaii, the Fa’afafine in Samoa, and others. Some of these cultures also associated homosexuality and transgender identity with various deities and religious rituals, such as the goddesses Inanna and Ishtar in Mesopotamia, the god Apollo and his lovers in Greece, the god Shiva and his half-female form Ardhanarishvara in India, and others.
However, in other parts of the world, their history also involves centuries of persecution and oppression by various religious, political, and medical authorities that impose their views and values on gender and sexuality. Some of these authorities condemned homosexuality and transgender identity as unnatural, immoral, sinful, criminal, or pathological.
In recent decades, it has been seen that the authorities have subjected LGBTQIA+ people to discrimination, violence, torture, imprisonment, execution, conversion therapy, or forced sterilization. Attempts have also been made to erase or distort the history and culture of LGBTQIA+ people by censoring or destroying their records, artefacts, literature, art, and monuments.
Driving from these challenges and struggles, the history of this community involves resistance by various individuals and groups who are fighting for their identity and rights. Some of these individuals and groups formed their own communities, networks, literature, and art, to support each other and fight for their causes. These actions have inspired other social movements and cultural changes that challenged the dominant norms and structures of society.
Countries where LGBTQIA+ rights are well-protected
LGBTQIA+ rights and protections vary greatly by country or jurisdiction. Some countries are more accepting and supportive of LGBTQIA+ people, while others are more hostile and oppressive. The social, cultural and legal background of that country greatly affects this inclusivity. There are different ways to measure and compare the level of LGBTQIA+ rights and inclusion across the world, such as legal recognition, social acceptance, and safety. Some of the best sources that can be used to measure this are three reputable indices: the Global Acceptance Index (GAI), the Equaldex Equality Index (EEI), and the LGBTQIA+ Travel Safety Index (TSI) (Enclosed in Annexure I). Countries that rank first on these metrics are:
- Canada: Canada is ranked first in the Travel Safety Index (TSI), which measures the level of safety for LGBTQIA+ travellers based on various factors such as legal protection, social attitudes, violence, and morality laws. Canada also has a high level of social acceptance and safety for LGBTQIA+ people.
- Iceland: Iceland is ranked first in the Global Acceptance Index (GAI), which measures the level of social acceptance of LGBTQIA+ people based on surveys and the Travel Safety Index (TSI) . Iceland also has legal recognition of same-sex marriage, adoption, and anti-discrimination laws
Other countries that have high scores in these metrics are Norway, Netherlands, Denmark, Uruguay, Andorra, Australia, Germany, Malta, Portugal, the United Kingdom, Belgium, Spain, France, and New Zealand.
Two more categories that can be considered to understand the inclusivity of the countries are marriage equality and laws for preferred gender identity for transgender people, with or without gender affirmation surgery. Gender-affirmation surgery (GAS) or Gender reassignment surgery (GRS), is a surgical procedure, or series of procedures, that alters a person’s physical appearance and sexual characteristics to resemble those associated with their identified gender. Some countries have more progressive and supportive laws for gender-affirming surgery and changing gender identity than others, while some still criminalise or restrict it. Some of the top-ranking countries according to the Global Trans Rights Index, which measures the level of legal equality for transgenders based on various indicators such as employment opportunity, discrimination, legal identity laws, and hate crime laws are:
- Malta: Malta was the first country in Europe to ban conversion therapy and protect intersex people from unnecessary medical interventions. It also allows people to change their legal gender based on self-determination, without requiring any medical diagnosis or treatment.
- Portugal: Portugal is one of the most progressive countries in the world when it comes to trans rights. Portugal has wide-ranging anti-discrimination laws, constitutional protections for LGBTQ+ people, hate crime penalties and allows trans people to change their legal gender without surgery. Portugal also recognizes same-sex marriage and adoption by same-sex couples.
- Spain: Spain passed a law in 2022 that allows people to change their legal gender based on self-determination, without requiring any medical diagnosis or treatment. It also provides public funding for gender-affirming surgery and hormone therapy.
- Denmark: Denmark was the first country in the world to remove transgender identity from the list of mental disorders in 2017. It also allows people to change their legal gender based on self-determination, without requiring any medical diagnosis or treatment.
- Belgium: Despite having conservative opposition against the transgender community, Belgium has comprehensive anti-discrimination laws, constitutional protections for LGBTQIA+ people, hate crime penalties, and allows trans people to change their legal gender without surgery.
- Nepal: Nepal has a lower rank in the Global Trans Rights Index compared to other Western countries. However, it was the first country in Asia to recognize a third gender category in its constitution and census in 2015. It also allows people to change their legal gender based on self-determination, without requiring any medical diagnosis or treatment.
According to the Human Rights Campaign Foundation, there are currently 34 countries where same-sex marriage is legal (list provided in Annexure II). Some of these countries legalized same-sex marriage through legislation, while others did so through court decisions.
Countries where LGBTQIA+ people still face significant discrimination and persecution
People from the LGBTQIA+ community deserve the same human rights and dignity as everyone else, but unfortunately, they still face many challenges and dangers in many parts of the world. According to the Human Dignity Trust, there are 65 countries (list enclosed in Annexure III) that criminalise private, consensual, same-sex sexual activity. Some of these countries impose harsh penalties, such as imprisonment, flogging, or even death. According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), there are 12 countries where the death penalty is possible or implemented for same-sex relations(list provided in Annexure IV).
According to the three reputable indices related to LGBTQIA+ inclusion, the Global Acceptance Index (GAI), the Equaldex Equality Index (EEI), and the LGBTQIA+ Travel Safety Index (TSI). The lowest-ranking countries where the rights of the community are completely neglected are:
- Afghanistan: According to the Equaldex Equality Index, Afghanistan has the worst conditions for the community to survive. Even identifying as a member of the community can get capital punishment.
- Brunei: It is ranked lowest in the Travel Safety Index. In 2019 Brunei passed a penal code that made homosexual acts punishable by death by stoning.
- Zimbabwe: Zimbabwe is ranked the lowest in the Global Acceptance Index, with one of the worst rules to protect the rights of the members of the community.
Capital punishment is not the only injustice that the community is facing. Often, they have to struggle for their human rights as well. There are many other countries where LGBTQIA+ rights are not respected or protected, and where LGBTQIA+ people live in fear and danger.
Notable social and legal battles for LGBTQIA+ rights around the world
In response to centuries of persecution by church, state, and medical authorities the social movements and legal battles were started by this community in the 1870s. The leaders and legal authorities have struggled to address the rights and identity issues of the LGBTQIA+ community in these 150 years.
Social Movements in history for the rights of the LGBTQIA+ community
The rainbow flag representing the LGBTQIA+ community | Photo Credit: Flickr archives
There are many such movements in the history of LGBTQIA+ struggles around the world, but here are some of the most notable ones:
- The Stonewall Riots: These were a series of protests and confrontations between LGBTQIA+ individuals and law enforcement following a police raid on the Stonewall Inn, a gay bar in New York City, in June 1969. These events are widely regarded as the spark that ignited the modern LGBTQIA+ rights movement, not only in the United States but also worldwide.
- The AIDS Crisis: The 1980s and 1990s saw the emergence of a global HIV/AIDS pandemic that disproportionately affected gay and bisexual men, along with other marginalised communities. This crisis prompted extensive activism and advocacy for improved healthcare, research, prevention, and the challenging of stigmatisation and discrimination against individuals living with HIV/AIDS.
- Pride Parades: Annual Pride parades have become a symbol of LGBTQIA+ pride, identity, and community solidarity. The inaugural Pride parade occurred in New York City in June 1970, commemorating the Stonewall Riots. Over the years, these parades have grown in scale and visibility, taking place in cities worldwide.
- The Marriage Equality Movement: This global campaign seeks legal recognition of same-sex marriage as a fundamental human right. Marriage wasn’t a request for the LGBTQIA+ movement until the Second National March on Washington for Lesbian and Gay Rights in Washington in 1987. The Netherlands became the first country to legalize same-sex marriage in 2001, with more than 30 nations subsequently following suit, including Canada, Spain, South Africa, Argentina, France, Brazil, Ireland, Taiwan, and Costa Rica.
- Transgender Rights Movement: This movement seeks social, legal, and medical protection for transgender and non-binary individuals. Key concerns encompass access to gender-affirming healthcare, identity documents, education, employment, housing, and public facilities, as well as the combatting of violence, harassment, and discrimination against transgender individuals. Milestones include Roberta Cowell’s historic legal gender change in Britain in 1951, Althea Garrison becoming the first openly transgender person elected to public office in the United States in 1992, and Anohni won an Academy Award in 2016 as the first transgender person to do so.
Looking into history, we can see that the legal battles towards equality and acceptance for the LGBTQIA+ community started much later.
Legal battles for LGBTQIA+ rights around the world
For social and economic inclusion, the leaders identified the need for change in the legal structure. Most legal cases and petitions were filed only after the 2000s. Some of the notable legal battles for LGBTQIA+ rights around the world are:
- Naz Foundation v. Government of NCT of Delhi (2009): This was a landmark judgment by the Delhi High Court in India, which decriminalised consensual homosexual acts between adults by reading down Section 377 of the Indian Penal Code. The court held that Section 377 violated the fundamental rights to equality, privacy, dignity, and expression of LGBTQIA+ people. This judgement was later overturned by the Supreme Court of India in 2013 but was restored in 2018 by another Supreme Court judgement.
- Obergefell v. Hodges (2015): This was a historic ruling by the U.S. Supreme Court that legalized same-sex marriage across all 50 states and territories of the United States. The court ruled that the Constitution grants same-sex couples the right to marry and that states cannot deny them this right or refuse to recognize their marriages performed elsewhere. This ruling effectively ended the legal battle for marriage equality in the U.S., which had been going on for decades.
- National Legal Services Authority v. Union of India (2014): This was a groundbreaking judgement by the Supreme Court of India that recognized the legal status and rights of transgender people in India. The court declared that transgender people have the right to self-identify their gender as male, female, or third gender, without any medical or judicial intervention. The court also directed the government to provide them with equal access to education, health care, employment, and social welfare schemes.
- Taiwan’s Constitutional Court Ruling (2017): This was a historic decision by Taiwan’s Constitutional Court that declared that same-sex couples have the right to marry under the Constitution. The court gave the parliament two years to amend or enact laws to legalize same-sex marriage, or else it would become effective automatically. In 2019, Taiwan became the first country in Asia to legalize same-sex marriage after the parliament passed a bill in accordance with the court’s ruling.
- X v. Colombia (2020): This was a landmark ruling by the Inter-American Court of Human Rights that recognized the right of transgender people to change their name and gender marker on their identity documents without any medical or judicial requirements. The court ordered Colombia to amend its laws and procedures to allow transgender people to access this right in a simple, quick, and free manner. The court also established that this right is protected by the American Convention on Human Rights, which applies to all member states of the Organization of American States.
Positive outcomes of the social movements and legal battles
These movements and legal battles helped create a change in the society for inclusion of the LGBTQIA+ community in the world. These movements also paved the way for several significant events or milestones in the history of the LGBTQIA+ community in the world.
Some of the notable outcomes are:
- The rainbow flag became a symbol of LGBT pride and social movements. It was popularised by San Francisco artist Gilbert Baker in 1978. He created the flag for the Gay Freedom Day Parade that year. The flag originally had eight colours, but was later reduced to six for easy production.
- The decriminalisation of homosexuality by various countries around the world since 1961, starting with Illinois in 1961, followed by Denmark in 1933, England and Wales in 1967, Canada in 1969, France in 1982, South Africa in 1998, and India in 2018, among others.
- The recognition of transgender rights by various countries around the world since 1972, starting with Sweden in 1972, followed by Germany in 1980, the United Kingdom in 2004, Argentina in 2012, India in 2014, and the United States in 2016, among others.
- The emergence of queer theory and queer studies as academic fields and disciplines since the 1990s at the University of California, Berkeley and Hampshire College in the USA. It grew to Goldsmiths, University of London, University of Toronto by the early 2000s. It challenged the binary and essentialist views of gender and sexuality and explored the intersections of identity, power, culture, and politics.
- The development of LGBTQIA+ media and culture since the 1970s includes various forms of literature, art, music, film, television, theatre, comedy, fashion, sports, or activism that represent or celebrate the diversity and creativity of its people.
The acceptance of the LGBTQIA+ community in the world is evolving and dynamic reflecting the diversity and complexity of the human experience. The legal and social movements of this community in the world are not done and are still continued in different parts of the world including India.
LGBTQIA+ in India
Khajuraho temple sculptures depicting homosexuality | Photo Credit: Wikimedia Archives
The LGBTQIA+ community has a long recorded history in ancient India due to the prevalence of accepting spiritual traditions and cultures across the subcontinent. The ancient religions of India do not have explicit morals condemning homosexuality or transsexuality and have taken various positions on the topic, ranging from containing positive descriptions of homosexual characters, acts and themes in their texts to being neutral or antagonistic towards it. There were many isolated instances of temples hosting homosexual unions or marriages, especially of women, in ancient India.
Homosexuality faced more challenges and restrictions during the outside invasions and rule of India. The Sultanate rulers imposed harsh penalties for sodomy, such as death by stoning or burning. The British colonists introduced Section 377 of the Indian Penal Code in 1860, which criminalised any sexual act “against the order of nature”.
Although, homosexuality was accepted and celebrated in many ancient religious texts, such as the Rigveda, the Kama Sutra, and the Jataka tales, most of the visibility has been gotten by the Transgendender community in India. Transgender people, or those who do not conform to the binary categories of male and female, have been recognized and respected in various forms of ancient Indian mythology, literature, art and culture.
Transgenders in India
Transgender people have been part of Indian society for centuries and were considered as a third gender or tritiya-prakriti in Vedic and Puranic texts. They were also associated with various deities and religious rituals, such as Ardhanarishvara (the half-male, half-female form of Shiva), Bahuchara Mata (the goddess of fertility and patron of hijras), Aravan (the son of Arjuna who married a group of hijras before his sacrifice in the Mahabharata), and Yellamma (the goddess of the jogappas, who are male devotees who dress and act as women). Transgender people were also depicted in various forms of art and literature, such as the sculptures of Khajuraho, the paintings of Mughal courts, the poetry of Amir Khusrau and the stories of Panchatantra.
India’s Hijra community | Photo Credit: Flickr Archives
The transgenders have also played important roles in the social and political spheres of Indian history. They were often employed as royal servants, guards, messengers, spies, entertainers, dancers and musicians in various kingdoms and empires. At times, they reached influential positions through brothels, festivals, and temples that grew in size and power. One important aspect to notice here is that trans women were the ones who got this visibility and acceptance as opposed to the history of transmen, which is silent in India. It is hard to find a trans woman specific culturally rich community anywhere else in the world.
A brief overview of the history of LGBTQIA+ rights in India
Despite the rich history, the status and rights of transgenders and homosexual people in India started its decline after the Sultanate period. In the Mughal period, there is some literature and sculptures that mention homosexuality. Baburnama, the memoir of Babur, the Mugal leader has described his attraction towards a boy in Kabul. Sufi Saint Bulleh Shah has explicitly described the fluidity of sexuality in his poems.
During the colonial period, the conditions of sexual and gender minorities got worse and took a legal form. They faced discrimination, oppression and violence from the British authorities and society. The British imposed their Victorian morality and legal system on India, which criminalised homosexuality and transgender identity under Section 377 of the Indian Penal Code. They also enacted the Criminal Tribes Act of 1871, which labelled hijras as a “criminal tribe” and subjected them to surveillance, registration, segregation and forced labour. Many transgender people were arrested, tortured, castrated, sterilised or killed by the colonial police and courts. Homosexual people went into hiding and those who came out to disclose their identity were often socially excluded, arrested or imprisoned.
The situation of the community did not improve much after independence, as they continued to face stigma, marginalisation and exclusion from mainstream society. Transgenders were denied access to education, employment, health care, housing and legal protection. They were also harassed, abused and exploited by the police, criminals, politicians and religious groups. Many transgender people had to resort to begging, sex work or performing at weddings and festivals for their survival. They also faced internal conflicts and divisions within their own communities over issues such as identity, leadership, hierarchy and tradition.
Legal Battles of the LGBTQIA+ Community in India
In India, the legal recognition and protection of the rights of gender and sexual minorities have been evolving over the years, with some landmark judgments and legislation. These legislations are a complex and sensitive issue that has legal, social, and personal implications. Most of these cases were centred around Section 377 of the Indian Penal Code (IPC), which was the law that criminalises homosexuality in India.
Section 377 of the Indian Penal Code (IPC) is a law that was introduced by the British colonial authorities in India in 1861, which criminalised sexual activities “against the order of nature”. It was taken after England’s Buggery Act of 1533, which outlawed “unnatural sexual acts.” Many LGBTQIA+ people faced stigma, violence, and harassment because of this law. The punishment ranged from fine to life imprisonment. Several individuals and organisations challenged this law in various courts, arguing that it violated the fundamental rights of LGBTQIA+ people.
This law is criticised on the basis of four Fundamental Rights:
- Article 14 that guarantees that every individual is equal before the law and is entitled to equal protection of the law, irrespective of factors like race, caste, religion, gender, or place of birth.
- Article 15 that complements Article 14 by prohibiting discrimination based on these criteria and allowing the state to make special provisions for the advancement of socially and educationally disadvantaged groups or for the benefit of women and children.
- Article 19 that guarantees six key freedoms for all citizens, including freedom of speech and expression, freedom of assembly, freedom of association, freedom of movement, freedom of residence and settlement, and freedom of profession. However, these freedoms are subject to reasonable restrictions imposed by the state in the interest of public order, morality, security, and other valid concerns.
- Article 21 that safeguards the right to life and personal liberty of every individual, ensuring that no one can be deprived of these rights except through procedures established by law. Additionally, it encompasses various other rights crucial for a dignified and meaningful life, such as the right to privacy, the right to health, and the right to education, among others.
The decriminalisation of homosexuality under Section 377 of the Indian Penal Code
In India, homosexuality has been a subject of legal, social, and religious debate for decades. The decriminalisation of homosexuality in India in section 377 of the Indian Penal Code was a long and hard-fought legal battle that involved multiple petitions, judgments, and appeals.
The initial petition was filed in 1994 by the AIDS Bhedbhav Virodhi Andolan (ABVA), a group of activists focused on HIV/AIDS issues. This petition was dismissed by the Delhi High Court in 1998.
The second petition was filed in 2001 by the Naz Foundation, a non-governmental organisation offering health and support services to LGBTQIA+ individuals. While this petition faced dismissal by the Delhi High Court in 2004, it was later reinstated by the Supreme Court in 2006. This is considered the first major challenge to section 377 of the Indian Penal Code (IPC).
Naz Foundation v Government of NCT of India, 2009
The Naz Foundation case is a landmark judgement by the Delhi High Court in 2009, which decriminalised consensual homosexual sex between adults in India.
The case was filed by the Naz Foundation (India) Trust challenging the constitutionality of Section 377 on the basis that it violated fundamental rights such as dignity, privacy, equality, and non-discrimination, as enshrined in the Indian Constitution, as reinstated by the Articles 14, Article 19 and Article 21.
The Delhi High Court accepted the petition and held that Section 377 was unconstitutional to the extent that it criminalised consensual sex between adults of the same sex. The court reasoned that sexual orientation is an innate and permanent aspect of one’s identity and that criminalising it would amount to denying one’s right to life and liberty. The court also noted that Section 377 hindered public health efforts to prevent and treat HIV/AIDS, as it drove LGBTQIA+ individuals underground, making them vulnerable to stigma, violence, and exploitation.
The judgement was hailed as a milestone for human rights and social justice in India and inspired many other movements and campaigns for LGBTQIA+ rights across the country and the world. However, it also faced opposition from religious and conservative groups, who appealed against it in the Supreme Court of India.
Transgender Activist, Akkai Padmashali celebrating Bangalore Pride March| Photo Credit: Flickr Archives
Suresh Kumar Koushal v. Naz Foundation, 2013
Suresh Kumar Koushal v. Naz Foundation in 2013, was a case that challenged the 2009 decision of the Delhi High Court decriminalising Section 377. The Naz Foundation argued that Section 377 of the Indian Penal Code violated the right to privacy, and the Supreme Court acknowledged the importance of this right. The Court recognised that Section 377 had been misused against the LGBTQIA+ community, leading to privacy breaches, harassment, and blackmail. Yet, the Court argued that Section 377 itself didn’t endorse such mistreatment. In 2013, the Supreme Court overturned the Delhi High Court’s verdict and reinstated Section 377, stating that it was a matter for the Parliament to decide and that the proportion of LGBTQIA+ people in India is “miniscule”.
This decision sparked widespread protests and criticism from LGBTQIA+ activists, human rights groups, celebrities, politicians, and international organisations. Many petitions were filed in the Supreme Court, seeking a review of the judgement. In 2016, the Supreme Court agreed to refer the matter to a larger bench of five judges for reconsideration.
Navtej Singh Johar v. Union of India 2018
This case was filed as an appeal against the Supreme Court judgement in 2013 in Suresh Kumar Koushal v. Naz Foundation case. The petitioners, members of the LGBTQIA+ community, argued that Section 377 infringed upon their fundamental rights, such as equality, dignity, privacy, and expression.
Petitioners contended that sexual orientation is natural, not an illness, and criminalising it violates constitutional rights. They argued that LGBTQIA+ individuals make up a significant part of the population and deserve recognition and protection. Section 377, rooted in Victorian-era morals, had led to discrimination and abuse against the LGBTQIA+ community, violating their fundamental rights. On the respondent’s side, concerns were raised about family values, potential misuse, and health risks. They argued that the cultural diversity of India should be considered, and the decriminalisation of homosexuality in Section 377 could infringe on religious freedom. The respondents suggested that clarifications could be added to the law to target malicious intent rather than consensual acts.
In the judgement, the Supreme Court upheld the rights of the LGBTQIA+ community. It recognised that they have a right to privacy, which includes personal intimacy. Section 377 curtailed their personal choices and dignity, violating their right to privacy under Article 21 of the Indian Constitution. The Court found that the section was discriminatory, redundant, and unconstitutional, violating Articles 14, Article 15, Article 19, and Article 21. Therefore, the court struck down the parts of section 377 of the Indian Penal Code that criminalised homosexuality in India.
Google honouring decriminalisation of Section 377 | Photo Credit: Google Arts and Culture Archives
The judgement was celebrated by LGBTQIA+ activists, allies and supporters as a historic victory for human rights and social justice in India. The judgement however did not grant legal recognition or protection to same-sex marriages, civil unions, or adoption rights for the LGBTQIA+ community in India. This ruling resulted from four separate but concurring opinions by a five-judge Supreme Court bench, drawing on a range of legal, constitutional, scientific, philosophical, and literary sources. It also referred to the previous rulings by the Supreme Court and Delhi High Court on this issue.
The Ongoing Struggle for Equality and Inclusion beyond decriminalisation
After the 2018 verdict by the Supreme Court that decriminalised homosexuality, the next fight was towards achieving other human rights and civil rights for sexual and gender minorities. It included the right to family, right to participation, right to health, right to work etc which are some of the basic human rights according to the Universal Declaration of Human Rights. It meant that the people from this community still had no right to marry, adopt, represent etc in India. The social stigma pushed them further away from getting education and employment. This led to other petitions being filed to avail these rights for homosexuals in India. A number of such petitions were taken up by the Supreme Court in Abhijit Iyer Mitra and Others. vs Union of India and Others in 2021
Abhijit Iyer Mitra and Ors. vs Union of India and Others, 2021
It was a group of writ petitions filed by LGBTQIA+ activists, journalists and lawyers, seeking legal recognition and protection for same-sex marriages in India. The petitioners argued that the right to marry a person of one’s choice is a fundamental right under the Constitution of India and that denying this right to LGBTQIA+ couples violates their rights to privacy, dignity, equality and non-discrimination. The petitioners also contended that same-sex marriage is not against the culture or religion of India, but rather a reflection of the diversity and plurality of Indian society. The petitioners relied on the 2018 judgement of the Supreme Court, which decriminalised homosexuality by striking down Section 377 of the Indian Penal Code, as a precedent and a basis for their claim.
The respondents in this case were the Union of India, represented by the Ministry of Law and Justice, and various religious and social organisations, that opposed the petition. They argued that same-sex marriage is not a constitutional right, but a matter of policy and legislation, which should be decided by the Parliament and not by the court. Another argument was that same-sex marriage is against the moral values and cultural traditions of India and that it would have adverse effects on the institution of marriage, family and society. The Ministry of Law and Justice representing the Union of India contended that the 2018 judgement of the Supreme Court did not grant any positive rights to LGBTQIA+ couples, but only decriminalized their sexual acts.
The Supreme Court heard the case from August 2023 to October 2023 and delivered its judgement on October 17, 2023. The judgement was divided into three separate opinions by the five-judge bench, with two judges supporting same-sex civil unions, two judges rejecting same-sex marriage and civil union, and one judge dissenting from both views.
Majority Verdict: The majority verdict, delivered by Chief Justice Chandrachud and Justice Kaul, held that there is no absolute right to marriage or civil union for LGBTQIA+ couples under the Constitution and that such matters should be decided by the Parliament through legislation. It also stated that LGBTQIA+ relationships should not face any discrimination or harassment by the state or society and that the court would set up a committee to examine the issues related to their welfare and rights.
Minority Verdict: The minority verdict, delivered by Justice Bhat and concurred by Justice Kohli, held that LGBTQIA+ couples have a right to civil union under Article 21 of the Constitution, which guarantees the right to life and personal liberty. It held that LGBTQIA+ couples have a right to adopt children under Article 14 of the Constitution, which guarantees the right to equality and non-discrimination. It also suggested that the Parliament should enact a law to recognize same-sex marriage in India.
Dissenting Verdict: The dissenting verdict, delivered by Justice Narasimha, held that same-sex marriage is against the moral values and cultural traditions of India and that there is no constitutional basis for granting such rights to LGBTQIA+ couples. It also stated that sexual orientation is not an immutable characteristic, but a matter of choice and preference.
The Supreme Court added in its final verdict that the right to marry is not a Fundamental Right as it is merely a social institution. The legal recognition of same-sex marriages would have wide-ranging implications on various other laws and policies, such as adoption, inheritance, succession, taxation, etc., which are matters for the legislature to decide. Considering all this, the Supreme Court said that the power to legalise same-sex marriages is out of its scope and belongs to the Parliament.
India’s Supreme Court declines to legalise same-sex marriage |Photo Credit: Reuters Archives
The 2023 October judgement on the LGBTQIA+ community has been met with various reactions from different sections of society. Some LGBTQIA+ activists and supporters have welcomed the minority verdict and expressed hope for progressive legislation on same-sex marriage while criticising the majority verdict and expressing disappointment over the lack of clarity and timeline for setting up the committee. Some religious and conservative groups have applauded the dissenting verdict and opposed any legal recognition or protection for same-sex relationships.
The 2023 October judgement on the LGBTQIA+ community is a significant development in the legal and social history of India. It reflects the diversity of opinions and perspectives on the issue of same-sex marriage and civil union in India. It also raises several questions and challenges for the future of LGBTQIA+ rights and welfare in India.