ANALYSIS OF LGBTQ RIGHTS IN INDIA IN THE LIGHT OF RECENT

LEGAL DEVELOPMENT

BY: Yokeshwari Manivel

LL.M. (FINAL)

KSLU REG. NO.: 40719402010

DISSERTATION RESEARCH

SUBMITTED TO
KLE SOCIETY’S LAW COLLEGE - CENTRE FOR POST GRADUATE
STUDIES IN LAW

(AFFILIATED TO KARNATAKA STATE LAW UNIVERSITY,

HUBBALLI)

FEBRUARY – 2021
 TABLE OF CONTENTS

SN. PARTICULAR PG. NO.

1. CERTIFICATE

2. DECLARATION

3. ACKNOWLEDGEMENT

4. PREFACE

5. LIST OF CASES

6. TABLE OF STATUTES

7. TABLE OF ABBREVIATIONS

8. CHAPTER-1: INTRODUCTION

9. CHAPTER-2: UNPACKING MODELS OF LGBT COMMUNITY

10. CHAPTER 3: RIGHTS OF LGBTQ COMMUNITY

11. CHAPTER-4: INTERNATIONAL INSTRUMENTS AND

JUDICIAL TREND FOR PROTECTION

12. CHAPTER-5: CANADADIAN LEGAL SYSTEM

13. CHAPTER-6: CONCLUSION AND SUGGESTION

14. BIBLIOGRAPHY
CERTIFICATE
DECLARATION
ACKNOWLEDGMENT
 LIST OF CASES

● Additional District Magistrate, Jabalpur vs. S.S. Shukla

● ADT vs. UK
● Andrews v. Ontario
● Andrews v. Ontario (Ministry of Health) 2 Can. J. Women & L. 416 (1986-1988)
● Andrews vs. Law Society of B.C.
● Brockie v. Brillinger, (No 2) (1999), 37 CHRR D/12 (Ont Bd Inq).
● Brockie vs. Brillinger
● C.L. v. Badyal and Bob (1998), 34 CHRR D/41 (BCHRT)
● Canada (Attorney General) vs. Mossop
● Crozier vs. Asselstine, 1994
● Crozier vs. Asseltine (1994), 22 C.H.R.R. D/244 (Ont. Bd. Inq.).
● De Guerre vs. Pony's Holdings Ltd. [1999], 36 C.H.R.R. D/439 (B.C.H.R.T.)
● De Guerre vs. Pony’s Holdings Ltd., 1999
● Dudgeon vs. UK, 1981
● EGALE Can. Inc. v. Can. (A.G.) (2002), 170 B.C.A.C. 204 (CA); 279 W.A.C. 204;
● EGALE Canada Inc. et al. vs. Attorney General of Canada et al.
● Egan vs. Canada
● Geller v. Reimer (1994) 21 CHRR D/156
● Geller vs. Reimer, 1994
● Grace vs. Mercedes Homes Inc., 1995
● Haig vs. Canada
● Halpern v. Canada (Attorney General) (2003), 2003 CanLII 26403 (ON CA)
● Halpern vs. Canada (Attorney General)).
● Hellquist v. Owens, [2002] 228 SASK. R. 148, 21 (Sask. Q.B.).
● Hellquist vs. Owens
● Hughson v. Town of Oliver, 2000 BCHRT 11
● Hughson vs. Town of Oliver, 2000
● Jubran vs. North Vancouver School District
● Justice K.S. Puttaswamy vs. Union of India
● Knodel vs. British Columbia
● Laskey, Jaggard, and Brown vs. UK, 1997
● Lata Singh vs. State of Uttar Pradesh
● Leshner vs. Ontario
● Lustig Prean and Beckett vs. UK, 2000
● M. vs. H
● M. vs. H., 1999 CanLll 686 (SCC), (1999) 2 SCR 3
● Mc Aleer vs. Canada
● Mc Aleer vs. Canada
● McAleer v. Canada (Human Rights Comm.) (1996)
● Mercedes Homes Inc. v. Grace, (1993) OJ No. 2610 (QL) (Gen. Div.)
● Modinos vs. Cyprus, 1993
● Moffatt v. Kinark Child and Family Services, (1998), 35 C.H.R.R. D/205
● Moffatt vs. Kinark Child and Family Services, L. (C.) vs. Badyal
● Moore vs. Canada
● National Legal Services Authority vs. Union of India
● Navtej Singh Johar vs. UOI
● Naz Foundation vs. Union of India
● Norris vs. Ireland, 1988
● P vs. S
● Rosenberg v. Canada (Attorney General)
● Salgueiro da Silva Mouta vs. Portugal
● School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201. Retrieved May 31,
2021
● Suresh Kumar Koushal vs. Naz foundation
● Sutherland vs. UK
● The Canadian Charter of Rights and Freedoms 1985
● Toonen vs. Australia, 1994
● Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772
● Trinity Western University vs. British Columbia College of Teachers
● Velasquez Rodriguez vs. Honduras, 1998
● Veysey vs. Canada
● Vogel vs. Manitoba
● Vriend vs. Alberta
● Waterman vs. National Life Assurance Co. of Canada (No. 2) (1993), 18 C.H.R.R. D/176
● Waterman vs. National Life Assurance Co. of Canada, 1993
● X, Y and Z vs. UK, 1997

TABLE OF STATUTES
STATUTES AND REPORTS
● African Charter on Human and Peoples' Rights 1986
● Convention against torture and other cruel, inhuman or degrading treatment or
punishment 1984
● Convention for the protection of human rights and fundamental freedoms 1949
● Convention on the Elimination of all forms of Discrimination Against Women, 1981
● Convention on the Rights of The Child 1989
● EU Charter of Fundamental Rights
● European social charter (1949)
● Helsinki Final Act of 1975
● ILO Convention on Discrimination in Employment or Occupation 1958
● International Covenant on Civil and Political Rights 1966
● The Bhagavad Gita
● The Christian Marriage Act of 1872
● The Constitution of India, 1950
● The Employees Provident Funds and Miscellaneous Provisions Act, 1952
● The Indian Penal Code, 1860
● The Nova Scotia Law Reform Commission in 1997
● The Ontario Human Rights Commission
● The Ontario Law Reform Commission in 1993
● The Special Marriage Act of 1954
● The Special Marriage Act, 1954
● The Universal Declaration of Human Rights
● The Workmen’s Compensation Act, 1923
● Transgender Persons (Protection of Rights) Bill, 2019
● Treaty of Amsterdam
● United Nations 1st Report on Human Rights of Gay and Lesbian People
● United Nations High Commissioner for Refugees
TABLE OF ABBREVIATIONS

AIR ALL INDIA REPORT

ALD ALLAHABAD
Anr. ANOTHERS
CBI CENTRAL BUREAU OF INVESTIGATION
CRA CRIMINAL APPEAL
CriLj CRIMINAL LAW JOURNAL
DEL DELHI
IBID IBIDEM
IPC INDIAN PENAL CODE
LPA LETTER PATENTS APPEAL
Ltd. LIMITED
M/s MESSERS
ORS. OTHERS
p. PAGE
Pvt. PRIVATE
SC SUPREME COURT
SCC SUPREME COURT CASES
SCI SUPREME COURT OF INDIA
SLP (C) SPECIAL LEAVE PETITION (CIVIL)
SLP (Crl.) SPECIAL LEAVE PETITION (CRIMINAL)
UoI UNION OF INDIA
UP UTTAR PRADESH
US UNITED STATES
Vol. VOLUME
VS. VERSUS
W.P. (C) WRIT PETITION CIVIL

CHAPTER-1: INTRODUCATION

1.1 INTRODUCTION
Transgender, commonly known as transsexuals born to normal parents, Transgenders live in a
separate community. When a child is born and it is determined that he or she is transgender, the
newborn is either adopted or given away to the transgender community. People who identify as
transgender live in their own community. They lead their life by dancing and singing. It is
reported that some of them even earn their livelihood by begging or sex work, which is neither
prestigious nor hygienic for their safe living. In reality, neither are they considered as members
of mainstream community, nor are they given respect as a human being.
The United Nations (UN) strive to achieve that all genders be given equal rights and obligations
in all fields e.g., social, economic, family and matrimonial relations and in various other sectors
and no prejudice should be done with transgender, solely on the basis of their sex and gender. 1
Equality is the basic aim which is included in the Universal Declaration of Human Rights, 1948
(UDHR).2 Various International Bodies have considered equality in case of human rights, in
social sectors and in economic betterment.3 The atrocity on transgender community has been
seen throughout world from the time of history but with the dynamic thinking, there is need for
change. It is fundamental right of transgender person to get protection against discrimination,
recommending the creation of welfare policies and reservations for the transgender community
under educational institutions and jobs.
Since the history of human life transgender people have been present in every culture, race and
class. There are historical records that these trans-sexual people used to hold respectable
positions in the society. They were permitted to go in the rooms of queens. In ancient Indian and
medieval history, they were considered as an integral component of society and allowed to
mingle with common people. Despite the historical importance of transgender individuals in
India, these people are now denied the basic rights, right to hold identity, ability to vote, to
medical care, education, fair employment opportunities. Moreover, they are often forced into
poverty in the country.
Preamble to the Constitution of India mandates Justice - social, economic and political equality
of status. The first and foremost right that transgender deserve is the right to equality. The
Constitution provides for the fundamental right to equality, and tolerates no discrimination on the

1 United Nation’s Report of the Economic and Social Council for, 18th September, 1997, A/52/3, p. 28
2 Universal Declaration of Human Rights, 16th December, 1948 and retrieved on October 31st, 2016.
3 United Nations Millennium Campaign (2008), "Goal# 3 Gender Equity", United Nations Millennium Campaign
and retrieved on 2008-06-01.
grounds of sex, caste, creed or religion. It also guarantees political rights and other benefits to
every citizen. But the third community (transgender) continues to be ostracized. The Constitution
affirms equality in all spheres but the question is whether it is being applied.
India recognized transgender right in 2014, where Supreme Court upheld in National Legal
Services Authority (NALSA) vs. Union of India4 the right of a transgender person to self-
perceived gender identity as male, female or third gender which is guaranteed by the
Constitution of India under article 14. The court also directed the Centre and state to grant legal
recognition to address the trans community and attend their social stigmas.
There are unique legal issues faced by trans5 persons. Trans persons are arguably the most
marginalized constituent within the lesbian, gay, bisexual, transgender and intersex (LGBTI)
society. While considerable media attention has focused on the global debate for marriage
equality, trans-specific issues are often largely not considered. Their social recognition appears
removed from the consciousness of the majority of society. Equal rights should be given to trans
person in family and matrimonial relations are very much important for the achievement of
Equality. UDHR has very much stressed on the abolition of any such Law, which promotes
Inequality against trans person in family and matrimonial relations. Status of trans person was a
burning question from the nineteenth century till to date.6
Currently, there is only limited information available regarding the state of judicial recognition
of trans persons. This is due, in part, to the need for privacy of the parties involved and the
complex and differing nature that each case presents. Only a few countries have legislation in
place to: safeguard trans persons against discrimination; provide recognition of self-perceived
gender identity in personal documentation; and guarantee their right to access gender
reassignment surgery (GRS) or any other medical procedure required for the reconstruction of
gender expression. An impartial analysis will be presented, concentrating on Canadian Laws
where trans rights are granted though both case law and legislative measures. The analysis will
illustrate that, despite significant advancements that have been made in India, the social status of

4 AIR 2014 SC 1863

5 Trans’ will be used in this paper as a global term that will apply to every person who has been registered at birth
with a sex or gender that does not correspond to his/her/their self-perception. In particular, it includes at least those
people who identify themselves as ‘transsexual’, ‘transgender’, and ‘transvestite’.
6 Births, Deaths and Marriages Registration Act 1995 (NSW), s 32E
trans persons range from concerning too critical. However, an effort is made to clarify the
myriad complex legal issues encountered by trans persons in India.7
It is not intended to sensationalize an already marginalized subject, but instead provide an in-
depth and impartial analysis and understanding of the status of the rights of trans persons
globally.
Hence, it is the need of the hour that efficient, strong and powerful mechanism should be
introduced on the international level which can monitor the performance of the States, regarding
the compliance of the Article 2 of UDHR, for the achievement of trans-gender Equality in family
and matrimonial relations. The said Article should not be limited in the Book of the Law; rather
it should be strictly enforced and implemented. Awareness should be given to all the states that
achievement of the Trans-gender Equality in said sector is a human right and it should not be
circumvented on the pretext of Religion, Sovereignty of the State, Internal Legislation or on any
other ground.

1.2 STATEMENT OF PROBLEM

The transgender people face a lot of challenges in the life, including bullying, prejudice and
stigma. Problems that are being faced by the transgender community are of discrimination,
unemployment, lack of educational facilities, human trafficking, homelessness, lack of medical
facilities: like HIV care and hygiene, depression, abuse of hormone pill, tobacco and alcohol
abuse, rape and problems related to marriage. The other fields where this community feels
neglected are inheritance of property or adoption of a child. They are often pushed to the
periphery as a social outcaste running out of all options to even feed themselves.

1.3 RESEARCH OBJECTIVE

The global legal system has evolved and developed as and when faced with challenges. The
trans- gender issue is another opportunity to global policy makers to redesign new laws in the
context of Transgender Person Right in state, family and matrimonial relations. In my Research
Thesis, I while keeping in view the International Human Rights Law and Indian Legal System,
will give a practical, viable and feasible way-out and Framework to overcome the transgender

7 Federico Godoy, “Mr. & Ms. X: The Rights of Transgender Persons Globally”, International Bar Association
LGBT Law Committee, 2014.
Inequality, which is prevailing in the in Indian Legal System. In line of these facts, the research
objectives are as follow:
● To provide framework on right to freedom from discrimination and prohibition of the law
which are against the Transgender;
● To provide logical reasoning and conceptual understanding of the right to a new gender
identity, in terms of marriage and adoption;
● To compare issues in laws with respect to Matrimonial relations of Trans-person;
● To provide structure for right to marriage and related downstream issues such as having
family;
● To develop right to undergoing GRS, reproductive technology and or special state
funding;

1.4 RESEARCH HYPOTHESIS

● Various legislation is infringing the basic right to the transgender community; hence
society and laws eventually needs to reformed according to present needs.
● The impact of society discrimination is adversely affecting the rights of Trans person
● The statutory provisions related to Trans-person in India are Insufficient for the
protection of marriage right and adoption.

1.5 RESEARCH QUESTIONS
1. What were the causes of the discrimination of trans-gender community?
2. What is the official position of India towards Trans-gender?
3. What are the parameters of Trans-gender Equality in regarding to family and matrimonial
relations?
4. What are the similarities and differences between Canadian laws and Indian law relating
to the trans-gender?
5. What structural changes have occurred in the legal system in regards to the LGBT
Community?
6. What are the unresolved challenges that need to be addressed in the Protection of
transgender Rights?
7. What steps have to be taken for betterment transgender community and reforms in the
Transgender Person (Protection of Rights) Act, 2019?
 8. Whether there is a requirement of the restructuring of the Indian legal system in the
context of trans-gender community?
9. Is there any possibility of asserting Reservations or any other option, which India can
avail regarding Transgender Rights is concerned?

1.6 RESEARCH METHODOLOGY

This study is based on doctrinal research. The research method is the combination of analytical,
critical or comparative in nature. The design of research has been detailed in three sections.
Firstly, provides research framework to explain the distinct LGBT laws around the world and
identifies laws relating to the marriage and family with their major legal issue. Secondly, the
conceptual and theoretical method has been used to interpret the role of legal institution such as
supreme court and UN in forming LGBT laws. Thirdly describes the restructuring of Indian legal
system in the background of global legal development in regards to the LGBT community where
analytical, critical and comparative method has been applied for evaluating development of the
rules and regulation.

1.7 SCOPE
The global discrimination, Harassment, and atrocity against the trans-gender are three different
specialized areas. The research attempts to draw upon all the three areas collectively to explain
the global scenario and think through to possible solutions. The research relies on secondary
source for data interpretation and analysis. Therefore, the study relies on existing literature.
However, the research provides an opportunity to introspect global approach in the context of
integration and discuss the adequacy/inadequacy of LGBT regulations.

1.8 LIMITATIONS OF THE STUDY

No study can be without any limitations; this present study is also having followings limitations:
● Updated information is not available with various international websites, offices. There is
mismatch regarding information available in books. This analysis could be improved
however there are very less case study available in public domain.
● The researcher could not visit specified LGBT community; all this are inferences of
researcher from interview conducted with one of the people from such community.
 ● Custody harassment have not been studied properly due to permission issues for visit.
The researcher tried to study some aspects of human Rights aspect with the help of
information obtained under with the Human right commission. Personal interview with
various activist would have helped to understand the impact of laws on transgender
community.

1.9 SCHEME OF CHAPTERIZATION

The present study has been divided into five chapters.

CHAPTER 2: UNPACKING MODELS OF LGBT COMMUNITY

LGBTQ stands for “lesbian, gay, bisexual, transgender and queer.” While these terms have
increasing global resonance, in different cultures other terms may be used to describe people
who form same-sex relationships and those who exhibit non-binary gender identities (such as
hijra, meti, lala, etc).
In a human rights context, lesbian, gay, bisexual, transgender and queer people face both
common and distinct challenges. Intersex people suffer many of the same kinds of human rights
violations. Rights affecting lesbian, gay, bisexual, transgender and queer (LGBTQ) people vary
greatly by country or jurisdiction encompassing everything from the legal recognition of same-
sex marriage to the death penalty for homosexuality.

CHAPTER 3: RIGHTS OF LGBTQ COMMUNITY

The struggle of LGBT (lesbian, gay, bisexual and transgender) people for equal rights has moved
to center stage. LGBT people are battling for their civil rights in Congress, in courtrooms and in
the streets. Well-known figures are discussing their sexual orientation in public. Gay and lesbian
people are featured in movies and on television - not as novelty characters, but as full
participants in society.
Transgender people are often denied identity papers that reflect their preferred gender, without
which they cannot work, travel, open a bank account or access services. Intersex children may be
subjected to surgical and other interventions without their or often their parents’ informed
consent, and as adults are also vulnerable to violence and discrimination.
CHAPTER 4: INTERNATIONAL INSTRUMENTS FOR PROTECTION
International legal instruments take the form of a treaty (also called agreement, convention,
protocol) which may be binding on the contracting states. When negotiations are completed, the
text of a treaty is established as authentic and definitive and is "signed" to that effect by the
representatives of states. There are various means by which a state expresses its consent to be
bound by a treaty. The most common are ratification or accession. A new treaty is "ratified" by
those states who have negotiated the instrument. A state which has not participated in the
negotiations may, at a later stage, "accede" to the treaty. The treaty enters into force when a pre-
determined number of states have ratified or acceded to the treaty.

CHAPTER 5: CANADADIAN LEGAL SYSTEM

Since the late 1960s, the lesbian, gay, bisexual and transgender (LGBT) community in Canada
has seen steady gains in rights. While discrimination against LGBT people persists in many
places, major strides toward mainstream social acceptance and formal legal equality have
nonetheless been made in recent decades. Canada is internationally regarded as a leader in this
field. Recent years have seen steady progress on everything from health care to the right to
adopt. In 2005, Canada became the fourth country worldwide to legalize same-sex marriage.
Over the past 20 years, the legal rights of lesbians and gay men in Canada have been the subject
of considerable judicial, political and legislative activity.  Most Canadian jurisdictions have
legislated against discriminatory treatment based on sexual orientation, and the introduction of
the Canadian Charter of Rights and Freedoms altered the legal framework in matters of equality
rights for lesbians and gay men.

CHAPTER 6: CONCLUSION AND SUGGESTION

LGBTQ issues are shaped by political institutional factors, just like any other area of public
policy. Yet, traditionally, the study of federalism, whether Canadian or comparative, has ignored
LGBTQ topics. In turn, scholarly debates on LGBTQ rights have often ignored formal legal-
institutional factors such as federalism, focusing instead on the normative dimension of rights
recognition. In contrast, in recent years, there has been a substantial growth in scholarship that
explores the empirical side of LGBTQ policy change, seeking to identify the factors that
facilitate or impede rights recognition.
The United Nations has been working with Member States to reject discrimination and
criminalization based on homophobia and transphobia. While the denial of human rights for
LGBT persons persists throughout the world today, over 30 countries have decriminalized
homosexuality in the past 20 years. In the face of resistance, determined efforts from the U.N.,
associated NGOs, and representatives of Member States to guarantee the human rights of LGBT
persons have been gaining momentum. Today, under the leadership of Secretary-General Ban
Ki-moon, there is no doubt that the U.N. is making progress toward the global inclusion of
LGBT rights in our basic human rights.
 CHAPTER-2: UNPACKING MODELS OF LGBT COMMUNITY

2.1 INTRODUCTION

While the phrases "lesbian, gay, bisexual, transgender, and queer" are gaining popularity around
the world, alternative terms may be used in different cultures to represent persons who have
same-sex relationships or who have non-binary gender identities (such as hijra, meti, lala,
skesana, motsoalle, mithli, kuchu, kawein, travesty, etc). Lesbian, gay, bisexual, transgender, and
queer persons encounter both common and unique obstacles in the context of human rights.
Human rights violations are common among intersex people (those born with unusual sex traits).

The physical, romantic, and/or emotional attraction that a person has to other people is referred
to as sexual orientation. Everyone has a sexual orientation, and it is an important part of their
identity. Gay men and lesbian women are attracted to other gay men and lesbian women.
Heterosexuals (sometimes known as "straight" persons) are drawn to people of a different sex
than themselves. Bisexual people might be drawn to people of the same or opposite sex. Gender
identity has nothing to do with sexual orientation.

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people's rights vary widely by country
or jurisdiction, ranging from legal recognition of same-sex marriage to the death penalty for
homosexuality.

In fact, 29 countries recognised same-sex marriage as of January 2021. Only one country is
reported to apply the death sentence on consensual same-sex sexual acts, excluding non-state
actors and extrajudicial deaths. In Afghanistan, Brunei, Mauritania, Nigeria (in the northern third
of the country), Saudi Arabia, Somalia (in the autonomous state of Jubaland), and the United
Arab Emirates, the death sentence is officially legal but rarely used. Sudan's death punishment
for anal intercourse (hetero- or gay) was abolished in 2020. Fifteen countries have stoning on the
books as a penalty for adultery, which would include gay sex, but this is only enforced by the
legal authorities in Iran.8

8 Mendos, Lucas Ramón (2019). State-Sponsored Homophobia 2019  (13th ed.). Geneva: ILGA. p. 15.

Following the adoption of the first resolution recognising LGBT rights by the United Nations
Human Rights Council in 2011, the Office of the United Nations High Commissioner for Human
Rights published a report documenting violations of LGBT people's rights, including hate
crimes, criminalization of homosexual activity, and discrimination. Following the release of the
report, the UN urged all nations that had not yet done so to pass legislation protecting basic
LGBT rights.9

In recent years, India's LGBTQ rights have progressed. However, Indian LGBT citizens confront
societal and legal challenges that non-LGBT citizens do not. The government has removed
colonial-era regulations that discriminated directly against homosexual and transgender
identities, as well as specifically interpreting Article 15 of the Constitution to outlaw
discrimination based on sexual orientation and gender identity. However, numerous legal rights,
such as same-sex marriage, have been left out.

Under legislation implemented in 2019, transgender people in India can change their legal
gender after undergoing sex reassignment surgery and have the constitutional right to register as
a third gender. Furthermore, several states provide accommodation for hijras, a traditional third
gender population in South Asia, as well as welfare benefits, pension systems, free operations in
government hospitals, and other programmes aimed at assisting them. In India, there are around
480,000 transgender persons.

The Supreme Court of India decriminalised consensual gay intercourse in the landmark case of
Navtej Singh Johar vs. Union of India10 in 2018, by reading down Section 377 of the Indian
Penal Code and eliminating consenting homosexual sex between adults from its scope. In the last
ten years, courts have made significant progress in recognising lesbian, gay, bisexual, and
transgender (LGBT) people's constitutional rights. Despite strong political efforts in favour of
LGBT rights, there is still a substantial level of homophobia in India, with an opinion poll
estimating that one out of every four Indians opposes same-sex relationships. 11 In the 2010s,
LGBT people in India increasingly gained tolerance and acceptance, especially in large cities.

9 "United Nations 1st Report on Human Rights of Gay and Lesbian People
10 (2018) 10 SCC 1
11 "Politics and Society Between Elections". Regional Political Democracy. 2 - Social Identity: 88–92. 2019.
“Race, gender, religion, sexuality, we are all people and that’s it. We’re all people. We’re all
equal.” That is according to Conor Franta. Whatever your gender, race, religion, and sexuality is,
you’re still the person which you are now. Your sexual preference doesn’t define you, it is your
personality that aspire you to be who you are in the society where you belong. But there are still
people who do not yet accept the third sex in the community.

Attitude is determined as “a predisposition or a tendency to respond positively or negatively to a

certain idea, object, person, or situation” [1]. A person have two angles in viewing a certain
person or peers that is involve in a society, its either positive or negative. On the other hand, an
attitude is “a relatively enduring organization of beliefs, feelings, and behavioral tendencies
towards socially significant objects, groups, events or symbols”. We all know that we live in a
society with a group of different people that has different perceptions. Like, the negative
stereotypical thoughts arise from proximity and social knowledge of out groups; and in the case
of heterosexual-homosexual dynamics, they may also serve as a safety mechanism used to
enforce group superiority and normalcy. That means that society still exhibit ambivalence of the
inclusive acceptance of homosexuality today.

The widespread of LGBT community has awakening the social perspectives of the society
towards them. This study could not only benefit to the researchers but also for the whole
community. It may change their views, perceptions, and beliefs in the LGBT community.
Nowadays the researchers have seen a lot of changes towards the LGBT community. On how
they interact, and build their self in the society just for them to be accepted.

THE LGBT COMMUNITY

The phrase “lesbian, gay, bisexual, and transgender community” (or “LGBT community”) refers
to a broad coalition of groups that are diverse with respect to gender, sexual orientation,
race/ethnicity, and socioeconomic status. Thus, while this report focuses on the community that
is encapsulated by the acronym LGBT, the committee wishes to highlight the importance of
recognizing that the various populations represented by “L,” “G,” “B,” and “T” are distinct
groups, each with its own special health-related concerns and needs. The committee believes it is
essential to emphasize these differences at the outset of this report because in some
contemporary scientific discourse, and in the popular media, these groups are routinely treated as
a single population under umbrella terms such as LGBT. At the same time, as discussed further
below, these groups have many experiences in common, key among them being the experience
of stigmatization. (Differences within each of these groups related to, for example, race,
ethnicity, socioeconomic status, geographic location, and age also are addressed later in the
chapter.)

Lesbians, gay men, and bisexual men and women are defined according to their sexual
orientation, which is typically conceptualized in terms of sexual attraction, behavior, identity, or
some combination of these dimensions. They share the fact that their sexual orientation is not
exclusively heterosexual. Yet this grouping of “nonheterosexuals” includes men and women;
homosexual and bisexual individuals; people who label themselves as gay, lesbian, or bisexual,
among other terms; and people who do not adopt such labels but nevertheless experience same-
sex attraction or engage in same-sex sexual behavior. As explained throughout the report, these
differences have important health implications for each group.

In contrast to lesbians, gay men, and bisexual men and women, transgender people are defined
according to their gender identity and presentation. This group encompasses individuals whose
gender identity differs from the sex originally assigned to them at birth or whose gender
expression varies significantly from what is traditionally associated with or typical for that sex
(i.e., people identified as male at birth who subsequently identify as female, and people identified
as female at birth who later identify as male), as well as other individuals who vary from or
reject traditional cultural conceptualizations of gender in terms of the male–female dichotomy.
The transgender population is diverse in gender identity, expression, and sexual orientation.
Some transgender individuals have undergone medical interventions to alter their sexual
anatomy and physiology, others wish to have such procedures in the future, and still others do
not. Transgender people can be heterosexual, homosexual, or bisexual in their sexual orientation.
Some lesbians, gay men, and bisexuals are transgender; most are not. Male-to-female
transgender people are known as MtF, transgender females, or transwomen, while female-to-
male transgender people are known as FtM, transgender males, or transmen. Some transgender
people do not fit into either of these binary categories. As one might expect, there are health
differences between transgender and nontransgender people, as well as between transgender
females and transgender males.
Whereas “LGBT” is appropriate and useful for describing the combined populations of lesbian,
gay, bisexual, and transgender people, it also can obscure the many differences that distinguish
these sexual- and gender-minority groups. Combining lesbians and gay men under a single
rubric, for example, obscures gender differences in the experiences of homosexual people.
Likewise, collapsing together the experiences of bisexual women and men tends to obscure
gender differences. Further, to the extent that lesbian, gay, and bisexual are understood as
identity labels, “LGB” leaves out people whose experience includes same-sex attractions or
behaviors but who do not adopt a nonheterosexual identity. And the transgender population,
which itself encompasses multiple groups, has needs and concerns that are distinct from those of
lesbians, bisexual women and men, and gay men.

As noted above, despite these many differences among the populations that make up
the LGBT community, there are important commonalities as well. The remainder of this section
first describes these commonalities and then some key differences within these populations.

COMMONALITIES AMONG LGBT POPULATIONS

What do lesbians, gay men, bisexual women and men, and transgender people have in common
that makes them, as a combined population, an appropriate focus for this report? In the
committee's view, the main commonality across these diverse groups is their members'
historically marginalized social status relative to society's cultural norm of the exclusively
heterosexual individual who conforms to traditional gender roles and expectations. Put another
way, these groups share the common status of “other” because of their members' departures from
heterosexuality and gender norms. Their “otherness” is the basis for stigma and its attendant
prejudice, discrimination, and violence, which underlie society's general lack of attention to their
health needs and many of the health disparities discussed in this report. For some, this
“otherness” may be complicated by additional dimensions of inequality such as race, ethnicity,
and socioeconomic status, resulting in stigma at multiple levels.

To better understand how sexuality- and gender-linked stigma are related to health, imagine a
world in which gender nonconformity, same-sex attraction, and same-sex sexual behavior are
universally understood and accepted as part of the normal spectrum of the human condition. In
this world, membership in any of the groups encompassed by LGBT would carry no social
stigma, engender no disgrace or personal shame, and result in no discrimination. In this world, a
host of issues would threaten the health of LGBT individuals: major chronic diseases such as
cancer and heart disease; communicable diseases; mental disorders; environmental hazards; the
threat of violence and terrorism; and the many other factors that jeopardize human “physical,
mental and social well-being.” By and large, however, these issues would be the same as those
confronting the rest of humanity. Only a few factors would stand out for LGBT individuals
specifically. There would be little reason for the Institute of Medicine to issue a report on LGBT
health issues.

We do not live in the idealized world described in this thought experiment, however.
Historically, lesbians, gay men, bisexual individuals, and transgender people have not been
understood and accepted as part of the normal spectrum of the human condition. Instead, they
have been stereotyped as deviants. Although LGBT people share with the rest of society the full
range of health risks, they also face a profound and poorly understood set of additional health
risks due largely to social stigma.

While the experience of stigma can differ across sexual and gender minorities, stigmatization
touches the lives of all these groups in important ways and thereby affects their health. In
contrast to members of many other marginalized groups, LGBT individuals frequently are
invisible to health care researchers and providers. As explained in later chapters, this invisibility
often exacerbates the deleterious effects of stigma. Overcoming this invisibility in health care
services and research settings is a critical goal if we hope to eliminate the health disparities
discussed throughout this report.

It is important to note that, despite the common experience of stigma among members of sexual-
and gender-minority groups, LGBT people have not been passive victims of discrimination and
prejudice. The achievements of LGBT people over the past few decades in building a community
infrastructure that addresses their health needs, as well as obtaining acknowledgment of their
health concerns from scientific bodies and government entities, attest to their commitment to
resisting stigma and working actively for equal treatment in all aspects of their lives, including
having access to appropriate health care services and reducing health care disparities. Indeed,
some of the research cited in this report demonstrates the impressive psychological resiliency
displayed by members of these populations, often in the face of considerable stress.

As detailed throughout this report, the stigma directed at sexual and gender minorities in the
contemporary United States creates a variety of challenges for researchers and health care
providers. Fearing discrimination and prejudice, for example, many lesbian, gay, bisexual, and
transgender people refrain from disclosing their sexual orientation or gender identity to
researchers and health care providers. Regardless of their own sexual orientation or gender
identity, moreover, researchers risk being marginalized or discredited simply because they have
chosen to study LGBT issues (Kempner, 2008), and providers seldom receive training in specific
issues related to the care of LGBT patients. In addition, research on LGBT health involves some
specific methodological challenges.

DIFFERENCES WITHIN LGBT POPULATIONS

Not only are lesbians, gay men, bisexual women and men, and transgender people distinct
populations, but each of these groups is itself a diverse population whose members vary widely
in age, race and ethnicity, geographic location, social background, religiosity, and other
demographic characteristics. Since many of these variables are centrally related to health status,
health concerns, and access to care, this report explicitly considers a few key subgroupings of
the LGBT population:

A. AGE COHORT: One's age influences one's experiences and needs. Bisexual adolescents

who are wrestling with coming out in a non-supportive environment have different health
needs than gay adult men who lack access to health insurance or older lesbians who are
unable to find appropriate grief counseling services. In addition, development does not
follow the same course for people of all ages. An older adult who comes out as gay in his
50s may not experience the developmental process in the same fashion as a self-identified
“queer” youth who comes out during her teenage years. Similarly, as discussed further
below, experiences across the life course differ according to the time period in which
individuals are born. For example, an adolescent coming out in 2010 would do so in a
different environment than an adolescent coming out in the 1960s. Moreover, some
 people experience changes in their sexual attractions and relationships over the course of
their life. Some transgender people, for example, are visibly gender role nonconforming
in childhood and come out at an early age, whereas others are able to conform and may
not come out until much later in life.

B. RACE AND ETHNICITY: Concepts of community, traditional roles, religiosity, and

cultural influences associated with race and ethnicity shape an LGBT individual's
experiences. The racial and ethnic communities to which one belongs affect self-
identification, the process of coming out, available support, the extent to which one
identifies with the LGBT community, affirmation of gender-variant expression, and other
factors that ultimately influence health outcomes. Members of racial and ethnic minority
groups may have profoundly different experiences than non-Hispanic white LGBT
individuals.

C. EDUCATIONAL LEVEL AND SOCIOECONOMIC STATUS:

An LGBT individual's experience in society varies depending on his or her educational
level and socioeconomic status. As higher educational levels tend to be associated with
higher income levels, members of the community who are more educated may live in
better neighborhoods with better access to health care and the ability to lead healthier
lives because of safe walking spaces and grocery stores that stock fresh fruits and
vegetables (although, as discussed in later chapters, evidence indicates that some LGBT
people face economic discrimination regardless of their educational level). On the other
hand, members of the LGBT community who do not finish school or who live in poorer
neighborhoods may experience more barriers in access to care and more negative health
outcomes.

D. GEOGRAPHIC LOCATION: Geographic location has significant effects on mental

and physical health outcomes for LGBT individuals. Those in rural areas or areas with
fewer LGBT people may feel less comfortable coming out, have less support from
families and friends, and lack access to an LGBT community. LGBT individuals in rural
 areas may have less access to providers who are comfortable with or knowledgeable
about the treatment of LGBT patients. In contrast, LGBT people living in areas with
larger LGBT populations may find more support services and have more access to health
care providers who are experienced in treating LGBT individuals.

2.2 HISTORY AND GROWTH

The United States has made significant progress toward LGBT equality in the last decade.
However, neither the federal government nor the majority of states have clear anti-discrimination
legislation that protect people based on their sexual orientation or gender identity. Discrimination
against LGBT persons continues to be common. Discrimination against LGBT persons occurs
frequently outside of the job, costing them their homes, access to education, and even their
capacity to participate in public life.

Karoly Maria Benkert12 created the word "homosexuality" in the late nineteenth century. Despite
the fact that the phrase is new, conversations concerning sexuality in general, and same-sex
desire in particular, have prompted philosophical debates stretching from Plato's Symposium to
modern queer theory. It is crucial to discuss briefly some of the social history of homosexuality
since the history of cultural understandings of same-sex attraction is relevant to the philosophical
concerns generated by those understandings.

The concept of natural law, and some interpretations of that law as prohibiting homosexual sex,
sprang from this history, at least in the West. In today's arguments concerning homosexuality in
religion, politics, and even courtrooms, references to natural law continue to play an essential
role. Finally, the rise of the gay liberation movement in the West is possibly the most significant
modern societal transformation regarding homosexuality. This movement is represented in
philosophical circles in part by a somewhat broad set of thinkers who are grouped under the
name of queer theory. Queer theory raises the question of whether homosexuality, and hence

12 an Austrian-born Hungarian psychologist

heterosexuality and bisexuality, is socially produced or merely driven by biological processes,
which will be examined further down.

The ancient Greeks did not have terms or notions that corresponded to the present divide of
"heterosexual" and "gay," as has been highlighted (e.g., Foucault, 1980). From Plato's dialogues,
such as the Symposium, through Aristophanes' comedies, and Greek artwork and vases, there is a
variety of material from ancient Greece relevant to themes of sexuality. The following is a quick
rundown of ancient Greek attitudes, however keep in mind that there existed geographical
variance. For example, while there were universal prohibitions against same-sex eros in portions
of Ionia, it was tolerated and even celebrated in Elis and Boiotia (e.g., Thebes) (cf. Dover, 1989,
Halperin, 1990).

At least according to ancient Greek authors, the most common idea concerning sexual orientation
is that people can respond erotically to beauty in either sex. “In his adolescence he drew away
the husbands from their wives, and as a young man he drew away the wives from their
husbands,” Diogenes Laeurtius said of Alcibiades, the Athenian general and statesman of the 5th
century B.C. Some people were known for having a one-sided interest in people of one gender.
Alexander the Great and Zeno of Citium, the founder of Stoicism, were both recognised for their
particular interest in youths and other males.

Such individuals, on the other hand, are frequently depicted as the exception. Furthermore, rather
than being viewed as a moral issue, the subject of whose biological sex one is attracted to is
viewed as a matter of taste or desire. “The noble lover of beauty engages in love wherever he
sees excellence and wonderful natural endowment without regard for any distinction in
physiological detail,” says a character in Plutarch's Erotikos (Dialogue on Love). Gender simply
becomes an insignificant “detail,” and what matters most is greatness in character and beauty.

People who identify as LGBT have always been a part of our communities. From prehistoric
rock drawings in South Africa and Egypt to ancient Indian medicinal manuscripts and early
Ottoman literature, there are examples from every location and time period. Many countries,
particularly numerous Asian societies that have traditionally recognised a third gender, have
traditionally been welcoming to LGBT persons. Even countries like Pakistan, which has long
been regarded as a human-rights backwater, have implemented progressive legislation protecting
transgender people's rights. Today, an openly gay candidate has a realistic chance of becoming
the next president of the United States, and LGBT people currently lead governments in Belgium
and the United Kingdom.

● ANCIENT INDIA

The Arthashastra forbids all forms of ayoni, or non-vaginal sex. Homosexual acts, on the other
hand, are classified as a minor offence punishable by a fine, whereas unlawful heterosexual
intercourse is punished considerably more severely. Non-vaginal intercourse is forbidden in the
Dharmsastras, especially the later ones, such as the Vashistha Dharmasutra. Fines are prescribed
by the Yjavalkya Smti for such acts, including those involving other men. For such
transgressions, Manusmriti imposes modest punishments. The passages about punishment for a
sex between a female and a virgin, according to Vanita, are attributable to the high stress on a
maiden's sexual purity.

● HINDU SCRIPTURES

According to some versions of the Mahabharata, various characters shift genders, such as
Shikhandi, who is often claimed to be born as a female but identifies as male and later marries a
woman. Bahuchara Mata is the goddess of fertility who is the patroness of hijras.

The Nradasmti and the Sushruta Samhita, two classic Sanskrit works on dharma and medicine,
proclaim homosexuality immutable and prohibit homosexuals from marrying a partner of the
other sex. The Nradasmti describes fourteen different varieties of pandas (guys who are impotent
with women), including the mukhebhaga (men who have oral sex with other men), sevyaka (men
who are sexually pleased by other men), and irshyaka (men who are sexually enjoyed by other
men) (the voyeur who watches other men engaging in sex).

The Kama Sutra, a Sanskrit literature on human sexual conduct (not to be confused with a Hindu
text), employs the term tritiya-prakriti to describe individuals with homosexual urges and their
activities in considerable detail. Lesbians (svairini, who indulge in forceful lovemaking with
other women), bisexuals (referred to as kami or paksha), transgender, and intersex people are all
described in the Kama Sutra. The Sushruta Samhita and the Charaka Samhita go into greater
detail about homosexuality, claiming that homosexuals are conceived when the father's sperm is
in little supply, while transgender people are conceived when the father and mother switch roles
during intercourse (purushayita, "woman on top").13

However, there are many punishments for homosexuality in another Hindu literature, the
Manusmriti. Girls who had sex with other girls were fined 200 coins and given ten whippings. A
mature woman who had sex with a girl was punished by having her head shaved or having two
of her fingers amputated, as well as being forced to ride a donkey. In the case of homosexual
men, the Manusmriti stipulated that a sexual union between two men resulted in caste loss.

Homosexual intercourse was classified as a crime in the Arthashastra, a 2nd century BCE Indian
treatise on statecraft, however some types of heterosexual intercourse were punished more
harshly.14 "Though not part of the mainstream, its existence was acknowledged but not
sanctioned," writes Devdutt Pattanaik about homosexuality in Hindu literature.

● PRE-ISLAMIC PERIOD

Several portrayals of homosexual activities may be found in the Hindu Khajuraho temples,
which are known for their erotic sculptures. Historians have long contended that pre-colonial
Indian society never criminalised nor viewed same-sex relationships as evil or bad. Though some
texts contain injunctions against homosexuality, particularly among priests, Hinduism has always
viewed homosexuality as natural and joyous. According to Al-Biruni, Hindus are strongly
opposed to homosexuality.15

Several pre-existing Delhi Sultanate regulations were merged into the Fatawa-e-Alamgiri during
the Mughal Empire, establishing a common set of sanctions for Zina (unlawful intercourse),

13 Das Wilhelm, Amara (2010). Tritiya-Prakriti: People of the Third Sex: Understanding Homosexuality,
Transgender Identity and Intersex Conditions Through Hinduism (Abridged Version). Xlibris Corporation.
p. 48. ISBN 9781453503164.
14 Vanita, Ruth (20 October 2008). Same-Sex Love in India. Penguin Books Limited. ISBN 9788184759693
15 Eraly, Abraham (1 April 2015). The Age of Wrath: A History of the Delhi Sultanate. Penguin
UK. ISBN 9789351186588.
which included homosexuality.16 A slave could receive 50 lashes, a free infidel 100, or a Muslim
could be stoned to death.17

● BRITISH RULE

The British codified the illegality of homosexual behaviour in Section 377, which remained in
effect for more than 70 years after India's independence. The Goa Inquisition once prosecuted
the capital crime of sodomy in Portuguese India, but not lesbian activity, 18 whereas the British
Raj criminalised anal sex and oral sex (for both heterosexuals and homosexuals) under Section
377 of the Indian Penal Code, which went into effect in 1861 and made it illegal for a person to
voluntarily engage in "carnal intercourse against the order of nature." Scholars have also
suggested that the initial intent of Section 377 was for the British Raj to use it to further police
and control the colonial subject's body. These subjects were viewed as erotically wicked and in
need of the imposition in colonial Victorian morality.

In a judgement on the prosecution of a hijra in 1884, a court in north India noted that a physical
examination of the accused revealed she "had the markings of a habitual catamite" and praised
the police's desire to "control these repulsive activities." The British labelled the hijra people as a
"criminal tribe" in 1871.19

● POST-INDEPENDENCE

In the case of Naz Foundation vs. Govt. of NCT of Delhi 20, the Delhi High Court concluded that
Section 377 and other legal prohibitions against private, adult, consenting, and non-commercial
same-sex activity were in direct violation of the Indian Constitution's fundamental rights.
"Whoever intentionally has sexual intercourse against the order of nature with any man, woman,

16 Kugle, Scott A (1 September 2011). Sufis and Saints' Bodies: Mysticism, Corporeality, and Sacred Power in
Islam. Chapter 4 - Note 62-63: Univ of North Carolina Press. p. 309. ISBN 9780807872772
17 V. N. Datta (27 November 2012), Maulana Abul Kalam Azad and Sarman, ISBN 9788129126627
18 Soyer, Francois (2012). Ambiguous Gender in Early Modern Spain and Portugal: Inquisitors, Doctors and the
Transgression of Gender Norms. p. 45. ISBN 9789004225299
19 Martha C. Nussbaum, Disgust or Equality? Sexual Orientation and Indian Law, Journal of Indian Law and
Society, Vol. VI
20 ((2009) 111 DRJ 1)
or animal shall be punished with life imprisonment, or with imprisonment of either sort for a
term not exceeding 10 years, and shall also be liable to fine," according to Section 377 with the
added explanation that: "Penetration is sufficient to constitute the carnal intercourse necessary to
the offence described in this section."

According to a prior order by the Indian Supreme Court, a high court's decision on a law's
legality applies across India, not simply to the state over which the high court has authority.
There have been instances of authorities harassing LGBT groups in violation of the law.

LGBTQ people do not claim any "special" or "extra rights," but rather the same rights as
heterosexual people. Basic civic, political, social, and economic rights are denied by law or
practice. In many nations, LGBTQ people are denied equality in rights and before the law due to
unique criminal rules or practices based on sexual orientation. When it comes to same-sex
relationships, rules frequently maintain a greater age of consent than when it comes to opposite-
sex relationships.

The Ministry of Home Affairs announced its objection to the decriminalisation of gay behaviour
on February 23, 2012, claiming that homosexuality is considered sinful in India. On February 28,
2012, the Central Government revised its position, claiming that there was no legal fault in
decriminalising homosexual behaviour. The Supreme Court's two judges reprimanded the
Central Government for constantly altering its attitude on the subject as a result of the movement
in posture. The Supreme Court overturned a 2009 Delhi High Court ruling decriminalising
consensual gay behaviour within its jurisdiction on December 11, 2013.

● MODERN INDIA

Today, more Indian youths are accepting of homosexuality and queer identities than ever before,
but acceptance of their sexuality and the freedom to openly express their gender choices remain a
constant struggle for LGBT (lesbian, gay, bisexual, and transgender) people within the confines
of their families, homes, and schools.

In urban India, where social media and corporate initiatives have raised awareness of LGBT
rights, the situation for homosexual males appears to be more positive than for transgender
persons or lesbian women. While urban LGBT voices heard on a variety of online and real-world
venues are a vital element of LGBT advocacy, they only reveal a small portion of the
community's multifaceted concerns.

Families in rural India have their own ways of dealing with LGBT people, far away from gay
pride parades, meet-ups, and intense Twitter debates. In other areas, hidden honour killings are
arranged such that a young gay man's sole option for survival is to flee to a metropolis in the
dead of night, with no money or social support.

Lesbian women in various parts of the world are subjected to family-sanctioned corrective rapes,
which are frequently carried out by family members. Lesbian women and transmen in rural
areas, according to Vyjayanti Vasanta Mogli, a transwoman LGBT activist and public policy
scholar at Tata Institute of Social Sciences in Hyderabad, who has openly spoken about her
abuse at school, end up at the bottom of the hierarchy when it comes to basic human rights
within the family and village. “Ambedkar saw the village as a unit of violence, and this is
especially true when it comes to LGBT issues "she explains. “Rape is frequently prescribed by
village healers and babas to cure lesbians of homosexuality. Refusing to marry leads to further
physical violence. Family acceptance stories on television and in other media are more of an
urban phenomenon."

The fight for equal rights for LGBT (lesbian, gay, bisexual, and transgender) persons has taken
center stage. In Congress, in courtrooms, and on the streets, LGBT people are fighting for their
civil rights. Public figures are openly discussing their sexual orientation. Gay and lesbian
individuals are shown as full participants in society in movies and on television, not as novelty
characters.

Human rights breaches affect LGBT persons of all ages and from all corners of the globe. They
are assaulted physically, kidnapped, raped, and murdered. People may be prosecuted and
imprisoned (and in at least five nations, executed) for engaging in private, consenting same-sex
relationships in more than a third of the world's countries. In the private domain, such as the
workplace, housing, and healthcare, states frequently fail to sufficiently protect LGBT
individuals from discrimination. LGBT children and teenagers experience bullying at school, and
their parents may force them out of their homes, commit them to psychiatric hospitals, or compel
them to marry.

Transgender people are frequently denied identity documents that represent their preferred
gender, preventing them from working, travelling, opening a bank account, or gaining access to
services. Intersex children and adults are exposed to abuse and discrimination, and they may be
subjected to surgical and other procedures without their or their parents' informed consent. No
matter who they are or where they reside, every human being has the same set of rights. While
context is crucial, all States, regardless of their political, economic, or cultural systems, have a
legal obligation to promote and preserve all people's human rights.

It was not an ordinary day on September 6, 2018. On that day, something significant occurred
that “blew a life of “constitutionality” in the deceased members of the LGBTQ+ community who
had been subjected to decades of mind-numbing toil. The Supreme Court of India delivered a
landmark judgement decriminalising homosexuality by partially striking down Section 377 of
the Indian Penal Code, making the day memorable for the LGBTQ+ community.

The LGBT community exploded in joyous celebrations around the country, celebrating their
victory against a 200-year-old British-era statute that criminalised same-sex relationships. The
significance of this entire decision can be deduced from Justice Indu Malhotra's statement during
her verdict that "History owes an apology to the members of this community and their families,
for the delay in providing redress for the ignominy and ostracism that they have suffered over
the centuries."

The historic occurrence, however, should not be interpreted as the end of a more than two-
decade legal battle against the draconian statute, but rather as the start of a new era in the fight
for LGBT rights. It is fair to conclude that the repeal of the colonial statute was only the top of
the iceberg, and that the LGBT community in India faces a far larger and more difficult battle
ahead.

Despite the decriminalisation of homosexuality, India's laws continue to be hostile and

prejudiced to the LGBT community in a number of ways. The reason behind this is that in India,
there is a huge gap between legislative and judicial development of LGBT laws. So, though the
Supreme Court of India through the landmark judgements of Naz Foundation vs. Union of
India,21 Navtej Singh johar vs. UOI,22 and Justice K.S. Puttaswamy vs. Union of India
(Puttaswamy)23 has established the framework for the gay and non-binary community to be
granted a slew of basic human rights, but the law has fallen behind the times.

So, in essence, same-sex couples now have the legal right to cohabit and conduct their personal
affairs without fear of persecution, but they still face discrimination in a variety of ways. As a
result, it is critical to continue the discourse and discuss the many legislations that continue to
discriminate against LGBT+ people. It covers anti-discriminatory regulations such as the refusal
to recognize same-sex marriages, the denial of adoption and surrogacy rights, and so on. As a
result, the campaign for equality continues, despite the fact that there is still a long road ahead,
fraught with countless challenges, considering that the LGBTQ+ population is still denied civil
rights.

Every year, suicides by lesbian women make news in India's sophisticated cities. It's no surprise,
then, that a court recently determined that lesbians in India are solely at risk from their own
families.

According to a recent study, parental reaction to homosexuality is one of the primary variables
that leads to stigmatisation of LGBT persons. According to the report, most LGBT people are
only acceptable to their families if they agree to behave like heterosexuals.

LGBT persons are members of a minority group who have various sexual orientations and hence
face discrimination in their families and communities. However, because they are human beings
on the surface, they are entitled to all human and fundamental rights in India. The demand for
legalising homosexual marriage is strangely neglected and ignored in the current Indian societal
matrix and the rising crisis in the institution of marriage. However, in the not-too-distant future,
society's preconception of marriage as a heterosexual institution connected with procreation and
child raising may allow homosexual marriages, in which the love between the partners takes

21 (2014) 5 SCC 438

22 AIR 2018 SC 4321
23 (2015) 6 SCC 433
precedence over the gender. Then the failure to acknowledge the changing nature of society and
the family will result in more harm than good.

Even though it will take a long time for this to happen. In any event, the demand for the
legalisation of homosexual marriages has sparked a new confrontation in the institutions of
marriage, family, and law that cannot be ignored. However, granting social and legal acceptance
in this traditional society is more difficult than in western nations. In any event, ignoring this
rising tension in the institution of family and marriage will be short-sighted and can have
disastrous consequences if not addressed delicately. As a result, it is past time for the Legislature,
Executive, Judiciary, and Society at large to acknowledge that people with the same sex urges
exist.

They must also recognise that legalising homosexual relations will not only allow for a single
sexual act, but will also legalise the lives of citizens who are involved in such acts. Finally, if
laws are designed to represent socially acceptable dos and don'ts, then a shift in thinking is
urgently required. Otherwise, ordinary people would continue to be exploited inhumanely just
because nature has instilled in them the desire to stand out. Lesbians, gay men, bisexuals, and
transgender persons have long been active in racial and economic justice movements.

India, which is known as the world's most democratic country, is a developing country with a
small homosexual population. The Indian constitution guarantees its citizens essential rights such
as the right to life, equality, and equity. However, the rights of LGBT people, notably human
rights, are being infringed in India due to the criminalization of same-sex partnerships.
Criminalizing same-sex acts isn't fair to the Republic of India's human rights, given that
homosexuality has been legalised in numerous countries, and several countries, such as South
Africa, have altered their constitutions to include rights for homosexuals.

Such partnerships have been criminalised in the Republic of India, as they are considered
unnatural in our culture. In the Republic of India, the issue of homosexuals has been a
contentious topic that has sparked passionate debate and drawn the attention of the general public
as well as our court. Despite the fact that India is an active member of UNHR and has signed
majority of the resolutions, the topic of homosexuality is still not covered in the literature. These
are unnatural offences, according to our judiciary, and parliament currently has the power to
repeal this clause.

India is a country of many cultures, and different people have distinct ways of thinking and
living here. Legalizing homosexual behaviour has become a global trend in recent years.
Homosexuality has been adopted by several Gods and rulers throughout history, not just in the
Republic of India, but around the world. According to the United Nations Human Rights
Organization, everyone has the right to equality and is equal before the law, yet these rights have
been infringed.

Many studies on homosexuals have been undertaken all over the world, and it has been
discovered that sexual orientation is a natural result of the environment in which no one has
embraced such compassionate behaviour. In the 172nd report of the Law Commission, it was
said that criminalising such actions could lead to an increase in crime and HIV in private, and
that these crimes include rape and murder. In addition, section 377 of the IPC was suggested to
be decriminalised in this report.

Based on the conversation, it is concluded that LGBT minorities who have radically different
sexual orientations endure persecution within their families and society. They are, however,
definitely human beings who are entitled to all human rights, as well as fundamental rights in the
Republic of India.

Lesbians, gays, bisexuals, and transgender people have long been involved in racial and
economic justice movements. Today, LGBT organisers and groups are increasingly emphasising
the link between LGBT rights movements and movements for economic, social, political, and
racial justice. As a result, there is now a responsibility to protect their human rights within
society.

Homosexuality isn't a psychopathy, either. It's just like being straight. It is beyond the control of
the human mind. In the Republic of India, the situation of the LGBT people is the worst.
Harassment, violence, and mocking are commonplace. Members of the LGBT community have
had their sexual rights protected in European countries. The resolution passed by the United
Nations has had a good impact all around the world.
India's position on LGBT matters at the United Nations has been unsatisfactory thus far, since it
has tarnished its image as a democratic republic by consistently opposing LGBT rights at the
international level. It is critical to raise public awareness of the LGBT community. Human rights
are intrinsic and indestructible natural rights that are bestowed onto man at birth. Homosexuals
don't appear to be extraterrestrials, they aren't ill, and their sexual conduct is quite natural. The
government of the Republic of India should shed its traditional tendencies and take concrete
actions to help sexual minorities.

The “biggest reversal to the LGBT rights movement” was the recriminalization of homosexual
sexual activity. One decision had a significant impact on the rights of the entire community,
causing significant harm to the LGBT population's shallowness and self-esteem. LGBT people
will continue to fight for societal acceptance in a just and equitable manner. The planet has the
ability to evolve, and sooner or later, it will shed light on the dark ages of logic.

Human rights, not men's rights, women's rights, or gay rights, are needed and required since
women's rights, gay rights, black rights, and LGBTQIA+ rights are all human rights. We're all
humans, and treating each other as such should be a priority.

The aforementioned observations clearly show that transgender people of various sexual
orientations experience intolerance, discrimination, and marginalisation in society. Isolation can
be for a variety of causes, ranging from personal issues to the most prevalent social
incomprehension.

While the judiciary has taken a huge step toward removing the stigma associated with the third
gender, it is now up to us to understand the full implications of this decision and make its
implementation a priority. We are not only demeaning these persons by throwing money at them
to drive them away, but we are also relegating the very basic notion of humanity; even curs are
better handled by the love of humanity. Such acts will simply condemn the transgender
community to toil and struggle in the same pit of indignity that they have endured for years. In a
society where there are a plethora of reasons for large reservations, the group that is synonymous
with social backwardness is rarely considered. As a result, it is vital to not only enact laws, but
also to put them into practise in order to raise the transgender population to the rostrum of human
dignity.
2.3 REDEFINING THE FAMILY AND ITS ROLE

Lack of family support can be a major blow to LGBT people's mental and physical health in a
society where inflexible social and cultural norms control the terms and conditions of education,
employment, and marriage. Isolation and pressure to comply frequently result in despair, suicidal
ideation, and psychosomatic illnesses. Many of them would rather relocate to another city to
avoid the enormous pressure to marry and start a family.

Families who accept their identities impose a lot of constraints on how they dress and behave
with their partners. Online organisations and social media have provided accessible alternatives
to forming a community outside the family in the lack of family support. Gaysi and Gaylaxy, as
well as publications like Queer Ink, have aided in the creation of spaces for LGBT individuals to
interact, discuss, and cooperate.

One of the most essential features of international human rights legislation is the
interconnectedness of the concepts of non-discrimination and equality. Discrimination and
inequality can occur as a result of legal discrepancies in status and entitlements, as well as social
norms that influence community relationships. The necessity of looking at consequences rather
than intentions is emphasised by the principle of non-discrimination. This means that, regardless
of the intentions of policymakers, if a policy regime has a discriminatory effect on a
marginalised group, it is incompatible with human rights standards.

Discrimination against LGBT individuals occurs on a variety of levels. LGBT individuals are
subject to bias at work, in the labour market, in health care, in education, in STI prevention, and
elsewhere because there is no anti-discrimination statute or complaint procedures in place.
Sexual, verbal, and physical assault and harassment based on sexual orientation, gender identity,
or expression are likewise unprotected under the law. In discriminatory legal regimes, marriage,
adoption, inheritance, and other privileges are reserved for heterosexual and non-trans persons.
Because such legal systems and penal codes put LGBT people at risk of persecution, they are
unable to assert their right to protection from violations and discrimination.

Human rights breaches and discrimination against LGBT persons have a negative impact on their
ability to contribute to and benefit from development. As a result of stigma and persecution,
LGBT individuals are usually underprivileged and vulnerable to assault and HIV/AIDS. Living
openly, or even simply being identified with, an LGBT person, might jeopardise one's career,
housing, education, and health-care access. LGBT individuals must be viewed as rights-bearers
and agents with an unalienable right to participate in processes and decisions that affect their life
and society.

The government is prohibited from discriminating against citizens primarily on the basis of their
gender, religion, race, caste, or place of birth, according to Article 15. Previously, this rule was
interpreted to mean that discrimination on any basis was acceptable, not simply the ones listed
above. In the Navtej Johar Case,24 the Supreme Court deviated from this narrow view, stating
that under Article 1525, any kind of discrimination, whether direct or indirect, based on a
particular conception of the function of sex is discriminatory. In this way, the Supreme Court
broadened the scope of Article 15's banned grounds of discrimination to include sexual
orientation, and, therefore, Section 37726 was held to be discriminatory under Article 15.

“If parents don't contribute to their children's challenges, they can make their life much simpler.
The root of the issue is that parents struggle to accept their children as sexual beings. As a result,
any discussion of sexuality or gender identity is frowned upon and shrouded in shame. This is
where the feelings of shame and befuddlement arise. Most parents quiet and mute their children
when they ask awkward questions. Parents must learn to listen to their children and allow them
to open up about challenging topics."

The LGBTQ community has been fighting for their right to marry for years. The campaign is not
just for legal recognition of their marriage, but also for the various benefits that come with
marriage, which are not available to "Homosexual" couples since they lack the legal right to
marry in the first place. Homosexual couples simply want to be included and welcomed without
prejudice, as well as to be able to join a legally recognised partnership. There are several strong
and practical reasons to provide them the legal right to marry.27

24 Supra 15
25 The Constitution of India, 1950
26 The Indian Penal Code, 1860
27 Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 99-100 (2014)
A legally recognised marriage could assist pave the way for other legal rights and many health,
social, and economic benefits for same-sex couples, leading to their social and legal recognition.
Certain legal rights, such as maintenance, succession, and pension, are currently granted only to
couples who have a legally recognised marriage, and not to LGBTQ people who do not have a
legally recognised marriage. Economic benefits are also available via legislation such as the
Employment Provident Fund Scheme of 1952 and the Workmen's Compensation Act of 1923,
which can be used by people who are only related by blood or marriage. As a result, LGBTQ
people are excluded from these benefits.

Single and unmarried couples have found it incredibly difficult to adopt since the Central
Adoption Resource Authority issued adoption guidelines, and as LGBTQ marriage is not
recognised, they have found it even more difficult to adopt. Furthermore, there have been
ins28tances where LGBTQ people have been sacked from jobs after marrying on the grounds that
their union is neither legally nor socially acceptable.29

Given the preceding arguments, it is reasonable to conclude that marriage rights can pave the
way for both legal and societal recognition, ensuring the social stability of LGBTQ persons.
According to some study researchers, "Civil Unions," which are used by several European and
other countries, including the United States of America, Australia, and New Zealand, are one
possibility for offering such legal and social recognition to LGBTQ people. This, however, is not
a feasible choice for the future.

28 The Employees Provident Funds and Miscellaneous Provisions Act, 1952, No.19, The Workmen’s
Compensation Act, 1923, No. 8.
29 “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and other Queer
relationships in India, ORINAM 1, 4-5 (2011).
 CHAPTER 3: RIGHTS OF LGBTQ COMMUNITY

3.1 INTRODUCTION

The fight for equal rights for LGBT (lesbian, gay, bisexual, and transgender) persons has taken
center stage. In Congress, in courtrooms, and on the streets, LGBT people are fighting for their
civil rights. Public figures are openly discussing their sexual orientation. Gay and lesbian
individuals are shown as full participants in society in movies and on television, not as novelty
characters.
Human rights breaches affect LGBT persons of all ages and from all corners of the globe. They
are assaulted physically, kidnapped, raped, and murdered. People may be prosecuted and
imprisoned (and in at least five nations, executed) for engaging in private, consenting same-sex
relationships in more than a third of the world's countries. In the private domain, such as the
workplace, housing, and healthcare, states frequently fail to sufficiently protect LGBT
individuals from discrimination. LGBT children and teenagers experience bullying at school, and
their parents may force them out of their homes, commit them to psychiatric hospitals, or compel
them to marry.

Transgender people are frequently denied identity documents that represent their preferred
gender, preventing them from working, travelling, opening a bank account, or gaining access to
services. Intersex children and adults are exposed to abuse and discrimination, and they may be
subjected to surgical and other procedures without their or their parents' informed consent. No
matter who they are or where they reside, every human being has the same set of rights. While
context is crucial, all States, regardless of their political, economic, or cultural systems, have a
legal obligation to promote and preserve all people's human rights.

It was not an ordinary day on September 6, 2018. On that day, something significant occurred
that “blew a life of “constitutionality” in the deceased members of the LGBTQ+ community who
had been subjected to decades of mind-numbing toil. The Supreme Court of India delivered a
landmark judgement decriminalising homosexuality by partially striking down Section 377 of
the Indian Penal Code, making the day memorable for the LGBTQ+ community.

The LGBT community exploded in joyous celebrations around the country, celebrating their
victory against a 200-year-old British-era statute that criminalised same-sex relationships. The
significance of this entire decision can be deduced from Justice Indu Malhotra's statement during
her verdict that "History owes an apology to the members of this community and their families,
for the delay in providing redress for the ignominy and ostracism that they have suffered over
the centuries."

This historic occurrence, however, should not be interpreted as the end of a more than two-
decade legal battle against the draconian statute, but rather as the start of a new era in the fight
for LGBT rights. It is fair to conclude that the repeal of the colonial statute was only the top of
the iceberg, and that the LGBT community in India faces a far larger and more difficult battle
ahead.

Despite the decriminalisation of homosexuality, India's laws continue to be hostile and

prejudiced to the LGBT community in a number of ways. The reason behind this is that in India,
there is a huge gap between legislative and judicial development of LGBT laws. So, though the
Supreme Court of India through the landmark judgements of Naz Foundation vs. Union of
India,30 Navtej Singh johar vs. UOI,31 and Justice K.S. Puttaswamy vs. Union of India
(Puttaswamy)32 has established the framework for the gay and non-binary community to be
granted a slew of basic human rights, but the law has fallen behind the times.

So, in essence, same-sex couples now have the legal right to cohabit and conduct their personal
affairs without fear of persecution, but they still face discrimination in a variety of ways. As a
result, it is critical to continue the discourse and discuss the many legislations that continue to
discriminate against LGBT+ people. It covers anti-discriminatory regulations such as the refusal
to recognize same-sex marriages, the denial of adoption and surrogacy rights, and so on. As a
result, the campaign for equality continues, despite the fact that there is still a long road ahead,
fraught with countless challenges, considering that the LGBTQ+ population is still denied civil
rights.

3.2 RIGHTS AT STAKE

LGBTQ people do not claim any "special" or "extra rights," but rather the same rights as
heterosexual people. Basic civic, political, social, and economic rights are denied by law or
practice. In many nations, LGBTQ people are denied equality in rights and before the law due to
unique criminal rules or practices based on sexual orientation. When it comes to same-sex

30 (2014) 5 SCC 438

31 AIR 2018 SC 4321
32 (2015) 6 SCC 433
relationships, rules frequently maintain a greater age of consent than when it comes to opposite-
sex relationships. In India and all parts of the world, the following infractions have been
documented:

a. The right to be free from discrimination and harassment is frequently violated by

removing sexual orientation from anti-discrimination laws, constitutional provisions, or
enforcement.

b. The right to life is violated in places where sodomy is punishable by death.

c. Police procedures, whether in investigations or when LGBTQ people are detained,

infringe on their right to be free from torture or cruel, inhuman, or humiliating treatment.

d. Individuals accused of having a homo/bisexual identify face arbitrary arrest in a number

of nations.

e. Bi-national couples are denied freedom of movement since their same-sex relationship is
not recognised.

f. Judges' and other law enforcement authorities' prejudices frequently affect the right to a
fair trial.

g. Even if the relationship is private between consenting adults, the existence of "sodomy
laws" that apply to lesbians, gays, and bisexuals denies the right to privacy.

h. The freedoms of expression and association may be openly restricted by legislation, or

lesbians, homosexuals, and bisexuals may not be able to exercise them due to the
homophobic milieu in which they live.

i. In the case of lesbians, gays, and bisexuals, religious freedom is typically restricted,
especially in churches that advocate against them.

j. The right to work is the most affected of the economic rights, with many lesbians, gays,
and bisexuals being fired or discriminated against in employment laws and practises
because of their sexual orientation.
 k. Their rights to social security, aid, and benefits, as well as their level of living, are
impacted, for example, when they are required to reveal their spouse's identification.

l. Discriminatory laws and practises, certain physicians' homophobia, a lack of proper

training for health care staff regarding sexual orientation concerns, or the prevalent
assumption that patients are heterosexuals all interfere with the right to bodily and mental
wellbeing.

m. Governments deny the right to create a family by refusing to recognise same-sex families
and denying the rights afforded by the state to heterosexual families that have not sought
legal recognition but nonetheless enjoy a number of benefits. Separation from parents can
also be refused to children based on a parent's sexual orientation. Lesbians, homosexual
and bisexual couples and individuals are prohibited from adopting a child, even if it is
their same-sex partner's child.

n. Because of a dangerous climate produced by classmates or educators in schools, LGBTQ

adolescents may not be able to receive an education.

● RIGHT TO IDENTITY

The fight for equal rights for LGBT (lesbian, gay, bisexual, and transgender) persons has taken
centre stage. In Congress, in courtrooms, and on the streets, LGBT people are fighting for their
civil rights. Public figures are openly discussing their sexual orientation. Gay and lesbian
individuals are shown as full participants in society in movies and on television, not as novelty
characters.

Gender identification is a notion of one's own gender that is deeply felt and experienced. The
gender identity of a person is usually the same as the sex assigned to them at birth. There is a
disconnect between transgender people's perceptions of their own gender and the sex they were
assigned at birth. In some situations, their look, mannerisms, and other outward qualities may be
incompatible with society's gender-normative behaviour norms.
 ● RIGHT TO EQUALITY

The Constitution of India Article 14 stipulates that all citizens are treated equally in the eyes of
the law. While it allows for distinctions between different groups of individuals, it also requires
that the distinctions be based on discernible differences and have a rational connection to the
desired outcome. The Supreme Court found no discernible difference between people "who
supposedly engage in 'natural' intercourse and those who engage in 'carnal intercourse beyond
the order of nature.'"

● RIGHT AGAINST DISCRIMINATION

One of the most essential features of international human rights legislation is the
interconnectedness of the concepts of non-discrimination and equality. Discrimination and
inequality can occur as a result of legal discrepancies in status and entitlements, as well as social
norms that influence community relationships. The necessity of looking at consequences rather
than intentions is emphasised by the principle of non-discrimination. This means that, regardless
of the intentions of policymakers, if a policy regime has a discriminatory effect on a
marginalised group, it is incompatible with human rights standards.

Discrimination against LGBT individuals occurs on a variety of levels. LGBT individuals are
subject to bias at work, in the labour market, in health care, in education, in STI prevention, and
elsewhere because there is no anti-discrimination statute or complaint procedures in place.
Sexual, verbal, and physical assault and harassment based on sexual orientation, gender identity,
or expression are likewise unprotected under the law. In discriminatory legal regimes, marriage,
adoption, inheritance, and other privileges are reserved for heterosexual and non-trans persons.
Because such legal systems and penal codes put LGBT people at risk of persecution, they are
unable to assert their right to protection from violations and discrimination.

Human rights breaches and discrimination against LGBT persons have a negative impact on their
ability to contribute to and benefit from development. As a result of stigma and persecution,
LGBT individuals are usually underprivileged and vulnerable to assault and HIV/AIDS. Living
openly, or even simply being identified with, an LGBT person, might jeopardise one's career,
housing, education, and health-care access. LGBT individuals must be viewed as rights-bearers
and agents with an unalienable right to participate in processes and decisions that affect their life
and society.

The government is prohibited from discriminating against citizens primarily on the basis of their
gender, religion, race, caste, or place of birth, according to Article 15. Previously, this rule was
interpreted to mean that discrimination on any basis was acceptable, not simply the ones listed
above. In the Navtej Johar Case,33 the Supreme Court deviated from this narrow view, stating
that under Article 1534, any kind of discrimination, whether direct or indirect, based on a
particular conception of the function of sex is discriminatory. In this way, the Supreme Court
broadened the scope of Article 15's banned grounds of discrimination to include sexual
orientation, and, therefore, Section 37735 was held to be discriminatory under Article 15.

● RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

LGBT people's ability to declare their identities, exercise autonomy, and participate equally and
with respect in society is dependent on their ability to communicate and express themselves.
People may be more familiar with protections for sexual orientation "coming out speech" than
rights for gender identity.

Article 1936 guarantees everyone the freedom to free speech and expression. According to the
Supreme Court, consensual carnal intercourse among adults in a private context has no impact on
public decency or morals. As a result, Section 377 does not meet the definition of a reasonable
restriction on a person's right to free speech and expression.

● RIGHT TO PRIVACY

33 Supra 15
34 The Constitution of India, 1950
35 The Indian Penal Code, 1860
36 The Constitution of India, 1950
Article 2137 protects the protection of life and personal liberty as a basic right. Over the years, the
Supreme Court has expanded the definition of this right to include the right to a dignified
existence, the right to privacy, and the right to autonomy. The Supreme Court ruled Section 377
to be in violation of these constitutional rights.

A person's sexual orientation is a significant component of their privacy. Discrimination based

on sexual orientation is a slap in the face to a person's dignity and self-worth. Equality means
that each person's sexual orientation is protected on an equal basis in society. Fundamental rights
protected by Articles 14, 15 and 21 of the Constitution 38 include the right to privacy and the
protection of sexual orientation.

3.3 MARRIAGE & ADOPTION

Due to Indian society's prejudiced and orthodox view that "Homosexual Relationships" are
"Immoral and against their respective Cultures and Religions, 39" providing "Marriage Rights" to
the LGBTQ community has been a contentious issue that has created a lot of religious enmity.
Because history has enough evidence and explicit stories about the presence of homosexual
relationships during the mediaeval and colonial periods, such ideology has clearly emanated
from the "Christian Belief System" brought by the British during colonial rule and has been
passed down through generations.40

Despite the decriminalisation of Section 377 of the Indian Penal Code, the LGBTQ community
continues to fight for some key "civil rights," the most famous of which is "marriage," which is a
gateway to a variety of other rights and can lead to social and legal recognition. Current Indian
personal laws, such as the Special Marriage Act, are "Hetero" centric and do not allow
"Homosexual" weddings, which is discrimination against the aforementioned demographic and a
violation of Article 15 of the Indian Constitution.

HINDU MARRIAGE ACT

37 The Constitution of India, 1950
38 Ibid.
39 Vikas Pandey, Why legalizing gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM),
https://www.bbc.com/news/world-asia-india-46620242.
40 Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint (Sept. 11,
2018, 10:22 PM.), 
Hindu Marriage Act governs the marriage and related aspects like divorce etc, of any two
individuals belonging to the Hindu religion. It is applicable to any other person who is by
religion Jain, Buddhist or Sikh within the territory of India. According to the Act marriage in
Hindu religion is considered to have a divine origin and is a sacred union of two individuals for
performing religious duties. In the present environment the most convenient course of action
would be to recognize marriages among same-sex individuals under the personal laws.
The Hindu Marriage Act very specifically states that at the time of marriage the bridegroom must
be of twenty-one years of age bride of eighteen years of age. A similar provision is made in the
Christian Marriage Act using the term man and woman. Almost every Indian personal law
considers marriage as union of heterosexuals. However, same sex marriages are not expressly
prohibited Hindu Marriage Act. In order to recognize them under the personal laws few
approaches that can be possibly made are as follows: 
a. Existing laws can be interpreted so as to allow same sex marriages. 
b. LGBT (lesbian, gay, bisexual, and transgender) can be interpreted as a different
community, the customs of which permits same sex marriages. 
c. Interpretating the Act in such a manner so as to allow same sex marriage, if not
then it would be unconstitutional.
d. And lastly, make relevant amendments in the Act itself. 
Other than using the term bridegroom and bride the Act is neutral in terms of gender. Same sex
marriage can be permissible provided one of them (in homosexual couple) is identified as groom
and another as bride. At one instance the same approach was adopted by a lesbian couple, one
was presented as groom and another was made to be identified as bride.
Although it is opposed to the rules of interpretation of statute and is also not in line with general
understanding of the terms used (bride and groom), the interpretation attempts to mingle same
sex marriage with other traditional forms of marriage. The second approach could be to
recognise LGBT community as a separate community, one which have its own customs and
practices allowing same sex marriage. A similar approach was adopted by Anti-Brahmin and
Arya Samaj. They started self-respect moment and formed their own ritual and practices for
marriage. It was legally recognized when section 7A was inserted in the Act by an amendment in
1967.
The third approach can be interpretating the Act in such a manner so as to allow same sex
marriage. If not, then the Act may be held unconstitutional on the ground it discriminates on
basis of sex and denies them of their basic right. This argument was supported by Delhi High
Court in the case of Naz Foundation.
However, courts may not be flexible to favor such views after Koushal. In the case of State of
Bombay v. Narasu Appa Mali Bombay High Court held that personal laws cannot be tested on
yardstick of fundamental rights. The last approach is to make desired amendments in the
respective personal laws. It is the most workable solutions among all the above. However, it may
prove to be most difficult and controversial at the same time because of disapproving behavior
towards the LGBT community by a few sections of the society. So, if an amendment is not
possible can same sex marriages happen within the existing legislation?

INTERPRETIN HINDU MARRIAGE ACT 

The Hindu Marriage Act lays down certain conditions for a valid marriage, they are:

i. Union of Spirits- The Act doesn’t use specific terms such as male/female
or man/woman. So, homosexuals can be very well incorporated into it. 
ii. Between any two Hindus- The Act mentions, “A Marriage may be
solemnized between any two Hindus…”
iii. No Express Prohibition- The Act doesn’t expressly say marriage can only
be solemnized between two individuals of opposite gender. The Act under
section 2 lists down who all are entitled to marry under it. 
iv. Customary rites and Ceremonies- Section 7 says marriage can be
solemnized following customary rituals of either party. The marriage is
invalidated if rites are not performed properly. These ceremonies need to
be proved for a legitimate marriage under the Act.
v. Bride and bridegroom- Only section 5(ii) and section 7(2) uses the term
bride and bridegroom. Rest all other section mentions neutral terms like
‘person’ or ‘party’. The term bride and bridegroom may be interpretated as
roles which parties may prefer in a relationship. Hence, the Act is neutral
other than using bride and bridegroom in these two sections. Therefore,
 we can reasonably contend that same sex can solemnize their marriage if
one plays the role of bride and another plays bridegroo

UNDER MUSLIM LAW

In Islam, marriage acts as an outlet for sexual needs and regulates it so one does not become a
slave to his/ her desires. It is a social necessity because through marriage, families are
established and the family is the fundamental unit of the society. Islam takes a middle of the road
position to sexual relations, it neither condemns it like certain religions, nor does it allow it
freely. The conjugal relationship between a man and a woman becomes lawful through marriage.
Furthermore, it provides a legitimate outlet for recreation as well as procreation. Islam regards
sex as natural and good, but restricts it to the partners of marriage so as to ensure the
responsibility for its consequences.41

In strict compliance with the provisions of the Qur'an and Hadith of the Prophet (SAW), Islam
considers same sex marriage a punishable crime and a sin. This is because it clashes with the
natural order in which God created human beings as it brings destruction of the family and the
institution of marriage. The Qur'an cites the story of the people of Lot (also known as the people
of Sodom and Gomorrah), who were destroyed by the wrath of God because they engaged in
lustful carnal acts between men.42

And (We sent) Lot when he said to his people: What! do you commit an indecency which
anyone in the world has not done before you? Most surely you come to males in lust
besides females; nay you are an extravagant people. And the answer of his people was no
other than that they said: Turn them out of your town; surely they are a people who seek
to purify (themselves). So We delivered him and his followers, except his wife; she was

41 Prinxess, IM., “Marriage in Islam – Purpose and Virtues”,

42 See the following Verses of the Holy Qur’an: 7:80–84, 11:77–83, 21:74, 22:43, 26:165–175,
27:56–59, and 29:27–33,
 of those who remained behind. And We rained upon them a rain; consider then what was
the end of the guilty.43

The Qur'an further describes that everything has been created in pairs which complement
one another. Pairing of male and female is thus part of human nature and the natural
order. Marriage and family is the accepted way in Islam for a person's emotional,
psychological, and physical needs to be met. The Qur'an describes the husband/wife
relationship as one of love, tenderness, and support. Procreation is another way of
fulfilling human needs, for those whom God blesses with children. The institution of
marriage is considered the foundation of Islamic society, the natural state in which all
people have been created to live.44

However, the four schools of Islamic jurisprudence dealt with same sex marriage
differently, but agreed that homosexuality is worthy of a severe penalty. In the Hanafi
School, the homosexual is first punished through harsh beating, and if he/she repeats the
act, the death penalty is to be applied. The Hanafi differentiates between the two acts
because in homosexuality, anal sex [something that is prohibited, regardless of
orientation] may also be involved, while in adultery and fornication, the penis/vagina
(which are reproductive parts) are involved.

As for the Shafi`i school of thought, the homosexual receives the same punishment as
adultery (if he/she is married) or fornication (if not married). This means, that if the
homosexual is married, he/she is stoned to death, while if single, he/she is whipped 100
times. Hence, the Shafi`i compares the punishment applied in the case of homosexuality
with that of adultery and fornication. Against this, the Hanbali School held that sodomy is
a form of adultery and must incur the same penalty, i.e. death.45

Some scholars, based on the Qur'an and various hadiths, hold the opinion that the
homosexual should be thrown from a high building or stoned to death as a punishment

43 Qur’an Chap 7 Verse 80 - 84

44 Huda, “Homosexuality in Islam”, < https://www.learnreligions.com/islam-important-
principles-4684870>

45 Ibid.
 for their crime, but other scholars maintain that they should be imprisoned until death.
Another view is that between two males, the active partner is to be lashed a hundred
times if he is unmarried, and killed if he is married; whereas the passive partner is to be
killed regardless of his marital status.

Prophet Muhammad (SAW) was reported to have said, “If you find anyone doing as Lot's
people did, kill the one who does it, and the one to whom it is done.” He even went so far
as to condemn the appearance of homosexuality, when he cursed effeminate men and
masculine women and ordered his followers to "Turn them out of your houses." This
ruling on homosexuals was naturally adopted by his later successors. Caliph Abu Bakr
had a homosexual burned at the stake. Caliph Ali ordered homosexuals to be stoned, and
even had one thrown from the minaret of a mosque. These actions quite obviously pre-
date any sort of Western influence on Islamic thought.46

Some scholars47 quoted the Prophet (SAW) as cursing sodomites in several hadith, and
recommending the death penalty for both the active and passive partners in same-sex
acts. The Prophet Muhammad (SAW) was reported to have said: "Whoever you find
committing the sin of the people of Lut (Lot), kill them, both the one who does it and the
one to whom it is done”. The overall moral or theological principle is that a person who
performs such actions (luti) challenges the harmony of God's creation, and is therefore a
revolt against God.

With few exceptions, all scholars of Islamic law interpret homosexual activity as a
punishable offence as well as a sin. Some scholars8 argued that the hadith on killing
homosexuals are not reliable by any means and no legal punishment can be prescribed
based on them."

● MARRIAGE RIGHTS: A KEY TO THEIR SOCIAL INCLUSION

46 Wikislam, “Islam and Homosexuality,” op cit

47 Ibn al-Jawzir
The LGBTQ community has been fighting for their right to marry for years. The campaign is not
just for legal recognition of their marriage, but also for the various benefits that come with
marriage, which are not available to "Homosexual" couples since they lack the legal right to
marry in the first place. Homosexual couples simply want to be included and welcomed without
prejudice, as well as to be able to join a legally recognised partnership. There are several strong
and practical reasons to provide them the legal right to marry.48

A legally recognised marriage could assist pave the way for other legal rights and many health,
social, and economic benefits for same-sex couples, leading to their social and legal recognition.
Certain legal rights, such as maintenance, succession, and pension, are currently granted only to
couples who have a legally recognised marriage, and not to LGBTQ people who do not have a
legally recognised marriage. Economic benefits are also available via legislation such as the
Employment Provident Fund Scheme of 1952 and the Workmen's Compensation Act of 1923,
which can be used by people who are only related by blood or marriage. As a result, LGBTQ
people are excluded from these benefits.

Single and unmarried couples have found it incredibly difficult to adopt since the Central
Adoption Resource Authority issued adoption guidelines, and as LGBTQ marriage is not
recognised, they have found it even more difficult to adopt. Furthermore, there have been
instances49 where LGBTQ people have been sacked from jobs after marrying on the grounds that
their union is neither legally nor socially acceptable.50

Given the preceding arguments, it is reasonable to conclude that marriage rights can pave the
way for both legal and societal recognition, ensuring the social stability of LGBTQ persons.
According to some study researchers, "Civil Unions," which are used by several European and
other countries, including the United States of America, Australia, and New Zealand, are one
possibility for offering such legal and social recognition to LGBTQ people. This, however, is not
a feasible choice for the future.

48 Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 99-100 (2014)
49 The Employees Provident Funds and Miscellaneous Provisions Act, 1952, No.19, The Workmen’s
Compensation Act, 1923, No. 8.
50 “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and other Queer
relationships in India, ORINAM 1, 4-5 (2011).
 ● ADOPTING THE ‘CIVIL PARTNERSHIP’ MODEL FOR THE LGBTQ
COMMUNITY IS NOT A FAIR ALTERNATIVE

“Marriage isn't just a contractual arrangement between two people to receive legal benefits and
rights from one another. It serves the dual purpose of providing legal and social recognition to a
relationship.”51

There is no doubt that implementing the "Civil Partnership" model has advantages, especially in
a country like India, where society is slightly orthodox and prejudiced toward the LGBTQ
community and their partnerships, because it is less likely to elicit religious opposition and
avoids the acrimonious debate over whether "marriage" is required. However, such a paradigm
has several disadvantages. So, what are the disadvantages of it as a marriage substitute?

To begin with, civil partnerships essentially give the community with a lower-status alternative
than marriage, which is inherently discriminatory52. Second, marriage as a cultural, historical,
and social institution has cultural, historical, and social value that civil unions do not. As a result,
the two institutions are not on the same level. 53 Third, if India adopts a civil-partnership model, it
will necessitate not only new civil-partnership legislation, but also amendments to existing
legislation such as the Indian Succession Act of 1925, the Guardian and Wards Act of 1890, the
Workmen's Compensation Act of 1923, and a slew of other laws governing adoption, pensions,
and so on. Above all, the 'Civil Union' model can never give LGBTQ people with the same
social status that marriage does for 'Heterosexual' couples.54

Thus, seeking legislation to recognise Civil-Unions for the LGBTQ community is not a fair
alternative. However, there is one other way for doing so, i.e., through the Personal Laws
operating in India, which governs various religious communities.

51 Ruth Vanita, Same-Sex Weddings, Hindu Traditions and Modern India, 91 F.R. 47, 52-53 (2020).
52 Supra 20
53 Ibid.
54 Nicola Barker, Not the Marrying Kind – A Feminist Critique of Same-Sex Marriage, PMSLS 1, 48-49 (2012).
3.4 HOMOSEXUAL MARRIAGE UNDER THE PERSONAL LAWS

“To deny people their Human Rights is to challenge their very Humanity” -Nelson Mandela

While the LGBTQ community fights hard for civil rights, particularly in the area of marriage, it
is also notable that marriage is still referred to as a heterosexual institution related with
procreation in India's current socioeconomic landscape. The landmark judgments in the cases of
Naz Foundation vs. Government of NCT of Delhi 55 and Navtej Singh Jauhar vs. Union of India 56,
on the other hand, are a major step toward changing the perception of same-sex unions in India
by recognising the third gender category and thus granting them all human and fundamental
rights. In spite of everything, the demand for legalizing homosexual marriages is giving birth to
new friction in the institution of marriage, family, and law, which cannot be denied.57

For the purpose of marriage, several religious communities in India are controlled by their own
Personal Laws, which envision marriage between a ‘Man' and a ‘Woman.' However, none of
these personal laws describe marriage as a "heterosexual partnership."58

For example, the Hindu Marriage Act of 1955 represents Hindus, Sikhs, Jains, and Buddhists,
and states that a marriage between any two Hindus may be solemnised. Further saying in section
5 (iii), "conditions for a Hindu Marriage," that the "Bride" and "Bridegroom" must have reached
the ages of "eighteen" and "twenty-one" years, respectively, for the purpose of marriage.59

The terms ‘Bride' and ‘Bridegroom' clearly refer to a ‘Heterosexual' union. Similarly, section 60
of the Christian Marriage Act of 1872 specifies that the age of a ‘Man' and a ‘Woman' for the
purpose of marriage should be ‘Twenty-one' and ‘Eighteen,' respectively. As a result, it has
proven to be ‘Heterosexual' in nature.

Marriages are also considered a 'Heterosexual Union' by Muslims. They do not have a particular
definition of marriage because they are not bound by any statute. Marriages among them, on the

55 JEFFREY A. REDDING, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey” & “Kim
Brooks” eds., Routledge, 2010).
56 Ibid
57 Supra 13
58 Supra 15
59 Amber Tanweer, LGBT Rights in India, 2 I.J.L.M.H. 1, 6-7 (2018).
other hand, are frequently regarded to be an agreement with the end purpose of ‘procreation,'
emphasising the heterosexual aspect of the relationship. Thus, all Indian Personal Laws depict
marriage as a heterosexual partnership by utilising terms such as "bride and groom," "husband
and wife," and so on, demonstrating its "heterosexual" nature.

Given the foregoing discussion of various aspects of various Personal Laws, it appears that
granting marriage rights to LGBTQ groups under these laws will be problematic, as they do not
recognise ‘Homosexual Marriage.' However, some study researchers believe that amending these
personal laws is one strategy to accomplish so. However, it does not appear to be a very practical
strategy.

HINDUISM: While Hinduism's adherents have differing views on homosexuality as a whole.

There is, however, ample literature in Hinduism that speaks volumes about same-sex
relationships and, by extension, same-sex weddings.

In India, carvings representing same-sex partnerships can be found in temples. In mythical

stories, such as the birth of God Ayappa from Lord Shiva and Lord Vishnu, examples can be
found. Some historical evidences of same-sex partnerships include the storey of Bhagiratha
being born from two women who had sexual intercourse under heavenly blessings, descriptions
of gay actions in Kamasutra, a queer character ‘Sikhandi' in Mahabharata, and homosexual
Tantric ceremonies. However, homosexuality is prohibited in some writings, although this is
based on the concept that humans place too much emphasis on sex.

ISLAM: The Quran and Muhammad's Sunnah are used to create Islamic Shariah law. In Islam,
homosexuality is clearly a vice that is penalised. All four primary schools of Sunni jurisprudence
have the same position. Furthermore, according to Islamic traditions, effeminate men and macho
women are cursed and should be driven out of their homes.

CHRISTIANITY: The only point of contention in Christianity regarding homosexuality is how

homosexuals should be handled. Should they be treated as criminals or should their actions be
changed? The position is clear in both cases: homosexuality is forbidden in Christianity.
PARSIS: Homosexuality is also regarded wicked in Zoroastrianism and is strictly prohibited.
However, some followers accept LGBT+ persons and believe that the aforementioned
interpretation is a perversion of the fundamental principle of "good thinking, good word, good
deed."

JAINISM AND BUDDHISM: The viewpoint of Jains is extremely clear. Apart from
homosexuality, they condemn any forms of sexual behaviours that are not done for the sake of
reproduction, which means that premarital sex, heterosexual sex, or sex for amusement are all
prohibited.

Buddhists believe that any sexual activity is permitted as long as it is voluntary and motivated by
love. Similarly, the Dalai Lama believes that homosexual intercourse is OK as long as no one is
injured and it is totally consenting.

SIKHISM: Because the sacred teachings are quiet on the subject, no same-sex marriages are
permitted in Sikhism's gurudwaras. The importance of debating the religious status of same-sex
marriages is a must before any policy or law on same-sex marriages is drafted. Because almost
all of the personal laws that govern marriages are derived from the available religious literature.
Keeping in mind that, with the exception of Hinduism and Buddhism, homosexuality is
considered disgusting and undesirable in most religions. As a result, any changes to personal
legislation relating to LGBT+ cannot be a viable answer in the current situation.

This must also be considered in light of the fact that earlier attempts to enact a uniform civil code
(UCC) in India have been met with fierce opposition, as minorities fear that the UCC will restrict
their religious freedom. This is essentially why the law commission rejected the UCC as a
recommendation in August 2018.

In this circumstance, amending the Special Marriage Act, which will be described later in this
article, would be the most plausible method of achieving legislative recognition of same-sex
marriages.

● AMENDMENT TO PERSONAL LAWS IS NOT A PRACTICAL APPROACH

“I’m equal towards all living beings, no one is hated by me and no one is beloved. Those who
worship me with devotion, however, are in me, and I’m in them”. -Bhagavad Gita 9.29

According to ancient and mediaeval study and evidence, India had a liberal, mainly
latitudinarian, humanistic, and diversified spectrum of attitudes toward the sexes, including
‘Homosexuality,' with explicit warnings against attachment, addiction, and obsession. 60
Furthermore, no Indian faith has ever officially condemned homosexual marriages or unions. In
addition, historic Indian court decisions have decriminalised Section 377 of the Indian Penal
Code and declared discrimination based on sexual orientation a violation of Article 15 of the
Indian Constitution.61

Nonetheless, Indian society maintains a conservative attitude about homosexuality, which stems
from British notions that “gay marriages and relationships are not compatible with nature and are
not natural.”62 As a result, Indian society continues to regard it as "immoral" and "incompatible
with their separate religions." They are also unable to accept things because of their
preconceived view that such relationships were not recognised in traditional Indian society.

Because of this orthodox approach, it is now difficult and impossible to seek revisions to
personal laws to offer recognition and marriage rights to the LBGTQ population, since this
would result in considerable opposition and protests from various religious groups. A change
could also cause ambiguity in various personal laws. Furthermore, because Sharia law does not
recognise homosexual marriages, Muslims are unable to perform ‘Homosexual Marriages' if they
follow their personal laws, and amending Muslim personal laws is a difficult undertaking
because it is regarded as a direct revelation from Allah.63

Furthermore, some people may see a change in their own laws as an attack on their religious
beliefs. As a result, amending the personal laws to offer LGBTQ individuals rights does not

60 Manoj Mittal, Ancient India didn’t think homosexuality was against nature, The Times of India,
(Jun.27,2009,00:18AM), https://timesofindia.indiatimes.com/india/Ancient-India-didnt-think-homosexuality-was-
against-nature/articleshow/4708206.cms.
61 Supra 13
62 Vikas Pandey, Why legalising gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM),
https://www.bbc.com/news/world-asia-india-46620242.
63 Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view
will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM).
appear to be a viable option. Nonetheless, in light of the foregoing arguments, an amendment to
the Special Marriage Act, 1954 is the most practicable option, and it is likely to be the most
successful for the aim of extending LGBTQ individuals marriage rights.64

● AMENDMENT TO SPECIAL MARRIAGE ACT

“Legislation and Adjudication must follow and conform to the progress of society”. -Abraham

Lincoln.

It is the most practical approach of granting LGBTQ individuals marriage rights. Because of
society's preconceived notions about the LGBTQ+ community, amending personal laws to allow
for LGBTQ+ marriage may face widespread opposition from many religious communities and
may harm religious sentiments of many people. As a result, the only practical way to grant
marriage rights to the aforementioned community is to amend the Special Marriage Act 1954,
which should not cause religious animosity because it does not bind people to any religious
restrictions and can be used by people who do not want to be bound by their personal laws.

Furthermore, unlike personal laws that refer to religious ceremonies for the purpose of marriage,
the marriage is recognised by a marriage registrar, resulting in a simple civil marriage. 65 Despite
the Act's secular nature, which even allows inter-religious marriage, it appears to be "Hetero"
orientated, thereby discriminating against "Homosexual" people.66

This may be seen by looking at Section-4(c) of the aforementioned Act, which states that “for the
purpose of marriage, the ‘male' and ‘female' must have attained the age of ‘twenty-one' and
‘eighteen' years, respectively.” The phrases 'Male' and 'Female' in this section plainly show that
the Act is 'Heterosexual' in character and does not recognise 'Homosexual' marriage. So, how do
we get rid of this discrimination towards ‘Homosexuals'?

64 The Special Marriage Act, 1954

65 Ibid
66 R.Venkadesh kumar, A Study on the Legal Recognition of the Same-Sex Marriage, 120(5) I.J.P.A.M. 2946,
2949-2950 (2018).
It is, however, not difficult to adapt to same-sex marriage within the scope of the Special
Marriage Act 1954. All it takes is a change to Section-4(c) to make the provision read as follows:

a. “For the purpose of marriage, the parties if ‘males' and ‘females' must have attained the
age of ‘twenty-one' and ‘eighteen' years, respectively,” and to include a clause stating
‘Same-sex weddings are authorised';

b. Also, because it has been decriminalised by the court, the term "Sodomy" as indicated
under Section 27(1-A) should be defined in a much better manner.

c. In the Special Marriage Act of 1954, the terms "husband" and "wife" should be
interpreted with respect to LGBTQ+ individuals.

As a result, the Special Marriage Act of 1954 must demonstrate its adherence to Article 15 of the
Indian Constitution by allowing same-sex marriages on the basis that it would otherwise be
discriminatory against same-sex couples, thereby violating Article 15.

“Legislation should be the voice of a reason”. -Pythagoras of Samos.

The above discussions have made the importance of granting ‘Marriage Rights’ to the LGBTQ
community clear, along with some suggestions as to rectifications required in the contemporary
Indian laws for the purpose of granting such rights to them.

The problem is that awarding marriage rights and social and legal recognition to the
aforementioned population in a traditional country like India, as it has been in Western countries,
is difficult. But, putting that aside, it is past time for the Legislature to come up with a
meaningful remedy, maybe by amending the Special Marriage Act of 1954, as suggested.

There are various international examples that support the idea that a law prohibiting same-sex
couples from marrying is unlawful. The same argument should be used in India to amend the
Special Marriage Act, 1954, on the grounds that if secular legislation such as the Special
Marriage Act only allowed marriage between couples of the opposite sex, it would be
discriminating against same-sex couples on the basis of sexual orientation, which would be in
violation of Article-15 of the Constitution, he said.

Similar clauses about ‘Marriage rights' must also be included in the recently proposed
‘Transgender Persons Rights Bill,' in order to guarantee transgender people marriage rights. I
also propose the establishment of a "National Commission for the LGBTQ+ Community," which
would seek to promote the community's interests, welfare, and progress. The LGBTQ
community may benefit from increased social inclusion and legal recognition as a result of this.

“There is nothing wrong with you. There’s a lot wrong with the world you live in” – Chris Colfer

3.4 TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

The Transgender Persons (Protection of Rights) Act, 2019, was passed with the goal of
protecting transgender people's rights by outlawing discrimination in employment, education,
healthcare, and access to government and private businesses. However, in the name of
community empowerment, the bill exposes individuals to more institutional tyranny and
dehumanizes their bodies and identities. The trans community in India has vehemently rejected
the bill citing following provisions of the bill as they infringe their fundamental rights and do not
comply with the NALSA judgement.

a. The measure takes away an individual's ability to choose his or her sexual orientation,
which is a key component of the right to privacy established by the NALSA decision.
According to the bill, changing one's gender identity on official records is only possible
after proof of sex reassignment surgery, which must be verified by a District Magistrate.
This deprives the Trans community of their essential human right to autonomy and
privacy, as well as exposing them to harassment by authorities.

b. Another discriminatory component of the measure is that the punishment for "sexual
abuse against transgender people" is merely two years, although a comparable offence
committed against women can result in a harsh penalty of up to seven years. As a result,
imposing different levels of punishment for the same type of conduct based only on
 gender identity is inherently discriminatory, arbitrary, and in violation of the equal
protection principle.

c. The law is also worthy of criticism since it incorrectly ignores the violence and tragedies
that transgender people face inside their own families. The law makes it illegal for people
to leave their families and join the trans-community, infringing on their right to join any
association and their freedom of movement. In the event of family abuse, the trans
community's only option is to go to a rehabilitation center.

d. Despite the fact that the bill aims to give “inclusive education and opportunities” to the
transgender population, it lacks a comprehensive plan to do so. There are no provisions
for scholarships, reservations, modifying the curriculum to make it LGBT+ inclusive, or
ensuring safe inclusive schools and workplaces for transgender people.

As a result, it can be stated that although the courts are taking progressive efforts to strengthen
and uphold the LGBTQIA+ community's rights, the legislature is invalidating those same rights.
It is past time for the government to recognise and enact laws in conformity with the landmark
decision, or the LGBTQ community will continue to endure setbacks in their fight for equal
rights to those enjoyed by heterosexuals.

● SAME-SEX MARRIAGES

The Special Marriage Act of 1954 makes it possible for Indian citizens and Indian nationals
living abroad to marry regardless of their creed, caste, or religion. So, while India's marriage
laws have evolved through time, there is now no provision for same-sex couples to marry, which
seems sensible given that the Supreme Court only decriminalised homosexuality two years ago.
However, the legislature will have to address these issues sooner or later.

Several legal cases involving same-sex marriages are now pending. The next step for LGBT
campaigners is to lobby and demand that the government pass legislation allowing LGBTQ
couples to marry, adopt children, and inherit their spouse's assets. The fact is that, while the
Union government left the constitutionality of section 377 to the courts in 2018, it has also
signalled that it will likely oppose any petition for same-sex marriage.

However, in light of recent legal decisions, this appears to be contradictory, given that if we truly
wish to adhere to the principle of equality in the context of LGBT persons, then the ability to
marry, inherit property, and share insurance (medical and life) must all be included. As a result,
denying these fundamental rights only because of one's sexual orientation is unacceptable and
unlawful, as it violates the constitutional rights to equality (Article 14) and liberty (Article 15).
(Article 19).

● RELEVANCE OF MARRIAGE

Marriage has long been regarded as one of humanity's most powerful and vital institutions.
Marriage has evolved and taken on new forms over time, but one thing has remained constant: it
is still a universal fact. This is particularly true in India, where the concept is so deeply ingrained
that everyone is expected to be a part of it.

Marriages and weddings are regarded as spiritual events in India. Marriage is a relationship built
on economic and emotional interdependence, in addition to regulating sex life. The religious rites
that are held are all considered to be an important element of the wedding. This may explain why
the LGBT population in India is so keen to obtain the legal right to marry, or why there have
been so many reported occurrences of gay and lesbian marriages in India including the exchange
of garlands in temples or quasi-legal friendship contracts.

The denial of marriage rights to LGBTQ+ people denies same-sex couples social and legal
recognition, as well as state benefits enjoyed by married people. It is important to note, however,
that the institution of marriage has been exclusionary towards certain groups of people since its
inception, and whenever any group of people has been included or excluded from being able to
marry, it has always been accompanied by a battle between public policy, religion, and social
norms.

● IS RIGHT TO MARRY A LEGAL RIGHT

The right to marry is not recognised explicitly in the constitution. The supreme court interpreted
it to be a component of Article 21 of the Indian constitution in the landmark case of Lata Singh
vs. State of Uttar Pradesh67. In this instance of inter-caste marriage, the supreme court ruled that
once a person attains major status, he or she is free to marry whoever he or she wishes. The court
went on to say that the most a parent may do is cut all relations with their children, but that they
cannot threaten or kill them.

The right to marry is recognised at the international level in the human rights charter under the
heading "right to have a family" and in many other treaties, but whether these rules are broad
enough to include same-sex marriages remains a dispute. Another key issue to note is that,
despite the fact that the world is spreading, Indian society is still conservative, and people do not
prefer or allow their children to marry outside their caste. Because people are still killed for
marrying outside their caste or religion, it seems reasonable to assume that same-sex marriage
will be considerably more difficult to accept.

However, this reason cannot be used to deny the right to marriage to the entire LGBT+
population simply because they are of a different sexual orientation than others. Apart from that,
it also raises the important question of whether the majority's opinion has such weight in the eyes
of the law that it can deprive an individual of personal autonomy and the fundamental right to
live his or her own life.

● INSTANCES OF SAME-SEX MARRIAGES

Despite the fact that there is no regulation governing same-sex couple marriages in India. LGBT
persons can still marry, and the courts have recognised these types of unions in the past. The
Haryana court essentially recognised marriage between two lesbians after homosexuality was
decriminalised in 2009. However, the Supreme Court's repeal of Section 377 in 2019 was a more
momentous decision. In 2019, a Madras High Court panel upheld a biological man's marriage to
a trans woman under the Hindu Marriage Act 1955, and the court also ordered that their marriage
be registered.

67 AIR 2006 SC 2522 

At the communal level, there are some similar examples of same-sex marriage acceptability. In
1988, two police officers married in a Hindu wedding. Their marriage was welcomed and
supported by their families and the society despite the fact that it was not recorded. Apart from
that, for the past 150 years, same-sex marriages have been taking place among the Kutchi in the
small village of Angaar in Gujarat, where both the bride and groom are men.

It's also worth noting that the majority of same-sex marriages, particularly lesbian nuptials, have
taken place in small-town, lower-middle-class or non-English-speaking women who aren't even
affiliated with the LGBT movement.

CONCLUSION
LGBT people of all ages and from all over the world are affected by human rights violations.
Physically abused, kidnapped, raped, and murdered. In more than a third of the world's countries,
people can be punished and imprisoned (and in at least five countries, executed) for engaging in
private, consenting same-sex relationships. States routinely fail to adequately protect LGBT
people from discrimination in the private sector, such as the workplace, housing, and healthcare.
LGBT children and teenagers face bullying at school, and their parents may evict them, commit
them to psychiatric facilities, or force them to marry.

Transgender people are routinely denied identity credentials that reflect their preferred gender,
making it impossible for them to work, travel, create a bank account, or access services. Intersex
children and adults face discrimination and abuse, and they may be subjected to surgery and
other procedures without their or their parents' consent. Every human being has the same set of
rights, regardless of who they are or where they live. While context is important, all states have a
legal commitment to promote and protect all people's human rights, regardless of their political,
economic, or cultural systems.

CHAPTER-4: INTERNATIONAL INSTRUMENTS

4.1 INTRODUCTION
A treaty (also known as an agreement, convention, or protocol) is an international legal
instrument that can be binding on the contracting governments. The text of a treaty is recognised
as valid and definitive after talks are ended, and the representatives of nations "sign" it to that
effect. A state's consent to be bound by a treaty can be expressed in a variety of ways.
Ratification and accession are the most prevalent. The states that have negotiated a new treaty
are said to have "ratified" it. A state that did not participate in the talks may "accede" to the
treaty at a later date. The treaty enters into force when a pre-determined number of states have
ratified or acceded to the treaty.

If a state ratifies or accedes to a treaty, it may make reservations to one or more of the treaty's
provisions, unless the treaty expressly prohibits reservations. Reservations can often be cancelled
at any time. International treaties may take precedence over national law in some nations; in
others, a particular law may be required to give an international treaty the force of a national law,
even if it has been ratified or acceded to. In order for an international treaty to be completely
effective on national territory, all states that have ratified or acceded to it must issue decrees,
alter existing laws, or establish new legislation.

Binding treaties can be used to compel the government to follow treaty obligations that pertain to
LGBTQ people's human rights. Non-binding instruments, such as declarations and resolutions,
can be used to shame governments by exposing them to the public (governments who care about
their international image).

4.2 UNITED NATIONS

ILO CONVENTION ON DISCRIMINATION IN EMPLOYMENT OR OCCUPATION 1958: 68

The International Labour Organization's Convention on the Elimination of Discrimination on the
Basis of Sexual Orientation does not prohibit discrimination on the basis of sexual orientation,
but it allows allow states to establish additional reasons. In Australia, the Convention's
incorporation into domestic legislation contributed to the 1992 ban on lesbians and homosexual
men serving in the armed forces.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966: 69

68 (Article 1)
Because the Human Rights Committee held in the case Toonen vs. Australia70 in 1994 that the
references to "sex" in Articles 2, paragraph 1 (non-discrimination) and 26 (equality before the
law) of the ICCPR should be taken to include sexual orientation, the Covenant, the main
international treaty on civil and political rights, is important for sexual orientation. As a result of
this case, Australia's state of Tasmania abolished a legislation that made sexual actions between
males illegal. With this case, the UN Human Rights Committee set a precedent for addressing
discrimination against lesbians, gays, and bisexuals within the UN human rights system.

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT 198471: Because torture is defined broadly in Article 1 of the
treaty, it is not limited to state actors (governments). "any act by which a person is intentionally
inflicted with severe pain or suffering, whether physical or mental, for the purpose of obtaining
information or a confession from him or a third person, punishing him or a third person for an act
he or a third person has committed or is suspected of having committed, intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind. This shows the
intention to address cases falling within the scope of the treaty when a state does not investigate
or prevent them.

CONVENTION ON THE RIGHTS OF THE CHILD 1989 72: Article 2 of the Convention on the
Rights of the Child prohibits discrimination and requires states to protect children from it. This
treaty may be useful in eliminating discrimination against lesbian, gay, and bisexual children
and/or parents based on their sexual orientation.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN (CEDAW) 1981: This treaty can be relevant in cases of discrimination
against lesbian, bisexual or transgender women.

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES: The United Nations High
Commissioner for Refugees (UNHCR) has recognised homosexuals and lesbians as members of
a "particular social group" for the purposes of the 1951 Convention and the 1967 Protocol

69 (Article 2, 26)
70 CCPR/C/50/D/488/1992
71 (Article 1)
72 (Article 2)
Relating to the Status of Refugees in many Advisory Opinions since April 1993. "Homosexuals
may be eligible for refugee status on the grounds of persecution because of their membership of
a particular social group," the UNHCR writes in its document "Protecting Refugees." The
UNHCR has a policy of recognising people who are being attacked, subjected to inhumane
treatment, or face substantial prejudice because of their homosexuality and whose governments
are unable or unwilling to protect them.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: The right to life, privacy, health,
and equality before the law are all included in the Universal Declaration of Human Rights, as
well as the right to freedom of expression and freedom from discrimination and violence,
including torture. In a number of nations, lesbian, gay, bisexual, and transgender (LGBT) people
face persistent persecution and egregious abuses of their fundamental human rights. Because
they live in a society that does not tolerate their sexual orientation, gender identity, or gender
expression, many LGBT people fear or risk incarceration, torture, abuse, and even death.

The following are examples of how articles from the Universal Declaration of Human Rights can
provide a basis for dialogue on LGBT persons’ Human Rights:

ARTICLE 13 & 14: “Everyone has the right to freedom of movement and residence within each
state's borders” and “Everyone has the right to seek and receive asylum from persecution in other
countries.” Homosexual actions are illegal in over 85 nations and territories, making it more
difficult for LGBT people to find a safe haven. For someone who is constantly threatened with
being discovered, excluded, imprisoned, or executed, this may be the last option. Similarly,
many nations do not recognise same-sex relationships, which could be another reason for
migration.

ARTICLE 23: “It is everyone's right to work.” LGBT people are often discriminated against in
the workplace in many nations. This creates challenges in terms of financial and social
independence, as well as provision.

ARTICLE 25: “Everyone has the right to a level of living sufficient for his or her own and
family's health and well-being.” Violations of the right to be free of discrimination set in motion
a vicious circle of limited options, which can lead to poverty. When the healthcare system is built
on the presumption that all patients are heterosexual, LGBT people's right to health is ignored.

UN EXTRA-CONVENTIONAL MECHANISMS: In emergency situations, the UN's non-treaty-

based tools are very important. The United Nations Commission on Human Rights, which
debates human rights, approves resolutions, and initiates new treaties, operates primarily through
Special Rapporteurs (assigned for specific nations or subjects) and Working Groups. The Special
Rapporteur on Extrajudicial, Arbitrary, or Summary Executions and the Special Rapporteur on
Violence Against Women have both addressed sexual orientation in their reports and actions.

4.3 AFRICAN UNION

AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS 1986: The Organization of

African Unity (now African Union) adopted this convention, which is the most widely
acknowledged regional human rights instrument, with more than fifty countries having ratified it.
It prohibits discrimination and guarantees some rights, but the African Commission on Human
and Peoples' Rights, which is in charge of monitoring and enforcing it, has yet to address sexual
orientation.

4.4 COUNCIL OF EUROPE

● CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS 194973: The Convention makes no explicit reference of
sexual orientation in any of its sections. Nonetheless, the Convention's (abbreviated as
ECHR) relevance was established in a series of cases where the European Court of
Human Rights found that discrimination in criminal law regarding consenting adult
private relationships is in violation of article 8 ECHR's right to respect for private life
(Dudgeon vs. UK, 198174, Norris vs. Ireland, 198875, Modinos vs. Cyprus, 199376).

73 (Article 8, 14)

74 [1981] ECHR 5, (1982) 4 EHRR 149, IHRL 31 (ECHR 1981),

75 (1988) 13 EHRR 186; [1988] ECHR 22
76 7/1992/352/426
 The court was the first international organisation to establish that criminalising sexual
orientation violates human rights, and it has the longest and most extensive jurisprudence
on the subject. A 1997 ruling by the European Commission on Human Rights (previous
first authority for individual complaints) found that a higher age of consent for male
homosexual actions than for heterosexual acts was discriminatory treatment in violation
of Article 14 ECHR in the enjoyment of the right to privacy. (Sutherland vs. UK77).

In the case of sexual orientation discrimination in the military, the Court ruled that the
ban on gays serving in the military was in violation of Article 8 of the European
Convention on Human Rights (Lustig Prean and Beckett vs. UK, 200078). Also in 2000,
the Court ruled that a state can violate the Convention by convicting a man for having
homosexual group intercourse in secret. (ADT vs. UK79).

In Salgueiro da Silva Mouta vs. Portugal80, the Court concluded that a homosexual father
cannot be denied custody of his kid because of his (homo)sexual orientation, as this
would violate the father's right to family life under Article 8 of the ECHR. The Court
confirmed that Article 14 of the European Convention on Human Rights (non-
discrimination) should be construed to include sexual orientation. The Court's judgments
on the application of the Convention to sexual orientation concerns, however, have some
limitations. For example, the Court has concluded that gay sadomasochistic behaviours,
even when carried out in secret and between consenting adults, can be forbidden for
health grounds. (Laskey, Jaggard, and Brown vs. UK81, 1997).
The Court also ruled that the 'right to privacy and family life' does not apply in the
situation of a transgender relationship, and that the UK's judgement that only a biological
male, not a female-to-male transgender, can be acknowledged as a father is correct. (X, Y
and Z vs. UK82, 1997).

77 Application no. 25186/94

78 [1999] ECHR 71
79 ECHR 2000-IX, [2000] ECHR 402, (2001) 31 EHRR 33, (2000) 2 FLR 697,
80 (Application no. 33290/96)
81 24 Eur. H.R. Rep. 39 (1997).

82 75/1995/581/667
 ● EUROPEAN SOCIAL CHARTER (1949): This treaty safeguards social and economic
rights, and the European Committee of Social Rights investigates governments' human
rights records. Only groups with consultative standing with the Council of Europe, such
as the International Lesbian and Gay Association, are allowed to speak (ILGA).

The Council of Europe appointed the Commissioner for Human Rights in 1999. The
Commissioner for Human Rights is an independent organisation within the Council of
Europe whose objective is to promote human rights awareness and respect in its member
states. The Commissioner can receive individual complaints, and in his reports and visits
to members, he has addressed sexual orientation issues.

The Council of Europe's Parliamentary Assembly plays an essential role in monitoring

the human rights situation in member states and governments seeking membership in the
organisation. Before being accepted to the Council, several states either changed their
criminal laws against homosexuals, gays, and bisexuals or continued to be pressed for
compliance with promises made at the time of joining.

Several (non-binding) resolutions and recommendations on sexual orientation and

Council of Europe norms were adopted by the Assembly: The first was Recommendation
924/1981, which aimed to end discrimination against lesbians, gays, and bisexuals. It was
followed by several resolutions urging Member States to grant asylum-related rights to
those prosecuted on the basis of their sexual orientation, grant residence and immigration
rights to binational same-sex couples, and recognise same-sex registered partnerships.

● EUROPEAN UNION (EU): Several European Union laws offer protection from
discrimination based on sexual orientation and additional requirements refer to the human
rights situation in accession countries.

The Treaty of Amsterdam83 revised the EU's foundational treaties to allow the EU to
combat sexual orientation discrimination. The following provision in Article 13 of the EC
Treaty went into effect on May 1, 1999, making it the first international treaty to

83 European Union, Treaty on European Union (Consolidated Version), Treaty of Amsterdam, 2 October 1997,
available at: https://www.refworld.org/docid/3dec906d4.html (accessed 23 March 2021
 explicitly mention and protect sexual orientation: "[...] the Council, acting unanimously
on a proposal from the Commission and after consultation with the European Parliament,
may take appropriate action to combat discrimination based on sex, racial or ethnic
origin, religion, or belief."

The Council approved a (binding) general Framework Directive84 on equal treatment in

employment in December 2000, outlawing both direct and indirect discrimination on the
basis of religion or belief, age, handicap, or sexual orientation in the workplace. The
Framework Directive binds current EU member states, while new member states must
have completed national implementation of the Directive before entering the EU.

The EU Charter of Fundamental Rights85, which was declared at Nice in December 2000,
is intended to constitute the EU's fundamental rights code. The Charter is currently a non-
binding document, but it is significant since it embodies the EU's human rights
philosophy. The Charter is significant for lesbians, gays, and bisexuals because of the
clear non-discrimination clauses in Article 21 (1): "Any discrimination on the basis of
sex, race, colour, ethnic or social origin, genetic traits, language, religion or belief,
political or other opinion, membership in a national minority, property, birth, disability,
age, or sexual orientation is forbidden."

The European Parliament (EP)86 has enacted multiple (non-binding) resolutions on

human rights and sexual orientation, the first of which was voted in 1984 and called for
the elimination of workplace discrimination based on sexual orientation. The "Roth"
Report described the various forms of discrimination against lesbians and gays in the EU
in 1994, and the European Parliament supported a motion to prohibit all forms of sexual
orientation discrimination. Although its power is limited, EP can have a considerable

84 2008/98/EC of the European Parliament 

85 European Union: Council of the European Union, Charter of Fundamental Rights of the European Union
(2007/C 303/01), 14 December 2007, C 303/1, available at:
https://www.refworld.org/docid/50ed4f582.html [accessed 29 July 2021]
86European Union: European Parliament, European Parliament Resolution on the Humanitarian Situation of Iraqi
Refugees, 12 July 2007, P6_TA(2007)0357, available at: https://www.refworld.org/docid/4697795d2.html [accessed
29 July 2021]
 political impact on the Council and Commission, as it recommended in 1999 that they
"address the issue of discrimination against gays during membership discussions, if
necessary." In 1998, the European Parliament passed a resolution declaring that it "would
not give its permission to the admission of any nation that violates the human rights of
lesbians and gay men through its legislation or practices."

Discrimination against transgender people is considered a form of sex discrimination

under European Union legislation. The Court of Justice established this principle in the
1996 case of P vs. S87 and Cornwall County Council, where it was determined that
dismissing an employee due to gender reassignment was unlawful discrimination on the
basis of her sex. (P vs. S, as well as Cornwall County Council.) Discrimination against
transgender people is now commonly referred to as "gender identity discrimination."

4.5 ORGANIZATION OF AMERICAN STATES

Marta Alvarez filed a petition against Columbia before the Inter-American Commission on
Human Rights, which was the first case on human rights and sexual orientation in the Inter-
American system (Velasquez Rodriguez v Honduras88, 1998). Because of her lesbian sexual
identity, she was denied the right to equal treatment when Colombian jail authorities refused to
allow her conjugal visits with her partner. Conjugal visits are a right for all Colombian residents,
regardless of sexual orientation, according to Colombian law.

Organization for Security and Cooperation in Europe (OSCE) With 55 member countries from
Europe, Central Asia, and North America, the Organization for Security and Cooperation in
Europe (OSCE) is the world’s largest regional security organisation. The OSCE was established
by the Helsinki Final Act of 1975, which said that “human rights and fundamental freedoms,
including freedom of thought, conscience, religion, and belief,” as well as “equal rights and self-
determination of peoples,” should be respected.

87 C-13/94, [1996] IRLR 347

88 [1988] IACHR 1, (1989) 28 ILM 291, (1988) 9 HRLJ 212, IHRL 1385 (IACHR 1988)
In Ottawa in 1995, the OSCE Parliamentary Assembly endorsed a declaration calling on member
states to guarantee equal protection against discrimination for all, with sexual orientation being
one of the grounds particularly covered.

CHAPTER 5: JUDICIAL TREND FOR PROTECTION

The British colonial government enacted Section 377 of the Indian Penal Code in the pre-
independence era, which criminalised all forms of non-procreative sexual relations. The
tyrannical rule not only targeted gays, but also all other sorts of non-traditional sexual activity,
even within heterosexual relationships. As a result, this rule was nothing more than a holdover
from Victorian orthodoxy, which had no place in a democratic society like India.
However, it took more than 70 years and nearly two decades of judicial battles to overturn this
antiquated rule, which had become a tool for harassing and exploiting anyone who didn't fit into
the standard binary of sexuality and gender. But first, let's look at how India's present laws, even
after Section 377 was repealed, are insufficient in protecting the LGBT+ community's basic
human rights. Let us begin by reviewing the history of the LGBT rights movement in India,
followed by a discussion of some key court decisions and their impact on the LGBT rights
movement in order to have a more comprehensive debate.

Though the LGBT rights movement dates back to the early 1990s, the following key judgments
and their aftermath can be used to highlight all of the major events that have occurred since then.

● NAZ FOUNDATION GOVT. VS. NCT OF DELHI89

Lucknow police invaded a park in July 2001, anxious to bring charges under Section 377 of the
Indian Penal Code, and detained a few guys on suspicion of being homosexuals.

Nine more men were arrested by the authorities as part of the "Bharosa Trust," an NGO that was
striving to raise public awareness about safe sexual practises and STDs. These individuals were
then charged with conducting a prostitution ring and denied bail. The Lawyers Collective, a legal
assistance organisation, subsequently stepped forward and established that the charges levelled
against these individuals were unfounded, and they were eventually released.

Following the incident in Lucknow, the Naz Foundation and Lawyers Collective filed a suit in
the Delhi High Court in 2001 challenging the constitutional validity of Section 377 of the Indian
Penal Code.

The petitioner claimed that Section 377 of the IPC infringed on his fundamental rights to life,
liberty, privacy, and dignity, as well as his rights to health, equality, and freedom of speech. It
was also claimed that the law harmed public health initiatives aimed at reducing the risk of
HIV/AIDS transmission since people were afraid of being prosecuted under the Section, which
inhibited them from openly discussing sexuality and lifestyle.

89 160 DLT 277

Finally, the High Court of Delhi found in the case of Naz Foundation Govt. vs. NCT of Delhi90 in
2009 that Section 377 of the IPC constituted an arbitrary restriction on two adults having
consensual intercourse in private. As a result, it was a clear violation of their core fundamental
rights, which are contained in the Indian Constitution's Articles 14,15,19, and 21.

● SURESH KUMAR KOUSHAL VS. NAZ FOUNDATION91

In light of India's rich history of ethics and custom, some individuals and faith-based groups
have passionately opposed the concept of decriminalising homosexual relationships. They also
petitioned the Supreme Court of India to examine Section 377's validity.

When the community was about to breathe a sigh of relief after an eight-year battle, the Supreme
Court overruled the Delhi High Court's decision and re-criminalized homosexuality on
December 11, 2013. A bench of Justice GS Singhvi and Justice SJ Mukhopadhaya Court held
that LGBT+ persons constituted a ‘minuscule minority’ and therefore did not deserve
constitutional protection and further observed that Section 377 of IPC did not suffer from the
vice of unconstitutionality.

The silver lining was that, rather than putting an end to the LGBT movement, the Suresh Kumar
Koushal vs. Naz Foundation decision ignited a fresh wave of activism in India. The Supreme
Court's controversial decision, which stripped gays of their basic human rights, drew widespread
condemnation from all quarters. As a result, there was a spike in public discussion concerning
LGBT rights in India.

● NATIONAL LEGAL SERVICES AUTHORITY VS. UNION OF INDIA 92

Due of their degraded social, educational, and economic standing, the transgender population in
India has been the worst victim of exploitation among the entire LGBT+ community. These
people have never been regarded members of society and have always been subjected to

90 Supra 13
91 Supra 13
92 AIR 2014 SC 1863; (2014) 5 SCC 438
exploitation, ostracization, humiliation, and violence, whether at the hands of society or the
ruling authority. Because of their repeated rejection and lack of finances, these individuals
frequently resort to beggary or prostitution, rendering them more exposed to prejudice, STDs,
and crimes such as human trafficking. However, the Supreme Court's 2014 decision provided a
new light of hope and exhilaration for these transgender persons, as they were recognised as the
third gender for the first time in history.

The Supreme Court had to consider in National Legal Services Authority vs. Union of India
whether it was necessary to recognise the hijra and transgender population as a third gender for
the reasons of public health, education, employment, reservation, and other welfare schemes.

In a momentous decision, the Supreme Court granted hijras (transgender people) the status of
"third gender." Previously, transgender people were constrained to identify as either male or
female, but following the ruling, they could boldly identify as transgender. Apart from that, what
made this decision so significant was that it established a framework for ensuring the transgender
community a broad range of essential human rights, which can be summarised as follows:

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

b. The Supreme court further directed the Government of India to treat the members of
“Third Gender” as an economically and socially backward class.

c. It was also stipulated that the government should make appropriate policies for the
transgender community in light of Articles 15(2) and 16(4) in order to ensure equality of
opportunity in education and employment. According to the judgement, the third gender
will be classified as other backward classes [OBC] and will be eligible for reservation in
government jobs and educational institutions.

d. The court also recognised that a disagreement between a person's birth gender and
identification isn't necessarily a pathological condition. Instead of focusing on "treating
the anomaly," "resolving anguish over a mismatch" should be the priority.
In layman's terms, it means that the court recognised the distinction between gender and
biological sex components. The court defined biological characteristics as genital, secondary
sexual features, chromosomes, and other factors, but gender attributes as an individual's deep
emotional or psychological sense of sexual identity and character, which is not limited to the
binary sense of male and female but can span a wide range.

Transgender people can now change their gender without undergoing sex reassignment surgery
as a result of this ruling. They also have the right to self-identify and register as the third gender
under the law. Apart from that, different state governments have taken tiny initiatives to help the
transgender community by enacting health and housing regulations. However, the passage of the
Transgender Persons Bill, 2018, delivered a huge blow to this decision, the complexities of
which will be discussed later in this article.

● K.S. PUTTASWAMY VS. UNION OF INDIA93

Background: When the Naz Foundation contended before the Supreme Court that Section 377 of
the IPC infringed the right to privacy, the Supreme Court went on to give a detailed analysis of
constitutional law and the evolution of the right to privacy in Suresh Kumar Koushal vs. Naz
Foundation94. The court, however, underestimated the right to privacy argument in the context of
377 despite emphasising the critical importance of this right. But the same has never been the
objective of the section as the section itself neither authorises nor condones such treatment and
thus is not reflective of the fact that such law is beyond the vires of constitution.

In the case of K.S. Puttaswamy vs. Union of India 95

(commonly known as the Aadhar
judgement), however, Justice Chandrachud's opinion included a part labelled "discordant
remarks." It was primarily concerned with two Supreme Court decisions. The first section dealt
with the infamous case of Additional District Magistrate, Jabalpur vs. S.S. Shukla96, in which the
denial of basic fundamental rights was upheld, and the second part dealt with the Koushal case,
which rejected the language of the LGBTQ+ community's "so-called" rights.

93 Supra 16
94 (2014) 1 SCC 1
95 Supra 16
96 (1976) 2 SCC 521
Sexual orientation, according to Justice Chandrachud, falls under the broad scope of the right to
privacy. Puttaswamy's decision notes also noted the criticism of the Koushal decision's minimis
hypothesis principle, stating that the minuscule population of LGBT+ people cannot be used to
deny them basic fundamental rights, and that such curtailment of fundamental rights cannot be
tolerated even when a few, rather than a large number of people, are subjected to hostile
treatment.

This acknowledgement is important because of the reasons:

a. It was contended in the Koushal decision97 that because just a few people were
prosecuted under section 377, the law had little impact. However, because consent
is not a factor in the prosecution of section 377, the data cannot be used to
determine the amount of its use because they do not include cases of consenting
sexual relations.

b. Another point made by this observation is that the true impact of the legislation is
not limited to prosecution or punishment, but also includes an indirect impact,
such as the formation of a hostile environment for the LGBTQ+ group.

The Supreme Court's decision under Article 21 of the Indian Constitution that the right to
privacy is an inherent fundamental right spurred optimism among the queer community that
Section 377 will be repealed soon.

● NAVTEJ SINGH JOHAR VS. UNION OF INDIA98

After the Delhi High Court's decision was overturned in 2013, homosexuals were once again
declared criminals. When certain high-profile personalities like hotelier Keshav Suri, Ritu
Dalmia, and dancer Navtej Singh Johar, among others, came forth and filed a suit before the
Supreme Court challenging the constitutional validity of Section 377 of the IPC, India saw an
increase in LGBT rights protests.

97 (2014) 1 SCC 1
98 Supra 15
The Supreme Court agreed to refer the case to a larger panel and heard a number of petitions in
the process. The government also declared that it will not intervene and that the subject will be
decided according to the court's discretion. The constitutional rights to privacy, freedom of
expression, equality, human dignity, and protection from discrimination were all argued to be
breached by section 377.

The Court finally gave its verdict on 6th September 2018 and it can be summarised as follows:

a. Section 377 is unlawful, according to the court, since it violates the fundamental
rights of intimacy, autonomy, and identity. and repealed Section 377, which made
it illegal for adults of the same sex/gender to engage in consensual intercourse.

b. The court reasoned that Section 377 is ambiguous and does not clearly distinguish
between what is "natural" and what is "unnatural." It also restricts the freedom to
express one's sexual identity, as well as the right to freedom of expression
guaranteed by Article 19 of the Indian constitution.

c. The court further stated that sexual orientation is an essential aspect of self-
identity, and that to invalidate it is to deny the right to life, and that the fact that
they make up a small percentage of the population cannot be used as a valid
reason to deny them this right.

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

e. It was also stressed that discrimination based on sexual orientation is unlawful

because it is a natural phenomenon, as scientific and biological evidence shows.

f. The Supreme Court also ordered the government to raise public awareness about
LGBT rights and to eradicate the stigma associated with them. The judges went
on to discuss mental health, dignity, privacy, the right to self-determination, and
transgender people.
 CHAPTER-6: COMPARING CANADADIAN LEGAL SYSTEM WITH INDIA

6.1 INTRODUCTION

The lesbian, gay, bisexual, and transgender (LGBT) community in Canada has steadily gained
rights since the late 1960s. While discrimination against LGBT persons still exists in many
locations, significant progress has been achieved in recent decades toward mainstream social
acceptance and formal legal equality. Canada is regarded as a global leader in this subject.
Everything from health care to the freedom to adopt has seen steady growth in recent years.
Canada became the fourth country in the world to legalise same-sex marriage in 2005.

Lesbian and homosexual men's legal rights in Canada have been the topic of a lot of judicial,
political, and legislative activity in the last 20 years. Most Canadian jurisdictions have laws
against discrimination based on sexual orientation, and the Canadian Charter of Rights and
Freedoms changed the legal landscape in terms of lesbian and gay men's equality rights.

Generally speaking, legal issues relating to sexual orientation have arisen in two contexts:

a. the prohibition of discrimination, primarily to ensure that individual lesbians and gay
men are not discriminated against; and

b. the recognition of same-sex relationships, and the extension to homosexual partners of

the benefits and rights that are accorded to unmarried heterosexual partners.

Several judicial decisions dealing with legal challenges to allegedly discriminatory laws and
assertions of legal rights have clarified lesbian and gay men's legal positions, served as a focal
point for the ongoing political debate about homosexuality, and, in some cases, provided a
framework for legislative reforms of varying scope. In recent years, there have been increasing
requests for the institution of marriage to be extended to same-sex couples on the basis of
constitutional equality rights, which have now been sanctioned by the courts.

6.2 DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION

Human rights legislation shows that society deems unequal treatment of particular groups to be
unacceptable by establishing a list of traits against which discrimination is prohibited, typically
in the areas of employment, housing, and services. Race, colour, national or ethnic origin,
religion or creed, age, sex, family and/or marital status, and mental or physical handicap are all
examples of these traits in Canada.

There were limited legal rights or provisions available to lesbians and homosexual men prior to
the 1980s. With the implementation of the equality rights provision in section 15 of the Canadian
Charter of Rights and Freedoms in 1985, the legal landscape in Canada changed dramatically.
Despite the fact that sexual orientation was not explicitly listed as a prohibited cause of
discrimination, Article 15(1) was written in such a way that its promise of equality was open-
ended: Every individual is equal before and under the law and has the right to equal protection
and benefit of the law without discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 15 is to be construed liberally, and “analogous” grounds, i.e. personal qualities other than
those stated, may also be used to discriminate against a group or individual, according to the
courts (Andrews vs. Law Society of B.C.99). The Supreme Court of Canada confirmed in 1995
that sexual orientation is such a "analogous" ground, and hence a forbidden ground of
discrimination under the Charter, in the Egan case, which is described below under the category
"Same-Sex Spouses."

In some circumstances, relying solely on the Charter for the validation of equality rights may not
be sufficient. Even if discrimination based on sexual orientation is prima facie a violation of
section 15, a court may maintain the statute as justified under section 1 of the Charter.
Furthermore, the Charter's fundamental rights apply only to government actions, not private
ones, and Charter remedies must be sought through expensive, time-consuming, and contentious
court proceedings in most cases. Human rights statutes, on the other hand, establish very
affordable and, at least in theory, fast administrative means to deal with discrimination
complaints in both the public and private realms. As a result, advocates for human rights have
emphasised the need of include sexual orientation as a forbidden ground of discrimination in
human rights legislation.

The Canadian Human Rights Commission first recommended that sexual orientation be made a
prohibited ground of discrimination under the Canadian Human Rights Act in 1979.

The similar recommendation was made in 1985 by a parliamentary committee report titled
Equality for All. In its 1986 response, the federal government stated its conviction that section 15
protections covered sexual orientation and pledged to “take whatever measures are necessary to
ensure that sexual orientation is a prohibited ground of discrimination in all areas of federal
jurisdiction.”

When the Ontario Court of Appeal ruled in Haig vs. Canada100 in August 1992 that the absence
of sexual orientation from the list of prohibited grounds of discrimination in section 3 of the

99 [1989] 1 SCR 143

100 [1993] 2 SCR 995
Canadian Human Rights Act violated section 15 of the Charter, the Charter's impact on human
rights legislation was affirmed. According to the Court, section 3 of the Act shall be read and
used as if sexual orientation were specified, i.e., sexual orientation should be “read in” to the
Act. The federal government decided not to appeal Haig's decision, stating that it would apply
across the country.

Bill C-33, An Act to Amend the Canadian Human Rights Act, was passed in June 1996, adding
sexual orientation to the list of banned grounds of discrimination in the Act. Bill C-33 codified
the legislation as established in the Ontario Court of Appeal's Haig judgement, which has since
been followed by the Canadian Human Rights Commission and Tribunal (s). Under the section
"Parliamentary Action," this development is discussed in further depth.

The amendment to the Canadian Human Rights Act also brought the federal Act into line with
existing provincial and territorial laws. Quebec was the first Canadian jurisdiction to include
sexual orientation as a prohibited ground of discrimination when the province’s Charte des droits
et libertés de la personne was amended in 1977. All jurisdictions except the Northwest
Territories, where legislation has been adopted but not yet proclaimed in force, Nunavut, where
legislation has been submitted, and Alberta have human rights Acts and Codes that clearly ban
discrimination based on sexual orientation.

The amendment to the Canadian Human Rights Act also brought the federal Act into line with
existing provincial and territorial laws. Quebec was the first Canadian jurisdiction to include
sexual orientation as a prohibited ground of discrimination when the province’s Charte des droits
et libertés de la personne was amended in 1977. All jurisdictions except the Northwest
Territories, where legislation has been adopted but not yet proclaimed in force, Nunavut, where
legislation has been submitted, and Alberta have human rights Acts and Codes that clearly ban
discrimination based on sexual orientation. (Vriend vs. Alberta101).

The alleged denial of services or accommodation on the basis of sexual orientation, or associated
lesbian and homosexual issues, is becoming more common in human rights cases. (e.g.,
Waterman vs. National Life Assurance Co. of Canada102, 1993: loss of employment; Crozier vs.

101 [1998] 1 SCR 493

102 Waterman v. National Life Assurance Co. of Canada (No. 2) (1993), 18 C.H.R.R. D/176 (Ont. Bd. Inq.).
Asselstine103, 1994 and De Guerre vs. Pony’s Holdings Ltd.104, 1999: harassment in employment;
Grace vs. Mercedes Homes Inc.105, 1995 housing; Geller vs. Reimer106, 1994, Hughson vs. Town
of Oliver107, 2000: Gay Pride proclamation/permit; Moffatt vs. Kinark Child and Family
Services108, 1998: work environment; L.(C.) vs. Badyal109, 1998: Public Service; Mc Aleer vs.
Canada110 (Human Rights Commission), 1999: promotion of hatred; Trinity Western University
vs. British Columbia College of Teachers 111, 2001: teacher training program; Hellquist vs.
Owens112, 2001: exposure to hatred; Brockie vs. Brillinger113 (No. 2), 2002: printing services;
Jubran vs. North Vancouver School District114 (No. 44), 2002: harassment in school).

Advocates for human rights legislation that prohibits discrimination based on sexual orientation
point out that such inclusion does not imply endorsement of lesbian or homosexual lifestyles, but
it does provide some legal protection against job loss or denial of accommodations or services.
Although some have expressed concern that the term "sexual orientation" is broad enough to
cover paedophilia and other sexual proclivities that were not intended to be covered, prohibiting
discrimination based on sexual orientation has no effect on Criminal Code prohibitions of certain
sexual activities, such as those between adults and minors. “The word [“sexual orientation”] has
been explained in various judicial decisions and is now wellestablished as to its particular
meaning,” the Federal Court of Appeal stated. (Mc Aleer vs. Canada115 (Human Rights
Commission)).

6.3 SAME-SEX SPOUSES

103 Crozier v. Asseltine (1994), 22 C.H.R.R. D/244 at para. 9 (Ont. Bd. Inq.).

104 DeGuerre v. Pony's Holdings Ltd. [1999], 36 C.H.R.R. D/439 (B.C.H.R.T.)
105 Mercedes Homes Inc. V. Grace, (1993) OJ No. 2610 (QL) (Gen. Div.)
106 Geller v Reimer (1994) 21 CHRR D/156
107 Hughson v Town of Oliver, 2000 BCHRT 11
108 Moffatt v. Kinark Child and Family Services, (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).
109 C.L. v. Badyal and Bob (1998), 34 CHRR D/41 (BCHRT) at paras 37-41.
110 McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280 (F.C.T.D.) [Eng./Fr. 15 pp.]
http://www.hrcr.org/safrica/expression/mcaleer_hrc.html
111 Trinity Western University v British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 3
112 Hellquist v. Owens, [2002] 228 SASK. R. 148, 21 (Sask. Q.B.).
113 Brockie v Brillinger (No 2) (1999), 37 CHRR D/12 (Ont Bd Inq).
114 School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201. Retrieved May 31, 2021,
from http://www.courts.gov.bc.ca/jdb-txt/sc/03/00/2003bcsc0006.htm
115 [1998] 1 S.C.R. 626
The situation of gay and lesbian couples has highlighted distinct issues related to discrimination
based on sexual orientation. Many such issues have arisen because statutes have traditionally
used the concept of “spouse,” explicitly or implicitly defined in heterosexual terms, as the basis
for allocating rights, powers, benefits and responsibilities to partners.

Many people believe that the majority of Canadians now support giving same-sex couples
spousal rights. Since the key 1999 Supreme Court of Canada ruling in M. vs. H.116, the number
and scope of legislative efforts recognising cohabitation between same-sex couples as conjugal
in nature has expanded dramatically. Previous court judgements under the following heading
should be viewed in light of that judgement, as well as contemporaneous or subsequent
legislative amendments in the field of samesex spousal benefits, which are discussed further
below.

On the topic of whether the term "spouse" relates to same-sex partners, numerous judicial
challenges have been filed under human rights legislation and/or the Canadian Charter of Rights
and Freedoms. Several issues have arisen as a result of the interpretation of collective bargaining
agreements or specific statutes or regulations. In this field, a substantial body of jurisprudence
has developed.

Andrews v. Ontario117 (Ministry of Health), a section 15 Charter case in which a woman sought
to have her lesbian partner covered by OHIP as a dependent under the Ontario Health Act, was
one of the first. The application was denied because the term "spouse," which is not defined in
the law, invariably refers to a person of the opposite sex. The British Columbia Supreme Court
found in Knodel vs. British Columbia118 (Medical Services Commission) that the opposite-sex
definition of "spouse" in rules under the Medical Service Act was an unjustifiable breach of
paragraph 15(1) of the Charter.

In Veysey vs. Canada119 (Correctional Service), The Private Family Visiting Program was denied
to a prison inmate and his homosexual partner. The Federal Court's Trial Division invalidated the
rejection on the grounds that it breached paragraph 15(1) of the Charter. The Federal Court of

116 M v H [1999] 2 S.C.R. 3

117 Andrews v. Ontario (Ministry of Health) 2 Can. J. Women & L. 416 (1986-1988)
118  1991 CanLII 3960 (BC SC)
119 (1990), 109 N.R. 300 (FCA)
Appeal explicitly avoided addressing whether common-law partners of the same sex are
common-law "spouses" under the Charter in dismissing an appeal of this judgement.

6.4 EMPLOYMENT-RELATED DECISIONS

Many of the decisions concerning same-sex benefits have arisen in the employment sphere. In
Canada (Attorney General) vs. Mossop120, A gay federal public servant who was denied
bereavement leave under the collective agreement to attend the funeral of his partner's father
claimed discrimination under the Canadian Human Rights Act on the grounds of "family status."
The Supreme Court of Canada's majority decision in 1993 confirmed the Federal Court of
Appeal's ruling that sexual orientation was not meant to be covered by the word "family status,"
but did not address whether the federal human rights statute's lack of sexual orientation violated
the Charter. The Court subsequently addressed this matter in the provincial context in the 1998
Vriend decision discussed above.

Other federal employment-related decisions have typically involved grievances filed under the
Public Service Staff Relations Act or the Canada Labour Code to challenge employers' denial of
different "spousal" privileges to same-sex spouses. An significant 1992 Ontario Board of Inquiry
decision found that the province's denial of benefits to same-sex partners of government
employees violated section 15 of the Charter. The Board ruled that the Ontario Human Rights
Code's heterosexual definition of married status be "read down" by removing the terms "of the
opposite sex." (Leshner vs. Ontario121 (Ministry of the Attorney General)).

The lesbian, gay, bisexual, and transgender (LGBT) community in Canada has steadily gained
rights since the late 1960s. While discrimination against LGBT persons still exists in many
locations, significant progress has been achieved in recent decades toward mainstream social
acceptance and formal legal equality. Canada is regarded as a global leader in this subject.
Everything from health care to the freedom to adopt has seen steady growth in recent years.
Canada became the fourth country in the world to legalise same-sex marriage in 2005.

6.5 EGAN AND SUBSEQUENT DECISION

120 [1993] 1 SCR 554

121 (1992), 16 C.H.R.R. D/184 (Ont. Bd.Inq.) [Eng. 41 pp.]
The case of Egan vs. Canada122, A challenge to the federal Old Age Security Act's spouse
allowance rules gave the Supreme Court of Canada its first direct opportunity to address a sexual
orientation Charter matter. The allowance in question was only accessible to opposite-sex
couples who had cohabited for a year or longer and met the statute's age restrictions, but it was
never available to same-sex couples. In 1989, a lesbian couple (Egan and Nesbit) who had been
married for over 45 years but were refused the spousal payment filed a section 15 Charter
challenge to the statute. The Federal Court of Canada's trial and appeal divisions both rejected
their suit in 1991 and 1993.

Egan and Nesbit's appeal was dismissed by the Supreme Court of Canada in 1995 by a 5-4 vote.
The Supreme Court ruled unanimously that sexual orientation is an equivalent reason that
invokes section 15 protection, putting an end to the debate. The Court also found that the spousal
definition at issue discriminated on the basis of sexual orientation, in violation of section 15 of
the Charter, by a 5-4 majority. However, a different 5-4 majority ruled the discrimination lawful
under section 1 of the Charter in the final decision. One member of the majority noted that the
prohibition of discrimination against gays and lesbians was “of recent origin” and was “generally
regarded as a novel concept,” thus appearing to suggest that the outcome might not be the same
in future cases.

This Supreme Court of Canada decision exerted considerable influence on subsequent same-sex
spousal benefit cases at federal and provincial levels:

● In 1995, the Manitoba Court of Appeal allowed the appeal of a gay Manitoba
government employee on the same-sex benefits issue and ordered that an
adjudicator determine whether the Manitoba Human Rights Code provision that
may permit discrimination for bona fide and reasonable cause applied in the case.
In 1997, the adjudicator found that no such cause had been shown for non-pension
benefits, and ordered the government to extend these benefits to their employees’
same-sex partners (Vogel vs. Manitoba123).

122 [1995] 2 SCR 513

123 [2004] M.J. No. 418 (QL)
 ● In its 1996 decision in Moore vs. Canada124, (Treasury Board), The Canadian
Human Rights Tribunal determined that denying same-sex benefits to federal
government employees based on opposite-sex definitions of "spouse" "violates
the Charter and the Canadian Human Rights Act and constitutes discrimination
banned on both," according to the tribunal. The Tribunal also rejected the
government's insertion of a definition of "same-sex partner" to the existing
definition of "spouse" in the relevant papers in 1997, and instead ruled that the
term "spouse" be defined without regard to gender rather than on the basis of a
new categorization. In 1998, a Federal Court judge declined to set aside this
order, ruling that the definition proposed by the government would establish an
unacceptable “separate but equal” regime for same-sex couples.

● Challenges to the Canada Pension Plan's opposite-sex definition of "spouse"

received conflicting reactions in 1997, owing to differing conclusions about
whether the admitted section 15 breach was justified under section 1 of the
Charter. In 1999, the federal government reached an agreement with the
applicants, making them the first gay males in Canada to receive survivor benefits
under the Canada Pension Plan (Wilson Hodder; Paul Boulais). In 1999, a judicial
review application concerning a CPP same-sex claim was decided in favour of the
claimant (Donald Fisk).

● The Ontario Court of Appeal found in 1998 that the federal Income Tax Act's
discriminatory opposite-sex definition of "spouse," which barred the registration
of pension plans with survivor benefits for same-sex spouses, did not meet the
section 1 rationale "test." Through the reading-in remedy, the Court directed that
the term of "spouse" be expanded to cover same-sex spousal relationships for the

124 (1996), 25 C.H.R.R. D/351 (Can.Trib.) [Eng./Fr. 22 pp.] 

 purposes of pension plan registration. This decision was not appealed by the
federal government. (Rosenberg v. Canada125 (Attorney General)).

● Following a 1998 Quebec Superior Court finding that the province's current
spouse definition violated the province's Charte des droits et libertés de la
personne on the grounds of sexual orientation, 1999 revisions to the Act
specifically expanded spousal status to same-sex couples. The Quebec Court of
Appeal overturned the lower court's ruling in March 2002, claiming that the pre-
1999 legislation's definition of "surviving spouse" included otherwise entitled
same-sex partners.

In May 1999, the Supreme Court of Canada affirmed the Ontario Court of Appeal ruling in the
case of M. vs. H126. The Ontario ruling authorised a Charter challenge to the opposite-sex
definition of "spouse" under section 29 of the province's Family Law Act (FLA), which
prevented same-sex partners from seeking spousal assistance after their relationship ended.

The Court emphasised that the case at hand did not call into question traditional notions of
marriage, and that it did not need to address whether same-sex couples can marry or whether
they must always be treated the same as unmarried opposite-sex couples. The Court directed that
the definitional provision be “severed” [cut] from the Act as a remedy, and that the remedy be
deferred for six months to allow the Ontario legislature to come up with its own way of ensuring
that the spousal support plan complies with section 15. In closing, the Court commented that
“declaring s. 29 of the FLA to be of no force or effect may well affect numerous other statutes
that rely upon a similar definition of the term ‘spouse.’ The legislature may wish to address the
validity of these statutes in light of the unconstitutionality of s. 29 of the FLA.”

6.6 REFORM PRIOR TO M. VS. H127.

125 Spousal Status, Pension Benefits and Tax: Rosenberg v. Canada (Attorney General) 6 Canadian Lab. & Emp.
L.J. 435 (1998)
126 M. Vs. H., 1999 CanLll 686 (SCC), (1999) 2 SCR 3
127 Supra 103
Advocates for same-sex benefits expressed the belief that legislative reform would eliminate the
need for costly legal battles statute by statute. Reform opponents criticised "judicial activism" for
displacing the legislative role in determining whether or not same-sex spouses should be
recognised. The Foundation for Equal Families filed an omnibus Charter challenge of 58 federal
statutes in which the terms "spouse" and "dependent" were claimed to discriminate against same-
sex couples in January 1999, citing a perceived lack of legislative action. The case was
eventually stayed due to federal reforms, which will be covered under the title "Parliamentary
Action" below.

6.7 LEGISLATION

Prior to M. vs. H.,128 At the provincial level, some recognition of same-sex spouses has happened,
most notably in British Columbia and Quebec. B.C.'s groundbreaking B.C.'s groundbreaking
B.C.'s groundbreaking B.C Several statutes changed the definition of "spouse" to include people
of the same sex living in "marriage-like" partnerships. Medical services, family maintenance,
family relationships, public sector pensions, pension benefit requirements, adult guardianship,
representation, and health care consent and admission are all covered by these regulations. In
addition, the adoption legislation in effect in British Columbia since 1996 enables same-sex
couples to make joint applications for adoption, not as a result of a spousal definition, but by
virtue of gender-neutral references to joint adoption by “two adults.”

This omnibus bill changed the definition of de facto spouse [conjoint de fait] in 28 statutes and
11 regulations to include same-sex couples, giving them the same status, rights, and
responsibilities as unmarried heterosexual couples under the law. Workers' compensation,
occupational health and safety, labour standards, insurance, tax, trust and savings firms, pension
benefits, public-sector retirement plans, social assistance, and other legislation were among those
that were amended. The law did not change the Code civil du Québec, which handled family-
related issues like spousal support and adoption and limited spousal status to married couples.
Bill 32 was adopted unanimously and came into effect in June 1999.

128 Supra 103

Legislative initiatives in other jurisdictions were fewer and limited in scope. The 1992 Substitute
Decisions Act in Ontario, for example, defined “partners” in gender-neutral terms, allowing
same-sex spouses to make decisions for disabled partners. The former NDP government's Bill
167, which sought to eliminate inequities in treatment between same-sex and heterosexual
couples in Ontario statutes, was defeated in 1994.

The Yukon Legislative Assembly passed gender-neutral definitions of "spouse" in territory laws
controlling family support and maintenance enforcement, as well as "common-law spouse" in
estate administration and legislative assembly retirement allowance statutes, in 1998 and early
1999.

In May 1999, the Alberta government fulfilled an agreement to allow some private adoptions by
same-sex couples by amending the Child Welfare Act, replacing the term "spouse" with the
gender-neutral term "step-parent" in the relevant parts of the Act. The adjustment was not meant
to have an impact on public adoptions. A judge of the Alberta Court of Queen's Bench granted
the first approval of petitions for adoption by same-sex partners under this legislation in
November 1999. (A (Re)).

In April 1999, the federal government submitted a bill that included significant modifications to
the primary public service pension legislation. Bill C-78, among other things, allows same-sex
spouses to receive survivor benefits under the Act. This development is discussed under the
category "Parliamentary Action" further down.

● LAW REFORM PROPOSALS

Legislative improvements in the field of same-sex spousal recognition proposed by the Ontario
Law Reform Commission in 1993, as well as the Ontario Human Rights Commission and the
Nova Scotia Law Reform Commission in 1997, were never implemented.

Similarly, the recommendations of the British Columbia Law Institute's (BCLI) 1998 Report on
Recognition of Spousal and Family Status, which called for the introduction of a Domestic
Partnership Act and a Family Status Recognition Act, were not adopted. Domestic partnership
status would not be limited to those in a marriage-like relationship under the former; under the
latter, “spouse” would be defined as a person who was married, a domestic partner, and a person
“living with another person, who may be of the same or opposite sex, in a marriage-like
relationship.”

● OTHER DEVELOPMENTS

A number of additional developments in the area of same-sex benefits or recognition of spousal

status occurred in the pre-M. vs. H.129 period, most commonly in the employment sphere. A
growing number of private organisations, including many big firms and certain federally
regulated employers, provide health insurance to same-sex couples. In addition to British
Columbia, a number of provincial and territorial governments, including Nova Scotia, New
Brunswick, Ontario, Manitoba, Saskatchewan, Yukon, and the Northwest Territories,
implemented rules extending health-related and other employment benefits to same-sex couples.
Major municipalities providing at least some same-sex benefits to their employees included
Halifax, Montréal, Kingston, Ottawa, Kitchener-Waterloo, Hamilton, London, Toronto,
Winnipeg, Calgary, Edmonton, Regina, Prince Rupert, Vancouver and Victoria.

In terms of pension benefits, in addition to Ontario's 1994 "offside" plan, the Nova Scotia
government agreed in 1998 to extend the province's public service pension statute's survivor
benefits to the surviving partners of same-sex relationships (Wilson Hodder; Paul Boulais); the
New Brunswick government followed suit.

In 1996, Revenue Canada changed its interpretation of the Income Tax Act's definition of
"private health services plan" to allow same-sex couples to obtain tax-free employer-paid
medical and dental benefits. Following the Rosenberg judgement in 1998, Revenue Canada
began registering pension plans that provided samesex survivor payments.

Beginning in 1995, federal Treasury Board policy gradually expanded employment-related

benefits to same-sex couples, with the House of Commons' Board of Internal Economy
following suit. Compliance with the Moore decision resulted in the expansion of medical and
dental coverage, as well as a policy of gender-neutral interpretation of the term "common-law

129 Supra 103

spouse" in federal civil service collective bargaining agreements, policies, and programmes. This
regulation had no impact on the breadth of available benefits or the federal legislation's opposite-
sex definition of "spouse."

While the LGBTQ community fights hard for civil rights, particularly in the area of marriage, it
is also notable that marriage is still referred to as a heterosexual institution related with
procreation in India's current socioeconomic landscape. The landmark judgments in the cases of
Naz Foundation vs. Government of NCT of Delhi130 and Navtej Singh Jauhar vs. Union of
India131, on the other hand, are a major step toward changing the perception of same-sex unions
in India by recognising the third gender category and thus granting them all human and
fundamental rights. In spite of everything, the demand for legalizing homosexual marriages is
giving birth to new friction in the institution of marriage, family, and law, which cannot be
denied.132

For the purpose of marriage, several religious communities in India are controlled by their own
Personal Laws, which envision marriage between a ‘Man' and a ‘Woman.' However, none of
these personal laws describe marriage as a "heterosexual partnership."133

For example, the Hindu Marriage Act of 1955 represents Hindus, Sikhs, Jains, and Buddhists,
and states that a marriage between any two Hindus may be solemnised. Further saying in section
5 (iii), "conditions for a Hindu Marriage," that the "Bride" and "Bridegroom" must have reached
the ages of "eighteen" and "twenty-one" years, respectively, for the purpose of marriage.134

The terms ‘Bride' and ‘Bridegroom' clearly refer to a ‘Heterosexual' union. Similarly, section 60
of the Christian Marriage Act of 1872 specifies that the age of a ‘Man' and a ‘Woman' for the
purpose of marriage should be ‘Twenty-one' and ‘Eighteen,' respectively. As a result, it has
proven to be ‘Heterosexual' in nature.

130 JEFFREY A. REDDING, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey” & “Kim
Brooks” eds., Routledge, 2010).
131 Ibid
132 Supra 13
133 Supra 15
134 Amber Tanweer, LGBT Rights in India, 2 I.J.L.M.H. 1, 6-7 (2018).
Marriages are also considered a 'Heterosexual Union' by Muslims. They do not have a particular
definition of marriage because they are not bound by any statute. Marriages among them, on the
other hand, are frequently regarded to be an agreement with the end purpose of ‘procreation,'
emphasising the heterosexual aspect of the relationship. Thus, all Indian Personal Laws depict
marriage as a heterosexual partnership by utilising terms such as "bride and groom," "husband
and wife," and so on, demonstrating its "heterosexual" nature.

● SAME-SEX MARRIAGE ISSUES

The capacity to marry is a federal responsibility under the Constitution Act of 1867, whereas the
solemnization of marriage is a provincial responsibility. Marriage between two people of the
same sex was not permitted under Canadian common law, despite the fact that no federal
legislation expressly prohibited it. On this premise, the Ontario Divisional Court dismissed a
Charter challenge brought by two men who had been denied a marriage licence by the province
in March 1993.(Layland and Beaulne vs. Ontario).

Both the M. vs. H. decision135 and federal Bill C-23 were followed by marriage-related
developments. In the former case, a June 1999 opposition motion aimed at preserving marriage
as an exclusively heterosexual institution (reviewed below under the heading “Parliamentary
Action”) was adopted by a large majority in the House of Commons. In the latter case, the
Alberta Legislative Assembly, in March 2000, adopted a private member’s bill amending the
provincial Marriage Act to define marriage as exclusively heterosexual and to insert a
notwithstanding clause for purposes of overriding the Canadian Charter of Rights and Freedoms.
The amendments were described as having little legal effect owing to federal jurisdiction over
marriage capacity.

In other developments, advocates for extending the marriage option mounted constitutional
challenges, in Quebec, Ontario, and British Columbia, to existing common law and statutory
restrictions against same-sex marriage.

135 Supra 103

In October 2001, the British Columbia Supreme Court dismissed the challenge brought against
the federal and provincial governments by several gay and lesbian couples and the national
organization EGALE. Pitfield J. reasoned, among other things, that changes to the common law
should be made “in incremental steps”; that Parliament lacked authority to enact legislation that
would redefine marriage – which had a distinct meaning at Confederation – to include same-sex
couples; and that the constitutional meaning of “marriage” was not subject to Charter scrutiny,
because one constitutional provision cannot amend another. (EGALE Canada Inc. et al. v.
Attorney General of Canada et al.)136.

In a case involving a similar claim, three justices of the Ontario Superior Court of Justice
(Divisional Court) concluded unanimously in July 2002 that the prevailing common law norm
defining marriage in opposite-sex terms was an unjustifiable breach of section 15 of the Charter.
The decision was the first of its kind in Canada. In it, LaForme J. rejected the B.C. Court's
conclusion that the 1867 Constitution barred Parliament from legislating a modified legal
definition of "marriage," as well as the federal government's argument that granting equal rights
to same-sex couples under a term other than "marriage" precludes a discrimination finding. This,
he believes, would amount to "the'separate but equal' argument that has long been rejected as a
justification" for discrimination: equivalency of benefits obtained through other means would be
insufficient because "such alternative methods do not have the same meaning or significance as
access to them by right of entry to a basic social and cultural institution." Arguments that
childbearing is the primary goal of marriage were also dismissed as justifications for banning
same-sex marriage.

The Ontario Court postponed its declaration invalidating the common-law rule for a period of 24
months to allow Parliament (and, where applicable, the provinces) to remedy the law of marriage
in accordance with constitutional values; otherwise, the common-law rule would be reformulated
by replacing the words "one man and one woman" with "two persons."(Halpern vs. Canada137
(Attorney General)).

The Quebec case featured a constitutional challenge to a provision of the Civil Code that
expressly prohibits same-sex marriage, as well as any federal statute or common law norm

136 EGALE Can. Inc. v. Can. (A.G.) (2002), 170 B.C.A.C. 204 (CA); 279 W.A.C. 204;
137 Halpern v. Canada (Attorney General) (2003), 2003 CanLII 26403 (ON CA), 65 O.R. (3d) 161;
forbidding same-sex marriage. The Cour supérieure du Québec became the second Canadian
court to approve a same-sex marriage application in September 2002. The requirements of
section 5 of the 2001 Federal Law-Civil Law Harmonization Act, No. 1 (FLCLHA), which states
that “marriage requires the free and enlightened consent of a man and a woman to be the spouse
of the other” resulted in an unreasonable section 15 violation, according to Lemelin J. She agreed
with the Ontario Court that the 1867 Constitution did not preclude a new legislative definition of
marriage, and that offering equal benefits would not compensate for the injustice of denying gay
and lesbian couples the right to marry. As a result, even while the province's new civil union
regime recognised the legitimacy of same-sex conjugal unions, it was not the same as marriage.
Procreation could no longer be considered the single defining element of marriage, according to
Lemelin J.

The Quebec Court postponed its declaration of constitutional illegality for a period of 24 months
to allow Parliament to address the discrimination in section 5 of the FLCLHA, notwithstanding
the fact that there is no substitute definition that will take effect in the absence of legislative
action. The invalidity ruling was applied to the interpretive provision in federal Bill C-23, which
likewise defines marriage as a heterosexual institution.

Over the last decade, judicial and legislative reforms, particularly after the M. v. H. judgement 138
in 1999, have influenced a dramatic shift in Canadian culture in terms of legal recognition of
same-sex conjugal couples' legal status and interests. The fact that the majority of provincial and
territorial governments have initiated or adopted legislation authorising same-sex adoption, as
well as federal government recognition of same-sex marriage, exemplifies the watershed
significance of this transformation.

Opponents of the measures maintain that expanding same-sex rights harms traditional family and
family values. At the same time, some gay and lesbian couples (as well as some heterosexual
couples) do not want the legal obligations or privileges that come with being married or having a
spousal status. The subject of whether benefits based on the marital or conjugal nature of a
partnership should be re-examined remains open, as evidenced by the Law Commission of
Canada's recent study and other signs.

138 Supra 103

CONCLUSION

A new treaty is said to have been "ratified" by the states that negotiated it. A state that did not
take part in the talks may later "accede" to the treaty. When a predetermined number of states
have ratified or acceded to the treaty, it goes into force. Binding treaties can be used to compel
the government to follow treaty obligations related to the human rights of LGBTQ people. Non-
binding instruments, such as statements and resolutions, can be used to publicly humiliate
governments.

Unless the treaty expressly prohibits reservations, a state that ratifies or accedes to a treaty may
make reservations to one or more of the treaty's terms. Reservations are frequently subject to
cancellation at any time. In certain countries, international treaties may supersede national law;
in others, a specific statute may be required to give an international treaty the force of law, even
if it has been ratified or acceded to. All states that have ratified or acceded to an international
treaty must issue decrees, amend existing laws, or create new legislation in order for it to be fully
effective on national territory.
 CHAPTER-7: CONCLUSION AND SUGGESTION

7.1 CONCLUSION

The progress of LGBT rights is often directly tied to – sometimes through indirect routes -
multiple fights for human dignity and freedom.”- Michael Bronski.

LGBT persons are members of a minority group who have various sexual orientations and hence
face discrimination in their families and communities. However, because they are human beings
on the surface, they are entitled to all human and fundamental rights in India. The demand for
legalising homosexual marriage is strangely neglected and ignored in the current Indian societal
matrix and the rising crisis in the institution of marriage. However, in the not-too-distant future,
society's preconception of marriage as a heterosexual institution connected with procreation and
child raising may allow homosexual marriages, in which the love between the partners takes
precedence over the gender. Then the failure to acknowledge the changing nature of society and
the family will result in more harm than good.

Even though it will take a long time for this to happen. In any event, the demand for the
legalisation of homosexual marriages has sparked a new confrontation in the institutions of
marriage, family, and law that cannot be ignored. However, granting social and legal acceptance
in this traditional society is more difficult than in western nations. In any event, ignoring this
rising tension in the institution of family and marriage will be short-sighted and can have
disastrous consequences if not addressed delicately. As a result, it is past time for the Legislature,
Executive, Judiciary, and Society at large to acknowledge that people with the same sex urges
exist.

They must also recognise that legalising homosexual relations will not only allow for a single
sexual act, but will also legalise the lives of citizens who are involved in such acts. Finally, if
laws are designed to represent socially acceptable dos and don'ts, then a shift in thinking is
urgently required. Otherwise, ordinary people would continue to be exploited inhumanely just
because nature has instilled in them the desire to stand out. Lesbians, gay men, bisexuals, and
transgender persons have long been active in racial and economic justice movements.
India, which is known as the world's most democratic country, is a developing country with a
small homosexual population. The Indian constitution guarantees its citizens essential rights such
as the right to life, equality, and equity. However, the rights of LGBT people, notably human
rights, are being infringed in India due to the criminalization of same-sex partnerships.
Criminalizing same-sex acts isn't fair to the Republic of India's human rights, given that
homosexuality has been legalised in numerous countries, and several countries, such as South
Africa, have altered their constitutions to include rights for homosexuals.

Such partnerships have been criminalised in the Republic of India, as they are considered
unnatural in our culture. In the Republic of India, the issue of homosexuals has been a
contentious topic that has sparked passionate debate and drawn the attention of the general public
as well as our court. Despite the fact that India is an active member of UNHR and has signed
majority of the resolutions, the topic of homosexuality is still not covered in the literature. These
are unnatural offences, according to our judiciary, and parliament currently has the power to
repeal this clause.

India is a country of many cultures, and different people have distinct ways of thinking and
living here. Legalizing homosexual behaviour has become a global trend in recent years.
Homosexuality has been adopted by several Gods and rulers throughout history, not just in the
Republic of India, but around the world. According to the United Nations Human Rights
Organization, everyone has the right to equality and is equal before the law, yet these rights have
been infringed.

Many studies on homosexuals have been undertaken all over the world, and it has been
discovered that sexual orientation is a natural result of the environment in which no one has
embraced such compassionate behaviour. In the 172nd report of the Law Commission, it was
said that criminalising such actions could lead to an increase in crime and HIV in private, and
that these crimes include rape and murder. In addition, section 377 of the IPC was suggested to
be decriminalised in this report.

Based on the conversation, it is concluded that LGBT minorities who have radically different
sexual orientations endure persecution within their families and society. They are, however,
definitely human beings who are entitled to all human rights, as well as fundamental rights in the
Republic of India.

Lesbians, gays, bisexuals, and transgender people have long been involved in racial and
economic justice movements. Today, LGBT organisers and groups are increasingly emphasising
the link between LGBT rights movements and movements for economic, social, political, and
racial justice. As a result, there is now a responsibility to protect their human rights within
society.

Homosexuality isn't a psychopathy, either. It's just like being straight. It is beyond the control of
the human mind. In the Republic of India, the situation of the LGBT people is the worst.
Harassment, violence, and mocking are commonplace. Members of the LGBT community have
had their sexual rights protected in European countries. The resolution passed by the United
Nations has had a good impact all around the world.

India's position on LGBT matters at the United Nations has been unsatisfactory thus far, since it
has tarnished its image as a democratic republic by consistently opposing LGBT rights at the
international level. It is critical to raise public awareness of the LGBT community. Human rights
are intrinsic and indestructible natural rights that are bestowed onto man at birth. Homosexuals
don't appear to be extraterrestrials, they aren't ill, and their sexual conduct is quite natural. The
government of the Republic of India should shed its traditional tendencies and take concrete
actions to help sexual minorities.

The “biggest reversal to the LGBT rights movement” was the recriminalization of homosexual
sexual activity. One decision had a significant impact on the rights of the entire community,
causing significant harm to the LGBT population's shallowness and self-esteem. LGBT people
will continue to fight for societal acceptance in a just and equitable manner. The planet has the
ability to evolve, and sooner or later, it will shed light on the dark ages of logic.

Human rights, not men's rights, women's rights, or gay rights, are needed and required since
women's rights, gay rights, black rights, and LGBTQIA+ rights are all human rights. We're all
humans, and treating each other as such should be a priority.
The aforementioned observations clearly show that transgender people of various sexual
orientations experience intolerance, discrimination, and marginalisation in society. Isolation can
be for a variety of causes, ranging from personal issues to the most prevalent social
incomprehension.

While the judiciary has taken a huge step toward removing the stigma associated with the third
gender, it is now up to us to understand the full implications of this decision and make its
implementation a priority. We are not only demeaning these persons by throwing money at them
to drive them away, but we are also relegating the very basic notion of humanity; even curs are
better handled by the love of humanity. Such acts will simply condemn the transgender
community to toil and struggle in the same pit of indignity that they have endured for years. In a
society where there are a plethora of reasons for large reservations, the group that is synonymous
with social backwardness is rarely considered. As a result, it is vital to not only enact laws, but
also to put them into practise in order to raise the transgender population to the rostrum of human
dignity.

“And a major phenomenon that is still underreported is taking place before our very eyes: the
globalization of LGBT right” – Friedrich Martel

7.2 RECOMMENDATIONS

After conducting the investigation, the researcher discovered that, while our country guarantees
human rights to its residents, a minority of Indians who identify as LBGT have been overlooked
in various ways. Here are some humble submissions after concluding the legal verdict in the
researchers' own words:

a) AIDS has been discovered in MSM, and our judiciary has emphasised on this
reason while criminalising same-sex conducts. According to the researcher, every
individual has the right to conduct their lives according to their own preferences,
and MSM cannot be criminalised just because the percentage of HIV cases has
increased as a result of it.
b) HIV used to be found in heterosexual persons as well, however in India, the
government used to run several programmes to raise HIV awareness. Every day,
we see government awareness programmes or advertisements for HIV awareness
in the newspaper, on television, in magazines, and on radio stations. Not only in
cities, but also in villages, the Indian government used to hold several camps to
teach people how to protect themselves from HIV. Students are taught to protect
them even in school and college. According to doctors and scientists, the only
method for this virus to spread through sexuality is for people to engage in
unprotected intercourse. Why not for LGBTs if the government can raise
awareness for normal people on how to protect themselves from HIV? LGBT can
be controlled by educating them, providing condoms, and providing special
privileges so that they can stand on equal footing with the rest of society.

c) Distribution of Condoms - Condoms should be widely provided by the

government in villages, jails, and other places, and specific awareness
programmes for gays should be held in schools, colleges, on television, and on the
radio.

d) Privilege to LGBT’s - LGBTs should be given special privileges in school,

employment, and other activities so that they can compete on an equal footing
with the rest of society. As a result of today's criminalization of same-sex
behaviours, society has developed a loathing for homosexuals, resulting in
discrimination in public places, work, schools, and other settings, leading to
homosexual suicide. It is the government's responsibility to provide them with
privileges so that they can contribute equally to society.

e) Prohibition for their personal rights should be stopped - Homosexuality is not a

choice; it is a result of the environment or a genetic mutation. So, banning them
from exercising their personal sexual rights should be halted because if you
interfere with their personal lust, they will fulfil their demands in private, which
could lead to criminal activity such as rape, murder, or sexual abuse.
 f) Safer body process - For a healthier body process, sexual health promotion and
LGBT replication should be encouraged.

g) State needs to shield their elementary rights with none discrimination.

h) Special laws ought to be enacted.

i) Provide opportunities in social and economic activities.

j) Need to shield human rights.

k) Need to require preventive measures in family, public and violence.

l) Government ought to take initiatives to support employers in creating geographic

point and geographic point culture, a lot of auxiliary and inclusive of LGBT folks.

m) Need to vary social angle toward LGBT Minority folks.

EMERGING ISSUES IN LGBT STUDIES

LGBT issues are becoming a key topic in several political agendas and social struggles
worldwide (European Commission, 2015; UN, 2013). Public bodies across the world and
transitional movements are designing new policies and strategies that address the protection of
LGBT rights. For instance, in 2013 the Office of the United Nations High Commissioner for
Human Rights designed the campaign ‘Free and Equal’, whose main objective was equal
treatment of LGBT people. In 2015, the European Commission launched a strategy called the
‘List of Actions by the Commission to Advance LGBTI Equality’, in which a set of proposals to
protect LGBT rights were defined.

One of the examples of these transnational changes is the trend toward the legalization of same-
sex marriage, mostly supported by LGBT movements. This trend has been highly debated in
recent literature because it has become a priority within the campaigns of LGBT organizations
around the world (Hildebrandt, 2012; Kollman, 2007; Weber, 2015). This critique follows the
ongoing debate about the influence of Western dynamics in the analysis of same-sex marriage
recognition. For instance, Kollman (2007) suggests that discussions about the legalization of
same-sex marriage have followed a similar pattern all around the world, mostly associated with
the idea of pressuring governments to recognize gay and lesbian relationships as a right that
public bodies should regulate.

These analyses on LGBT global political trends affirm that there is a Europeanization of social
movements, which are strongly linked to the institutional opportunities that European bodies
have provided in the last years (Dioli, 2011; Paternotte, 2016). In this regard, the adoption of
Article 13 of the Amsterdam Treaty is particularly relevant as it displays a set of political actions
to combat discrimination for sexual orientations, among other aspects (European Parliament,
1997). In a similar way, there is research on the homogenization of LGBT struggles due to the
institutionalization and professionalization of LGBT organizations and mainstream activism.

Parallel to this process of homogenization, a renewed activism has emerged around digital
media, which are providing new opportunities to make the diversity of LGBT identities visible
around the world (Ciszek, 2017). This new activism is part of the intellectual efforts that
examine the change of LGBT politics and its connections to the combative discourse against
Western colonization of social movements.

BIBLIOGRAPHY

BOOKS AND JOURNALS

● Amber Tanweer, LGBT Rights in India, 2 I.J.L.M.H. 1, 6-7 (2018).
● Eraly, Abraham (1 April 2015). The Age of Wrath: A History of the Delhi Sultanate.
Penguin UK. ISBN 9789351186588.
● Jeffrey a. Redding, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey”
& “Kim Brooks” eds., Routledge, 2010).
● Kugle, Scott A (1 September 2011). Sufis and Saints' Bodies: Mysticism, Corporeality,
and Sacred Power in Islam.
● Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws
unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost
● Martha C. Nussbaum, Disgust or Equality? Sexual Orientation and Indian Law, Journal
of Indian Law and Society, Vol. VI
● Mendos, Lucas Ramón (2019). State-Sponsored Homophobia 2019  (13th ed.).
Geneva: ILGA.
● Nicola Barker, Not the Marrying Kind – A Feminist Critique of Same-Sex
Marriage, PMSLS 1, 48-49 (2012).
● Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95,
99-100 (2014)
● “Politics and Society Between Elections". Regional Political Democracy. 2 - Social
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● R. Venkadesh kumar, A Study on the Legal Recognition of the Same-Sex Marriage,
120(5) I.J.P.A.M. 2946, 2949-2950 (2018). 2008/98/EC of the European Parliament 
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● Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the
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● “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and
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WEB LEXICONS
● European Union, Treaty on European Union (Consolidated Version), Treaty of
Amsterdam, 2 October 1997, available at:
https://www.refworld.org/docid/3dec906d4.html
● European Union: Council of the European Union, Charter of Fundamental Rights of the
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Humanitarian Situation of Iraqi Refugees, 12 July 2007, P6_TA (2007)0357, available at:
https://www.refworld.org/docid/4697795d2.html
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didnt-think-homosexuality-was-against-nature/articleshow/4708206.cms.
● Vikas Pandey, Why legalising gay sex in India is not a Western idea, BBC News (Dec.
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