THE DYNAMICS OF LGBTQIA+ COMMUNITY RIGHTS IN

ASIA
A COMPARATIVE STUDY

“A DISSERTATION SUBMITTED TO GURU GOBIND SINGH

INDRAPRASTHA UNIVERSITY, DELHI IN PARTIAL FULFILMENT OF
THE REQUIREMENT FOR THE DEGREE OF BACHELOR OF LAWS”

By:

TUBA FIRDOS KHAN

ENROLLMENT NO.: 10151103818

UNDER THE SUPERVISION OF

Ms. NAVJOT SURI SINGHAL

ASSISTANT PROFESSOR

SCHOOL OF LAW
DELHI METROPOLITAN EDUCATION
BATCH 2018-2023
 “DECLARATION”

“I, Tuba Firdos Khan Student of BA LLB, hereby declare that the dissertation titled
The Dynamics of LGBTQIA+ Community Rights In Asia A Comparative Study
which is submitted by me to DME Law School, in partial fulfillment of the
requirement for the award of the degree of B.A.LL.B is my original work submitted to
the Guru Gobind Singh Indraprastha University, Delhi. It is further declared that all
the sources of information used in the dissertation have been duly acknowledged. I
understand that the dissertation may be electronically checked for plagiarism using
plagiarism detection software to assess the originality of the submitted work.”

“Signature of the Student”-

(Tuba Firdos Khan)

Place - Noida

Date: –

ii
 CERTIFICATE

On the basis of a declaration submitted by Tuba Firdos Khan, student of BA LL.B, I

hereby certify that the dissertation titled “THE DYNAMICS OF LGBTQIA+
COMMUNITY RIGHTS IN ASIA A COMPARATIVE STUDY” submitted to the
DME Law School, in partial fulfillment of the requirement for the award of the degree
of B.A.LL.B. by the Guru Gobind Singh Indraprastha University, Delhi has been
carried out by her under my guidance and supervision.

……….………(Signature)

Ms. Navjot Suri Singhal

Assistant Professor
DME Law School

(Supervisor)

Place: Noida

Date:

iii
 ACKNOWLEDGEMENT

This dissertation is the product of a long-term interest in the human rights of the
LGBTQIA+ community. This dissertation is the result of hard work and dedication
given to the ideology of inclusion of the LGBTQIA+ Community in economic growth
and gender-neutral criminal laws with the viewpoint of the future. It is a relationship
between how the economic growth of the community is needed for an hour and how
much we need gender-neutral criminal laws to prevent discrimination and violence
based on one’s own sexual orientation.

This work has benefitted immensely from many sources, institutional as well as
personal. The people who helped me undertake this journey are too many to be named
here personally. However, the contributions of some, following, have left an indelible
impression on all the pages of the dissertation. am deeply indebted to my supervisor,
Ms. Navjot Suri Singhal, for her encouraging, inspirational, and valuable guidance
during the research and preparation of this dissertation. I am thankful to her for
allowing me to present my viewpoint in a liberal manner. Also, my heartfelt gratitude
to her, as she undertook the role of supervisor, mentor, and guide for the successful
preparation of this dissertation. Without her guidance and encouragement, I would not
have had the appropriate approach to the topic. In addition to being an effective
mentor, she also assisted me as a visionary scholar by placing my ideas in order and
structure. I also would like to extend my warmest gratitude to my fellow batch mate
Tanisha Sharma, who helped in framing my dissertation and who was there to help
me as a friend.

Last, but definitely not least, my warmest regards to the dissertation Committee
whose valuable remarks honed my research skills

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 TABLE OF CONTENTS

TABLE OF CASES……………………………………………………...viii
TABLE OF ABBREVIATION……………………………………….....ix
TABLE OF FIGURE…………………………………………………….x

CHAPTERS ……………………………………………………………….P. No

CHAPTER 1: INTRODUCTION………………………………………...01 – 12
1.1. Introduction of LGBTQ Society and Their Struggle…………………01
1.2. Statement of Problem…………………………………………………06
1.3. Objectives……………………………………………………………..07
1.4. Hypothesis…………………………………………………………….07
1.5. Research Questions …………………………………………………..08
1.6. Methodology …………………………………………………………08
1.7. Survey of Literature ………………………………………………….10

CHAPTER 2: FUNDAMENTAL RIGHTS & CONSTITUTIONAL RIGHTS OF

THE LGBTQ COMMUNITY………………………………………………13 – 55.
2.1. Introduction: Fundamental Rights & Constitutional Rights……………..13.
2.1.1. Factors Leading to Demand for Rights and Equal Representation…….15.
 Psychological & Medical Factor……………………………………...15.
 Economical Factor…………………………………………………….17.
 Political Factor………………………………………………………...20.
2.1.2. Stereotypes, Prejudice, and Violence in Society………………………..21.
2.2. Evaluation and Developmental Recognition in Asia……………………...27.
2.2.1. China…………………………………………………………………….28.
2.2.2. India……………………………………………………………………..33.
2.2.3. Japan…………………………………………………………………….37.
2.2.4. Pakistan …………………………………………………………………41.

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2.2.5. South Korea……………………………………………………………44.
2.2.6. Sri Lanka……………………………………………………………….47.
2.2.7. Thailand ……………………………………………………………….51.

CHAPTER 3: AN OVERVIEW OF DOMESTIC CRIMINAL LAWS

CONCERNING THE LGBTQ COMMUNITY……………………………55 – 82.
3.1. Introduction to Governing Criminal Laws………………………………...55 – 68.
3.1.1. China……………………………………………………………………..55.
3.1.2. India……………………………………………………………………....57.
3.1.3. Japan ……………………………………………………………………..59.
3.1.4. South Korea………………………………………………………………61.
3.1.5. Pakistan…………………………………………………………………...63.
3.1.6. Sri Lanka………………………………………………………………….65.
3.1.7. Thailand ………………………………………………………………….67.
3.2. Specific Provisions Covering: Assault, Sexual Assault, Rape
& Punishments………………………………………………………………68.
3.3. Violence Against LGBTQ Community: observation made through.
News and Media …………………………………………………….............72.
3.4. The Need to Include the Community: A Gender-Neutral
Criminal Law………………………………………………………………...78.

CHAPTER 4: POSITION & REPRESENTATION OF LGBTQ COMMUNITY

PEOPLE IN THE EMPLOYMENT SECTOR……………………………...82 – 87
4.1. Introduction………………………………………………………………...82.
4.2. An Analysis of the LGBTQ Community in the Employment
Sector……………………………………………………………………………83.

CHAPTER 5: STEP TAKEN TO INCLUDE LGBTQ+ COMMUNITY: A

GLOBAL VIEW……………………………………………………………….87 – 97
5.1. LGBTQ+ Community in International Domain: A viewpoint Of Economic
Growth…………………………………………………………………………..89.
5.2: Inclusion in Spaces: Treaties, & Conventions of United Nations………….93.

vi
CHAPTER 6: SUGGESTIONS AND CONCLUSION……………………97-100

BIBLIOGRAPHY……………………………………………………………101.

SIMILARITY INDEX ………………………………………………………107.

vii
 TABLE OF CASES
1. Naz Foundation v. 160 Delhi Law Times 277 Page 34
Government of NCT of
Delhi,

2. Navtej Singh Johar v. AIR 2018 SC 4321 Page 35

Union of India,
3. National Legal Services AIR 2014 SC 1863 Page 35
Authority v. Union of
India
4. Suresh Kumar Kaushal (2014) 1 SCC 1 Page 35
V. Naz Foundation,
5. Supriyo@ Supriya Wp no 1011 of 2023 Page 36
Chakraborty v. Union of
India,
6. Transgender Rights Constitutional Petition No. 43 of Page 44
2009
Caseor the Khawaja Sira
Case
7. Maradana v Wimalasiri SC Appeal No.32/11 SC SPL LA Page 51
No.304/2009
and Jeganathan, SC
Appeal No.32/11 SC
SPL LA No.304/2009

8. The “Treatment” Case: N/A Page 73

Peng Yanhui v. Xinyu
Piaoxiang Psychotherapy
Center
9. Australia, No. 488/1992, U.N. Doc Page 93
CCPR/C/50/D/488/1992 (1994).
Communication

viii
 TABLE OF ABBREVIATION
IPC Indian Penal Code
CRPC Criminal Procedure Code
HIV Human Immunodeficiency Viruses
LGBTQIA+ Lesbian, Gay, Bisexual, Transgender, Queer,
Intersex, Asexual, “+” Represent Other Identity
CONST. Constitution
FIG Figure
ILGA International Lesbian And Gay Association
GID Gender Identity Disorder
EEOCS Equal Employment Opportunity Commission
SC Supreme Court
ACC Accident and Compensation Cases

ACC(SC) Accident and Compensation Cases (SC)

ACJ Accidents Claim Journal

AIHC All India High Court Cases

FAJ All India Prevention of Food Adulteration

Journal

AIR All India Reporter

HC High Court
DLT Delhi Law Times

DLT(SC) Delhi Law Times (SC)

DRJ Delhi Reported Journal

DRJSupp Delhi Reported Journal (Suppl)

ix
 TABLE OF FIGURES

FIG 1 Pg. 17

FIG 2 Pg. 19

FIG 3 Pg. 39

FIG 4 Pg. 43

FIG 5 Pg. 50

FIG 6 Pg. 50

FIG 7 Pg. 51

FIG 8 Pg. 58

FIG 9 Pg. 74

FIG 10 Pg. 85

FIG 11 Pg.85

FIG 12 Pg. 95

x
CHAPTER 1: INTRODUCTION
1.1. INTRODUCTION OF LGBTQ SOCIETY AND THEIR STRUGGLE

In recent years, society has made significant strides toward inclusivity and acceptance,
particularly when it comes to sexual orientation and gender identity. The LGBTQ+
community, an acronym that stands for lesbian, gay, bisexual, transgender, and
queer/questioning (with the "+" representing additional identities), has played a crucial
role in advocating for equality and challenging societal norms. This introduction aims to
shed light on the diverse and vibrant world of the LGBTQ+ community, exploring its
history, struggles, achievements, and the ongoing pursuit of equal rights and recognition.

Understanding Sexual Orientation and Gender Identity

Sexual orientation refers to an individual's enduring pattern of emotional, romantic,

and/or sexual attractions to men, women, both genders and none. Common sexual
orientations include homosexuality (attraction to the same gender), heterosexuality
(attraction to the opposite gender), and bisexuality (attraction to both genders). These
orientations exist on a continuum, and individuals may identify with specific labels or
prefer not to categorize themselves.

Gender identity encompasses an individual's deeply held sense of their gender, which
may or may not align with the sex assigned at birth. While many people identify as either
male or female, some individuals identify as transgender, meaning their gender identity
differs from the sex assigned to them at birth. Others identify as non-binary, genderqueer,
gender fluid, or other gender identities outside the traditional male-female binary. It's
important to respect and affirm each person's self-identified gender.

History and Evolution

The history of the LGBTQ+ community is rich and diverse, spanning cultures and
centuries. Same-sex relationships and non-binary gender expressions have been
documented throughout ancient civilizations such as ancient Greece and Rome,
indigenous cultures around the world, and indigenous peoples in North America.
However, societal acceptance of diverse sexual orientations and gender identities has
varied greatly throughout history.

The modern LGBTQ+ rights movement gained momentum during the 20th century. The
1969 Stonewall Riots in New York City marked a turning point, as LGBTQ+ individuals

1
fought back against police harassment and discrimination, igniting a broader movement
for equality and liberation. Since then, LGBTQ+ activists and allies have worked
tirelessly to secure legal protections, challenge stereotypes, and promote acceptance.

Struggles and Challenges

The LGBTQ+ community has faced numerous challenges on the path to equality.
Discrimination, harassment, and violence have been persistent issues for many
individuals. Homophobia, biphobia, and transphobia—fear or hatred toward gay,
bisexual, and transgender individuals—continue to undermine progress. LGBTQ+
individuals often experience higher rates of mental health issues, such as depression and
anxiety, due to societal rejection and marginalization. Legal recognition and protection
have been key areas of advocacy. Many countries have made strides in legalizing same-
sex marriage, adopting anti-discrimination laws, and recognizing transgender rights.
However, in some regions, LGBTQ+ individuals still face persecution, legal penalties, or
social stigma. The fight for equal rights and protection is ongoing and requires continued
education, advocacy, and support.

Across the globe, individuals within the enchanting tapestry of the LGBTIQ+ spectrum
encounter a disheartening tapestry of ostracism, disgrace, prejudice, aggression, and
intimidation rooted in their genuine or perceived proclivity, soul's hue, a manifestation of
identity, or unique facets of their being. Egregious acts of violence take shape as brutal
assaults, purposeful slayings, abhorrent sexual transgressions, and the venomous spewing
of threats and loathing, perpetrated by both the hand of authority and independent agents
of intolerance. Such mistreatment, like a specter, haunts the intimate confines of family,
permeates the very air of public thoroughfares, casts its pall upon institutions of learning,
and brazenly infiltrates the chambers of commerce and industry.

In every corner of the world, regardless of the existence of anti-discrimination statutes,

individuals of the LGBTIQ+ realm endure socioeconomic disparities, a bewildering
dance on the periphery of acceptance, specifically in realms of well-being, education,
gainful occupation, and equitable access to justice. Astonishingly, this tale unfolds
despite the incontrovertible truth that LGBTIQ+ persons, as inextricably intertwined with
the social tapestry as any other, weave their threads of contributions into the rich fabric of
communal progress, dutifully fulfilling their obligations as taxpayers, nurturers of
kinship, and catalysts for collective advancement. The oppressive tendrils of prejudiced

2
legislation cast an indelible shadow upon the ability of these vibrant souls to partake in
the workforce and unfurl their innate potential as invaluable constituents of society's
symphony.

In a staggering number of 70 nations, the existence of consensual same-sex relationships

is unjustly criminalized. Furthermore, in numerous other societies, the legal recognition
of same-sex partnerships remains absent, leaving them bereft of crucial spousal and
familial benefits within the realm of employment. Local norms regarding gender
expectations often exploit laws as tools to castigate or unfairly treat individuals who
deviate from these societal norms. Ambiguously worded legislation has the potential to
impose penalties on transgender, intersex, and non-binary individuals. To illustrate, in
jurisdictions that deny recognition of an individual's gender identity, those who identify
as transgender, intersex, or non-binary may find themselves incapable of acquiring the
essential documents required for employment, such as birth certificates, driver's licenses,
voter IDs, passports, military registration, pension insu “Civil society has been
instrumental in monitoring and reporting cases of discrimination, including against
LGBTIQ+ persons, and using the evidence gathered to advocate for social and political
change race and diplomas, unless they conceal their sexual orientation and gender
identity.”1

Community and Identity

The LGBTQ+ community is a vibrant and diverse collection of individuals who find
solace, support, and understanding through shared experiences. Community centers,
organizations, and social networks have emerged as safe spaces for LGBTQ+ individuals
to connect, seek resources, and celebrate their identities. Pride parades and festivals are
colorful expressions of visibility and solidarity, highlighting the richness and diversity of
the community.

Within the LGBTQ+ community, subcultures and intersectional identities exist. Different
sexual orientations, gender identities, ethnicities, cultures, religions, and abilities
intersect, creating a dynamic tapestry of experiences. Intersectionality acknowledges the
overlapping forms of oppression and discrimination faced by individuals who hold
multiply marginalized.

1
Huq, S. (2017). Sexual Citizenship in South Asia: Revisiting the Politics of Section 377 in India. Journal
of Human Rights Practice, 9(1), 40-55.

3
Gender dysphoria is a term used to describe the distress or discomfort an individual may
feel when their gender identity does not align with the sex they were assigned at birth. It
is important to note that gender dysphoria is not a mental illness, but rather a recognized
medical condition. It is often experienced by transgender individuals, who may identify
as a gender different from the one they were assigned at birth.

To better understand gender dysphoria, let's consider a few examples:

A person assigned female at birth feels a persistent and deep-rooted identification as

male. They may experience distress and discomfort with their physical features, such as
breasts or a feminine body shape, as they do not align with their gender identity. This
individual may experience social dysphoria when referred to with female pronouns or
addressed by their birth name, as they prefer to be recognized and treated as male.

A person assigned male at birth has always identified as female. They may feel distressed
about their masculine physical characteristics, such as facial hair or a deep voice, as these
do not align with their gender identity as a woman. This individual might experience
emotional distress or social anxiety when presenting as male, and they may desire to
present and be recognized as female to alleviate their gender dysphoria.

A non-binary individual, who doesn't exclusively identify as male or female, may

experience gender dysphoria due to societal expectations and assumptions about gender.
They might feel discomfort when forced to conform to traditional binary gender norms or
when others misgender or categorize them incorrectly. The incongruence between their
gender identity and societal expectations can contribute to their experience of gender
dysphoria.

Need to protect the Economic Rights of the LGBTQ+ Community

Equality and Non-Discrimination: Every individual, regardless of their sexual orientation

or gender identity, should have equal access to economic opportunities and rights.
Protecting the economic rights of the LGBTQ+ community helps ensure that they are not
discriminated against or excluded from participating fully in the economy.

Social Justice and Human Rights: Economic rights are fundamental human rights. The
Universal Declaration of Human Rights recognizes the right to work, just and favorable
conditions of work, and the right to an adequate standard of living. Upholding these rights
for all individuals, including LGBTQ+ individuals, is essential for achieving social justice

4
and equality. Economic Empowerment: By protecting the economic rights of the
LGBTQ+ community, we enable their economic empowerment. This empowerment
benefits individuals, their families, and the broader society. When LGBTQ+ individuals
can freely pursue education, employment, and entrepreneurship without facing
discrimination, they can contribute more fully to economic growth and development.
Overcoming Discrimination and Prejudice: Discrimination against LGBTQ+ individuals
in the workplace can lead to lower wages, limited career advancement opportunities, and
higher rates of unemployment or underemployment. Protecting their economic rights
helps address these disparities and dismantles barriers that hinder their economic well-
being. It promotes an inclusive and diverse workforce where everyone can thrive based
on their skills and merits rather than their sexual orientation or gender identity.

Mental and Physical Health: Economic security plays a vital role in overall well-being.
When LGBTQ+ individuals face economic discrimination, they may experience higher
levels of stress, anxiety, and other mental health challenges. By safeguarding their
economic rights, we contribute to their overall health and well-being, fostering a society
that values and supports the LGBTQ+ community. Building Inclusive Economies:
Inclusive economies benefit everyone. By protecting the economic rights of the LGBTQ+
community, we foster an environment where diversity and inclusion are celebrated. This
can lead to innovation, creativity, and the development of new markets and industries. It
helps create a more resilient and prosperous society.

Gender-Neutral Criminal Laws: Need of an Hour

Implementing gender-neutral criminal laws helps ensure equal protection and access to
justice for LGBTQ+ individuals, addresses underreporting and barriers to justice, protects
against hate crimes, recognizes diverse identities, and aligns with international human
rights principles. These laws contribute to a more inclusive and equitable legal system
that upholds the rights of all individuals, regardless of their gender identity or expression.

Gender-neutral criminal laws make ensuring that all people, regardless of their gender
identity or expression, are afforded the same legal protections. These laws assist in
preventing discrimination and guaranteeing equal treatment for LGBTQ+ people under
the law by eliminating gender-specific wording and judging crimes based on the conduct
or intentions of the victim or perpetrator rather than their gender.

5
Addressing underreporting and obstacles to justice: Due to stigma, fear of discrimination,
or a lack of faith in the criminal justice system, LGBTQ+ people frequently encounter
special difficulties in reporting crimes or seeking justice. By taking into account the
issues and concerns of LGBTQ+ people, fostering a secure atmosphere for reporting
crimes, and improving their access to justice, gender-neutral criminal laws can aid in
removing these obstacles.

Protection from hate crimes: It is quite concerning that hate crimes target LGBTQ+
people. Hate crimes that are motivated by a person's sexual orientation, gender identity,
or gender expression can be particularly addressed by gender-neutral criminal statutes.
The law can offer harsher sanctions for perpetrators, send a clear message that such
actions are abhorrent, and aid in deterring future acts of violence by officially recognizing
these motives as aggravating circumstances. Gender-neutral criminal laws accept and
recognize the variety of identities and experiences that exist within the LGBTQ+
community. These rules better accommodate people who may not identify as one gender
or whose identities may be fluid or non-binary by avoiding gender-specific assumptions.
This acknowledgment guarantees that LGBTQ+ people are not disregarded or
marginalized by the criminal justice system and helps create a more inclusive legal
environment.

Compatibility with international human rights standards: International human rights

standards place a strong emphasis on the necessity of defending LGBTQ+ people from
prejudice and abuse. Putting into practice gender-neutral criminal laws is consistent with
these principles and shows a dedication to defending the rights and dignity of LGBTQ+
people. Additionally, it encourages conformity with other legal systems that uphold and
defend the rights of marginalized groups.

1.2. STATEMENT OF PROBLEM

The economic rights of the LGBTQ+ community have been subject to discrimination and
inequality, posing significant challenges to their economic well-being and hindering
social progress. Despite advancements in recognizing LGBTQ+ rights in various
countries, there remains a pressing need to address the existing disparities and create an
inclusive economic environment. This dissertation also aims to investigate the
multifaceted issues surrounding the representation of the LGBTQ+ community in

6
criminal laws and propose strategies to overcome the barriers they face in accessing equal
economic opportunities and their need to have criminal gender-neutral laws.

1.3.OBJECTIVE OF RESEARCH
The research objectives of this dissertation are framed from the statement of the problem:

 Examine the economic discrimination faced by the LGBTQ+ community,

including disparities in employment, wages, promotions, and access to financial
services.

 Investigate the impact of economic inequality on the overall well-being and social
progress of the LGBTQ+ community.

 Analyze the legal frameworks and policies in Asian countries regarding LGBTQ+
rights, with a focus on criminal laws and their implications for economic
opportunities.

 Identify the specific barriers faced by the LGBTQ+ community in accessing equal
economic opportunities, such as discrimination in recruitment, workplace
harassment, and limited access to capital for entrepreneurship.

 Examine the role of corporations, organizations, and government policies in

fostering an inclusive economic environment for the LGBTQ+ community.

 Propose recommendations and strategies to overcome the barriers faced by the

LGBTQ+ community in accessing equal economic opportunities, including the
need for criminal gender-neutral laws and policies.

1.4. HYPOTHESIS
The hypothesis suggests that the LGBTQ community has existed throughout history, but
their visibility and recognition in society have increased in recent years. While various
rights and protections have been granted to them, their enforcement remains limited.
Additionally, the hypothesis proposes that certain jurisdictions in Asia provide more
extensive protections and rights for the LGBTQ community as compared to India.

7
 1.5. RESEARCH QUESTIONS
 What are the key discriminatory practices and systemic barriers that hinder the
economic rights and well-being of the LGBTQ+ community and, to what extent have
advancements in recognizing LGBTQ+ rights influenced the economic inclusion of
the community?
 What are the socio-economic impacts of discrimination and inequality on the
LGBTQ+ community, and how do these factors contribute to hinder social progress?
 How are LGBTQ+ individuals represented in criminal laws, and how can criminal
laws be made more gender-neutral to ensure fair treatment and protection of the rights
of LGBTQ+ individuals?

1.6. METHODOLOGY
This research paper aims to analyze the dynamics of the LGBTQ community and their
rights in Asia, the author has included 7 countries of different social values, having
different sets of governments and ideologies where we will analyze the statistical data,
policies, and legal provisions through primary & secondary sources along with the reports
international bodies UN, WHO, UNHCR. This study aims to investigate the current
dynamics of LGBTQ community rights in Asia and how they have changed over time.

The research method used will be doctrinal and non-empirical to identify key informants
and participants. This includes reports from LGBTQ individuals and activists, as well as
from civil society organizations and government agencies involved in LGBTQ rights
advocacy in Asia. The results of the study will provide insights into the current state of
LGBTQ rights in the region, as well as the challenges and opportunities faced by LGBTQ
individuals and activists in Asia.

 DOCTRINAL METHOD:

Doctrinal researchers focus on analyzing an existing framework's interpretation under this

methodological model. Assembling relevant court precedents, conflicts, or gaps in current
legislation may be necessary during a literature review to support research outcomes
drawing meaningful conclusions based on these analyses may involve reform
suggestions.

In the field of law, one commonly used research approach is doctrinal research
methodology. This approach involves studying and analyzing various legal sources like

8
statutes, regulations, and case law alongside existing legal principles to understand
applicable rules better.

The process of doctrinal research typically involves the following steps:

a. Identifying the research question or legal issue: Clearly define the legal problem
or question that will be the subject of analysis.
b. Gathering legal sources: Collecting relevant legal sources, such as statutes,
regulations, case law, treaties, and legal literature that pertain to the research
question.
c. Analyzing legal sources: Examining and interpreting the legal sources to
understand the relevant legal rules, principles, and arguments related to the
research question. This may involve identifying legal precedents, conflicts, or
gaps in the existing legal framework.
d. Synthesizing findings: Summarizing and synthesizing the key findings from the
analysis of legal sources, highlighting any patterns, trends, or contradictions.
e. Drawing conclusions: Formulating conclusions based on the analysis, which may
include proposing legal interpretations, suggesting reforms, or identifying areas
for further research.
f. Presenting the research: Communicating the findings and conclusions clearly and
logically, often through academic papers, legal opinions, or other forms of legal
writing.
 NON-EMPIRICAL RESEARCH:
Articles under Non-Empirical Research are more concerned with ideas, methodologies,
and their consequences for education research. Comprehensive reviews and papers
focusing on approach are examples of non-empirical research. It should also draw on
empirical research literature, but it does not have to be primarily data driven.

Non-empirical evidence is supported by a variety of publications. It is used in theory

articles when the author is attempting to suggest a new notion or clarify the implications
of those currently in theory. Non-empirical evidence is also used in substantive review
articles. In these articles, the author attempts to summarize issues about which they have
extensive expertise in order to demonstrate the significance of the notion and apply it to a
specific element of society. Another non-empirical source is criticism, in which the
author attempts to explain why another person's work was flawed or incorrect.

9
 1.7.SURVEY OF LITERATURE
In this dissertation, the survey of the literature is done in two categories Primary and
Secondary.
Primary: Acts
From the acts and laws mentioned below, the laws related to assault, sexual assault, and
Rape has been reviewed accordingly. The laws have been reviewed keeping in mind in
which country what are the punishments of these offenses and what is the scope of
victims in the laws. It has been observed that every country has a different scope of
punishment. It has been found while reviewing the laws that how only the victim of
physical offences are only women and gender-neutral laws are not yet implemented.

 Penal Code of China

 Penal Code of India (IPC, 1860)
 Criminal Procedure Code (India)
 Constitution Of India
 Penal Code of Japan
 Penal Code of Pakistan
 Criminal Code of the Republic of South Korea
 Penal Code of Sri Lanka
 Penal Code of Thailand

Secondary

 Unequal Employment Opportunities for Transgenders: Empirical Study on

Employees of Pakistan2

In this research paper, the idea of transgenders in Pakistan and their conditions in the
employment sector has been taken. This paper explains how transgender has been facing
the stereotype against them in society. It has also reviewed that inequality barriers against
men and women exist but there are no steps have been taken against the workplace
inequality faced by non-binary gender.

2
Abbiha Waqar, Zahra Waqar, Muhammad Nauman Jamal, “Unequal Employment Opportunities for
Transgenders: Empirical Study on Employees of Pakistan” Journal of Organizational Behavior Review,
2021

10
  LGBT Rights-focused Legal Advocacy in China: The Promise, and Limits of
Litigation3
This research paper highlighted the status of discrimination done through the basis of
psychology, tolerance, and textbook against the LGBTQ+ community in China. It has
highlighted the important case of violence against China, and the idea is to review that
irrespective of how fast the world is changing and accepting the community there are still
traditional barriers in the society left which the rural areas people are being discriminated
against and unfair practices are being done against them such as conversion therapy.

 Knowledge, Attitudes, And Perceptions Survey Report 4

This report highlighted how in Sri Lanka, society is not aware of the basic terms of the
LGBTQ+ community. It has been reviewed that in the country people are not accepting
the concept of gender fluidity and spectrum of gender. Homosexuality is still a crime and
is penalized under the penal code of Sri Lanka and people are not supportive of
homosexuals. The medical test of gay persons in Sri Lanka is being done through their
anal just to confirm they have committed anal sex and are homosexual.

 Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People
standards of conduct for business 5

The current Standards of Conduct are based on both the UN Guiding Principles and the
UN Global Compact, and they provide direction to businesses on how to meet their
responsibilities to respect everyone's rights, including the rights of lesbian, gay, bisexual,
transgender, and intersex (LGBTI) individuals. Meeting this standard entails treating
LGBTI employees equally in the workplace, as well as scrutinizing business practices up
and down the supply chain to ensure that prejudice is addressed at every stage. However,
the Standards of Conduct go a step further in making the case for corporate participation,
highlighting the numerous potentials for corporations to contribute to constructive social
change more broadly in the communities where they do business.

3
Siodhbhra Parkin, “LGBT Rights-focused Legal Advocacy in China: The Promise, and Limits of
Litigation”, Fordham International Law Journal, 2018
4
Pradeep Peiris, “KNOWLEDGE, ATTITUDES, AND PERCEPTIONS SURVEY REPORT” Social
Scientists’ Association 2021
5
UNHRC, “Tackling Discrimination against Lesbian, Gay, Bi, Trans, & Intersex People Standards of
Conduct for Business” September 2017

11
  The Economic Cost of Stigma and the Exclusion of LGBT People: A Case
Study of India6
Human rights and equality for lesbian, gay, bisexual, and transgender (LGBT) individuals
are typically viewed through a social, cultural, or ethical lens; however, LGBT equality
and inclusion are also economic development concerns. This research develops a model
to assess the economic cost of stigma—negative sentiments towards LGBT people—as
well as LGBT people's exclusion from social institutions such as education, work,
families, and health care. The model is used to an Indian case study.

 The relationship between LGBT inclusion and economic development:

Macro-level evidence7

Identify impediments to freedom for LGBT people that can have an impact on economic
development. This portion of the study draws on studies on the rights of LGBT persons
across areas and evidence of exclusion with regard to violence, workplace discrimination,
and inequities in health and education. According to this research, LGBT persons
throughout countries are restricted in their freedoms in ways that produce economic
inefficiencies, such as lost labor time, reduced productivity, underinvestment in human
capital, and the poor deployment of human resources due to discrimination. Reduced
investment in human capital and improper utilization of human resources may impede
growth at the macroeconomic level.

 LGBT+ inclusion and human rights in Thailand: a scoping review 8

Reviewed LGBT+ persons continue to battle for full human rights realization.
Observed made on a scoping review to explore the breadth of the literature and
identify knowledge gaps on LGBT+ inclusion and human rights in Thailand, in the
context of documented health and mental health disparities and economic hardship.

6
M. V. Lee Badgett, “The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of
India”, October 2014
7
M.V. Lee Badgett “The relationship between LGBT inclusion and economic development: Macro-level
evidence”, Elsevier 2019
8
Newman, P.A., Reid, L., Tepjan, S. “LGBT+ inclusion and human rights in Thailand: a scoping
review of the literature”, BMC Public Health, 09 October 2021

12
CHAPTER 2: FUNDAMENTAL RIGHTS & CONSTITUTIONAL
RIGHTS OF THE LGBTQ COMMUNITY
2.1. INTRODUCTION: FUNDAMENTAL RIGHTS & CONSTITUTIONAL
RIGHTS

Fundamental rights are a set of basic human rights that are recognized and protected by
the law of a country or region. These rights are considered essential for individuals'
development, well-being, and dignity, and they form the foundation of a just and
democratic society. Fundamental rights are typically enshrined in a country's constitution
or other legal documents, and they provide individuals with protection against abuse and
discrimination by the state or other powerful entities.

 Importance of Fundamental Rights:

Protection of Human Dignity: Fundamental rights ensure that every individual is treated
with dignity and respect. They safeguard the inherent worth and value of each person,
irrespective of their background, and protect them from any form of degrading treatment
or discrimination.

Preserving Individual Liberties: Fundamental rights guarantee certain freedoms and

liberties to individuals, such as freedom of speech, expression, religion, and conscience.
These rights allow individuals to live according to their own beliefs and make choices
without unnecessary interference from the state or other authorities.

Ensuring Equality: Fundamental rights promote equality by prohibiting discrimination

based on race, gender, religion, caste, or other characteristics. They ensure equal
opportunities for all individuals and protect marginalized groups from unfair treatment or
prejudice.

Safeguarding Justice and Fairness: Fundamental rights provide a framework for ensuring
justice and fairness in society. They guarantee the right to a fair trial, protection against
arbitrary arrests or detentions, and the right to seek legal remedies in case of violations.
These rights serve as a check on the power of the state and help maintain the rule of law.

Fostering Democratic Principles: Fundamental rights are an essential component of a

democratic society. They empower individuals to participate in the political process,
express their opinions, and hold their governments accountable. By ensuring citizens'

13
rights and freedoms, fundamental rights contribute to the overall functioning and
legitimacy of a democratic system.

Encouraging Social Progress: Fundamental rights play a crucial role in promoting social
progress and development. They encompass rights to education, healthcare, and social
security, which are vital for the well-being and welfare of individuals. By guaranteeing
access to these basic needs, fundamental rights contribute to the overall advancement of
society.

Constitutional rights, also known as constitutional freedoms or civil liberties, are the
rights and freedoms that are explicitly recognized and protected by a country's
constitution. These rights are fundamental to the functioning of a democratic society and
serve as a safeguard against the abuse of power by the government. Constitutional rights
outline the boundaries within which the government can operate and ensure that
individuals have certain protections and freedoms that cannot be infringed upon.

 Importance of Constitutional Rights:

Limiting Government Power: Constitutional rights act as a check on the power of the
government. They establish clear limits on what actions the government can take and
protect individuals from arbitrary or oppressive actions by those in authority.
Constitutional rights ensure that the government operates within the framework of the law
and respects the rights and freedoms of its citizens.

Safeguarding Individual Liberties: Constitutional rights guarantee certain fundamental

freedoms and liberties to individuals. These may include freedom of speech, religion,
assembly, and association, as well as the right to privacy, due process, and equal
protection under the law. By protecting these individual liberties, constitutional rights
empower individuals to express themselves, pursue their goals, and live their lives
according to their values and beliefs.

Ensuring Equality and Non-Discrimination: Constitutional rights provide a framework

for promoting equality and preventing discrimination. They prohibit the government from
treating individuals unfairly based on characteristics such as race, gender, religion,
ethnicity, or sexual orientation. Constitutional rights ensure that all citizens are treated
equally before the law and have equal opportunities to participate in society.

14
Upholding the Rule of Law: Constitutional rights are an essential component of the rule
of law. They establish legal principles and standards that guide the actions of the
government and ensure that it operates in a just and accountable manner. Constitutional
rights provide a basis for legal remedies and allow individuals to challenge any violations
of their rights in a court of law.

Preserving Democratic Values: Constitutional rights are integral to the functioning of a

democratic society. They protect the rights of individuals to participate in the political
process, express their opinions, and hold the government accountable. Constitutional
rights foster a culture of democratic governance, where the government is responsible to
the people and acts in their best interests.

Promoting Stability and Social Cohesion: Constitutional rights contribute to societal

stability and social cohesion by providing a framework for resolving conflicts and
protecting the rights of all individuals, including minorities and marginalized groups.
They foster an environment of inclusivity and respect for diversity, which is vital for a
harmonious and cohesive society.

2.1.1. FACTORS LEADING TO DEMAND FOR RIGHTS AND EQUAL

REPRESENTATION

In recent years, there has been a notable rise in the demand for rights and equal
representation among marginalized groups across the globe. This demand is driven by
various factors that encompass psychological and medical aspects, economic
considerations, and political dynamics. Additionally, the prevalence of stereotypes and
prejudice in society further fuels the need for advocacy and change. This chapter will
explore these factors in detail and analyze their impact on the rising demand for rights
and equal representation.

 PSYCHOLOGICAL & MEDICAL FACTORS:

Psychological and medical factors play a crucial role in driving the demand for rights and
equal representation among marginalized groups. Individuals who have historically been
marginalized based on their gender, race, ethnicity, sexual orientation, or disability often
face mental health challenges arising from societal discrimination and exclusion. This
psychological distress motivates them to demand equal rights, as they seek to eradicate
the root causes of their marginalization.

15
Moreover, medical factors also contribute to the demand for rights. People with
disabilities, for instance, may face barriers to accessibility and face discrimination in
various aspects of their lives. Their demand for equal representation stems from the need
for inclusive policies and infrastructure that can address their medical requirements and
enhance their overall quality of life.

The dispute in the 1960s and early 1970s about whether homosexuality could be
considered a mental condition impeded research on the mental health of lesbian, gay, and
bisexual (LGB) populations. A gay-affirmative viewpoint that favored declassifying
homosexuality clashed with a conservative viewpoint that supported keeping
homosexuality classified as a mental condition. 9

“Homosexuality was deleted from the Diagnostic and Statistical Manual of Mental
Disorders' second edition in 1973, ending the categorization debate, but its legacy has
endured.”10 According to the National Alliance on Mental Illness (NAMI), “LGBTQ
adults are more than twice as likely as heterosexual adults to experience a mental health
condition. Transgender individuals are nearly four times as likely as cisgender individuals
to experience a mental health condition.”

The reality is that most of us will feel considerable anxiety or sadness at some point in
our lives, and we will typically deal with this by seeking out social support. It is very
challenging to sustain mental health in the absence of sufficient social acceptance and
support. Increased discussion of LGBTQIA+ issues and how people are overcoming
obstacles might normalize and justify the problems that people who identify as
LGBTQIA+ are facing. Importantly, this may also result in empowerment, pride, social
acceptance, peer mentoring, and community education.

It is critical to recognize that belonging to the LGBTQ+ community is not a mental

disease in and of itself. However, many LGBTQ+ members, particularly younger
members, suffer from mental health concerns and drug addiction disorders as a result of
prejudice, shame, and traumatic incidents. 11

9
Bayer R. Homosexuality and American psychiatry: The politics of diagnosis. New York: Basic Books;
1981.
10
American Psychiatric Association, “Diagnostic and statistical manual of mental disorders”, Washington,
DC: 1973.
11
Mental Health America: LGBTQ Communities and Mental Health, Retrieved August 17, 2020, from
https://mhanational.org/issues/lgbtq-communities-and-mental-health

16
“Members of the LGBTQ+ community are at high risk of experiencing this
discrimination, shame, and trauma. Thankfully, with a supportive family and community,
someone who identifies as LGBTQ+ can overcome adversity. Individuals in the
LGBTQ+ community utilize mental health services at 2.5 times the rate straight
individuals do. It is essential to understand the LGBTQ+ community, the challenges that
affect this community, and the mental health issues and substance abuse disorders that
can occur. It is also imperative to explore the available and ideal treatment options for
members of this community” (FIG 1)

FIG1.

 ECONOMIC FACTORS

Economic considerations are another significant driving force behind the rise in demand
for rights and equal representation. Marginalized groups frequently face economic
disparities due to unequal access to resources, educational opportunities, and
employment. This economic disadvantage perpetuates their marginalization, limits their
social mobility, and inhibits their ability to thrive.

As a result, individuals and communities affected by economic disparities are

increasingly advocating for rights and equal representation to combat systemic injustice.
They demand policies that promote economic equality, address income gaps, and create
opportunities for upward social mobility. By seeking fair economic opportunities,
marginalized groups aim to break free from cycles of poverty and exclusion.

LGBTQ people face a tough legal landscape and social environment, which leads to
stigma and discrimination in the workplace, school, housing, and public life. There is

17
evidence that stigma and discrimination are detrimental to the economy, businesses, and
government. For example, stigma and discrimination against LGBT employees affect
businesses by lowering workforce productivity and making it more difficult for
employers to discover and retain the finest employees. People who live in poverty are less
healthy than those who are well off, whether the measure is mortality, the prevalence of
acute or chronic diseases, or mental health. 12

There is increasing evidence that some subgroups of the LGBT community have higher
economic disparities than others and that LGBT older adults are less financially fortunate
than their straight colleagues.

“The economic models of discrimination and the family, as well as health economics and
psychological research on minority stress, are the foundation of the conceptual model of
the cost of stigma and exclusion. Economics has taught us that such treatment can hurt
LGBTQ individuals’ economic contributions, both directly through reduced employment,
underemployment, and productivity and indirectly through behavioral feedback loops that
decrease individual and societal investment in human capital and health. Given that
poverty is linked to lower wages and unemployment, it stands to reason that, as
previously mentioned, LGBT persons are more likely to experience poverty. In addition
to highlighting the connections between social stigma and discrimination in many
circumstances, models of social exclusion also highlight how income inequality can
influence decisions about where to live, how to raise a family, and what to study: FIG
2.”13

12
Institute for Research on Poverty. Health & Poverty. www.irp.wisc.edu/research/health.htm , January 13,
2016.
13
Badgett, M.V. Lee, Ph.D. The economic cost of stigma and the exclusion of LGBT people: a case study of
India, Washington, D.C.: World Bank Group.

18
FIG2: Badgett, M.V. Lee, Ph.D. The economic cost of stigma and the exclusion of LGBT people: a case study of India (English)
Washington, D.C.: World Bank Group.

19
  POLITICAL FACTORS

Political factors also contribute significantly to the demand for rights and equal
representation. Historically, marginalized groups have faced underrepresentation and
exclusion from political decision-making processes. This lack of political agency prevents
their voices from being heard, leading to policies that do not adequately address their
needs.

The demand for political rights and equal representation stems from a desire to dismantle
these barriers and create a more inclusive democracy. By actively participating in politics
and advocating for their rights, marginalized groups seek to challenge and transform the
political systems that perpetuate their marginalization. They aim to secure positions of
power and influence that enable them to shape policies and institutions in ways that
promote equality and justice.

Discrimination against the LGBTQ+ community is a complex issue influenced by various

political factors. While the specific factors and their impact can vary across countries and
regions, here are some common political factors that can contribute to discrimination
against the LGBTQ+ community:

Legal Frameworks: Political factors often shape the legal frameworks within which
discrimination occurs. In many countries, laws and policies influenced by conservative
ideologies or religious beliefs can criminalize same-sex relationships, deny legal
recognition to LGBTQ+ couples, or restrict their rights to marry, adopt children, or access
healthcare services. These legal barriers can perpetuate discrimination and marginalize
the LGBTQ+ community.

Political Rhetoric and Leadership: Political leaders play a significant role in shaping
public opinion and influencing societal attitudes toward marginalized groups. When
politicians espouse discriminatory views or engage in homophobic or transphobic
rhetoric, it can fuel prejudice against the LGBTQ+ community. This type of political
discourse can validate discriminatory beliefs and contribute to an environment that fosters
discrimination.

Lack of Protections and Anti-Discrimination Laws: The absence or inadequacy of

laws protecting LGBTQ+ individuals from discrimination can perpetuate marginalization.
In some countries, there is a lack of comprehensive anti-discrimination legislation that

20
specifically includes sexual orientation and gender identity as protected characteristics.
This legal gap can leave LGBTQ+ individuals vulnerable to discrimination in various
areas, including employment, housing, education, and public services.

Institutional Bias: Political factors can influence institutions, such as government

agencies, healthcare systems, and educational institutions, which may harbor biases
against LGBTQ+ individuals. These biases can manifest in discriminatory practices,
unequal treatment, and limited access to services and opportunities. It can create barriers
for LGBTQ+ individuals to fully participate and thrive in society.

International Influences and Global Politics: Discrimination against the LGBTQ+

community can also be influenced by geopolitical dynamics. Different countries and
regions have varying degrees of acceptance and legal protections for LGBTQ+
individuals. In some cases, political factors related to international relations, cultural
exchanges, or religious ideologies can shape attitudes toward the LGBTQ+ community,
leading to discriminatory practices or policies.

It's important to note that these factors are interconnected and can reinforce each other,
perpetuating discrimination against the LGBTQ+ community. Efforts to combat
discrimination require addressing these political factors through the promotion of
inclusive policies, legal reforms, public awareness campaigns, and advocacy for equal
rights and protections for all individuals, regardless of their sexual orientation or gender
identity.

2.1.2. STEREOTYPES, PREJUDICE & VIOLENCE IN SOCIETY

Stereotypes and prejudice prevalent in society significantly fuel the demand for rights and
equal representation among marginalized groups. Stereotypes are oversimplified and
generalized beliefs about a particular group, often perpetuated by societal norms and
media portrayals. Prejudice, on the other hand, refers to preconceived opinions or
attitudes held against individuals based on their membership in a particular group.

These stereotypes and prejudices can lead to discrimination, bias, and unequal treatment
in various spheres of life, including education, employment, healthcare, and social
interactions. Marginalized groups often face negative stereotypes that further marginalize
and stigmatize them, reinforcing their exclusion from mainstream society.

21
As individuals from marginalized communities become increasingly aware of these
stereotypes and prejudices, they are motivated to challenge them and demand equal
treatment. Advocacy movements arise to counteract discriminatory practices and promote
inclusive attitudes. These movements aim to raise awareness, educate the public, and
encourage dialogue to break down stereotypes and combat prejudice.

Many things have changed in the decades since the 1969 Stonewall uprising provided a
symbolic turning point in the critical and communal consciousness of LGBTQ+ people,
including the passage of anti-discrimination and hate-crime legislation in several states,
the election of openly LGBTQ+ people to public office, and the legalization of marriage
equality in several nations around the world.

Because to community organizing, notably AIDS-related activism, growing general

interest in LGBTQ+ lifestyles, the development and extensive usage of the internet and
social media, and the establishment of an LGBTQ+ consumer market, representations of
LGBTQ+ persons have grown. National LGBTQ+ rights organizations have become
more visible, attracted the interest of social scientists and educators. 14

“The psychologist Gordon Allport in his book The Nature of Prejudice (1954)
describes prejudice as an antipathy based on faulty and inflexible generalization. It may
be felt or expressed. It may be directed toward a group or an individual of that group.”15
Simply said, prejudice is felt when a person has a bad opinion of another individual while
having no evidence to support it. When an individual or group is harmed or
disadvantaged due to prejudice, or when one group is favored at the expense of another, it
is considered discrimination.

There is evidence that discrimination against LGBTQ+ persons leads to anti-LGBTQ+

violence, bullying and harassment in schools, job discrimination against LGBTQ+
people, and restricted access to social services like health care.

LGBTQ+ youth face anti-LGBT bigotry in schools and online. The bullying, harassment,
and victimization they face contribute to reduced self-esteem, poor academic
performance, and increased truancy among LGBTQ+ youth. Furthermore, it leads to a
lack of connection to school and lower accomplishment goals, as well as higher levels of

14
Sean G. Massey; Sarah R. Young; And Ann Merriwether, Introduction To Lgbtq+ Studies: A Cross-
Disciplinary Approach, Part Iv: Prejudice And Health Chapter 6: Prejudice And Discrimination Against
Lgbtq+ People
15
G. Allport, The Nature of Prejudice ,New York: Addison Wesley, 1954

22
despair, more suicide thoughts and attempts, increased substance use, and increased
sexual risk-taking.16

For LGBTQ+ people, prejudice can have a detrimental effect on the standard of and
access to healthcare. This may occur in several. Because having access to health
insurance is frequently a perk of a job, the first method relates to having access to
employment. Laws protecting LGBTQ+ persons against health insurance discrimination,
which can lead to the denial of some services or coverage altogether, have been passed in
some states.

“Stereotypes are cognitive schemas that people employ to absorb information about
others, frequently based on membership in a particular group. A stereotype is similar to a
cookie cutter in that it assumes that all members of a certain group will adhere to a
specific set of preconceived notions about the group. Importantly, the presumptions made
about the group are often biased and prejudiced rather than being founded on facts. Some
common misconceptions regarding LGBT people are that lesbian partnerships lack sexual
intimacy, gay male relationships are invariably polyamorous, bisexual people are fence
sitters, and transgender persons intentionally try to trick their intimate partners who are
cisgender. These and other stereotypes are detrimental not just because they misrepresent
the lives of LGBTQ people, but also because they can result in marginalization and even
violence. As we'll see in this part, research on LGBTQ people's sexual behaviors brings to
light more myths about their private lives.”17

When someone has unjustified thoughts, opinions, or beliefs about another individual or
group of people, it is usually referred to as prejudice. Prejudice can result in prejudices
toward how other people are treated. These biases can range from covert ones, like those
resulting from heteronormative beliefs to overt ones, like those connected to homophobia
and cis-genderism. LGBTQ individuals are negatively impacted by prejudice in settings
like employment and education, where the prejudices of others might affect the way
services are provided. As a result, when stresses connected to prejudice become too great,

16
J. G. Kosciw, N. A. Palmer, R. M. Kull, and E. A. Greytak, “The Effect of Negative School Climate on
Academic Outcomes for LGBT Youth and the Role of In-School Supports,” Pg. No. 45-63, Journal of
School Violence 12, no. 1 (2013)
17
Peel, Elizabeth; Ellis, Sonja; Riggs, Damien (2021): Lesbian, gay, bisexual and transgender people:
prejudice, stereotyping, discrimination, and social change. Loughborough University.
https://hdl.handle.net/2134/16810576.v1

23
prejudice in these (and other circumstances) can result in minority stress and
decompensation.

For instance, discrimination against LGBTQ families and partnerships at work can put
additional stress on workers. Even when specific employees are out in the workplace and
had great experiences coming out as LGBTQ, this strain and stigma can emerge from
families and relationships not being recognized.

Prejudice towards LGBTQ individuals can also emerge in places like schools and early
childhood programs (like kindergarten or nursery). The assumption of heterosexuality is
frequently still firmly ingrained in instruction in secondary (high) school sex and
relationship education, and same-gender inclinations are frequently still problematic.
When it comes to service providers addressing the needs of transgender parents, prejudice
is frequently very obvious. Between 25 and 50 percent of transgender people are parents,
making it reasonably common. Children, especially transgender women who gave birth
before transitioning their gender; Because of the cis-genderism ideals that are ingrained in
health care systems, transgender males who have children post-transition face unique
difficulties. Instead of making prejudicial assumptions about the requirements of
transgender guys, it has been argued that "a specific approach that recognizes such men as
men and does not default to norms for pregnancy defined historically by the experiences
of women" is necessary.

Discrimination is the unfair or unjustified treatment of persons based on presumptions

about who they are as people and as members of particular groups. Inequitable treatment
can result from prejudiced opinions, prejudices, and cultural norms, all of which are
influenced by homophobia, heterosexism, heteronormativity, and cis-genderism. The
most extreme kind of discrimination against LGBT individuals, in my opinion, is when
their right to safety and even life is denied. This can manifest as explicit and deliberate
violence against LGBTQ individuals, which is the subject of this section.

Violent anti-LGBTQ discrimination, also known as hate crimes or homo-/bi-/trans-phobic

bullying in some contexts, can be defined as "not a random, opportunistic, or
particularistic attack [against individuals], but rather the targeting of members of specific
groups as symbols of that group." In other words, such crimes not only cause injury to
their victims, but also send a message of fear to the larger LGBTQ community. While
statistics on hate crimes based on sexual orientation and gender identity are not

24
commonly (if at all) recorded by police and other law enforcement authorities in many
countries, there is extensive study and anecdotal evidence that they occur. High-profile
murder/manslaughter cases and targeted incidents serve as reminders that hate crimes
against LGBTQ people continue. 18 In addition, we are aware from the literature that
transgender young people face significant rates of prejudice and violence. This might
come from close relatives, friends, classmates, teachers, healthcare providers, and total
strangers. All of these organizations can support the cis-gender narrative that transgender
young people have flaws, particularly physical flaws.

The lack of acceptance or inclusion of transgender youths can be an implicit example of

this, as can acts of verbal and physical abuse and exclusion. According to their ascribed
sex, parents of transgender adolescents may advise them or even demand that they
comply with traditionally gendered norms. They can receive a flat-out rejection from their
parents. Their classmates might make fun of them, purposefully misgender them, and
forbid them from hanging out with them. They may be the target of verbal or physical
abuse from strangers, as well as from family members and classmates. There aren't many
locations where transgender young people can go without facing discrimination, and even
places that first appear safe can turn dangerous.

Discrimination against the LGBTQ+ (lesbian, gay, bisexual, transgender, and

queer/questioning) community remains a prevalent issue despite significant strides made
toward equality and acceptance. This article aims to shed light on the discrimination
faced by LGBTQ+ individuals and explore strategies to combat this injustice. By
understanding the nature of discrimination and promoting inclusivity, we can foster a
society that embraces diversity and respects the rights of all individuals.

Discrimination against the LGBTQ+ community manifests in various forms, including

social exclusion, hate speech, violence, and legal disparities. LGBTQ+ individuals often
face prejudice, stereotypes, and stigmatization, resulting in marginalization and limited
access to resources and opportunities. Employment discrimination, denial of healthcare
services, and barriers to adoption and parenting are just a few examples of the challenges
they encounter.

18
Editorial, “Admiral Duncan pub bombing”, London Remembers 30/4/1999 To 30/4/1999; “3 Hours In
Orlando: Piecing Together An Attack And Its Aftermath”, The Two Way, June 26, 2016

25
The roots of LGBTQ+ discrimination can be attributed to a combination of societal,
cultural, and religious factors. Misinformation, fear, and lack of exposure contribute to
biases and misconceptions about non-heteronormative identities and relationships.
Moreover, traditional gender norms and entrenched prejudices reinforce discrimination,
as they restrict the acceptance and understanding of diverse sexual orientations and
gender identities.

Promoting education about sexual orientation, gender identity, and LGBTQ+ history is
crucial in dispelling myths and challenging stereotypes. By incorporating inclusive
curricula in schools and universities, we can foster empathy and understanding from an
early age. Awareness campaigns, workshops, and public discussions also play a vital role
in promoting acceptance and dismantling discriminatory attitudes. Governments must
enact and enforce comprehensive anti-discrimination laws that protect LGBTQ+
individuals from prejudice and violence. Legal recognition of same-sex relationships,
adoption rights, and healthcare access are vital steps toward equality. Furthermore,
amending existing legislation to include gender identity and expression as protected
characteristics is essential for safeguarding transgender and non-binary rights.

Employers must adopt policies that protect LGBTQ+ employees from discrimination and
harassment. Creating safe and inclusive work environments that celebrate diversity
fosters employee well-being and productivity. Anti-bias training, diversity and inclusion
initiatives, and employee resource groups are effective tools to foster understanding and
acceptance. Discrimination takes a toll on the mental health of LGBTQ+ individuals. It is
crucial to provide accessible mental health services that cater to their specific needs.
Funding for LGBTQ+ mental health programs, suicide prevention efforts, and support
groups can help combat the disproportionately high rates of mental health issues within
the community. Building strong community support networks and organizations is vital
in combating discrimination. LGBTQ+ community centers, advocacy groups, and
helplines offer safe spaces and resources for individuals facing discrimination. Solidarity
between the LGBTQ+ community and allies is key to creating a more inclusive society.
“Media plays a significant role in shaping public opinion. Promoting positive, accurate,
and diverse representation of LGBTQ+ individuals in mainstream media helps challenge

26
stereotypes and promote acceptance. Increased visibility and representation contribute to
societal acceptance and understanding.”19

2.2. EVALUATION AND DEVELOPMENTAL RECOGNITION IN ASIA

In recent years, the global conversation surrounding LGBTQ+ rights has gained
momentum, with increasing recognition of the need for equality and inclusivity. While
progress has been made in many parts of the world, Asia remains a diverse and complex
region when it comes to LGBTQ+ rights. This article aims to provide an introductory
overview of the evaluation and developmental recognition of LGBTQ+ rights in Asia,
highlighting both the challenges faced and the positive steps taken toward fostering
equality and acceptance.

 Diverse Legal Landscapes

Asia encompasses a wide range of legal frameworks and cultural contexts, resulting in
significant variations in LGBTQ+ rights across the region. Some countries have made
significant strides toward recognizing and protecting the rights of LGBTQ+ individuals,
while others continue to grapple with deep-rooted social and legal challenges.

 Progressive Developments

Several Asian countries have taken significant steps forward in recognizing and
protecting LGBTQ+ rights. For instance, Taiwan made history in 2019 by becoming the
first country in Asia to legalize same-sex marriage. This landmark decision marked a
significant milestone and demonstrated the growing acceptance and support for LGBTQ+
rights in the region.

In addition to Taiwan, countries like Japan, South Korea, and Nepal have made progress
in the legal recognition and protection of LGBTQ+ rights. These developments include
anti-discrimination laws, recognition of same-sex partnerships, and efforts to combat hate
crimes and harassment.

 Persistent Challenges

Despite these positive developments, numerous challenges persist in many Asian

countries, hindering the full recognition and protection of LGBTQ+ rights. Societal

19
Editorial, “EMPOWERING THE VOICE OF THE MINORITY COMMUNITY”, Alliance Against White
Supremacy, 28 April, 2023.

27
norms, cultural traditions, and conservative religious beliefs often create barriers to
progress. Homophobia, transphobia, and discrimination continue to be prevalent, leading
to stigmatization, violence, and social exclusion.

In some Asian countries, colonial-era laws that criminalize same-sex relationships remain
in place, resulting in legal persecution and discrimination. These laws not only infringe
upon the rights and freedoms of LGBTQ+ individuals but also perpetuate harmful
stereotypes and social marginalization.

 Role of Civil Society and Activism

Civil society organizations and LGBTQ+ activists play a crucial role in advocating for
change and driving progress in the region. These organizations raise awareness, provide
support, and campaign for legal and social reforms. Through grassroots initiatives, public
demonstrations, and media engagement, they challenge societal norms and work towards
fostering a more inclusive and accepting environment.

 Changing Attitudes and Cultural Shifts

While challenges persist, there have been notable shifts in attitudes and cultural
perceptions regarding LGBTQ+ rights in Asia. Increased visibility, representation in
media, and public discourse have contributed to raising awareness and fostering empathy
and understanding. LGBTQ+ individuals and allies are increasingly finding spaces to
voice their experiences, advocate for change, and create supportive communities.

In this chapter, we will discuss the 7 Asian countries China, India, Japan, Pakistan, South
Korea, Sri Lanka, and Thailand, and the degree of their position in protecting the rights of
the LGBTQ community.

2.2.1. CHINA

The history of the LGBTQ+ community in China is complex and has seen significant
changes over time. Traditional Chinese culture generally emphasized family, filial piety,
and Confucian values, which often emphasized heterosexual marriage and procreation.
Historically, homosexuality was not widely accepted and was often stigmatized or
considered taboo.

28
  20th Century:

In the early 20th century, Western influence and the introduction of new ideas began to
shape Chinese society. During the Republican era (1912-1949), especially in urban
centers like Shanghai, more progressive attitudes toward sexuality emerged. Western
literature and ideas contributed to the development of a nascent LGBTQ+ subculture.

However, with the rise of the Chinese Communist Party (CCP) and the establishment of
the People's Republic of China in 1949, attitudes towards homosexuality took a sharp
turn. The CCP viewed homosexuality as a decadent capitalist influence and sought to
eradicate it. In the 1950s, the government launched campaigns against "hooliganism" and
"bourgeois decadence," which targeted same-sex relationships. Homosexuality was
considered a social problem and was criminalized.

 Maoist Era:

During the Maoist era (1949-1976), same-sex relationships were strongly condemned and
punished. The CCP's Cultural Revolution further intensified the suppression of LGBTQ+
individuals. Many were subjected to public humiliation, forced labor, or sent to
reeducation camps. Homosexuality was officially labeled as a mental illness until 2001.

During the Cultural Revolution (1966-1976), which aimed to eliminate perceived

capitalist and traditional influences, homosexuality was further stigmatized. LGBTQ+
individuals were targeted as "hooligans" and "bourgeois decadents." They were subjected
to public humiliation, persecution, and forced labor. Many LGBTQ+ individuals were
sent to reeducation camps or were isolated from society. The government's control over
education, media, and cultural expression meant that there was limited space for
discussion or representation of LGBTQ+ issues. Openly identifying as LGBTQ+ was
virtually impossible, and individuals were forced to hide their identities and suppress their
feelings. It's important to note that the experiences of LGBTQ+ individuals during the
Maoist era varied depending on factors such as location, socioeconomic status, and
individual circumstances. Some individuals managed to form secret underground
networks and support groups, but these were extremely risky and faced constant
surveillance and suppression by the authorities.

It was only after the end of the Maoist era, with the subsequent economic reforms and the
gradual relaxation of social controls, that LGBTQ+ individuals began to gain more

29
visibility and some spaces for community-building and activism started to emerge in
China.

 1990s and 2000s:

In the 1990s and early 2000s, the LGBTQ+ movement in China experienced slow but
notable growth. LGBTQ+ activists started advocating for greater acceptance, visibility,
and legal protection. Several LGBTQ+ organizations were established, focusing on
education, support, and raising awareness about LGBTQ+ issues. Despite this progress,
same-sex relationships were not legally recognized, and discrimination persisted.

During the 1990s, as China experienced economic reforms and greater exposure to global
influences, there was a gradual relaxation of social controls and increased openness to
discussions around sexuality. This led to the emergence of underground LGBTQ+
organizations, social spaces, and support networks in major cities like Beijing, Shanghai,
and Guangzhou. LGBTQ+ activists and organizations started advocating for greater
acceptance, visibility, and legal protection for LGBTQ+ individuals. They focused on
raising awareness about LGBTQ+ issues, providing support and resources, and
challenging societal norms and prejudices.

In 1995, China's first LGBTQ+ organization, the Beijing LGBT Center, was established.
This marked a significant milestone in the development of the LGBTQ+ movement in the
country. Other organizations followed, such as the Shanghai LGBT Rights Advocacy and
the Guangzhou Gender and Sexuality Education Center, among others. However, it's
important to note that LGBTQ+ rights were still limited during this period. Same-sex
relationships were not legally recognized, and discrimination persisted in various forms,
including in employment, education, and healthcare. LGBTQ+ individuals often faced
social stigma, familial pressures, and the risk of losing their jobs or facing discrimination
in public spaces.

Public discussions about LGBTQ+ topics were still relatively limited, and mainstream
media coverage was scarce. LGBTQ+ issues were often treated as taboo and were not
widely discussed in public discourse. LGBTQ+ characters or storylines were rarely
depicted in mainstream media, and LGBTQ+ identities remained largely invisible to the
general public.

30
Nonetheless, the efforts of LGBTQ+ activists and organizations during this period laid
the foundation for future progress in LGBTQ+ rights and acceptance in China. They
helped raise awareness, build communities, and fostered a sense of belonging for
LGBTQ+ individuals. The seeds planted during the 1990s and early 2000s eventually led
to further advancements in LGBTQ+ rights and visibility in China in the following
decades.

 Recent Developments:

In recent years, there has been increased visibility and public discussion of LGBTQ+
topics in China. However, the Chinese government continues to tightly control public
discourse and expressions of dissent. In 2016, a Chinese court ruled against a same-sex
marriage lawsuit, reinforcing the lack of legal recognition for same-sex relationships.

The legal status of the LGBTQ+ community in China remains limited and complex.
While there have been some recent legal developments, it is important to note that the
Chinese government continues to tightly control public discourse and expressions of
dissent, including LGBTQ+ rights advocacy.

In recent years, there have been a few notable legal changes and developments related to
the LGBTQ+ community in China:

Anti-Discrimination Laws: In 2020, China introduced amendments to its Civil Code20

that included provisions protecting property rights for unmarried cohabiting couples.
While these provisions could potentially benefit some same-sex couples, they do not
explicitly address discrimination based on sexual orientation or gender identity.

Online Content Regulation: Chinese authorities have increased restrictions on LGBTQ+

content and online platforms. In 2021, platforms such as Weibo, one of China's largest
social media platforms, were instructed to remove LGBTQ+ content, significantly
reducing visibility and discussion of LGBTQ+ topics.

Conversion Therapy Ban: In 2021, China's National Health Commission21 announced

plans to classify conversion therapy, which aims to change an individual's sexual
orientation or gender identity, as a form of illegal medical practice. However, specific
details about the implementation and enforcement of this ban are yet to be clarified.
20
Civil code of People’s Republic of china, Act 2020, Part 5: Family Law.
21
Editorial, “Eliminating conversion therapy and promoting LGBTQ-affirmative therapy in China”, The
Lancet Psychiatry, June 2022

31
Same-Sex Marriage Recognition: “Same-sex marriage is not legally recognized in
China. In 2016, a Chinese court ruled against a same-sex couple in a landmark case
seeking recognition of their marriage.”22 However, there have been ongoing discussions
and debates around the topic, and some activists continue to advocate for the legalization
of same-sex marriage.

It's important to note that public attitudes toward LGBTQ+ rights in China are diverse
and evolving. While there is still significant social stigma and discrimination, particularly
outside of urban areas, there is also increasing visibility of LGBTQ+ issues and support
from segments of society, especially among younger generations in urban centers.

The Chinese government mandates that heterosexual couples be the parents of children
adopted from China. Chinese authorities forbid international same-sex couples and
homosexual individuals from adopting Chinese children.

All citizens are entitled to legal equality under Article 33 of the People's Republic of
China's constitution. Gender identity or sexual orientation is not mentioned explicitly in
this. Under Chinese labor law, there is no anti-discrimination clause that addresses sexual
orientation or gender identity. Employees are particularly protected by labor law from
discrimination on the grounds of an individual's race, gender, or religion. A gay
kindergarten teacher from Qingdao filed a lawsuit against his previous school in 2018
after being let go due to a social media post he had made about attending an LGBT event.
The Laoshan District People's Court ordered the kindergarten to reimburse the teacher for
six months of unpaid salary. In December of that same year, it appealed. 23

China adopted several LGBT rights-related suggestions at its Universal Periodic Review
between November 2018 and March 2019. The "landmark" suggestions, made by
Argentina, Chile, France, Ireland, Mexico, the Netherlands, and Sweden, call for China to
adopt social security and anti-violence policies as well as a law against discrimination
based on sexual orientation. The Chinese delegation finally gave a favorable response.
China intends to enact an LGBT anti-discrimination law within a year, according to
information shared with the UN in March 2019. The recommendations were called a
"milestone" by activists.

22
Editorial, “Chinese court rejects landmark same-sex marriage case”, REUTERS, 13 April, 2016
23
Shepherd, Christian; "China school sued by fired gay teacher in potential landmark case". The Japan
Times Online. 9 October 2018.

32
2.2.2. INDIA

India has a complex history when it comes to the LGBTQ+ community, marked by
discrimination, legal challenges, and a slow but steady progression toward LGBTQ+
rights.

“The following open letter, addressed to 'the government of India, representatives of the
judiciary, and all citizens', was released during a news conference in New Delhi on
September 16, 2006, calling for the repeal of Section 377 of the Indian penal code: "In
order to build a truly democratic and plural India, we must all work together to combat
laws and policies that violate human rights and limit fundamental freedoms." As a result,
concerned Indian nationals and persons of Indian heritage advocate the repeal of Section
377 of the Indian penal code, a colonial-era rule enacted in 1861 that criminalizes
romantic love and private, consenting sexual actions between adults of the same sex. This
outdated and harsh law has served no useful function in independent India, as it has in the
past. It has been used to persecute, blackmail, arrest, and terrorize sexual minorities on a
systematic basis. It has resulted in widespread intolerance and abuse, forcing tens of
millions of gay and bisexual men and women to live in fear and secrecy, at a sad cost to
themselves and their families. It's especially appalling that homophobic officials have
recently utilized Section 377 to obstruct the work of legitimate HIV prevention
organizations, leaving gay and bisexual men in India even more vulnerable to HIV
infections. Such human rights violations would be repugnant in any contemporary
society, but they are especially repugnant in India, which was built on a notion of
fundamental rights extending equally to all, without discrimination on any grounds.
However, by treating those who love people of the same sex as criminals, Section 377
violates fundamental human rights, particularly the rights to equality and privacy
enshrined in our constitution as well as the binding international laws that we have
embraced, including the International Covenant on Civil and Political Rights. 24

 Pre-Colonial India:

In pre-colonial India, the country had a more fluid understanding of gender and sexuality.
Hinduism, Buddhism, and Jainism, the dominant religions at the time, did not explicitly
condemn same-sex relationships. Historical texts and artwork depict same-sex

24
Chakravarty, S. (2019). Contesting the boundaries of the queer rights movement in India. Contemporary
South Asia, 27(2), 214-228.

33
relationships, indicating that diverse sexual and gender identities were accepted to some
extent.

 Colonial Era:

The British colonial rule in India had a significant impact on shaping modern attitudes
toward homosexuality. In 1861, the British introduced Section 377 as part of the Indian
Penal Code (IPC), which criminalized "carnal intercourse against the order of nature."
This law was used to target same-sex relationships, effectively criminalizing
homosexuality in India.

 Post-Independence Era:

After India gained independence in 1947, Section 377 remained in force. Discrimination
against the LGBTQ+ community persisted, with limited legal recognition or protection.
Societal stigma and ignorance led to widespread marginalization and harassment of
LGBTQ+ individuals.

Pre-2009 Section 377 and Criminalization: Following India's independence in 1947, the
British colonial-era law known as Section 377 remained in force. This law, introduced in
1861, criminalized "carnal intercourse against the order of nature," effectively
criminalizing homosexuality in India. Same-sex relationships were considered illegal and
punishable by imprisonment, leading to discrimination, harassment, and the
marginalization of the LGBTQ+ community.

Naz Foundation's Public Interest Litigation (PIL): In 1994, the non-governmental

organization Naz Foundation filed a public interest litigation (PIL) challenging the
constitutionality of Section 377. The PIL argued that the law violated fundamental rights
guaranteed by the Indian Constitution, including the right to privacy, dignity, and
equality. However, the case faced legal setbacks and did not immediately result in
significant changes.25

Delhi High Court Judgment: A breakthrough came in 2009 when the Delhi High Court
delivered a landmark judgment in the case of Naz Foundation v. Government of NCT of
Delhi. The High Court decriminalized consensual same-sex relationships among adults in
private, effectively reading down Section 377 to exclude such relationships. The court

25
Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277

34
recognized that criminalizing homosexuality violated the principles of equality, non-
discrimination, and personal autonomy guaranteed by the Indian Constitution. 26

 Legal Challenges:

The fight for LGBTQ+ rights gained momentum in the late 20th century. In 1994, AIDS
Bhedbhav Virodhi Andolan, a non-governmental organization, filed a public interest
litigation (PIL) challenging the constitutionality of Section 377. The case faced various
legal setbacks, but it marked the beginning of a long battle for LGBTQ+ rights.

 Efforts for Inclusion:

Over the years, LGBTQ+ activists and organizations in India have worked tirelessly to
challenge societal norms and fight for equality. In 2009, the Delhi High Court delivered a
historic judgment in the case of Naz Foundation v. Government of NCT of Delhi,
decriminalizing consensual same-sex relationships among adults in private. However, this
decision was overturned in 2013 by the Supreme Court, reinstating Section 377.

Supreme Court's Reinstatement of Section 377: In a significant setback for LGBTQ+

rights, the Supreme Court of India overturned the Delhi High Court's judgment in 2013.
In the case of Suresh Kumar Koushal v. Naz Foundation 27, the Supreme Court held that
the power to amend or repeal Section 377 rested with the legislature, not the judiciary.
This reinstated the criminalization of same-sex relationships, leading to disappointment
and widespread protests among LGBTQ+ activists and allies.

Historic Supreme Court Ruling: On September 6, 2018, the Supreme Court of India
delivered another landmark judgment in the case of Navtej Singh Johar v. Union of
India.28 This judgment struck down parts of Section 377 and decriminalized consensual
same-sex relationships among adults in private. The court recognized that sexual
orientation is an innate aspect of an individual's identity and that LGBTQ+ individuals
are entitled to equal protection under the law. The judgment upheld the principles of
dignity, autonomy, and non-discrimination enshrined in the Indian Constitution.

Legal Recognition and Transgender Rights: In addition to decriminalizing

homosexuality, India has taken steps to legally recognize transgender individuals and

26
Ibid
27
Suresh Kumar Kaushal V. Naz Foundation, (2014) 1 SCC 1
28
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321

35
protect their rights. In 201429, the Supreme Court recognized transgender individuals as a
third gender and affirmed their rights to equality, non-discrimination, and equal
protection under the law. The court directed the government to ensure transgender
individuals’ access to healthcare, education, employment, and other social welfare
schemes. However, challenges remain in effectively implementing these rights and
addressing societal stigma and discrimination faced by transgender individuals.

The Transgender Persons (Protection of Rights) Act 30 was enacted in 2019 to provide
legal recognition and protection to transgender individuals in India. The law aims to
prevent discrimination against transgender individuals, provide for their welfare and
empowerment, and establish mechanisms for their social inclusion. However, the law has
faced criticism for various provisions and is seen by some activists as inadequate in fully
safeguarding transgender rights.

A turning point came on September 6, 2018, when the Supreme Court of India, in the
case of Navtej Singh Johar v. Union of India 31, struck down parts of Section 377. The
Court declared that consensual same-sex relationships among adults were no longer
criminal offenses, affirming the right to equality and individual autonomy.

In November 2022, in a case of the issue of recognizing same-sex marriage under the
Hindu Marriage Act and Special Marriage Act in India was raised. The parties argued that
following the decriminalization of same-sex relationships, the state should acknowledge
and adhere to international standards and conventions that India has ratified. Solicitor
General, on the other hand, counters this argument by stating that under Hindu law, the
term Spouse only refers to a male and female, and any judicial intervention would disturb
the delicate balance of personal laws. The central government contends that
decriminalization of section 377 does not automatically grant same-sex relationships the
right to marry. They emphasized that marriage in India is deeply rooted in customs,
rituals, and social values, encompassing a spiritual dimension. Therefore, the recognition
of same-sex marriage falls outside the purview of judicial adjudication and should instead
be addressed by the government and legislature. This case has been transferred to the
Supreme Court of India32

29
National Legal Services Authority v. Union of India, AIR 2014 SC 1863
30
The Transgender Persons (Protection Of Rights) Act, 2019
31
Ibid
32
Supriyo@ supriya chakraboty v. union of india, Wp no 1011 of 2023

36
India has seen positive developments in recent years. Several corporations, NGOs, and
LGBTQ+ advocacy groups actively promote inclusion and diversity. Pride parades and
LGBTQ+ cultural events take place in major cities, creating spaces for visibility and
solidarity.

It's important to note that this overview provides a brief perspective on the LGBTQ+
history of discrimination in India, and there are many nuances and individual stories that
shape this complex narrative.

2.2.3. JAPAN

LGBT people have a rich and fascinating history that dates back to premodern times. The
nation's original religion, Shintoism, laid the groundwork for its worldview and tolerance
of individuals of all sexual orientations. However, over the years, this was modified and
altered, particularly as Western philosophies and beliefs were imported. This effect led to
a gradual shift from acceptance to condemnation of homosexuality after the Meiji Period.
Three of the primary forms of homosexuality practiced in Japan during the Edo period
were Shudo, Wakashudo, and Nanshoku, but these eventually gave way to the German
idea of turning (homosexuality was regarded as a psychological ailment). This resulted in
a change in values and beliefs, pushing gay culture to the margins of society. As in most
Western nations at the time, this led to a change in values and beliefs, pushing LGBT
culture to the outside of society. 33

These societal changes gave rise to activism, which was most visibly seen in the
establishment of the lesbian organization Wakarusa No Kai (Young Grass Club) in
Tokyo in 1971. One of the key turning moments for increasing awareness for political
change was this group, which facilitated female same-sex relationships. Loanwords
gained popularity as politicians like Otuska Takafumi began using the word Gei in his
The Snake Man weekly segments.

While Gei was used to allude to professional bartenders and the entertainment industry,
the term Rezubian—which means lesbian—became politicized to refer to women's
freedom, identity exploration, and desire. When speaking of homosexuals in Japan, some
use the term Okama, which translates to rice pot, when referring to their sexual
orientation (sites shiko). It was first used to refer to homosexuals and other individuals

33
Pride In Japan: The History Of The Lgbtq+ Community, available at:
https://admissions.apu.ac.jp/blog/news/?page=164

37
who acted effeminately during the Tokugawa period. These days, it's common to use a
disparaging term to describe members of the LGBT+ community.

The most accurate translation for when you want to respectfully address homosexuals is
Doseiai. This phrase, which first appeared in scholarly and literary literature in the 1920s,
refers to same-sex love. To make the word doseiaisha (homosexual person), add the
suffix -Sha. This is frequently applied in everyday life. Loan terms are frequently used for
alternative sexualities; examples include Baisekusharu, which means bisexual, Sutoreto,
which means straight, Kuia, which means queer, and Toransujenda, which means
transgender.

Japanese municipal official Kamiwaka Aya became the first openly transwoman in office
when the country's legalization of sex reassignment surgery got underway in the middle
of the 1900s. As a result, openly LGBT people like Taiga Ishikawa, Wataru Ishizaka, and
Kanako Otsuji were able to hold elected office. This provided legal representation for
LGBTQ people within the government. Through the 2000s, the acceptance of LGBT+
people in society continued to grow, and coming out became a more deliberate process.

In Japan, there are still few laws that protect LGBTQ+ people, and the existing societal
context makes it challenging for them to come out. However, there is still a lot of open
tolerance in Japan for LGBT people. One is that homosexuality is accepted in Japan. As
of right now, 34 local governments in Japan, including Shibuya, Setagaya, and Edogawa
wards, are open to same-sex couples.

According to the 2019 Global Attitudes Survey, an estimated 68% of the Japanese public,
particularly the younger generation, voted in favour of embracing homosexuality. Minami
Teishiro, the founder of the LGBT magazine Adon, founded the ILGA (International
Lesbian and LGBT Association), which resulted in the organisation of the nation's first
Pride Parade in August 1944. This launched an annual series of Pride activities attended
by over 70,000 people. 34

Despite these historical developments, Japan still has a long way to go before the LGBT+
population there enjoys complete equality. Gender identity disorder (GID) and bullying in
schools are still widespread issues in both the educational system and society in general.
Additionally, there are still no regulations that permit legal recognition of transsexual

34
Ibid, note 33

38
people. This resulted in an American transwoman named Elin McCready filing a case
with the Tokyo District Court this year over the refusal of the authorities to modify her
gender on her residency registration.

Among the Group of Seven advanced democracies, Japan is the only nation without any
laws defending the rights of LGBTQ persons, let alone formally recognizing same-sex
relationships. But as it gets ready to host a G-7 summit in May, pressure for change on
Prime Minister Fumio Kishida's administration is growing domestically and
internationally. Marriage equality isn't even on the agenda as lawmakers struggle with a
bill to "promote understanding," but some conservatives oppose an anti-discrimination
clause. To stay competitive in the global race for talent, several Japanese companies are
moving forward with initiatives like providing benefits to the same-sex spouses of their
employees. Because homosexuality has never been illegal in Japan, there is no risk of
facing criminal charges. However, the lack of laws forbidding discrimination or
recognizing same-sex marriage disadvantages LGBTQ persons in employment,
inheritance, medical treatment, and immigration. Last year, Tokyo's municipal
government joined dozens of other municipalities in allowing same-sex couples to apply
for a certificate of acceptance. Couples can utilize it to get public housing or next-of-kin
status in hospitals, but unions have no legal basis. Nonetheless, as of Jan. 31, more than
500 couples have registered in Tokyo. 35

FIG3

Although there are no legal repercussions, many people in Japan still view coming out as
taboo out of concern for rejection. High levels of mental pain, including suicide ideation,
were discovered in a survey of young LGBTQ individuals that was released last year.

35
Editorial, Why Japan Is Considering a Move Toward LGBTQ Rights, The Washington Post, March 6,
2023

39
More than 90% of respondents claimed they couldn't discuss their sexuality with their
parents. Even though homosexual themes and LGBTQ superstars are commonplace on
television and in other forms of entertainment, very few persons in national politics or the
business sector are openly gay. Although there are no legal repercussions, many Japanese
people are nevertheless reluctant to come out for fear of rejection. Young LGBTQ people
reported high levels of mental suffering, including suicide ideation, in a poll that was
published last year. Over 90% of respondents claimed that they couldn't discuss their
sexuality with their parents. While homosexual themes and LGBTQ superstars are
commonplace on television and in other forms of entertainment, there are surprisingly
few openly gay people in national politics or the business world.

A law to "promote understanding" of the LGBT community was the original idea. The
bill was abandoned as a result of opposition from conservative members of the governing
Liberal Democratic Party, particularly after a specific anti-discrimination component was
inserted. After one of Kishida's aides caused a public uproar by making disparaging
remarks about same-sex couples, the LDP brought it back to life in February. Despite the
aide's dismissal, the anti-discrimination clause is still opposed. After signing up for the
statement from last year, which includes a promise to preserve LGBTQ rights, supporters
of the bill claim that Japan faces worldwide disgrace if the measure doesn't pass before
the G-7 conference. According to rights organizations, discrimination must be expressly
prohibited in forceful language.

Numerous polls have revealed that the majority believes Japan should not only approve
the measure but also recognize same-sex unions. That holds for all age groups, except
those over 70, where the majority tends to be opposed to the idea. Because they are more
likely to vote, older people are crucial to the LDP's ability to hold onto power. Since
1955, the LDP has essentially continually held power. Before Japan's mid-19th century
modernization and embrace of "Western" norms, homosexual partnerships were long
accepted among the samurai class and Buddhist monks.

Only Taiwan currently recognizes same-sex marriage, though Thailand allows same-sex
civil unions with some marriage rights. Singapore's ban on sex between men was only
lifted in 2022. South Korea, Japan's neighbor, is more resistant to change than Japan, with
34% of the public favoring marriage freedom and 52% against it, according to a July poll.

40
However, in February, a lesbian couple in the city won a case providing them spousal
coverage under the national health insurance program. 36

There are no broad legal safeguards against discrimination in Japan based on gender
identity or sexual orientation, nor is there any legislation recognizing same-sex
relationships. Recent legislative advancements have been encouraging, but it could be
wise to reevaluate reforming tactics. A comprehensive national defense against LGBTQ
discrimination is likewise lacking in Japan. There are real repercussions from this lack of
legal protections. Amnesty International claims that discrimination in the workplace is
widespread. Another issue is discrimination against same-sex couples who want to rent or
buy a home, which makes it difficult for them to start a life together. 37

2.2.4. PAKISTAN

In Pakistan, transgender people are typically born that way. Although the number of
transgender people may be extremely small, they nonetheless live in secrecy because it is
stigmatized. Transgender people are perceived as an impoverished group in Pakistan who
live lives of depression and helplessness. A lot of the employment-related research being
done demonstrates the gender imbalance that exists between men and women and that
feeds into a binary definition of gender. Even foreign nations, like the United States, have
"Equal Employment Opportunity Commissions" (EEOCs) that only offer male and
female gender options. This means that the EEOC is unable to identify transgender
people and that they are not recognized and counted.

Through this, it can be seen how transgender people are accepted in society at large.
Several categories of Hijras mention "transgender men, transgender women, or non-
binary transgender people" among the results for occupation. Transgender people are, as a
result, a vastly understudied community that is ignored and viewed as a minority in every
field.

Transgender persons face a lot of discrimination because so many people in the

workplace harass and bully them. They had a lot of issues because, according to their
heritage, they are not normal. People also don't think highly of them because, in the

36
Analysis by Isabel Reynolds | Bloomberg, “Why Japan Is Considering a Move Toward LGBTQ Rights”,
https://www.washingtonpost.com/business/why-japan-is-considering-a-move-toward-lgbtq-
rights/2023/03/02/6c5df3b6-b956-11ed-b0df-8ca14de679ad_story.html
37
Aleardo Zanghellini, “LGBTQ Rights in Japan”, Australian Outlook, Australian Institute of
International Affairs, 1 july 2021

41
absence of the right training, employment opportunities, and medical care, they often
choose to work as prostitutes or begin dancing at weddings to support themselves and
their families. When they choose these professions, people have varying opinions of them
and refer to them by various names, including "Hijras." This custom has developed from
earlier customs and is spreading throughout several countries. Their earnings also differ
from others because they have been allotted menial jobs. Due to the discrimination, they
face due to their sexual orientation, they have been given menial occupations, and their
pay also differs from that of other employees. 38

In a socially varied setting, where everyone must contend with differences in a variety of
ways, including socioeconomic, ideological, gender, ethnic, and religious ones. These
distinctions form the fundamental framework of our society, particularly in Pakistan
where "Hijras" have historically been ridiculed and subjected to discrimination in many
spheres, including job and education. Transgender Pakistani ladies are typically seen
dancing at wedding receptions or the entertainment market. The rights of transgender
people are extremely confusing and troubling in Pakistan since, while they theoretically
have more rights than in many other countries, they experience violence and shame. Even
so, they are much ahead of Pakistani homosexual men, who are criminalized, brutalized,
and even murdered without access to any form of protection because there are no such
rights granted to them here that would allow them to speak up for themselves or seek
assistance from others.

38
Abbiha WAQAR, Zahra WAQAR, Muhammad Nauman JAMAL, “Unequal Employment Opportunities
for Transgenders: Empirical Study on Employees of Pakistan”, Journal of Organizational Behavior
Review 183, 2022

42
FIG. 4: Human Dignity Trust, https://www.humandignitytrust.org/reform/countries/pakistan

Pakistan inherited these laws after its independence from British rule in 1947. Under
Section 377 of the Pakistan Penal Code, which was derived from British colonial-era
legislation, same-sex sexual activity is illegal and can be punished with imprisonment.
This legal environment has led to discrimination, harassment, and violence against
LGBTQ+ individuals.

Despite these challenges, LGBTQ+ individuals and organizations in Pakistan have been
advocating for their rights and visibility. In the early 2000s, small but significant steps
were taken toward LGBTQ+ visibility, such as the emergence of LGBTQ+ support
groups and the organization of private gatherings. However, due to the legal and social
risks involved, many LGBTQ+ individuals in Pakistan continue to live in secrecy and
face social stigma and isolation. In recent years, there has been a growing LGBTQ+
rights movement in Pakistan, with individuals and organizations working towards greater
acceptance and equality. LGBTQ+ activists have organized public events, such as the
annual Pride parade in Lahore, which was held in 2019 and attracted a small but
significant number of participants. However, it's important to note that public
demonstrations or events related to LGBTQ+ issues can still face significant backlash and

43
resistance from conservative segments of society. The legal landscape has also seen some
positive changes. In 2018, a landmark judgment by the Pakistani Supreme Court
recognized “the rights of transgender individuals and directed the government to ensure
their protection and rights. This decision allowed transgender individuals to self-identify
their gender on official documents and opened doors for greater recognition and
inclusion.”39

2.2.5. SOUTH KOREA

The significance of LGBTQ+ people in South Korea lies in their advocacy for equal
rights and the broader movement for social change. They play a vital role in challenging
traditional attitudes and promoting inclusivity. LGBTQ+ individuals and organizations in
South Korea have been actively working to raise awareness about LGBTQ+ rights and
fight for legal protections. In terms of legal rights, South Korea has made some progress
in recognizing LGBTQ+ rights. Homosexuality is legal, and discrimination based on
sexual orientation is prohibited in certain areas such as employment and education.
However, same-sex marriage is not legally recognized, and there are no specific laws
protecting transgender individuals. The military also enforces a policy that bans
homosexual activity among its personnel.

Despite legal protections, discrimination and social stigma against LGBTQ+ individuals
persist, especially in the workplace. LGBTQ+ people often face challenges in finding
employment and may experience discrimination or harassment based on their sexual
orientation or gender identity. Many individuals choose to conceal their LGBTQ+
identity to avoid discrimination and maintain job security.

In South Korean society, conservative attitudes, rooted in traditional values and

Confucianism, can contribute to prejudice and discrimination against LGBTQ+
individuals. This can lead to societal pressure, social exclusion, and limited career
opportunities. Discrimination in the workplace can manifest in various ways, including
being denied promotions or job opportunities, facing hostile work environments, or
experiencing unequal treatment compared to their heterosexual or cisgender counterparts.

The LGBTQ community in South Korea has long faced stigma. According to a policy
brief from the Asan Institute, attempts to pass anti-discrimination legislation in 2007 and

39
Transgender Rights Caseor the Khawaja Sira Case, Constitutional Petition No. 43 of 2009

44
2010 and 2013 were unsuccessful due to resistance from conservative and religious
organizations. A 2014 human rights measure faced extra conservative and religious
resistance since it supported and promoted homosexuality, according to a Journal of
Homosexuality article. In addition, the Ministry of Education's updated sex education
requirements eliminated training about homosexuality and other identities in 2015. Same-
sex unions are still forbidden. Gay and transgender service members may also be
summarily discharged from the military.

These standards/restrictions/policies may imply a widespread and deeply held rejection of

homosexuality in Korea. According to a 2018 study done by the Korea Institute of Public
Administration, 49 percent of respondents were opposed to homosexuality. According to
the report, many South Koreans are still uncomfortable with gays as neighbours (70%),
coworkers (85%), or close friends (95%). Despite these sentiments, there is still hope that
opinions will shift. According to a 2017 research published in the Journal of
Homosexuality, there is a growing tendency towards acceptance. Positive attitudes
towards homosexuality increased from 24% to 32% between 1994 and 2014. Pew
Research Centre research confirms an improving trend in acceptability. In 2013, 61
percent of South Koreans rejected homosexuality. This was a 21% decline from the
previous year (82%).40

The conflict over the legal standing of same-sex couples in Korea had its origins in 2004
when a gay couple asked for the split of their assets after 20 years of marriage. The court
determined that a partnership between two individuals of the same gender cannot be
regarded as the same as a de facto marriage, notwithstanding the couple's claims to be in a
state of de facto marriage—a notion comparable to common-law marriage that recognizes
the same legal rights as a spouse. A decade later, director Kim-Jho Gwang-soo made
news for his two-year, ultimately fruitless attempt to have his homosexual relationship
recognized as a common-law marriage. Even though the South Korean government does
not process same-sex couples' marriage registration applications, data from the Supreme
Court reveals that 28 homosexual couples submitted applications to register their unions
between March 2022 and February of this year.

“There have been some legislative initiatives aimed at granting legal rights to gay
couples. One such effort was known as the Life Companion Bill, a proposal envisioned by

40
Editorial, “South Koreans Becoming More Accepting of LGBTQ Community”, June 26, 2020

45
Rep. Jin Sun-mi of the main opposition Democratic Party. The bill never made it to the
legislative stage in the face of strong opposition from some religious and conservative
groups which claimed it would effectively legalize homosexuality by failing to specify a
companionship should be between differing genders. The United Christian Churches of
Korea, the largest umbrella union of Christian churches in the country, called the decision
that acknowledged same-sex unions for national health insurance coverage biased. The
ruling boils down to whether our (Korean) society will legally recognize same-sex
couples, the UCCK said in a statement, stressing that a union between two people of the
same gender is fundamentally different from that between different genders and that
treating the two concepts differently does not violate the principle of equality. It went on
to say that the legalization of same-sex marriage is a matter that requires a national
consensus and not something that the judiciary should lead ahead of the public, but wait
and listen to (public opinion).”41

In South Korea, several laws provide some level of protection against discrimination and
violence based on sexual orientation or gender identity. However, it is important to note
that these laws are not comprehensive and do not cover all aspects of LGBTQ+ rights.
Here are some key criminal laws that offer certain protections:

o Act on the Promotion of the Elimination of Discrimination and Promotion of

Equality42: This law, enacted in 2007, prohibits discrimination in various areas,
including employment, education, housing, and public services, based on sexual
orientation. It establishes the National Human Rights Commission of Korea, which
works to investigate and remedy cases of discrimination.
o Special Act on the Prevention of Sexual Violence and Protection of Victims 43: This
law, enacted in 2011, protects victims of sexual violence, including those who
identify as LGBTQ+. It criminalizes various forms of sexual violence, such as rape,
sexual assault, and sexual harassment, regardless of the victim's sexual orientation or
gender identity.
o Act on the Protection of Children and Juveniles from Sexual Abuse 44: This law,
revised in 2015, addresses the issue of child exploitation and abuse, including child

41
Editorial, “Where does Korea stand on same-sex marriage?”, the Korea herald, Mar 20, 2023
42
Equal Employment Act, Aug. 4, 1995
43
Act on the Prevention of Sexual Assault and Protection etc. of Victims thereof (Act No. 10261), KOR-
2010-L-86771
44
Act On The Protection Of Children And Juveniles From Sexual Abuse, Actno.9765,Jun9 2009

46
 pornography. It applies to all children, regardless of their sexual orientation or gender
identity, and aims to protect minors from sexual exploitation.
o Hate Crimes and Hate Speech: While South Korea does not have specific hate crime
legislation, hate crimes that target individuals based on their sexual orientation or
gender identity can be prosecuted under other existing laws, such as the Criminal Act
and the Act on Promotion of Information and Communication Network Utilization
and Information Protection.

“Several second-level jurisdictions have also passed anti-discrimination laws that

address sexual orientation. These are Yeonje District (Busan) (November 2010),
Suyeong District (Busan) (December 2010), Buk District (Ulsan) (January 2011), Nam
District (Busan) (May 2011), Buk District (Busan) (March 2012), Jung District (Ulsan)
(April 2013), Dong District (Daejeon) (April 2015), Haeundae District (Busan) (July
2015), Eunpye”.45

Despite these legal protections, challenges remain, as the laws are not comprehensive or
specific to LGBTQ+ rights. Same-sex marriage is not legally recognized, and
transgender individuals face hurdles in legal recognition of their gender identity.
Furthermore, there is no specific legislation protecting LGBTQ+ individuals from hate
speech or discrimination in other areas such as healthcare or public accommodations.
It's worth noting that public opinion on LGBTQ+ rights is evolving in South Korea, and
there is ongoing advocacy for legal reforms to provide more comprehensive protections
for the LGBTQ+ community.

2.2.6. SRI LANKA

In Sri Lanka, the LGBTQ+ (lesbian, gay, bisexual, transgender, queer, and other sexual
and gender minorities) community faces significant challenges and discrimination. Sri
Lankan society generally holds conservative attitudes towards homosexuality and gender
diversity, which can result in limited acceptance and legal barriers for LGBTQ+
individuals.

In terms of legal rights, same-sex sexual activity is technically criminalized under Section
365 of the Sri Lankan Penal Code 46, although enforcement is rare. However, this law can

45
The Wayback Machine, SOGILAW Annual Report “Human Rights Situation of LGBTQ in South Korea
2016”
46
Sri Lanka: Penal Code, 1 January 1885, section 365

47
be used to harass and discriminate against LGBTQ+ people. Same-sex marriage is not
legally recognized, and there are no specific laws protecting LGBTQ+ individuals from
discrimination in employment or housing.

Discrimination in employment is one of the significant challenges faced by LGBTQ+

individuals in Sri Lanka. They often experience prejudice and unequal treatment in the
workplace. LGBTQ+ individuals may face difficulties in finding employment, as
employers may harbor biased attitudes or hold stereotypes against them. Additionally,
workplace harassment and bullying based on sexual orientation and gender identity can
create hostile work environments.

States all over the world have made reformist moves to address the issues and correct,
amend, or remove discriminatory laws and regulations that affect the LGBT people.
LGBT people around the world continue to experience violence, intimidation,
harassment, physical and sexual abuse, and discrimination in both their offline and online
lives, despite a number of recent successes.47

Persons who defy gender standards, including transgender persons, lesbian and bisexual
women who are perceived as looking masculine, and gay and bisexual men who are
perceived as not being sufficiently masculine, are occasionally the targets of abuse and
prejudice. The LGBT population in Sri Lanka experiences several types of institutional
discrimination and harassment, including access to job, housing, and health facilities,
because of outdated colonial legislative frameworks and pervasive cultural prejudices. 48

“Violence against LGBT people is frequently committed by state and non-state

institutions, actors, and individuals, as the 2016 Human Rights Watch Report
demonstrated. There is no denying the importance of institutional reforms to uphold the
rights of the LGBT community. For years, numerous Sri Lankan activists have been
working tirelessly, either individually or as institutions, to decriminalize laws that affect
Sri Lanka's LGBT community and to advocate for their rights with policymakers.
However, in addition to institutional safeguards, public support is useful to pave the way
for the introduction of favorable laws and policies that support the LGBT community and
to foster a positive social and cultural environment that enables LGBT people to exercise

47
“Not Gonna Take it Lying Down: Experiences of Violence and Discrimination as told by LBT persons in
Sri Lanka”, Sandra from Women Support Group, Sri Lanka, 18th September 2010
48
Human Rights Watch, “Sri Lanka Events of 2015”, https://www.hrw.org/world-report/2016/country-
chapters/sri-lanka

48
their rights and live without fear of harassment, violence, intimidation, or other forms of
abuse.”49

Transgender individuals face specific challenges, such as barriers in accessing

employment due to discrimination, lack of understanding, and limited legal recognition of
their gender identity. Many trans individuals face difficulties obtaining proper
identification documents, which can further hinder their access to employment
opportunities and other basic services. While Sri Lanka has made progress in recent years
toward LGBTQ+ rights, such as increased visibility and public discussions on the topic,
significant challenges and discrimination persist. It is important to note that this
information is accurate as of my last knowledge update in September 2021, and there may
have been changes or advancements in LGBTQ+ rights in Sri Lanka since then.

The UN Committee on the Elimination of Discrimination Against Women (CEDAW) has

determined that Sri Lanka violated the rights of a lesbian and prominent LGBTI activist
who was the target of discrimination, threats, and abuses since the country's Penal Code
criminalizes same-sex sexual behavior. In a ruling made public today, CEDAW
determined that Sri Lanka had violated the rights of Rosanna Flamer-Caldera, the founder
and executive director of Equal Ground, a group defending the rights of Sri Lanka's
LGBTI community. 50

The poll in a Sri Lankan society's perspectives on sexuality and LGBT people's
experiences in Sri Lanka demonstrates that individuals have varying levels of awareness
for each identification. Overall, people in Sri Lanka appeared to be more aware of the
term "transgender" than of the phrases "gay," "lesbian," and "bisexual." Only
approximately 40% of respondents who took part in this study were aware of the
transgender category, while only around 26% and 16% were aware of the lesbian, gay,
and bisexual categories, respectively. While the urban population was more aware of
these identities than the rural population, the poll found that a person's level of education
also correlates with awareness. Furthermore, there does not appear to be any substantial
difference in the degrees of awareness of these phrases between men and women. 51

49
Ibid, note 48
50
Sri Lanka: Criminalisation of same-sex sexual activity breached rights of a LGBTI activist, UN women’s
rights committee finds, available at: https://www.ohchr.org/en/press-releases/2022/03/sri-lanka-
criminalisation-same-sex-sexual-activity-breached-rights-lgbti
51
Pradeep Peiris Social Scientists’ Association, “Knowledge, Attitudes And Perceptions Survey Report” ,
2021.

49
 Fig. 552

FIG653

 Stand-Point of Law

Although there is enthusiasm for passing non-discrimination laws and there have been at
least two favorable court rulings, neither has been done so. A ban on discrimination based
on sexual orientation was included in the government's Human Rights Action Plan in
2017, as part of an update that year. Despite this, no laws were passed in response to the
comment. The statements "that discrimination against LGBT people was unconstitutional
and that the application of sections 365 and 365A in a manner that was discriminatory
against LGBT persons was unconstitutional" were made by both the Nationalist
administration of Rajapaksa and the Conservative government of Sirisena. Sri Lankan
Supreme Court handed down a judgment in the case of Officer-in-Charge, Police Station,
Maradana v Wimalasiri and Jeganathan, that “sections 365 and 365A were deemed
unenforceable under the constitution. Despite this judgment and the government
statements, the only parliamentary effort to repeal the laws criminalizing homosexual acts

52
Id, note 44
53
Id, note 44

50
was not passed. As of 2022, no further attempts to repeal the laws have been put before
Cabinet or introduced in the legislature.”54

FIG755

2.2.7. THAILAND

LGBTQ+ (lesbian, gay, bisexual, transgender, queer/questioning, and others) individuals

have played a significant role in Thailand's cultural, social, and political landscape.
Thailand is known for its relatively tolerant and accepting attitude towards LGBTQ+
people compared to many other countries in the region.

Private, consensual sex between same-sex partners was made legal in 1956, but the
Ministry of Health did not decide to stop classifying it as a mental disease until 2002.

The 2015 Gender Equality Act, which outlawed discrimination based on sexual
orientation or gender identity, was the first piece of Thai legislation to mention the LGBT
population. Before this, there were no anti-discrimination laws in place and none of
Thailand's conferences to sexual orientation. Although same-sex couples in Thailand are
frequently accepted in public, especially in urban areas, same-sex marriages, partnerships,
and civil unions are not recognized by the law. Attempts to legalize gay marriage have

54
“Officer-in-Charge, Police Station, Maradana v Wimalasiri and Jeganathan, SC Appeal No.32/11 SC SPL
LA No.304/2009, no. 595/04 Magistrate‟s Court of Maligakanda No. 7923/C”
55
Human Dignity Trust, available at: https://www.humandignitytrust.org/reform/countries/sri-lanka

51
been made in the past, but they have always failed. “In response to a petition with 60,000
signatures, the process to recognize same-sex civil partnerships recommenced in 2018.
The legislation would grant same-sex couples the same rights as heterosexual spouses and
allow them to be "life partners." If this is approved, same-sex life partners will be eligible
to adopt, as opposed to just married couples at the moment.”56

Thailand is known for its LGBT+ tolerance, the findings of this scoping research show
that there are several forms of social exclusion, discrimination, and stigmatization of
LGBT+ people in Thai culture. This includes a judicial system that frequently disregards
LGBT+ populations, an educational system marked by widespread stigma and
discrimination against LGBT+ individuals, and an economic system that restricts LGBT+
persons to low-wage jobs. The discrepancy between Thailand's reputation abroad and the
experiences of many LGBT+ persons there may be explained by the Thai people's mixed
feelings regarding LGBT+ rights. Only 40% of the general population indicates support
for equal rights and more inclusive legislation, even though over 70% of people say they
have good sentiments towards LGBT+ people. 57

This suggests that a sizeable portion of Thai society opposes the kinds of laws necessary
to address the systemic marginalization of LGBT+ individuals. The results of this scoping
assessment reveal that academics, leading NGOs, and international organizations broadly
concur with the primary issues that LGBT+ persons confront and the critical policy
responses, despite the general lack of popular support for LGBT+ rights.. The top goals in
terms of political and civic engagement are the ability to change one's legal gender and
universal LGBT+ anti-discrimination laws. Bullying that persists and stigmatizing
curricula are ongoing issues in school. Major obstacles in the family arena include the
lack of legal recognition of same-sex marriage, familial rejection and ostracism in the
context of societal attitudes towards filial obligation and sexual and gender minority
status, as well as these issue.58

In Thailand, ladyboys, sometimes referred to as kathoeys, are as common as traffic on

Bangkok's roads. While transgender persons are frequently shunned in other parts of the
world, the transgender community in Thailand is vibrant and powerful and embraces

56
Editorial, “LGBT Rights in Thailand: What Travellers Should Know Before Going!”, QUEER IN THE
WORLD, Available at: https://queerintheworld.com/lgbt-rights-in-thailand/
57
PeterA.Newman, LukeReid, SuchonTepjan and, Pakorn Akkakanjanasupar “LGBT+ Inclusion and
human rights in Thailand: a scoping review of the literature”, BMC Public Health 21, 1816 (2021)
58
Id, note 57

52
them. Here is a quick summary of their past. Men who opt to seem feminine are known as
ladyboys. Others are transitioning to women and identify as transgender, while some are
transvestites who like dressing as the opposite sex. Although Thais first recognized what
is now known as transgender in the 14th century, it wasn't until the 19th century that
Western influences and concepts, such as the outlawing of homosexuality, arrived in
Thailand. The LGBT community in Thailand didn't truly start to emerge until the end of
World War II.

The homosexual and transgender community in Thailand is centered in Bangkok. In

Thailand, transgender people are free to live open, honest lives, which they would not be
able to do elsewhere in the globe. Despite this, there are still prejudices present, and by
denying this community some very basic human rights, the nation fails to support them.
Homosexuality, for example, was not decriminalized until 1956, and laws do not
recognize sexual orientation or persons who identify as a gender other than their sex. A
demand for sexual identities to be included in the anti-discrimination section of the
constitution was rejected in 2007, and persons who identify as transgender cannot legally
change their gender on different identity forms. The list is endless. 59

“Religion also has a significant impact on this community's acceptance—or lack thereof.
Theravada Buddhism, practiced by over 95% of Thai people, does not always embrace
this minority warmly. Many Buddhists think that transgender people must be making up
for their sins from previous lives. Despite this, the city is mostly accepting. A big draw
for tourists, who have a variety of locations to select from, are lady-boy acts and entire
city streets devoted to the transgender community. Although public displays of affection
are often frowned upon in Thailand, the LGBT community is one of the most loving.”60

Developments of Inclusion

 “On April 27th, the Public Relations Department circulated a directive to all
television stations, asking for their 'cooperation' not to screen shows featuring
transvestites and transsexuals to prevent innocent youngsters from imitating
unfavourable examples, according to a Ministerial Announcement in 1999.
Chanthaluk Ruksayu, along with other LGBT activists, protested the news with
letters. Journalists and media outlets alike were outraged by the statement. The

59
“A Brief History of Thailand's Transgender Community, available at:
https://theculturetrip.com/asia/thailand/articles/a-brief-history-of-thailands-transgender-community/.”
60
Id, note 59

53
 ministry quickly claimed that the announcement was a mistake. The advocacy and
criticism sparked a public debate, which determined that sexual minorities in the
media needed to be more balanced and less discriminatory represented.”61
 In 2007, the anti-discrimination article (article 30 of the constitution) explicitly
states that references to gender in the anti-discrimination article (article 29 of the
constitution) also cover homosexuals, bisexuals, hermaphrodites, transgender
people, and post-operative transsexuals, even though the constitution itself did not
include the terms sexual orientation or gender identity as clauses of protection
from discrimination. 62
 Every male in Thailand is required to serve in the military. Because transsexual
women are biologically male, they must also present themselves for service. Until
2011, however, transgender women who had undergone some type of physical
alteration were exempted from military service and labelled as having a persistent
mental illness on their military service form. This paper, which labelled
transgender women as mentally ill, prevented many transgender women from
finding work and contributed to increased stigmatization and discrimination
against transgender women. The NHRC, Sapaan, Rainbow Sky, and Bangkok
Rainbow petitioned the military to change the terminology. Following a court
judgement and campaign efforts from LGBT organisations, the Ministry of
Defence stopped labelling transgender people as "permanently mentally ill" and
instead diagnosed them with Gender Identity Disorder in September 2011. It is
unclear whether transgender women who were compelled to serve in the military
prior to 2011 can change the language on their exemption documents. 63
 16 January 2014: Members of Thailand's LGBT community from various
organizations gathered in collaboration with Thailand's Law Reform Commission
to form a small committee to draught a second Civil Partnership Registration
Union bill that is gender-neutral and includes rights to children, benefits,
insurance, and other benefits. If passed as written, this law will allow same-sex or
heterosexual partners to register their partnerships. 64

61
UNDP, USAID, Being LGBTIn Asia: Thailand Country Report, 2014
62
Constitution of Thailand, Art 30 and 29
63
Id, note 52
64
Id

54
For LGBTQ+ Thailand is a popularly safe Asia. The Thai people are incredibly
hospitable and have long welcomed LGBTQ+ visitors. The phrase "The Land of Smiles"
is often used to describe Thailand, and for good reason. Language barriers are rarely an
issue in Thailand's tourism sector because the majority of people who work there speak
English. Bangkok, the nation's capital, is a major transportation center for Asia. It is a
fairly modern city. The second-largest city in the nation is Chiang Mai, located in the
north. It is situated in the mountains and is well-known for both its outdoor activities and
temples. Thailand's islands are well-known for their beaches, especially Phuket, Koh
Samui, Koh Tao, and Koh Phi Phi.

Thailand is one of the most LGBTQ+-friendly nations in Asia, even though it is not as
accepting as North America and Western Europe in comparison. One of the few Asian
nations reviewing and passing civil partnership laws in Thailand. Additionally, Thailand
has had anti-discrimination laws in effect since 2015, and it provides the transgender
population with some of the finest safeguards in Asia.

CHAPTER 3: AN OVERVIEW OF DOMESTIC CRIMINAL LAWS

CONCERNING THE LGBTQ COMMUNITY

3.1.: INTRODUCTION TO GOVERNING CRIMINAL LAWS

3.1.1. CHINA

One of the fundamental laws of the state is criminal law. China is a socialist country
based on the dictatorship of people's democracy, and Marxist-Leninist-Maoist philosophy
serves as the foundation for Chinese criminal law. Additionally, the actual application of
the socialist revolution and the advancement of socialism in China is included in Chinese
criminal law. Tenets like "law is a manifestation of the class will," "law serves socialism,"
"law is an instrument of the dictatorship of the proletariat," and "law is practiced
democratically within the ranks of the people but law exercises dictatorial power over the
reactionary classes," "law adheres to strict procedures based on investigations so that
certain and accurate blows are dealt to counterrevolutionaries," "law protects people and
punishes crimes," and "law is an instrument of the dictatorship of the

Chinese criminal law is based on the People's Republic of China's Constitution, which is
regarded as the state's foundational law. The Chinese Constitution establishes the
fundamental principles of the Chinese state, which include proletarian dictatorship,

55
socialist economic development, socialist ownership by the entire Chinese people as the
driving force of the national economy, and the inviolability of socialist public property.
Furthermore, criminal law is intended to maintain social order so that the national
economy can flourish at a rapid and well-planned pace. Finally, criminal law works to
ensure the people's right to participate in the management of state activities, as well as to
protect the fundamental rights and liberties of individuals. 65

Article 2: “The purpose of the People's Republic of China's Criminal Law is to use
criminal punishments to combat all criminal acts in order to safeguard the security of the
State, to defend the State power of the people's democratic dictatorship and the socialist
system, to protect property owned by the State, property collectively owned by the
working people, and property privately owned by citizens, to protect citizens' individual
rights and democratic and other rights, and to protect citizens' democratic and other
rights.”66

Article 3: Offenders shall be convicted and punished in accordance with the law for acts
that are expressly classified as criminal acts in law; otherwise, they shall not be convicted
or punished.67

Article 4: The law must be implemented equally to everyone who commits a crime. No
one shall be granted the privilege of breaking the law. 68

Article 5: The severity of the penalty must be proportionate to the crime committed and
the criminal responsibility assumed by the offender.69

Article 6: “This Law shall be applicable to anyone who commits a crime within the
territory and territorial waters and space of the People's Republic of China, except as
otherwise specifically provided by law. This Law shall also be applicable to anyone who
commits a crime on board a ship or aircraft of the People's Republic of China.”70

Punishment is a required action meant to deny the criminal specific privileges. Its
principal goals are to eradicate all criminal activity and uphold the socialist order. The

65
The Constitution of the People's Republic of China, December 4, 1982
66
Criminal Law of the People's Republic of China, July 1, 1979
67
Id, note 66
68
Id
69
Id
70
id

56
People’s court is supposed to use the law as the standard of punishment and to base its
decision on only the circumstances of the specific case.

There are various types of punishments, both primary and secondary. The following are
the most serious legal penalties that can be inflicted on a criminal: (1) surveillance, (2)
detention, (3) fixed-term imprisonment, (4) life imprisonment, and (5) the death sentence.
Supplementary punishments are legal sanctions placed on criminals in addition to the
primary sentence. They are (1) fines, (2) deprivation of political rights, and (3) property
confiscation. Only extra punishment may be given in some instances. Furthermore,
deportation may be used as an exclusive or supplemental punishment for a foreigner who
has committed an offence. Political rights deprivation includes the following: (1) loss of
the right to vote and run for office; (2) loss of the freedoms of speech, correspondence,
assembly, and association; (3) loss of the right to serve in a state organ; and (4) loss of the
right to serve as an executive in any commercial enterprise unit or people's organization. 71

It's worth noting that the Chinese legal system has been criticized for limitations on due
process, lack of transparency, and concerns regarding human rights. Reforms and
developments continue to shape the Chinese criminal justice system, with efforts to
address these issues and enhance the rule of law.

3.1.2. INDIA

The Constitution of India provides for a federal system wherein powers are divided
between the central, state, and local governments. The demarcation of powers is provided
in Constitution.72

“In the event of a contradiction between Central and State laws, the Central law will
prevail. Criminal law and criminal procedure fall under the Concurrent List while matters
relating to Police and Prisons fall under the State List. The laws that govern criminal law
in India are the Indian Penal Code, 1860 (IPC) and the Criminal Procedure Code, 1974
(CrPC). The IPC provides for the substantive law to be followed in case a crime has been
committed. The CrPC provides for the procedures to be followed during investigation and
trial by the police and courts. There exist specific courts for criminal trials to be held
called Sessions Courts at the District level. India has adopted the adversarial system of

71
“Zhu Qiwu, General Aspects Of The Chinese Criminal Code And Code Of Criminal Procedure, UCLA
Pacific Basin Law Journal, 2(1-2), 1983.”
72
Constitution of India, Schedule VII read with Article 246

57
legal procedure wherein the judge acts as a neutral party and the case is argued by the
prosecutor suing the plaintiff and the defense attorney who defends the plaintiff. One
major distinction between India and other common law countries is that it does not follow
the jury system.”73

The penal legal system established by the British in India serves as the foundation for
both the criminal justice system and the ensuing criminal statutes. After 75 years of
independence, if we were to examine the criminal laws or the criminal justice system, we
would find that neither have seen any significant modifications. The Indian Penal Code
(IPC), 1860, which discusses sedition and specifies a punishment for it, is the most
notorious example of such a discredited justice system. 74

The Criminal Procedure Code (CrPC), often known as the Code of Criminal Procedure, is
the primary piece of legislation in India that governs the administration of procedural
criminal law. On April 1st, 1974, it became operative after being passed in 1973. It
provides the resources required for conducting a thorough investigation into a crime,
apprehending suspects, gathering evidence, determining if an accusation is true or false,
and determining the appropriate penalty for the guilty party. It also talks on maintaining a
wife, child, and parent, as well as crime prevention.

The Act now has 46 chapters, 56 forms, 5 schedules, and 565 sections.

FIG8: https://www.tutorialspoint.com/criminal-law-in-india#

The main goal of criminal law is to safeguard society from the horrors that lawbreakers
and criminals commit. It aims to induce the actual lawbreaker to accept the allocated
penalties in order to enable this objective legal system by threatening potential offenders
73
Tarun Tiwari, “Introduction to Criminal Law in India”, Michigan State University College of Law, 2020
74
Indian Penal Code, 1860, Sec 124

58
with penalties. Therefore, in its broadest meaning, criminal law includes both procedural
and substantive elements.

Indian criminal law seeks to hold offenders accountable and create a community free
from the power of evil. Even though the existing social structure does not adhere to
retributive justice, justice nevertheless encompasses the entire community in addition to
the victim. Accepting the necessity of criminal law, or any rule for that matter, is essential
to defining the chaos that permeates society.

3.1.3.: JAPAN

“Japan's legal system is based on civil law. The prosecutor has the burden of proof when
it comes to criminal cases in Japan because the accused is presumed innocent until and
unless proven guilty. It is necessary to give the defendant the benefit of the doubt.”

If an accused person is found guilty of committing an offence, they will be subject to the
legal penalties. The steps taken in a criminal case are the same throughout Japan, and the
fundamental rules governing criminal offences are available online at Penal Code and
Rules of Criminal Procedure.

The Continental Laws, specifically the French Civil Law and the German Criminal Law,
have traditionally had an impact on the Japanese legal system. However, as a result of the
improved ties between the United States and Japan following World War II, the influence
of American Law models has grown more significant in all branches of jurisprudence.
Particularly affected areas include criminal procedure law and constitutional law. Before
the Meiji Restoration introduced Western legal systems to Japan in 1868, the Japanese
legal system had modelled itself after Chinese rules.75

Before the Meiji Restoration in 1868, when Western legal systems were introduced to
Japan, the Japanese legal system had been modelled after Chinese rules. In an effort to
abolish treaties with Western nations that had unfavorable clauses for Japan, such as
those that denied the ability to apply customs taxes, the government introduced Western
legislation during this time. Imported laws were gradually changed to fit the needs of the
Japanese people. In this way, the Japanese legal system combines elements of the
Continental, Anglo-American, and Oriental legal systems.

75
Tadashi Moriyama, World Factbook Of Criminal Justice Systems 2, (Takushoku University)

59
Prior to the Meiji Era (1867–1912), members of the imperial family or the judges they
nominated had considerable discretion, which frequently led to abuse of authority. The
primary tool used by the criminal justice system to punish offenders was the death
penalty. Authorities routinely utilized the death penalty against political enemies
throughout the mediaeval era. However, as Western culture was introduced following the
Meiji Era, the government created new regulations that reflected a gradually modernizing
Japanese society. To bring Japan closer to Western nations, criminal law and prison
legislation were passed in 1907. But it wasn't until the post-war era that the rights of
criminals started to dominate the criminal court system. 76

The Criminal Procedure Law underwent a significant transformation in favor of the

establishment of an adversarial system in light of the new Constitution. The police, the
prosecutor, and the judge all had new roles under this system. Unfortunately, a number of
cases that occurred soon after this innovation led to a miscarriage of justice, in part
because the police were unfamiliar with the new approach. A jury system was
implemented in 1939, but due to the rigidity of the existing criminal justice system at the
time, it was seldom ever employed. Additionally, there has always been a high level of
confidence in Japanese society for professional judges. The United States advised the
police to start carrying guns after the war rather than sabers.

Reforming important legislation like the Criminal Law (1907), the Juvenile Law (1947),
and the Prisons Law (1907) was extensively argued for. Plans for reform, however, were
divisive because they touched on sensitive subjects including the removal of the practise
of holding criminal defendants in police cells, the addition of protective measures to
criminal law, and juvenile punishment. In its response to reforms, Japanese society is
generally conservative and opposed to them. The government issues a number of
supplements in an effort to update outdated laws.

Crimes against the state, crimes against society, and crimes against people make up the
three primary categories of crime in Japanese criminal law. This provision was passed
under the previous Constitution, which was primarily concerned with emperor and state
power. Crimes against the imperial family and the state were therefore highlighted
heavily. After World War II, offences against the imperial family were outlawed, but this
law's basic framework remained largely unchanged. The law has not undergone a full

76
Id, note 75

60
reform, therefore it appears to be somewhat out-of-date. The state's responsibility to
safeguard citizens' interests in day-to-day living is reflected in the criminal justice system.
Homicide, physical harm, forced rape, indecent assault, and kidnapping are crimes
against life, person, and freedom. Theft, fraud, robbery, extortion, and embezzlement are
examples of crimes against property. 77

The Penal Code (刑法 Keihō), was enacted in Japan in 1907. It is one of the six Codes

that serve as the framework for contemporary Japanese law. As it relates to common
offenses, the penal code is sometimes known as "ordinary criminal law" or "general
criminal law." In a practical sense, the term "criminal law" refers to all legal rules that
outline the conditions for the consequences of a crime and the nature of the penalty as a
legal impact placed on a person, as well as the content of the criminal code. It may also
have legislation governing security precautions, which is an additional system.

3.1.4. SOUTH KOREA

Korea is a tripartite nation-state with a centralized government that consists of executive,

legislative, and judicial branches. Since there are no localized criminal justice systems,
the central government is in charge of all aspects of the criminal justice system, including
prosecution, courts, and imprisonment. The Democratic People's Republic of Korea
(DPRK: North Korea), however, survives on the northern part of the Korean Peninsula
because Korea is still a split country.

A general part and a particular part make up the criminal law. The law's reach and
applicability are covered in the general section. The general section of the legislation
specifies the numerous justifications, defenses, and defenses of insanity, accountability,
unsuccessful attempt, co-offender, and kinds of punishment. The numerous forbidden
sorts of crime are included in the special section. In addition, numerous special criminal
acts, such as drug laws, laws for additional punishment for special economic crimes, and
laws for misdemeanor punishment, are also established for the additional punishment of
some types of crimes or for the punishment of some types of crimes not covered by
criminal law. 78

77
PENAL CODE (Act No.45 Of 1907 As Amended Through Law No. 52 Of 2 June 1987)
78
State University of New York at Albany. "World Factbook of Criminal Justice Systems: South Korea."
(1997).

61
The accusatorial-based structure of the Criminal Procedure Law is specifically prescribed.
Criminal procedure's fundamental framework resembles both an adversarial and
inquisitorial system. This is primarily because Korean criminal procedure is a hybrid of
American and German criminal law. In Korea, the judicial system frequently exhibits a
traditional character. People are not accustomed to handling disputes in court. Justice is
more frequently served by informal resolutions like coordination or conciliation.

The criminal justice system's history. Korea's past is extensive. The Kochosun dynasty,
the first type of government to exist on the Korean Peninsula, had eight Laws of
Prohibition when it was established in 2333 B.C. Since then, a number of states have
emerged in this region. Three powerful ancient dynasties—Koguryo, Paekjae, and
Shilla—came into existence with their respective legal systems about the first century
B.C. Shilla created its own written criminal law and combined all of these states into one
in the middle of the 7th century A.D. In the ninth century, a new dynasty known as Koryo
was founded after Unified Shilla fell. It was from this Koryo that Korea's current name
was derived. Koryo created its own legal framework based on the Tang-dynasty of
prehistoric China. After Koryo's fall, the newly formed Chosun dynasty attempted to
adopt aspects of the Ming dynasty's judicial system but rejected them as being ineffective.
The Great Law for the Nation, also known as Kyung kook Daejeon, was eventually
passed in 1471 as a result of the need to establish a new legal system. Numerous changes
have been made since then. The Great Criminal Law, which was passed in 1905, was the
first modern criminal law. However, as a result of Japan's 1910 colonization of Korea, the
Great Criminal Law was revoked and the Japanese Criminal Law took its place in 1911.
More sincere attempts to spread the Korean legal codes have been attempted after the end
of World War II, when Japan was defeated and American military rule began. The
Criminal Procedure Law of 1954 and the current Criminal Law of 1953 were brought into
effect as a result. There are proposals to significantly update the criminal procedure law,
which has undergone extensive alteration since the criminal law of 1953. 79

There is a distinction between criminal offences and non-criminal offences in Korea's

criminal legal system. Criminal offences, or patterns of behaviour defined as crimes in
criminal law, are further classified as I) crimes against national interests (such as
rebellion), 2) crimes against social interests (such as sedition or arson), and 3) crimes
against personal interests (such as murder). Tax-related and drug-related offences are
79
Id, note 78

62
examples of non-criminal offences that are defined as criminal under other laws. A
distinction is also made between significant and less serious offences. Lesser-serious
offences are criminal offences punishable by jail time or lesser fines, and different laws
exist to address these offences. Serious offences are violations that carry harsher penalties
than those listed above. There is a general contrast between violent crimes and property-
related crimes. Special laws prescribing additional punishment exist for each of them,
based on the specific type of offence. In Korea, property crimes are defined as crimes
against property interests. They include theft, fraud, embezzlement, breach of trust, and
property destruction. Injuries, assault and battery, and rape are examples of violent
crimes. 80

The criminal justice system in South Korea follows a presumption of innocence until
proven guilty. When a crime is committed, law enforcement agencies investigate the case,
gather evidence, and present it to the prosecution. If there is sufficient evidence, the
prosecution can initiate criminal proceedings, leading to a trial before a court.

South Korea has a tiered system of courts, consisting of district courts, high courts, and
the Supreme Court. District courts have original jurisdiction over most criminal cases,
while high courts handle appeals from the district courts. The Supreme Court is the
highest appellate court in the country and has the authority to review decisions made by
lower courts.

Through its criminal justice system, South Korea has undertaken efforts to address a
number of socioeconomic challenges. For instance, there have been legislation changes
recently to improve cybersecurity standards, increase laws against sexual offences, and
combat corruption. Furthermore, South Korea has taken action to combat problems
including drug abuse, domestic violence, and hate crimes. It's important to note that social
peace is highly valued in South Korean culture, and criminal behavior is typically not
tolerated. But it's crucial to guarantee that the criminal justice system functions
impartially, upholds individual rights, and advances justice for all parties concerned.

3.1.5. PAKISTAN

The legislative, executive, and judicial branches of a nation are established by its
constitution. Like its prior constitutional documents, the Pakistani Constitution of 1973

80
Criminal Act Of South Korea, Expand Act No. 11731, Apr. 5, 2013

63
establishes the three organs. Pakistan is a Federation, hence its constitution establishes the
federal, provincial, and local branches of the executive, legislature, and judiciary.
Judicature refers to the administration of justice, whereas judiciary refers to the system of
courts in a nation. It should be noted that the terms are frequently used interchangeably.

The separation of the judiciary and the executive branch is mandated under Pakistan's
constitution, although it has not yet been implemented. By controlling the purse, the
historically powerful administration has maintained its position as the centre of power
and kept the legislative and judiciary at a distance. Since 2007, the legislature has not
been able to assert its power due to conventions, privileges, rules, and its partisan nature.
The judiciary has gained some space by using its suo motu powers to enforce
Fundamental Rights along with its power to punish contempt or failure to follow its
orders. The Constitution established constitutional courts, including the Supreme Court,
High Courts, and Federal Shariat Court, and specifies the constitutional, civil, criminal,
and service-related subjects that fall under the purview of various courts. The
constitutional provisions that form the basis of Pakistan's criminal justice system's
cumulative reading of the federal and provincial legislators' authority, the constitutional
courts' purview, and the fundamental rights guaranteed by those provisions.81

According to the Constitution, it is up to the provinces to maintain law and order, which
they do through their provincial administrations. The Home and Prosecution Departments
oversee the administration of the criminal justice system in the provinces. The federally
governed territories of the Islamabad Capital Territory (ICT), Gilgit Baltistan (GB), and
Azad Jammu and Kashmir (AJK) fall under the federation's concurrent jurisdiction with
the provinces. Through the Ministry of the Interior (MoI), the federal government is also
in charge of interprovincial coordination in criminal issues. The Federal Investigation
Agency (FIA), a federal police agency that looks into and prosecutes organized crimes
including illegal immigration, human trafficking, cybercrime, etc., is also under the
control of the federal government. The criminal justice system is overseen by the federal
and provincial governments in accordance with their respective rules of business; this use
of delegated legislation to balance the primary legislation is a crucial mechanism that

81
“The Constitution of Pakistan, 1973, art. 175, 184 & 204”

64
must be thoroughly investigated in order to bring about any reform in the system of
governance of the criminal justice system. 82

The Police, Prosecution, and Judiciary are the three fundamental entities that make up
Pakistan's criminal justice system. Prior to 2007, Pakistan's criminal justice system
consisted of only the police and the judiciary; there was no concept of an independent
prosecution department. All Provinces didn't create independent, specialised prosecution
departments until after 2007. Prosecution in Pakistan's criminal justice system is still not
independent and fully functional due to its brief lifespan and other factors. 83

Pakistan's criminal justice system is generally in terrible shape. Police, prosecutors, and
the judiciary are three areas of the criminal justice system that require improvement.
Policymakers must give the outdated and colonial-era Police Department their immediate
attention.

3.1.6. SRI LANKA

“English common law, Roman-Dutch law, Muslim law, and customary rules are all
combined in Sri Lanka's immensely complicated legal system. The English common law
serves as the foundation for criminal law and procedure. The British Empire colonized Sri
Lanka, and British laws were eventually implemented there.” The legal system in Sri
Lanka is adversarial. The main state law enforcer is the Attorney-General. In his office,
prosecutions are handled by the district attorney and state attorneys. However, the officer
in charge of a police station initiates the majority of charges in minor offenses at the
Magistrates' Courts.

Sri Lanka, formerly known as Ceylon until 1972, is a tropical island country in the Indian
Ocean with the shape of a teardrop that is located 29 kilometers off the southeast coast of
peninsular India. Its overall land area is 65,610 square kilometers, and as of 1991, there
were 17.4 million people living there. With an estimated 1.3% annual population growth
rate, an 89% literacy rate, and an infant mortality rate of 18 per 1,000, Sri Lanka's
socioeconomic statistics are better than the norm for developing nations. Between 1990
and 1992, Sri Lanka's annual gross domestic product growth rate was 5% on average; in
1993, it was 5.7%. In 1948, Sri Lanka, a former British colony, declared its
independence. The Penal Code of Sri Lanka was initially written in 1883 in response to

82
“The Constitution of Pakistan, 1973, Articles 142 and 143”
83
Jibran Jamshed, “Criminal Justice System in Pakistan”, Islamia University of Bahawalpur, May 2018

65
the unsatisfactory state of the country's previous criminal laws, which created a situation
of confusion. On the analogous Indian law, it was based. The Administration of Justice
Law of 1973 established the Criminal Procedure Code of 1898, which it later replaced.
Later, the Code of Criminal Procedure Act of 1979 and the Judicature (Amendment) Act
of 1979 which altered the Judicature Act of 1978 took its place.84

The three main components of Pakistan's criminal justice system are the police,
prosecution, and judiciary. Prior to 2007, there was no concept of an independent
prosecution agency in Pakistan's criminal justice system, which simply included the
police and the judiciary. After 2007, all provinces established separate, specialized
prosecution departments. Due to its short history and other considerations, the
prosecution in Pakistan's criminal justice system is still not independent and fully
functional. 85

Six years old is the legal minimum age of criminal culpability. Men's tea is not deemed
suitable for children under the age of six. Those who are older than 6 but younger than 12
are not punished unless they have reached a certain level of maturity. The magistrate has
the discretion to determine whether a young offender is old enough to stand trial. Any
offense other than a scheduled offense may be filed against a "child" who is under the age
of 14 and a "young person" who has turned 14 but is under the age of 16, but such cases
must be heard by a juvenile court.

Punishments prescribed under the Penal Code are: “death, imprisonment (simple and
rigorous), whipping, forfeiture of property and fine. According to the Third United
Nations Survey however, statistical data are not available with regard to the death
penalty, whipping, and property sanctions such as fine and forfeiture.”86

Sri Lanka's criminal law plays a vital role in maintaining law and order, protecting
citizens' rights, and ensuring justice in the country. The criminal justice system of Sri
Lanka encompasses a wide range of laws and procedures aimed at preventing and
punishing criminal offenses.

One of the key aspects of Sri Lanka's criminal law is the principle of due process, which
ensures that individuals accused of crimes are afforded fair treatment, including the right

84
Karunaratne, N. H. A. "World Factbook of Criminal Justice Systems: Sri Lanka." State University of
New York at Albany (1997).
85
Sri Lanka: Penal Code, 1 January 1885
86
Id, Note 85

66
to a fair trial, legal representation, and the presumption of innocence until proven guilty.
This principle serves as a crucial safeguard against potential abuses of power and helps
uphold the fundamental rights of individuals within the criminal justice system.

Another important feature of Sri Lanka's criminal law is the classification and punishment
of various criminal offenses. The law encompasses a comprehensive list of offenses,
ranging from minor infractions to serious crimes, with corresponding penalties based on
the severity of the offense. This ensures that individuals who engage in criminal activities
are held accountable for their actions, deterred from committing further crimes, and
contribute to the overall safety and security of society.

Furthermore, Sri Lanka's criminal law also recognizes the importance of rehabilitation
and reintegration of offenders.

3.1.7. THAILAND

The criminal law of Thailand encompasses a set of regulations and principles that govern
criminal offenses and their respective punishments within the country. The legal
framework is primarily based on the Thai Penal Code, which defines various crimes and
stipulates penalties for offenders. Additionally, Thai criminal law is influenced by other
statutes, such as the Narcotics Act and the Computer Crimes Act, which address specific
types of offenses.

Thailand's criminal justice system follows the principle of presumption of innocence,

wherein an individual is considered innocent until proven guilty. Investigations are
conducted by the police, and if there is sufficient evidence, the case is brought to court.
Trials are typically held in open court, and defendants have the right to legal
representation, present evidence, and cross-examine witnesses.

“The fundamental statute law governing Thailand's criminal justice system is provided by
the Thai penal code. Thailand Criminal Defence Lawyers claim that one of the practical
challenges faced by foreigners in Thailand when dealing with Thailand's criminal justice
system is that it is unknown to them and that Thailand's system differs from that of their
own country. The following are some of the key distinctions between the legal system of
Thailand and numerous common law states in the West. It is possible to file criminal
charges privately in Thailand under specific, unique circumstances. This means that, in
contrast to common law nations, cases may be brought directly by harmed parties instead

67
of always being submitted to the public prosecutor (in Thailand, the Attorney General). In
Thailand, there is no jury system. There could be benefits and drawbacks to this. Judges
alone decide criminal cases. In Thailand, the police are frequently overworked. As a
result, resentful people frequently decide to hire a lawyer to create complaints that they
can submit to the police. Periodically, royal pardons are granted in Thailand.
Nevertheless, there are stringent requirements for a pardon, so defendants shouldn't
anticipate an automatic royal pardon in any given case. There have been numerous
constitutions in Thailand, therefore constitutional guarantees are neither as certain nor as
reliable as in Western common law nations like the United States. There are barely a few
years left on the newest constitution. Thailand lacks a substantial body of common law
cases compared to countries with Western legal systems. Although there are Supreme
Court rulings that are significant for Thailand's legal growth, they do not carry the same
weight as in nations with common law systems. Different international treaties and
procedures, like prisoner exchange programs and extradition, are the subject of
considerable attention and action. This is because of Thailand's sizable transient foreign
population, which frequently necessitates the use of these exceptional measures.”87

The criminal law of Thailand encompasses a wide range of offenses, including but not
limited to murder, theft, assault, drug offenses, and corruption. Punishments for these
crimes can vary depending on the severity of the offense, ranging from fines and
imprisonment to the death penalty in certain cases.

3.2.: SPECIFIC PROVISIONS COVERING: ASSAULT, SEXUAL ASSAULT &

RAPE, AND PUNISHMENTS

In this chapter, the author has outlined the definition of assault, sexual assault,
molestation, and rape and discussed the presented specific provision and punishment
available in the penal code of the countries which has been discussed in the above
chapters.

“Any purposeful act that makes another person fear an attack or impending bodily harm
is commonly referred to as an ASSAULT. According to this definition, even when the
assault victim is not physically wounded, the act of making the victim worry for their

87
“Thai Criminal Law Overview Key Points, available at: https://asialaw.tripod.com/thai-criminal-law.html
( last visited 08/06/23)”

68
safety is itself punishable. Because of these criteria, authorities can act immediately to
stop an assault before the perpetrator even strikes the victim and make an arrest.”

The term "assault" in the context of criminal law typically refers to the unlawful conduct
of willfully putting another person in reasonable fear of impending bodily injury or
offensive contact.

The essentials of assault generally include

Act: “The accused person must have taken some action that caused apprehension or fear
of harm in the victim. The act can be physical, such as a physical attack or threat, or it can
be verbal, such as making credible threats of harm.”

Apprehension: “The victim must have reasonably believed that they were in immediate
danger of harm or offensive contact as a result of the defendant's actions.”

Intent: “The accused must have intended to cause apprehension or fear in the victim. In
some jurisdictions, the intent may need to be proven as specific intent (purposefully
intending to cause fear or harm) or general intent (knowing that the actions would likely
cause fear or harm).”

SEXUAL ASSAULT

Any sexual activity or contact that takes place without your consent is referred to as
sexual assault. Sexual assault can also take the form of non-contact behaviors like
someone "flashing" you (exposing themselves to you) or compelling you to view explicit
material. Sexual violence or abuse are other names for sexual assault. States may have
slightly different legal definitions of sexual assault and other offenses involving sexual
violence. It is never your fault if you have been assaulted. 88

“Sexual assault is an umbrella term that encompasses a broad range of nonconsensual

sexual behaviors. The World Health Organization defines sexual assault as any sexual
act, attempt to obtain a sexual act, or other act directed against a person’s sexuality using
coercion, by any person regardless of their relationship to the victim, in any setting,
including but not limited to home and work.”

88
Sexual Assault and Abuse, available at:
“https://www.emedicinehealth.com/sexual_assault/article_em.htm” (last visited on 8/6/23)

69
RAPE

Sexual interaction with another person without their agreement is prohibited, as is any
other sort of penetration of their mouth, vagina, or anus with or without force, as this
constitutes rape. Rape is the legal word for the intentional insertion of a penis into another
person's vagina, anus, or mouth without that person's consent. When someone forcibly
enters another person's vagina or anus without that person's consent using a bodily
component other than their penis or an object, it is considered an assault via penetration.

“The broad meaning of sexual or indecent assault is an act of physical, psychological, or

emotional harm committed against a person without that person's consent that takes the
shape of a sexual act. Someone may be coerced or tricked into watching or taking part in
any sexual action.”

Specific Provision of the Countries for Assault, Sexual Assault & Rape

In China, the penal code under Article 20(3) states that “If a person acts in defense
against an ongoing assault, murder, robbery, rape, kidnap or any other crime of violence
that seriously endangers his personal safety, thus causing injury or death to the
perpetrator of the unlawful act, it is not undue defense, and he shall not bear criminal
responsibility.”89

Section 236, of the Chinese penal code, criminalizes sexual intercourse with women
under 14 years and sexual intercourse done with violence, coercion, threatening, and any
other illegal way. Punishment for rape under the section is 3 to 10 years but if it’s a girl
under 14 years of year the punishment increases with considering other circumstances. 90

In India, the Indian penal code, 1860, According to the law, assault is committed when
someone makes a gesture (sign or indication) or prepares something with the intent to put
another person in fear or with knowledge that they are about to use criminal force
(intentional use of force to cause annoyance, fear, or injury) on that person. 91 And,
anyone who violates section 351 of the IPC's assault laws will be penalized under section
352 of the IPC, which carries a maximum sentence of 3 months in prison, a maximum
fine of 500 rupees, or both. However, there is an exception to s.352 which is stated in
general, the IPC recognizes a defense for any offence committed in response to a serious

89
Criminal Law of the People's Republic of China, July 1, 1979
90
Id, note 89
91
Indian Penal Code 1860, S.351

70
and unexpected provocation. Attacks committed in response to severe and immediate
provocation, however, are not defendable. Therefore, the same sentence that is normally
prescribed for the offence will apply to everyone who commits assault after a serious and
immediate provocation.92 Under the Indian Penal Code, of 1860, section 375 and 376
defines rape and its punishment. Section 375 states the rape of a woman and an underage
girl. The code punishes the rapist for not less than 10 years of imprisonment, which can
extend to life imprisonment keeping the circumstances in mind. 93

In Japan, the Penal Code only contains punishments for whenever "assault" may occur;
there is no explicit definition of "assault" there. Penal Code of Japan Article 208, If
someone assaults someone else without really hurting them, they could face up to two
years in prison with hard labor, a fine of up to 300,000 yen, a misdemeanor prison
sentence without work, or a small fine. 94

Under Article 177, A person who forces a girl of at least thirteen years of age to engage in
sexual activity by assault or intimidation commits rape and will be punished by a period
of definite imprisonment with hard labor of at least three years. The same rules apply to
anyone who engages in sexual activity with a female under the age of thirteen. Article
178 and 178(2) deals with quasi-rape and gang rape where a person who conducts an
indecent act against a male or female by exploiting unconsciousness or the incapacity to
resist, or by inducing unconsciousness or resistance, will be punished in the manner
specified in Article 176. A person who engages in sexual activity with a female by
exploiting unconsciousness or the incapacity to resist, or by inducing unconsciousness or
the inability to resist, will be punished in the manner outlined in the preceding article.
When two or more people commit the crimes listed in Articles 177 or 178 together, they
will be punished by being imprisoned with labor for a set period that is at least four years
long.95

Under the penal of Pakistan section 349, 350, 351,96 deals with force, criminal force, and
assault on someone’s body, or property with the intention to cause hurt by the act. Indian
and Pakistan have the same penal code, and section 375 and 376 holds the same
definition of rape and punishment under the Pakistan penal code.

92
Id, note 91
93
Id
94
Japan Penal Code (Act No.45 of 1907)
95
Id, note 94
96
The Pakistan Penal Code,1860, Last Amended On 2017/02/16

71
In South Korea, sexual assault or physical assault comes under the ambit of rape. There
is no specific section under Korean Penal Code that governs the assault as a sexual
assault, however, it is covered under the umbrella of rape, imitative rape, quasi-rape, and
attempts of rape under sections 297, 299, and 300.

In Sri Lanka, section 365, criminalizes homosexuality stating that, Anyone who engages
in voluntary sexual activity with another person or animal against the laws of nature is
punishable by imprisonment of either kind for a term that may last up to ten years, as well
as by a fine. If the offence is committed by a person over the age of eighteen towards a
person under the age of sixteen, the offender is punishable by rigorous imprisonment for a
term that is not less than ten years and not more than twenty years. 97

Thailand, section 278 279, 282, 283, & 284, these provisions of the penal code, are
gender neutral. Under these provisions, the limitation on who can be a victim is not
imposed, they use the broad language of, any person & any child98, which indicate that
the LGBTQ+ community in Thailand has protection against sexual offenses committed
against them. In the penal code of Thailand, the offense of rape, assault, and sexual
assault comes under the same ambit along with different degrees such as sexual offense
amounting to hurt, grievous hurt, and murder. These provisions are gender-neutral and do
not include any specific gender, people from different sexual orientations can seek justice
under these provisions.

3.3.: VIOLENCE AGAINST LGBTQ+ COMMUNITY, OBSERVATION MADE

THROUGH NEWS AND MEDIA

The Chinese Psychiatric Association published the third edition of the Chinese
Classification and Diagnostic Criteria of Mental Disorders, a guidebook used by Chinese
mental health specialists to diagnose and classify disorders, in 2001. Years of pressure by
LGBT campaigners resulted in the CCMD-3 dropping "homosexuality" as an official
medical diagnosis. They were generally successful since the CCMD-3 does not classify
same-sex sexual attraction as a disease. However, changing diagnostic best practices
proved difficult to adopt. Even today, a sizable proportion of Chinese mental health
practitioners regard homosexuality as a sickness and frequently treat it as such. These
practitioners provide "conversion therapy," which purports to transform an individual's

97
The Penal Code of Sri Lanka, 1 Jan, 1885
98
The Penal Code of Thailand, 1956

72
sexual orientation and/or gender identity. Professional mental health groups all around
the world have unanimously condemned this style of therapy as hazardous. However,
many Chinese LGBT persons are still subjected to these damaging practices, typically as
a result of heavy familial pressure. 99

“This case has become a major instrument for the LGBT community in terms of activism.
LGBT advocates even went so far as to submit the judgment to the UN Committee
Against Torture as evidence that Chinese LGBT people were subjected to conversion
therapy in violation of the UN Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment during its fifth periodic report on China. During its
oral review procedure, the Committee Against Torture acknowledged the judgment and
explicitly asked the Chinese delegation about the matter. One of the first instances the
Chinese government has gone on record in an international legal arena to recognize the
rights of Chinese LGBT persons was when Chinese officials said that LGBT individuals
deserved protection.”

Discrimination against LGBT people in the workplace is frequent in China. According to

survey responses from thousands of Chinese LGBT people, more than half of respondents
had experienced job discrimination because of their sexual orientation and/or gender
identity. This problem stems from a lack of strong legal protections for victims of job
discrimination.

Despite many years of ardent activism and related impact litigation, China has yet to
enact detailed legislation or policy defining "gender discrimination." Employees who
believe they have been discriminated against on the basis of protected categories such as
ethnic origin, race, gender, or religious belief must instead rely on vague anti-
discrimination protections scattered across a few different laws and lacking concrete
enforcement mechanisms.

Another indicator of the limiting of space for sexual orientation-focused organizations

under Chinese President Xi Jinping is the closure of a major LGBTQ+ center in China
after 15 years. The Beijing LGBT Centre claimed in a message on its WeChat account on
Monday that it was closing its doors effective immediately, citing a "force majeure." The
center could not be reached for comment immediately on Tuesday morning, but a former
volunteer for the organization said the shutdown was the consequence of long-standing

99
“The Treatment Case Peng Yanhui v. Xinyu Piaoxiang Psychotherapy Center”

73
pressure. That person did not clarify the particular source of the pressure, only that it
came from several sources, including the center's neighbors at times. Last summer, two
students at one of China's most famous institutions were handed warnings for distributing
LGBTQ rainbow flags, highlighting the country's growing intolerance for sexual
diversity. In recent years, the state media has been critical of gender-nonconforming men.

In recent years, there has been an increase in the number of incidences of violence against
transgender people in India. Several incidences came to light only when LGBTQ+
activists became aware of the situation. On October 7, two transgender ladies were
brutally attacked in Tamil Nadu's Thoothkudi district. According to accounts, both
transgender people were out begging when they were ambushed by goons who hacked off
their hair, stripped them naked, and severely beaten them. The event was only brought to
light on October 13 when transgender and Dalit rights activist Grace Banu published a
video of it on Twitter.

Fig9: https://thelogicalindian.com/lgbtq/increasing-violence-against-transgender-people-
in-india-38139

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In another incident, five transgender people were physically assaulted on October 7
during a Durga Puja event in Agartala, Tripura. According to reports, two ladies heckled
trans people by calling them derogatory names. Despite the hostility and insults directed
at them by those women, all five trans people fled the area. Suddenly, a gang of around
30 guys began physically assaulting transgender people. They had been beaten, and no
one came to their aid. All five transgender people managed to flee the onslaught and
leave the event in some way. Later, at the West Agartala Women's Police Station, a First
Information Report (FIR) was submitted.100

In Tokyo, According to a private study conducted on Saturday with more than 10,000
participants, about 40% of sexual minority individuals in Japan have experienced sexual
harassment or assault. Professor of social epidemiology at Takarazuka University
Yasuharu Hidaka led the survey of lesbian, homosexual, bisexual, and transgender
individuals. As LGBT persons have occasionally been denied assistance by police or
counselling centres and due to a lack of effective support in the country where knowledge
of LGBT people has not properly expanded, Hidaka claimed that there are likely many
more cases that go unreported. The Life Net Insurance Co. tasked Hidaka with
conducting the online poll, which was completed by 10,769 LGBT individuals between
September and December of last year. 101

Four thousand one hundred people, or 38.1 percent, said they have experienced sexual
harassment or assault in the past. The survey found that 22.4 percent of those polled had
been touched on their body, including their genital organs, breasts, or hips, with the most
being "harassed by sexual words or deeds" at 17.3 percent and "forcibly kissed" at 11.5
percent. Some respondents also stated that they had been violated inside.

According to the research, 69, or 57 percent, of transgender people who identify as

women have been victims of such behavior, followed by transgender people who identify
as men at 95, or 51.9 percent, and lesbian people at 338, or 52.2 percent. In terms of the
link between their damage and mental health, 52.8 percent of individuals who reported
severe assaults have seen psychiatrists, while 48.9 percent of those who reported other
actions have done so. However, the poll found that 35.5 percent of all respondents,

100
Ronit Kumar, “Violence Against Transgender People Is Everywhere: Gender-Based Brutality Rising,
Here's How Activists React, The Logical India”, 19 October 2022
101
“38% of LGBT people in Japan sexually harassed or assaulted: a survey”, Kyodo News, 27 December
2020

75
including those who had not experienced sexual harassment, had sought the advice of a
psychiatrist.102

“A video was published online in July in Pakistan portraying men abusing a group of
transsexual women who were raped at gunpoint. According to a number of LGBT NGOs
and activists, society generally shunned transgender women, eunuchs, and intersex
people, known collectively as hijras, who often lived in slum communities and survived
by begging and dancing at carnivals and weddings, while others relied on prostitution.”
Although the Transgender Persons (Protection of Rights) Act 2018 was passed to address
many of these difficulties, property owners and municipal governments frequently
refused transgender persons the right to own and rent homes. “In April, unidentified
assailants stabbed and killed a transgender person in Karachi. This followed the death and
torture of an elderly member of the trans community in March.”103

According to the US Department of State study, violence and discrimination against

LGBT individuals continued with impunity because authorities often declined to
intervene. In Karachi, for example, Sindh Police were hesitant or unwilling to investigate
crimes against transgender women, including two murders in August and two gang rapes
in September.

The majority of the participants were based in Seoul, Cheongju, North Chungcheong
Province, and Cheonan, South Chungcheong Province, including 26 current and former
students, 41 instructors, parents, service providers, and advocates. Human Rights Watch
and the Lowenstein Clinic performed the interviews. Many of the children said they felt
alone after learning they were homosexual, gay, bisexual, or transgender and had no idea
who to turn to for assistance and guidance when they had problems or were being treated
unfairly at school. Even though some municipalities have passed student rights
ordinances that prohibit discrimination based on sexual orientation or gender identity, the
national government has not yet passed a comprehensive antidiscrimination law that
would protect people in educational and other settings, including employment. Although
it has the ability to receive accusations of discrimination against LGBT individuals, the

102
Id, note 101
103
Discrimination and Violence, Human Trust Dignity, available at:
https://www.humandignitytrust.org/country-profile/pakistan/ (last visited 8 june, 2023)

76
National Human Rights Commission of Korea lacks the enforcement power to guarantee
that those who are discriminated against receive reparation. 104

Transgender students have also faced gendered restrictions in schools. Many South
Korean school’s split pupils by gender or have gendered dress codes or facilities, and kids
are not permitted to attend school in accordance with their gender identity. This can be
especially problematic for transgender students, who may feel ongoing discomfort or
anguish, jeopardizing their ability to obtain an education. Abuse of LGBT students in
schools is aggravated by a lack of supportive resources. School counselors are not needed
to receive training in order to work with LGBT youth.

According to Human Rights Watch105 and EQUAL GROUND, Sri Lankan authorities
have subjected at least seven people to forced medical examinations since 2017 in an
attempt to give proof of gay behavior. Forced anal examinations and forced vaginal
examinations are forms of sexual violence as well as cruel, inhuman, and humiliating
treatment that can lead to torture.

A lawyer told Human Rights Watch and EQUAL GROUND that he and other attorneys
represented six defendants accused of male homosexual activity in the previous 12
months. Prosecutors in all cases presented anal exam records in court as evidence of
previous anal penetration. He claimed the accused had been subjected to various
atrocities, such as being beaten with wires. The court ordered three of the men to be
tested for HIV without their consent, and the findings were made public in court. Sections
365 and 365A of the Sri Lankan Penal Code criminalize "carnal intercourse against the
order of nature" and "gross indecency between persons," which are widely interpreted in
Sri Lanka to criminalize same-sex relationships between consenting adults, especially in
private areas. Human Rights Watch has highlighted how other laws, such as a broadly
worded Vagrancy Law and a penal code section against "cheating by personation," are
utilized to imprison transgender and gender nonconforming people. Sri Lankan police
have invaded hotels and other sites in recent years to arrest people for crimes such as

104
South Korea: LGBT Students Face Bullying, Discrimination, Human Rights Watch, Available at:
https://www.hrw.org/news/2021/09/14/south-korea-lgbt-students-face-bullying-discrimination, 14
September 2021
105
Sri Lanka: Forced Anal Exams in Homosexuality Prosecutions, available at:
https://www.hrw.org/news/2020/10/20/sri-lanka-forced-anal-exams-homosexuality-prosecutions , October
2020

77
consenting same-sex behavior. According to a police performance report, in 2018, police
charged nine males for "homosexuality," who were apprehended in five such searches.106

3.4.: THE NEED TO INCLUDE THE COMMUNITY: A GENDER-NEUTRAL

CRIMINAL LAW

Sexual assault affects every demographic and community, including the LGBTQ
community. According to the Centre for Disease Control and Prevention (CDC), lesbian,
gay, and bisexual people experience sexual violence at rates that are either equal to or
higher than those of heterosexual people. As a group, LGBTQ individuals have higher
rates of poverty, stigma, and marginalization, which makes us more susceptible to sexual
assault. Additionally, there is a rise in the incidence of hate-related violence, which
commonly takes the form of sexual assault. Intimate partner violence can also be brought
on by internalized homophobia and shame because of how society stigmatizes our
relationships and hypersexualizes LGBTQ people.

Compared to heterosexual women, who encounter rape, physical abuse, or stalking by an

intimate partner at a rate of 35%, lesbians and bisexual women experience these crimes at
a rate of 44% and 61%, respectively. Compared to straight men, who encounter rape,
physical abuse, or stalking in an intimate relationship only 29% of homosexual men and
37% of bisexual men do the same. Bisexual women have experienced rape at a rate of
46% compared to straight women's rate of 17% and lesbians' rate of 13%. Compared to 9
percent of straight women, 22% of bisexual women report having been raped by a close
friend or lover. Compared to 21% of straight males, 40% of homosexual men, and 47% of
bisexual men had suffered sexual violence other than rape.107

Sexual assault can happen to anyone and can be perpetrated by anyone, although it is
typically carried out by individuals we know in settings where we should feel protected.
Additionally, for members of LGBTQ communities, acts of verbal and physical
homophobia, biphobia, and transphobia may coexist alongside sexual assault. LGBTQ
individuals are occasionally specifically targeted due to their identity.

When people undervalue and disregard others, sexual harassment, abuse, and assault
flourish. We must collaborate to eradicate the various oppressive practices such as

106
Id, note 105
“National Intimate Partner and Sexual Violence Survey, NISVS: An Overview of 2010 Findings on
107

Victimization by Sexual Orientation, NISVS, 2010”

78
homophobia, biphobia, and transphobia, and replace them with principles of equality,
respect, and consent if we are to put a stop to these crimes.

Being LGBTI in Asia and the Pacific is a regional program that advocates for equal
access to health and social services while tackling inequality, violence, and discrimination
based on sexual orientation, gender identity, or intersex status. Governments, civil
society, regional organizations, and other stakeholders work together to promote the
social inclusion of LGBTI (lesbian, gay, bisexual, transgender, and intersex) persons.

According to specialists, lesbian, gay, bisexual, and transgender (LGBT) people in Asia,
which is predominantly patriarchal and conservative, are sometimes beaten by members
of their own families in order to force them to comply and preserve the social balance.
According to the International Lesbian Gay Bisexual Trans and Intersex Association
(ILGA), homosexual actions are forbidden in 78 nations throughout the world and are
criminal offences in Pakistan, Bangladesh, Sri Lanka, Myanmar, Malaysia, and
Singapore. According to advocates, despite the fact that the issue is hidden and can only
be partially understood through anecdotes and a lack of data, such laws encourage stigma
and discrimination and essentially condone family violence. LGBT people in Asia
frequently move to cities inside their own nation to avoid harassment and feel like they
belong, but more and more, as the Internet and social media make it easier to migrate for
employment and gay marriage, many LGBT people—including Wong—are leaving their
home country altogether.108

Protection for LGBTQ+ people against sexual assault and rape are crucial for
several reasons:

Equality and Human Rights: LGBTQ+ individuals have the same fundamental rights as
anyone else, including the right to live free from violence and discrimination. Protecting
them from sexual assault and rape is essential to uphold their human rights and ensure
equality for all members of society.

Vulnerability to Hate Crimes: LGBTQ+ individuals often face a higher risk of being
targeted for hate crimes, including sexual assault and rape. These crimes are driven by
prejudice, intolerance, and homophobia or transphobia. Providing protection for
LGBTQ+ individuals helps combat such hate crimes and ensures their safety.

108
Alisa Tang, “Asia's LGBT people migrate to escape violence at home”, Thomson Reuters Foundation,
9/4/2015.

79
Challenging Stereotypes and Stigma: Sexual assault and rape against LGBTQ+
individuals are sometimes motivated by the desire to "correct" or "punish" their sexual
orientation or gender identity. By offering protection, society can challenge these harmful
stereotypes and stigmas and send a clear message that violence is not an acceptable
response to someone's identity.

Overcoming Underreporting: Sexual assault and rape are already underreported crimes
due to various factors such as fear, shame, and mistrust of the legal system. For LGBTQ+
individuals, additional barriers such as concerns about being outed or facing further
discrimination may further discourage reporting. Implementing protections can help
create an environment where survivors feel safe and supported when reporting incidents.

Promoting Access to Justice: LGBTQ+ individuals may face systemic barriers when
seeking justice, including biases within the criminal justice system. Ensuring protections
specifically address the needs and experiences of LGBTQ+ survivors can help improve
their access to justice, encourage reporting, and hold perpetrators accountable.

Mental Health and Well-being: Survivors of sexual assault and rape often experience
severe emotional and psychological trauma. For LGBTQ+ individuals, the trauma can be
compounded by the added stress of discrimination, rejection, and societal
marginalization. Protecting them from sexual violence is essential for their mental health
and well-being.

Everyone has the equal right to live in peace and without fear of harm, intimidation,
prejudice, or stigma. International human rights legislation places responsibilities on
States to guarantee that everyone, without exception, has access to these rights. While we
applaud the increased efforts being made in many nations to defend the rights of LGBTI
persons, we are nonetheless gravely concerned about the millions of LGBTI people, those
who are thought to be LGBTI, and their families who are subjected to pervasive human
rights violations worldwide. This should scare you, so take action. 109

“Failure to uphold LGBTQIA people's human rights and protect them from abuses like
violence and discriminatory laws and practises constitutes a serious violation of
international human rights law and has far-reaching effects on society. These effects
include increased vulnerability to diseases like HIV, social and economic exclusion,

109
UN-OHCHR, “Ending Violence and Discrimination Against Lesbian, Gay, Bisexual, Transgender And
Intersex People”, September 2015

80
strain on families and communities, and negative effects on economic growth, decent
work, and progress towards universal health care. According to international law, it is the
primary responsibility of states to defend all people against prejudice and violence.
Therefore, governments, parliaments, judiciaries, and national human rights agencies
must act quickly to stop these violations. The media, workers' organizations, the
commercial sector, healthcare providers, civil society organizations, and community,
religious, and political leaders all have significant responsibilities to play. Human rights
are universal and cannot be violated against any group, including LGBTI people, based
on cultural, religious, or moral practises, beliefs, or social attitudes.”110

The LGBTQ+ community is a victim of sexual offenses and has a large number of people
from their spaces suffering from mental health trauma because of lack of the
representation and protection they face in state laws. In this paper, the countries like Sri
Lanka, Pakistan, China, Japan, South Korea, India, and Thailand have been discussed and
it has been witnessed that a few of them still have a long way to go, they still have laws
that criminalize homosexuality and phrase it as an unnatural offense which is very
inhuman, because the community is present since time immemorial and has its root in the
culture of each country.

The violence against them is happening because people witness them as a weaker section
of society and they have no protection against atrocities happening against them, they
take advantage of this situation and violate their rights, violating their basic right to live
and earn.

Asian States are required to take steps ahead now to protect the LGBTQ+ community in
their countries and should recognize their rights to protect themselves against sexual
offenses which will help them to avail protection against wrongfully getting incurable
diseases.

Criminal law should be gender neutral as in the progressing world there are 75+ gender to
which people can identify and no one can pre-assume one person’s gender on the basis of
their biological sex. It is a choice of a person to identify and not to identify according to
their biological sex.

110
Id, note 109

81
By ignoring the fact that LGBTQ+ persons too can be rape victims or prey to assault, and
by not having gender-neutral rape laws, we are denying them the right to equal protection
before the law and the right to privacy and various other fundamental rights. If not now
then whether there will ever be a right time to make rape and its punishment under
criminal laws “gender-neutral”

CHAPTER 4. POSITION AND REPRESENTATION OF LGBTQ COMMUNITY

PEOPLE IN THE EMPLOYMENT SECTOR

4.1. INTRODUCTION

The LGBTQ+ community may encounter employment discrimination based on sexual

orientation or gender identity, as well as discomfort and animosity from having to tolerate
improper questioning and exclusion. A non-inclusive workplace may cause individuals to
conceal their sexual orientation and identity, resulting in poorer self-esteem, stress, and
lower productivity, ultimately affecting their career advancement. The overall under-
representation of the LGBTQ+ population in the workforce exacerbates anxiety and
isolation.

Including the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, and

other diverse sexual orientations and gender identities) community in the workplace is
important. Embracing diversity and promoting equality is a fundamental aspect of human
rights. LGBTQ+ individuals have the right to be treated with respect and dignity,
regardless of their sexual orientation or gender identity. Inclusive workplaces create an
environment where all employees can thrive and contribute their best. By fostering an
inclusive environment, organizations can attract a diverse pool of talent from the
LGBTQ+ community. This can lead to a wider range of perspectives, experiences, and
skills within the workforce, which can enhance creativity, innovation, and problem-
solving. Inclusive workplaces also tend to have higher employee satisfaction,
engagement, and retention rates. Embracing LGBTQ+ inclusion can positively impact a
company's reputation and brand image. By demonstrating a commitment to diversity and
inclusivity, organizations can attract a larger customer base, including LGBTQ+
consumers who prefer to support inclusive businesses. This can lead to increased market
reach and financial success.

Inclusive workplaces foster a sense of belonging and acceptance, promoting the well-
being of LGBTQ+ employees. When individuals feel safe and supported at work, they

82
can focus on their tasks, perform better, and maintain good mental health. In contrast,
exclusionary or discriminatory environments can lead to stress, anxiety, decreased
productivity, and higher employee turnover.

The LGBTQ+ community may encounter employment discrimination based on sexual

orientation or gender identity, as well as discomfort and animosity from having to tolerate
improper questioning and exclusion. A non-inclusive workplace may cause individuals to
conceal their sexual orientation and identity, resulting in poorer self-esteem, stress, and
lower productivity, ultimately affecting their career advancement. The overall under-
representation of the LGBTQ+ population in the workforce exacerbates anxiety and
isolation.

Following that, businesses should consider how to implement true inclusion in workforce
acquisition, retention, and career advancement decisions. Finally, visible organizational
support and encouraging employees to exhibit such support in workplace forums and
meetings through campaigns. This will encourage solidarity and contribute significantly
to the creation of a truly diverse and inclusive workplace.

Companies are rapidly employing more diverse talent pools and changing benefit plans to
make them more inclusive, and we expect this trend to continue even beyond the
epidemic since millennials seek an organization that is inclusive in all aspects.

4.2. AN ANALYSIS OF THE LGBTQ COMMUNITY IN THE EMPLOYMENT

SECTOR

LGBTIQ+ people experience harassment, violence, and discrimination around the world
because of their sexual orientation, gender identity, gender expression, and sex
characteristics. Torture and assassination are examples, as are abuse and bullying.
Prejudice and mistreatment can be found in a variety of settings around the world,
including the workplace.

LGBTIQ+ employees experience prejudice at all stages of the working process, including
from coworkers, managers, clients, and customers. Online abuse is also becoming more
common. The prevalence of LGBTIQ+ discrimination across nations and cultures

83
supports the critical need for locally appropriate solutions to provide equitable
opportunities and treatment for LGBTIQ+ people at work.111

Ensure that diversity, equality, and inclusion activities include those who are lesbian, gay,
bisexual, transgender, and queer, and other sexual or gender identities (LGBTQ+) in
today's workplace. Employers who have inclusive practices for LGBTQ+ people receive
the support and respect of not only that community, but also other minority groups who
see the efforts as an indicator of a more inclusive work environment.

A documented policy is insufficient. Even if a person works in a workplace with internal

regulations that protect LGBTQ+ employees, the culture of the organization may prevent
employees from bringing their complete self to work. According to a survey conducted
by LeanIn.org and McKinsey & Co., LGBTQ+ women are more than twice as likely as
straight, cisgender women to feel they cannot talk about themselves or their lives outside
of work. According to the same survey, LGBTQ+ women who are open about their
sexual orientation at work are happier, value their workplaces more, and plan to stay with
their present employer longer than LGBTQ+ women who are not open about their sexual
orientation or gender identity. 112

The cost of stigma and exclusion conceptual model is based on health economics,
psychology research on minority stress, and economic models of discrimination and the
family. Economics has shown that such treatment lessens the economic contributions of
LGBT individuals, both directly through reduced employment, underemployment, and
productivity, as well as indirectly through behavioural feedback loops that weaken both
private and public investments in human capital and health. LGBT individuals are more
likely to live in poverty since lower wages and unemployment are related to poverty. (ref
fig 2)

111
UN- ILO, “Inclusion of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) persons in
the world of work: A learning guide”, October 2022.
112
LeanIn.org and McKinsey, Women in the Workplace 2019

84
 Fig10: https://www.weforum.org/agenda/2022/07/active-allyship-support-lgbtq-

employees/?DAG=3&gclid=CjwKCAjwp6CkBhB_EiwAlQVyxUgjdEzJMYp_IhzNhLK76woPG0d9 -y4ptGyue0aouHBQHPXJ-
3nR5BoCLz8QAvD_BwE

Due to lack of the data, it has been observed that there is no sufficient data available on
the workforce representation of LGBTQ+ community. But there have been guidelines
provided by the companies on inclusion of the community in work places.

LGBT+ Inclusion @ Work 2022 Deloitte: A Global Outlook: A Global Outlook poll
attempts to better understand the workplace realities of LGBT+ employees. When it
comes to LGBT+ inclusion in the workplace, the pulse survey reveals key practices that
support LGBT+ inclusion at work, impediments to inclusion, and the necessity of a fully
inclusive 'everyday' culture.113

LGBTQ+ inclusion: Supporting diversity of sexual orientation and gender identity at

KPMG

FIG11: https://kpmg.com/xx/en/home/insights/2022/05/lbgtq-inclusion.html

113
LGBT+ Inclusion @ Work 2022: A Global Outlook, available at:
https://www.deloitte.com/global/en/about/people/social-responsibility/lgbt-at-work.html

85
It is crucial to include the LGBTQ+ community in the workplace for a variety of reasons.
First and foremost, fostering an inclusive work environment is not only a matter of social
justice and equality, but it also has tangible benefits for both employees and
organizations. By embracing diversity and providing a safe space for LGBTQ+
individuals, companies can tap into a wealth of unique perspectives, experiences, and
talents that can drive innovation, creativity, and problem-solving. Additionally, creating
an LGBTQ+-inclusive workplace cultivates a sense of belonging and psychological
safety, leading to higher employee engagement, satisfaction, and retention.

Furthermore, including the LGBTQ+ community in the workplace aligns with ethical and
legal principles that advocate for equal rights and protections for all individuals,
regardless of their sexual orientation or gender identity. Discrimination and exclusion
based on someone's LGBTQ+ status not only perpetuate inequality but also impede
professional growth and limit opportunities for individuals who should be evaluated
solely on their merit and abilities.

By actively supporting and including LGBTQ+ employees, companies send a powerful

message to their workforce, clients, and stakeholders. They demonstrate a commitment to
equality, fairness, and social progress, enhancing their reputation and brand image. In
today's increasingly socially conscious society, consumers and investors are more likely
to support companies that prioritize diversity, equity, and inclusion, which can positively
impact a company's bottom line.

In addition, an LGBTQ+-inclusive workplace can attract and retain top talent. LGBTQ+
individuals, like everyone else, seek environments where they can be their authentic
selves without fear of discrimination or harassment. When potential employees perceive a
company as inclusive and accepting, they are more likely to pursue employment
opportunities with that organization. Moreover, inclusive policies and practices can help
retain diverse talent by reducing turnover rates and creating a positive work culture where
individuals feel valued and supported.

Not only does inclusion benefit individual employees and organizations, but it also
contributes to a broader societal transformation. When companies champion LGBTQ+
inclusion, they become agents of change, challenging harmful stereotypes and societal
biases. By actively promoting diversity and advocating for LGBTQ+ rights, organizations
can help shift societal norms and foster acceptance, ultimately contributing to a more

86
equitable and inclusive society as a whole. However, it is essential to note that creating an
LGBTQ+-inclusive workplace is not a one-time effort or a box-ticking exercise. It
requires ongoing commitment, education, and engagement from all levels of the
organization. Companies should develop and implement comprehensive diversity and
inclusion strategies that encompass policies, training programs, employee resource
groups, and transparent reporting mechanisms to ensure accountability and progress.

In conclusion, including the LGBTQ+ community in the workplace is not only morally
and legally imperative, but it also brings numerous benefits to organizations and society
as a whole. By embracing diversity and creating an inclusive environment, companies can
harness the power of diverse perspectives, attract and retain top talent, enhance their
reputation, and contribute to a more equitable society. It is time for businesses to
recognize the importance of LGBTQ+ inclusion and actively work towards building
workplaces where everyone can thrive, regardless of their sexual orientation or gender
identity.

CHAPTER 5: STEP TAKEN TO INCLUDE LGBTQ+ COMMUNITY: A

GLOBAL VIEW

This chapter will have an analysis of the international organization and their policies that
how they are moving forward keeping the LGBTQ community on their agenda. How
international organizations are including this community in their policies and the need to
create policies and treaties for the betterment of their economic growth.

This chapter will also critically analyze the current United Nations Sustainable
Development Goals, which focus on gender equality and sustainable development & how
they include the community or not.

The United Nations and international treaties play a crucial role in promoting and
protecting the rights of the LGBTQI+ community around the world. The UN is
committed to upholding human rights for all individuals, regardless of their sexual
orientation or gender identity. The Universal Declaration of Human Rights, adopted by
the UN General Assembly in 1948, proclaims that all human beings are born free and
equal in dignity and rights. Protecting the rights of LGBTQ+ individuals is consistent
with this principle. The UN advocates for the elimination of discrimination in all its
forms. LGBTQ+ individuals have historically faced significant discrimination and
marginalization, including denial of basic rights, violence, and social exclusion. By

87
working to protect the LGBTQ+ community, the UN aims to combat discrimination and
promote equality.

Protecting the LGBTQ+ community aligns with broader goals of social justice and
equality. LGBTQ+ individuals have the right to live authentically without fear of
violence, discrimination, or persecution. By advocating for their rights, the UN aims to
create a more inclusive and equitable society for all. The UN develops and promotes
international standards and guidelines on human rights, including those related to
LGBTQ+ rights. Through mechanisms such as the Universal Periodic Review, the UN
monitors the human rights situation in member states and encourages governments to
uphold the rights of LGBTQ+ individuals.

LGBTQ+ rights are a global issue. Discrimination and persecution of LGBTQ+

individuals occur in various countries around the world. The UN provides a platform for
international dialogue, cooperation, and coordination to address these issues effectively
and promote respect for LGBTQ+ rights worldwide.

Ensuring economic inclusion for the LGBTQ+ community is crucial for fostering
sustainable development and reducing inequalities. Discrimination, stigma, and
marginalization often result in economic disparities, such as limited job opportunities,
wage gaps, and barriers to accessing financial services. By addressing these issues, the
UN promotes equal economic opportunities and strives for inclusive economic growth.
LGBTQ+ individuals are disproportionately affected by poverty due to discrimination
and social exclusion. Poverty reduction efforts must be inclusive and address the specific
needs of marginalized groups, including the LGBTQ+ community. The UN's
commitment to eradicating poverty globally necessitates addressing the economic
challenges faced by LGBTQ+ individuals. Protecting the economic rights of the
LGBTQ+ community empowers individuals to participate fully in society and contribute
to economic growth. By advocating for inclusive policies and legal protections, the UN
aims to create an enabling environment where LGBTQ+ individuals can thrive
economically, start businesses, and pursue economic opportunities without fear of
discrimination.

LGBTQ+ individuals often bring unique perspectives, skills, and innovative ideas to
entrepreneurship and business. Encouraging and supporting LGBTQ+ entrepreneurs
contributes to economic growth, job creation, and innovation. The UN recognizes the

88
potential economic benefits of fostering an inclusive environment that allows LGBTQ+
individuals to fully participate in entrepreneurial activities.

The UN encourages businesses to uphold human rights, including LGBTQ+ rights,

through corporate social responsibility (CSR) initiatives. By promoting non-
discrimination policies, inclusive workplaces, and diversity and inclusion practices, the
UN works with the private sector to ensure that LGBTQ+ individuals can access
employment opportunities, receive fair treatment, and contribute to economic
development. The UN's 2030 Agenda for Sustainable Development, with its 17 SDGs,
recognizes the importance of leaving no one behind. Inclusive economic growth and the
protection of the rights of marginalized groups, including the LGBTQ+ community, are
integral to achieving the SDGs. By addressing the economic dimensions of LGBTQ+
rights, the UN contributes to the overall agenda of sustainable development.114

5.1. LGBTQ+ COMMUNITY IN INTERNATIONAL DOMAIN: A VIEWPOINT

OF ECONOMIC GROWTH

Economic growth of the LGBTQ+ community in the international domain is a must.

United Nations plays an important role in creating a safe platform for everyone around
the world. Abiding by the principle of the UN charter, it is a duty of the UN to protect
human rights and make laws which the member countries shall abide those laws or sign
treaties in order to protect the human rights and basic fundamental rights of its citizens
and all the community without any discrimination based on race, place of birth, religion,
identity, or sexual orientation.

When we talk about economic growth, it not only talks about the right to earn and have
money, but it also includes the right to earn with respect, to have equal opportunity in all
spaces of work, and to educate themselves to build their career. The LGBTQ+ community
has been the victim of discrimination, all kinds of stereotypes, and prejudice but as the
world is developing people have started accepting them for their orientation, now the
problem of their economic growth is a big question as they still have a long to go to have
a respectful profession where they can earn with respect, educate themselves and build
their career.

114
UN SDG goal, 2030 available at: https://www.cdp.net/en/policy/program-areas/sustainable-
development-goals?cid=1464067157&adgpid=139053719462&itemid=&targid=kwd-
6470749104&mt=b&loc=9061654&ntwk=g&dev=c&dmod=&adp=&gclid=CjwKCAjwvpCkBhB4EiwAujULMh
ja_coU8H_HN-x5a26w7rbFm59TjONa_SHUcPECAw1t4ZjFSgwhmBoCZ_EQAvD_BwE

89
The economic growth of the LGBTQ+ community in the international domain is essential
for the UN, to promote economic growth for the LGBTQ+ community and help to create
a more inclusive and equitable society. Economic empowerment allows LGBTQ+
individuals to participate fully in the economy, access better job opportunities, and
contribute to the overall prosperity of their communities. Supporting the economic
growth of the LGBTQ+ community aligns with the principles of human rights and social
progress. By enabling LGBTQ+ individuals to thrive economically, we can work towards
dismantling systemic barriers and prejudices that have historically marginalized this
community.

Economic growth relies on harnessing the full potential of a nation's human capital. By
providing equal opportunities and fostering an inclusive environment, countries can tap
into the diverse talents, skills, and perspectives of LGBTQ+ individuals. This inclusivity
can lead to greater innovation, creativity, and competitiveness on a global scale. The
economic growth of the LGBTQ+ community can have positive ripple effects on the
wider economy. As LGBTQ+ individuals gain access to better employment opportunities
and higher incomes, they have increased purchasing power, which can drive consumer
spending and stimulate economic growth. Additionally, LGBTQ+ entrepreneurs and
businesses can contribute to job creation and innovation.

Countries that embrace LGBTQ+ rights and create an inclusive environment tend to
attract more tourists and foreign investments. LGBTQ+ travelers often seek destinations
that are LGBTQ+ friendly, and businesses that are inclusive can tap into this lucrative
market. Furthermore, countries that promote LGBTQ+ rights are seen as progressive and
are more likely to attract international talent and investments. It is important to note that
achieving economic growth for the LGBTQ+ community requires more than mere
tokenism. Governments, businesses, and society at large should actively work to remove
discriminatory practices, provide equal opportunities, and create a safe and inclusive
environment that enables LGBTQ+ individuals to thrive economically.

LGBTI persons are marginalized, making them more susceptible to illness, including HIV
infection. Yet they frequently receive care refusal, discriminatory attitudes, and
pathologizing in medical and other contexts. LGBTI people's social and economic

90
marginalization is sustained by the absence of LGBTI persons from the development,
implementation, and oversight of laws and policies that affect them. 115

On this International Youth Day, we call on States to swiftly take steps to prevent and
eradicate this scourge because we are gravely concerned about the plight of young people
who experience homelessness every day. We issue this admonition while also being
cognizant that efforts to prevent and eventually end homelessness among LGTB young
people must address the problems of discrimination, criminalization, and stigma based on
sexual orientation and gender identity. Lesbian, gay, bisexual, transgender, and gender
nonconforming (LGBT) youth around the world experience socioeconomic exclusion,
including from within their own homes and communities, as a result of religious and
cultural intolerance that may include sexual and other forms of violence. Additionally,
family disapproval and punishment can force them to leave home, making them more
vulnerable to additional violence and discrimination, which is exacerbated by their age
and economic dependence. This explains why LGBT kids are disproportionately
represented in homeless groups and why, after becoming homeless, they face additional
discrimination.116

Homelessness may also develop as a result of other types of denial of fundamental human
rights. Many LGBT youth experience bullying at school, which causes higher-than-
average dropout rates and has negative long-term effects on their life goals. Youth who
identify as LGBT are less likely to have the education and skills necessary to find
employment and achieve financial security, which, in turn, impairs their ability to locate
suitable housing. The options available to LGBT kids in some situations to support
themselves are highly constrained and occasionally only include unofficial activities like
sex work or illegal activities.

One recent study found that nearly two-thirds of LGBT youth who were homeless had
struggled with mental health issues, and studies suggest they are more likely to report
depression, bipolar disorder, and suicidal ideation and attempts. The impact of such a

115
UN Secretary-General, Report on socio-cultural and economic inclusion of LGBT people, A/74/181, (17
July 2019)
116
UN OHCHR, The right to housing of LGBT youth: an urgent task in the SDG agenda setting, 09 August
2019

91
severe situation of exclusion cannot be understated. Additionally, they are more
vulnerable to alcohol and drug abuse and have fewer access to healthcare. 117

States have an immediate duty to properly address homelessness in conformity with

international human rights law and the Sustainable Development Goals. In order to
eradicate HIV by 2030, they must also work quickly to address its underlying structural
causes as a matter of priority. Within that framework, the federal, state, and municipal
governments are required to take steps to prevent LGBT children from becoming
homeless, ensure that LGBT individuals are included in housing policies and programs,
and provide for the needs of LGBT youth.118

In order to effectively prevent and reduce homelessness, all laws and regulations that
discriminate against the LGBT community must be changed. When sexual orientation
and gender identity are criminalized, families, social groups, and communities are more
likely to accept social exclusion, stigmatization, discrimination, or violence against
LGBT youth. This includes situations where LGBT people want to rent or buy a home
but are turned down by discriminatory landlords, real estate agents, and financial
institutions. All people should be specifically protected by nondiscrimination laws against
violence and discrimination based on gender identity and sexual orientation. Actors who
breach the right to sufficient housing as a result of discrimination based on sexual
orientation and gender identity should be held accountable. The housing status itself
should be a forbidden basis for discrimination. To effectively address the root causes of
homelessness, the State must cultivate a culture of diversity, promote equality and non-
discrimination on the basis of sexual orientation and gender identity in educational
settings, investigate all incidents of violence and discrimination against LGBT youth, and
hold offenders accountable.

“States should also make sure that shelters are sufficiently accessible, including to people
living in rural regions and squatter communities, so that LGBT kids can be housed there
in safety and security. Any choice that causes someone to be homeless must be viewed as
unacceptable and against human rights. Outreach efforts should be made to meet the

117
“Ms. Leilani Farha, Human Rights Watch Submission to the Special Rapporteur on the Right to
Adequate Housing, Human Rights Watch, October 28, 2015”
118
“The Universal Declaration on Human Rights, & The International Covenant on Economic, Social and
Cultural Rights This right is found in Article 25 (UDHR); Article 11(ICESCR)”

92
health care requirements of homeless adolescents, including providing them with access
to gender-affirming care for Trans youth and safe sex education and materials.”119

5.2. INCLUSION IN SPACES: TREATIES, & CONVENTIONS OF UNITED

NATIONS

Resolutions and joint statements in the UNHRC and General Assembly, as well as
attention to the expert-led human rights mechanisms (such as the UN Treaty Bodies and
Special Procedures), as well as discussions by UN Agencies, have all been part of
discussions of LGBT rights at the UN.

Before 1994, when the Toonen v. Australia120 case was successfully resolved by the UN
Human Rights Committee, the political entities of the United Nations had not debated
LGBT rights (relating to equality regardless of sexual orientation or gender identity) since
the organization's inception in 1945.

Brazil submitted a resolution outlawing discrimination based on sexual orientation to the

UN Commission on Human Rights in April 2003. But in the subsequent talks, the
Commission decided to put off the resolution's discussion until 2004.

When Norway, speaking on behalf of 54 states, made a joint statement before the
Commission on Human Rights regarding abuses of human rights based on sexual
orientation and gender identity in December 2006, the conversation was widened to
include gender identity. In December 2008, Argentina delivered a joint declaration on
behalf of 66 states to the General Assembly. The Arab League and the Organization of
Islamic Cooperation supported a statement against LGBT rights in response to the
General Assembly's 2008 statement in favor of LGBT rights. Neither of the two
statements has been formally accepted by the General Assembly and both are still
available for signature.

In order to follow up on and implement the Vienna Declaration and Program of Action,
South Africa led a resolution at the UNHRC on June 17, 2011, requesting that the
Office of the High Commissioner for Human Rights (OHCHR) draught a report
"documenting discriminatory laws and practices and acts of violence against
individuals based on their sexual orientation and gender identity". With 23 votes in

119
Id, note 118
120
Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).

93
support, 19 votes against, and 3 abstentions, the motion was approved. It was the first of
its kind, and "historic" was used to describe it. 121

The report, which was released in December 2011, detailed human rights abuses related
to sexual orientation and gender identity, such as discrimination, hate crimes, and
criminalization of homosexuality. In order to ensure the protection of LGBT people's
rights, High Commissioner Navi Pillay called for fair consent ages, thorough laws
prohibiting discrimination based on sexual orientation, prompt investigation and
documentation of incidents of hate crimes, the repeal of laws criminalizing
homosexuality, and other measures. The text of the UNHRC report is dated November
17, 2011. The United Nations (as an employer) declared in July 2014 that it would
provide equal benefits to workers who joined same-sex unions in places where they were
permitted.

Brazil, Chile, Colombia, and Uruguay took the lead on a follow-up resolution at the
UNHRC in September 2014. With a larger voting margin, this second resolution on
"human rights, sexual orientation, and gender identity" was approved, demonstrating a
growing tendency among member states to favor addressing these issues at the global
level. It urged that the UN High Commissioner for Human Rights update the 2011 report
"with a view to sharing good practices and ways to overcome violence and
discrimination, in the application of existing international human rights law and
standards". In June 2015, the update was delivered to the Human Rights Council.

As of 2023, 34 UN member states will allow and recognize same-sex marriage.

Five Standards of Conduct have been created by the UN Human Rights Office to help
businesses combat prejudice against LGBTI (lesbian, gay, bisexual, transgender, and
intersex) persons. The UN Guiding Principles on Business and Human Rights serve as the
foundation for the Standards, which were developed in partnership with the Institute for
Human Rights and Business. They also incorporate feedback from hundreds of businesses
operating in a variety of industries.

121
Jordans, Frank, “U.N. Gay Rights Protection Resolution Passes, Hailed As 'Historic Moment” June 17,
2011

94
Why Standards of Conduct?

The greatest corporate sustainability program in the world, the UN Global Compact, was
introduced by the United Nations in 2000. A set of guiding principles on business and
human rights that assert that every enterprise has a responsibility to respect human rights
and rectify any negative human rights impacts of its operations were endorsed by the UN
Human Rights Council in 2011. Businesses have a critical opportunity to support
diversity and advance an egalitarian and respectful culture. Additionally, many businesses
have discovered that doing so has financial advantages, such as enhancing decision-
making, attracting and retaining talent, and fostering investor and customer loyalty. 122

Numerous businesses have already taken action to put their commitment to LGBTI
inclusion into practice as awareness of the potential role that business can play in this area
grows. However, most people are still only now starting to deal with these problems, and
there is still a lack of best practices and a body of knowledge. The Standards of Conduct
are meant to quicken change's pace. They outline the steps businesses can and need to do
to guarantee equitable treatment at work and combat discrimination in larger
communities.

Fig12

Source: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.unfe.org/wp-content/uploads/2017/09/UN-Standards-of-Conduct-
Summary.pdf

UNHRC,Sahil Tripathi, Charles Radcliffe, Fabrice Houdart, “Tackling Discrimination against Lesbian,
122

Gay, Bi, Trans, & Intersex People STANDARDS OF CONDUCT FOR BUSINESS” , September 2017

95
What Do The Standards Say?

o To ensure they respect the human rights of LGBTI persons, businesses should
create rules, practice due diligence, and address negative effects. Businesses
should set up systems to track and share information on how they adhere to
human rights norms.
o Businesses should take measures to prevent discrimination in their hiring
practices, employment policies, working conditions, benefits, respect for
individual privacy, and handling of harassment.
o Businesses should foster an environment that values diversity and inclusion so
that LGBTI employees can work with respect and freedom from discrimination
o Businesses should not discriminate against LGBTI suppliers, distributors, or
clients, and they should use their clout to stop their business partners from
engaging in discrimination and associated misconduct.
o Businesses are urged to make a contribution to halting violations of human rights
in the nations where they conduct business. In order to determine what activities
they might take, including public advocacy, group action, social discourse,
support for LGBTI organizations, and opposing abusive government policies, they
should first speak with the local populations.

International Human Rights Law and Sexual Orientation & Gender Identity, under this
fact sheet, the UNHRC, has outlined the duties of states they are supposed to perform in
order to protect the LGBTQIA+ community.

It is important to protect people from homophobic and transphobic violence, and to not
put up with rude, inhumane, or demeaning conduct. Establish protocols for reporting acts
of violence driven by hatred, successfully identifying and pursuing those involved, and
bringing them to justice. Adopt legislation to prevent abuse of individuals because of
their sexual orientation. Establish a system for victims to seek remedy, as well as
oversight and training for detention facilities. Additionally, asylum rules and processes
should recognise that discrimination based on sexual orientation may be a valid cause for
applying for refuge. All laws that criminalize homosexuality should be repealed,
especially those that also punish consenting adults having private sex in public. No one
should be imprisoned or arrested based on their gender identity or sexual orientation, and
no one should be subjected to humiliating medical tests to determine their orientation.

96
Sexual orientation and gender identity are not grounds for discrimination. introduce
legislation that forbids discrimination on the basis of sexual orientation and gender
identity. Offer education and training to stop stigmatizing and discriminating against
LGBT and intersex people. Ensure that any limitations on these rights, including those
that seem to be justified and fair in scope, are not biased towards a person's sexual
orientation or gender identity. Protect the rights of all LGBT persons to peacefully
assemble, associate, and express themselves.123

CHAPTER 6: SUGGESTION AND CONCLUSION

Inclusion of economic growth and addressing the unique challenges faced by LGBTQ+
(lesbian, gay, bisexual, transgender, queer, and other sexual and gender minority)
communities is a duty of the nation as the world is progressing and a nation should
enhance their policies, and laws to include LGBTIA+ community in their dialogues. By
promoting equal opportunities, reducing discrimination, and providing support for
entrepreneurship and economic empowerment, this policy seeks to create an environment
that encourages the economic well-being and prosperity of LGBTQ+ individuals.

 Legal Protections and Non-Discrimination: Implement and enforce

comprehensive anti-discrimination laws that protect LGBTQ+ individuals from
discrimination in employment, housing, education, and public accommodations.
Establish clear mechanisms for reporting and addressing complaints of
discrimination, ensuring swift and effective resolutions. Prohibit discriminatory
practices in public and private sectors, including hiring, promotion, and
compensation, and monitor compliance with regulations.
 Financial Inclusion and Access to Credit: Collaborate with financial institutions
to develop and implement inclusive policies that provide LGBTQ+ individuals
fair access to credit, loans, and financial services. Encourage the creation of
financial literacy programs tailored to the needs of LGBTQ+ communities,
addressing specific challenges such as same-sex partnerships, non-traditional
family structures, and gender transition. Establish initiatives to support affordable
housing programs specifically targeted at LGBTQ+ individuals and families.
 Entrepreneurship and Business Support: Foster an environment conducive to
LGBTQ+ entrepreneurship by providing mentorship programs, training, and

123
UN- Free & Equal, “Fact sheet International Human Rights Law and Sexual Orientation & Gender
Identity”

97
 networking opportunities to support LGBTQ+-owned businesses. Promote
inclusive procurement policies that encourage the inclusion of LGBTQ+-owned
businesses in government contracts and private sector supply chains. Develop
grant and loan programs specifically designed to support LGBTQ+ entrepreneurs
and facilitate the growth of LGBTQ+ small businesses.

Recognizing the importance of inclusion, equality, and justice, this policy seeks to
ensure that the criminal law system provides appropriate support, protection, and legal
remedies to all individuals, regardless of their sexual orientation, gender identity, or
expression. By implementing this policy, we strive to create an inclusive and just
society that safeguards the rights and dignity of all its members.

 Definitions and Scope: Sexual assault refers to any non-consensual sexual

act, including but not limited to, penetration, touching, groping, or other forms
of sexual contact, perpetrated against an individual without their explicit
consent. Rape refers to non-consensual sexual penetration, regardless of the
gender of the victim or the perpetrator. States should include an LGBTQ+
community encompassing lesbian, gay, bisexual, transgender, queer, and other
diverse sexual orientations, gender identities, and gender expression by
expanding the definition and scope of these offenses.
 Sensitivity and Awareness Training & Reporting Mechanisms: Law
enforcement agencies, legal professionals, and personnel involved in the
criminal justice system should receive comprehensive sensitivity and
awareness training on issues related to sexual assault and rape against the
LGBTQ+ community. The training should include topics such as
understanding different sexual orientations and gender identities, recognizing
the unique challenges faced by LGBTQ+ individuals, and fostering a non-
discriminatory and inclusive approach in investigations, prosecutions, and
court proceedings. Establish and promote accessible and confidential reporting
mechanisms that encourage victims of sexual assault and rape within the
LGBTQ+ community to come forward without fear of discrimination,
judgment, or reprisal. Ensure that these reporting mechanisms are sensitive to
the unique experiences and needs of LGBTQ+ individuals, respecting their
chosen names, pronouns, and gender identities throughout the process.

98
  Investigation and Prosecution: Train law enforcement officials and
investigators on LGBTQ+ cultural competence, addressing biases and
assumptions that might hinder objective and respectful investigations.
Prosecute cases involving sexual assault and rape against the LGBTQ+
community with due diligence, providing necessary support to victims
throughout the legal process.
 Legal Protection and Support: Advocate for and enforce laws that explicitly
recognize sexual assault and rape committed against individuals from the
LGBTQ+ community as hate crimes, carrying appropriate penalties and legal
consequences. Collaborate with LGBTQ+ organizations, community groups,
and activists to develop and implement programs that raise awareness about
sexual assault, consent, healthy relationships, and available support services
within the LGBTQ+ community.

In conclusion, this dissertation has shed light on the economic challenges faced by the
LGBTQ+ community and the need for inclusive economic environments that promote
equality and address existing disparities. Despite advancements in recognizing LGBTQ+
rights in different countries, discrimination and inequality persist, hindering the economic
well-being of this community and impeding social progress. The representation of the
LGBTQ+ community in criminal laws has also been explored, highlighting the barriers
they face and the necessity for gender-neutral laws to ensure equal access to economic
opportunities.

The hypothesis put forward in this dissertation suggests that the LGBTQ+ community has
always existed throughout history, but their visibility and recognition in society have
increased in recent years. While significant strides have been made in granting rights and
protections, their effective enforcement remains limited, presenting ongoing challenges to
achieving true equality. This emphasizes the importance of continued efforts to create an
inclusive society that respects and upholds the economic rights of all individuals,
regardless of their sexual orientation or gender identity.

Furthermore, the hypothesis posits that certain jurisdictions in Asia provide more
extensive protections and rights for the LGBTQ+ community compared to India. This
indicates that there are varying degrees of progress and legal frameworks in different
regions, and it underscores the need for comprehensive legislative reforms and social

99
initiatives to ensure equal treatment and economic opportunities for LGBTQ+ individuals
worldwide. However, despite this legal advancement, societal attitudes and acceptance of
the LGBTQ+ community in India vary considerably. Discrimination, social stigma, and
violence against LGBTQ+ individuals still persist in many parts of the country. LGBTQ+
rights activists continue to advocate for comprehensive anti-discrimination laws, marriage
equality, and other measures to ensure equal rights and protections. Among the countries
discussed above, it has been found that India is a step ahead of China, Japan, South
Korea, Sri Lanka, and Pakistan in protecting fundamental rights and representing the
LGBTIA+ community through its legal system. Thailand, whereas still is one of the
countries which is progressing ahead of all in accepting and giving a platform to the
community to present themselves. During this doctrinal research, it has been seen that
these countries are progressing in one way or another to protect the LGBTQ+ community
and become more accepting.

In conclusion, this dissertation highlights the urgency of addressing economic disparities

faced by the LGBTQ+ community, advocating for criminal gender-neutral laws, and
fostering an inclusive economic environment. It underscores the significance of ongoing
efforts to advance LGBTQ+ rights, both nationally and internationally, in order to
achieve true equality and social justice for all individuals, irrespective of their sexual
orientation or gender identity.

100
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https://asialaw.tripod.com/thai-criminal-law.html (last visited 08/06/23)
6. Human Rights Watch, “Sri Lanka Events of 2015”, https://www.hrw.org/world-
report/2016/country-chapters/sri-lanka (last visited 9 June 2023)

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