DISSERTATION ON

SOCIO-LEGAL STUDY OF THE RIGHTS OF THE LGBTQ COMMUNITY WITH

COMPARISON OF INDIAN PERSPECTIVE TO INTERNATIONAL REGIME

Dissertation
Submitted to University School of Law and Legal Studies,
GGSIPU in partial fulfillment of the requirements
of the degree of B.B.A. LL. B. (Integrated)

SUBMITTED BY:
MANSI
40316503517

UNDER THE SUPERVISION OF

DR. NEELU MEHRA
ASSISTANT PROFESSOR OF LAW

UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES,

GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY,
SECTOR- 16 C, DWARKA, NEW DELHI-110078
2022

i
 DECLARATION

I, do hereby, declare that the dissertation titled ‘SOCIO-LEGAL STUDY OF THE

RIGHTS OF THE LGBTQ COMMUNITY WITH COMPARISON OF INDIAN
PERSPECTIVE TO INTERNATIONAL REGIME’ is an original work carried out by
me under the able guidance and supervision of Dr. Neelu Mehra, Asst. Professor of
Law, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha
University, Dwarka and is being submitted to University School of Law and Legal
Studies, Guru Gobind Singh Indraprastha University, Dwarka for the award of
bachelor’s degree in Law. This work has not been submitted either in part or in full for
any other diploma or any degree at any other university. The sources used in the
research work have been duly acknowledged.

Date: __ June 2022 Mansi

(Enrolment No. 40316503517)
Place: Delhi
University School of Law and Legal Studies
Guru Gobind Singh Indraprastha University, Dwarka

ii
 CERTIFICATE

This is to certify that this dissertation titled “SOCIO-LEGAL STUDY OF THE

RIGHTS OF THE LGBTQ COMMUNITY WITH COMPARISON OF INDIAN
PERSPECTIVE TO INTERNATIONAL REGIME”, submitted to University School
of Law and Legal Studies, GGSIPU by Ms. Mansi (Enrolment No. 40316503517), a
student of BBA LLB from University School of Law and Legal Studies, GGSIPU,
Dwarka, New Delhi in partial fulfilment of the requirement for the award of degree of
BBA LLB (Integrated) is a bonafide work carried out under my guidance and
supervision.

Date: __ June 2022

Dr. Neelu Mehra
Asst. Professor
University School of Law and Legal Studies
Guru Gobind Singh Indraprastha University, Delhi

iii
iv
 ACKNOWLEDGMENT

I owe my existence to my family, who made me able enough to join this prestigious
institute and endowed me with their endless blessings and strength to accomplish the
present work without any obstacle and making its completion a memorable experience.

I hereby express my deep sense of gratitude and indebtedness to my research

supervisor, Dr. Neelu Mehra, Assistant Professor, University School of Law and Legal
Studies, GGSIPU, Delhi for her valuable guidance in completion of this dissertation.

I am extremely grateful to Prof. Amar Pal Singh, Dean, University School of Law and
Legal Studies and all the teaching as well as non-teaching staff of the university for
their support over the course of last five of this degree.

I am also grateful to all the people who participated in my study for their kind response
to the questionnaire and for giving me their valuable time. They made the empirical
research of my study possible.

I also thank all my friends who supported and encouraged me till the end of this study.

Mansi
(Enrolment No. 40316503517)

v
 TABLE OF CONTENTS

CHAPTER-1 INTRODUCTION 1
1.1 Introduction 1
1.2 Statement of the Problem 4
1.3 Objective of the Research 4
1.4 Research Questions 5
1.5 Hypotheses 5
1.6 Research Methodology 5
1.7 Scope and Limitation of the Study 6
1.8 Scheme of the Chapters 6
CHAPTER-2 LGBTQ: AN OVERVIEW OF GENERAL TERMS 8
2.1 Introduction 8
2.2 Sex 9
2.3 Gender 9
2.4 Sexuality 9
2.5 Sexual Orientation 9
2.5.1 Homosexual 10
2.5.1.1 Lesbian 11
2.5.1.2 Gay 11
2.5.2 Bisexual 12
2.5.3 Heterosexual 12
2.6 Gender Identity 12
2.6.1 Transgender 13
2.6.2 Genderqueer 13
2.7 Intersexual 15
2.8 LGBT 16
CHAPTER-3 INTERNATIONAL LEGAL POSITION OF LGBT
RIGHTS 17
3.1 Introduction 17

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3.2 History of International Law in relation to LGBT Rights 18
3.3 The Role of United Nations 19
3.4 The Role of the Quasi-Judicial Bodies 20
3.5 International Convention on the Recognition of LGBT Rights &
Guidelines 21
3.6 UDHR 1948 23
3.7 UNICCPR 24
3.8 ICESCR 27
3.9 ECHR 27
3.10 Yogyakarta Principles, 2006 29
3.11 UN Declaration on Sexual Orientation & Gender Identity 29
3.12 Five Core Legal Obligations of States with respect to protecting the
Human Rights of LGBT persons 29
CHAPTER-4 HISTORY & EVOLUTION OF LGBT RIGHTS IN
INDIA 32
4.1 Naz Foundation Case 32
4.2 Koushal Case 33
4.3 NALSA Judgement 33
4.4 Puttaswamy Case 35
4.5 Navtej Singh Johar Case 36
4.6 Transgender Persons (Protection of Rights) Act 2019 37
4.7 Provisions under Human Rights Act 37
CHAPTER-5 IMPACT OF DECRIMINALIZATION OF
HOMOSEXUALITY IN INDIA 40
CHAPTER-6 CRITICAL EVALUATION OF TRANSGENDER
PERSONS (PROTECTION OF RIGHTS) ACT 2019 43
6.1 Background 43
6.2 Issues with the Transgender Persons Act 44
6.2.1 Problematic Definition of Transgender 44
6.2.2 The “Procedure” of Recognition of Transgender Persons 45

vii
6.2.3 Educational and Career Opportunities for Transgender Persons 46
6.2.4 Anti-Discrimination Provisions 47
6.2.5 Offences and Penalties 47
6.2.6 Well-Being of Transgender Minors 48
6.2.7 Schemes for Welfare of Transgender Persons 48
6.2.8 National Council for Transgender Persons 49
6.2.9 Public Sensitization and Awareness 50
CHAPTER-7 EMPIRICAL STUDY ON SOCIETAL ATTITUDE
AND AWARENESS TOWARDS THE LGBTQ COMMUNITY 51
7.1 Introduction 51
7.2 Data Analysis and Interpretation 52
7.3 Conclusion 70
CHAPTER-8 LGBTQ RIGHTS: WHAT NEXT? 71
8.1 Same-sex Marriage 71
8.2 Recognition of same-sex marriage 72
8.3 Adoption 73
8.4 Inheritance Laws 73
CHAPTER-9 CONCLUSION AND SUGGESTIONS 75
9.1 Conclusion 75
9.2 Suggestions 77
APPENDIX (QUESTINNAIRE) 79

viii
 LIST OF ABBREVIATIONS

LGBTQ Lesbian, Gay, Bisexual, Transgender, Queer

LGBT Lesbian, Gay, Bisexual, Transgender

LGB Lesbian, Gay, Bisexual

LGBTI Lesbian, Gay, Bisexual, Transgender, Intersexual

NALSA National Legal Services Authority

UN United Nations

ICD International Classification of Diseases

UNHRC United Nations Human Rights Commission

UNNHRC United Nations National Human Rights Council

EU European Union

ECHR European Court of Human Rights

ICCPR International Covenant on Civil and Political Rights

ICESCR The International Covenant on Economic, Social & Cultural Rights

UDHR Universal Declaration of Human Rights

NHRC National Human Rights Commission

SMA Special Marriage Act

ix
 LIST OF CASES CITED

1. Toonen vs. Australia, Communication No. 488/1992, U.N. Doc

CCPR/C/50/D/488/1992 (1994).
2. Lustig-Prean and Beckett vs, UK, (2000) 29 ECHR 548
3. Naz Foundation Govt. vs. NCT of Delhi, 2009 SCC OnLine Del 1762
4. Suresh Kumar Koushal vs. Naz Foundation, (2014) 1 SCC 1 (India)
5. National Legal Services Authority vs. Union of India, AIR 2014 SC 1863
6. K. S. Puttaswamy vs. Union of India, (2018) 1 SCC 809
7. Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1
8. Arunkumar and Sreeja vs. Inspector-General of Registration and others, (2019)
SCC Online Mad 8779
9. Lata Singh vs. State of Uttar Pradesh, AIR 2006 SC 2522

x
 CHAPTER-1
INTRODUCTION

1.1 INTRODUCTION

The international as well as domestic laws of each country guarantee certain basic
human rights to all residents, citizen or not. We all are born with same dignity and equal
rights and; are free from any kind of discrimination1 or at least this is how it should be.
Recognizing and respecting every person’s human rights is one way to acknowledge
their fundamental worth. Human rights are universal and are same for all irrespective
of any sex, caste or creed.2 People of LGBTQ+ community have the same human rights
as everyone, which also include anti-discrimination right i.e. the right against
discrimination in enjoyment of their basic rights.

LGBTQ+ is an umbrella term, an acronym which stands for ‘Lesbian’, ‘Gay’,

‘Bisexual’, ‘Transgender’, ‘Queer’/ ‘Questioning’ and the ‘+’ (plus) denotes inclusion
of all those people whose gender identity or sexual orientation is not necessarily
covered through first five initials as well as allies i.e. those people who support the
cause even though they don’t identify within the community itself. There are several
other terms such as ‘Rainbow Community’, ‘LGBTQIA’, ‘LGB’, ‘LGBTI’ in use but
the term ‘LGBT’ is used more commonly than the rest.

When it comes to sexual orientation, neither homosexuality nor bisexuality is exclusive

to us homo-sapiens; several animal species have been noticed with such behaviors and
practices. Though obviously, it is only among homo-sapiens that certain beliefs and
traditions about gender and sexuality are biased against the LGBTQ+ and thus,
presenting them as a minority community that needs protection of law. They have been
subjected to discrimination, marginalization and forms of violence for a long time,
which is an ultimate human rights violation.

LGBTQ community has been granted protection and recognition of its basic human
rights in United Kingdom of Great Britain and Northern Ireland (UK), United States of
America (USA), Australia, South Africa, Netherlands etc. but discrimination on the

1
Universal Declaration of Human Rights, available at: https://www.un.org/en/universal
declarationhuman-rights/
2
Supra 1

1
basis of sexual orientation still exists in most of the developing countries. LGBTQ are
still penalized in many nations and on top of that faced with public humiliation and
social exclusion. In several countries, sexual intercourse among consenting adults of
the same sex is an offence punishable with imprisonment or death penalty 3. Most of
such countries enforce sodomy laws, taking a stronger stand against homosexual men
in comparison to homosexual women. Less forms of discrimination are prevalent in
those countries that have enacted anti-discrimination and hate crime legislations for
LGBTQ community though strict implementation of such legislations is still a dream.

In any such society where repression of sexual orientation is successful, lesbian, gay
and bisexual (LGB) individuals adapt their behavior, hide their identity and even
engage themselves in marriages in order to appear “straight” and avoid being caught
due to the social stigma. As a result, such individuals do not identify as LGB, and there
is minimal evidence of direct “harm” inflicted on them by others due to their affiliation
to a particular social group. Laws that criminalize homosexuality have been repeatedly
found in violation of International Human Rights Law. 4

India is a country that has long prided itself on its "unity in diversity" and claims to
respect and protect human rights but the basic ideology behind human rights is that all
humans are equal which would suggest equal treatment, opportunities and laws for all
humans. So, now the question arises whether or not this country really takes pride in
diversity and believes in human rights for all.

India guarantees human rights to all citizens through fundamental rights enshrined
under the Constitution of India specifically Article 14, Article 15 and Article 16 which
confer right to equality and non-discrimination and; Article 21which assures right to
life and protection of a person's dignity, autonomy and privacy. Section 377 of Indian
Penal Code, now amended, was an infringement of the rights to ‘dignity’ and ‘privacy’.
Right to privacy protects a ‘private space in which one can become and remain oneself.
Section 377 IPC before amendment denied LGBT individuals a right of full personhood
which is implicit under Article 21 of the Indian Constitution.

3
Chandini N, A comparative study of rights of lgbt communities a socio legal perspective, available at:
http://hdl.handle.net/10603/351913
4
Universal Declaration of Human Rights, available at: https://www.un.org/en/universal-
declarationhuman-rights/

2
In a 2009 decision5, the Delhi High Court recognized the rights of LGBT community
through its ruling that criminalizing consensual sexual activity in private under Section
377 of the Indian Penal Code is a violation of Articles 14 and 21 of the Indian
Constitution. Since, the judgement was not accepted by Indian society, it was highly
criticized by certain authorities. The Delhi High Court's decision was then overturned
by the Indian Supreme Court in 2014 6. The lower court was excoriated for relying on
International Human Rights Law and comparative foreign law. The apex court chose to
follow Indian examples when it came to the death penalty and marriage, which showed
that India and the West had different moral ideas. The LGBT community was left
disappointed and bereft of any tangible results.

Though in 2018, the Supreme Court of India debated “carnal intercourse that is against
the order of nature” stating that social morality evolves over time and the law must
change to accommodate a changing society. When all of these things were considered
together, the Supreme Court of India came to the conclusion that the decision that was
made in Koushal's case should be reconsidered.

Few laws specifically identify the type of conduct that is prohibited, and this legal
ambiguity allows many states to implement these laws in a discretionary or flexible
manner. It is important to trace the evolution of laws and their impact on society. It is
also necessary to trace the LGBT movements and their impact on the development of
laws for a changing world. To dispel myths about homosexuality, global attitudes
toward homosexuals, bisexuals, and transgender people must be observed. LGBT
activists are concerned that the violation of an entire class of sexual rights will result in
the violation of one's rights to bodily integrity and privacy by law enforcement agencies
and that it will have a negative impact on the health of LGBT people; doctors and
hospitals will not overcome homophobia and will never treat them. It would be the most
serious violation of the right to health. Many LGBT people are infected with HIV/AIDS
and are unable to receive basic treatment.

The Transgender Persons (Protection of Rights) Act, 2019, was widely regarded as a
victory following the judgement of NALSA in 2014, in which the Apex Court of India
declared transgender people to be "Third Gender." It benefited transgender

5
Naz Foundation v. Govt. of NCT of Delhi (2009)160 Delhi Law Times 277
6
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1.

3
communities to some extent, but due to loopholes in the Transgender Persons Act, it is
still not fully acceptable to transgender people. The judicial contributions not only
provide context for these landmark pieces of new legislation, but also offer an intriguing
glimpse into the future, at an important juncture in the history of legal reform. An
overview of the legal history of lesbian and gay relationships would trace the evolution
of laws around the world.

LGBT rights in India have evolved over time, at both the national and state levels. The
Ministry of External Affairs, for instance, included a transgender option in the category
'sex' for passport applications and online visa forms. The Election Commission of India
and UID enrolment forms both provide similar options. State governments in Tamil
Nadu, Kerala, and Karnataka have enacted policies that provide socioeconomic benefits
to transgender people.

The recent developments indicate that India is in fact moving towards equality for
Lesbian, Gay, Bisexual, Transgender (LGBT) community and recognizing the diversity
though the pace of the development cannot be commented upon as of this moment. It
must be compared with the international framework relating to rights of LGBT
community in order to ascertain the pace of the development and to assess what should
be the next step to attain equality in the true sense for the people belonging to LGBT
community.

1.2 STATEMENT OF THE PROBLEM

The topic selected for the dissertation ‘Socio-Legal Study of the Rights of the LGBTQ
Community with Comparison of Indian Perspective to International Regime’ is an
attempt to study the development and to ascertain the current socio-legal position of the
rights of the LGBTQ community in India and that what shall be done in furtherance to
improve the social attitude towards the LGBTQ community through the legal
provisions.

1.3 OBJECTIVES OF THE RESEARCH

1. To explain the concept of different sexual orientations; the meaning and importance
of gender identity specifically with regard to transgender and; various terminologies
linked with these two.

2. To trace the historical development of the LGBT rights in India

4
3. To study the international position of rights of the LGBT community

4. To examine the current socio-legal position of India on the rights of the LGBT
community and assess the same with reference to stance of other countries and the UN

5. To assess the impact of decriminalization of homosexuality in India

6. To evaluate the Transgender Persons (Protection of Rights) Act, 2019

7. To determine societal perception and/or societal attitude towards the LGBT

community and the problem faced by the LGBT community

8. To highlight the need to provide comprehensive legal framework and inclusive

policies for the LGBT community in India

1.4 RESEARCH QUESTIONS

1. Is the current legal position of India regarding the rights of the LGBT community in
compliance with the international framework?

2. Did the judgement holding section 377 unconstitutional had any positive impact?

3. Is the Transgender Persons (Protection of Rights) Act a good legislation, if not, what
are the issues?

4. What shall be the next step to attain equality in the true sense for the people of LGBT
community?

1.5 HYPOTHESES

The following hypotheses are formulated in the light of above questions –

1. There are no special laws for the recognition and protection of rights of LGBT
communities in India to comply with the international framework.
2. The judgement holding section 377 unconstitutional brought up the hopes of
many people and lead to slight increase in acceptance of the LGBTQ in India
but still has long ways to go.
3. Transgender Persons (Protection of Rights) Act is not a good legislation. It
contains numerous loopholes which ultimately render it useless in fulfilling the
purpose.

5
1.6 RESEARCH METHODOLOGY

The researcher intends to utilize doctrinal as well as empirical method to compile the
research. Aid will be sought from both primary as well as secondary resources to
conclude the proposed research. The data sources will include various journals, articles,
reports, international legislations pertaining to the LGBT community.

Empirical research is proposed to be conducted from a sample of interviews. The instant

research will include the analysis of the data collected through questionnaire
administered to people selected through random sampling to gather public opinion of
randomly selected general population to ascertain the societal perception and awareness
towards the LGBT community.

1.7 SCOPE AND LIMITATION OF STUDY

There are many forms and kinds of gender identity and sexual orientation that are
covered are the umbrella term “LGBTQ+” but the scope of this study is limited to
people who recognize as “Lesbian, Gay, Bisexual, Transgender or Transsexual”.

This study contains an empirical research which is limited to merely 93 respondents

since not many people are willing to put forth their opinion on the topic concerned.

1.8 SCHEME OF THE CHAPTERS

This study consists of eight chapters:

Chapter 1- Introduction

The first chapter of the dissertation aims to introduce the readers to the topic of the
study and brief about such concepts which are essential for addressing the issue of
LGBT and; the international as well as Indian developments regarding the LGBT rights
which will be discussed in detail in the subsequent chapters. It also includes research
problem, research objectives, research questions, methodology, scope and limitation of
the study and chapters schema.

Chapter 2- LGBTQ: An overview of general terms

The second chapter deals with the meaning and definition of sexual orientation,
homosexuality, bisexuality, gender identity, transgender and other such terminologies
which cannot be dispensed with while addressing the issue of LGBT rights.

6
Chapter 3- International Legal Position of the LGBT rights

This chapter will be targeted at in-depth study of the evolution of the LGBT rights in
the international sphere. It can mainly be divided into two segments, first historical
background of international human rights and role of UN in recognizing and preserving
LGBT rights and secondly various conferences, covenants and treaties held to
acknowledge LGBT rights.

Chapter 4- History and Evolution of LGBT rights in India

This chapter will focus on tracking the legislative as well as judicial journey of India
pertaining to the rights of the LGBT community.

Chapter 5- Impact of Decriminalization of Homosexuality in India

The decriminalization presented as a ray of hope for the LGBT community and the
changes it brought to the Indian society.

Chapter 6- Critique of the Transgender Persons (Protection of Rights) Act 2019

A critical evaluation of the Transgender Persons (Protection of Rights) Act 2019

highlighting the loopholes and other issues in the legislation.

Chapter 7- Empirical Study on Societal Attitude and Awareness towards the

LGBTQ Community

Collection and analysis of data collected through questionnaire survey to assess the
societal perception, awareness and readiness towards the LGBT community.

Chapter 8- LGBT Rights: What Next?

Emphasis on the need to provide comprehensive legal framework and inclusive policies
for the LGBT community in India. The need for protection of human rights, equal
opportunity laws, domestic partnership rights, right to sexuality, right to privacy,
freedom of expression and equality right to marriage, right to adopt and protection from
violence are discussed to great extent.

Chapter 9- Conclusion and Suggestions

A brief note of findings.

7
 CHAPTER-2

LGBTQ: AN OVERVIEW OF GENERAL TERMS

“Sex is what you are born with, gender is what you recognize and sexuality is what
you discover.”

- Anitha Chettiar 7

2.1 INTRODUCTION

In a world that is constantly attempting to define and create moulds for everyone to fit
into, few are often left befuddled. Few are forced to conform to definitions and
identities that are inconsistent with who they truly are due to the influence of religious
and socio-cultural forces on their livelihoods. In India, where religious and cultural
differences are numerous, there is a shared attitude toward gender and sexuality that is
not in favour of those few who do not fit the ‘mould’.

Sexual orientation is a fundamental component of one's identity as well as an intimate

aspect of one's private life. Since the term ‘homosexuality’, ‘bisexuality’, and
‘transgender’ were coined, the people recognizing themselves as ‘homosexual’,
‘bisexual’ or ‘transgender’ have been regarded as unnatural and incompatible with the
legal norms that govern society and define what is “normal”. It is thus necessary to
examine briefly the evolution of laws governing populations, their impact on societies,
and society’s attitudes toward homosexuals, bisexuals, and transgender people.
However, before delving further into the aforementioned, it would be prudent to first
precisely define who these people are. Because conceptual understanding of the
interrelated and yet independent concepts of sex, gender, sexuality, gender identity and
sexual orientation is essential to any description of the LGBTs, the researcher would
first describe these three terms succinctly so that the understanding of this widely
misconstrued term, LGBT, is clear.

7
Anitha Chettiar, “Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with reference
to Their Health and Harassment by the Police” 5 IJSSH 752 (Sept. 2015) available at:
http://www.ijssh.org/papers/551-W10007.pdf. (The stated line was a comment made by the hijra
respondents of the study undertaken by the said. author.)

8
2.2 SEX:

The term ‘sex’ refers to a person's biological status as either male or female, which is
determined by examining physical characteristics such as “sex chromosomes, gonads,
sex hormones, internal reproductive systems, and external genitalia.”

2.3 GENDER:

Gender, as opposed to sex, is determined by considering “the ways in which individuals

behave, communicate, or perceive about themselves, which are associated with
boys/men and girls/women.”

2.4 SEXUALITY:

There are a few different interpretations that can be given to the word "sexuality." This
term's meaning can be interpreted differently by different people. The most widely
accepted definition of sexuality is "a set of practises or behaviours, a range of feelings
or affects, or a way of classifying people based on their sexual orientation, sexual
identity, or political allegiances." Similarly, "the plural, sexualities, is used to
acknowledge the multiple meanings of sexuality and to recognise that an understanding
of contemporary sexuality requires engagement with a proliferation of identity
categories such as queer or transgender alongside more familiar categories such as
heterosexual, lesbian, gay, and bisexual." Though it is a broad term with no precise
definition, a cursory examination of the two definitions reveals that sexuality refers to
a person's sexual interests and preferences.

2.5 SEXUAL ORIENTATION:

The Yogyakarta Principles describe sexual orientation as “Sexual Orientation is

understood to refer to each person's capacity for profound emotional, affectionate and
sexual attraction to, and intimate and sexual relations with, individuals of a different
gender or the same gender or more than one gender.” It also refers to “a persistent
pattern of emotional, romantic, and/or sexual attraction to men, women, or both sexes.”
Sexual orientation is also defined as “a person's sense of identity based on those
attractions, associated behaviours, and involvement in a community of individuals who
share those interests.” It is also characterized in regard to erotic attraction,
“heterosexuals to members of the opposite sex; homosexuals and lesbians to members

9
of the same sex. A homosexual, gay, or lesbian person is therefore anybody who is
erotically attracted to members of his or her own sex.”

As the definitions above show, a person's sexual orientation is something that is

fundamental or basic to one's nature and hence unchangeable. In other words, sexual
orientation is a natural, unchangeable trait that relates to a person's physical or sexual
attraction to another person. Based on his or her sexual orientation, a person might be
classified as homosexual (gay/lesbian), heterosexual, or bisexual.

2.5.1 HOMOSEXUAL8:

Homosexuality is defined as romantic or sexual attraction or activity between

people of the same sex or gender. Homosexuality is defined as "an enduring pattern
of or disposition to experience sexual, affectionate, or romantic attractions" to
people of the same sex; "it also refers to an individual's sense of personal and social
identity based on those attractions, behaviours expressing them, and membership
in a community of others who share them."

Homosexuality has been around for as long as mankind has. In the past, gay
behaviors were covertly conducted by queens in harems, cowherds, warriors,
slaves, convicts, nuns, priests, harvesting ladies, and highly spun maidens. The
references to "Ghilman" in Islam, "Sodom and Gomorrah" in Christianity, and
"Ardhanarishwar" in Hinduism add to the ancient inscriptions of homosexuality
throughout the world's major faiths. Within the heterosexual-homosexual
continuum, homosexuality is one of three major kinds of sexual orientation, along
with bisexuality and heterosexuality. Although many religious societies and some
psychological associations teach that homosexuality is sinful or dysfunctional, the
behavioural and social sciences, as well as the health and mental health
professions, have long held that homosexuality is a normal and positive variation
in human sexual orientation.

Lesbian for women and gay for men are the most often used descriptors, while gay
may apply to either men or women. For a variety of reasons, researchers find it
difficult to determine the number of individuals who identify as gay or lesbian and
the percentage of persons who had same sex sexual encounters. According to

8
Available at: https://www.healthline.com/health/different-types-of-sexuality#m-p

10
significant research, 2% to 13% of the population in the contemporary West is gay.
A study that was carried out in the year 2006 revealed that twenty percent of the
population had anonymously expressed some gay sentiments; yet, comparatively
few survey participants classified themselves as homosexuals. Animals'
homosexual behaviour is also quite common.

Many gay and lesbian persons are committed same-sex couples. In terms of
psychology, these partnerships are identical to heterosexual ones. Throughout
recorded history, homosexual relationships and activities have been both praised
and condemned, depending on the form they took and the community in which
they happened. Since the end of the nineteenth century, there has been a push for
greater visibility, recognition, and legal rights for gay individuals, including the
ability to marry and civil unions, adoption and parenting, employment, military
service, and equal access to health care.

2.5.1.1 LESBIAN:

Lesbian is often characterised as a woman who is physically and sexually

attracted to another woman. While this definition seems to be entirely valid
on the surface, a closer examination reveals that it has a major flaw in that
it regards bisexual women to be lesbians. The phrase was initially used to
refer to Lesbos, a Greek island, in the 16th century, and its relationship with
"female homosexuality" was established for the first time in the nineteenth
century. The word has no official definition, with various researchers using
one of the common criteria to designate a woman as a lesbian.

2.5.1.2 GAY:

A homosexual or gay person is someone who is physically, emotionally, and

sexually attracted to a man or woman of his own sex. While homosexual
was formerly the most generally used word to indicate persons of the same
sex orientation, gay has now replaced homosexual as the preferred phrase
to describe those of alternative sexual orientation. One of the most widely
accepted explanations for such a divergence is that the word gay excessively
and overtly stresses just the sexual part while downplaying other more
essential aspects of gender orientation.

11
 The origins of the term gay are unknown, and how it came to be part of the
present English language is debatable. The phrase initially arose in
eighteenth-century England, when it was used to characterise the behaviour
of a playboy; subsequently, in the nineteenth century, it was used to describe
women of "loose morals; a prostitute." The phrase became widespread in
the United States in the twentieth century after Noel Ersines produced
Dictionary of Underworld and Prison Slang in 1933, which included the
term homosexual as "geycat." While gay was originally used to describe all
homosexuals, in present use, gay is used to denote a male homosexual while
lesbian is used to identify a female homosexual.

2.5.2 BISEXUAL:

A bisexual person is someone who is sexually attracted to both sexes, male and
female. A bisexual person is someone who is physically, emotionally, and
otherwise attracted to people of the same or opposite gender. It is difficult to
identify a bisexual, and they are essentially invisible in our culture because when
they are in a sexual relationship with someone of the opposing gender, they are
deemed heterosexual, and when they are in a same-sex relationship, they are
labelled gay. Because a bisexual person may have sexual relationships with
people of both sexes, certain preconceptions about them have persisted in culture.
This reality perplexes heterosexuals, who stereotype bisexuals. This also implies
that they are shunned by both the heterosexual and gay communities.

2.5.3 HETEROSEXUAL:

Heterosexual is the absolute antithesis of homosexual, an individual who is

attracted to someone of the opposite sex.

2.6 GENDER IDENTITY:

Gender identity is not the same as sexual orientation. “Gender identity is understood to
refer to each person's deeply felt internal and individual experience of gender, which
may or may not correspond with the sex assigned at birth, including the personal sense
of the body (which may involve, if freely chosen, modification of bodily appearance or
function by medical, surgical, or other means) and other expressions of gender,
including dress, speech, and mannerisms” in accordance with the Yogyakarta

12
Principles. In a word, gender identity is how a person perceives himself or herself.
According to this definition of gender identity, a person is considered transgender if
their “gender identity or gender expression departs from expectations connected with
the sex ascribed to them at birth.”

2.6.1 TRANSGENDER:

“Transgender” refers to persons whose gender identity, gender expressions,

and/or behaviours vary from those traditionally associated with the sex to which
they were born. As the preceding definition says, gender identity is how a person
feels about his or her gender; it may be the same as or different from the gender
given to a person at birth. Thus, a person who was born with a male identity will
be considered transgender if he feels himself to be feminine or a combination of
male and female. Thus, a transgender person is someone who is unhappy with the
gender assigned to him or her at birth or with the gender to which he or she was
born and may desire to alter that gender using contemporary medical procedures
such as surgery and/or hormone therapy.

In summary, a transgender person is someone whose biological sex differs from

their gender identification. As previously stated, sexual orientation is distinct
from gender identity and should not be confused, as is usually done. As a result,
transsexualism has nothing to do with sexuality. As previously stated, transgender
is an umbrella word, similar to LGBT, and so includes those who identify as
neither feminine nor masculine.

2.6.2 GENDERQUEER9:

Genderqueer is a gender identity based on the word ‘queer.’ Being queer means
existing in a manner that does not conform to heterosexual or homosexual
standards. Although ‘queer’ is often used to describe a person's sexual orientation,
it may also be used to indicate a person’s gender identity.

A ‘queer’ gender may exist outside of, inside, or between the binary gender
identities of man and woman. Genderqueer people often see their gender as fluid,
meaning it may shift and alter at any moment. Genderqueer may also refer to the

9
Available at: https://www.healthline.com/health/transgender/genderqueer#takeaway

13
state of questioning one’s gender identification at any moment or on an ongoing
basis.

Younger generations are frequently identifying as genderqueer these days,

making it one of the most prominent identities within the transgender umbrella.
To really understand what genderqueer implies, it's critical to recognize that
gender doesn’t necessarily have a black and white picture.

Our genders are divided into two segments namely gender identity and gender
expression. The way in which a person identifies themselves, whether as a man,
a woman, or as something altogether different, is referred to as their ‘gender
identity’. A person’s ‘gender expression’ refers to the manner in which they
convey and exhibit themselves in terms of masculinity and femininity. Although
we've been taught that men and women are two distinct groups, gender identity
and gender expression reside on a continuum.

People might identify more strongly with being male or female, or they can fall
somewhere in the between. Similarly, a person may choose masculine expression,
feminine expression, or both. They may also identify someplace in the midway.

People who identify as genderqueer may express and present themselves in a

variety of ways. To be genderqueer, a person does not need to appear androgynous
or behave in a manner that is neither feminine nor masculine, but they may do so
if it feels right to them. It all comes down to how a person perceives their own
particular gender identity.

Genderqueer often overlaps with non-binary identities and there is significant

debate regarding what the true distinction between the two is. ‘Non-binary’ is
more often used as a catch-all term for those who do not identify with the binary
identities of man and woman. ‘Genderqueer’ is often used to express a certain
experience, such as the sensation that one’s gender is flexible.

Genderqueer identity has long been available to anybody who is in process of

questioning their gender. This includes anybody who acts in ways that are
inconsistent with their real or perceived gender identity.

14
 Many of us do activities that aren't considered typical for individuals of our gender
identity, therefore genderqueer may be a much broader umbrella than non-binary
under this second paradigm.

There are a variety of identities that fall beyond the identity as a man or woman
that may come under the genderqueer umbrella. ‘Agender’, ‘bigender’,
‘pangender’, ‘gender fluid’, ‘androgynous’, ‘neutrois’, and ‘demigender’ are
examples of such identities.

Genderqueer people may identify exclusively as genderqueer or as genderqueer

and something else. For instance, a person may identify as a “genderqueer trans
woman” or a “bigender androgynous genderqueer person”.

Genderqueer persons may identify as transgender people and vice versa. To

confirm and express themselves in ways that are coherent with their gender
identification, some genderqueer people opt to go through social, legal, or medical
changes such as taking hormones, changing their name, or undergoing surgery.

2.7 INTERSEXUAL:

Certain unaware or ignorant people often confuse and interchangeably use the terms
‘transgender’, ‘transsexual’ and ‘intersexual’. It is however must be clarified that while
transgender and transsexual may be used interchangeably; ‘intersex’ is something
entirely different than transgender. While transgender individuals are those who
identify to a gender that does not concur with the sex assigned at the birth, intersex
individuals are those who are born with reproductive anatomy or characteristics that
does not fully fit the criteria of either of male and female. Even intersexual individuals
can grow up to assume a gender identity that does not confer with the sex legally
assigned to them at birth.

Intersex babies are always assigned a sex (male or female) at birth by a doctor who
often perform surgeries on those babies to make their bodies a better fit for the sex
assigned to them on the records after birth. These surgeries are performed after consent
of the parents who decide what sex shall be assigned to their babies. However,
sometimes people do not realize they are intersex until later in life, such as when they
reach puberty. Sometimes a person might go their whole lives without realizing they
are intersex.

15
There are several ways for someone to be born intersexual. Some intersex persons have
genitals or internal reproductive organs that are not classified as male or female, such
as a person who has both ovarian and testicular tissues. Other intersex persons have
chromosomal combinations other than XY (typically male) and XX (typically female),
such as XXY. Whereas some individuals are born with outward genitals that are
classified as male or female, but their internal organs or hormones are not.

2.8 LGBT:

‘LGBT’ is an abbreviation and umbrella phrase that stands for ‘Lesbian, gay, bisexual,
and transgender’. It is used to represent people whose sexual orientation and/or gender
identity are incongruous to the majority of society’s norms. While ‘L’, ‘G’, and ‘B’
relate to those who have a different sexual orientation than their heterosexual
equivalents, ‘T’ refers to those who think their gender identification differs from the
gender ascribed to them at birth.

The term LGBT became a part of contemporary jargon during the social revolution of
the 1960s. The social revolution was a movement that began in the 1960s and peaked
in the 1970s in the United States. It was a resistance against the societal norms that
forced individuals to comply to the standards by burying or denying their own inherent
identity, desires and preferences. Prior to the social revolution, homosexuality was seen
to be a sin, a mental ailment, and a transgression against nature and religion. Because
of ill-conceived assumptions about it, there was no one respectable way of addressing
persons with alternative and distinct sexual orientation and gender identity in
mainstream parlance during that time.

LGBT is now a widely accepted label for minorities based on sex and gender
orientation. Almost all members of these subgroups are subject to similar biases rooted
in sexuality and gender beliefs and traditions. LGBT people face a variety of socio-
economic and cultural injustices. The inability of LGBT people to exercise their rights
is hampered by a lack of community recognition.

The LGBT community has made significant progress in obtaining basic human rights
protections in Australia, Western Europe, Latin America, North America, and South
Africa, but sexual relationship discrimination persists around the world.

16
 CHAPTER-3

INTERNATIONAL LEGAL POSITION OF THE LGBT RIGHTS

3.1 INTRODUCTION

Lesbian, gay, bisexual, and transgender people are denied essential social, economic,
civil, and political rights by law or practise. LGBT populations do not seek special or
extra rights, but rather the recognition of the same rights as heterosexual people. Many
nations deny LGB persons equality in rights purely on the basis of their sexuality due
to certain criminal legislation or social norms. Laws often require a greater age of
consent for gay relationships than for heterosexual relationships in some countries. The
right to non-discrimination is violated by removing sexual orientation from anti-
discrimination statutes and several constitutional provisions. 10

In a few nations, the right to life of LGBT population is abused. Arbitrary detention
occurs in a number of nations if people are accused of having a homosexual
relationship. Many police policies and procedures violate the right against cruel or
degrading treatment. Also denied is the right to privacy. The freedom to free speech is
hampered by legislation or by a homophobic atmosphere within society. 11

With the formation of the League of Nations, the recognition and protection of LGBT
rights began under the auspices of evolving International Law, as a result of the
establishment of multilateral treaties and accords among the newly formed nation-
states. Since the foundation of the United Nations in 1945, a range of standards,
protocols, and procedures have been devised to guarantee that minorities get protection
as soon as possible. The Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights, and the 1992 Declaration of the Rights of
Persons Belonging to National or Ethnic, Religious, or Linguistic Minorities all
recognised and safeguarded the rights of all human beings. With the publication of the
UDHR's foundational declaration, a slew of human rights instruments relevant to the
rights of disadvantaged groups and communities developed. However, the lack of clear
articulation concerning LGBT populations in International Human Rights Laws has

10
Arvind Narrain, Queer:- Despised sexuality law and social change (Books for change,
Bangalore,2004).
11
Herek Gregory and Berrill kevin , Hate crimes :- Confronting violence against lesbians and gay men
( Sage publication, London, 1992).

17
been a source of concern for LGBT people. This stillness is unsettling. Only in the
twentieth century did the LGBT movement take a stand against discrimination based
on sexual orientation12.

3.2 HISTORY OF INTERNATIONAL LAW IN RELATION TO LGBT RIGHTS

The first reported LGBT incident occurred in the 1700s in London, Paris, and other
geographically equivalent locations, but it wasn't until 1869 that Karloy Benkhert, a
Hungarian doctor, invented the term ‘homosexual’ to describe disordered sexuality
qualities in persons. It wasn't until 1933, when Hitler assumed control of the country,
that all types of homosexual study and activities were outlawed. 13

Hitler ordered the destruction of different institutes and libraries doing research on this
newly found human instinct, and the whole movement was crushed to rubble by 1935.
Thousands of people recognised as belonging to such a group were persecuted viciously
by the authorities during the holocaust from 1939 to 1945. Even when the German
government changed, the homosexual inmates remained in jail for nearly another 24
years as the government proceeded to use the existing law to punish members of such
societies. 14

The end of World War II ushered in the modern era of LGBT activism in the United
States of America. However, the whole campaign gathered pace in June 1969 when
police stormed the Stonewall Inn, inciting riots by LGBT people. It wasn't until 1973
that the combined efforts of these campaigns and organisations resulted in
homosexuality being removed from the list of mental illnesses.

In Europe, the LGBT movement peaked in the 1980s, when the European Court of
Human Rights ruled that criminalising private adult sexual behaviour was in violation
of the European Convention on Human Rights. In the two landmark decisions, the court
weighed individual rights against the interests of the whole society, and it also
demonstrated that Irish and British legislation violated the most personal aspects of
people's lives. This case set an important precedent, since numerous nations throughout

12
N. Rowlings, "The quest for equal civil partnerships. Private client business" Westlaw India
31(2017).
13
Henry Findley, Eva Dodd-walker, "Same-sex harassment: how hostile does it have to be ?" 56(3)
Int.J.L.M 417-428(2014).
14
Heather Dawson, “Law, gender and sexuality: an introduction to the LSE library collections” 15(1)
L.I.M 45-50(2015).

18
the world relied on the reasoning of these decisions and proceeded to change their
sodomy laws. The last two decades have seen enormous progress in the international
effort to recognise the rights of these neglected populations. Homosexuality was voted
to be removed from the International Classification of Diseases (ICD) in the 1990s by
the World Health Organization.

In 1991, an appeal was filed to the United Nations’ sub-commission on the ‘Protection
of Minorities and the Prevention of Discrimination Against Them’. Later, in Toonen v.
Australia15, the United Nations Human Rights Commission (UNHRC) ruled that
Tasmania's law criminalising same-sex activity violated international norms, and soon
after, in 2003, Brazil and other states introduced a resolution calling for human rights
protections for LGBT communities worldwide. This resolution, however, failed owing
to strong opposition from other nations. It can be seen that the LGBT communities have
made slow but steady progress in gaining international acceptance. However, since the
current model of operating rules and regulations is not geared toward the advancement
of these people, a stronger stance exposing basic Human Rights violations is required
to garner even more global support.

3.3 THE ROLE OF UNITED NATIONS (UN)

On June 6, 1945, the UN Charter was drafted in San Francisco. It imposed legal
obligation on members and empowers the United Nations to develop a set of principles
in international human rights law. The charter constantly and clearly asserts that
member states must provide basic human rights to everybody on an equal footing. The
Preamble of the UN Charter further declares that the United Nations will set conditions
to ensure fairness and respect for obligations originating from treaties and other sources
of international law. Furthermore, one of the United Nations' objectives, according to
Article 1 of the Charter, is to foster universal respect for human rights and
encourage freedom for all equally. Similarly, in terms of international economic and
social growth, Article 55 of the Charter stipulates that the United Nations must promote
the respect and observance of human rights as well as basic freedom for all without
discrimination16.

15
Toonen v. Australia, U.N. Doc. CCPR/C/50/D/488/1992, available at:
http://www.unhchr.ch/tbs/doc.nsf/
16
Sexual Orientation And Human Rights - University Of Minnesota, available at:
http://hrlibrary.umn.edu/edumat/studyguides/sexualorientation.html.

19
Through adoption of provisions that bar gender discrimination, the charter established
the United Nations as an international body capable of delivering human rights
protections to LGBT community. LGBT individuals are sidelined and stigmatized
because they do not conform to standard gender identity norms and expression, LGBT
populations are disadvantaged; this differential treatment is a kind of gender
discrimination and the Charter specifies constantly and unambiguously that people shall
not be discriminated against because of their gender. Although, given the current
situation, this meaning may be wider than conventional understandings of gender
discrimination.

For many years, the United Nations has made attempts to represent LGBT population
using the word ‘sex’. The United Nations Human Rights Committee specifically said
in the Toonen case that the word “sex” includes sexual orientation. However, the
committee failed to take any action against those nations that did not follow its
directions. The United Nations should adopt a tougher stance to incorporate anti-
discrimination measures based on gender identity and sexual orientation. It seems
apparent that LGBT communities would be better protected if the UN revised the
Charter to include terminology expressly protecting LGBT populations. 17

The first area that must be investigated is the United Nations’ (UN) attitude on this
delicate matter. The arguments around LGBT rights at the UN have mostly revolved
around General Assembly resolutions and the UN National Human Rights Council
(UNNHRC). The Dutch-French initiative, that was supported by the European Union,
took the first step (EU). The proposed Declaration incorporated to denounce harassment
and prejudice based on gender identity and sexual orientation.

Many hailed this proclamation as a watershed moment in human rights, breaking the
taboo of speaking out in support of LGBT rights at the United Nations. In 2011, the
Republic of South Africa initiated a motion in the UNNHRC asking the creation of a
report focused on the global condition of LGBT persons.

The UNHCHR, urged the member States to repeal and do away with the legislations
that criminalized homosexuality and consequently abolish all the provisions that levied

17
International Lesbian, Gay, Bisexual, Trans and Intersex Association's (ILGA) latest State Sponsored
Homophobia report, This is the state of LGBTI rights around the world in 2018, available at: world
economic forum https://www weforum.org/agenda/2018/06/lgbti-rights-around-the worldin-2018/

20
death penalty for offences, which involved consensual sexual activity among
individuals and to incorporate effective and comprehensive anti-discrimination laws to
ensure positive obligations on the State with regard to the implementation of laws in
favour of these communities. With the dawning of the era of globalisation, there has
been tremendous increase in the networking of the civil society, which has been the
major cause for progressive interactions and changes within the national jurisdictions.

3.4 THE ROLE OF THE QUASI-JUDICIAL BODIES

The use of such a mechanism by the Human Rights Committee in the historic case of
Toonen v. Australia 18left an imprint on the acknowledgment of the LGBT community’s
rights and interests for the first time at an international level. Nicholas Toonen, a
Tasmanian LGBT activist, questioned the anti-sodomy law's constitutionality in light
of ICCPR Articles 2, 17, and 26. The Human Rights Commission determined that the
law violated the complainant's private rights, which were embodied in Article 17 of the
Covenant. The judgement was a step forward in European Court of Human Rights
(ECHR) decisions since it expanded the safeguards of the International human rights
framework from the regional to the global realm. The verdict resulted in increased
impetus for subsequent initiatives and a global shift toward the design of LGBT-
friendly laws. Thus, rights rhetoric became one of the most important new weapons for
effectively articulating the voice of gays and other persecuted people. One of the most
significant consequences of this ruling was that it opened the floodgates of dispute
about the definition of the word “sex” to encompass persons’ “sexual orientation.”

When it comes to the acknowledgement of the presence of LGBT communities inside

state territory, this enormous success was only achievable because of the strenuous
efforts of these groups. As none of the states were eager to take the moniker of being a
champion for the rights of the LGBT people, queer activism became the igniting force.

The cancellation of the European Region of the International LGBT and Intersex
Association conference in Guadalajara by the Mexican government sparked widespread
outrage among Amnesty International, the 28 member states of the US Congress, and
others, on the grounds that under international law, the right to freedom of association
was guaranteed to all. The European Union has emerged as one of the most strong

18
Toonen v. Australia, U.N. Doc. CCPR/C/50/D/488/1992, available at:
http://www.unhchr.ch/tbs/doc.nsf/(symbol)/

21
institutionalised Human Rights regimes for the equitable respect of LGBT
communities' rights with those of the general public. The European Parliament's Civil
Liberties and Internal Affairs Committee drafted the report on Equal Rights of
Homosexuals and Lesbians in the European Community, which recommended the
adoption of a resolution to recognise civil unions of same-sex couples for the sole
purpose of eliminating existing discrimination pertaining to freedom of movement and
other elements of civil life. In the year 1994, the Parliament received and approved the
report. Such European Union measures functioned as a domino effect, exerting pressure
on other jurisdictions to reform and abolish their anti-sodomy laws and join the regional
commitment to better defend LGBT rights.

3.5 INTERNATIONAL CONVENTION ON THE RECOGNITION OF LGBT

RIGHTS AND GUIDELINES

When talks are over, the language of a treaty is recognised as valid and final and is
‘signed’ to that effect by representatives of the states. There are many ways for a state
to express its willingness to be bound by a treaty. Ratification and accession are the
most prevalent. The states that have negotiated the instrument ratify a new treaty. A
state that did not contribute to or participate in the discussions may subsequently join
to the treaty. When a certain number of nations ratify or accede to the treaty, it enters
into effect. Binding treaties may also be used to compel governments to follow treaty
obligations pertaining to LGBT human rights protection. Non-binding documents such
as statements and resolutions may be used in appropriate contexts to shame
governments via public exposure.19

The International Conventions organised in various regions of the globe mainly notify
the problem raised due to the non-recognition of the LGBT population in various parts
of the world. The International Convention on Human Rights clearly stipulates that
nations have legal duties to preserve and safeguard the human rights of LGBT persons.
With increased worldwide awareness of the LGBT problem, Human Rights Treaty
authorities have attempted to include greater specific protection for LGBT groups into
international law in order to guarantee that nations are obligated to protect everybody
from all forms of discrimination. The UDHR, ICCPR, ICESCR, the Yogyakarta

19
Chandini N, "A comparative study of rights of lgbt communities a socio legal perspective", available
at: http://hdl.handle.net/10603/351913

22
Principles, and the United Nations Declaration on Sexual Orientation and Gender
Identity 2008 are all relevant Conventions for the protection of LGBT rights. These
treaties provide equal rights to all people, regardless of their personal position or traits.

The basic idea behind the conventions is that all humans are free and equal in dignity
and rights. The right to universal enjoyment of human rights guarantees certain basic
rights to the LGBT community, including the right to equality, life, privacy, protection
from discrimination, freedom of opinion and expression, recognition before the law and
equality of protection under the law, and the right to freely pursue economic, social,
and cultural development.

The United Nations is an international organisation with 191 member nations. These
governments often participate to define their own political interests rather than to build
a common commitment to human rights, making it harder to get support for contentious
subjects such as the rights of homosexuals, gays, transgender individuals, and
bisexuals. Nonetheless, the United Nations continues to be the primary mechanism for
advancing international recognition of the right to equality. The United Nations has a
plethora of diverse entities and methods that have evolved as a result of its own nature
and international treaties that governments sign up to and agree to be bound by. Except
for social and religious conservatives, there have been huge advancements in the
acceptability of homosexuality and bisexuality by therapists and the general public in
North America and Western Europe since then. Essentially, no international human
rights agreement officially recognises the human rights of LGBT (Lesbian, gay,
bisexual, and transgender) individuals.

3.6 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) 194820

The first International agreement that unquestionably acknowledged transgender

individuals to be human beings is the 1948 Universal Declaration of Human Rights
21
(UDHR). This conference acknowledged that transsexual individuals are human
beings. The legal rationale for providing legal recognition to transgender individuals
becomes more persuasive under international law when it is acknowledged that
embracing transgender people as equal members of society is not limited to a small

20
Universal Declaration of Human Rights, available at https://www.un.org/en/universal-
declarationhuman-rights/
21
Supra 20

23
number of nations. In 1948, the United Nations General Assembly adopted the
Universal Declaration of Human Rights, which states that all human beings are entitled
22
to equal rights and freedom without difference of any sort. This statement was
produced during a time when most governments classified homosexuality as a mental
disease, a criminal behaviour, and an ultimate sin by many religion organisations.
Understanding transgender/transsexual people was in its infancy at the time.

The state's legal responsibility is to protect all transgender individuals' rights as

stipulated in human rights legislation, and the UDHR has so committed to International
human rights treaties. States' legal duties to defend transgender people's human rights
include commitments to protect people from homophobic and transphobic violence, to
prevent harassment, and to repeal laws that criminalise homosexuality.

The United Nations has always advocated for LGBT rights protection. According to
Article 6 of the UDHR, every human being has the right to life. Every article of the
UDHR asserts all forms of discrimination to be illegal and degrading.

Considering that the Universal Declaration of Human Rights expressly protects people
of ‘other status’, the text already gives some protection to LGBT populations. However,
it is just a resolution and is not binding on U.N. member states as treaty law.
Nonetheless, since its ideas have been adopted into practise by numerous organisations,
tribunals, and nations, the Universal Declaration may be enforceable as customary
international law.

The declaration enunciates a slew of rights, including the right to life, liberty, and
personal security; the right to equal protection and non-discrimination; the right to a
fair trial; the right against arbitrary invasion of privacy; freedom of movement; the right
to family; the right to property; freedom to assemble; freedom of religion; the right to
choose employment; the right to an adequate standard of living, medical care, and
education; and the right to a fair trial. It also safeguards those human rights that have
proven especially important to LGBT groups facing persecution, such as provisions
against enslavement, torture, incarceration, and other cruel, inhumane, or humiliating
treatment, since these are the most severe forms of State-sanctioned discrimination.

22
Article of the Universal Declaration of Human Rights, available at:
https://www.standup4humanrights.org/en/article.html

24
Despite the declaration's overall anti-discrimination stance, Article 29 contains wording
that states may use to avoid applying specific freedoms to LGBT groups. Individuals
shall be protected under the declaration if they fulfil the standards of public order and
the benefit of society. Because many regimes oppress LGBT people on moral grounds,
they may use this terminology to discourage international engagement on their behalf.

Advocates for LGBT rights, on the other hand, may use Article 29 of the Declaration
and the Toonen judgement to argue against moral discrimination. States, according to
Article 30 of the Declaration, may not use Article 29 to deny LGBT populations
essential Human Rights protected by the Declaration. While some opponents may
question if some rights are "basic human rights," violating governments who are United
Nations members have already agreed that the aforementioned rights should be
protected by becoming party to U.N. accords and international treaties.

3.7 THE UNITED NATIONS INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS

According to numerous writers and researchers, the ICCPR is the most effective tool
for LGBT activists in the fight for human rights. The ICCPR specifically ensures the
UDHR-enumerated rights to life, liberty, and security of the person.23

Articles 6 (right to life), 7 (prohibition of torture or cruel, inhuman, or degrading

treatment), 16 (recognised before the law), and 17 (right to private and family life) in
particular highlight provisions relevant to the preservation of human rights and status,
which covers transgender people. This covenant acknowledges that these rights stem
from a person's intrinsic dignity. It also recognises that, according to the Universal
Declaration of Human Rights, the concept of free human beings enjoins civil and
political freedom, and that freedom from fear can only be achieved if conditions are
created in which everyone can enjoy his or her civil and political rights, as well as
economic, social, and cultural rights. The covenant states that everyone has the right to
self-determination. In this regard, the transgender person's self-identity must also be
respected. They may freely select their political position and pursue their economic,
social, and cultural growth as a result of this right.

23
Meçe, Merita, “Access to Justice System as An Effective Enjoyment of Human Rights: Challenges
Faced by Roma Minority in Albania” 8-1 Contemporary Readings in Law and Social Justice

25
According to Article 6, every individual has an intrinsic right to life. No one's life
should be taken from him arbitrarily. This right is legally protected. The ability to live
in society is an intrinsic right granted to the transgender population under the ICCPR
covenant. Article 7 states that no one should be subjected to cruel or degrading
treatment. This places the state under responsibility to stop all forms of cruel abuse and
torture directed at transgender people.

The covenant includes a prohibition against arbitrary arrest and detention. It guarantees
the right to liberty and security, and no one shall be subjected to arbitrary arrest,
imprisonment, or deprivation of life or liberty unless on stated reasons and in
conformity with the law. It also ensures that everyone is treated as a person before the
law. This is especially essential in the situation of transgender people, who must be
acknowledged as human beings under international law. According to the Covenant,
the family is the essential unit of society and is entitled to protection from society and
the state. This ICCPR Article assures that any transgender person has the same
fundamental right as any other person to create a family and live a normal life.

Concerning child protection, the covenant states that every child has the right, without
regard to colour, sex, language, religion, national or social origin, property, or birth, to
such measures of protection as are needed by his position as a minor on the part of his
family, society, and the state. It further states that every kid must be registered
immediately after birth, and that every child has the right to gain nationality. The
preceding clause safeguards the rights and interests of transgender children.

Article 17 of the ICCPR extends on the right to privacy mentioned in the Declaration
by safeguarding people' own choices to display their sexuality. LGBT populations
would also benefit from stricter implementation of Article 26 of the ICCPR, which
provides the right to equal protection under the ICCPR's stated legislation. Stronger
enforcement of Article 26 would offer support for other elements of the legislation that
imply the state should have a larger role in LGBT community protection.

The framework of the ICCPR offers legal support for advocates of LGBT rights. Even
though many states ban same-sex relationships, the Committee has only made
recommendations to change state practises to the United States, the United Kingdom,
Colombia, Austria, Poland, Sweden, Egypt, Argentina, and the Philippines under the
ICCPR. Those states that promise to kill LGBT people or condone violence by third

26
parties against LGBT communities violate the ICCPR and the Universal Declaration of
Human Rights.

Therefore, to force State action, the Committee must be more proactive in interpreting
the Covenant's provisions to encompass LGBT groups. Stronger International Human
Rights rules will force signatory states to implement legislation to defend LGBT
populations' right to life and liberty by explicitly outlawing and condemning
discrimination against LGBT people. States should not unilaterally implement laws that
discriminate against LGBT people. Furthermore, LGBT people would have more
recourse against wrongdoing governments or extrajudicial operations.

The states were successful in implementing the Convention's principles. It was

answered in the positive in the Toonen case, referring to the International Covenant on
Civil and Political Rights and its interpretation. The Human Rights Committee ruled in
the Toonen case that references to “sex” in Articles 2 (nondiscrimination) and 26
(Equality before the law) of the ICCPR should be interpreted to include sexual
orientation148. As a result of this case, Australia's statute criminalising sexual actions
between men in the state of Tasmania was abolished.

One of the most severe shortcomings of the ICCPR is that it just urges states to take
measures toward the Covenant's goal and objective but fails to demand suitable and
effective action. Lack of political pressure and lack of recommendations by
international and regional agencies to impose penalties on the violating States has
resulted in the errant behaviour of the States to amend their legislations for the welfare
of these classes of citizens in the global arena.

3.8 THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS (ICESCR), 1966

The ICESCR has unequivocally declared the concept of non-discrimination and fair
treatment for all human beings. It is often referred to as the International Bill of Rights.
In such a circumstance, transgender people have an equal right to be free from
prejudice. The ICESCR also specifies a number of rights for transgender people that
the Indian government must uphold. These rights include the right to social security,
the right to employment that the person freely chooses or accepts, the right to a decent

27
quality of living, which includes appropriate shelter and food, and the right to an
education. The ICESCR guarantees everyone the right to physical and mental health.
In General Comment 14, the Committee on Social, Cultural, and Economic Rights
commented on Article 12, from which the International Right to Health Framework is
derived. It states that Articles 2.2 and 3 of the Covenant prohibit discrimination on the
basis of race, colour, sex, national or social origin, property, birth, language, religion,
political or other opinion, physical or mental disability, health status, sexual orientation,
or other status, which has the effect of nullifying the equal enjoyment of the right to
health. These rights serve as a safeguard for transgender rights protection.

3.9 EUROPEAN CONVENTION OF HUMAN RIGHTS, 1950

The European Court of Human Rights has supported the recognition of gender
identification as part of the dignity and freedom protected by the European Convention
on Human Rights of 1950. The Convention guarantees equal protection to all human
beings, and the transgender population is likewise regarded equally under these
principles. Equal protection provides equal treatment and serves as a deterrent to
discrimination and harsh treatment of transgender persons. In a series of decisions
involving the recognition of reassigned sex, the European Court of Individual Rights
ruled that: Nonetheless, the purpose of the treaty is to safeguard human identity and
freedom.

In a historic decision, the European Court of Human Rights ruled that, under article 8
of the treaty, a test of congruent biological variables cannot be used to refuse legal
recognition of a post-operative transsexual's gender. In doing so, the court has finally
addressed the ongoing slew of transgender-related cases, mostly from the United
Kingdom. This ruling plainly indicated that the UK government's unwillingness to
change Transsexual people's birth certificates or enable them to marry in their new
gender role was a violation of the European Convention on Human Rights.

The convention protects transgender people the right to modify their birth certificate's
gender. A transsexual or transgender person has the right to maintain their family life,
as guaranteed by Article 8 of the European Convention on Human Rights. This was
established in 1992, when France was held guilty of infringing Article 8 of the European
Convention on Human Rights.

28
Similarly, there is a scarcity of case law in European law concerning the notion of
transgender. While considering transsexualism in specifically, the pivotal decision of
P. v. S. gave an exceedingly wide and comprehensive term that increased transgender
rights. The convention grants transsexual people the same right as any other human
being to marry. Marriage is not only a recognised legal right that all members or citizens
of the state have, but it is also a notion that has both national and international
recognition. The convention aimed at repealing sodomy prohibitions in member nations
when such laws discriminate against the rights of transgender individuals and violate
the rights given by these treaties.

The Convention makes no reference of sexual orientation. However, the reference to

this Convention is made in a number of instances where the ECHR concluded that
discrimination in criminal law for consensual relationships violates their right to
privacy under European Convention article 8.

The European Court of Human Rights was the first international authority to rule that
discrimination based on sexual orientation breaches the essence of enjoying human
rights, and it has the longest jurisprudence on the subject. Sutherland v UK, 1997, the
European Commission on Human Rights ruled that requiring males to agree to gay
actions at a younger age than heterosexual acts was discriminatory and violated the
right to privacy guaranteed by Article 14 of the European Convention.

The Court ruled in Lustig-Prean and Beckett v UK, 2000, that the prohibition on gays
in the military violated Article 8 ECHR. In Salgueiro da Silva Mouta v Portugal, the
court also ruled that denying a gay father custody of his kid because of his sexual
orientation is tantamount to violating the father's right to family life, which is a violation
of Article 8 of the ECHR. The Court confirmed that non-discrimination on the basis of
sexual orientation is likewise protected under Article 14 of the ECHR.

However, the Court's findings on the application of the Convention on sexual

orientation issues have certain limitations. For example, in Laskey, Jaggard, and Brown
v United Kingdom, 1997, the Court held that homosexual practises, even when done in
private and between consenting adults, can be outlawed for health reasons.

Furthermore, in X, Y, and Z v UK, 1997, the Court concluded that the 'right to respect
for privacy and family life' does not apply in the situation of transgender people'

29
relationships and affirmed the UK's determination that only a biological man, not a
transgender, may be acknowledged as a father.

3.10 YOGYAKARTA PRINCIPLES, 2006

IGLE drafted it. 2006 Indonesian conference. These principles recognise human rights
legislation pertaining to sexual orientation and gender identity and recommend
applying International human rights law norms to rectify LGBT maltreatment. These
ideas recognise self-identification as a basic right. The idea guarantees transgender
people legal recognition. Everyone has full legal competence. No one can be forced to
undergo sterilisation, hormonal treatment, or SRS for gender identity recognition. No
marriage or parenthood to be considered in gender identity validation.

3.11 UN DECLARATION ON SEXUAL ORIENTATION AND GENDER

IDENTITY, 2008

It's the first GA declaration on gender identity and sexual orientation. Many nations
agreed. This non-binding declaration reinforces human rights guarantees. The
convention highlighted transgender torture across the world. It criticises LGBT rights
breaches. The convention reaffirms the UDHR's universality. This assures that
transgender individuals are humans with rights that states must safeguard through
legislation. The agreement asks nations not to base executions, arrests, or imprisonment
on gender identity or sexual orientation.

3.12 FIVE CORE LEGAL OBLIGATIONS OF STATES WITH RESPECT TO

PROTECTING THE HUMAN RIGHTS OF LGBT PERSONS

The U.N. High Commissioner of Human Rights has set five core legal obligation on
the states with respect to protecting the human rights of LGBT persons. These
obligations are well established part of international human rights law on the basis of
UDHR and agreed in multiple international human rights treaties.

These five obligations are:

1. “Protect people from homophobic and transphobic violence. Include sexual

orientation and gender identity as protected characteristics in hate crime laws.
Establish effective systems to record and report hate-motivated acts of violence.
Ensure effective investigation and prosecution of perpetrators and redress for

30
 victims of such violence. Asylum laws and policies should recognize that
persecution on account of one’s sexual orientation or gender identity may be a
valid basis for an asylum claim.”
To comply with this obligation, many countries have enacted Anti-
discrimination and anti-hate crime laws. Though, India so far does not have such
framework except for a cautionary clause in the Transgender Persons
(Protection of Rights) Act 2019 which does not specify any penalty for people
who indulge in such behavior.
2. “Prevent the torture and cruel, inhuman and degrading treatment of LGBT
persons in detention by prohibiting and punishing such acts and ensuring that
victims are provided with redress. Investigate all acts of mistreatment by State
agents and bring those responsible to justice. Provide appropriate training to law
enforcement officers and ensure effective monitoring of places of detention.”
3. “Repeal laws criminalizing homosexuality, including all laws that prohibit
private sexual conduct between consenting adults of the same sex. Ensure that
individuals are not arrested or detained on the basis of their sexual orientation
or gender identity, and are not subjected to baseless and degrading physical
examinations intended to determine their sexual orientation.”
4. “Prohibit discrimination on the basis of sexual orientation and gender identity.
Enact comprehensive laws that include sexual orientation and gender identity
as prohibited grounds of discrimination. In particular, ensure non-
discriminatory access to basic services, including in the context of employment
and health care. Provide education and training to prevent discrimination and
stigmatization of LGBT and intersex people.”
5. “Safeguard freedom of expression, association and peaceful assembly for
LGBT and intersex people. Any limitations on these rights must be compatible
with international law and must not be discriminatory. Protect individuals who
exercise their rights to freedom of expression, association and freedom of
assembly from acts of violence and intimidation by private parties.”

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 CHAPTER-4
HISTORY AND EVOLUTION OF LGBT RIGHTS IN INDIA
Section 377 of the IPC, which criminalised all forms of non-procreative sexual
relations, was implemented by the British colonial government prior to independence.
The tyrannical rule not only targeted gays, but also all other types of non-traditional
sexual relations, including heterosexual unions. As a result, this regulation was nothing
more than a relic of traditional Victorian morality, which had no place in a democratic
society like India.

However, it took more than 70 years and nearly two decades of judicial fight to repeal
this antiquated rule that had become a tool for harassing and exploiting anybody who
did not adhere to the standard binary of sexuality and gender.

This chapter examines the history of the LGBT rights movement in India, addressing
several major judgments and their influence on the LGBT rights movement.

Though the LGBT rights movement began in the early 1990s, all important changes
that have occurred since then may be analysed in the context of the following key
judgments and their aftermath-

4.1 NAZ FOUNDATION CASE24

In July 2001, Lucknow police invaded a park and imprisoned a few guys on suspicion
of being homosexuals under Section 377 of the Indian Penal Code. The police also
detained nine additional males linked with the “Bharosa Trust”, an NGO dedicated to
raising public awareness about safe sexual practises and STDs. These individuals were
subsequently charged with operating a prostitution ring and refused bail. The Lawyers
Collective, a legal assistance organisation, subsequently stepped forward and
demonstrated that the allegations brought against these persons were unfounded, and
they were eventually released. Following the Lucknow event, an NGO called Naz
Foundation, along with Lawyers Collective, petitioned the Delhi High Court in 2001,
questioning the constitutionality of Section 377 of the IPC.

The petitioner contended that Section 377 of the IPC infringed the basic rights to life
and liberty, privacy and dignity, health, equality, and free speech. It was also argued

24
Naz Foundation Govt. v. NCT of Delhi

32
that the legislation hampered public health initiatives aimed at minimising the risk of
HIV/AIDS transmission since the fear of punishment under the Section inhibited
individuals from openly discussing sexuality and lifestyle.

Finally, in the case of Naz Foundation Govt. v. NCT of Delhi, the High Court of Delhi
ruled in 2009 that Section 377 of the Indian Penal Code placed an unjustified limitation
on two adults engaging in consensual intercourse in private. As a result, it was a blatant
violation of their fundamental rights as outlined in Articles 14, 15, 19, and 21 of the
Indian Constitution.

4.2 KOUSHAL CASE25

Given India’s rich history steeped in ethics and custom, some individuals and faith-
based organisations have passionately opposed the concept of decriminalising gay
relationships. They then petitioned the Supreme Court of India to examine validity of
Section 377.

Just when the society was about to breathe a sigh of relief following an eight-year fight,
the Supreme Court overruled the Delhi High Court's decision and re-criminalized
homosexuality on December 11, 2013. A bench of Justices GS Singhvi and SJ
Mukhopadhaya found that LGBTQ people were a “minuscule minority” and hence, did
not require constitutional protection, and that Section 377 of the IPC did not suffer from
the vice of unconstitutionality.

However, the Suresh Kumar Koushal V. Naz Foundation decision, rather than putting
an end to the LGBT movement, had ignited a fresh wave of activism in India. The
Supreme Court’s controversial decision, which deprived gays of basic human rights,
drew widespread condemnation. As a result, there has been an increase in public
dialogue around LGBT rights in India.

4.3 NALSA JUDGEMENT26

Due to their degraded social, educational, and economic standing, the transgender
population in India has been the biggest victim of exploitation among the whole
LGBTQ community. These individuals were never considered a part of society and
were always exposed to exploitation, ostracism, humiliation, and violence at the hands

25
Suresh Kumar Koushal vs Naz Foundation
26
National Legal Services Authority v. Union of India

33
of society or the authorities in authority. Because of continual rejection and a lack of
finances, these people frequently resort to beggary or prostitution, rendering them more
exposed to prejudice, STDs, and crimes such as human trafficking.

However, the Supreme Court's 2014 decision gave a new glimmer of hope and
exhilaration for these transgender persons, as they were recognised as the third gender
for the first time in history.

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

In a major decision, the Supreme Court established the “third gender” status for hijras,
or transgender people. Previously, transgender persons were constrained to identify as
either male or female, but following the ruling, they could boldly identify as
transgender. Aside from that, what made this decision unique was that it established the
basis for ensuring the transgender community a wide range of essential human rights,
which can be summarised as follows:

1. The court ruled that the failure to recognise their identities violated Articles 14,
15, 16, and 21 of the Indian Constitution.
2. The Supreme Court further ordered that members of the "Third Gender" be
treated as an economically and socially disadvantaged class.
3. It was also said that the government should implement appropriate policies for
the transgender population in accordance with Articles 15(2) and 16(4) in order
to provide equality of opportunity in education and work. According to the
ruling, the third gender will be classified as other backward classes [OBC] in
order to qualify for reservation in government positions and educational
institutions.
4. The court also recognised that a conflict between one's natal gender and
identification is not a pathological condition. As a result, rather than focusing
on “treatment of the abnormality”, the emphasis should be on “resolving
anguish over a mismatch”.

In layman's terms, it indicates that the court recognised the distinction between gender
and biological components of sex. The court defined biological characteristics as

34
genital, secondary sexual features, chromosomes, and so on, but gender attributes as an
individual's deep emotional or psychological sense of sexual identity and character,
which is not limited to the binary sense of male and female but can lie on a broad
spectrum.

Following this decision, transgender persons can now alter their gender without
undergoing sex reassignment surgery. Furthermore, people have a fundamental right to
identify and register as third gender. Aside from that, different state governments took
little initiatives to aid the transgender population by enacting health and housing
legislation. However, the passage of the Transgender Persons Bill, 2018, delivered a
significant blow to this ruling.

4.4 PUTTASWAMY CASE27

When the Naz Foundation contended before the Supreme Court in Koushal Case that
Section 377 of the IPC infringed the right to privacy, the Supreme Court went on to
give a thorough overview of constitutional law and the growth of the right to privacy.
However, despite emphasising the critical importance of this right, the court
undervalued the right to privacy argument in 377. The court recognised that, while there
have been incidents of Section 377 abuse against the LGBT+ community, putting their
privacy and integrity at risk under the guise of extortion, harassment, or torture, and in
general. However, this was never the intention of the provision, since it neither
authorises nor condones such treatment, and hence does not reflect the fact that such
law is unconstitutional.

However, in the case of K Puttaswamy v. Union of India, Justice Chandrachud's

conclusion included a part named “discordant observations”. It primarily addressed two
Supreme Court decisions. The first was about the infamous case of Additional District
Magistrate, Jabalpur v S.S. Shukla, which maintained the denial of basic fundamental
rights, while the second was about the Koushal case, which rejected the language of the
LGBTQ community's “so-called” rights.

According to Justice Chandrachud, sexual orientation comes within the broad scope of
the right to privacy. Puttaswamy's decision notes also registered criticism about the
minimis hypothesis principle used in the Koushal decision, stating that the minuscule

27
K.S. Puttaswamy v Union of India

35
population of LGBT cannot be used to deprive them of basic fundamental rights, and
such curtailment of fundamental rights cannot be tolerated even when a few, as opposed
to a large number of people, are subjected to hostile treatment.

This recognition is significant for the following reasons:

1. According to the Koushal decision, because just a few persons were punished
under Section 377, the offence has little relevance. However, because
permission plays no role in the prosecution of Provision 377, the figures cannot
be a credible demonstration of the level of use of this section because they
cannot represent the occurrences of consenting sexual relations.
2. Another finding is that the true impact of the legislation is not limited to
prosecution or punishment, but also includes an indirect influence, such as the
establishment of a hostile atmosphere for the LGBTQ+ group.

The Supreme Court's decision to recognise the right to privacy as an inherent basic right
under Article 21 of the Indian Constitution fueled optimism within the gay community
that Section 377 would be repealed soon.

4.5 NAVTEJ SINGH JOHAR CASE28

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

The Supreme Court agreed to send the matter to a bigger bench and considered many
petitions on the subject. The government has declared that it will not intervene and will
let the case to be determined by the court's wisdom. Section 377 was said to violate the
constitutional rights to privacy, free speech, equality, human dignity, and protection
against discrimination.

On September 6, 2018, the Court issued its decision, which can be summarised as
follows:

28
Navtej Singh Johar V. Union of India

36
 1. Section 377 is unlawful, according to the court, since it violates the basic rights
to intimacy, autonomy, and identity. It decriminalised homosexuality by
amending Section 377 to make consensual relations between adults of the same
sex/gender illegal.
2. The court reasoned that Section 377 is ambiguous and does not make discernible
distinctions between what is "natural" and what is "unnatural." It also restricts
the freedom to express one's sexual identity, i.e. the right to freedom of speech
guaranteed by Article 19 of the Indian constitution.
3. The court further stated that sexual orientation is an essential aspect of self-
identity and that rejecting it is denying the right to life, and that the fact that
they comprise a miniscule portion of the population cannot be used to justify
denying them this right.
4. The court also harshly criticised the Koushal decision, calling it illogical,
capricious, and clearly unlawful.
5. It was also emphasised that discrimination based on sexual orientation is
unlawful because it is a natural phenomenan, as scientific and biological
evidence demonstrate.
6. The Supreme Court also ordered the government to raise public awareness about
LGBT rights and to remove the stigma associated with LGBT individuals. The
judges went on to discuss mental health, dignity, privacy, the right to self-
determination, and transgender people.
4.6 TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT 2019

The Transgender Persons (Protection of Rights) Bill, 2019, was enacted to safeguard
the rights of the transgender community by preventing discrimination against them in
employment, education, healthcare, and access to government or private businesses.
However, in the guise of strengthening the community, the law exposes people to
additional institutional tyranny and de-humanizes their body and identity. The trans
community in India has strongly opposed the bill, alleging the following clauses as
infringing on their fundamental rights and failing to comply with the NALSA
judgement. The critical evaluation of this act has been dealt with in another chapter.

37
 4.7 PROVISIONS UNDER HUMAN RIGHTS ACT

The National Human Rights Commission (NHRC) was established under the Protection
of Human Rights Act of 1993, which defines Human Rights as rights granted by the
Indian Constitution or International Covenants. Section 21(1) of the NHRC's mandate
includes the ability to investigate Suo motu a petition filed to it by a victim or any
person on his behalf for violation of human rights or abetment thereof. One strategy to
hold authority responsible is to ensure that copies of all complaints are addressed to the
police commissioner, the relevant police station, the chief minister, the home minister,
and the NHRC. The basic legal duties of the state under the Human Rights Act in terms
of preserving the human rights of transgender persons are the duty to: protect
individuals from harassment. Enact laws that prevent violence against people based on
their sexual orientation, as well as effective methods for reporting violent acts and
investigating and punishing perpetrators. To offer effective and consistent training to
law enforcement officials, as well as to supervise detention facilities and to establish a
method for victims to seek redress. On the other hand, asylum laws and procedures
should acknowledge that persecution based on sexual orientation may be a legitimate
grounds for seeking refuge. To repeal laws that make homosexuality a crime. Pass
legislation prohibiting discrimination based on sexual orientation. Prevent prejudice
and stigma by providing training and information. Protect all transgender people's
freedom of expression and ensure that any restrictions on these rights, even if they
purport to serve a legitimate purpose and are responsible and proportionate in scope,
are not discriminatory on the basis of gender identity and sexual orientation, and
promote a culture of equality and diversity that includes respect for transgender people's
rights.

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 CHAPTER-5

IMPACT OF DECRIMINALISATION OF HOMOSEXUALITY IN

INDIA

There was a point in timeline when homosexuality was seen as a crime. Then, in 2018,
Section 377 of the Indian Penal Code was held unconstitutional and amended,
decriminalizing homosexuality. It made private gay relationships legal. An archaic law
from more than a century-old era was struck down and the gay community believed
that this move would have a significant impact on their life and that their struggle to be
accepted by society will have a positive outcome. The 2018 judgement presented as a
ray of hope for the LGBT community in India.

This chapter examines the state of the gay community in India and how it has changed
after the amendment of Section 377 of the Indian Penal Code. It discusses the present
scenario in India for homosexuals and same-sex couples. It also discusses whether the
amendment of Section 377 to decriminalize homosexuality has brought fulfilling results
for the LGBT people, their needs and desires and; how their lives have altered.

Prior to the ruling, the LGBT community was mistreated in a variety of ways.
Numerous examples have highlighted the vulnerability of LGBTQ Indians as a result
of original provision of Section 377. Section 377 was used to imprison and blackmail
homosexual couples who met in parks or public areas. Homosexual folks were sexually
abused and exploited. In the eyes of the law, they were criminals. Section 377 of the
IPC sought for a total prohibition on sexual activities committed by members of the
LGBTQ community. Not only that, but the provision had made it extremely difficult
for the parties to seek medical care for fear of being ‘exposed’. They were bullied and
harassed by both private and state entities.

Since the ruling, Indians have been more tolerant of homosexuality as a sexual
orientation than ever before, although there are still many gaps in society. Mostly,
homosexuals are still hesitant to expose themselves in public settings such as schools,
residences, and businesses due to social stigma. It is frowned upon in most Indian
societies. Most Indian families accept homosexuality until one of their own family
members turns out to be one. Homosexual conflicts begin at home. The initial reaction
they receive from their families is to return them to conventional sexual preferences.

39
Homosexuals are concerned that their own families may reject them. There are several
cases that demonstrate that they have faced rejection, even when some of them have
had the confidence to disclose themselves. They have been pressured to conceal their
identities or to act heterosexual when they do so. They have been pressured to marry
against their will.

Indeed, unless the attitude of society towards the members of the LGBT community in
India changes, the fight for civic, social, and political equality is far from over,
irrespective of a constitutional status as equal citizens.

While the laws have changed, violence and discrimination against them still exists.

The following are the key issues that LGBTQ individuals confront even after
homosexuality has been decriminalized –

1. Social Exclusion and Marginalization

LGBTQ persons confront harsh realities such as social marginalization, loneliness, and
identity seclusion. They become ostracized as a result of the community's failure to
recognise LGBT individuals as members. They are not recognised for who they are and
are socially punished as a result of their LGBTQ status.

People believe that being gay is a sin, and this mindset causes a significant impact on
the mental health of queer folks. They often become isolated as they acquire low self-
confidence and self-esteem. Because of the marginalisation and social exclusion, they
have restricted access to vital social resources such as education, employment, and
health care.

2. Online Bullying

Social media portray and influence societal ideas. Individuals who are vulnerable,
alone, or alone might find a feeling of community through social media. As a result,
social media may serve as a safe haven for the many LGBT persons throughout the
world who endure prejudice and harassment on a daily basis. Social media reduces
LGBT people’s isolation by serving as a tool for people on their personal journeys and
hardships to begin reaching out to and connecting with allies and like-minded others.

However, the negative effects of social media cannot be ignored since social media
platforms are powerful enough to stifle LGBT voices. This world is not always what it

40
appears to be. LGBT persons are ridiculed, harassed, and mocked. Homophobic and
transphobic terms are frequently thrown around as “humour” or “friendly joke”.
‘Meetha’ which is a derogatory way of saying gay is often used as an insult in a banter.
Basically, a human male being gay is seen as an insult.

Various social media platforms have been researched to see if social media users are
supportive of the LGBT community. The majority of the tweets are in support of LGBT
people and focus around equality, justice, and the LGBT community’s human rights.
Following the amendment of Section 377, Twitter was swamped with hashtags such as
#LoveIsLove, #LoveWins, #LGBT, #IndiaRejects377, #377Scrapped,
#IndiaForGayRights, and so on. Since then, tweets have not stopped and have appeared
all throughout India. In India, the debate on Twitter is mainly friendly and supportive
of LGBT rights. The limited number of tweets opposing the ruling, on the other hand,
sees it as a danger to Indian culture, rites, traditions, and the family system.

3. School and Workplace Bullying and Harassment

Due to lack of a comprehensive framework to protect and safeguard the interest of all
queer folks, they are often bullied and mocked for being gay. Ragging of LGBT
youngsters marginalises them in society and exposes them to social isolation. Queer
people are hesitant to reveal their sexual orientation because they fear heterosexism and
homophobia from friends, family, and society. The majority of young LGBT persons
believe that coming out will jeopardise their physical and mental well-being, so they
prefer to conceal their identities, a behaviour that can lead to suicidal thoughts, despair,
and substance abuse.

4. Conversion “Therapy”

Conversion therapy is a dangerous and debunked treatment that purports to transform

a person's gender identity, sexual orientation, or expression. Individuals continue to
send their children to conversion therapy despite mental health organisations’
condemnation of it due to prejudice and prejudicial behaviour toward LGBTQ people.
Conversion treatment increases the stigma attached to homosexuality and violates the
idea of fairness. Even after homosexuality has been decriminalised, incidents like this
continue, demonstrating that simply decriminalising homosexuality is insufficient;
conversion therapy and other similar techniques must also be criminalised.

41
 5. Family Reactions to LGBTQ

Many LGBT individuals are hesitant to openly share their life due to fear of rejection
and severe negative reactions. Fighting and family disturbances come from a lack of
communication and understanding of their gender identity, which can result in an
LGBT teenager being removed from or driven out of the home. Because of familial
discord, many LGBT adolescents wind themselves in juvenile jail, Foster care, or on
the streets. All of these problems weaken their self-esteem and raise their risk of HIV
and the use of health-harming substances such as drugs and alcohol. They also become
victims of numerous horrible crimes, and many of them engage in criminal activity.

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 CHAPTER-6

CRITICAL EVALUATION OF TRANSGENDER PERSONS

(PROTECTION OF RIGHTS) ACT 2019

As a response to the Supreme Court's landmark decision in NALSA judgement in 2014,

in which the Court recognized transgender people's right to choose their gender
identity, the Transgender Persons (Protection of Rights) Act, 2019 was passed by the
legislature and received Presidential assent on December 5, 2019. The objective of the
Act, as stated therein, is to provide for protection of rights of transgender persons and
their welfare and for matters connected therewith and incidental thereto.

6.1 BACKGROUND

Prior to NALSA, various criminal and civil laws such as, the Indian Penal Code,
National Rural Employment Guarantee Act, 2005, and Hindu Succession Act had
gender-specific clauses that recognized only two gender categories namely man and
woman.

The NALSA decision reinforced a centuries-old struggle that compelled the state to
acknowledge and protect gender identities. Soon after the decision, Tiruchi Siva
presented the Transgender Rights Bill 2014 as a private member's bill, and for the first
time in 45 years, a private member's bill was approved by the Upper House. It seemed
as a ray of hope that the Supreme Court decision would soon be enacted into legislation.
The Bill had 58 clauses divided into ten chapters that addressed various issues such as
social inclusion, education, rights and entitlements, skill development, financial and
legal help and; the prevention of abuse, violence, and exploitation. The Bill, however,
never became law.

The Ministry of Social Justice and Empowerment released a model of the Transgender
Persons Protection of Rights Bill, 2016, in December 2015. It was harshly criticized by
activist groups. It was said that the Bill provided a demeaning and scientifically
erroneous description of a transgender person as being partly male and partly female or
an incomplete person using the binary gender as a reference point. It went against the
definition of transgender supplied by the Supreme Court's NALSA decision, the private
member's bill, and the Union government's own expert group on transgender people.

43
Furthermore, the 2016 Bill allowed for a district screening committee headed by a
district magistrate to confirm a person's third gender identification, which participants
of the debate considered objectionable. Another crippling elimination in the 2016 Bill
was the removal of a section from a Private Member's Bill that advocated the
establishment of National and State Transgender Welfare Commissions. According to
the government's draught, the National Council for Transgender Persons would be a
vast bureaucratic organisation with no enforcement powers, leaving it ineffective to
safeguard rights. The 2016 Bill also removed the provision allowing transgender people
to be given preference in education and work, as instructed by the Supreme Court and
included in the private member's bill. It also avoided addressing crucial matters like as
marriage, inheritance, and adoption, among others.

Eventually, the Transgender Persons Protection of Rights Bill, 2019 was passed as a
legislation on fifth day of August in 2019 and called the “Transgender Persons
(Protection of Rights) Act 2019”. The Act gives everyone power and equality except
for queer population. Despite the fact that the measure was enacted after much work, it
is not much of good use in the community and has various gaps.

6.2 ISSUES WITH THE TRANSGENDER PERSONS (PROTECTION OF

RIGHTS) ACT 2019

6.2.1 PROBLEMATIC DEFINITION OF ‘TRANSGENDER’

According to the Act, a ‘transgender person’ is someone whose gender does not
match the gender assigned to them at birth, and includes trans-men and trans-
women, people with intersex variations, gender queers, and people with socio-
cultural identities such as ‘kinnar’, ‘hijra’, ‘aravani’, and ‘jogta’.

This definition considers an individual whose gender identity does not conform
with the sex assigned at birth as a ‘transgender’ irrespective of whether they
have undergone Sex Reassignment Surgery, Hormone Therapy, Laser Therapy,
or any other therapy. However, in reality, transgender and transsexual are not
exactly the same. While a transgender individual merely indulges in expression
of gender through the choice of clothes, hair, accessories etc., as per their gender
identity and is capable of shifting between a male and a female; a transsexual is
a transgender individual who has undergone sex reassignment surgery that is

44
irreversible and therefore, incapable of modification. Though, the non-
separation of transsexual from transgender is not as big an issue as the others.

The Act is oblivious to the diversity that occurs among transgender people. The
categorization of intersex individuals as ‘transgender persons’ is problematic
since an intersexual person may or may not identify as transgender. According
to the Standing Committee findings, the 2016 Bill did not incorporate,
recognize, and/or safeguard the interests of intersex people since the problems
of transgender people and intersex people remain distinct. As a result, it was in
favor of renaming the Bill “The Transgender and Intersex Persons (Protection
of Rights)”. However, the Ministry’s stance was that changing the title of the
Bill would be pointless since “Transgender” is an umbrella term in the Bill. But
according to a study, when intersex persons become simply another subgroup
of “transgender”, their distinctive needs become invisible or secondary.
Therefore, the inclusion of people of intersex variation within the definition of
‘transgender’ does not safeguards their interest and defeats the purpose of this
legislation.

6.2.2 THE “PROCEDURE” OF RECOGNITION OF TRANSGENDER

PERSONS

The 2016 Bill was criticized over suggestion of the formation of “screening
committees” to identify trans persons because the requirement
for psychological or medical certification is based on the idea that trans people
suffer from psychological disorders and need medical intervention.

The 2019 Act made no mention of “screening committees”, but it does require
trans individuals to apply to the District Magistrate for the issuing of the
certificate of recognition in order to avail benefits under this act. The District
Magistrate will do so, “after following such procedure and in such form and
manner, within such time, as may be prescribed indicating the gender.” The
“procedure”, however, is not explained in this document. Though, it is not
unreasonable to think that the District Magistrate will depend on the opinion of
medical professionals when providing the certificate. As a result, the Act
includes a “implied and indirect” screening mechanism for giving the certificate
to trans individuals.

45
Though the legislation stipulates that a transgender person has the right to self-
perceived gender identity, greater clarity on the “procedure” would be
preferable. This method of requesting for a certificate and following a certain
protocol may be seen antithetical to the spirit of the NALSA judgement, which
defined privacy, gender self-determination, and personal autonomy as basic
rights of transgender people.

Also, the Act gives the district magistrate the authority to issue the ‘Certificate
of Identification’ required to claim benefits under this Act but does not provide
for any recourse action in case the District Magistrate were to deny the
certificate.

6.2.3 EDUCATIONAL AND CAREER OPPORTUNITIES FOR

TRANSGENDER PERSONS

The Supreme Court's NALSA decision urges the government to make efforts to
classify transgender individuals as “socially and educationally backward
classes” of citizens, and to extend all forms of reservation in admissions to
educational institutions and public positions. The Expert Committee also
proposed that the government give scholarships, fee waivers, free textbooks,
and free hostels, among other things. However, the Act simply states that
educational institutions must provide “inclusive education” and opportunity for
transgender people to participate in sports, recreation, and leisure activities
without prejudice. It cites a “inclusive education system”, but says nothing
about how to accommodate transgender people in educational institutions.

In its report, the Expert Committee advised establishing a hotline for career
counselling, promotion, and online placement assistance. In its report, the
Standing Committee made a similar recommendation. It voted to create a
separate provision directing the implementation of certain measures such as
guidance, career and assistance. Unfortunately, the Act is silent on these points.
It solely specifies the "non-discriminatory clause" in terms of recruiting,
promotion, and other employment difficulties. However, it does not put any
active responsibility on the government to offer work possibilities for
transgender individuals.

6.2.4 ANTI-DISCRIMINATION PROVISIONS

46
There is now a particular rule prohibiting discrimination against transgender
people. A transgender individual cannot be discriminated against on aspects
such as education, work, healthcare, the ability to purchase, reside and/or
occupy property, the freedom to relocate, the possibility to run for public or
private office, access to government or private establishments, and so on.
However, no penalty has been specified for anyone who does not comply and
does, in fact, discriminates against a transgender individual, and no monetary
compensation is guaranteed if a transgender person is discriminated against.
Furthermore, no specific enforcement authority has been specified. Due to lack
of any remedy under the Act, it seems that the protection intended for
transgender community would be rendered ineffective.

6.2.5 OFFENCES AND PENALTIES

The Act provides for certain specifically recognized offences against

transgender persons such as; forcing them to work in bonded labour, denying
them the right of passage, forcing them to leave their place of residence, injuring
them, endangering their life, safety, health and well-being or sexually abusing
them, and so on.

All the above-mentioned offences are punishable with minimum six-month

imprisonment to a maximum of two-years imprisonment along with a fine under
this act. These rules appear to be watered-down version of existing criminal
legislation, which punishes comparable conduct against persons of binary
genders with a minimum of seven-years’ imprisonment under Indian Penal
Code.

The main disadvantage of the Act is that, in comparison to the IPC, it lessens
the period of penalty for rape and violence against members of the transgender
community. There is a significant difference in the penalties for sexual assault
on a transgender person as against a cisgender person. Sexual offences against
cis-women carry harsher sanctions, which might include life imprisonment.
This discrimination between binary and non-binary persons violates Article 14
of the Constitution of India.

“The message is, rape a woman; yes, very bad; rape a child, worse; but, the
trans-genders, these people are on streets, they are begging, they are under high

47
risk, and what is this Bill that we are passing?” commented Trinamool Congress
MP Derek O” Brien on the extent of punishment of offence of sexual assault
against a transgender person.

This substantial difference between the extent of punishment for the offences of
similar nature against people of binary and non-binary genders is indicative of
treating the transgender people as less than humans; which is a terribly wrong
message passed by the authorities.

6.2.6 WELL-BEING OF TRANSGENDER MINORS

The Standing Committee was extremely sensitive to the concerns of trans-

children. In its report, the Committee highlighted the abuse and harassment of
trans-children at the hands of their own family members. It was mentioned that
the family is the source of violence, abuse, and denial of identity for young
transgender people. The family and the natal home become locations where
transgender children and minors’ rights of determining, accepting,
communicating and expressing their genders are severely limited. They are
often forced to leave their homes to escape the domestic abuse and have
nowhere to go. In such situations, trans-children are forced to seek sanctuary
with ‘Hijra’ families, ‘Jamaats’ or ‘dormitories’. The ‘Hijra’ elders take them
in as their own children, and the ‘Hijra community’ becomes their family and
friends.

The 2019 Act entirely disregards this crucial part of transgender people’s life.
It disregards the Standing Committee’s observations. It stipulates that
transgender children cannot live apart from their families unless the court orders
it. As a result, even if the family is abusive, a transgender minor cannot opt to
live in a supportive community on his own. The Standing Committee had also
advocated establishing an alternate family structure. It instructed state
governments to establish transgender-specific rehabilitation centers to meet
their unique requirements. However, it is still absent from the Act.

6.2.7 SCHEMES FOR WELFARE OF TRANSGENDER PERSONS

The Expert Committee had recommended a set of welfare measures to

accomplish the purpose of this act. They were the following –

48
1. An Umbrella Scheme for transgender persons may be formulated for
empowerment of this community.
2. A Crisis Counselling Services on the model of Rape and Crisis Intervention
Centres, to cope up with trauma and violence.
3. Ensure housing and rehabilitation through the housing assistance schemes
with the help Ministry of Rural Development and Ministry of Housing and
Urban Poverty Alleviation.
4. Widening the mandate of one of the Corporations for providing the
economic support to transgender community.
5. Establishment of effective linkages with vocational training centres run by
private and Government agencies for providing vocational training to this
community.
6. A National Council for Transgender persons may be considered on similar
lines as that of the National Councils for Senior Citizens.

However, the Act has again disappointed. Under Chapter IV, titled as “Welfare
Measures by Government” the Act only mentions that the government should
establish welfare programmes and efforts to accommodate transgender people
in the mainstream of society. Except for the provision of the establishment of
the National Council for Transgender Persons, the Act does not give any
guidance on what actions the government should take, nor does it mention to
the area where welfare operations should be carried out. Furthermore, the Act
deviated from the NALSA decision by deleting the provisions for the
establishment of National and State Transgender Welfare Commissions and
replacing them with the National Council for Transgender Persons.

6.2.8 NATIONAL COUNCIL FOR TRANSGENDER PERSONS

The Act mandates for the creation of a National Council for Transgender
Persons comprising at least 30 members. The transgender community is
represented by only five people out of those 30. Furthermore, the individuals
would be appointed by the Central Government, undermining their autonomy
greatly. Every member who is not a central government official is to be
nominated by the central government, calling into doubt the Council’s

49
independence, separation from the government, and hence its capacity to
criticize the administration.

6.2.9 PUBLIC SENSITIZATION AND AWARENESS

The Governments; both at the state and center should adopt an “inclusive
approach” towards the transgender persons so that they feel that they are also
part and parcel of the society and not be viewed as outcasts. With this objective
in mind, the Committees had mentioned various methods to sensitize people on
transgender issue, such as –

1. to utilize the existing forums like the Anganwadi Centres and Self-Help
Groups and involved them to providing information the parents of gender
non-conforming youths and public, in general
2. to adopt measures for generating awareness at various levels such as
schools/colleges, Government and private offices, police stations, etc.
regarding concerns of transgender persons.

However, this act contains no such provisions which ensure sensitization and
awareness.

50
 CHAPTER-7

EMPIRICAL STUDY ON SOCIETAL ATTITUDE AND

AWARENESS TOWARDS THE LGBTQ COMMUNITY

7.1 INTRODUCTION

This chapter deals with the societal attitude and awareness of general population
towards the LGBTQ community in India. An empirical survey has been conducted in
the city of Gurugram with the aim of collecting and analyzing the data in order to
understand the social perception of the sample population regarding the people of
LGBTQ community and to confirm their level of awareness regarding the LGBT
community and the LGBT rights.

Random sampling method was used to select 93 respondents to answer the

questionnaire designed by the researcher to trace the behavior and practices of the
people along with their opinion regarding the existence and rights of people belonging
to LGBTQ community in India.

The questionnaire used for the study has a total of 17 questions divided into three
sections.

The first section has been used to collect the demographic information of the population
being surveyed so that the remaining information collected from the respondents have
some basis to categorize the data during analysis. The standard questions such as name,
age, sex, and level of qualification of the respondent has been asked in this section along
with questions about their sexual orientation and status as supporter or non-supporter
of LGBTQ. The people interviewed in this survey form have been ensured
confidentiality in order to receive honest responses and avoid skewed results.

The second section titled ‘Attitude, Belief and Practices’ aimed at collecting the
information regarding the daily practice and usual behavior of the respondents around
the people of LGBT community as well as their perception about the LGBTQ persons
in general. This section of the survey form was also aimed at investigating the extent
of LGBT talk in the lives of such respondents.

The third section titled ‘Legal Awareness relating to LGBT Rights’ aimed at collecting
information regarding the legal awareness of the respondents i.e., their level of

51
awareness about the LGBT rights in this country and about the human rights of the
LGBT individuals as obligated by the United Nations.

The construction tool called ‘Google Forms’ provided by the Google has been used to
design the survey form. Since, not all the people in this country are tech-savvy and it
was the researcher’s intention to have representation in the survey from people of all
the age, income and literacy groups; the responses have been collected through
interviewing people at the public places.

Although it must be noted that considering the taboo nature of ‘LGBT’, it was not easy
to receive participants for the study. Many people refused to participate in the study
when they were informed of the topic of the research and therefore, the study is limited
to those 93 respondents who willingly participated in the study and wanted to put forth
their opinion.

Thus, finally the responses of 93 individuals have been collected, analyzed and
represented below.

7.2 DATA ANALYSIS AND INTERPRETATION

Section 1: Demographic Information of the Respondents

The first question asked under this survey form was the name of the respondent; though
that remains confidential and therefore need not be mentioned here.

The next six questions that were part of the first section of the survey form aimed at
collecting demographic information of the sample population were about their age,
highest level of education, status as LGBT, ally or other, sex assignment at birth, current
gender identity and sexual orientation respectively.

Age: The question about the age of the respondents was a multiple-choice based
question with different age-range provided as the options i.e., ‘Less than 18’, ’18-
21’,’22-25’, ’26-29’, ’30-50’, ’51-60’ and ‘Over 60’.

The objective behind this question was to understand the kind of sample population in
order to draw inferences regarding the relationship between age and awareness on
LGBT.

Following were the results –

52
Table 1: Age of the respondents

AGE-GROUP <18 18-21 22-25 26-29 30-50 51-60 60+ Total

NUMBER OF
11 18 24 16 18 4 2 93
RESPONDENTS

AGE OF THE RESPONDENTS (IN YEARS)

51-60 Over 60 Less than 18
4% 2% 12%
30-50
19%
18-21 Less than 18
20% 18-21
22-25
26-29
30-50

26-29 51-60
17% Over 60

22-25
26%

Figure 1: Age of the respondents

As evident with the above diagram, the people from age group of 22 to 25 years of age
have the highest participation in this study, followed by 18 to 21 years of age whereas
the people over 50 years of age have very low participation rate since LGBT is still a
taboo in this society and the older people are more conservative over such matters so
much so that many would not even be willing to put forth their opinion on the matter
in public.

Highest level of education: The question about the highest level of education enlisted
the options- ‘High School Graduate’, ‘Intermediary School Graduate’, ‘Bachelor’s
Degree’, ‘Master’s Degree’ and ‘Other’. The respondents were asked to mark the
answer according to the highest level of education they have completed, for example,
if a respondent were a student of 11th standard, they would mark ‘High School
Graduate’ since they have completed 10th standard but not 12th standard. As such if
respondents had not graduated even from 10th standard or had completed education

53
higher than a master’s degree, they were required to choose ‘other’ and then, mention
their highest level of education.

The objective behind this question was to understand the kind of sample population in
order to draw inferences regarding the relationship between literacy and awareness on
LGBT.

Following were the results –

Table 2: Level of Qualification of the respondents

High Intermediary
LEVEL OF Bachelor’s Master’s
School School Other Total↓
QUALIFICATION Degree Degree
Graduate Graduate
NUMBER OF
3 32 46 8 4 93
RESPONDENTS

LEVEL OF QUALIFICATION
High School Graduate Intermediary School Graduate Bachelor's Degree
Master's Degree Other
High School
Other Graduate
Master's Degree 4% 3%
9%
Intermediary
School Graduate
34%

Bachelor's Degree
50%

Figure 2: Level of Qualification of the respondents

As evident with the above diagram, nearly 50% of the respondents have completed
Bachelor’s Degree as their highest level of education, followed by 34% participation
from intermediary school graduate and 3%, 9% and 4% for high school graduate,
master’s degree and other respectively. Among the 4 respondents that marked ‘other’;
3 have completed a PhD while one has attended school only till 8 th standard.

54
Status of the Respondents: This question was framed as “What best describes you?”
whereby the options were- “Belong to LGBTQ community”, “Ally to LGBTQ” and
“None of the above”.

An ally to LGBTQ means someone who supports and encourages LGBTQ people.
Anyone who is in favor of LGBT rights is an ally by this concept.

Since, LGBTQ is still a taboo in this society, people do not easily ‘come out’ as LGBTQ
and hardly accept it in public. Therefore, for the betterment of the survey, respondents
were promised confidentiality and encouraged to be honest about it. Fortunately, 14 of
the respondents were definitely honest while there may or may not be certain other
individuals among the participants who recognize as part of LGBTQ community.

Table 3: Status of Respondents

Belong to None of the

STATUS Ally to LGBTQ Total↓
LGBTQ above
NUMBER OF
14 39 40 93
RESPONDENTS

STATUS OF THE RESPONDENTS

Belong to LGBTQ community Ally to LGBTQ community None of the above

Belong to LGBTQ
community
15%
None of the above
43%

Ally to LGBTQ
community
42%

Figure 3: Status of the respondents

55
Sex assignment at birth: At the time of the birth, a medical professional inspects the
external genitalia of the infant and discern the sex i.e. male or female. This question
asks what sex was assigned to the respondents at the time of birth to establish any
changes with the following question. The options were “Male”, “Female” and “Prefer
not to say”.

Out of 93 respondents, 52 opted “male” and 41 opted “female”.

Current Gender Identity: It was a follow-up question for such individuals who may
not conform with the sex assigned to them at birth. The options were “Cisgender Male”,
“Cisgender Female”, “Transgender/ Transsexual”, “Other”. Explanatory descriptions
were given with each option in order to not cause confusion.

The term ‘cisgender’ is used for such individuals whose gender identity is in conformity
with the sex assigned to them at birth.

Table 4: Sex assignment of the respondents at the time of birth

SEX
ASSIGNMENT Male Female Prefer not to say Total↓
AT BIRTH
NUMBER OF
52 41 0 93
RESPONDENTS

Table 5: Current gender-identity of the respondents

Transgender/
Transsexual
GENDER Cisgender
Cisgender Male Male Female Other
IDENTITY Female
to to
Female Male
NUMBER OF
49 39 3 1 1
RESPONDENTS

56
 SEX ASSIGNED AT CURRENT GENDER
BIRTH IDENITY
Transgender/
Other
Transsexual
1%
4% Cisgender
Female Male
Male 53%
44% 56%

Cisgender
Female
42%

Figure 4: Sex assignment (4.1) and current gender-identity of the respondents (4.2)

On comparing above table 4 and 5 as well as two diagrams of figure 4, one will notice
that out of the 41 respondents that were assigned female sex at the time of birth, one
recognizes as female to male transgender/ transsexual while another recognizes with a
gender identity not provided in the options. Out of 52 respondents that were assigned
male sex at the time of birth, 3 recognize as male to female transgender/ transsexual.

Sexual Orientation: The last question of section 1 was about the sexual orientation of
the respondents where the options presented were ‘Heterosexual’, ‘Homosexual’,
‘Bisexual’ and ‘Other’. In the survey form, each of the options under this question was
accompanied with an explanatory description to ascertain correct results. The option of
“Other” was accompanied with a blank space so that the respondent can mention
whatever sexual orientation they believe to have. In this case, the respondents to opt
“other” defined their orientations as ‘Pansexual’ and ‘Bi-curious’.

Table 6: Sexual Orientation of the respondents

SEXUAL
Heterosexual Homosexual Bisexual Other Total↓
ORIENTATION
NUMBER OF
79 1 8 5 93
RESPONDENTS

57
 SEXUAL ORIENTATION
Heterosexual Homosexual Bisexual Other
Other
Bisexual 5%
Homosexual 9%
1%

Heterosexual
85%

Figure 5: Sexual Orientation of the respondents

This is the end of the questions of the section one of the survey form but before moving
on to the section two of the survey form, the researcher here would like to highlight an
interesting pattern between the respondents’ age, level of qualification and identity as
LGBTQ, Ally or Non-Supporter.

Table 7: Correlation between age and status of the respondents

Status→ Belong to LGBT Ally to LGBT None

Total↓
Age-group↓ community community (Non-Supporter)
Less than 18 0 6 5 11
18-21 3 15 0 18
22-25 10 13 1 24
26-29 0 1 15 16
30-50 0 3 15 18
51-60 1 1 2 4
Over 60 0 0 2 2
Total→ 14 39 40 93

58
Table 8: Correlation between qualification and status of the respondents

Status→ Belong to LGBT Ally to LGBT None

Total↓
Qualification↓ community community (Non-Supporter)
High School
1 0 2 3
Graduate
Intermediary
2 21 9 32
School Graduate
Bachelor’s
11 16 19 46
Degree
Master’s Degree 0 2 6 8
Other 0 0 4 4
Total→ 14 39 40 93

CORRELATION BETWEEN THE

RESPONDENTS' AGE AND STATUS AS
LGBTQ , ALLY OR OTHERS
24
NUMBER OF RESPONDENTS

18

18
16

15

15
15
13
11

10

5
4

3
2

2
2
1
1

1
0
0

Respondents that are

Respondents that are Respondents that are
All Respondents neither LGBTQ nor
LGBTQ Ally
Ally
<18 11 0 6 5
18-21 18 3 15 0
22-25 24 10 13 1
26-29 16 0 1 15
30-50 18 0 3 15
51-60 4 1 1 2
60+ 2 0 0 2

Figure 6: Correlation between age and status of the respondents

59
 CORRELATION BETWEEN THE
RESPONDENTS' LEVEL OF QUALIFICATION
AND STATUS AS LGBT, ALLY OR OTHERS

46
NUMBER OF RESPONDENTS

32

21

19
16
11

9
8

6
4

4
3

2
1

0
0

0
0
Respondents
Respondents Respondents
All Respondents that are neither
that are LGBT that are Ally
LGBT nor Ally
High School Graduate 3 1 0 2
Intermediary School Graduate 32 2 21 9
Bachelor's Degree 46 11 16 19
Master's Degree 8 0 2 6
Other 4 0 0 4

Figure 7: Correlation between the level of qualification and status of the respondents

Observations:

1. The population aged between 22 to 25 years of age and having completed

bachelor’s degree have the highest representation in the study.
2. More people between the age of 22 to 25 years of age recognize themselves to
be part of LGBTQ community while more people between the age of 18 to 21
years of age are supporters of LGBT rights i.e., they are ally to LGBTQ
community.
3. Bachelor’s Degree graduates have higher number of people belonging to
LGBTQ community while Intermediary School Graduates have higher number
of allies.
4. While there are high school graduates who recognize as part of LGBTQ, there
are no allies that are high school graduates even though there are some who are
neither LGBTQ nor ally which doesn’t make it unreasonable to assume that
people tend to have minimal to no awareness about LGBTQ in high school and
believe in the notions and perceptions passed onto them through older
generations.

60
 5. Most people over 30 years of age are not the supporters of the LGBT rights.

Section 2: Attitude, Belief and Practice

This section of the survey form enquired about the attitude, beliefs and practices of the
respondents in order to better gauge the societal perception towards the LGBTQ
community and their rights.

Q: How comfortable are you interacting in-person with the following set of people
from LGBT community?

Table 9: Level of comfort around people of LGBTQ

Options→ Highly Somewhat Somewhat Highly

Neutral
Category of Comfortable Comfortable Uncomfortable Uncomfortable
No. (%)
people↓ No. (%) No. (%) No. (%) No. (%)
Gay 53 0 7 12 21
Men (56.9%) (0%) (7.5%) (12.9%) (22.5%)
Lesbian 53 12 26 2 0
Women (56.9%) (12.9%) (27.9%) (2.1%) (0%)
Bisexual 53 0 7 12 21
Men (56.9%) (0%) (7.5%) (12.9%) (22.5%)
Bisexual 89 2 0 2 0
Women (95.6%) (2.1%) (0%) (2.1%) (%)
Male to Female
50 3 0 6 34
Transgender/
(53.7%) (3.2%) (0%) (6.4%) (36.5%)
Transsexual
Female to Male
52 1 37 1 2
Transgender/
(55.9%) (1.1%) (3.9%) (1.1%) (2.1%)
Transsexual

Observations:

1. All 14 respondents belonging to LGBTQ community are highly comfortable

around any other member of LGBTQ.
2. Out of 39 respondents that are allies to LGBTQ, a few are considerably less
comfortable around a transgender or transsexual individual while they have no
issues interacting with an individual of different sexual orientation. Even among

61
 those who are less comfortable around a trans-person, higher number of allies
are less comfortable around male to female trans-person than female to male
trans-person, when asked about the same they replied with statements such as
“they were still men at some point who may be dangerous, women are not
harmful”.
3. Out of 40 respondents that are neither LGBTQ nor ally, a considerably higher
number of people are extremely comfortable to interact in-person with bisexual
women in comparison to any other member of LGBTQ community; when asked
about the reasons, the replies received were along the lines of “A girl who can
be with me and another girl at the same time would be fun”.
4. With all the answers received, it seems to be the perception that no matter what
gender-identity or sexual orientation an individual adopts; a person born as male
would always be looked upon as ‘dangerous’ while a person born female would
always be looked upon as ‘fragile’ or ‘vulnerable’. Even within diversity, the
stereotypical notions from the world of binary-people seem to be ruling.

Q: Please select whether you agree or disagree with the following.

Table 10: General statements relating to LGBTQ

Maybe/ No
Options→ Agree Disagree
S.No. Not Sure Opinion
Statements↓ No. (%) No. (%)
No. (%) No. (%)
LGBTQ persons' actions are 6 42 11 34
1
against what God intended ( 6.4%) (45.1%) (11.8%) (3.6%)
Homosexuality, Bisexuality
12 67 3 11
2 and Transgenderism are
(12.9%) (72%) (3.2%) (11.8%)
mental illnesses
Homosexuality, Bisexuality
and Transgenderism are 19 42 15 17
3
results of too much freedom (20.4%) (45.1%) (16.1%) (18.2%)
and liberalism
Homosexuality, Bisexuality
and Transgenderism are 14 53 26 0
4
results of people foregoing (15%) (56.9%) (27.9%) (0%)
their traditional values

62
 Homosexuality, Bisexuality
34 53 0 6
5 and Transgenderism are
(36.5%) (56.9%) (0%) (6.4%)
unnatural.
People of LGBTQ
community in India shall 87 6 0 0
6
have equal access to (93.5%) (6.4%) (0%) (0%)
employment opportunities
Same-sex marriages should 45 34 4 10
7
be made legal in India (48.3%) (36.5%) (4.3%) (10.7%)
People of LGBTQ
community in India shall 50 40 0 3
8
have the right to marriage (53.7%) (43%) (0%) (3.2%)
and adoption
Students should be exposed
to age-appropriate lessons 21 40 0 3
9
about LGBTQ in the school (22.5%) (43%) (0%) (3.2%)
or college curriculum
Government should spread
awareness about LGBTQ 53 17 16 7
10
community to debunk myths (56.9%) (18.2%) (17.2%) (7.5%)
and increase acceptance

SUPPORT FOR LGBT RIGHTS

NO. OF RESPONDENTS IN SUPPORT

100
80
60
40
20
0
Same-sex marriage Equal Employment Right to marriage Government-run Age-appropriate
Opportunities and adoption awareness lessons in school
schemes curriculum

All Respondents
Respondents that are LGBTQ
Respondents that are Ally
Respondents that are neither LGBTQ nor Ally

Figure 8: Statistics of respondents in support of providing specific LGBT rights and taking specific
actions for LGBTQ

63
Observations:

1. Even though almost 50% of the sample population claimed to be neither

LGBTQ nor an ally, many of them seem to be able to accept changes in favor
of LGBTQ community.
2. Only a few respondents still believe queer behavior to be mental illness or anti-
God.
3. Though a higher number of people think it to be unnatural. Due to
heteronormativity notion, many people still think any form of sexual intercourse
which would not result in procreation is unnatural. When these respondents
were asked to put aside procreation and think of sexual intercourse as only a
medium of pleasure, some of them agreed that what one does for one’s pleasure
is not anyone else’s business and shouldn’t be an issue.
4. Nearly 95% of the respondents agreed that members of LGBTQ community
shall have equal employment opportunities while only 50% agreed to them
having right to marriage and adoption. It indicates that people do not completely
repel the queer behavior and they would mostly accept the LGBTQ members as
their colleagues; problems only arise when it comes to starting a family or doing
things that are associated with religion, culture, custom or tradition which begs
the question if our ancestor’s teachings are the real root of all the problems and
not the queer behavior. The researcher strongly believes that to be the case.
5. The number of ally in favor of providing LGBTQ with “right to marriage and
adoption” is slightly as to “same-sex marriage” even though the implication
would be the same and the only reason for such difference is that “same-sex”
associated with the word “marriage” sounds bizarre to some people.
6. Majority of the sample population agrees that the government should spread
awareness about the LGBTQ in order to debunk myths and increase their
acceptance in the society while they seem skeptical to the idea of spreading that
awareness among the youth through exposure to age-appropriate lessons in
school or college curriculum since only 20% agree to it. Many believe it to be
the case that if the youth is exposed to this information during school tenure
then they would be badly influenced by it and would want to turn gay which
only goes to show that even people claiming to be aware and/or ally are not fully
aware about how it all works since it has already been established by various

64
 studies time and again that it is not a peer-pressure activity but how you’re born.
The only degree of choice at play is about how much and whether one wants to
express it and not over whether you are or are not it.

Q. Please select whether you agree or disagree with the following statements

Table 11:

Maybe/ Not Sure/

Options→ Agree Disagree
Don’t Know
Statements↓ No. (%) No. (%)
No. (%)
86 7 0
My family does not speak about LGBT
(92.5%) (7.5%) (0%)
12 41 40
My friends do not speak about LGBT
(12.9%) (44.1%) (43%)
28 19 46
My family has no awareness about LGBT
(30.1%) (20.4%) (49.5%)
My friends have no awareness about 0 41 52
LGBT (0%) (44.1%) (55.9%)
9 5 79
My family does not support LGBT
(9.7%) (5.4%) (84.9%)
4 37 52
My friends do not support LGBT
(4.3%) (39.8%) (55.9%)

Table 11.1: Derivative Information about family and friends of all the respondents

Family Friends
Don’t Don’t
Yes No Yes No
Know Know
Awareness about
19 28 46 41 0 52
LGBT

Dialogue about LGBT 7 86 0 41 12 40

Support for LGBT 5 9 79 37 4 52

65
Table 11.2: Derivative Information about family and friends of the respondents that are LGBTQ

Family Friends
Don’t Don’t
Yes No Yes No
Know Know
Awareness about
14 0 0 14 0 0
LGBT

Dialogue about LGBT 7 6 1 14 0 0

Support for LGBT 5 9 0 14 0 0

Table 11.3: Derivative Information about family and friends of the respondents that are Ally

Family Friends
Don’t Don’t
Yes No Yes No
Know Know
Awareness about
5 16 19 27 0 12
LGBT

Dialogue about LGBT 0 39 0 27 12 0

Support for LGBT 0 0 39 23 4 12

Table 11.4: Derivative Information about family and friends of the respondents that are neither LGBTQ
nor Ally

Family Friends
Don’t Don’t
Yes No Yes No
Know Know
Awareness about
0 12 27 0 0 40
LGBT

Dialogue about LGBT 0 41 0 0 0 40

Support for LGBT 0 0 40 0 0 40

Observations:

1. Out of 14 respondents who identify as members of LGBTQ community, 5

individuals acknowledged that both their family and friends have awareness

66
 about LGBT and that they support them while 9 individuals mentioned that their
families have awareness about it but do not support them though their friends
do support them.
2. Out of 39 respondents who identify as ally to LGBTQ, 5 individuals mentioned
that their families have awareness about LGBT but they do not speak about it at
home and so they don’t know if their families support LGBT rights. However,
all their friends have awareness as well as dialogue about LGBT and they
support LGBT rights.
3. Out of 39 respondents who identify as ally to LGBTQ, 16 individuals confirm
that their families have no awareness about LGBT while 19 individuals cannot
say for sure if their families have any awareness and 12 of them have the same
confusion about some of their friends. While 27 of them mentioned that though
all their friends have awareness, 4 believe their friends do not support LGBTQ.
4. Out of 40 respondents who are neither LGBTQ nor Ally, not one of them agrees
for their family and friends to have awareness or support for LGBT, nearly all
of them are unsure about the same.
5. Nearly 90% of the respondents agree that their families do not talk about LGBT
while families of 30% do not even understand the concept, it goes to show that
LGBTQ is still a taboo in our society and as long as it remains so, awareness
and acceptance will not increase while it is the need of the hour since only
through awareness and social acceptance we can ensure implementation of anti-
discrimination and human rights of LGBT.

Q. Please select the frequency in which you have indulged in the following

Table 12:

Options→ Never Rarely Sometimes Often Always

Activity↓ No. (%) No. (%) No. (%) No. (%) No. (%)
Casual jokes about 17 34 33 8 0
LGBT individuals (18.2%) (36.5%) (35.4%) (8.6%) (0%)
Expression of hatred or
60 29 2 0 2
aversion towards LGBT
(64.5%) (31.1%) (2.1%) (0%) (2.1%)
individuals

Offensive language about 39 18 27 7 2

LGBT individuals (41.9%) (19.3%) (29%) (7.5%) (2.1%)

67
Section 3: Legal Awareness relating to LGBT Rights

This section of the survey form was aimed at confirming the level of legal awareness
of the respondents regarding LGBTQ community and their rights.

In three out of six questions of this section respondents were asked if they were aware
of the mentioned legal provision/act/amendment relating to LGBT rights. In other three
questions, the respondents were asked if they support the previously mentioned legal
provision/act/amendment and those who had earlier mentioned that they were not aware
of the concerned legal provision/act/amendment; were instructed to mark “No Opinion”
in the other three questions.

Table 13: Statistics about legal awareness relating to LGBT rights

Aware of Aware of Transgender Aware of Human

Decriminalization of Persons Act 2019 Rights by U.N.
Homosexuality
Yes No Yes No Yes No
All Respondents 93 0 47 46 9 84
Respondents that are
14 0 12 2 3 11
LGBTQ
Respondents that are
39 0 34 5 6 33
Ally
Respondents that are
neither LGBTQ nor 40 0 1 39 0 40
Ally

Observations:

1. All respondents were aware of amendments in section 377 of IPC which

resulted in decriminalization of homosexuality.
2. Nearly 50% of the respondents were aware of or heard of Transgender Persons
(Protection of Rights) Act 2019.
3. Percentage of respondents aware of the human rights of LGBT that are granted
by the U.N. were considerably less in comparison to those who were aware of
sec. 377 amendment and Transgender Persons Act. This shows that people are

68
 less aware of international law than domestic law when it comes to LGBT
rights.
4. Out of 40 respondents who are neither LGBTQ nor Ally, nearly none of them
were aware of the Transgender Persons Act while they were all aware of sec.
377 change. This stark difference leads to the conclusion that the issue of gay
activity has garnered stronger interest than any other queer behavior in this
society.

Table 14: Statistics about opinion of the respondents regarding LGBT rights

Support
Support Transgender Support Human Rights
Decriminalization of
Persons Act 2019 by U.N.
Homosexuality
No No No
Yes No Yes No Yes No
Opinion Opinion Opinion

All Respondents 53 40 0 25 22 46 9 0 84

Respondents that
14 0 0 7 5 2 3 0 11
are LGBTQ
Respondents that
39 0 0 6 28 5 6 0 33
are Ally
Respondents that
are neither LGBTQ 0 40 0 1 0 39 0 0 40
nor Ally

Observations:

1. Out of 14 respondents who are members of LGBTQ community, all of them

support decriminalization of homosexuality but not the introduction of the
Transgender Persons Act 2019. Those, who said that they do not support the act
mentioned that they are not satisfied with the act as it stands right now, that they
had high hopes and the legislation was a great disappointment. They believe the
act still has many quirks which need to be straighten out.
2. Out of 39 respondents who are ally to LGBTQ community, all of them support
decriminalization of homosexuality but not the Transgender Persons Act 2019.
Those, who said that they do not support the act mentioned that the act does not
provide any sort of real protection to the transgender persons, it only provides

69
 cautionary statements of what should not be done without providing any strict
penalty or remedial mechanism. Some said that the act has been beautifully
designed but without strict implementation, without any ‘watchdog’ it is
useless.
3. Out of 40 respondents who are neither LGBTQ nor ally, all of them are
evidently against gay activity and simply remain ignorant to any steps taken at
international level to safeguard the interests of the LGBTQ community which
is contradictory to the previous observation of how not many people have
problem with any LGBTQ member working as their colleague.

AWARENESS AND SUPPORT TO LGBT RIGHTS

100 93
NUMBER OF RESPONDENTS

90
80
70
60 53
47
50
40
30 25
20 9 9
10
0
Decriminalization of Transgender Persons Human Rights of LGBT
homosexuality Act 2019 persons by U.N.
Awareof the right 93 47 9
Support the right 53 25 9

Awareof the right Support the right

Figure 9: Graphical representation of the statistics of the respondents that are aware and support the
LGBT rights

7.3 CONCLUSION

It is clear that LGBT is still considered a taboo in this society, and not many people
openly talk about it especially in families, though there is certain degree of openness
among friends. People of younger generation are more readily accepting the change,
while people from older generations are still rigidly stuck with their orthodox and
heteronormativity notion which bounds them from accepting the LGBTQ persons even
in their own family. If compared with the last decade, there has been change in societal
attitude towards LGBT.

70
 CHAPTER-8

LGBTQ RIGHTS: WHAT NEXT?

Decriminalization of homosexuality and introduction of the Transgender Persons Act

were only the initial stepts in recognising LGBT rights in India and there is a lot of
ground to cover going forward. The decision to decriminalize homosexuality set the
foundation for a slew of additional civil rights that were previously unavailable to the
LGBT population but have been commonplace for heterosexual and cisgender people.
These civil rights include the right to marry, the right to adopt, the right to surrogacy,
the right against discrimination, the right to be free from sexual assault, and so on.

This chapter discusses a few of these rights in detail.

8.1 SAME-SEX MARRIAGE

Section 377, which criminalised homosexuality, was held unconstitutional in 2018. It

was a momentous victory for the whole LGBT community. However, same-sex
marriage remains beyond the scope of law in India, and the community as a whole
continues to face prejudice. Marriage has a legal element that confers rights and duties
on two individuals, such as adoption, inheritance, tax planning, life insurance plans,
and other similar privileges. Unfortunately, our legal system does not afford LGBT
couples the same set of privileges as it affords heterosexual married couples. Allowing
only civil unions and barring weddings for same-sex couples is discriminatory in and
of itself, because it gives a class of individuals only one choice that has a lower status
than marriage. What is the purpose of decriminalising homosexuality in a country like
India that places such a high value on marriage if you are unable to marry the partner
of your choice?

However, India is changing, and the Madras High Court decision is one example. The
groundbreaking judgement of the Madras High Court is undoubtedly a beacon of
optimism. The Court ruled in Arunkumar and Sreeja v. The Inspector-General of
Registration & Ors 29that “the term ‘bride’ as defined by the Hindu Marriage Act would
also include a transsexual and not only someone born as a woman”.

29
(2019) SCC Online Mad 8779

71
The Special Marriage Act of 1954 is a secular legislation which provides for Indian
citizens and Indian nationals in foreign nations to marry regardless of creed, caste, or
religion. Since, it is a secular legislation, SMA can be amended to accommodate
provisions for same-sex marriage without objecting personal laws of different religion
and customs.

Several petitions concerning same-sex weddings are now ongoing in the courts.
However, while the Union government left it to the courts to rule on the legitimacy of
Section 377 in 2018, it has also signaled that it will likely oppose any petition for same-
sex marriage. In light of the legal rulings, this appears to be paradoxical, given that if
we truly wish to adhere to the concept of equality in the context of LGBT persons, the
freedom to marry, inherit property, and share insurance (medical and life) are all part
of this. As a result, denying these fundamental rights solely on the basis of sexual
orientation is disagreeable and unlawful, infringing on the constitutional rights to
equality and liberty. Also, right to marry though not expressly mentioned in the
constitution has been interpreted to be a part of the Article 21 of the constitution by the
apex court in India in a landmark case 30. The right to marry is also recognised at the
international level in the human rights charter under the title “right to have a family”
and in a number of other covenants.

8.2 RECOGNITION TO SAME-SEX MARRIAGE

As current laws cannot be applied to LGBT marriages, new legislation must be

developed, changed, or introduced to recognise same-sex marriages. There are three
approaches to make marriage laws more LGBT+ inclusive.

1. They can be legalised by reinterpreting, changing, or revising existing

legislation, or by making the act's text gender-neutral.
2. They can be authorised after introducing a new Act that treats the LGBT+
population as a distinct group.
3. Since, India is still not progressive enough and open to the idea of LGBT
marriages, the legislature can instead give them a different status such as that of
a civil partnership, where they may not have all the rights of marriage but can

30
Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522

72
 still enjoy various other significant rights such as sharing insurance, filing joint
tax returns, and so on.

8.3 ADOPTION
Adoption in India is controlled by both secular and religious regulations. In the case of
Hindus, the Hindu Adoption and Maintenance Act of 1956 governs adoption, however
there are no personal laws governing adoption in the case of Muslims, Christians,
Parsis, and others. However, there is another legislation, the Juvenile Justice Care and
Protection of Children Act, which must be read in conjunction with the adoption rules
defined by the Central Adoption Resource Agency in 2017. This statute is secular and
allows for adoption regardless of faith.

Only a couple who have been in a stable relationship for at least two years are allowed
to adopt a child, according to the Adoption Regulation Act. Furthermore, the clause
employs the terms “husband” and “wife”, implying that same-sex couples do not have
the right to adopt. Because there is a separate set of adoption standards applied to men
and women, the applicability of such laws to trans-couples remain ambiguous.

There is no doubting that adoption is a complicated subject, and because of anti-

trafficking legislation, even heterosexual couples have difficulty adopting a kid.
However, a heterosexual couple can apply for adoption, but same-sex couples are not
even permitted.

8.4 INHERITANCE LAWS

In India, inheritance and succession rules are regulated by a combination of personal

and secular laws. Hindus are governed by the Hindu Succession Act, 1956, while Parsi
and Muslims have their own customary rules. There is also an Indian Succession Act,
1925, which, after several revisions, currently applies to all Indians who marry under
the Special Marriage Act, 1954.

The most notable distinction between the Indian Succession Act 1925 and the other
personal laws is women's inheritance rights. While there is a distinctive succession
arrangement for males and girls in personal law, there is no such distinction in the
Hindu Succession Act 1956. The Indian Succession Act 1925 offers a standard plan
regardless of the gender of the successor, with proximity to the dead being the
determining criterion. This means that the surviving spouse and lineal progeny,

73
regardless of gender, are designated as major heirs. Although similar, to other laws, it
is implicit that the term “marriage” under inheritance laws refers solely to heterosexual
marriages. So, before this law may be applied to LGBTQ couples, it is critical that the
law recognises same-sex marriages.

74
 CHAPTER-9

CONCLUSION AND SUGGESTIONS

9.1 CONCLUSION

While the historic 2018 court decision to decriminalize homosexuality and 2014
NALSA judgement were significant steps forward for LGBTQ rights movements in
India. However, LGBT individuals in India are still not treated equally and do not have
the same rights as heterosexual people.

It is critical to educate the public about LGBT rights. Human rights are innate,
everlasting rights that are bestowed onto everyone at birth. It is critical that people
recognise that homosexuals are not sick, that they are not aliens, and that their sexual
orientation is not unnatural.

LGBTQ rights must be recognised as human rights. Non-recognition of same-sex

marriages, refusal to allow adoption, guardianship, surrogacy, and IVF, and a lack of
access to safe and LGBT+ inclusive schools, universities, and workplaces are all
violations of Articles 14, 15, 19, 21, and 29 of constitution of India.

According to international human rights law, societal norms, customs, culture, or

traditions can never be used to prevent another person from expressing his or her
fundamental and constitutional rights.

If we started explaining everything on the basis of cultural perspectives, societal values,

and public policy, there would have been no progressive legislation in our nation and
we would never have been able to remove the social ills of child marriage, Sati, dowry,
and infanticide, among others.

As a result, it is critical that the government shed its conservative bent and take
meaningful efforts to reduce the stigma, prejudice, and abuse that surrounds LGBTQ
persons. It is past time for the government to enact new laws or change existing ones
governing marriage, adoption, guardianship, inheritance, educational institutions,
employment, and healthcare services for LGBTQ individuals, with a specific emphasis
on transgender people.

75
It will lead to increased inclusivity and will aid in the integration of LGBTQ people
into society, and it will go a long way toward “transforming our nation sustainably into
an equal and dynamic knowledge society”.

This study was set out with the objective to find out answers to certain research
questions.

The researcher has arrived at the following conclusions regarding those questions –

1. “Is the current legal position of India regarding the rights of the LGBT
community in compliance with the international framework?”

The hypothesis was formulated in regards to this question that there are no special laws
for the recognition and protection of rights of LGBT communities in India to comply
with the international framework.

This hypothesis may be split into two: one about the recognition and preservation of
Homosexual and Bisexual rights, and another about Transgender rights. Study shows
that India lacks laws like same-sex marriage, right to adoption etc. to safeguard and
recognise the rights of homosexual and bisexual populations. Only judicial involvement
decriminalises private consenting gay acts. In India, there are no unique laws for
homosexuals and bisexuals.

Comparatively, India's Transgender Persons Act, 2019 intends to protect and recognize
the rights of transgender populations. India is just beginning to execute the Transgender
Persons Act. This measure is hoped to safeguard and recognise the rights of transgender
and transsexual persons.

Therefore, this hypothesis is partly correct.

2. “Did the judgement holding section 377 unconstitutional had any positive
impact?”

The hypothesis in regards to this question was that the judgement holding section 377
unconstitutional brought up the hopes of many people and lead to slight increase in
acceptance of the LGBTQ in India but still has long ways to go.

Study confers with the hypothesis that the decriminalization of homosexuality has
brought some positive changes- many people have been able to ‘come out’ to their
families due to upliftment of self-confidence and younger generations of the society are

76
rapidly accepting and supporting the LGBTQ but it has not caused enough positive
impact; gay individuals in various parts of the country still continue to suffer at the
hands of people with rigid minds, mainly due to misconceptions about LGBT, lack of
awareness and heteronormative notion. The social change and legal evolution go hand-
in-hand; only by continuous efforts to change the mindset of society through awareness
and legal protection and recognition to all members of LGBTQ community, a
significant impact can be expected to brought upon.

Thus, this hypothesis stands to be true.

3. “Is the Transgender Persons (Protection of Rights) Act a good legislation, if not,
what are the issues?”

The hypothesis in regards to this question was that the Transgender Persons (Protection
of Rights) Act is not a good legislation. It contains numerous loopholes which
ultimately render it useless in fulfilling the purpose.

This hypothesis stands affirmative as discussed to great extent in chapter-6; the

legislature has failed to put inputs of the NALSA judgement while drafting the act and
has greatly disappointed transgender community. This legislation lacks sanctions and
authority to ensure strict implementation of the law.

4. “What shall be the next step to attain equality in the true sense for the people of
LGBT community?”

The researcher has arrived at the conclusion that the government must introduce a
comprehensive legal framework exclusively dedicated to the members of the LGBTQ
community in India and shall, through such framework, provide for the right to marry,
adopt, surrogate and right against discrimination or harassment on the basis of gender
identity or sexual orientation.

9.2 SUGGESTIONS

The issues encountered by LGBT populations demand a vast array of answers and
initiatives, some of which require immediate execution or the introduction of new
legislation. Few activities must be reserved for the long-term in order to alter the
public’s unfavourable opinions and improve proper awareness about LGBT groups.
Changes must be represented in policies and legislation, as well as in the attitudes of

77
the government and the general population. On the basis of doctrinal study and
empirical survey, efforts have been made to provide recommendations for protecting
and recognising the rights of LGBT populations more effectively and efficiently. The
few recommendations include –

1. For the creation of new state regulations, a survey of LGBT populations must
be conducted at the local level.
2. Housing or shelter houses must be given by the government for LGBT
populations, same as Santhwana Kendra, Swadhara, Balika mandira, etc. are
provided for women and children.
3. Providing a crisis hotline governed by the state must be seen as an immediate
necessity.
4. Free access to a comprehensive manual on LGBT groups to everybody to
increase awareness.
5. All teachers, administrators, counsellors, and students should get training on
LGBT sensitivity so that they are treated with respect and equality.
6. Amendment to the Transgender Persons (Protection of Rights) Act, 2019 to
provide the proper definition for transgender persons, to provide for the
recognition of gender identity as male, female, or transgender/ Third gender
based on self-identification, to provide clarity on the “procedure” used by
District Magistrate to determine whether to issue certificate of recognition or
not, to provide remedial mechanism if the District Magistrate denies the
certificate, to accommodate recommendations of NALSA judgement and the
expert committee and to provide a higher representation of transgender
community in National Council for Transgender Persons.

78
 APPENDIX
QUESTIONNAIRE TO STUDY SOCIETAL
ATTITUDE AND AWARENESS TOWARDS
LGBTQ COMMUNITY

79
 Questionnaire to study societal attitude and awareness
towards LGBTQ Community
Hello,

I am Mansi, student of BBA LLB, currently undertaking research project on "A SOCIO-LEGAL
STUDY OF THE RIGHTS OF THE LGBTQ COMMUNITY WITH COMPARISON OF INDIAN
PERSPECTIVE TO INTERNATIONAL REGIME".

Please spare a few minutes of your valuable time to fill this survey form. This is merely for
research purposes and any identification will remain confidential. There would be no social or
legal action against you on the basis of your response. The purpose behind the survey is to
determine societal attitude and awareness towards LGBTQ persons.

There are no correct or incorrect answers. Researcher only aims to know the respondents' honest
opinion.

Regards
Mansi
USLLS, GGSIPU, Delhi

* Required

1. Your Name

2. Your age (in years) *

Mark only one oval.

Less than 18

18-21

22-25

26-29

30-50

51-60

Over 60
3. What is your highest level of education? *

Mark only one oval.

High School Graduate (Completed 10th standard)

Intermediary School Graduate (Completed 12th standard)

Bachelor's Degree

Master's Degree

Other:

4. What best describes you? *

Mark only one oval.

Belong to LGBTQ community

Ally to LGBTQ

None of the above

5. What was your sex assignment at birth? *

Mark only one oval.

Male

Female

Prefer not to say

6. What is your current gender identity? *

Mark only one oval.

Cisgender Male [A person who was assigned 'male' sex at birth and continues to identify
with the same]

Cisgender Female [A person who was assigned 'female' sex at birth and continues to
identify with the same]

Transgender/ Transsexual [A person who identifies with a gender that is different from
the sex assigned at birth]

Other:
7. What is your sexual orientation? *
(Please pay attention to accompanied definitions and accordingly mark what fits you best)

Mark only one oval.

Heterosexual [A person who can have romantic or sexual attraction only to people of
opposite sex among male and female]

Homosexual [A person who can have romantic or sexual attraction only to people of the
same sex or gender]

Bisexual [A person who can have romantic or sexual attraction to both of the biological
sexes i.e. male and female]

Other:

Attitude, This section of the survey form asks about your beliefs, attitude and practices. There
are no correct or incorrect answers. Researcher only aims to know the respondents'
Belief honest opinion.
and
Practices

8. How comfortable are you interacting in-person with the following set of people? *
Mark only one oval per row.

Highly Somewhat Somewhat Highly

Neutral
Comfortable Comfortable Uncomfortable Uncomfortable

Gay Men

Lesbian Women

Bisexual Men

Bisexual Women

Male to Female
Transgender/Transse
xual

Female to Male
Transgender/Transse
xual
9. Please select whether you agree or disagree with the following. Also, please note *
the statements may seem offensive to some people but they are necessary for
research purposes.
Mark only one oval per row.

Agree Disagree Maybe/Not sure No Opinion

LGBTQ persons'
actions are against
what God intended

Homosexuality,
Bisexuality and
Transgenderism are
mental illnesses.

Homosexuality,
Bisexuality and
Transgenderism are
results of too much
freedom and
liberalism.

Homosexuality,
Bisexuality and
Transgenderism are
results of people
foregoing their
traditional values.

Homosexuality,
Bisexuality and
Transgenderism are
unnatural.

People of LGBTQ
community in India
shall have equal
access to
employment
opportunities

Same-sex marriages
should be made legal
in India

People of LGBTQ
community in India
shall have the right to
marriage and
adoption

Students should be
exposed to age-
appropriate lessons
about LGBTQ in the
school or college
curriculum.
 Government should
spread awareness
about LGBTQ
community to debunk
myths and increase
acceptance

10. Please select whether you agree or disagree to the following statements about *
your family and friends.
Mark only one oval per row.

Agree Disagree Maybe/Not sure/ Don't Know

My family does not

speak about LGBT

My friends do not
speak about LGBT

My family has no
awareness about
LGBT

My friends have no
awareness about
LGBT

My family does not

support LGBT

My friends do not
support LGBT

11. Please select the frequency in which you have indulged in the following *
Mark only one oval per row.

Never Rarely Sometimes Often Always

Casual jokes about

LGBT individuals

Expression of hatred
or aversion towards
LGBT individuals

Offensive language
about LGBT
individuals
 Legal This section of the survey form is aimed at confirming your level of awareness
regarding LGBT rights. There are no correct or incorrect answers. Researcher only
Awareness aims to know the respondents' honest opinion.
relating to
LGBT
Rights

12. Are you aware of recent amendment of section 377 of Indian Penal Code which led *
to decriminalization of homosexuality?

Mark only one oval.

Yes

No

13. Do you support decriminalization of homosexuality in India? *

Mark only one oval.

Yes

No

No Opinion

14. Are you aware of Transgender Persons (Protection of Rights) Act, 2019? *

Mark only one oval.

Yes

No

15. Do you support Transgender Persons (Protection of Rights) Act, 2019 *

Mark only one oval.

Yes

No

No Opinion
16. Are you aware of "five core legal obligations of states with respect to protecting *
the human rights of LGBT persons" by the United Nations i.e. 'Protect, Prevent,
Repeal, Prohibit, Safeguard'

Mark only one oval.

Yes

No

17. Do you agree with the human rights of LGBT persons as granted by the U.N. *
('Protect, Prevent, Repeal, Prohibit, Safeguard')

Mark only one oval.

Yes

No

No Opinion

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