RIGHTS OF LGBTQ+ COMMUNITY

“I am what I am, so take me as I am.”

- Johann Wolfgang von Goethe

ABSTRACT

No doubt, the rights of lesbian, gay, bisexual, transgender and queer (LGBTQ) have evolved
with time in India, but still, they tend to face many difficulties and challenges in the society.
The time has arrived long back when India should have considered to give the status of
equality to the people of LGBTQ+ community. Hanging them on a decision and not letting
them enjoy their freedom as others can is against the very basic principle of the Constitution.
Not giving them equal rights as the other citizens that are not from LGBTQ+ community is
equal to making them feel like they are not normal. India is a democracy, well, actually the
largest democracy in the world, it still lags behind as the citizens are not guaranteed equal
rights and face discrimination on the basis of their sexuality even today. Any act that involves
damage to the dignity of an individual or group of individuals is a first step towards the
differentiation and discrimination against the same. This statement applies to everyone, every
unit of the society including LGBTQ also and still they have faced so many challenges and
still continue to face them. They are the ones who have been and who still are fighting to get
the bare minimum from the society and the government, the sense of dignity and very basic
fundamental rights.

This article is research on the rights of LGBTQIA+ community as offered in India and in
other countries in the world. It discusses how the Indians have demarcated a line of
differentiation between the people of LGBTQ community and non-LGBTQ community and
what many rights have been guaranteed in other countries; and how the Indian LGBTQ
community is still fighting to get the basic human rights from the society.

KEYWORDS
Marriages, gender identity, sexual orientation, democracy, preamble, survey, rights.

INTRODUCTION
India, claiming to be a democratic country very beautifully controls the rights of people in
enjoying their rights given to them under Constitution of India. The fundamental right of
freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of
India is not enough in itself when the citizens of India do not have the freedom and right to
express their love in various forms if they belong to the LGBTQ+ community. A long time
has passed that the community of LGBTQ is fighting to win their rights, but still the fight is
going on even today in India itself when many nations throughout the world have accepted
and granted them rights to live with dignity and a status of equality as other citizens enjoy.
Homosexuality and same-sex marriages still remain a taboo in a socially conservative society
like India.

Moreover, Article 15 and Article 16 of the Constitution of India lays down a principle of
prohibition against the discrimination with any citizen on certain enumerated grounds and
clearly states ‘sex’ as a ground which clearly signifies that an attitude of treated people
differently just because they do conform to stereotypical generalizations of genders should be
prevented from being developed in the society. The Preamble of the Constitution of India
mandates justice and equality of status for everyone in all spheres of life, if it is social,
economic or political. Well, this principle laid down in the Preamble is clearly violated with
the increasing challenges faced by the members of the respected community. The central idea
of human rights is based on the fact that all humans are equal followed by, all humans should
be treated as equals and all have dignity in themselves.

Indian Penal Code, 1860 was drafted in the colonial era by the colonisers themselves and so
the Section 377 of the Indian Penal Code is the relic of the British rule as they criminalised
the homosexual acts be deeming them “against the order of nature”. 1 As in today, when many
foreign countries have given equal rights to the people of LGBTQ+ community, India is left
behind enjoying the very laws laid down by the Britishers. Even after the judgement of
Supreme Court of India in Navtej Singh Johar v. Union of India 2 which declared Section 377
to be unconstitutional and the introduction of the Transgender Persons (Protection of Rights)
Act, 20193, Indian LGBT citizens continue to face social and legal difficulties that are not
1
Astha Rajvanshi, Meet the Couple Leading the Push to Legalize Same-Sex Marriage in India, TIME, Apr 19
2023.
2
Navtej Singh Johar v. Union of India, Writ Petition (Criminal) 76/2016.
3
The Transgender Persons (Protection of Rights) Act, 2019, Act No. 40/2019.
generally faced by non-LGBT community. The world is running fast that thirty-three
countries that includes the United States too, have legalised same-sex marriages.4

MARRIAGE AND ADOPTION - LGBTQ+ COMMUNITY IN INDIA

The ruling of the Supreme Court of India in 2018 which was a landmark judgement in the
history of India left a far greater impact on the Indian society as the acceptance towards
homosexuality gradually improved. But still today, the scenario is such that the community
does not have the right to get their relation or bond legally recognised i.e., same sex
marriages are not allowed and they cannot do the adoption.

The fight for granting marriage and adoption rights to the Indian LGBTQ+ community has
been started but the progress has been slow and is considerably a very long struggle to win
the fight and get the very basic civil rights. India is still far away from legalising the concept
of same-sex marriages and recognising the same-sex couples, adoption rights to same-sex
couples or the passing of anti-discrimination against the LGBTQ+ community laws. Kerala
and Tamil Nadu are the only Indian states that have legalised and permitted adoption by
transgender people and have guaranteed the right to change their legal gender.5

GAY RIGHTS IN SOUTH AFRICA

South African Constitutional Court has effectively protected the rights of the gay couples by
invalidating the same-sex marriage restrictions. The Constitution of South Africa was the first
to recognise that the discrimination against the sexual orientation of an individual is clearly
unfair and unnecessary.6

In 1998, in the case of National Coalition for Gay and Lesbian Equality v. Minister of Justice,
the South African Court struck down statutory and common law restrictions on homosexual
male sodomy considering the law to be in violation of dignity and its negative effects.7

4
Marriage Equality: Global Comparisons, Council on Foreign Relations, Dec 22, 2022.
5
Aishwarya Sinha, Manasi Prabhakaran, Comparative Study of the Progression of Queer Rights in India and the
UK, with Special Emphasis on Intersex People, International Journal of Policy Sciences and Law, Vol 1 Issue 3.
6