 LGBT rights in the United Kingdom

Status :- Homosexuality always legal for women; decriminalised for men in:
1967 (England and Wales)
1981 (Scotland)
1982 (Northern Ireland)
Age of consent equalised in 2001
Gender identity Ability to apply to change legal gender since 2005

Military Allowed to serve openly since 2000

Discrimination protections Sexual orientation and gender identity protections since 2010

 Family rights

Recognition of relationships Same-sex marriage since 2014 (England and Wales; Scotland)
Same-sex marriage in Northern Ireland since 2020
Civil partnerships since 2005 (nationwide)
Adoption Full adoption rights since
2005 (England and Wales)
2009 (Scotland)
2013 (Northern Ireland)

The European Court of Human Rights’ decision ‘in Goodwin v. United Kingdom and the
subsequent House of Lords decision in ‘Bellinger v Bellinger, the United Kingdom has enacted one
of the most modern and liberal statutes on legal sex/gender change, the Gender Recognition Act
2004. However, while the Act addresses the requirements for a change of legal sex/gender, it
does not, for example, deal with issues of parenthood, making this an interesting country to
study.

 LGBT rights in Australia

Status Always legal for women; legal for men in all states and territories since 1997. Equal age of
consent in all states and territories since 2016

Gender identity Change of sex recognised in all jurisdictions (NSW requires sexual reassignment
surgery since 1996

Military LGBT personnel allowed to serve openly

Discrimination protections Federal protections for sexual orientation, gender identity and intersex
status since 2013; LGBT protections in all state and territory laws

 Family rights

Recognition of relationships Same-sex marriage since 2017

Adoption Equal adoption rights for same-sex couples in all states and territories since 2018[a]
‘In a seminal decision for Validity of Marriage of a Transsexual’, much earlier than other common law
countries, Chisholm J broke away from the law that was established by the English decision of
‘Corbett v Corbett’174. Since then, a change of legal sex/gender has been possible in Australia.
Australia has also recently even introduced the possibility to have ‘X’ recorded in passports (rather
than M or F for male and female respectively), as a specific response to issues of gender identity,
making this a highly interesting jurisdiction and one where the gender dimension of law is
undergoing significant change. Very recently a court in New South Wales held that ‘individuals must
have the right to refuse to have their gender registered as either male or female. The Australian
Government stated this policy was part of “commitment to remove discrimination on the grounds of
sexual orientation or sex and gender identity.” ‘In July 2013, the Australian Government published
guidelines for the consistent collection of sex and gender information across all government
departments and agencies

 LGBT rights in the United States

Status Homosexuality legal nationwide since 2003 Legal in various areas since 1961 Lawrence v. Texas)

Gender identity Laws vary by jurisdiction

Military Sexual orientation: Yes

Gender identity: Yes (since 2021)

Intersex status: No

"Don't ask, don't tell" policy repealed on September 20, 2011

Transgender ban repealed January 25, 2021

(DoDI) 6130.03, 2018, section 5, 13f and 14m

Discrimination protections Prohibited employment discrimination since 2020 (Bostock v. Clayton County)

 Family rights

Recognition of relationships Same-sex marriage legal nationwide since 2015 (Obergefell v. Hodges)

Adoption Equal adoption rights for same-sex couples in all states since 2016

The United States comprises a large number of independent jurisdictions, so the legal response to
Transgenderism/Transsexuals naturally is quite diverse which in itself would merit the inclusion of
this report. In addition, the first publicly known case of a legal man giving birth to children happened
in the United States

 LGBT rights in Nepal

Status Legal since 2007

Gender identity Third gender recognised

Military LGBT people allowed to serve openly

Discrimination protections Discrimination constitutionally prohibited

 Family rights

Recognition of relationships Same-sex marriage partially recognised

Adoption No

Nepal has been progressive in promoting gender and sexuality diversity as natural. However metis
and other gender and sexual minorities still ‘suffer from explicit prejudice, lack of economic
opportunity and familial rejection and other forms of marginalization.’ ‘In 2007 the Nepal Supreme
Court in Pant v Nepal was the first in this region to recognize the third gender category and issued a
decision which is considered to be arguably the single most comprehensive judgment affirming
protections for gender identity anywhere in the world. In addition to mandating that the
Government scrap all laws that discriminated based on sexual orientation and/or gender identity
and establish a committee to study same-sex marriage policy, the Court took the unique approach of
establishing a third-gender category.

 LGBT rights in the Netherlands

Status Legal since 1811 equal age of consent since 1971

Gender identity Transgender people are allowed to change legal gender without surgery or
hormone therapy, but a specialist's letter of permission given after a prolonged period of talks is
required.

Military LGBT people allowed to serve openly

Discrimination protections Sexual orientation, gender identity, gender expression and sex
characteristics protections; Sexual orientation only formally added to the Constitution since 2023.

 Family rights

Recognition of relationships registered partnerships since 1998

Same-sex marriage since 2001

Adoption Full adoption rights since 2001

The Netherlands was the fourth jurisdiction in Europe to legislate on change of legal sex/gender in
1985.’184 ‘Generally perceived to be a liberal country, the provisions certainly were very liberal at the
time but have since largely remained unchanged. Interestingly, Dutch law was the first to not always
require surgery: a person wanting to change sex/gender must have undergone gender re-
assignment surgery as far as that that is medically and psychologically feasible, thus making it
possible very early on for a legal man to give birth to a child and a legal woman to ‘father’ a child . As
this is now also possible in a number of other jurisdictions, it is hoped that the national report will
provide insights into how these situations have been/were supposed to be addressed from a legal
perspective
 Supreme Court judgements on
transgenders

 Section 377 Judgement ( Navtej Singh Johar v Union of India)

What did the Supreme Court Hold?

 The court made it clear that Article 14 of the Constitution guarantees equality before
law and this applies to all classes of citizens therby restoring ‘inclusiveness’ of LGBTQ
Community.
 SC upheld the pre-eminence of Constitutional morality in India by observing that
equality before law cannot be denied by giving precedence to public or religious
morality.
 SC noted that modern psychiatric studies and legislations recognise that gay persons
and transgender do not suffer from a mental disorder and therefore cannot be
penalized.
 SC observed that homosexuality is not unique to humans, which dispels the prejudice
that it is against the order of nature.
 Supreme Court stated that the ‘Yogyakarta Principles on the Application of
International Law in Relation to Issues of Sexual Orientation and Gender Identity’
should be applied as a part of Indian law.
Yogyakarta Principles recognise freedom of sexual orientation and gender identity as part
of Human Rights. They were outlined in 2006 in Yogyakarta, Indonesia by a distinguished
group of International Human Right experts.
Section 377

 Section 377 of the Indian Penal Code 1860, a relic of British India, states that
“whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal shall be punished.”
 This included private consensual sex between adults of same sex.
 After the recent SC judgement, provisions of Section 377 remain applicable in cases of
non-consensual carnal intercourse with adults, all acts of carnal intercourse with
minors, and acts of bestiality.
What are the Issues with the Criminalization of Homosexuality?

 Fundamental Rights
o Sexual orientation and its relationship to the Fundamental Rights of the
individuals has been at the heart of the debate.
 o SC in its judgement specifically said that the Right to Privacy and the
protection of sexual orientation lie at the core of the fundamental
rights guaranteed by Article 14 (Equality before Law), Article 15 (Prohibition of
discrimination on the basis of race, religion, caste, sex, place of birth), Article 21
(Protection of life and liberty) and Article 19 (Freedom of expression) of the
Constitution.
o The Supreme Court, while decriminalising consensual sex between homosexuals,
observed that members of the LGBTQ community possessed the same
fundamental rights as others.
 Health Issues
o Criminalisation of homosexuality leads to discrimination and results in LGBTQ
people getting poor or inadequate access to services within the health system.
o It also creates barriers to both the availability and the ability to access HIV
prevention, testing and treatment services.
o Public health evidence also indicates a clear relationship of a lack of social
acceptance and legal rights with substance abuse, violence, isolation, and mental
illness.
 Law and morality
o Those against legalising gay sex argue that it is against the moral values of the
society. However, activists arguing for it say what is forbidden in religion need not
be prohibited in law.
What are the Related Judgements?

 Naz Foundation vs. Govt. of NCT of Delhi (2009)

o It is one of the first case laws wherein Section 377 of the IPC was held
unconstitutional, as it discriminated against the LGBTQ community of the country
and violated their privacy as individuals.
o The Landmark judgment given by Delhi High Court stated that Section 377
violates Articles 14, 15, and 21. The court concluded that Section 377 does not
distinguish between public and private acts, or between consensual and non-
consensual acts.
o The judgment was restricted to adults when Section 377 also applied to minors.
Section 377 had permitted the harassment of LGBT people in law.
 Suresh Kumar Koushal Case (2013)
o SC overturned the previous judgment by Delhi High Court (2009) that
decriminalised homosexual acts and criminalised homosexuality once again.
o SC argued that in 150 years, less than 200 persons had been prosecuted under
Section 377.
o Therefore, "plight of sexual minorities" could not be used as argument for
deciding constitutionality of law.
o Further, SC ruled that it was for the legislature to look into desirability of deleting
section 377 of IPC.
 Justice K.S. Puttaswamy vs. Union of India (2017)
 o SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus,
comes under Article 21 of the Indian constitution.
o SC declared that bodily autonomy was an integral part of the right to privacy.
o This bodily autonomy has within its ambit sexual orientation of an individual.

 Navtej Singh Johar vs. Union Of India (2018)

o Decriminalised homosexuality.
o Dismissed the position taken by SC in Suresh Kumar Koushal case (2013) that
the LGBTQ community constitute a minuscule minority and so there was no need
to decriminalise homosexual sex.
 National Legal Services Authority vs Union of India (2014):
o The court declared transgenders as the ‘Third Gender’ and affirmed the
fundamental rights guaranteed to them.
o They were also granted reservations in admissions to educational institutions and
jobs.
What are the Initiatives taken for Transgender Persons?

 India:
o Transgender Persons Act, 2019:
 The Act defines a transgender person as one whose gender does not match
the gender assigned at birth. It includes transmen and trans-women,
persons with intersex variations, gender-queers, and persons with socio-
cultural identities, such as kinnar and hijra.
o Judgements of the Supreme Court:
 National Legal Services Authority (NALSA) v. Union of India, 2014: The
SC declared transgender people to be a 'third gender'.
o Transgender Persons (Protection of Rights) Rules, 2020:
 The Central Government made the rules under the powers conferred by the
Transgender Persons (Protection of Rights) Act, 2019.
 National Portal for Transgender Persons was launched under in
consonance with the Transgender Persons (Protection of Rights) Rules,
2020.
o Scheme of ‘Shelter Home for Transgender Persons:
 To provide safe and secure shelter to transgender persons in need, the
Ministry of Social Justice and Empowerment is setting up 'Garima Greh'
shelter homes for them.
 Global:
o International Labour Organisation (ILO) released a document on “Inclusion
of LGBTIQ+ persons in the world of work”.
o It provides certain recommendations to ensure equal opportunities and treatment
for LGBTIQ+ persons at work.
What has been the Impact of Decriminalization Homosexuality?

 It has been possible for the LGBTQ community to be open about their sexual
preferences.
 Police harassment and discrimination will be eliminated in their access to health care.
 The decriminalisation of LGBTQ people has also been associated with more self-
acceptance and psychological and emotional security.
 As a result of this judgment, the LGBTQ community will now push for more progressive
laws, such as gay marriage laws, right to form partnerships, inheritance rights,
employment equality, and protection from discrimination based on gender identity.
Way forward

 Multi-Pronged Approach:
o While the judgment goes a long way in removing the stigma attached with the
LGBT community, a multi-pronged approach is required to address prejudice
and discrimination prevalent in society.
 Anti-Discrimination Law:
o The LGTBQ community must be empowered by anti-discrimination laws that
make it easier for them to live productive lives and relationships regardless of
their gender identity or sexual orientation.
 Government Bodies Needs to be Sensitised
o Government bodies, especially related to Health, and Law and Order need to be
sensitised and made aware about the changed position of law to ensure that the
LGBTQ community is not denied public services or harassed for their sexual
orientation.

 2023 Same-Sex Marriage Judgment (Supriyo v. Union

of India)

The Supreme Court’s refusal to accord legal recognition to marriages between persons of
the same sex is being seen as a setback to the queer community in the country. Given the
progress in law in recent years and the deepening of the meaning of individual rights, there
was widespread expectation that the five-judge Constitution Bench would give the Special
Marriage Act (SMA), a law that allows any two people to marry, a gender-neutral
interpretation to include people belonging to the same sex.

Over the years, the amplitude of Article 21 of the Constitution has been expanded to cover
the rights of privacy, dignity and marital choice, but the highest court has stopped short of
the extra step needed to allow marriages or civil unions that are not heterosexual. All five
judges have chosen to leave it to the legislature to enact such a law.

What are the Observations made by the Supreme Court?

 On Legislature to Frame the Laws: The court held that it can neither strike down or
read words into the Special Marriage Act (SMA) 1954 to include same sex members
 within the ambit of the SMA 1954.The top court said it is for Parliament and state
Legislature to formulate laws on it.
o In the absence of any central law, the judgment read that State legislatures can
enact laws recognising and regulating same-sex marriages; the Constitution
under Articles 245 and 246 empowers both the Parliament and the State to
enact marriage regulations.
 The State may choose from a number of policy outcomes; they may
make all marriage and family-related laws gender neutral, or they may
create a separate SMA-like statute in gender-neutral terms to give the queer
community an avenue for marriage, they may pass an Act creating civil
unions, or a domestic partnership legislation, among many other
alternatives.
o Tamil Nadu has already amended the Hindu Marriage Act in 1968 to allow self-
respect or ‘Suyamariyathai’ marriages.
 On the Right to form Civil Unions: The minority opinion batted for the state to
recognise queer unions, even if not in the form of marriage. The right to enter a union
cannot be restricted on the basis of sexual orientation (which violates Article 15);
moreover, marriage is significant because of a bouquet of rights, and for same-sex
couples to enjoy these entitlements, it is necessary that the state accord recognition to
such relationships.
o However, the majority opinion said the government is not obligated to
recognise the bouquet of rights flowing from such a Union.
 On Trans persons’ Rights: The majority opinion of the Bench affirmed
that transgender individuals have the right to marry within the existing legal
framework. The judgment emphasized that gender identity is distinct from sexual
orientation, highlighting that transgender individuals can be in heterosexual
relationships similar to cisgender individuals. Therefore, such marriages can be
legally registered under marriage laws. Additionally, the judgment recognized that
intersex individuals who identify as either male or female also have this right.
o The Court affirmed the Madras High Court decision in Arun Kumar v. Inspector
General of Registration (2019), which declared marriage between a Hindu male
and a transwoman a valid union.
 On Adoption Rights: The majority opinion refused to strike down the Central
Adoption Resource Authority (CARA) regulations that restrict queer couples from
joining in adopting a child. While it noted that these regulations are discriminatory and
violative of Article 14, the majority opinion did not support adoption rights for
same-sex couples, citing the need to explore all areas for the benefit of children in
need of stable homes.
 On Entitlements: The court acknowledges the need for equal rights for queer
couples in areas like ration cards, joint bank accounts, pensions, and
gratuity. However, there is a disagreement on whether the judiciary or the legislative
and executive branches should address these issues..
 On Natal family Violence and Protection: Many queer persons face violence from
natal families and are reportedly kidnapped in an attempt to end relationships. The
judgment identified that families of LGBTQ persons as well as the police are the
primary actors in such violence, and has issued directions to the police department
to not force queer persons to return to their family.
 o Previous High Court orders have recognised the legitimacy of queer couples in
live-in relationships and afforded them protection from violence.
o The petitions, Amburi Roy v Union of India and Rituparna Borah v Union of India,
argued for the right to choose a family.

 On Sex, Gender, and Discrimination: The verdict rejected the government's

argument that same-sex unions are unnatural or non-Indian. It acknowledged that
queer love has existed in India for a long time and that the constitutional
legitimacy of same-sex relations is not undermined by societal acceptability.
What are the Issues related to the Judgement?

 Violation of Fundamental Rights: The verdict goes against the fundamental

rights of LGBTQIA+ individuals as recognized by the Supreme Court in previous
judgments. These rights include equality, dignity, and autonomy, which have been
affirmed as fundamental in the past.
o The Supreme Court in various judgements such as Lata Singh vs State of UP
(2006), Safin Jahan vs Ashokan (2018), Shakti Vahini vs Union of India
(2018) and Laxmibai Chandarangi vs State of Karnataka (2021) has held
that choosing a life partner is a Fundamental Right under Article 21.
 Ignoring Lived Realities: The verdict fails to take into account the real-life
experiences of LGBTQIA+ individuals who often face discrimination, violence, and
stigma in society due to their sexual orientation and gender identity.
 Undermining Constitutional Morality: The critics argue that the verdict undermines
the principle of constitutional morality. They say that the state should respect the
diversity and plurality of its citizens, rather than imposing the views of the majority
on minority groups.
 Denial of Legal Benefits: The verdict denies LGBTQIA+ couples the social and legal
benefits of marriage, such as inheritance, adoption, insurance, pension, etc. The
lack of legal recognition for same-sex marriage results in these couples being
deprived of the rights and privileges enjoyed by heterosexual couples.
 Contradiction with International Human Rights Standards: The verdict contradicts
international human rights standards and norms. It claims that international
standards uphold the right to marry and establish a family for all individuals,
irrespective of their sexual orientation and gender identity. The verdict, in this view, is
not in alignment with these global norms.
What are the Options left for the LGBT People Now?

 Legal Avenues: One possible path is to continue pursuing legal avenues. This may
involve waiting for the committee's report and potentially filing new cases if the findings
align with the petitioners' arguments.
o The Central government has said that it would constitute a committee, chaired by
the Cabinet Secretary, to set out the benefits and entitlements for same-sex
couples.
 Individual Rights: Another approach is for individuals in queer relationships to
wage solitary battles for specific rights associated with marriage, such as joint bank
accounts or pension rights, by challenging discrimination.
 Political Activism: The LGBTQ+ community needs to make queerness an integral
part of political conversations and demands upon elected representatives, particularly
in the lead-up to the 2024 Lok Sabha elections. This political activism may involve
building solidarity among different LGBTQ+ groups to amplify their concerns.

 Exploring Alternatives: The LGBTQ+ community should explore alternative ways to

expand their rights. The courts, while important, are not the only means of securing
progress. This implies that community-building, education, and public awareness
campaigns may play a crucial role in advancing LGBTQ+ rights in India.
Conclusion

The Court denied the right to marry for same-sex couples, going against expectations of
non-discrimination in marriage and passed on this responsibility to the legislature. While
there are legal requirements for marriage, the personal choice to seek validation through it is
protected by the Constitution, with some statutory limits. The majority opinion of the SC
bench opposed the adoption for queer couples but supports trans persons in heterosexual
marriages.

All judges agree on the right of same-sex couples to cohabit without coercion. The
Legislature may feel hesitant in legalizing same-sex marriages due to opposition based on
religious and cultural reasons. The LGBTQIA+ community can find hope in the Court's call
for a government committee on queer couples' rights, but the path to legal equality remains
challenging.

 Justice K.S.Puttaswamy(Retd) Vs Union of India

Issues & Decision:

THE COURT DECIDED: Under Article 21 of the Constitution, the right to privacy is included
in the right to life and personal liberty.
The Framework for Rights
Privacy is a characteristic of human dignity, according to the Court. The right to privacy
protects one’s ability to make personal decisions and exert control over important parts of
one’s life. According to the report, personal intimacies (marriage, reproduction, and family)
and sexual orientation are the basis of an individual’s dignity.
Discrimination based on sexual orientation is also “highly insulting to dignity and self-worth,”
according to the Court. By referring to its judgement in NALSA, which guarantees the right to
self-recognition of gender, it highlighted that the right to privacy was at the junction of
Articles 15 and 21 of the constitution.
Natural Rights and Freedoms
Certain rights, according to the Court, are not conferred by the state but are inherited by a
person simply by being human. Natural rights apply to everyone, regardless of their social
level, economic situation, gender, or sexual orientation. The freedom to decide one’s sexual
orientation was also recognised as a natural right.
India’s International Responsibilities
India was encouraged by the Court to abide by the international human rights regime. This
argument was based on Article 51 of the Constitution, which states that the government
must adhere to international law. The right to privacy is guaranteed by Article 12 of the
Universal Declaration of Human Rights and Article 21 of the International Covenant on Civil
and Political Rights, according to the Court.
The judgement in ‘Suresh Koushal v. Naz Foundation’ was overturned.
The Supreme Court dismissed a challenge to Section 377 of the Indian Penal Code in
Suresh Kumar Koushal vs. Naz Foundation. The claim in the case was that Section 377
infringed on the right to dignity and privacy. The Court had previously stated that Section 377
only impacted a “minority of the country’s population.” It refused to overturn the provision on
this basis.
Case brief of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India
The ‘Right to Privacy’ jurisprudence in India is based on this case. In this judgement, the
nine-judge bench unanimously reaffirmed the right to privacy as a basic right under the
Indian Constitution. The right to privacy, according to the Court, is an important part of the
freedoms provided by basic rights, as well as an intrinsic feature of dignity, autonomy, and
liberty.
Facts
The lawsuit was started after Justice K.S. Puttaswamy, a former Karnataka High Court
judge, filed a petition in regard to the Aadhaar Project, which was handled by the Unique
Identification Authority of India (UIDAI). The Aadhaar number was a 12-digit identifying
number given to Indian citizens by the UIDAI.
Issue
Whether and whether the right to privacy was a basic right under India’s Constitution’s Part
III.
Decision
Privacy was declared a unique and independent basic right under Article 21 of the
Constitution by the Supreme Court in six different rulings. The heart of the ruling outlined a
wide view of the right to privacy: it was not limiting protection against physical invasion, nor a
derived right under Article 21, but one that included the body and intellect, encompassing
decisions, choices, knowledge, and freedom. Part III of the Constitution was found to provide
an overarching, enforceable, and multidimensional right to privacy. The extent of the right
was debated in detail in the various opinions.

Right to privacy Puttaswamy case

The Supreme Court of India’s Right to Privacy ruling, formally known as Justice K. S.
Puttaswamy (Retd.) and Anr. versus Union Of India And Ors, is a historic case that states
that the right to privacy is protected as a basic right under Articles 14, 19, and 21 of the
Indian Constitution.
On August 24, 2017, a 9-judge Supreme Court bench gave a unanimous judgement in
Justice K.S. Puttaswamy vs. Union of India and several related proceedings, upholding that
each individual has a basic right to privacy under the Indian Constitution.

Conclusion:

Justice K.S. Puttaswamy, a retired Karnataka High Court judge, questioned the
constitutional viability of the Aadhaar scheme (Retd.). His right to privacy, he said, was
violated by the scheme. A three-judge panel determined that the right to privacy was
protected by the Indian Constitution and that the issue should be addressed by a higher
court. A nine-judge panel made its decision in this case. On August 24, 2017, a nine-judge
Supreme Court bench unanimously ruled in Justice K.S. Puttaswamy vs. Union of India and
numerous related cases that each individual has a constitutional right to privacy.

 LGBTQ+ Rights in India: The Supreme Court's Verdict

(Arun Kumar v. Inspector General of Registration)

The Supreme Court’s refusal to accord legal recognition to marriages between persons of
the same sex is being seen as a setback to the queer community in the country. Given the
progress in law in recent years and the deepening of the meaning of individual rights, there
was widespread expectation that the five-judge Constitution Bench would give the Special
Marriage Act (SMA), a law that allows any two people to marry, a gender-neutral
interpretation to include people belonging to the same sex.

Over the years, the amplitude of Article 21 of the Constitution has been expanded to cover
the rights of privacy, dignity and marital choice, but the highest court has stopped short of
the extra step needed to allow marriages or civil unions that are not heterosexual. All five
judges have chosen to leave it to the legislature to enact such a law.

What are the Observations made by the Supreme Court?

 On Legislature to Frame the Laws: The court held that it can neither strike down or
read words into the Special Marriage Act (SMA) 1954 to include same sex members
within the ambit of the SMA 1954.The top court said it is for Parliament and state
Legislature to formulate laws on it.

o In the absence of any central law, the judgment read that State legislatures can
enact laws recognising and regulating same-sex marriages; the Constitution
under Articles 245 and 246 empowers both the Parliament and the State to
enact marriage regulations.
 The State may choose from a number of policy outcomes; they may
make all marriage and family-related laws gender neutral, or they may
create a separate SMA-like statute in gender-neutral terms to give the queer
community an avenue for marriage, they may pass an Act creating civil
unions, or a domestic partnership legislation, among many other
alternatives.
 o Tamil Nadu has already amended the Hindu Marriage Act in 1968 to allow self-
respect or ‘Suyamariyathai’ marriages.
 On the Right to form Civil Unions: The minority opinion batted for the state to
recognise queer unions, even if not in the form of marriage. The right to enter a union
cannot be restricted on the basis of sexual orientation (which violates Article 15);
moreover, marriage is significant because of a bouquet of rights, and for same-sex
couples to enjoy these entitlements, it is necessary that the state accord recognition to
such relationships.
o However, the majority opinion said the government is not obligated to
recognise the bouquet of rights flowing from such a Union.
 On Trans persons’ Rights: The majority opinion of the Bench affirmed
that transgender individuals have the right to marry within the existing legal
framework. The judgment emphasized that gender identity is distinct from sexual
orientation, highlighting that transgender individuals can be in heterosexual
relationships similar to cisgender individuals. Therefore, such marriages can be
legally registered under marriage laws. Additionally, the judgment recognized that
intersex individuals who identify as either male or female also have this right.
o The Court affirmed the Madras High Court decision in Arun Kumar v. Inspector
General of Registration (2019), which declared marriage between a Hindu male
and a transwoman a valid union.
 On Adoption Rights: The majority opinion refused to strike down the Central
Adoption Resource Authority (CARA) regulations that restrict queer couples from
joining in adopting a child. While it noted that these regulations are discriminatory and
violative of Article 14, the majority opinion did not support adoption rights for
same-sex couples, citing the need to explore all areas for the benefit of children in
need of stable homes.
 On Entitlements: The court acknowledges the need for equal rights for queer
couples in areas like ration cards, joint bank accounts, pensions, and
gratuity. However, there is a disagreement on whether the judiciary or the legislative
and executive branches should address these issues..
 On Natal family Violence and Protection: Many queer persons face violence from
natal families and are reportedly kidnapped in an attempt to end relationships. The
judgment identified that families of LGBTQ persons as well as the police are the
primary actors in such violence, and has issued directions to the police department
to not force queer persons to return to their family.
o Previous High Court orders have recognised the legitimacy of queer couples in
live-in relationships and afforded them protection from violence.
o The petitions, Amburi Roy v Union of India and Rituparna Borah v Union of India,
argued for the right to choose a family.
 On Sex, Gender, and Discrimination: The verdict rejected the government's
argument that same-sex unions are unnatural or non-Indian. It acknowledged that
queer love has existed in India for a long time and that the constitutional
legitimacy of same-sex relations is not undermined by societal acceptability.
What are the Issues related to the Judgement?

 Violation of Fundamental Rights: The verdict goes against the fundamental

rights of LGBTQIA+ individuals as recognized by the Supreme Court in previous
 judgments. These rights include equality, dignity, and autonomy, which have been
affirmed as fundamental in the past.
o The Supreme Court in various judgements such as Lata Singh vs State of UP
(2006), Safin Jahan vs Ashokan (2018), Shakti Vahini vs Union of India
(2018) and Laxmibai Chandarangi vs State of Karnataka (2021) has held
that choosing a life partner is a Fundamental Right under Article 21.
 Ignoring Lived Realities: The verdict fails to take into account the real-life
experiences of LGBTQIA+ individuals who often face discrimination, violence, and
stigma in society due to their sexual orientation and gender identity.
 Undermining Constitutional Morality: The critics argue that the verdict undermines
the principle of constitutional morality. They say that the state should respect the
diversity and plurality of its citizens, rather than imposing the views of the majority
on minority groups.
 Denial of Legal Benefits: The verdict denies LGBTQIA+ couples the social and legal
benefits of marriage, such as inheritance, adoption, insurance, pension, etc. The
lack of legal recognition for same-sex marriage results in these couples being
deprived of the rights and privileges enjoyed by heterosexual couples.
 Contradiction with International Human Rights Standards: The verdict contradicts
international human rights standards and norms. It claims that international
standards uphold the right to marry and establish a family for all individuals,
irrespective of their sexual orientation and gender identity. The verdict, in this view, is
not in alignment with these global norms.
What are the Options left for the LGBT People Now?

 Legal Avenues: One possible path is to continue pursuing legal avenues. This may
involve waiting for the committee's report and potentially filing new cases if the findings
align with the petitioners' arguments.
o The Central government has said that it would constitute a committee, chaired by
the Cabinet Secretary, to set out the benefits and entitlements for same-sex
couples.
 Individual Rights: Another approach is for individuals in queer relationships to
wage solitary battles for specific rights associated with marriage, such as joint bank
accounts or pension rights, by challenging discrimination.
 Political Activism: The LGBTQ+ community needs to make queerness an integral
part of political conversations and demands upon elected representatives, particularly
in the lead-up to the 2024 Lok Sabha elections. This political activism may involve
building solidarity among different LGBTQ+ groups to amplify their concerns.
 Exploring Alternatives: The LGBTQ+ community should explore alternative ways to
expand their rights. The courts, while important, are not the only means of securing
progress. This implies that community-building, education, and public awareness
campaigns may play a crucial role in advancing LGBTQ+ rights in India.
Conclusion

The Court denied the right to marry for same-sex couples, going against expectations of
non-discrimination in marriage and passed on this responsibility to the legislature. While
there are legal requirements for marriage, the personal choice to seek validation through it is
protected by the Constitution, with some statutory limits. The majority opinion of the SC
bench opposed the adoption for queer couples but supports trans persons in heterosexual
marriages.

All judges agree on the right of same-sex couples to cohabit without coercion. The
Legislature may feel hesitant in legalizing same-sex marriages due to opposition based on
religious and cultural reasons. The LGBTQIA+ community can find hope in the Court's call
for a government committee on queer couples' rights, but the path to legal equality remains
challenging.

 NATIONAL LEGAL SERVICES AUTHORITY (NALSA)

VS. UNION OF INDIA

KEY FACTS:

This case was filed by the National Legal Services Authority of India (NALSA) to legally
recognize persons who fall outside the male/female gender binary, including persons who
identify as “third gender”.

ISSUES & DECISION:

The Court had to decide whether persons who fall outside the male/female gender binary
can be legally recognised as “third gender” persons. It deliberated on whether disregarding
non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution
of India. It referred to an “Expert Committee on Issues Relating to Transgender” constituted
under the Ministry of Social Justice and Empowerment to develop its judgement.
This was a landmark decision where the apex court legally recognised “third
gender”/transgender persons for the first time and discussed “gender identity” at length. The
Court recognised that third gender persons were entitled to fundamental rights under the
Constitution and under International law. Further, it directed state governments to develop
mechanisms to realise the rights of “third gender”/transgender persons.
Defining “Third Gender”

The Court upheld the right of all persons to self-identify their gender. Further, it declared
that hijras and eunuchs can legally identify as “third gender”.
The Court clarified that gender identity did not refer to biological characteristics but rather
referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender
persons should be subjected to any medical examination or biological test which would
invade their right to privacy.

Fundamental Rights

The Court interpreted ‘dignity’ under Article 21 of the Constitution to include diversity in self-
expression, which allowed a person to lead a dignified life. It placed one’s gender identity
within the framework of the fundamental right to dignity under Article 21.
Further, it noted that the right to equality (Article 14 of the Constitution) and freedom of
expression (Article 19(1)(a)) was framed in gender-neutral terms (“all persons”).
 Consequently, the right to equality and freedom of expression would extend to transgender
persons.
It drew attention to the fact that transgender persons were subject to “extreme discrimination
in all spheres of society” which was a violation of their right to equality. Further, it included
the right to express one’s gender “through dress, words, action, or behaviour” under the
ambit of freedom of expression.
Under Articles 15 and 16, discrimination on the ground of “sex” is explicitly prohibited. The
Court held that “sex” here does not only refer to biological attributes (such as chromosomes,
genitalia and secondary sexual characteristics) but also includes “gender” (based on one’s
self-perception). Thus, the Court held that discrimination on the ground of “sex” included
discrimination on the basis of gender identity.
Thus, the Court held that transgender persons were entitled to fundamental rights under
Articles 14, 15, 16, 19(1)(a) and 21 of the Constitution. Further, the Court also referred to
core international human rights treaties and the Yogyakarta Principles to recognise
transgender persons’ human rights.

Further Directions

The Court held that public awareness programs were required to tackle stigma against the
transgender community. It also directed the Central and State Governments to take several
steps for the advancement of the transgender community, including:
1. Making provisions for legal recognition of “third gender” in all documents
2. Recognising third gender persons as a “socially and educationally backward class of
citizens”, entitled to reservations in educational institutions and public employment.
3. Taking steps to frame social welfare schemes for the community

SIGNIFICANCE:
This is a landmark decision because it is the first to legally recognise non-binary gender
identities and uphold the fundamental rights of transgender persons in India. The judgement
also directed Central and State governments to take proactive action in securing
transgender persons’ rights.