DEVELOPMENT

STUDIES PROJECT-

“DEVELOPMENT OF RIGHTS
WITH RESPECT TO
TRANSGENDER”- (SPECIAL EMPHASIS
ON SOCIAL EXLUSION/INCLUSION THEORY)

MADE BY :
Kinjal(21BAL036)
Aditya Murthy
(21BAL005)
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Abstract –
This paper endeavours to critically analyse the contemporary developments in the
legal framework concerning the rights of transgender individuals who have long been
marginalized by society. The study delves into the historical context of the transgender
community, tracing their origins to the Hindu mythological era, during which they
were accorded high status and reverence. However, over the passage of time, their
societal standing and recognition have witnessed a steady decline in terms of
representation, access to rights, and other related aspects. The transgender community
has faced a host of discriminatory practices, as well as physical and emotional abuse,
which have impeded their progress and growth. The analysis is conducted from the
perspective of the social inclusion/exclusion theory, which highlights the relevance of
natural law theory in supporting the rights and dignity of transgender individuals. By
invoking natural law principles, this paper seeks to underscore the inherent worth and
dignity of every human being, irrespective of their gender identity, and to call for the
creation of inclusive environments that recognize and respect diversity.

Scope-
 To trace the origins of the transgender community
 To analyse the legal framework and effectiveness in protecting and promoting
the rights of transgender individuals.
 to analyse the drawbacks and deficiencies in the socio-legal aspect concerning
transgender rights.
 To study the challenges and obstacles faced that hinders their growth and
development

Limitations-
 The specific cultural, social, and legal context of India may limit the
generalizability of the findings to other contexts.

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 The finding relies on the secondary data and a limited scope of resources
 There is a significant lack of data and research on this topic, particularly in
relation to the experiences and perspectives of the transgender community
themselves.

Introduction –
The struggle for the recognition of transgender individuals has been a long-standing
battle against societal discrimination and marginalization. Despite significant strides
made in recent years towards gender inclusivity, transgender people continue to face
social exclusion and discrimination, as well as a lack of legal protection and
recognition of their basic rights. Discriminatory practices, such as denial of
employment and healthcare, bullying, and violence, have impeded their progress and
growth. While society has made significant strides towards gender inclusivity,
transgender individuals continue to face social exclusion and discrimination, and the
struggle for their rights continues. Many countries lack legal protection for
transgender individuals, leaving them vulnerable to abuse and injustice. The lack of
recognition of their basic rights, including access to education, healthcare, and legal
recognition of their gender identity, only exacerbates their vulnerability. It is essential
to create an inclusive environment that recognizes and respects diversity to support the
inherent worth and dignity of every human being, irrespective of their gender identity.

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HISTORY OF
DEVELOPMENT
OF TRANSGENDER
RIGHTS

The history of transgender individuals can be traced back to many ancient cultures
where transgender and gender-nonconforming individuals were recognized and
accepted as a part of society. In modern times, the history of transgender individuals is
characterized by challenges and struggles for acceptance and equal rights. Many key
historical milestones took place in 19 th century itself ranging from ancient cultures as
well.

Many ancient cultures recognized gender as a spectrum and had multiple gender
identities. For example, Hijras in India, Two-Spirit people in Indigenous North
America, and Sworn Virgins in Albania were recognized as distinct genders.

In early nineteens, Magnus Hirschfeld, who was a German Physician studied and
advocated for the rights of sexual minorities, including transgender individuals. He
founded the Institute for Sexual Science in Berlin in 1919, which provided medical
and psychological support for transgender individuals. In 1952, Christine Jorgensen ,
American transgender woman gained international attention when she underwent
gender-affirming surgery in Denmark and then returned to the United States as a
public figure. Her story helped to raise awareness of transgender issues and
challenges. In the 19th century, medical professionals began to categorize gender
nonconformity as a disorder. This led to the development of terms like "transvestism"
and "transsexualism" and the development of medical procedures like sex
reassignment surgery. In 1969, the Stonewall Riots in New York City sparked the
modern LGBTQ+ rights movement, which included transgender individuals.

In the 1970s, transgender activists and individuals became more visible in the United
States, with pioneers like Marsha P. Johnson and Sylvia Rivera advocating for
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transgender rights. During the period of 1980s the Diagnostic and Statistical Manual
of Mental Disorders (DSM) added "gender identity disorder" as a mental disorder. The
categorization of transgender identity as a disorder has been a controversial issue and
is still being debated today.

The Transgender Day of Remembrance was created to honour the memory of

transgender individuals who have been killed due to transphobic violence. The day is
observed annually on November 20. In 2012, the Equal Employment Opportunity
Commission (EEOC) declared that discrimination against transgender individuals is a
form of sex discrimination, and therefore illegal under federal law.

The landmark Supreme Court case Obergefell v. Hodges legalized same-sex marriage
in the United States, which also had implications for transgender individuals who
wished to marry. In 2016, the Obama administration lifted the ban on transgender
individuals serving openly in the military. However, this policy was later reversed by
the Trump administration1, and it has been reinstated under the Biden administration.
In 2020, the Affordable Care Act was amended to prohibit discrimination against
transgender individuals in healthcare, including in access to gender-affirming
treatments.2

HISTORY OF
TRANGENDER WITH
1
https://www.courant.com/mc-nws-trump-transgender-military-pa-reaction-20170726-story.html
RESPECT TO HINDU
2
https://www.journalstandard.com/story/opinion/2018/02/14/happy-valentines-day-glbt-gay-americans-owe-
MYTHOLOGY
supreme-court-obergefel-column/336732002/

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Although India has made progress in various fronts like healthcare, the economy, and
social aspects, transgender people still endure discrimination due to negative biasness
and beliefs held by many. However, in ancient times, Hindu mythology viewed
transgender people as equal to other genders. There have been many references with
respect to transgender when it to Hindu Mythology.3

In Hindu mythology, the first transgender reference is Mohini, the female form of
Vishnu. She appeared in the Mahabharata during the churning of the ocean to retrieve
the elixir of immortality. Mohini used her enchanting powers to resolve a dispute
between the devas and asuras and give the elixir to the devas.4

Interestingly, when Lord Rama was exiled to the forest in the Ramayana, he asked his
followers to return to the city, but the hijras chose to stay with him. Touched by their
devotion, Lord Rama gave them the authority to bless important events such as
weddings and inaugurations. This gesture shows the high regard for transgender
individuals in Hindu mythology.5

In the Mahabharata, Aravan, the son of Arjuna and Ulupi, was offered as a sacrifice to
ensure the Pandavas' victory in the Kurukshetra war. He could only be sacrificed after
spending a night as a married man, but no woman wanted to marry him knowing he
would die the next day. Lord Krishna, in the form of Mohini, married him. The Hijras
of Tamil Nadu call themselves Aravanis, and even today they commemorate Aravan's
death in an 18-day festival where they dress up as his wives and mourn his death.6

3
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7539026/
4
Ibid
5
Ibid
6
ibid

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In the Mahabharata, Princess Amba was abducted by Bhishma and rejected by her
intended husband, so she killed herself and vowed to take revenge on Bhishma. She
was reborn as Shikhandini, and after performing austerities, changed her sex to male.
During the battle of Kurukshetra, Bhishma recognized Shikhandini as Amba reborn
and refused to fight a woman. Arjuna used Shikhandini as a shield and killed Bhishma
with his arrows, leading to the Pandavas' victory.7

Thus, despite the presence of transgender figures in Hindu mythology, transgender

individuals still face taboo today. Recently, they have been granted some social
security and opportunities to integrate into society. However, they still face stigma and
biases that can lead to medical and mental health problems, as well as substance use
and legal issues. They also often have poor working conditions and limited job
options. It is important to integrate this marginalized community into society.8

RECENT AMENDEMENTS IN INDIA:

 Recognition of transgender identity as third gender (2014): In 2014, the

Supreme Court of India through the case of National Legal Services
Authority v. Union of India.9 recognized transgender individuals as a third
gender, granting them legal recognition and protection. This included
recommending job and educational reservations for transgender individuals,
as well as allowing them to identify their gender without undergoing
surgery.10

 Transgender Persons (Protection of Rights) Bill, 2016: The Transgender

Persons (Protection of Rights) Bill was introduced in 2016, 11 which aimed to
protect transgender individuals from discrimination and provide them with

7
ibid
8
ibid
9

10
https://privacylibrary.ccgnlud.org/case/national-legal-services-authority-vs-union-of-india
11
https://storage.googleapis.com/journal-uploads/ejpmr/article_issue/1585400231.pdf

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equal rights. However, the bill was criticized for its lack of provisions for
self-identification and for criminalizing begging.12

 Healthcare Rights for Transgender Individuals (2018): In 2018, the

Ministry of Health and Family Welfare issued guidelines for providing
healthcare services to transgender individuals, including access to hormone
therapy and gender-affirming surgeries.13

 Transgender Persons (Protection of Rights) Act, 2019: In 2019, the

Transgender Persons (Protection of Rights) Act was passed, which aimed to
protect the rights of transgender individuals and prohibit discrimination
against them. However, the act has been criticized by transgender activists for
being regressive and not providing adequate protection14

Transgender
Persons Act ,2019

12
https://www.drishtiias.com/daily-updates/daily-news-analysis/the-transgender-persons-protection-of-rights-
bill-2016
13
https://www.ijlsi.com/wp-content/uploads/Barriers-to-Healthcare-for-Transgender.pdf
14
https://www.thehindu.com/news/national/watch-all-about-the-transgender-persons-bill/article30122229.ece

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There has been an urgent need for some time to increase awareness among different
communities and organizations to actively recognize the rights of transgender
individuals, treat them with basic human dignity, and give them the same
opportunities as other genders. This includes equal treatment in educational
institutions, job opportunities, healthcare access, and use of public facilities and
benefits. Thus, enacting the Transgender Persons Act, India has progressed by
granting and protecting identity and rights to transgender individuals through the
Transgender Persons Act. This move shows a shift towards inclusivity and
progressivism, where gender will not limit opportunities. This may align employment
standards with international norms.15

However, Transgender individuals have faced limited opportunities in their social and
economic lives, and even within their families, due to social attitudes and stigma.
Despite the significant nature of the problem, awareness of their rights has been
lacking.

Few misses-

The definition of a ‘transgender person’, as provided under the Transgender Persons

Act is ambiguous and misleading. Additionally, the Act has been criticized for failing
to provide adequate protections against discrimination and violence towards
transgender individuals16. It also does not recognize transgender individuals as a
separate third gender, but rather as a subset of the male or female gender, which
further marginalizes and erases their distinct identity.

One of the key critiques of the Act is that it perpetuates the medicalization of
transgender identities by requiring individuals who wish to identify as male or female
must undergo a sex reassignment surgery or an equivalent procedure, and they must
be further examined by a chief medical examiner on the "correctness of their gender.
This process is seen as intrusive and unnecessary, and it reinforces harmful
stereotypes that transgender identities are abnormal, regressive, or pathological.17

15
https://www.ibanet.org/article/0F3AE21B-0170-4BF7-95DD-45B07EF1CAF6
16
ibid
17
https://www.theparalegal.org/post/drawbacks-of-the-transgender-act-2019

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The penalties for offences under the Transgender Persons Act extend only up to two
years of imprisonment with fine, which may seem inadequate for more heinous
violations like sexual abuse, rape, criminal assault, or sexual harassment.18

The Transgender Persons Act is considered to be insufficient in its provisions for the
protection of the rights of transgender individuals. Although it recognizes the rights of
transgender people in certain areas, such as employment and education, it fails to
address other important areas like marriage, adoption, and maternity rights. This is
seen as a lost opportunity to create a more comprehensive and inclusive legislation for
the protection of transgender rights. 19

The Transgender Persons Act leaves too many obligations with the ‘appropriate
government’ to act upon. How much priority will the government give to ensuring that
all those obligations are fulfilled in a timely manner will need to be seen – leaving the
transgender persons at the mercy of the system for effective implementation of the
benefits promised to them under the Transgender Persons Act.20

SOCIAL
INCLUSION/EXC
LUSION THEORY

18
https://www.ibanet.org/article/0F3AE21B-0170-4BF7-95DD-45B07EF1CAF6
19
ibid
20
ibid

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Figure 1.

The 2030 Agenda incorporates the principle that all individuals should benefit from
prosperity and have access to a basic standard of well-being. This principle is reflected
in the 17 Sustainable Development Goals in terms of eliminating poverty and hunger,
provide access to education, and ensure healthy lives for all nations and people,
including marginalized groups. We can also refer to the constitution which inherently
provides protection and calls for equality and social inclusion of the marginalized
groups.21

Social Exclusion-

Social exclusion as “a comprehensive formulation, which refers to the dynamic

process of being shut out, fully or partially, from any of the social, economic, political,
or cultural systems which determine the social integration of a person in a society.
Social exclusion refers to “the inability to participate effectively in economic, social,
political and cultural life, and, in some characterisations, alienation and distance from
the mainstream society.” 22

Social Exclusion -
21
https://www.un.org/esa/socdev/rwss/2016/chapter1.pdf
22
https://repository.up.ac.za/bitstream/handle/2263/57703/Saloojee_Social_2011.pdf?sequen=

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Social inclusion is the process of enhancing opportunities, access to resources, voice,

and respect for rights for those who are disadvantaged due to their age, sex, disability,
race, ethnicity, origin, religion, economic status, or other factors. Yet, social inclusion
and integration ought to strengthen social cohesion in societies. (2006) Kabeer
discussed the several sorts of identity. One is about "groups of people that recognise
their shared membership, have common views and values, and act in ways that are
collective." Examples of such group identities include caste, ethnicity, and religion.
The other refers to groups of people who are classified according to some shared trait
rather than according to shared beliefs and practises.. Except from the type of
prejudice they experience, members of these categories don't always know one
another and have very little in common. Examples of such socially excluded groups
include illegal immigrants, street children, lepers, and persons who have AIDS or
leprosy. 23

The present definition of social inclusion also refers to the process of improving the
terms of participation in society. In order to achieve social inclusion, it is necessary to
actively "bring people in" as well as address the causes of exclusion, such as specific
institutions and policies as well as discriminatory attitudes and behaviours. Policies
and institutions can promote social exclusion or, conversely, lessen its effects to the
extent that they define the "rules of the game" for social interactions and the allocation
of power, status, and control over resources.24

23
https://www.un.org/esa/socdev/rwss/2016/chapter1.pdf
24
ibid

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Figure 2.

Above are the three indicators : those that measure access to opportunity, namely
education, health services and infrastructure; those that measure access to employment
and income; and those that measure participation in political, civic, and cultural life. It
establishes threshold below which people would be regarded as excluded or left
behind.

Exclusion has occasionally been condoned and institutionalised by authorities in the

government, the church, the community, or elsewhere. At times, it has been practised
insidiously and subtly by members of society. Even after formal redress for racism and
other forms of prejudice, its effects may still be felt negatively on the welfare and
well-being of marginalised populations.25

Development Of Transgender Rights In View Of Inclusion Theory

As a result, the above-mentioned inclusion theory offers a useful framework for

comprehending the advancement of transgender rights. According to the principle, it's
crucial to create welcoming workplaces where everyone feels appreciated and free to

25
https://www.un.org/esa/socdev/rwss/2016/chapter1.pdf

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share their individual viewpoints and skills. This is particularly relevant for
transgender individuals, who have historically faced exclusion, discrimination, and
marginalization.

Inclusion theory recognizes the importance of acknowledging and celebrating

diversity. This includes recognizing the unique experiences and perspectives of
transgender individuals and valuing their contributions to society. It emphasizes the
importance of creating policies and practices that support diversity and inclusion. This
includes creating anti-discrimination policies, inclusive hiring practices, and diversity
training programs that specifically address the needs of transgender individuals. It
recognizes that creating an inclusive environment requires ongoing effort to identify
and address barriers to inclusion. This includes addressing systemic discrimination,
biases, and stereotypes that have historically excluded transgender individuals from
participating fully in society.

This entails giving support and tools to enable transgender people to overcome
inclusion obstacles and realise their full potential. Transgender rights have advanced
significantly in recent years in numerous nations all around the world. This includes
anti-discrimination laws, policies that foster inclusion in school, work, and other
spheres, as well as the legal acknowledgment of transgender people. However, there is
still much work to be done to create truly inclusive societies where everyone feels
valued and supported, regardless of their gender identity. Inclusion theory can provide
a useful framework for guiding ongoing efforts to promote transgender rights and
inclusion.

Social inclusion must offer a cogent critique of the various manifestations of social
inequality and the associated institutional practises and policies. Social inclusion must
allow for a discourse about oppression and prejudice in order to matter, to resonate.
Social inclusion must reclaim its proper place, not along a continuum (from exclusion
to inclusion), but rather as a by-product of a careful examination of exclusion. It must
simultaneously go beyond essentialism's bounds, challenge oppression hierarchies,
and express the universality of solidarity by advancing a transformative agenda that
unites the diverse, frequently disparate battles against oppression, inequality, and

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injustice. The progress towards social inclusion is undermined when minorities feel
othered and their rights are not acknowledged and respected. Social inclusion pushes
the discussion to move beyond the world of formal equality into the sphere of
substantive equality, which is characterised by challenges to inequity, exclusion, and
discrimination. Social inclusion must be centred on valued engagement and
acknowledgment. The equity and social justice arguments put forth by marginalised
groups and social inclusion are inextricably linked. Thus, it does not stand apart.26

Development Of Transgender Rights With Respect To Natural Law Theory -

Natural law theory posits that there is an inherent moral order in nature that humans
can discern and follow to achieve the highest good. In the context of transgender
individuals, natural law theory may be used to argue for their rights and well-being
based on the inherent dignity and value of all human beings.

From a natural law perspective, transgender individuals have a fundamental right to be

treated with dignity and respect, and to live their lives in accordance with their true
identity. This includes the right to access healthcare, education, employment, and
other opportunities without discrimination or prejudice.

Furthermore, natural law theory can also support the idea that gender identity is not a
choice, but rather a fundamental aspect of a person's being that should be recognized
and affirmed. This aligns with the growing recognition of transgender rights and the
need for society to create inclusive environments that respect and value diversity.

Overall, natural law theory provides a framework for understanding and advocating
for the rights and well-being of transgender individuals based on their inherent dignity
and worth as human beings.

26
https://repository.up.ac.za/bitstream/handle/2263/57703/Saloojee_Social_2011.pdf?sequen=

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BREAKING
BARRIERS

 Kerala`s first transgender lawyer

Reportedly, Padma Lakshmi completed her LLB from Ernakulam Government Law
College in Kochi, Kerala, after graduating with a Physics degree. Sharing her
photograph, the State's Industries Minister P Rajeev lauded her efforts in overcoming
the hurdle of life and creating history. "Becoming the first is always the hardest
achievement in history. There are no predecessors on the way to the goal. Obstacles
will be inevitable. There will be people to mute and discourage. Padma Lakshmi has
written her name in the legal history by overcoming all this.

For the unversed, India got its first transgender lawyer in Sathyasri Sharmila. She was
enrolled in the Bar Council of Tamil Nadu And Puducherry in 2018.27

 Trinetra Haldar Gummaraju – A Remarkable Journey Of Karnataka’s

First Trans-Woman Doctor

Trinetra Haldar Gummaraju, a 23-year-old woman belonging to the LGBTQ+

community completed her MBBS degree and is popularly known as the first trans-
woman doctor of Karnataka. She stated that As she transitioned to medical school, as I
came out to people, and as she realised how healthcare works for the transgender
community in India, she realised there is such a gaping hole. We don’t get the
healthcare that we deserve, be it with gender affirming surgery or gender affirming
therapy including psychological counselling. We don’t get the bare minimum,” she
said.28

 India’s First Trans Pilot : Adam Harry

27
https://www.thehindu.com/news/cities/Kochi/padma-lakshmi-is-first-transgender-to-be-enrolled-as-lawyer-in-
kerala/article66642372.ece
28
https://www.ndtv.com/india-news/transgender-doctor-and-instagram-star-trinetra-haldar-gummaraju-fights-
bigotry-2623761

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Adam Harry became India's first transgender trainee pilot in 2019. In the year 2020,
Kerala Government extended its support for Adam to realize his dream of becoming a
commercial pilot.29 But his dreams came shattering down when the Directorate
General of Civil Aviation (DGCA) declared him unfit to fly citing hormone therapy
and gender dysphoria as the reasons. However, in a milestone decision, the Directorate
General of Civil Aviation (DGCA), announced that those aspirants who have
completed their gender transition therapy or surgery will be declared fit to fly.30

 Gender Guidance Clinic

The Gender Guidance Clinic, a multi-speciality clinic for transgender persons, opened
at the Coimbatore Medical College Hospital (CMCH) to provide guidance and to
improve access to quality healthcare for trans persons.31 Doctors said that all the
treatment necessary for transgenders including sex-reassignment surgery, would be
conducted. The procedure will be conducted under the chief minister’s comprehensive
health insurance scheme. It will function under the National Health Mission.32

 Mumbai gets its first salon run by transgender persons

In order to empower the people of the transgender community and creating equitable
livelihood opportunities to make them self-dependent, a transgender salon has been
started in Mumbai. The establishment employs professionally trained beauticians, a
majority of whom will be from the LGBTQIA+ community.33

On the similar lines, In 2021, Aryan Pasha And Laxmi Narayan Tripathi Opened The
First Trans Owned & Run Salon In Ghaziabad34

SAME-SEX MARRIAGE: IN THE LIGHT OF DEVELOPMENT OF

29 LGBTQ RIGHTS
https://www.change.org/p/dgca-issue-gender-inclusive-medical-guidelines
30
https://www.independent.co.uk/asia/india/adam-harry-dgca-trans-pilots-b2143033.html
31
https://www.thehindu.com/news/cities/Coimbatore/multi-speciality-clinic-for-transgender-persons-opened-at-
cmch/article66675506.ece
32
https://timesofindia.indiatimes.com/city/coimbatore/coimbatore-medical-college-hospital-gets-multi-
specialty-clinic-for-transgender-people/articleshow/99085359.cms
33
https://www.indiatoday.in/trending-news/story/mumbai-gets-its-first-salon-owned-and-operated-by-
transgender-people-2351374-2023-03-25
34
https://www.indiatimes.com/news/india/indias-first-salon-owned-run-by-transgender-men-is-revamping-
looks-and-reforming-lives-567453.html

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The plight of homosexual couples who face violent threats from their families because
of their sexual orientation remains unaddressed by the law, despite the fact that same-
sex marriage is not legally recognised in India. However, a number of India's high
courts have lately taken steps to address concerns about same-sex marriage. Notably,
despite resistance from their respective families, the Kerala High Court issued a ruling
in June 2022 to permit a lesbian couple to live together.35

Additionally, the Punjab and Haryana High Court ordered the police to protect a
homosexual couple who were under danger from their families in November 2019,
and the Uttarakhand High Court issued a directive in December 2021 granting police
protection to a gay couple. Additionally, the Kerala High Court ruled in October 2018
that a lesbian pair had the freedom to reside together, further reaffirming the legal
acceptance of same-sex relationships in India.36

The Supreme Court referred the petitions for same-sex marriage formal recognition to
a five-judge Constitution Bench on Monday. The Indian government has opposed the
pleas, though, and has pleaded with the Supreme Court to let the Parliament decide the
case. The government has argued that marriage is only permitted between people who
are of distinct biological genders under Indian statutory and personal law, and any
interference by the court could result in serious repercussions..37

Some of the petitioners, including Senior Advocate Abhishek Manu Singhvi, argued
that the core issue is the universal right to love, which the Supreme Court
acknowledged in its decision decriminalising same-sex relationships. He added that a
major problem resulting from the decriminalisation of Section 377 is the denial of the
right to marry based purely on one's sex, sexual orientation, or gender identity. He
35
https://www.newindianexpress.com/good-news/2022/jun/01/kerala-hc-allows-lesbian-couple-adhilafathima-
to-live-together-2460288.html
36
https://www.npr.org/2023/03/11/1157569539/india-lgbtq-marriage-supreme-court
37
https://indianexpress.com/article/india/supreme-court-same-sex-marriages-five-judge-constitution-bench-
8494400/

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stressed that in order to grant these groups of people the right to marry, it must be
done on equal terms. Singhvi also emphasised that the Supreme Court asserted in the
Navtej Singh Johar decision that everyone, including the LGBTQ+ community, has
the right to life, which includes respect, the freedom to choose one's family, marriage,
procreation, and sexual orientation. He added that in the Puttaswamy case, the
Supreme Court recognized that same-sex couples have the right to privacy in making
important personal choices, including the right to marry.38

The government's solicitor filed an affidavit in the recent Supriya Chakraborthy v.

Union of India & Anr case pleading with the Supreme Court to refer the case to the
legislature. They also argued that due to a legitimate state interest in preserving
marriages' social stability, the legal recognition of marriage should only apply to
couples of the opposite sex. The government argued that the denial of the right to
marry to same-sex couples did not violate Article 14 of the Constitution because of the
existence of an intelligible differentia between heterosexual and homosexual couples,
as well as a rational relationship between the law and the objective of maintaining
social stability in marriages39. However, the government's justification for legalising
same-sex unions did not address how doing so would lead to societal unrest in
marriages. In instances of bisexuality, where a person's sexual orientation permits
them to choose partners of either the same or opposite sex, the intelligible differentia
test would not be relevant. Any rational person would find it difficult to ascertain a
person's sexual orientation without understanding that they are bisexual because
sexuality is an innate trait.40

The government claimed in their affidavit that while the Navtej ruling acknowledged
the private rights of homosexual people, it did not cover the "public right" to marriage.
The government did not, however, explain why marriage should be restricted to the
public sphere or why the other Navtej judgement provisions, which highlighted the
severe discrimination faced by the LGBTQ+ community, should not be applied to

38
https://indianexpress.com/article/india/supreme-court-same-sex-marriages-five-judge-constitution-bench-
8494400/
39
https://vidhilegalpolicy.in/blog/same-sex-marriage-a-test-of-indias-constitutional-values/
40
https://vidhilegalpolicy.in/blog/same-sex-marriage-a-test-of-indias-constitutional-values/

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grant same-sex couples the right to marry in order to end social prejudice and advance
the inclusion of gay and lesbian people in society. 41

In a similar vein, a number of former judges have issued a statement asking those who
are arguing in favour of same-sex marriage before the Supreme Court to abstain from
doing so "in the interest of society." The judges argued that because marriage in India
is a socio-religious sacramental unity between two people and two families, legalising
same-sex unions would have a disastrous effect on society. They contend that
marriage serves a greater purpose than merely fostering sexual intimacy and is
essential for society's procreation through childbirth. They criticise interest groups that
have contacted the court to ask for the legalisation of same-sex marriage do not
comprehend or value marriage..42

The problem still exists in that children of gay couples are denied formal recognition
for both parents because Indian law only acknowledges heterosexual marriages. One
might be legally recognized as the parent of a child either because they gave birth to
the child or because they adopted the child as a single parent.

Indian law is based on a patriarchal concept of a family. The assumption is that the
man is the breadwinner while the woman is restricted to household labour. If the
Supreme Court upholds same-sex marriage equality, numerous related Indian statutes
would overhaul. Laws governing divorce, alimony, inheritance, and parenthood will
have to be reimagined. It will be the biggest change in a generation.

CONCLUSION

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https://vidhilegalpolicy.in/blog/same-sex-marriage-a-test-of-indias-constitutional-values/
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https://zeenews.india.com/india/legalising-will-same-sex-marriage-will-have-devastating-impact-on-society-
former-judges-2589145.html

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 Development studies

The acknowledgement and appreciation of diversity and difference, whether rooted in

race, disability, religion, culture, or gender, is of paramount importance.. Individual
exclusion based on such grounds is unjustified and needs to be acknowledged as such.
Recognizing that we all share a shared humanity despite our differences is essential.
Our constitution's Article 14 and Article 21 framework aims to uphold and protect our
fundamental liberties. All people should be accorded these privileges with the same
level of esteem and respect. Humanity takes precedence above all else .As a result, we
must strive to establish a society that respects diversity and acknowledges the intrinsic
worth and dignity of every person, despite their differences. . Ultimately, it is only by
embracing and celebrating diversity that we can build a more inclusive and equitable
society that promotes mutual understanding and fosters social harmony.

In conclusion, it is crucial that the Court, as the final arbiter of constitutional rights,
disregard prevailing social morality and uphold and safeguard the tenets of
constitutional morality, as highlighted in numerous cases by the Court, despite
potential opposition from a majority regarding the sexual orientation or behaviour of
people who identify as LGBT.

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