The concept of human rights circles around the premise that all humans are equal – i.e., understood as being on the same plane or level with respect to their worth, efficiency, rights, and value. In particular, rights of LGBTQ+ members are looked at in the socio-cultural and ethical direction. Bestowing rights upon members of LGBTQ and the community as a whole would provide a direct counter to the stigmatization that is deeply rooted in the society, towards them. The term ‘stigma’ can be used to describe the negative responses made towards LGBTQ people and is also inclusive of the inferior social status of the community in the society [Herek G, 2009 pg. 65]. With the decriminalization of Section 377 of the IPC, the Supreme Court ruled in 2018 that the consensual sex between homosexuals is not a crime and that diverse sexual orientations is natural, devoid of any human control. Presently, queer identities may be acceptable, with crowded pride movements, more uncloseted beings, increasing and decent, if not overgeneralised representation in the entertainment industry and safer online platforms for their interaction. However, if looked within the peripheral rims of a family setting, home, school or workplace, the acceptance of diverse sexual orientations and their freedom therein – to openly express their choices – still continues to remain a perpetual hassle.
Outlining the continuous stigmatization through examples
This project aims to discuss the various sociological, psychological, and economic contexts where members of the LGBTQ community – closeted or uncloseted are constantly subject to stern stigmatization despite the decriminalization of Section 377. The following weighs the causes for such stigmatization and to further put forward recommendations for the same.
- EXAMPLE I: Educational Ostracism.
The impact of education on the economy and further, the investments in human capital can be witnessed clearly. The obstacle that hampers the growing investments in human capital in various educational settings is the discrimination and harassment, faced especially by LGBTQ community students or learners. Not only does such stigmatized and inconsiderate treatment take a negative toll on their mental health, but it also impacts the economy on a large scale. Bullying of children who identify themselves or are sexually oriented as either LGBTQ, occurs in educational institutions and there is minimal to no awareness, plus, the children who are subject to bullying cannot even approach their professors/teachers as they themselves are at often times homophobic and insensitive. A survey was recently conducted in Tamil Nadu among 371 transgender and gay people ranging from the age group of 18-22. As per the reports of the survey (mainly focusing on the phase when harassment begins in school), it was found that 60% face bullying in middle school or even high school. Around 43% are sexually harassed in primary school. Among these instances, only 18% take the matter to the authorities. While it is evident that such a traumatic event takes a difficult toll on the victim’s mental health (which will be discussed in example 5), as per the report, 70% suffer from severe anxiety, depression and lose their focus in studies and their personal growth. As a result of which 33% end up dropping out because of the persistent bullying.
LGBTQ members have been subject to exclusion and discrimination since times immemorial. A Naz Foundation study (conducted in 2005) found that about half of the children/teens who identify themselves as gay, experienced violence and bullying by both teachers and classmates [Khan, 2005]. This is how stigma towards LGBTQ members leads to bullying and insensitive behaviour. Such ill treatment causes a drop in their ability to continue their education and the further degradation of human capital investment.
- EXAMPLE II: Employment Bias leading to Economic Inefficiency.
The Protection of Civil Rights Act 1955 of India is only limited to the safeguarding of those people who are subject to discrimination based on untouchability (or the stern tenets of the caste system). Why is there no mention of punishment of any kind for those who discriminate on the basis of sexual orientation in India? In order to ensure protection of the community members, one can only rely on the provisions such as Article 14, 15, 19 and 21 of the Indian Constitution. Article 14 requires that citizens be treated equally before the law. Article 15 prevents the state from discriminating on the grounds of sex, race, religion, caste or even PoB. Since Article 15 talks about discrimination, such application can be expanded to employment and other occupation related matters. In the case of Navtej Johar vs Union of India, the Supreme Court did the same, where it ruled in favour of the expansion of Article 15 and in particular, the term ‘sex’. Presently, this term is inclusive of the diverse sexual orientations and hence, discrimination against LGBTQ members or queer individuals (and couples) by depriving them of their jobs and by also blatantly discrediting their hard work and merit – should be unconstitutional. Yet, the discrimination continues. Queer individuals are suspended or terminated because of their sexual orientation. A teacher who was holding a job in a well-known school in Kolkata was fired for being gay [Gupta, A. and Gupta, S. 2020]. Such stigmatization of queer people as ‘deviant’ or ‘unlawful’ ought to be prohibited by the law – for the successful upholding of the democratic Constitution, the well-being of the people and lastly, for the fair balance of human capital and economic growth.
- EXAMPLE III: Stigmatization & Disregard for Sexual Orientation in Workplace.
The main cause for observing stigmatization in employment and in the workplace separately is to better conceptualise the problems faced by queer identities and to avoid any dilapidation of the same (or even overlap). In November of 2018, the story of Shyam Balasubramanian (a transman) comes to light where he shares his experiences working at a chip-designing firm in Chennai. He claims that although, the management grew to be more supportive over the years, nothing stops the teasing and torturous bullying that he has to face from the other corners of his workplace simply because he recognises himself as a transgender. Not only does such biased and unfavourable disposition affect his confidence and self-worth, but it also makes it extremely difficult for him to connect with his peers. What becomes easy for others, becomes an impossible task for him. Surveys conducted in late 2018 rendered the findings that the general attitude or response towards LGBTQ+ was negative and around 55% still experienced bias in the smallest of the things. It cannot, however, be denied that Indian (corporate) workplaces have come a long way on the inclusion and diversity as compared to how the scenario was more than a decade ago.
- EXAMPLE IV: Dereliction of Physical Health Care.
The discourse of health care lacks the understanding of the ‘politics of queer’ and it also undersupplies sensitivity towards the other underlying complexities – of what is ‘socially acceptable and unacceptable’. While attempts are ongoing to make heterosexuality (forcefully) normal, such coercion or normative modelling/conditioning has led to sheer neglect towards the other members/people – who do not recognise themselves as heterosexual. Health care systems may not offer ‘culturally competent’ or ‘non-discriminatory’ services [Badgett, M.V.L 2014].Categorising people solely on the basis of their sexual choices and behaviour results in the destruction of the various identities in a social context [Nakkeeran, N. & Nakkeeran, B. 2018]. Such categorisation led to the ignorance of collective aspects relating to health problems vis-à-vis the LGBTQ community in India.
Medical communities have not been open about homosexuality – up until the last decade only, the psychiatric society had started accepting that homosexuality is a personal choice and not a disease or infirmity. But this does not mean that apprehensions are at bay. Homophobia still persists and as a result, health care is not awarded to all in an equal manner. Where will the members of LGBTQ go for availing health care if hospitals and doctors deny them care? In late 2018, a radiation oncologist, Dr. Prasad Dandekar (who identifies himself as gay), shared that a senior doctor with whom he worked, humiliated him, and claimed that ‘homosexuals are weird’. Dr. Dandekar took up the initiative to spread awareness amongst like-minded doctors about the need of the hour – for doctors to set aside their personal tenets and provide aid to the physical needs, mental care and in other surgery related matters. There is a stigma attached that LGBTQ members are the ones who suffer from STDs or other venereal diseases. Not only are they labelled as ‘promiscuous’, but they also need to think thrice before disclosing their sexual orientation before a medical practitioner, bearing in mind the fear of being subject to judgement and/or neglect. Such pre-existing beliefs end up sabotaging LGBTQ members’ access to health care.
- EXAMPLE V: Disregarding Mental Health Issues.
Several existing studies of LGBTQ people in India find extremely high rates of anxiety, depression, HIV transmission and suicides (compared with the general population). The main cause for such high rates can be narrowed down to three things – firstly, lack of awareness about the diverse sexual orientations and their conventionality among people, secondly, lack of importance or consideration designated to mental health and illness and thirdly, lack of social or group support. While it is easy to label somebody, who is gay or transgender as ‘delusional’ or ‘mentally ill’, when it comes to acceptance of queer members’ stories or traumatic experiences, they are simply neglected. A huge chunk of what was yielded as part of a qualitative research pointed towards the fact that the growing stigma towards LGBTQ members is why a lot of them experience depression and suicidal thoughts – in Chennai, for instance, 55% of a specifically chosen community met the requirements or criteria for depression [Safren et al. 2009]. Another community-based study conducted in Mumbai found that around 29% of gay men met the standard for clinical depression [Sivasubramanian et al. 2011]. A comparison was made between the depression rates between the general population and the LGBTQ population – and it was found that the rates of the latter were 6-12 times higher than the former – which is alarming.
- Coercion for marriage: In India, parents and relatives can often be found coercing or manipulating their children for marriage. For LGBTQ members, this can take a bad turn, more than how it would affect heterosexual people, because of the simple fact that – coerced or fixed marriage between two straight people would be an arranged one, however, the same between a homosexual and a straight person would be extremely difficult for the both of them, especially the homosexual person, as he/she might have to adjust by hiding their true identity and remain closeted for the rest of their lives – further making it mentally suffocating and traumatizing. Till date, since the 2018 judgement, there are no marital laws backing the marriages of LGBTQ in India.
- EXAMPLE VI: Inadequacy & Harshly Rigid Laws – lacunae in existence and regulation (marital laws).
In 2020, the Delhi High Court is hearing a PIL that pleads for the legalisation of marriage for the gay community under the Hindu Marriage Act 1955. But according to Solicitor General, Tushar Mehta – ‘same-sex marriages are neither a part of ‘our culture’ nor are they part of the law’ – who opposed said petition. Denial of such petition especially post the passing of the 2018 judgement which decriminalises Section 377 [I.P.C], is quite bizarre and conflicting. It is also utterly ‘discriminatory and renders them a second class of citizens’ [Mandhani, A. 2020]. This particular example is intertwined with many other examples such as – violence towards LGBTQ members, disregard for their mental health, sheer neglect towards their educational betterment or even their holistic wellness. It is extremely vital for the Indian Government to give effect to the Supreme Court rulings – to make India accepting and open to the needs and rights of the LGBTQ community – even if it means to alter a bunch of (outdated or untransformed) laws.
- EXAMPLE VII: Incessant Refusal to Access Facilities & Services.
Prior to the decriminalisation of Section 377 (in 2018), the law only criminalised sexual conduct among same sex individuals (or homosexuals), and it did not criminalise the individuals themselves. This is especially an important point that needs to be noted and understood. Why do LGBTQ members face constant discrimination, physical assault and verbal abuse while seeking access to public spaces that are essential for enjoyment of human rights? Simply put, stigmatization can be found when LGBTQ members are discriminated by denying them from selling something, refusing to render a paid service, deliberately discarding terrible or used goods, etc. People who are engaged in sex work or are found begging on the streets are victims of harassment and abuse by both State actors (police) and non-state actors – even when they are not engaged in any criminal or unlawful conduct.The mere reason that they are homosexuals cause them to be helpless victims in such a scenario. Indian metro trains have come a long way in terms of making the metros ‘women friendly’. But the situation for transgender people is still worse. Their access to public transport is severely affected by the discrimination that they face based on their ‘real vs. perceived’ gender identity. They are also excluded from cultural events or places as they are seen as abnormal and unfitting to the scenario. Most importantly, ostracised from entering or enjoying privately owned places that are normally open to the public such as restaurants, shopping malls, hotels, theatres, etc. Such discrimination involves the outright denial of entry, the refusal to render services and ‘discriminatory pricing’.
- Use of Public Toilets: It is evident that, not much has changed for the better, in terms of the LGBTQ community’s advancement and recognition in India. While rendering that the law cannot criminalise same-sex relationships, rights in terms of other small, yet significant matters still need legal backing. One such example is the use of public toilets. LGBTQ members, especially transmen and women face regular difficulties in accessing public toilets corresponding to their self-identified gender and sexual orientation. If transgenders are not given separate toilets, they have to access public ones – where they are unsafe and are ridiculed for the same. Where else are they expected to go?
- For their educational ostracism (Example 1): The key necessity to tackle this stigma is to establish confidential and nurturing affinity and counselling groups within schools. Students must be made aware of the same and the primary goals of the counsellor or mental health practitioner must be to build a healthy rapport with the students and make them aware about the diverse sexual identities. While sex education is the need of the hour, students must learn that it is conventional for more than two sexes to exist. Awareness comes first, then comes acceptance and fighting for rights.
- For employment bias leading to economic inefficiency (Example 2): Efforts should be made to ensure that any possibility of discrimination that could arise, is entirely dismissed. Hiring, promotions, compensation and other transfer or pension benefits must be awarded solely based on hard work, fine skills, and merit – not on sexual orientation or personal choice.
- For stigmatizing and disregarding sexual orientation in workplace (Example 3): The first step towards addressing sexual orientation in a workplace is to first accept that it is a diverse dimension. Any scope for discrimination or bias based on sexual orientation must be eliminated. Further, the policies and practices should not leave room for ambiguity – they must be under constant review while keeping in mind that such policies are for the betterment of a group of members (or even one member), for that fact and not just for names sake. Sternly establishing support systems like counselling or Zero Tolerance Policy (ZTP) is crucial. Employees are also to be made aware about such diversity and consistent communication must be appreciated in a work set up.
- For the dereliction of their physical health care (Example 4): Providing medical care must be the priority of medical practitioners and in the due course, they must let go of their personal beliefs. A human being who is able to pay the hospital fee, should be rendered services. ZTP must be established. Doctors who discriminate must be questioned without fail.
- For disregarding their mental health issues (Example 5): The present understanding or idea about community mental health programmes focuses not merely upon enabling of persons to be ‘symptom free’ but also ensure that they are often included into the mainstream as full and active members of the society. Hence, community mental health services should be more integrational in nature and not entirely institutionalised – one where the individual is isolated from the society and others [Davar, B. 2018]. What should be acknowledged, in fact, is the role played by structural factors as in the case of violence, poverty, opportunities of work or livelihood, etc.
- For the inadequacy & harshly rigid laws – lacunae in regulation (Example 6): With the ongoing petitions for legalising same-sex marriage in India, the people must realise that laws are formulated for people, and not the other way round. With the advancement and progress of India, its citizens are transforming to be more liberal and accepting of what is, and hence, the law must be in consonance with the people.
- For the incessant refusal to access facilities & services (Example 7): The Central Government should develop a uniform and comprehensible process for identifying the documentation for changing any gender markers while keeping consistent consultation with LGBTQ persons. The Transgender Persons (Protection of Rights) Act that ensures equal rights to transgender persons should be made in consonance with India’s international human rights obligations (arising out of conventions). Lastly, to raise awareness campaigns with the aid and support of media outlets and civil societies – building State accountability and making actual remedies accessible.
This segment summarizes the gathered information on the various contexts where humans are stigmatized/discriminated based upon on their ‘abnormal’ or ‘deviated’ sexual orientation. The constant need to be heterosexual and to carry on with a certain norm is one of the main reasons as to why homosexuality is shunned upon. The parallel observed in this paper is analysed with respect to the ongoing and future research on the effects of stigmatization, the probable policies, and laws to attain freedom of choice and inclusion, and recommendations on advanced interventions to further assign a more equal footing for members who identify themselves as LGBTQIA+. The question of prime importance is – Up to what extent does a full-fledged Supreme Court judgment (as the Section 377-decriminalisation ruling 2018) affect the way of how citizens of a country behave or respond towards a certain socio-cultural or human rights issues? Looking back at the 2013 judgement (which was overturned later in 2018), India has come a long way in terms of acceptance of the LGBTQ community. There is yet a long way to go in terms of making various set ups and places safer and more equal for LGBTQ members and other sexual minorities. In conclusion, to avoid any situations which can lead to discrimination and harassment due to the conflict of opinion within a social setting, accountable organisations should be prepared to address such dimensions. And in those corners of India, where organisations are lacking, the Indian Government must award effect to the recent rulings of the Supreme Court and an initiative must be taken to ensure that more recognition and unity is celebrated – by simultaneously standing up against discrimination and upholding the constitutional principles of equality and liberty of choice.
Name of Author(s)/Articles
- Herek, ‘Confronting Sexual Stigma and Prejudice: Theory and Practice’,
- Menon, P. ‘LGBT bullying in schools takes heavy toll, reveals UNESCO report’,
- A. Gupta and S. Gupta, ‘The Lack of LGBTQ+ employment Protections in India’,
- ET Bureau, ‘India Inc is not creating inclusive workplace for LGBTQ employees’,
- Badgett, M.V.L (Ph.D.), ‘The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India’,
- Nakkeeran, N. and Nakkeeran, B., ‘Disability, mental health, sexual orientation and gender identity: understanding health inequity through experience and difference’,
- Barnagarwala, T. ‘Bringing LGBTQ community closer to health care, 8 doctors urge fraternity to open up’,
- Mandhani, A., ‘Same-sex marriage not part of our culture, says top govt. lawyer, opposes plea in Delhi HC’,
- International Commission of Jurists, REPORT ON: ‘Living with Dignity: Sexual Orientation and Gender Identity – based Human Rights Violations in Housing, Work, and Public Spaces in India’, Pg. 10,
- Dhar, S., ‘Court comes to rescue of Gujarat police’s ‘first’ lesbian couple’,
- Patel, R., ‘Being LGBT in India: Some home truths’,
- Davar, B., ‘Urban Community Mental health and Inclusion Program’,
- SSPI: http://blogs.law.columbia.edu/genderandsexualitylawblog/files/2012/04/Sexual-Stigma-and-Sexual-Prejudice-in-the-United-States-A-Conceptual-Framework.pdf
- TOI: – https://timesofindia.indiatimes.com/india/lgbt-bullying-in-schools-takes-heavy-toll-reveals-unesco-report/articleshow/69718451.cms
- THE ET POLITICS: https://economictimes.indiatimes.com/news/politics-and-nation/india-inc-is-not-creating-inclusive-workplace-for-lgbt-employees-people-with-disabilities/articleshow/66778071.cms?from=mdr
- WORLDBANK.ORG: http://documents1.worldbank.org/curated/en/527261468035379692/pdf/940400WP0Box380usion0of0LGBT0People.pdf
- HEALTH RES POLICY SYS 16,95: https://doi.org/10.1186/s12961-018-0366-1
- THEINDIANEXPRESS: https://indianexpress.com/article/cities/mumbai/bringing-lgbtq-community-closer-to-health-care-8-doctors-urge-fraternity-to-open-up-5346886/
- ICJ.ORG: https://www.icj.org/wp-content/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report-2019-ENG.pdf
- TOI: https://timesofindia.indiatimes.com/city/ahmedabad/court-comes-to-rescue-of-gujarat-polices-first-lesbian-couple/articleshow/77296590.cms
- LIVEMINT: https://www.livemint.com/Sundayapp/sAYrieZdZKEybKzhP8FDbP/Being-LGBT-in-India-Some-home-truths.html
- AMCHSS, India:https://sctimst.ac.in/About%20SCTIMST/Organisation/AMCHSS/
 Gregory M. Herek, ‘Confronting Sexual Stigma and Prejudice: Theory and Practice’, SPSSI (Nov 28, 2007) available at – http://blogs.law.columbia.edu/genderandsexualitylawblog/files/2012/04/Sexual-Stigma-and-Sexual-Prejudice-in-the-United-States-A-Conceptual-Framework.pdf (last accessed – Apr 16th, 2021).
 Navtej Singh Johar vs. Union of India W.P. (Crl.) No. 76 of 2016 D. No. 14961/2016 and Naz Foundation vs. Govt. of NCT of Delhi 160 Delhi Law Times 277.
 Priya Menon, ‘LGBT bullying in schools takes heavy toll, reveals UNESCO report’, TOI (Jun 10th, 2019 14:49 IST) available at – https://timesofindia.indiatimes.com/india/lgbt-bullying-in-schools-takes-heavy-toll-reveals-unesco-report/articleshow/69718451.cms (last accessed – Apr 16th, 2021).
 An elaborative 1955 Act containing 16 sections and 1 repealed clause – majorly focusing on punishments for discrimination against religious and social disabilities and for practicing untouchability. It also touches upon the Civil Courts jurisdiction along with the power of State.
 The Indian Constitution 1950 – Equality, State prohibited from discriminating on grounds of sex, religion, caste or place of birth, and protection of life and liberty (brief on the respective provisions stated above).
 The Indian Constitution 1950 – Article 14 – state shall not deny to any person equality before the law or the equal protection of the laws within the Indian territory.
 The India Constitution 1950 – Article 15 – prohibition of Indians to discriminate or bar someone on the basis of race, religion, caste, sex, and place of birth.
 Ibid footnote 2.
 Gupta, A. and Gupta, S. ‘The Lack of LGBTQ+ employment Protections in India’, JURIST.ORG – Student Commentary – National Law University Odisha India (Jun 25th, 2020 02:20:05 PM) available at – https://www.jurist.org/commentary/2020/06/gupta-gupta-lgbtiq-protections-india/ (last accessed – Apr 16th, 2021).
 ET Bureau, ‘India Inc is not creating inclusive workplace for LGBTQ employees’, THE ET POLITICS (Nov 24th, 2018 06:50 AM IST) available at – https://economictimes.indiatimes.com/news/politics-and-nation/india-inc-is-not-creating-inclusive-workplace-for-lgbt-employees-people-with-disabilities/articleshow/66778071.cms?from=mdr (last accessed – Apr 18th, 2021).
 Supra note 10.
 Badgett, M.V.L (Ph.D.), ‘The Economic Cost of Stigma and the Exclusion of LGBT People: A Case Study of India’, WORLDBANK.ORG (Oct 2014) available at – http://documents1.worldbank.org/curated/en/527261468035379692/pdf/940400WP0Box380usion0of0LGBT0People.pdf (last accessed – Apr 18th, 2021)
 Nakkeeran, N. and Nakkeeran, B., ‘Disability, mental health, sexual orientation and gender identity: understanding health inequity through experience and difference’, HEALTH RES POLICY SYS 16,95 (Oct 9th, 2018) available at – https://doi.org/10.1186/s12961-018-0366-1 (last accessed – Apr 18th, 2021).
 Barnagarwala, T. ‘Bringing LGBTQ community closer to health care, 8 doctors urge fraternity to open up’, THEINDIANEXPRESS (Sept 9th, 2018 8:06:32 AM) available at – https://indianexpress.com/article/cities/mumbai/bringing-lgbtq-community-closer-to-health-care-8-doctors-urge-fraternity-to-open-up-5346886/ (last accessed – Apr 19th, 2021).
 Ibid footnote 13 pg. 38.
 Mandhani, A., ‘Same-sex marriage not part of our culture, says top govt. lawyer, opposes plea in Delhi HC’, THEPRINT (Sept 14th, 2020 1:55 PM IST) available at – https://theprint.in/judiciary/same-sex-marriage-not-a-part-of-our-culture-says-central-govt-opposes-plea-in-delhi-hc/502232/ (last accessed – Apr 19th, 2021).
 International Commission of Jurists, REPORT ON: ‘Living with Dignity: Sexual Orientation and Gender Identity – based Human Rights Violations in Housing, Work, and Public Spaces in India’, Pg. 10, ICJ.ORG (June 2019) available at – https://www.icj.org/wp-content/uploads/2019/06/India-Living-with-dignity-Publications-Reports-thematic-report-2019-ENG.pdf (last accessed – Apr 19th, 2021).
 Supra note 18.
 Davar, B., ‘Urban Community Mental health and Inclusion Program’, Presentation: on AMCHSS, India (2018) available at – https://sctimst.ac.in/About%20SCTIMST/Organisation/AMCHSS/ (last accessed – Apr 19th, 2021).
Author: Priscilla Nisha Samuel