Analyzing Position of LGBTQ+ Community and Law in India

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  1. Introduction

Lesbian, Gay, Bisexual, Transgender, Queer, and Others refers to persons who do not identify with cisgender heterosexual “ideals.” In India, the LGBTQ+ community also includes the Hijras, a social group that is half religious cult and part caste. They are either culturally characterized as “neither males nor women” or as men who become women by dressing and acting like women. Buhuchara Mata, an Indian mother goddess, is worshipped by Hijras (a Hindu goddess representing chastity and fertility).[1]

  • Brief History of LGBTQ

Homosexuality has been prevalent in India since time immemorial. It was, for example, shown in numerous Hindu temples, where pictures of same-sex individuals hugging or displaying their genitals to one another could be seen. It’s also referenced in other sorts of documents: we find proof of its existence in religious texts, particularly Sanskrit religious sources like Manusmriti and Shikhandi, as well as a chapter of Vatsyayana’s Kamasutra.

After then, in terms of perspective, everyone was aware of these practices and their presence, but it was not accepted because it was already seen negatively. Indeed, the many sorts of penalties persons suspected of homosexuality would suffer were: women’s hair would be shaved, two of their fingers would be cut off, and males guilty of having gay sexual intercourse would risk losing their cast.[2] Homosexuality is also referenced in numerous places in the Kamasutra, as previously stated.

Furthermore, the Mahabharata – one of the two major Sanskrit epics of ancient India – can be translated as “the great tale of the Bharata“; Bharata being a symbol of dharma – which corresponds to the behaviors to have in order to have a life that makes sense while also making the universe work – and Bharata can also be linked to a certain kind of idealism.

As a result, not only was homosexuality recognized at the period but it was also punished by torture and had societal ramifications.

  • LGBTQ Movement

In 1860, while India was under British rule, homosexual activities were considered unnatural and committed a crime under Section 377 of Section 16 of the Indian Penal Code.[3] The right to equality was established under Article 14[4] after independence on November 26, 1949, but homosexuality remained a criminal offence. The first documented homosexual rights rally was held on Aug. 11, 1992, after decades of silence. Kolkata held India’s first Gay Pride Parade in 1999. Calcutta Rainbow Pride was the name of the march, which had just 15 participants. In 2009, the Delhi High Court ruled in the Naz Foundation v. Govt. of NCT of Delhi[5] case that criminalizing consenting gay intercourse between adults is a breach of India’s Constitution’s fundamental rights. The Supreme Court overturned the Naz Foundation v. Govt. of the NCT case in Delhi in 2013 and restored Suresh Kumar Koushal, Section 377 of the Indian Penal Code and other cases v. The NAZ Foundation.[6] MP Shashi Tharoor presented a bill to decriminalize homosexuality by the end of 2015, but was denied by the Lok Sabha. In the momentous Puttuswamy decision[7] in 2017, the Supreme Court established the right to privacy as a basic constitutional right. LGBT campaigners were given fresh optimism as a result of this. When it came to criminalizing consenting sexual behavior between adults of the same sex, on September 6, 2018, the Supreme Court ruled in a majority decision that Section 377 was unconstitutional.[8]

In spite of the victory over Section 377, the greater battle to ensure equality for the LGBT community continues to this day.[9]

  • Sociology Perspective

The term queer has lately gained popularity as a way to describe various focuses in the politics and intellectual study of sexuality. Despite the pioneering role that an earlier generation of sociologists had in creating important ideas of the social construction of sexuality, much work under the banner of queer theory has been done primarily outside of the field of sociology, as this article discusses.

It should go without saying—but, regrettably, it must be said—that the views and methodologies of disciplines like sociology have a lot of room in such an effort, and that there is a lot of demand for sociological contributions, both theoretical and empirical. On the one hand, practitioners of queer theory risk recreating the wheel by tracing their lineages back only to Sedgwick and Foucault. On the other hand, because queer studies primarily focus on discourses and texts, important questions regarding social structure, political organization, and historical context are only partially addressed. The poststructuralist reduction of complex cultural codes into “binary signifying symbols” in much of queer theory, as highlighted by Steven Seidman[10], and the related propensity to remove discourses from their institutional settings, border uncomfortably on a form of “textualism.”

  • Problems, Rights and Identity Loss Issue faced by Queer Community

“People who are lesbian, gay, bisexual, or transgender face enormous challenges in a culture where heterosexuality is typically promoted as the only acceptable orientation (LGBT).” In many spheres of life across the world, they continue to suffer discrimination and marginalization. “Homophobic assault and mistreatment of LGBT individuals is frequent. Similar-sex couples face prejudice and disadvantage when it comes to social security programs like healthcare and pensions in the majority of EU countries since they do not have the same rights and protections as heterosexual couples.” Since they fear losing their employment, most LGBT people are still hiding their sexual orientation or are being discriminated against in the workplace. In certain cases, this vulnerability can lead to poor school performance, school dropouts, mental illness and homelessness for young LGBT individuals who have been separated from their families and social networks due to homophobia and transphobia. Discrimination against LGBT people not only denies them equitable access to basic social services like employment, health care, education, and housing, but it also marginalizes them in society and increases their vulnerability to social exclusion, especially among the poorest. [11] Here are some of the key issues that LGBT people confront across the world:

  • Social Exclusion and Marginalization: Individuals, interpersonal relationships, and society as a whole are all harmed by marginalisation. People on the “margins have little control over their own lives and resources; they may be stigmatized and are frequently the target of negative public perceptions. Their opportunities to contribute to society may be limited, gain poor self-esteem and self-confidence and develop alone. As a result of social policies and practices, they may have limited access to important social resources including education and health care, housing, income, recreation, and job. The impact of marginalization on social exclusion is equivalent, whether it is found in societal attitudes (as in the case of disability, sexuality, race, etc.)or socioeconomic conditions (such as employment closures, the absence of cheap living, etc.).” Marginalization of LGBT persons may take many forms, including racism, sexism, poverty, and other concerns including homophobia and transphobia, all of which are damaging to LGBT people’s mental health. There is a social stigma attached to sexual orientation and gender expression that keeps many LGBT people from participating fully in society, especially in jobs and civic engagement. The discrimination they face isolates them from a wide range of support networks, including their own families. As a result, they have restricted access to medical care, justice and legal services, and an education that is typically taken for granted. Prejudice and marginalization based on sexual orientation and gender identity and expression can prevent LGBT persons from obtaining essential public services like healthcare and housing, leading to severe health disparities.[12]
  • Reaction and Ostracism from Near and Dear Ones: In the past, only a small percentage of teenagers came out to their families or informed others that they were homosexual. The majority of lesbians, gay men, and bisexuals (LGB) waited until they were adults to tell others about their sexual orientation. Many LGB individuals were afraid of rejection and significant negative reactions if they freely shared their experiences. LGBT teenagers had limited options prior to the 1990s because of the lack of available services. There were very few options available for homosexual and transgender youth to learn about their identities and to find help and friendship. In recent years, the Internet, school diversity clubs, and LGBT youth groups have offered real information, guidance, and support to homosexual and transgender teenagers. Through adolescence, more LGBT youth are coming out (announcing their sexual orientation to friends, family, and other adults) due to better service options. [13] Until recently, little was known about how families react when a gay or lesbian adolescent comes out. Even less was known about how LGBT teenage health and mental health are affected by family reactions. Families and caregivers have a significant effect on the risk and well-being of their LGBT children.[14] To avoid being rejected, many LGBT youth and those who are unsure about their identity want to remain anonymous. Many people keep their sexual orientation a secret to avoid upsetting their parents or other family members who believe being homosexual is sinful or bad. Concealing, on the other hand, comes at an expense. LGBT adolescents’ self-worth and self-esteem are undermined as a result. Risky behaviors such as HIV infection or drug abuse are made more likely as a result of this. It has an effect on their ability to set long-term goals, such as professional or vocational ones. The urge to start a family and be a parent is lessened as a result of it.[15]
  • Difficulties Finding a Shelter: One of the numerous problems that they confront is the unavailability of shelter and programmes that address the particular needs of homeless LGBT individuals. Consider the case below: It is estimated that 40-50 percent of homeless children on New York City streets identify as LGBTs. They stay because they were expelled from their homes or because they left an oppressive environment. They are LGBT. Homeless same-sex couples have no place to stay in the country’s shelter system since there is no family housing. When it comes to living in the shelter system, transgender persons cannot choose their partner’s sex.[16]
  • Victims of Homophobia: Bisexual and transgender people also face discrimination because of their sexual orientation as well as harassment and violent threats more frequently than heterosexuals. Homophobia has its roots in it. A dominant group’s moral, religious, and political beliefs might foster homophobia on a broader scale. People who identify as LGBT sometimes hide their sexual orientation because of the negative sensations and consequences of living in a hostile environment. Although the term “homophobia” encompasses a wide variety of negative attitudes and beliefs, it has no real meaning. Homophobia is the fear or prejudice against homosexuals, although it can also be linked to the social stigma attached to homosexuality because of cultural ideas.[17] Homophobia is a form of discrimination that targets lesbian, gay, bisexual, and transgender individuals because of negative sentiments or attitudes toward these identities, relationships, and communities. There may be various types of homophobia, including homophobic comments, physical attacks, employment discrimination and bad media representation. Realizing that they are gay can lead to feelings of guilt and self-delusion, resulting in poor self-esteem in individuals who are taught to believe that homosexuality is wrong. Suppressing homosexuality means denying a key element of a person’s identity that may impact their life and relationships significantly. In addition, it may be extremely stressful whether or not to “come out.” LGBT people who speak out openly about their sexual orientation might suffer from family, friends and the broader public prejudice and discrimination.
  • Psychological Agony: In their daily lives, LGBTQ persons face a great deal of stigma, discrimination, and harassment. The majority of LGBT people learn to live with this, especially if their families and friends accept them and engage in LGBT groups and social networks. Because of the absence of resources, many LGBT individuals, particularly younger LGBT people, have been subjected to stigma, discrimination, and harassment. Many incidents were extremely painful, such as the high incidence of homophobic bullying in schools and physical and verbal attacks. This resulted in significant declines in their mental well-being, including self-harm and suicide. Because so many LGBT kids discover their sexual orientation or sexual identity without adult guidance, they may feel particularly alone. They are particularly vulnerable as they mature, which is a crucial period for social and emotional development. In rural locations, it is sometimes harder for LGBT people to leave. Cities make it simpler for LGBT people to select what elements of their life they want and to whom they want to be, such as working, with friends, family, neighbours, health services and associations.[18]
  • Legal Injustice: Because of this, legal inequity affects the LGBT community in particular. Disproportionately, members of the LGBT community are victims of violence and discrimination, frequently at the hands of police personnel. A number of incidents of police violence against LGBT people have been documented in the United States during the last several years. According to reports, many police departments lack empathy, failing to act when LGBT people are attacked. Many vulnerable people are disproportionately targeted by the police when it comes to mistreatment, including “LGBT people of colour, teenagers, and sex workers. Transgender people are also more likely to be mistreated by police when they are detained. LGBT people of colour, transgender people, and LGBT homeless children are disproportionately targeted by police officers for non-violent drug arrests; they are more likely to face drug possession charges than the majority of white heterosexual middle-class drug users; and they are typically sentenced harsher.” People who identify as LGBT face additional harassment in a penal system that is notoriously harsh on them already. LGBT people face several restrictive laws and regulations that limit their ability to enjoy the same fundamental human rights and liberties as those who do not identify as LGBT do. As a result, LGBT people are usually unprotected from abusive and discriminatory behaviour.[19]
  • Criminalisation: Homosexuality in numerous nations is banned and punishable with fines, jail, imprisonment for life and even execution. Generally, irrespective of whether Sunni or Shia, most Muslims have very unpleasant views about LGBT people. “Conservatives think the Quran is unambiguous in terms of homosexuality and that there is no space for discussion concerning context or semantics. As per Mission Islam, almost all major Islamic school of thought considers relationships between two men unethical and prohibited, an online network on diverse Islamic faiths. Some schools of thinking consider that it deserves brutal punishment, even death by stoning. Others would penalise it with prison or national exile. Today, most Islamic administrations are using harsh measures against offenders. However, after having been found guilty of gay relations, there were cases of people being murdered. According to the International Lesbian and Gay Association, only eight mostly Muslim countries retain their penalties of execution punishment for homosexual conduct in 2011:, Iran, Mauritania, Nigeria, , Qatar, , Somalia, Saudi Arabia, Sudan and Yemen. LGBT Muslims in other nations are seldom physically punished, but are often verbally harassed and socially isolated from Orthodox Muslim organisations.[20]
  • Barriers while Obtaining Healthcare: Lesbian, gay, bisexual and transgender persons (LGBTs) have specific challenges, hurdles and problems which make access to effective healthcare difficult for them. Heterosexist views can adversely affect the quality of therapy, and many LGBT persons are frightened to have a negative experience in seeking support. Some therapists may not even be aware of their own heterosexuality, and not all organisations and therapists are supportive of the LGBT community. Staff members may have preconceived notions about LGBT people or be misinformed about LGBT services. A whopping 40% of lesbians in UK research got a sceptical or mixed reception from mental health professionals when they were open and honest about their sexuality (including instances of overt homophobia, prejudice, and perceived lack of sympathy).”[21]
  • Role Played by Society in Marginalizing the Community

LGBT individuals have acquired increasing tolerance and acceptance in India during the last decade, particularly in big cities.

Despite this, the majority of LGBT individuals in India stay hidden, fearing prejudice from their relatives, who may regard homosexuality as a sin. In rural regions, discrimination still exists, with LGBT individuals frequently facing rejection from their families and forced opposite-sex marriages.

People in the LGBT community are striving for acceptance and equal rights. It is very difficult for transgender people to find acceptance. It is not uncommon for members of the LGBT community to be treated with contempt. Discrimination against the LGBT community is rampant, thus this is a significant issue.

Individuals’ preconceived notions lead them to regard LGBT people as odd or weird. Although more Indian teenagers than ever before accept homosexuality and queer identities, acceptability inside the boundaries of families, homes, and schools remains a constant battle for LGBT people.

  • Laws in Place to Protect the Interests: Critique

On 6 September 2018, the Supreme Court of India decided that the permission of LGBT activities is no longer unlawful. In this historic event, Section 377 of the Indian Penal Code, which is the remnant of British colonial power, was abolished. The Supreme Court simply declared that it cannot be deemed a crime to allow homosexual relations under the Indian Constitution. The scope of the ruling was thereby restricted. Of course, the Court has indicated that it has a favorable influence for the LGBT community in the public debate on sexuality. The legal principles – that a homosexual person should have the right to fully protect laws without being discriminated against by the state – also open the way for future challenges to discriminatory legislation. The most important change was the free debate about sexuality and queerness in public settings without fear of government reprisal. There is still a long way to go, though. Parliament adopted the Transgender Persons (Protection of Rights) Act, 2019, which is problematic as it does not provide transgender status self-determination. Furthermore, as required by a prior judgment of the Supreme Court, the Act does not provide for reservations on public employment and education. The Act was called into question by the Supreme Court and its harsh provisions must be dealt with quickly.

A comprehensive anti-discrimination law does not exist in India. Because the government and its agents are exempted from this prohibition, it only applies to them. As a result, discrimination in employment, housing, health, and education is permitted in the private sector. There seems to be little political unanimity for its adoption, while there is a discussion about the necessity of such law. Even the courts have not recognized this problem, which has a considerable influence on the life of homosexuals.

  • Lack of Law on Same Sex Marriage

“Personal laws such as the Hindu Marriage Act of 1955[22], the Indian Christian Marriage Act of 1872[23], and the Muslim Personal Law (Shariat) Application Act of 1937[24], among others, govern marriages in India. Although same-sex and queer weddings are not legally recognized in India, such unions are not without legal support.

In Arun Kumar v. The Inspector General of Registration and Ors,[25] the Madurai Bench of the High Court of Madras applied a beneficent and purposeful construction, ruling that the term bride under the Hindu Marriage Act, 1955, covers transwomen and intersex people who identify as women.

As a result, a marriage solemnized between a male and a transwoman who practise Hinduism is recognized as a valid marriage under the Act. This is an important judgement because it expands the meaning of a word used in the Hindu Marital Act and lays the groundwork for LGBTQIA+ marriage rights to be redefined.

The Madras High Court judgment is based on the principles set by the Supreme Court of India in Shafin Jahan v. Asokan K.M. and Ors.,[26] in which the right to choose and marry a spouse has declared a constitutionally protected freedom. The Supreme Court decided that marriage intimacy resides inside an inviolable core zone of privacy and that society has no role to play in influencing our choice of partners.

As a result of these rulings, any legislative or statutory restriction on same-sex and queer weddings must be judged illegal, particularly as a violation of Articles 14, 15, and 21 of the Constitution.”

  • Suggestions and Conclusion

It is obvious that persons who identify as LGBT face discrimination and marginalisation because of their sexual orientation. As a result, fulfilling their needs might be difficult. To the degree that social indifference, elimination, and shunning operate together and contribute to violations of human rights, this exclusion and ostracism can be as basic as personal connections. Individuals in the LGBTQ community have long been involved in campaigns for racial and economic equality. Organizations in the LGBT rights movement are increasingly drawing parallels with economic and racial justice movements, noting that people have multiple identities and are members of numerous communities at the same time, encountering maltreatment and privilege simultaneously. This is a significant development. Discrimination of LGBTQ persons is unfair and in violation of the law. This LGBTQ problem is a long-standing problem in India. Their rights need to recognize. Society do not ignore the LGBTQ community per se but avoid talking or discussing on such a topic due to their mindset. They consider such an orientation as a deviant and not a normal outcome. It will prevail as a taboo for society as long as society shuns away from accepting it as normal. Despite the 2014 NALSA and landmark 2018 court ruling, the LGBTQ people in India are unequal and don’t have the same rights as those available to a “normal” person. It is high time that the Central Government should formulate new laws and amend existing laws with a special focus to Transgender Persons to provide them a status in society and protect their rights against discrimination


[1] Voices of Youth, accessible at: https://www.voicesofyouth.org/blog/evolution-perception-and-acceptance-lgbtq-community-india, last accessed on July 12, 2021.

[2] India Today, accessible at: https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-1281446-2018-07-10, last accessed on July 12, 2021.

[3] Indian Penal Code, 1860, § 377, Acts by Imperial Legislature, 1860.

[4] Constitution of India, 1950, Article 14, Acts by Indian Parliament, 1950.

[5] Naz Foundation v. Govt. of NCT of Delhi, WP(C) No.7455/2001.

[6] Suresh Kumar Koushal and others v. NAZ Foundation, Civil Appeal No. 10972 OF 2013.

[7] Justice K.S. Puttaswamy (Retd) vs Union Of India, WRIT PETITION (CIVIL) NO. 494 OF 2012.

[8] Ibid at 6.

[9] Deccan Herald, accessible at: https://www.deccanherald.com/specials/history-of-the-pride-movement-in-india-742950.html, last accessed on July 12, 2021.

[10] Seidman, Steven. 1988. “Transfiguring Sexual Identity: AIDS and the Contemporary Construction of Homosexuality.” Social Text 19/20: 187-205, retrieved on July 12, 2021.

[11] Problems Faced by LGBT in Mainstream Society, accessible at: https://www.ijims.com/uploads/cae8049d138e24ed7f5azppd_597.pdf, last accessed on July 12, 2021.

[12] Id.

[13] Ryan, C., Huebner, D., Diaz, R. M., & Sanchez, J. (2009). Family rejection as a predictor of negative health outcomes in white and Latino lesbian, gay and bisexual young adults. Pediatrics, 123(1): 346-352.)

[14] Ryan, C. (2009). Supportive families, healthy children: Helping families with lesbian, gay, bisexual and transgender children. San Francisco, CA: Marian Wright Edelman Institute, San Francisco State University.

[15] Ibid at 11.

[16] Sarah Ramusson (May 18, 2002), ―Seeking a Safe Place, New York Blade, retrieved on July 12, 2021.

[17] Ibid at 11.

[18] Ibid at 16.

[19] The Rockefeller Drug Laws and the Lesbian, Gay, Bisexual & Transgender (LGBT) Community, Queers for Economic Justice, 2004, retrieved on July 12, 2021.

[20] Stances of Faiths on LGBT Issues: Islam, accessible at: http://www.hrc.org/resources/entry/stances-of-faiths-on-lgbt-issues-islam, last accessed on July 12, 2021.

[21] King, Michael & McKeown, Eamonn. (2003). LGB Report: Mental health and social wellbeing of gay men, lesbians and bisexuals in England and Wales. Mind, accessible at: http://www.pcsproud.org.uk/SummaryfindingsofLGBreport.pdf, last accessed on July 12, 2021.

[22] Hindu Marriage Act, 1955, Acts by Parliament, 1955.

[23] Indian Marriage Christian Act, 1872, Acts by Imperial Legislature, 1872.

[24] Muslim Personal Law (Shariat) Application Act, 1938, Acts by Imperial Legislature, 1938.

[25] Arun Kumar v. The Inspector General of Registration and Ors, WP(MD)No.4125 of 2019.

[26] Shafin Jahan v. Asokan K.M. and Ors., CRIMINAL APPEAL NO. 366 OF 2018.

Author: MANISH NAHAR, NMIMS KIRIT PARIKH MEHTA SCHOOL OF LAW

Editor: Kanishka VaishSenior Editor, LexLife India.

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