Abstract

This research explores the legal, social, and international dimensions of LGBTQ+ rights from the Indian context. The history of their rights has been marked by a culmination of oppression and the imposition of colonial-era laws such as Section 377 of the Indian Penal Code, and long-standing social stigma. Despite this, precedents such as Navtej Singh Johar v. Union of India (2018) and NALSA v. Union of India (2014)have mandated constitutional rights of equality, dignity, and privacy for these communities the sphere of social acceptance remains restrictive, with extensive discrimination in the sphere of employment, education, healthcare, and domestic domains. The research also explores India’s legal frameworks through legislation such as the Transgender Persons (Protection of Rights) Act, 2019, along with a comparative lens that highlights progressive models from Canada, the Netherlands, and Thailand, to highlight its shortcomings. The research gives attention to the 2023 judgement of the Supreme Court i.e.Supriyo Chakraborty v. Union of India case, where queer identities have been recognized but the legalization of same-sex marriage, has not been done due to the doctrine of separation of powers. This research calls for legal reforms, social awareness, and inclusive policy goals to highlight the gap between legal rights and their enforcement. Besides this, it also emphasises constitutional morality and international human rights norms for an inclusive society for the LGBTQ+ community.

I.               Introduction

The development of Lesbian, Gay, Bisexual and Queer (hereinafter referred to as LGBTQ+) community rights internationally and within India represents a multi-dimensional path characterized by progress, confrontation, and resilience.

The process began during the colonial rule itself in India, as Section 377[1] of the Indian Penal Code was introduced in 1861, whereby consensual same-sex relationships were criminalised and termed “unnatural offences.” It remained for over a century and created maximum stigma and discrimination.

In discussions in the case of Navtej Singh Johar v. Union of India, Supreme Court (2018),[2]It was noted that LGBTQ+ individuals were systematically marginalised concerning matters such as healthcare and mental health. This ruling delegitimised criminalisation of homosexuality, during which the Court used constitutional tenets such as equality, dignity, and privacy to reorder LGBTQ+ rights in the country.[3]

In comparative terms, worldwide developments present a nuanced landscape. In the United States, the Supreme Court’s ruling in Obergefell v. Hodges (2015)[4]established the legality of same-sex marriage nationwide, affirming it as a fundamental right. In contrast, numerous nations in Africa and the Middle East persist in criminalising homosexuality, frequently citing cultural or religious rationales. Significantly, Botswana’s legal system decriminalised same-sex relationships in 2019, indicating a gradual advancement within the region. In India, cultural changes can also be observed because third-gender people, including hijras, were recognised in traditional times as systemically oppressed during British rule. In 2014, the Supreme Court declared transgender people as a “third gender”[5] and entitled them to the same rights in education, employment, and healthcare. However, conversion therapy and employment discrimination still exist.

While legal victories give cause for hope, societal attitudes must be addressed and economic and social inclusion ensured around the world and in India. Activism, along with a supportive judicial system and a committed legal fraternity, provides a foundation from which to continue the fight for equality.

[1]Indian Penal Code 1860, s 377

[2]Navtej Singh Johar v Union of India [2018] SC 14961 https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf accessed 5 December 2024

[3]Navtej Singh Johar v Union of India [2018] SC 14961, 253, 163–164 https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf accessed 5 December 2024

[4]Obergefell v Hodges 576 US 644 (2015) https://www.justice.gov/sites/default/files/crt/legacy/2015/06/26/obergefellhodgesopinion.pdf accessed 5 December 2024

[5]National Legal Services Authority v Union of India and others [2014] SC 41411, para 70, 81 https://main.sci.gov.in/jonew/judis/41411.pdf accessed 5 December 2024