Jurisprudence Of Gender And Sexuality

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:26:45.795353+00:00

Updated: 2026-08-26T17:10:51.826+00:00

JURISPRUDENCE OF GENDER AND SEXUALITY

Kousika, Presidency, University, Bangalore Hemanth Kumar, Presidency University, Bangalore

1. INTRODUCTION

Gender and sexuality are fundamental aspects of human identity that have profound implications for individuals, societies, and cultures worldwide. Exploring their meanings, definitions, and classifications provides crucial insights into the complexities and nuances of these concepts, as well as their recognition and treatment across different contexts and jurisdictions. Gender and sexuality constitute fundamental aspects of human identity, influencing individual experiences, societal norms, and legal frameworks. Understanding these concepts requires a nuanced exploration encompassing definitions, historical contexts, interdisciplinary perspectives, international laws, and their application within specific national contexts.

1.1 Meaning of Gender and Sexuality

Gender encompasses the social and cultural behavioral roles, norms, and expectations associated with male and female in a given society. It is a complex structure shaped by cultural beliefs, historical contexts, and individual experiences. Unlike biological sex, which is determined by physical attributes, gender is fluid and varies across cultures and time periods. Sexuality refers to an individual's sexual orientation, desires, and preferences. It encompasses a broad scope of experiences, including romantic attraction, sexual behaviors, and emotional connections. Sexual orientation can be categorized as heterosexual, homosexual, bisexual, or asexual, among others, and is not strictly tied to a person’s gender identity. Both the gender and sexuality are deeply intertwined with identity and self-expression.

They play crucial roles in shaping individuals' experiences, relationships, and interactions within society. Understanding and respecting the diversity of gender identities and sexual orientations is essential for fostering inclusive communities and combating discrimination.

In summary, gender and sexuality are multifaceted aspects of human identity that encompass social, cultural, and personal dimensions. Recognizing the complexity and diversity within these constructs is vital for promoting equality, acceptance, and understanding in our increasingly interconnected world.

1.2 Definitions by Various Jurists and Organizations

Jurists, scholars, and organizations offer diverse perspectives and definitions of gender and sexuality, reflecting the complex and multifaceted nature of these concepts. A renowned philosopher and gender theorist, defines gender as a performative act, suggesting

that it is constructed through repeated behaviors and actions within societal norms rather than being inherent or fixed (Butler, 1990). The French existentialist philosopher stated that, "One is not born, but rather becomes, a woman." This assertion challenges the notion of gender as biologically determined, emphasizing its social and cultural construction (Beauvoir, 1952). A Psychologist introduced the concept of gender identity, defining it as an individual's internal

sense of being male, female, or something else, which may or may not align with their biological sex (Money, 1994). A Gender theorist offers a nuanced perspective on gender, describing it as a "big, hairy,

audacious performance" that individuals engage in to express their identity and navigate social expectations (Bornstein, 1994 ). A Biologist proposes a multifactorial approach to understanding gender, arguing that

biological, social, and cultural factors interact to shape individuals' experiences and expressions of gender (Sterling A. F., 2000). On separation of personal and social identities, the convergence of gender role and identity, intended as the social identity that a person acquires, with one’s personal identity is also the reason for reproduction (Sen, 2006). Gender theories focus on one-to-one relationships between people or between the individual and the society as a whole, since gender is something learned and acquired after birth (Connell,

1987). The WHO defines gender as "the roles, behaviors, activities, and attributes that a given society considers appropriate for men and women. " This definition underscores the socially constructed nature of gender roles and expectations. According to the APA, sexuality encompasses "a central aspect of being human throughout life, encompassing sex, gender identities and roles, sexual orientation, eroticism, pleasure, intimacy, and reproduction. " This comprehensive definition acknowledges the multidimensional nature of sexuality (Sexual Orientation and Gender Diversity , n. d. ). The UN recognizes gender as "the socially constructed roles, behaviors, activities, and attributes that a particular society considers appropriate for men and women. " This definition emphasizes the cultural variability and fluidity of gender norms.

The HRC defines sexuality as "an inherent and immutable characteristic that forms an integral part of an individual's identity. " This definition emphasizes the intrinsic nature of sexuality and highlights its importance in discussions of human rights and equality (Sexual Orientation and Gender Identity, n. d. ). An LGBTQ advocacy organization, describes gender identity as "one's innermost concept of self as male, female, a blend of both, or neither how individuals perceive themselves and what they call themselves. " This definition acknowledges the diversity of gender identities and affirms individuals' right to self-identify (Transgender People, n. d. ).

1.3 Difference between Gender and Sexuality

Gender and sexuality are two distinct but interconnected aspects of human identity, each influencing individual experiences, societal norms, and personal relationships. Gender refers to the socially formed roles, behaviors, and attributes that a particular society considers appropriate for men, women and individuals beyond the two. It encompasses a wide range of expectations, including social roles, cultural norms, and personal expressions of identity. Gender is fluid and can vary across cultures and time periods. It is often categorized as masculine, feminine, or non-binary, but individuals may identify with a variety of gender expressions that go beyond these traditional categories.

Sexuality pertains to an individual's sexual orientation, desires, and preferences. Sexuality encompasses romantic attraction, sexual behaviors, and emotional connections. Sexual identity can be categorized as heterosexual, homosexual, bisexual, asexual, or other identities. Unlike gender, which is primarily concerned with social roles and identities, sexuality is more directly related to physical and emotional attractions. While gender and sexuality are distinct concepts, they are deeply interconnected and mutually influential. Society often imposes expectations and norms regarding gender roles and expressions that can shape individuals' experiences of sexuality. For example, societal norms may dictate who individuals are expected to be attracted to base on their gender identity, reinforcing heterosexual or cisgender norms.

Gender, as defined by the gender theorist, is described as a "big, hairy, audacious performance" that individuals engage in to express their identity within societal norms (Bornstein, 1994 ). A biologist argues for a multidimensional understanding of gender, emphasizing the interaction

between biological, social, and cultural factors (Sterling A. F., 2000). Conversely, sexuality refers to an individual's sexual orientation, desires, and preferences. According to the World Health Organization (WHO), sexuality encompasses a broad range of experiences, including sexual orientation, gender identities, eroticism, pleasure, intimacy, and reproduction (Gender , n.d.). A Psychologist in his seminal work on gender identity disorder, emphasizes the internal sense

of being male, female, or something else as central to one's gender identity (Money, 1994). The French existentialist philosopher in his work “The Second Sex” challenges traditional notions of gender as biologically determined, asserting that one becomes a woman through socialization rather than biology (Beauvoir, 1952). Understanding the distinction between gender and sexuality is crucial for fostering inclusivity and challenging societal norms. By recognizing the fluidity and complexity of gender identities and sexual orientations, we can create more accepting and affirming communities for all individuals.

1.4 Classification of Gender and Sexuality and Their Recognition in Various Countries

The classifications of gender and sexuality encompass a range of perspectives and theories, including biological, social, and cultural dimensions. Under the Binary Model, it categorizes gender and sexuality into two distinct and mutually exclusive categories, typically male and female, and heterosexual and homosexual orientations (Sterling F. , 1993). Under the Spectrum Model, unlike the binary model, the spectrum model acknowledges the diversity and fluidity of gender and sexuality, recognizing a continuum rather than fixed categories. This model allows for the inclusion of non-binary genders and various sexual orientations (Kessler, 1985).

In the Social Constructionist Perspective, the philosopher and gender theorist gave that, this perspective emphasizes the role of social and cultural factors in shaping gender and sexuality, highlighting how norms, values, and institutions influence individuals' identities and experiences (Butler, 1990). Under Queer Theory it challenges traditional classifications of gender and sexuality, advocating for the deconstruction of binaries and the celebration of diverse identities and desires (Gayle, 1975). These classifications recognize the diversity and complexity of human sexuality, acknowledging that sexual orientation is not strictly binary and can encompass a broad experiences and identities. Recognition of gender and sexuality varies widely across different countries, influenced by cultural, religious, and legal frame works.

Some countries recognize and affirm diverse gender identities and sexual orientations, providing legal protections and rights for LGBTQ+ individuals. Some nations embrace a binary understanding of gender and restrict sexuality to heteronormative standards, others recognize and legally protect a broader spectrum of identities. In foreign countries like the US and Canada, there has been increasing acknowledgment of nonbinary and transgender identities. Legal reforms, such as Bill C-16 in Canada, have

extended protections against discrimination on the basis of gender identity and expression. Similarly, in the case (Obergefell v. Hodges, 2015) of, United States has seen advancements in LGBTQ+ rights, including the legalization of same-sex marriage nationwide in 2015. In contrast, many countries around the world still lag behind in recognizing and protecting the rights of LGBTQ+ individuals. In some jurisdictions, same-sex relationships are criminalized, and individuals face persecution, brutality and cruelty based on their gender identity or sexual identity. Discriminatory laws and societal attitudes perpetuate stigma, marginalization, and violence against LGBTQ+ communities, hindering their ability to live authentically and access essential services and opportunities.

Countries like Saudi Arabia and Iran maintain strict binary classifications of gender and criminalize same-sex relationships. Homosexuality is punishable by law in these countries, reflecting deeply ingrained cultural and religious norms that reject non-heteronormative identities (Saudi Arabia Events of 2020, 2020). European countries like the Netherlands and Sweden have adopted progressive approaches to gender recognition. In the Netherlands, individuals can change their gender marker on official documents through a self-identification process, without requiring medical intervention or judicial approval (A, 2018). Sweden similarly allows for legal gender recognition based on self determination, aiming to promote equality and inclusion for transgender individuals.

Overall, the recognition of gender and sexuality varies significantly worldwide, with some countries embracing diversity and actively protecting LGBTQ+ rights, while others maintain conservative stances that marginalize non-conforming identities. Continued advocacy and legislative efforts are crucial in advancing equality and promoting the recognition of diverse gender and sexual identities globally.

2. EVOLUTION OF GENDER AND SEXUALITY THROUGH HISTORY

The evolution of gender and sexuality is a kind of new area of historical study. Study relating gender and sexuality began long before openly gay character began appearing. Through each phase and stages of the development of the society the gender and sexuality were treated in different ways. During the ancient Roman times they had different complicated view of

sexuality and gender identity. The Roman view on homosexual activity varied by place and context through the empire. The history of sexuality mentions that in the times when societies followed the Victorian mentality, people’s restrained, mute and hypocritical sexuality was emblazoned. Foucault mainly emphasizes that the perception of gender is shaped through learned truths and that sexuality is actually problematized through discourse rather than being produced and suppressed historically, socially and culturally (Foucault, 1978). The concept of gender “gender” was first used in the year 1985. The term is there defined as different from sex, meaning that the emotion and behaviours of men and women are open to social transformation (Oakley, 1984).

At the beginning they only had the sexuality where the people were classified as men and women, but later when the other categories of people such as Gay, Lesbian, Transgender, Bisexual the concept of Gender came into picture. Sexuality is basically the identity which is given during birth and the Gender is basically what we choose to practice. Earlier people were practicing the gender according to the sexuality but later when other category of people started emerging people started to choose the gender which they what to practice irrespective of their sexuality. The recognition of the third gender is not only present in the current times but the recognition of third gender in the society, their rights, their marriages can be traced back to the historical scripts.

The recognition of third gender can be seen in the Hindu Scriptures (Valmiki’s Ramayana), which states that when Lord Hanuman returned from Lanka after visiting Janaki (Sita), he saw rakshasa women kissing and embracing women. The story of Mahabharata has the story of Shikandi, she was born as a girl and raised as a Man. Chapter nine of Kamasutra (By Vatsyayana) discuss about homosexuality and activities among transgender persons. Kamasutra recognizes eight types of marriages, the ‘Gandharva vivah’ acknowledged gay marriage or lesbian marriage. The Rig Veda refers the story of Varun and Mitra, invariably cited as Mitra – Varun. They are a same – sex couple believed to be the representative of the two parts of the moon. The recognition of third gender can be seen in Muslim literature as well, in story of Sarmad Kashani, he was an American merchant who later become a Sufi Saint.

While travelling to

India for trade, he fell in love with a Hindu boy named Chand. He abandoned his business and stated living in Thatta with Abhai Chand as his student. But later during the 18th, 19th and the beginning of 20th century discrimination was seen between Male, Female and the third gender. Now, when it comes to the discrimination part, it can be first seen between Male and Female. During the ancient times Men and Women were discriminated based on the work and role which they play in the society. The roles played by Men and Women during ancient times were different. In ancient times women’s duty was to look after the family & household. Her responsibility includes taking care of Childrens and raising up them. A woman in ancient times must not go outside for work, education or any other purposes. The woman in ancient were referred by their husband’s name for their identity.

They were not allowed to speak in the society as well as against their husband or family. Women who were rapped before marriage were seen as damaged goods in the eyes of the society. But Men on the other hand were given high importance in the society and they were the one who goes for work in the family and they were given recognition in the society. So, in ancient times the discrimination between Men and Women was mainly on the basis of work, education, recognition, speech. During this period the third gender were also discriminated by the society or the people in various ways such as: Not treating them equally, not giving them equal importance in education, not recognizing them in public, treating them as untouchability etc. , were the practices done by the society against them.

Then at last comes the contemporary era or the current period, at present the state is taking steps to recognize the right of the weaker section of the society by enacting laws, by various judgments given by the superior courts of the state. At present they are treated same as other people in the eyes of law. Nowadays, they are given equal education rights for men, women and third gender, they are given equal rights in the selection of public office, they are given 1/3rd seats in municipal and panchayats, they are given equal rights in working places. So, by this we can see the evolution of Gender and Sexuality from the ancient to Vedic to 18th century and to the contemporary era. Even though their right is protected under various laws and judgment but at practical even still in some parts of the country still the discrimination takes place between the gender.

Even still they are discriminated and treated differently in the

public places but the reason for happening so is the mindset of the people and not thinking in the practical sense. So, this kind of approach and behaviour of the people in the society should be changed to achieve the purpose of law to their fullest.

3. GENDER AND SEXUALITY IN VARIOUS ASPECTS

3.1 With respect to psychology

Psychology delves into the intricate nuances of gender and sexuality, offering profound insights into their development, expression, and experiences. At the forefront of psychological discourse stands Gender Schema Theory, a seminal concept proposed by in 1981. This theory deals with the individual’s mental frameworks, called as schemas, which guide their comprehension of gender and subsequently shape their behaviour. Through social learning processes, these schemas categorize information based on gender, leading to the internalization of societal gender roles and stereotypes. Gender Schema Theory provides a robust framework for understanding how individuals navigate their gender identity and interact within societal norms and expectations (S, 1981).

In addition to theoretical frameworks, developmental psychology acts a part in elucidating trajectory of the gender identity across lifespan. From infancy to adulthood, individuals undergo a process of gender socialization, wherein they internalize societal norms and expectations surrounding gender. This developmental journey is influenced by various factors, including parental influences, peer interactions, media exposure, and cultural norms. Many research has shown that children's toy preferences and play behaviours are heavily influenced by societal expectations of gender roles. Boys are mostly encouraged to involve in tough and wild works, On the other hand girls are socialized towards nurturing activities. These early socialization experiences shape the establishment of gender identity & contribute to maintaining the gender norms within society (Martin, 2010).

Moreover, social psychology focuses on the intricate interplay among gender and social cognition. Scholars in this field investigate how individuals perceive, interpret, and respond to gender-based information. Through experimental studies, psychologists have uncovered implicit biases and stereotypes related to gender that influence judgments and behaviours in various contexts. Some of the studies have demonstrated the prevalence of gender bias in hiring decisions, with individuals often favouring candidates who conform to traditional gender roles.

These biases perpetuate inequalities in the workplace and beyond, underscoring the pervasive influence of gender on social cognition (Fiske, 2010). Understanding the psychological mechanisms underlying gender and sexuality is essential for promoting gender equality, challenging stereotypes, and fostering inclusive environments. Psychological research not only elucidates the complexities of gender and sexuality but also informs interventions and policies aimed at promoting social justice. By examining the cognitive, emotional, and social factors that shape gender identity and sexuality, psychologists contribute to the advancement of knowledge and the creation of more equitable societies. In conclusion, psychology proposes a multifaceted opinion through which to study the intricacies of gender and sexuality.

From theoretical frameworks like Gender Schema Theory to empirical research in developmental and social psychology, psychologists continue to unravel the complexities of human behaviour and identity. By exploring the psychological foundations of gender and sexuality, psychologists perform a crucial part in promoting understanding, empathy, and social change in diverse contexts.

3.2 With respect to society

Gender and sexuality are deeply embedded within the fabric of society, shaping norms, institutions, and power dynamics in profound ways. Societies establish and enforce norms and expectations regarding gender roles, relationships, and expressions, which can vary across cultures and historical contexts. These norms are transmitted through socialization processes such as family, education, religion, and media, influencing individuals' behaviours, identities, and opportunities. According to sociological theory, gender is not simply a fixed attribute of individuals but is actively performed and reinforced through everyday interactions. Individuals engage in “gender display” by conforming to social expectations of maleness and femaleness, thus continuing and reproducing gender inequalities.

This concept highlights the socially created nature of gender and highlights the role of societal interaction in determining gender identity and behaviour (West & Zimmerman, 1987). Moreover, sociologists analyse the interrelation of gender with supplementary social categories such as race, class, and sexuality. Intersectionality theory, developed in late 1980s, which

highlights how multiple dimensions of social identity and interact to shape individuals' experiences of privilege and oppression. For instance, a black women may face inimitable forms of discrimination that result from the juncture of race and gender, experiencing both racism and sexism simultaneously. Intersectionality theory underscores the importance of considering the complex interplay of social categories in understanding inequality and marginalization (Crenshaw, 1991). Furthermore, sociological research explores the role of social institutions in regulating and perpetuating gender and sexuality norms. Family, education system, workplace, and media play crucial roles in socializing individuals into gendered roles and expectations.

These institutions often reflect and reinforce dominant gender ideologies, contributing to the maintenance of gender inequalities and the marginalization of non-normative gender identities and sexual orientations. In many societies, gender roles are deeply ingrained and hierarchically structured, with men and women assigned different social roles, rights, and responsibilities. Patriarchal systems prioritize male dominance and control, relegating women to subordinate positions and limiting their access to resources and opportunities. These gender inequalities are reinforced and perpetuated through social institutions such as the legal system, economy, and political sphere, which often reflect and uphold patriarchal norms and values. Furthermore, societies regulate and monitor expressions of sexuality, imposing norms and taboos regarding sexual behaviour, desire, and identity.

The presumption that heterosexuality is the normative and preferred sexual identity, pervades many societies, marginalizing nonheteronormative identities and relationships. LGBTQ+ individuals often face discrimination, stigmatization, and violence due to societal attitudes and legal restrictions on same-sex relationships and gender nonconformity. Understanding the complex interplay of gender and sexuality with society is essential for addressing inequality, promoting social justice, and fostering inclusive communities. By examining how societal norms, institutions, and power dynamics shape gender and sexuality, sociologists contribute to the advancement of knowledge and the creation of more equitable societies.

3.3 With respect to media

Media plays an important role in shaping perceptions and representations of gender and sexuality. Mass media, including television, film, advertising, and the internet, serve as powerful platforms for disseminating cultural norms, values, and ideologies related to gender and sexuality. Media representations often reflect and reinforce dominant gender stereotypes and heteronormative ideals, perpetuating narrow and idealized images of masculinity and femininity. One seminal work in the field of media studies is "Gender and the Media". It explores how media representations construct and perpetuate gendered identities and norms. She examines various media genres, including advertising, reality television, and popular culture, to uncover the ways in which gender is constructed and reinforced through visual imagery, narratives, and discourses.

Her analysis highlights the role of media in shaping cultural understandings of gender and sexuality, as well as the potential for media to challenge and subvert dominant narratives (Gill, 2007). For example, advertisements frequently depict women as passive objects of male desire, emphasizing physical appearance and sexual attractiveness, while men are portrayed as dominant and sexually aggressive. These representations contribute to the objectification and sexualisation of women, reinforcing traditional gender roles and power dynamics. Moreover, media depictions of romantic relationships often adhere to heteronormative norms, portraying heterosexual relationships as the normative and idealized form of intimacy.

LGBTQ+ individuals and relationships are often marginalized or sensationalized in media, with limited and stereotypical portrayals that fail to capture the diversity and complexity of queer experiences. However, media can also be a site of resistance and subversion, providing platforms for marginalized voices and challenging dominant narratives of gender and sexuality. Alternative media outlets, social media platforms, and independent creators offer spaces for LGBTQ+ individuals, feminists, and other marginalized groups to share their stories, challenge stereotypes, and advocate for social change. For example, social media campaigns such as #MeToo and #BlackLivesMatter have sparked widespread discussions about gender, race, and social justice, highlighting the potential of media to amplify marginalized voices and catalyse social movements.

Moreover, feminist media scholars, have critically examined the connection of gender, race, and class in media representations. The work interrogates the ways in which mainstream media perpetuates systems of oppression and marginalization, while also advocating for alternative media practices that Center the experiences and perspectives of marginalized communities. The work underscores importance of media literacy and critical media analysis in deconstructing harmful representations and promoting more inclusive and diverse media content (Hooks, 1984). In conclusion, media plays a crucial role in determining cultural understandings of gender and sexuality. While media representations often reflect and reinforce dominant norms and stereotypes, they also have the potential to challenge and subvert oppressive ideologies.

By critically examining media texts and practices, scholars and activists can work towards creating media environments that are more inclusive, equitable, and empowering for all individuals.

3.4 With respect to literature

Literature has long been a rich source for exploring and interrogating notions of gender and sexuality. Through narrative, characters, and themes, literature offers insights into the complexities of human identity and relationships. Authors often use their works to challenge societal norms and conventions, offering alternative perspectives on gender roles, sexual desire, and the construction of identity. An influential work explores the performative nature of gender, arguing that gender is not an inherent or stable attribute rather a fluid and contingent performance. His theory of gender performativity has had a profound impact on literary studies, encouraging scholars to analyse how gender is constructed and represented in literary texts.

His work invites readers to question taken-for-granted assumptions about gender and to consider the path in which gender norms are enacted and subverted in literature (Butler, 1990). Literature often offers nuanced portrayals of gender and sexuality, providing readers with opportunities to engage with diverse perspectives and experiences. In a novel “Orlando” challenges traditional notions of gender identity and fluidity. It undergoes a fantastical revolution from male to female over the course of several centuries, highlighting the fluidity and malleability of gender. Through Orlando’s journey, he explores the limitations of binary

conceptions of gender and the possibilities for transcending traditional gender roles (Woolf, 1928). Moreover, literature frequently grapples with the complexities of sexual desire and orientation. LGBTQ+ authors have used literature as a means of expressing their identities and experiences, providing readers with representations that challenge heteronormative assumptions. In a novel, the protagonist wrestles with his sexual identity and desires in the context of 1950s Paris. Through the character of David, Baldwin explores themes of shame, desire, and societal expectations, offering a poignant reflection on the challenges faced by LGBTQ+ individuals in a repressive society (Baldwin, 1956). Furthermore, feminist literature has played a crucial role in highlighting the social and political dimensions of gender inequality.

The author, foregrounded the experiences of women within male-controlled societies and interrogate the manner in which gender shapes power dynamics and social relations. Through the characters of Olanna and Kainene, Adichie explores themes of agency, resilience, and resistance, offering readers a compelling portrait of women navigating the tumultuous landscape of postcolonial Nigeria (Adichie, 2006). In conclusion, literature provides a rich and multifaceted lens through which to explore and critique notions of gender and sexuality. Authors use their works to challenge dominant narratives, subvert traditional gender roles, and amplify marginalized voices. By engaging with literature, readers can gain insights into the complexities of human identity and relationships, fostering empathy, understanding, and social change.

4. INTERNATIONAL LAW REGARDING GENDER AND SEXUALITY AND ITS

DISCRIMINATION

The concept of Gender and Sexuality can be seen in International Laws, rules, and Conventions. Gender and Sexual rights are recognized and protected Internationally i.e. all over the world. Human Right is the right which is intrinsic to all Human beings. We are all entitled to all rights without any kind of discrimination based on gender, caste, sex, race, color, origin, language, status, religion, sexual orientation, or gender identity. The Universal Declaration of Human Rights (UDHR) is the foundation of International Human Rights Law. It came into force in the year 1948 which is a legally binding Treaty. The Treaty recognizes the basic human rights and fundamental freedoms internationally. On the achievement of UDHR,

the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into force in the year 1976. Together with covenant it comprises of International Bill of Human Rights.

4.1 What is International Human Rights Law

It lays down the obligations that the states should follow. Through ratification the states agree that they would take required steps to implement the international provisions in the State laws. When certain law, procedure and provisions fails to address a human right in regional level then international law helps to address such issue and protect the human rights. Through various aspects gender equality is promoted had discrimination is prohibited such as:

4.1.1 United Nation Charter

Article 1 of the Charter focuses on solving international problems of economic, social, cultural or humanitarian character and promote and encourage human rights and fundamental freedom for all without distinction as to race, caste, gender, sex, language and religion. Article 8 focus on the equality in the preliminary and subordinate organs of the UN, where UN shall not impose any restrictions on the eligibility criteria men and women separately, by this they promote equal opportunity for work between men and women. Article 55 focuses on various aspect, where it says that the countries shall promote high standard of living, employment, economic and social development of people, human rights, fundamental free to all the people without any kind of discrimination on the basis of gender, sex, race, caste and religion.

4.1.2 Universal Declaration of Human Rights (UDHR)

The Preamble of the Declaration itself focuses on the dignity, equality and inalienable rights of all the member, this was the main moto of UDHR. The UDHR discuss about rights regarding gender and sexuality in Articles 2, 7, 16 and 25. Article 2 of the UDHR says that the declaration applies to all the human being without any kind of discrimination as to gender, sex, caste, religion, race, by this UDHR ensures the rights in the declaration to the people in world without any discrimination.

Article 7 of the Declaration talks about equality before law and equal protection of law and says that everyone are entitled to equal protection against any form of discrimination in violation of the declaration, by this the UDHR ensures that all the people are protected against any form of discrimination and ensure the applicability of the declaration equally. Article 16 of the UDHR provides right to the people to decide the person whom they want to marry (Right to Marriage) without any discrimination i. e. this right to choose the person is available both to Men and Women and further it applies even in case of dissolution of marriage. Article 25 of the Declaration provides for the right to basic standard of living to everyone which includes food, clothing, place of living etc.

and it also further provides right for the maternity and infant they are entitled to special care and assistance, by this declaration ensures the basis standard of living for all the people and ensures care and assistance for the children or new born.

4.1.3 International covenant on economic, social and cultural rights (ICESCR)

Under this covenant the economic, social and cultural rights regarding gender and sexuality is discussed under Articles 2, 3, and 10. Article 2 of the ICESCR put a duty to the state parties to provide the right present in the covenant which is to be exercised upon everyone without any discrimination on the basis of gender, sex, caste, race, colour, language, religion, politics etc. , by this the covenant ensures that the rights under this are applied to all the people by their state equally and uniformly. Article 3 of the covenant puts a duty on the state to provide equal rights for men and women to enjoy social, economic, and cultural rights, by this covenant forces the state to treat men and women equally while providing these rights.

Article 10 of the ICESCR puts the duty to the state parties to protect and assist the family, education, and healthcare of children, free consent for marriage between the parties, social protection for mother before childbirth, maternity benefits to pregnant women who are working, special measures for children and women. By these provisions, the covenant insists the state parties focus on the weaker section of the society to protect their social, economic, and cultural rights.

4.1.4 International covenant on civil and political rights (ICCPR)

Under this covenant the civil and political rights regarding gender and sexuality is mentioned under article 2, 3, 14, 16, 24, and 26. Article 2 of ICCPR states that, the state parties under this covenant to ensure everyone within its territory the right under this covenant without any kind of discrimination based on gender, caste, sex, language, race, etc. Article 3 of the ICCPR states that all the parties to this covenant should provide equal rights of men and women in respect to civil and political rights, by this the covenant ensures that the rights are applied equally without any discrimination. Article 14 of the covenant states that, everyone shall be treated equal in the eyes of courts and tribunal, everyone should be given an opportunity of being heard, by this the covenant sees that the legal rights of the people are safeguarded.

Article 16 of the ICCPR states that everyone has the right to recognition as a person before the law. Article 24 of the ICCPR states that all children have the right to protection without any discrimination as to gender, caste, sex, race, color, language, religion, origin, or place of birth. By this protection is given to children without imposing any discrimination and to promote equality even among the children. Article 26 states that, everyone is equal before the law and is entitled to equal protection without any discrimination. By this, the law prohibits all kinds of discrimination and guarantees equal and effective protection against discrimination.

4.2 Drawbacks of International Human Rights Law

In previous chapter, we have seen the rights which are guaranteed by the International Human rights law, as far as we have seen it guarantees almost all the necessary rights which are required for an individual and also, we have seen that the rights guaranteed by the international conventions and declaration apply to everyone globally. Even though there are many rights guaranteed under the International Human Rights Law, there are some drawbacks to it such as:

Lack of universality and cultural sensitivity – The International Human rights law just talks about the rights, it doesn’t give importance to culture of the society or community, and as every country have their own rules and practices, it lacks universality because it can’t be enforced by everyone. • Difficulty in enforcement – The International Human rights law becomes difficult to enforce because each country has their own rules, regulations, practices and culture. Another reason why it becomes difficult is because of various countries involved, it becomes difficult to make all the countries to follow it that too mainly the powerful countries. • Limited impact on powerful state – As it is an international law, it becomes very difficult to make the powerful countries to follow it, even if they follow it then again there comes a question that how long they will follow.

Usually, the powerful countries may follow unless it is beneficial to them. So, the law can’t create a longterm impact in the powerful state. • Balancing national sovereignty and global rights standards – When an international law puts obligation on the state to follow it or implement it in domestic law, it becomes difficult for the state to balance national sovereignty and global rights standards, when such conflict occurs states give up in following the global standards. • Lack of focus – As far as we have seen, the international law provisions deal with only the discrimination between men and women but it fails to deal with third gender category.

4.3 How to overcome it?

So, we have seen what are the drawbacks of International Human Rights Law, when we know that the next thing comes into our mind is how to overcome it? So, this can be done by various ways such as; by creating uniform code for all states, by making provisions which will be comfortable for all the states to apply, by making the International human rights law as a strict law, by imposing penalties on the non – complying states, by creating flexible implementation, by dealing with the aspects which is difficult to deal in domestic law. So, by applying these measures the drawbacks in the international human rights law can be overcome.

5. GENDER AND SEXUALITY DISCRIMINATION IN INDIA

As we have seen in the history and evolution part gender and sexuality discrimination is not a new issue happening in India, it is been done from so long period. But the laws regarding it in India is developing in recent times after the independence, and still now it is in developing stages. There are so many issues happening in India day by day, but the laws to protect or prevent such issue is limited. So, under this topic we would discuss what are all the major issues happening in India and the laws in India to address the discrimination and we’ll also discuss how out Indian law is ineffective or the drawbacks and the ways to improve it.

5.1 Major Issues in India Regarding Gender and Sexuality Discrimination

Gender and sexuality discrimination are pervasive issues in India, deeply entrenched in social, cultural, and institutional structures. Despite legal protections and efforts to promote gender equality, marginalized groups continue to face systemic barriers that restrict their rights and opportunities. Several key issues contribute to gender and sexuality discrimination in India, including patriarchal norms, gender-based violence, legal gaps, cultural stigmatization, lack of comprehensive sex education, and inadequate healthcare access. One of the primary issues exacerbating gender and sexuality discrimination in India is the persistence of patriarchal norms and practices. These norms prioritize men as heads of households and decision-makers, while relegating women to secondary roles.

Traditional gender roles dictate strict expectations for men and women, relegating women to subordinate positions and limiting their autonomy and agency. Patriarchal values prioritize male authority and control, leading to gender disparities in education, employment, and decision-making. These entrenched norms reinforce gender stereotypes and contribute to the marginalization of women and LGBTQ+ individuals (R, 2019). Gender-based violence remains a significant challenge in India, with women and gender minorities facing various forms of violence, including domestic abuse, sexual harassment, and honor killings (Crime in India 2021, 2021). This limits women's access to education, employment, and property rights.

The skewed sex ratio, with fewer girls than boys, reflects a preference for sons, fuelled by factors like inheritance laws and the practice of dowry (Gender Inequality in Indian society, 2023). This societal preference translates into harsh realities for women. They face unequal access to education and healthcare further disadvantages them.

Girls are often pulled out of school early for household chores or married young, limiting their educational attainment and perpetuating cycles of poverty (Gender Equality, 2023). Despite legal provisions such as the Protection of Women from Domestic Violence Act (2005), genderbased violence remains widespread and underreported. Survivors often face social stigma, victimblaming, and barriers to accessing support services. Addressing gender-based violence requires comprehensive strategies that prioritize survivor support, legal reform, and community education. Legal gaps and loopholes also contribute to gender and sexuality discrimination in India. While legislation such as the Criminal Law (Amendment) Act (2013) has strengthened protections against sexual violence, legal enforcement remains inadequate.

Moreover, laws governing gender recognition and LGBTQ+ rights are limited, leaving gender minorities vulnerable to discrimination and harassment. The absence of comprehensive anti-discrimination laws exacerbates inequalities faced by marginalized groups, hindering their access to justice and redress (India Events of 2020, 2021). Cultural stigmatization further marginalizes individuals based on their gender identity and sexual orientation. LGBTQ+ individuals face pervasive social stigma and discrimination, including family and community, denial of employment opportunities, and violence. Traditional attitudes towards gender and sexuality perpetuate harmful stereotypes and prejudice, creating barriers to inclusion and acceptance. Efforts to challenge cultural stigmatization require community engagement, public awareness campaigns, and advocacy for LGBTQ+ rights.

The LGBTQ+ community faces a unique set of challenges. The absence of comprehensive anti-discrimination laws based on sexual orientation and gender identity (SOGI) leaves them vulnerable. While the 2018 decriminalization of same-sex relationships was a positive step, further legal reforms are needed. Stigma and social exclusion are major hurdles, leading to isolation, mental health issues, and violence. Furthermore, inadequate access to healthcare services exacerbates health disparities among marginalized populations in India. LGBTQ+ individuals often face discrimination and stigma when seeking healthcare, leading to avoidable health risks and disparities. Transgender individuals, in particular, may encounter barriers to accessing gender-affirming healthcare, including hormone therapy and gender-affirming surgeries.

Addressing healthcare disparities requires policy reforms, provider training, and community-based initiatives to ensure inclusive

and accessible healthcare for all (P, 2020). These discriminatory practices have far-reaching consequences. Gender inequality hinders women's participation in the workforce, leading to lower GDP and economic growth (Women, Business and law 2024, 2024). Discrimination against the LGBTQIA+ community also restricts their economic opportunities. Socially, it breeds unrest, hinders development efforts, and perpetuates poverty. More importantly, it creates an atmosphere of fear and insecurity for marginalized communities. The health impact is significant, with gender-based violence and lack of access to healthcare having detrimental consequences for both women and the LGBTQIA+ community. Moving forward requires a multi-pronged approach. One crucial step is the enactment of strong anti-discrimination laws based on both gender and SOGI.

Educational campaigns promoting gender equality and inclusivity, along with efforts to sensitize communities, are essential for creating a more accepting society. Programs that empower women and the LGBTQIA+ community economically and socially can help them overcome discrimination and claim their rightful place in society. Finally, effective enforcement of existing laws against gender-based violence and discrimination is vital to deterring perpetrators and ensuring justice. India has made strides towards gender equality and LGBTQIA+ rights; however, significant challenges remain. By acknowledging the gravity of these issues and implementing comprehensive solutions, India can create a more just and equitable society where everyone has the opportunity to thrive.

In conclusion, gender and sexuality discrimination persist as significant challenges in India, rooted in patriarchal norms, gender-based violence, legal gaps, cultural stigmatization, lack of comprehensive sex education, and inadequate healthcare access. Addressing these issues requires concerted efforts from government, civil society, and communities to promote gender equality, protect human rights, and challenge discriminatory practices. By addressing systemic inequalities and fostering inclusive environments, India can advance towards a more just and equitable society for all its citizens.

5.2 Indian Laws regarding discrimination

The Indian laws regarding discrimination based on gender and sexuality are given under

various laws such as; the Constitution, Criminal law, Personal law, and Special laws.

5.2.1 Constitution

Constitution is the Supreme Law of the law. The Constitution in its preamble guarantees equality, dignity for all irrespective of their gender, caste, sex, etc. While drafting Constitution one thing which was focused is the condition of women in that phase. Constitution was drafted in such a manner to provide equality among all. Constitution focuses mainly on the following rights: Right to be treated equally, to make own decision, to enjoy equal access to education, right to conduct own business, right to work, to participate in effective administration of the country, right to speech, right to move and settle anywhere in India, right to form association. The rights are expressly stated under various Articles under the Constitution: Article 14 states that equal status or equality before the law. Every person has equality before the before.

Article 15, prohibits discrimination on the grounds of gender, caste, sex, religion, race, and place of birth. The article prohibits discrimination in all forms. Article 16 states that everyone shall be given equal opportunity for all citizens in matters of employment and opportunity. No citizen shall be discriminated against based on gender, sex, caste, religion, place of birth, race, or residence in any employment or office under the state. Article 17, eliminates the practice of untouchability in all forms. Article 39, imposes a duty upon the state to make sure that women and men have equal rights of adequate living and that there is equal pay for equal work. Article 42 states that, the state shall ensure the humane condition of work and provide maternity relief to pregnant women during their course of work.

5.2.2 Transgender Person (Protection of Rights) Act, 2019

Every person has the right to be treated equally and in a dignified manner. However, due to socio-economic vulnerability, certain groups of people are treated differently, transgender are

one such group who is treated differently by society, and their rights are not recognized in many places in the case of education, work, health care, etc. Under section 6 of the Act, the transgender can obtain a “Certificate of Identity” from the district Magistrate to be identified as the third gender. This certificate serves as a proof of recognition. Under sections 9 and 10 of the Act, discrimination against transgender is prohibited in all fields, education, and employment. In educational institutions, it prohibits discrimination in admissions, expulsion, and equal access to institutional amenities, scholarships, awards, and other benefits and opportunities. Further, the Act prescribes inclusive education and opportunities for sports, recreation, and leisure activities to transgender persons without discrimination on an equal basis with cisgender persons.

The Act prescribes nondiscrimination in healthcare as well. Denying or discontinuing treatment of transgender persons or mistreating transgender persons in a medical institution or establishment. Section 18 of the Act, prescribes punishment for certain acts such as: compelling them to do forced or bonded labor, denying the transgender’s right to passage, forcing a transgender to leave the household, harming or injuring the health, safety, life, or well – being or tending to do acts including causing physical abuse, sexual abuse, verbal or emotional abuse, or economic abuse. If the above-mentioned acts are committed against transgender by any person, the Act provides punishment for such acts. So, by enacting such an Act, the state tries to protect the rights of transgender and prevent them from discrimination happening in society.

5.2.3 Work

One of the important elements in the gender equality is opportunity to work. To achieve the economic independence of women, women must enjoy opportunity to equal, safe and dignified work. So, in order to promote gender equality in the place of work state has enacted various legislation, such as: I.

Equal Remuneration Act, 1976 The Constitution of India under Article 39(d) seeks to achieve equal pay for equal work

and eliminate discrimination in place of work. The Act under section 4 guarantees equal pay for male and female work of the same or similar nature of work. The Act states that the employer shall not discriminate between males and females in case of recruitment, payment of wages, promotion, training, and transfer. Contravention of the provisions in the Act may lead to imprisonment and a fine. If any person's rights are violated under this Act, they may approach the authority appointed by the government and file a complaint against the company or industry and claim their rights. II.

Maternity Benefit Act, 1961 Childbearing and rearing are an important facet of human life. During motherhood, a woman faces a lot of obstacles, one of the main obstacles that a woman faces is economic stability or work. The maternity benefit Act seeks to provide maternity benefits to pregnant women during the course of work with monetary benefit and leave. III.

Prevention of sexual harassment of women at the workplace (prevention, prohibition and redressal) Act, 2013 The issue of sexual harassment in the workplace was first brought up in a case (Vishaka & ors v. State of Rajanthan & ors, 1997) by the Supreme Court. After the particular case, this Act was enacted to ensure a safe working place to enhance women’s participation in work. Harassing a woman at the workplace violates certain rights in the Constitution such as; Article 14 (Right to equality), 15 (Right against discrimination), and 21 (Right to life). The Act states what acts amount to sexual harassment, the redressal mechanism to resolve it, the constitution of ICC and LCC, the procedure to investigate the complaint, the inquiry procedure, interim measures during the pendency of the inquiry, and remedies.

5.2.4 Hindu Succession Act, 1956

Earlier Hindu women were not allowed to own property in their name and they were not allowed to dispose the property of in their own. Later, after the 2005 amendment right were given to women to acquire property and dispose their property of their own. The 2005 amendment removed the discriminatory provisions in the Act. The Act specifies how a Hindu female can dispose her property or how the property evolves in succession. The Act specify the

line of heir to whom the property will pass in case of succession. Under this Act, females are granted ownership of all property acquired either before or after the signing of the Act, abolish their “limited owner” status.

5.2.5 The Schedule Caste and the Schedule Tribe (Prevention of Atrocities) Act, 1989

The Schedule Caste and Schedule Tribe are one of the minorities in India and the one who may be exploited by the people easily. They are mostly discriminated from other people in the society on the basis of education, living, work etc. To prevent the atrocities happening against the SC and ST the state bought this Act. This Act guarantees rights and protect them from exploitation and discrimination in the society. The Act provide the act which are considered as offence, provides for sexual assault against SC and ST women, rights and remedies for the affected party or victims. Under this Act special courts were constituted to hear the offences committed against SC and ST.

5.2.6 Right of Person with Disability Act, 2016

The Act was enacted to fulfil the condition of United Nation Convention on the Rights of Persons with Disabilities (UNCRPD). The Act defines what all amounts to physical disability, intellectual disability, mental behaviour and other disabilities. The Act gives the provisions relating to rights and privileges available to the disability person, such as in case of education, reservation. The Act establishes authority at central and state level in order to protect the rights of the disability person and prevent them from discrimination caused in the society by the public. The Act also specifies the penalties which is imposed in case of violation of rights of the disability person.

5.2.7 Criminal laws

There are various crimes provided under the Act, which performed against women and which violates their rights. The provisions under the Act are: Rape, kidnapping and abduction, Molestation, Sexual harassment, Importation of girls, Torture, Dowry death.

5.3 How Indian laws are ineffective and ways to improve it

Indian laws, while undergoing improvements, continue to exhibit significant shortcomings regarding gender and sexuality. These gaps leave women and the LGBTQIA+ community

vulnerable to discrimination and violence. One major issue is the persistence of discriminatory personal laws based on religion and community. These laws govern inheritance rights, marriage, and divorce, often favouring men over women. For example, daughters in some communities may not have equal inheritance rights compared to sons (J, 2020). Additionally, the absence of a uniform civil code creates a complex legal landscape, further marginalizing women. Gender-based violence remains a serious concern. Laws like the Protection of Women from Domestic Violence Act, 2005, and the Dowry Prohibition Act, 1961, exist to protect women. However, weak enforcement mechanisms and societal stigma often prevent victims from reporting abuse. Rape laws, while amended in 2013 to include stricter penalties, grapple with low conviction rates.

The situation for the LGBTQIA+ community is equally challenging. The decriminalization of same-sex relationships in a case (Navtej Singh Johar v. Union of India, 2018) was a milestone. However, the absence of comprehensive anti-discrimination laws based on sexual orientation and gender identity leaves the community vulnerable to social exclusion and discrimination in employment, housing, and healthcare. Beyond the legal landscape, societal attitudes and cultural norms significantly contribute to the ineffectiveness of Indian laws regarding gender and sexuality. Deeply entrenched patriarchal beliefs often portray women as subordinate to men. This translates into limited educational opportunities, lower workforce participation, and a culture of silence around issues like domestic violence and sexual harassment.

The skewed sex ratio, favouring boys over girls, reflects a societal preference for sons, further marginalizing women. To bridge gaps in legal system, several steps are crucial. Firstly, enacting a uniform civil code that guarantees equal rights for all citizens, regardless of religion or gender, is essential. This code should address issues like inheritance, marriage, and divorce, ensuring fairness for women. Secondly, strengthening law enforcement and judicial processes is vital. Effective investigation, prompt prosecution, and harsher penalties for crimes against women and the LGBTQIA+ community are critical deterrents (Global Stusy on Homicide 2019, 2021).

Thirdly, raising public awareness through educational campaigns promoting gender equality and inclusivity is crucial. Challenging societal norms and fostering empathy are key to creating a more tolerant and accepting environment. Finally, strengthening support systems for victims of gender-based violence and discrimination based on sexual orientation and gender identity is critical. This includes establishing accessible and confidential helplines, providing legal aid, and creating safe shelters for those in need. By addressing both the legal framework and societal attitudes, India can create a more secure and just environment for all. To truly address these issues, a multi-pronged approach is required. Educational campaigns aimed at challenging traditional gender roles and promoting inclusivity for the LGBTQIA+ community are crucial.

These campaigns can be targeted towards schools, communities, and workplaces to foster empathy and understanding. Additionally, media can play a vital role in portraying positive narratives around gender equality and LGBTQIA+ rights. Furthermore, empowering women and the LGBTQIA+ community economically and socially is essential. Skill development programs, microfinance initiatives, and mentorship opportunities can equip them with the resources and confidence to navigate a challenging environment. By implementing these measures, India can move towards a legal framework that upholds the dignity and equality of all citizens, regardless of gender or sexual orientation. This will create a more just and equitable society for all.

5.4 Gender and sexuality view taken by Indian courts

In the landmark case (Navtej Singh Johar v. Union of India , 2018), the Supreme Court of India took a progressive stance on gender and sexuality. The case challenged the constitutionality of Section 377 of the Indian Penal Code, 1860 which criminalized “carnal intercourse against the order of nature.” The court unanimously read down Section 377 to the extent that it criminalized consensual sexual conduct between adults, regardless of gender. This effectively decriminalized same-sex relationships in India. The court highlighted the right to privacy as a fundamental right under Article 21 of the Indian Constitution. This right encompassed the right to make intimate choices about one's sexuality. Criminalizing same-sex relationships was seen

as discriminatory based on sexual orientation, violating the right to equality enshrined in Article

14. The court further argued that criminalizing consensual sexual activity amounted to an

unreasonable restriction on the right to express one’s sexuality, protected under Article 19(1)(a). The court recognized sexual orientation as an inherent part of a person's identity and dignity. Denying this fundamental aspect violated the right to life and liberty under Article 21. This judgment marked a significant step forward for LGBTQIA+ rights in India. It recognized the equal citizenship of all individuals, regardless of sexual orientation, and removed a major barrier to their freedom and dignity. In a case (Vineeta Sharma v. Rakesh Sharma & ors , 2020), the Supreme Court of India focused on gender equality in property inheritance. The case challenged the interpretation of the Hindu Succession (Amendment) Act, of 2005. Previously, daughters only received inheritance rights if their father died after the amendment.

Court delivered a progressive judgment, granting daughters co-parcenary rights in their ancestral property from birth, irrespective of their father's date of death. This decision overrode previous rulings and ensured daughters received equal inheritance rights as sons. The court's reasoning emphasized achieving gender equality as envisioned by the Constitution's Article 14 (Right to Equality) and Article 15 (Prohibition of Discrimination). The judgment recognized daughters as equal coparceners with inherent birth rights, dismantling the notion of property solely passing through the male lineage. The case marked a significant step towards gender equality in inheritance laws. It ensured daughters were no longer disadvantaged and received their rightful share of ancestral property. In a case (Laxmi v. Union Of India & Ors, 2015), the court did not directly address gender or sexuality.

It focused on the plight of acid attack survivors and the need for better rehabilitation and compensation. However, the case indirectly highlights the discrimination and violence faced by marginalized groups, including women and LGBTQIA+ individuals, who are often targets of such attacks. The Supreme Court's verdict emphasized the state's responsibility towards victims. It directed the government to provide a minimum compensation of ₹3 lakhs (approximately USD 4,000) to each acid attack survivor. The court also mandated stricter regulations on the sale of acid and directed the establishment of specialized medical facilities for treatment and rehabilitation. This case signifies the court's growing recognition of the need to address violence against vulnerable populations, a reality that often intersects with gender and sexuality.

In a Landmark case (Air India Etc vs Nergesh Meerza & Ors, 1981), the Supreme Court focused on employment regulations that discriminated against female flight attendants upon marriage or pregnancy. While the court ultimately upheld the termination of service upon first pregnancy as a reasonable condition, its reasoning regarding gender equality is noteworthy. The court acknowledged Articles 14 and 15 of the Indian Constitution. However, it interpreted these articles as prohibiting discrimination based solely on sex, not sex coupled with other factors. This interpretation has been criticized for creating a loophole. By separating pregnancy from sex, the court essentially allowed discrimination against women based on their biological capacity for childbirth. This approach limited the scope of gender equality in the workplace.

However, the court did strike down the regulation that mandated retirement upon marriage. This decision recognized the right of women to choose marriage without facing job termination. This case highlights the evolving interpretation of gender equality in Indian courts. While it didn't directly address sexuality, it laid the groundwork for future cases challenging discriminatory employment practices based on sex.

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