Unfinished Fights For LGBTQ+ Community Rights In India
Author: LawSphereX
Category: General Law
Published:
Updated:
UNFINISHED FIGHTS FOR LGBTQ+ COMMUNITY RIGHTS
IN INDIA
Anushree Dwivedi, Aryan Menon & Aditi Vibhute, ILS Law College, Pune
ABSTRACT:
Despite progress globally, the LGBTQ+ community remains systematically marginalized, victimized and excluded. In 75 countries same-sex relationships are criminalized and even in more inclusive societies LGBTQ+ people face discrimination in the personal and professional spheres of life. Cultural attitudes rooted in homophobia, biphobia and transphobia contradict the Universal Declaration of Human Rights’ commitment to equality. Even in the healthcare system, institutional violence worsens physical and mental health outcomes for LGBTQ+ patients and issues like bullying, religion and race can make things worse. Coerced secrecy often leads to internalized heterosexism, self-hatred and low self-esteem. Hate crimes against the LGTBQ+ communities continue to be a big issue with no legal protection.
Although, International Human Rights Law guarantees equality, LGBTQ+ people are denied basic rights like Employment, housing and legally recognized partnerships. Without legal recognition of same-sex unions, these inequalities get deeper as marital rights like inheritance, adoption and tax benefits seem out of reach. Acknowledging and protecting the rights of LGBTQ+ people is essential in building a society based on dignity and equality. Reforms in law that can address these inequalities are important so that the policies of different States are in line with Universal Human Rights and foster an inclusive society. Decriminalization of homosexuality in India with the repeal of Section 377 of the IPC in 2018 was a big step towards inclusivity but same-sex marriages are yet to be legally recognized.
Treatment of LGBTQ+ people as unequal citizens and denial of formal recognition takes away from them the basic rights associated with marriage like adoption and inheritance which needs immediate legislative reform. This paper looks at the gaps in Indian law that threaten, coerce and discriminate against LGBTQ+ people. Through analysis of laws in countries like the UK, Taiwan, South Africa, Malta and Pakistan this study shows how marriage equality, adoption rights, anti-discrimination laws, recognition of gender identity, laws against conversion therapy and hate crime laws have evolved over time. These comparisons will help create a blueprint to guide India in transforming its society into a more inclusive on.
I.
INTRODUCTION:
● Background: There have been significant advancements in dealing with the LGBTQ+ individuals in a legal perspective, the world over as well as in India, albeit the LGBTQ+ community still faces various forms of prejudice. Globally, more than 30 nations have endorsed same-sex marriage and adopted anti-discrimination statutes1. On the other hand, even today, 64 countries have criminalized homosexual acts, punishing these acts through the means of imprisonment or death penalty2. Although social forces such as pride parades and works of organizations and businesses in promoting inclusivity have led to widespread acceptance of the queer community, as a marginalized section of society, they continue to face discrimination. In India, the ruling made by the Supreme Court in 2018, that legalized same-sex relationship through the Navtej Singh Johar v.
UOI succeeded the 2014 judgement from the case of NALSA vs UOI where the Apex Court acknowledged Transgenders as the Third Gender. Yet the paths left to tread are not beds of roses, but those made of rocks and thorns with the likes of social prejudices which translate to inherent discrimination, expressed through legal phenomena such as same sex marriage and adoption rights being left without recognition. —especially in the rural areas that make up the majority of India’s population—retarding social progress. ● Historical marginalization of LGBTQ+ individuals in India and worldwide.
indecency’’3, a factor that led to the imprisonment of Oscar Wilde. Nazi Germany being an autocratic government oppressed lesbians, gay, bisexual, transsexual, queer and intersex people many of whom were sent to concentration camps4. A crosssectional review on studies all over the world from 1992 to 2009 showed that as high as 56% of LGBT individuals had been a victim to abuse in ways that ranged from verbal harassment to physical/sexual harassment5. Trans people experience a high level of physical violence as well as hate murder, while intersex individuals face prejudice in health systems that force them to be made “normal” through unnecessary surgeries6. This discrimination is seldom talked about, and hence LGBTQI+ individuals tend to avoid certain places or otherwise alter their normal schedules to avoid more discrimination or violence.
India’s violent resistance to change is evident in the way Section 377 of the IPC marginalized and criminalized ‘unnatural’ sexual offences thus suppressing acceptance of LGBTQ+ persons. This unfair categorization has resulted in the exclusion of LGBTQ+ people as groups that can readily be labeled, harassed, bullied, assaulted or even killed. II.
LITERATURE REVIEW:
Numerous parts of the world continue to ban same-sex behavior because their cultures enforce strong negative attitudes towards LGBTQ+ people. Across the globe 75 nations maintain laws against homosexuality while having not reached international human rights equality standards as promised in the Declaration. Sanders (2019)7 shows that anti-LGBTQ+ laws developed from colonial beginnings while Meyer (2015)8 explains how LGBTQ+ persons develop these biases and experience poorer mental health because of society's exclusion. The removal of Section 377 in India during 2018 brought the country closer to legalization of same-sex relationships.
3 Criminal Law Amendment Act, 1885, 48 & 49 Vict., c. 69, § 11 (UK)
4 Persecution of Homosexuals in the Third Reich (no date) United States holocaust memorial museum. Available at: https://encyclopedia.ushmm.org/content/en/article/persecution-of-homosexuals-in-the-third-reich (Accessed:
17 January 2025).
5 JS;K.-W.S. (no date) Victimization experiences of lesbian, gay, and bisexual individuals: A meta-analysis, Journal of sex research. Available at: https://pubmed.ncbi.nlm.nih.gov/22380586/ (Accessed: 17 January 2025).
6 Trans Murder Monitoring 2023 global update - TGEU - transgender europe (2024) TGEU. Available at:
https://tgeu.org/trans-murder-monitoring-2023-global-update/ (Accessed: 17 January 2025). 7 Sanders, D. (2019). Colonial legacies and the global persistence of anti-LGBT laws. International Journal of Human Rights, 23(4), 501-518. 8 Meyer, I. H. (2015). Minority stress and mental health in gay men. Journal of Health and Social Behavior, 56(1), 25-41
Even though laws let same-sex couples live together they still have not attained access to equal marriage rights and other benefits like taxes and property inheritance (Narrain 2020)9. Studies released by Badgett et al. in 202010 showed Taiwan and the United States achieve better social, financial and mental outcomes through marriage equality policies. The 2019 marriage equality laws in Taiwan provide other nations with a model to resolve unequal treatment of LGBTQ+ people. Healthcare systems that discriminate against LGBTQ+ people make their unfair treatment worse. McCann and Brown (2019)11 show treatment biases combined with conversion therapy seriously harm LGBTQ+ people's physical and mental wellness. The move against conversion therapy in Malta and the anti-discrimination rules in Canada and UK show how governments design policies that include everyone.
The combined effects of religious beliefs and racial attitudes with economic position work as major factors to understand why LGBTQ+ communities face marginalization. Since 2018 Pakistan has stepped forward with gradual changes to deal with all these issues through the Transgender Persons Act (Collins, 2022)12. Studies show India must bridge its current stance on decriminalization of same-sex couples toward full equality through various marriage and anti-discrimination reforms as well as changes in adoption law. Through this paper, we attempt to find solutions to bridge the gaps in the Indian legal framework by providing a comparative study of progressive framework of different countries and Indian legislations. ● Human Rights Perspective:
argue under the existent principles of: non-discrimination (Article 2); equality before the law (Article 7); and the right to privacy (Article 12) and: That there is no new legislation on human rights nor any convenient aspect within them that protects homosexual persons from violence and discrimination; existing international Human Rights Law provides for it already. Meanwhile, in relation to human rights as per the Universal Declaration of Human Rights and other international human rights treaties. Key Legal Obligations of States vis-a-vis protection of the human rights of LGBTQ persons include: ● Protection of human rights of the LGBTQ people against violence. ● Ensure that no form of torture or other cruel, inhuman, degrading treatment is administered to LGBTQ people. ● Repeal any laws criminalizing consensual same-sex relations and trans people.
● Abolish all discrimination against sexual orientation, gender identity, or sex characteristics. ● Respect freedom of expression, association, and peaceful assembly for LGBTQ persons. III.
PROBLEM STATEMENT:
While homosexuality, in India, no longer remains a criminal offence, the LGBTQ+ communities are still devoid of rights that heterosexual citizens enjoy without any restrictions, including marriage, adoption, and protection against hate crimes and violence. The absence of comprehensive and all encompassing anti-discrimination laws further exacerbate their marginalization. The study centres around the ideas of marriage equality, adoption rights, bringing anti-discrimination laws into force, the recognition of gender fluidity, and the law against hate crimes and conversion therapy. IV.
OBJECTIVE OF STUDY:
The study aims to:
1. Identify the legal gaps in Indian policies that impact LGBTQ+ individuals.
2. Analyze progressive legal frameworks of countries like The UK, Taiwan,
Netherlands, Malta, Spain, and others
3. Recommend reforms to align the Indian framework with the Universal Human Rights
as under the Universal Declaration of Human Rights(UDHR) V.
METHODOLOGY:
● RESEARCH DESIGN:
1. Qualitative Comparative Legal Analysis: Indian Legal Frameworks would be
compared with the Nations who have progressive frameworks of LGBTQ+ rights to know where the gap is and whether it can potentially reform the legislation in India.
2. Case study approach: A case study approach will be followed wherein the case of
Navtej Singh Johar v. Union of India of 2018 serves as the main case study, through which analysis of progress and challenges would be made towards the LGBTQ+ community.
● COMPARATIVE ANALYSIS:
The areas observed are primarily as follows:
1. Marriage Equality
2. Adoption Rights
3. Anti-Discrimination Laws
4. Gender Identity Recognition
5. Protection Against Conversion Therapy and Hate Crimes
● DATA COLLECTION:
(Bill C-4), a judgment by Taiwan court (Constitutional Court Interpretations No. 748), and acts in Denmark (Denmark’s Registered Partnership Act 1989), Malta (Gender Identity, Gender Expression, and Sex Characteristics Act 2015), and Spain. Further Indian Judgements of Navtej Singh Johar v. Union of India, and NALSA v. Union of India was analyzed providing comparative study of those judgements with the legislation of different countries.
● REASONS FOR THE COUNTRIES SELECTED:
A. Netherlands: The very first country to legalize same sex marriage.
B. Countries like UK, USA, Canada is taken because of developmental basis.
C. Spain, Malta and Denmark are taken because of how they slowly made it legal.
D. Taiwan is taken due to its similarity of Asian culture with India.
VI.
ANALYSIS AND DISCUSSION:
● The 2018 case of Navtej Singh Johar v. Union of India: Post-2018 legal context in India, when it chose not to decriminalize homosexuality in the Navtej Singh Johar v. Union of India judgment remains to be one of the most critical cases in instigating progress, looking to face problems that lie in store. The judgment by the court, in 2018, held Section 377 of the Indian Penal Code unconstitutional, marking a fundamental step towards normalizing LGBTQ+ rights through legal matters, invoking the virtues of equality, dignity, and privacy guaranteed under the Indian Constitution.
While some progressive judicial battles, such as this one, have been historically won, the absence of any further enactment, for example, recognizing same-sex marriage, adoption by homosexual couples or truly comprehensive laws against discrimination, reflect the significant limitations of progress even at the present juncture. Besides, The Transgender Act of 2019 though one in existence nominally, fails to encompass the quotidian needs of the community, which include their socioeconomic as well as medical needs. There still exists a need to expose and mitigate the intrinsic flaws of the conservative approach, dominant in rural character reflecting poorly in the sociability of queer individuals. This is
substantiated by a wide array of research wherein the urban centers tend to be accepting, the other stakeholders of society in the nation have not maintained the same outlook. People among the community still face marginalization at work, in health centers, in educational institutions, and other such institutions. This situation sets India apart from countries, like Taiwan, South Africa, and Malta, which have attempted to establish inclusive legal reforms for their LGBTQ citizens. This gap signals the need to leverage the steps taken in 2018 and establish further legal and policy protocol, through the interpretation of contemporary circumstances of the community, paving the way to an inclusive India.
● Challenges and Legal Gaps in Indian Framework: Insofar with the advancement to protect LGBTQ+ rights under a legal structure in India, legislation remains deficient with great areas of lack and obstructions preventing the complete accomplishment of equality, liberty, and justice for LGBTQ+ persons. The confluence of some antiquated laws, absence of targeted legal protection, social stigma, and differing judicial interpretations lead to such obstructions and inadequacies in the existing Indian legal structure. The subsequent sections will provide greater insight into such obstructions in the present legal structure within India:
1. Absence of Marriage Equality and Legal Recognition of Same-Sex:
The Indian Supreme Court, in its judgment of 2018 in Navtej Singh Johar v. Union of India, decriminalized homosexuality but doesn't recognize same-sex marriage in the legal framework. Marriage forms the base of social and legal rights such as inheritance, shared property rights, adoption rights, healthcare benefits, and tax incentives. The lacuna in the legal structure prevents LGBTQ+ couples from these very rights. Same-sex couples cannot get health insurance without legal recognition of marriage, nor can they file jointly or attain spousal exemptions. Thus, this non-recognition of marital status has perpetuated social and economic inequality by pushing the individuals into unprotected unions and elevating societal stigma. The most pressing challenge the LGBTQ+ community faces in India remains unaddressed in this area.
2. Inadequate Anti-Discrimination Protection:
The Indian legal system lacks provisions that explicitly protect sexual minorities from discrimination in all walks of life. This ranges from employment and education to healthcare, housing, and so on. There is equality before the law as provided by the Indian Constitution, but there are no clear-cut antidiscrimination policies for the queer community. LGBTQ persons suffer from discrimination in recruitment, harassment, and job security with no clear-cut policy against such discrimination. LGBTQ+ persons tend to be bullied, harassed, and excluded from schools with little redress in law. The health profession discriminates against the community by denying services or offering discriminatory services on grounds of cultural bias. Housing discrimination impacts the LGBTQ+ community, with transgender persons being denied houses or being exposed to exclusion or exploitation.
The lack of specific legal provisions leaves the systematic persecution of the LGBT community open, in turn exacerbating social exclusion against them.
3. Transgender Rights and Gender Recognition:
The 2014 NALSA judgment and the 2019 Transgender Persons (Protection of Rights) Act in India are legal measures which have provided for the legal status of transgender people; however, they are far behind in filling gaps for their protection. In India, transgender persons continue to experience discrimination, violence, and exclusion from mainstream society. Changing their gender on official documents is a laborious process that often involves a medical certificate. The Act lacks a clear self-identification procedure for gender change. Welfare services tend to lock out most transgendered persons from accessing services because they lack official documents which reflect their gender identity. Healthcare services for transgendered people which should include hormone therapy, surgery, and mental health care tends to fall short of the optimum.
These have fueled violence, discrimination, and marginalization of transgender people in India.
4. Lack of Protection against Conversion Therapy:
The largest issue for LGBTQ+ in India is that of conversion therapy, which tries to change the sexual orientation or gender identity of an individual back to ‘normal’; something that is fully disapproved of by medical and psychological associations yet still practiced in this country under the disguise of 'religious' or 'medical' treatment. There is no law in India specifically prohibiting conversion therapy, neither is one held accountable for acting as a practitioner. Most LGBTQ+ persons are forced by their families to undergo conversion therapy, often backed by the state or the community. This lack of legal protection leaves the LGBTQ+ community vulnerable to psychological abuse and emotional damage resulting from long-term mental health issues such as anxiety, depression, and even suicidal ideation due to coerced involvement in conversion therapy.
5. Societal and Cultural Barriers:
Societal influences affect the legal structure and bespeak a very conservative cultural stance on gender and sexuality deeply rooted within Indian society. As a result, gender and sexuality have a long way to go before such groups can fully find protection under law. Homophobia, biphobia, and transphobia remain strong and virulent within the public and private spheres. Legal steps have been taken, but social exclusion, violence, and harassment persist as LGBTQ+ people tend to hide their true selves by fear of being 'ousted'. Community and family coercion forces LGBTQ+ people into marriages or a situation that obliterates their sexual identity. No legal redress is available within the family organization for emotional as well as bodily abuse. Social sanctions and violence hugely impact them even in everyday activity and prevent the exercising of their rights under legal jurisdiction.
Traditions that sideline LGBTQ identities defy equality and humanity, and by such logic, change in law only cannot be enough.
6. Inconsistent Judicial Approaches:
The Indian judiciary has been making great strides toward LGBTQ+ rights, but consistency in judicial pronouncements is lacking. For example, while the
Navtej Singh Johar 2018 verdict had decriminalized homosexual acts, it did not cover marriage equality or adoption rights. Thus, most issues relating to the same remain unresolved. ● Analysis of Progressive Frameworks of Different Countries: A. NETHERLANDS: The Netherlands was the first country in the world to
legalize same-sex marriage. It is, even today, one of the most progressive countries with regards to LGBTQ+ Laws. Moving towards the achievement of equal rights, the nation introduced Registered Partnership in 1997 and later opened the way for legal marriage between same-sex partners13. Whereas Nordic countries pioneered in Registered Partnership (RP) laws for same-sex couples – with Denmark (1989), Norway (1993), and Sweden (1995) preceding the Netherlands in that respect – the Dutch same sex marriage advocates refused to settle for this halfhearted form of same sex union and fought for same-sex marriage from the outset14. On April 1, 2001, the Netherlands officially became the first country in the world to legalize same-sex marriage. The new law allowed same-sex couples to marry and enjoy the same rights as heterosexual couples.
Same-sex couples were granted the right to adopt children and have joint custody, among other benefits that were previously unavailable to them. B. UNITED KINGDOM: The United Kingdom has one of the most progressive
various scenarios, including work, education and in relation to services and public functions15. ● Protection of Harassment Act 1997: Covers harassment which includes protection against homophobic and transphobic behavior. ● Employment Equality (Sexual Orientation) Regulations 2003: Workplace discrimination based on sexual orientation is forbidden. This separate legislation to deal with workplace harassment establishes a robust framework to ensure that workplaces are free from discrimination, creating safer and more inclusive environments for LGBTQ+ employees. These laws collectively guarantee that LGBTQ+ individuals are safeguarded against discrimination, harassment, and inequality in various facets of public and private life. C. CANADA: Canada is one of the global leaders in providing robust frameworks
for the protection of LGBTQ+ communities. Especially when it comes to discrimination laws and introducing inclusive legislations. A very inspirational step is the Bill C-4. In 2021, Canada enacted Bill C-4, which amended the Criminal Code to criminalize all forms of conversion therapy. This law prohibits the act of causing minors to undergo conversion therapy, forcing adults to participate, promoting or profiting from such practices, and transporting minors out of Canada for these purposes16. The Bill discourages and denounces harmful practices and treatments that are based on myths and stereotypes that the sexual orientation, gender identity or gender expression of LGBTQ+ people are undesirable conditions that can or should be changed. Conversion therapy has also been recognized as a violation of human rights. In many provinces,
15 A short introduction to equality law and Policy - House of Commons Library. Available at:
https://commonslibrary.parliament.uk/research-briefings/cbp-9448/ (Accessed: 17 January 2025).
16 Government Bill (House of Commons) C-4 (44-1) - royal assent - an act to amend the Criminal Code
(Conversion Therapy) - parliament of Canada (no date) Government Bill (House of Commons) C-4 (44-1) - Royal Assent - An Act to amend the Criminal Code (conversion therapy) - Parliament of Canada. Available at: https://www.parl.ca/DocumentViewer/en/44-1/bill/C-4/royalassent#:~:text=Government%20Bill%20(House%20of%20Commons,conversion%20therapy)%20%2D%20Parl iament%20of%20Canada (Accessed: 17 January 2025).
conversion therapy is considered discriminatory and a violation of human rights under the applicable human rights codes and the Canadian Charter of Rights and Freedoms. The Bill C-4 would amend the Criminal Code of Canada to prohibit certain activities that relate to "conversion therapy"; The Bill would enact new offences to prohibit: I.
Causing another person to undergo conversion therapy: II.
Removing a child from Canada to undergo conversion therapy abroad: The Bill would prohibit removing a child under the age of 18 from Canada with the intention that they undergo conversion therapy outside Canada. Ensuring that the prohibition on conversion therapy cannot be circumvented by removing a child to undergo conversion therapy outside Canada responds to the clear harms that conversion therapy poses to children. III.
Prohibition of Promoting or advertising conversion therapy: The offence is punishable by imprisonment. The promotion and advertising offence would further the legislative objectives by reducing the presence of discriminatory public messaging that sexual orientation, gender identity or gender expression can or should be changed. This would protect individuals who may be vulnerable to such messaging and the dignity of LGBTQ+ people more broadly; IV.
Receiving financial or other material benefit from the provision of conversion therapy. V.
Prohibiting causing another person to undergo conversion therapy D. TAIWAN: Taiwan is the first country in Asia to allow same-sex marriage. The
judicial activism shown by the court of Taiwan played a fundamental role for legalization of same sex marriage. Same-sex marriage legalization in Taiwan came through a decision by judiciary with legislative enforcement. This meant
that there were guidelines that achieved the institution of constitutionalism while at the same time addressing the problems faced by society. Legalization, evidently, was a two-staged process, and its example allows demonstrating how legal systems can meet contentious conflicts while human rights progress. Street activism, judicial force, and legislative activity struck the perfect harmony that made Taiwan stand as a nation with commendable progress in regards to LGBTQ+ rights. The first step of the process as mentioned above was the judicial ruling by the constitutional court Constitutional Court Interpretation No. 748. In the judgement the court held as follows: The authorities concerned shall amend or enact the laws as appropriate in accordance with the ruling of this Interpretation within two years from the date of announcement of this Interpretation.
It is within the discretion of the authorities concerned to determine the formality for achieving the equal protection of the freedom of marriage. If the authorities concerned fail to amend or enact the laws as appropriate within the said two years, two persons of the same sex who intend to create the said permanent union shall be allowed to have their marriage registration effectuated at the authorities in charge of household registration, by submitting a written document signed by two or more witnesses in accordance with the said Marriage Chapter. 17 The Taiwanese court’s ruling on same-sex marriage placed pressure on lawmakers to act within a two-year timeframe, mandating eventual recognition while allowing the legislature to define the legal framework. This balance of judicial activism and restraint was pivotal in achieving this milestone.
To that effect, the Act for Implementation of J. Y. Interpretation No. 748, was enacted to law as from May 24, 2019 when promulgated on May 22, with its approval aimed to ensure legality and transparency thus Taiwan being the first Asian country to approve the practice of gay marriages.
17 No.748【Same-Sex Marriage Case】 (2017) Constitution Court ROC. Available at:
https://cons.judicial.gov.tw/en/docdata.aspx?fid=100&id=310932 (Accessed: 17 January 2025).
E. DENMARK: Denmark was the first country in the world to introduce legal
recognition of same-sex partnerships, specifically through the Registered Partnership Act which came into effect on October 1, 1989. This act was a pioneering step toward legal recognition and protection of same-sex couples. It set the stage for the eventual legalization of same-sex marriage in 2012, representing a gradual evolution of LGBTQ+ rights in the country. On 15 June 2012, Denmark enacted a gender-neutral marriage law, allowing same-sex couples to marry. After the introduction of the marriage law, the Registered Partnership Act was repealed, and entering into new registered partnerships is no longer possible. However, the registered partnerships remain valid, and couples who had previously entered into such partnerships were given the option to convert their union into a marriage if they so choose.
The Registered Partnership Act was necessary since through the introduction of registered partnerships, societies and governments began to normalize and legitimize same-sex relationships, paving the way for broader acceptance and eventual legalization of same-sex marriage. This goes on to show that, real equality would not be obtainable if there was no formal equality. The Act provided that two persons of the same sex may publicly register their partnership, but such registration is not available to opposite-sex couples. To register a partnership, the parties must meet the same criteria as those required for conventional marriage.
This means that each party is at least 18 years of age, a registered partnership between an ancestor and descendant or between siblings is not allowed, and also that persons, who have not finalized a divorce or dissolved a previous partnership cannot enter into a new registered partnership. When couples have registered their partnership, the Danish law shall treat them as a married couple. Therefore, any reference to marriage in Danish legislation will also include registered partnerships. Important implications include mutual obligations to support one another, the application of property rules, taxation, and social benefits applicable to married couples, as well as a legally recognized mutual right of inheritance. One of the crucial aspects of registered partnerships is the
right of the couple to adopt a child or have joint custody of a child belonging to one of the partners. In modern society, the argument that people should be free to pursue their sexual orientation is fundamentally considered a human right. Therefore, discriminating against homosexuals compared to heterosexuals is a violation of this right. This establishes registered partnerships in a way that reduces such discrimination, although it does not abolish it completely. Registered partnerships differ from marriage in several respects: registered partners are not considered 'married,' they have 'registered' their relationship; they are not permitted to adopt children; and under international private law, registered partners generally cannot expect equal treatment as married couples.
Despite the limitation of the law and personal differences in opinion towards registered partnerships, the role the law plays in alleviating obvious discrimination between heterosexuals and homosexual people and viewing sexual orientation as a human right points to the worth of enacting such legislation. 18 F. MALTA: Malta has frequently ranked as one of the top countries in Europe for
LGBTQ+ rights. Similar to the Netherlands and Denmark, first the civil unions were introduced in 2014, after which The Marriage Act and other Laws (Amendment) Act, 2017 was passed, granting same-sex couples the same rights and responsibilities as heterosexual couples. Equality for Lesbians, Gays, Bisexuals, Transgender and Intersex Persons Act prohibits discrimination on the basis of sexual orientation, gender identity, and sex characteristics in various areas, including employment, education, healthcare, and housing. Hate crime is addressed through Amendments to the Criminal Code that specifically protects individuals from crimes motivated by prejudice against their sexual orientation or gender identity. Another law of interest is Malta's Gender Identity, Gender Expression, and Sex Characteristics Act (2015). It is one of the world's most progressive laws
18 Morten P. Broberg, The Registered Partnership for Same-Sex Couples in Denmark, 8
CHILD & FAM. L. Q. 149 (1996)
on gender identity allowing individuals to self-declare their gender without medical or surgical requirements. It also bans non-consensual surgeries on intersex minors and ensures anti-discrimination protections for all gender identities. The GIGESC (Amendment) Act further simplifies updating civil status documents, like marriage certificates, since the changes will be done together with a notarized procedure. But applicants have to apply separately for changing their legal gender marker or name in identification cards, documents, and files kept by employers, schools, and other offices. The applicant will be charged accordingly. This amendment has streamlined some steps but maintained differentiated procedures for changes in specific types of documents. It aims at reducing bureaucratic burdens on those seeking legal recognition of their gender identity.
People using the GIGESC Act as amended provide with the following rights:19 1. Recognition of one's gender identity; 2. Freed personal development consistent with their gender identity; 3. Treatment consistent with their gender identity, including identification in documents; 4. Bodily integrity and physical autonomy; 5. Respect at all times consistent with their gender identity; and 6. No insult or revilement for the use of the GIGESC Act's provisions. The primary purpose of this act is to establish rules for the recognition and registration of an individual's gender and to regulate all implications of such changes, ensuring proper recognition and protection of a person's sex characteristics. Gender identity is an intrinsic aspect of an individual that may 19 The gender identity, gender expression and sex ... Available at: https://humanrights. gov.
mt/wpcontent/uploads/2024/09/User-Guidelines-GIGESC-Amendment-Act-EN. pdf (Accessed: 17 January 2025).
or may not require surgical or hormonal treatment or therapy. The Bill facilitates a simplified procedure that maintains the privacy of the person requesting updates to their official documents to reflect their gender. Furthermore, since individuals' sex characteristics vary, all persons must be empowered to make decisions regarding their bodily integrity and physical autonomy. G. SPAIN: Spain has been at the forefront of LGBTQ+ rights in Europe, especially
regarding adoption. In 2005, Spain became one of the first countries in the world to legalize same-sex marriage and to grant adoption rights to same-sex couples. It legalized same-sex marriage and same-sex couples adoption rights in 2005 after amending the Spanish Civil Code to include: "Marriage will meet the same conditions and will have the same effects be the parties of the same sex or of different sex20. " This was a significant milestone in the LGBT rights movement as they could adopt children from each other because their families then received legal rights and protection. The policies of Spain are inclusive and reflect its commitment to equality, which has become an example for other nations to follow in recognizing LGBTQ+ rights. The reform ensures that marriage and its associated rights, including adoption, apply equally to couples regardless of their gender.
20 Constitutional court judgment no. 198/2012 of November 6 Constitutional Court Judgment No. 198/2012 of November 6 (Unofficial translation). Available at: https://www. tribunalconstitucional. es/ResolucionesTraducidas/198-2012%20of%20November%206. pdf (Accessed: 24 January 2025).
● Comparative Study:
COUNTRIES
SAME SEX MARRIAGE
CIVIL
PARTNERSHIP
RIGHTS
ADOPTION
RIGHTS
ANTI-
GENDER
IDENTITY
RECOGNITIO
N
DISCRIMINATION
RIGHTS
INDIA
Not legalized; under judicial review No provisions available. No adoption rights for same-sex couples; single
LGBTQ+
individuals can adopt No specific federal laws, some state-level protections exist Transgender Persons (Protection of Rights) Act,
2019 recognizes
the right to selfperceived gender identity and allows for legal gender change
NETHERLANDS
Legalized in 2001 via the Act Opening Up Marriage Introduced in 1998 to grant same-sex and opposite-sex couples a legal alternative to marriage. Same-sex couples can adopt (domestically and internationally) since 2001. Strong antidiscrimination laws, including those for LGBTQ+ individuals. Legal with procedural legislations
UNITED
KINGDOM
Legal in England & Wales, Scotland, and Northern Ireland (since 2014, 2014, and 2020 respectively) Available since Full adoption rights for samesex couples Equality Act 2010 protects against discrimination based on sexual orientation and gender identity Legal gender change through the Gender Recognition Act
DENMARK
Legalized in 2012 Previously existed but were phased out with the legalization of same-sex marriage Joint adoption by same-sex couples is allowed Anti-Discrimination Act (2003) protects against discrimination based on sexual orientation and gender identity Legal gender recognition is available
MALTA
Legalized in 2017 Previously existed, phased out with same-sex marriage Legal for samesex couples Incitement to Violence and Hate Crimes Act (2014) prohibits discrimination based on sexual orientation and gender identity Legal gender recognition is available through The GIGESC Act.
SPAIN
Legalized in 2005 Previously existed, phased out with same-sex marriage Legal for samesex couples Organic Law on the Comprehensive Protection Against Discrimination (2007) protects against discrimination based on sexual orientation and gender identity Legally substantiated VII.
SUGGESTIONS FOR INDIAN LEGAL FRAMEWORK:
1. Judicial Activism: The legislature has been very slow in taking up this issue, which
has created a huge gap for the affected individuals. Considering that social attitudes are widely diverse, India requires an approach that finds a middle way between judicial activism and major public debate and interface with the law. The Taiwan model provides for a two-step model for legalization of same-sex marriages that are highly useful for the Indian situation as they circumvent the judicial overreach perception without diluting the rights available to the citizenry under the Constitution.
2. Establish Civil Unions, Domestic Partnerships & Registered Partnerships: This
falls into an intermediate space of not recognizing homosexual couples as any legal entities whatsoever and awarding them full marriage rights and status. Legal recognition will grant couples basic rights such as inheritance, medical decisionmaking, and joint property ownership, which are elementary to dignity and equality but denied them. It should further be implemented with broad timelines to ultimately transition into marriage equality rather than settle permanently on such an arrangement.
3. Strengthening Hate Crime Laws: Severe hate crime laws prevent further violence
and hate crimes. Something to be picked up from examples worldwide, The UK's Equality Act 2010 ensures very stringent legal standards for dealing with hatemotivated violence. Along with strengthening the hate crime law, there would be anonymous complaints, swift courts for dealing with hate crime and rehabilitating the victim. Such public campaigns also inculcate more acceptances among the society while eradicating hate-driven activities.
4. Targeted Legislative Acts: India should enact focused laws like employment
discrimination or health care access to allow for the provision of solutions to specific problems faced by the LGBTQ+ community. For instance, the Employment Equality (Sexual Orientation) Regulations 2003 of The UK ensures workplace protection and helps to create an inclusive environment. Focused laws such as these are a practical way of dealing with complex issues such as employment discrimination. However, we must ensure that such laws are well-integrated and do not operate in silos.
5. Holistic Awareness Programs: Holistic Awareness Programs: The above
recommendations must be supported by comprehensive awareness programs, since legislations without societal acceptance will only remain de jure. Holistic Awareness can be realized through a myriad of Sensitization Programs for sensitizing the government agencies, teachers and law enforcing personnel to provide the right perspective and implementation of the rights of LGBTQ+. Public Awareness campaigns as an investment towards the creation of an acceptance culture and support base for the reforms proposed above. VIII.
CONCLUSION:
India has certainly witnessed significant milestones in the journey towards LGBTQ+ equality, yet systemic inequalities remain. These differences stem from the lack of recognition of same-sex marriages, lack of anti-discrimination laws, and weak provisions against hate crimes. All these aspects reflect how much the country requires legal and policy reforms. India, in order to do so, could adopt an all-inclusive approach towards society and learn from the innumerable progressive global examples toward fostering dignity and equality for all citizens. India requires transformation beyond laws; rather, it needs a change in the mindset of the people. The latter can be initiated
through education and awareness. Only then will all these issues culminate into an inclusive and equitable society.