Unveiling History And Progress - Socio-Legal Challenges For LGBTQ+ Communities In India
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UNVEILING HISTORY AND PROGRESS: SOCIO-LEGAL
CHALLENGES FOR LGBTQ+ COMMUNITIES IN INDIA
Ms. Navya Chadha, B.A.LL.B. (Hons.), Himachal Pradesh National Law University, Shimla
ABSTRACT
This paper explores the historical trajectory of the status of LGBTQ+ communities in India. Drawing from historical and mythological texts, the research explores how sexual diversity was once normal and celebrated. Imposition of Victorian morality and colonial laws such as criminalization of homosexuality, brought systematic stigmatization and criminalization of non-heteronormative identities. Despite progressive interventions in recent past, this paper highlights limitations of judicial precedents and legislative protections deemed to be inclusive and argues that India’s legal framework has remained exclusionary. The absence of comprehensive antidiscrimination protections, lack of sensitivity and gender-neutral laws have become a challenge for LGBTQ+ community, building glass ceilings for them to get mainstreamed.
While the legal strides have been made, the social mindset and legislative inertia continue to hinder true inclusivity. This paper invites legislative reforms to dismantle enduring prejudices and secure dignity, equality, and representation for the LGBTQ+ community in India. Keywords: LGBTQ+, gender justice, discrimination, Trans rights, Victorian morality, same-sex marriage, inclusivity.
INTRODUCTION
"Let us move from darkness to light, from bigotry to tolerance, and from the winter of mere survival to the spring of life as the herald of a New India to a more inclusive society. "1 There once existed a society built on inclusivity, in which everyone was valued as human beings regardless of gender or sexual orientation. The existence of the third gender in ancient Indian society can be traced back to epics of Mahabharata. Urvashi cursed Arjuna, causing him to change into a third gender known as "Kaliba. " In the Ramayana, Lord Ram blessed those who were neither male nor female and privileged their loyalty. Hindu mythology supports the idea of a third gender and considers it divine and legitimate. The third gender was well respected even under the Mughal Empire.
2 However, the concept of inclusivity gave way to the criminalization of the third gender once the British colonized India and introduced Western influences to Indian society. In the contemporary world, Individuals' identities are frequently established by society based on its standards and ways of thinking, and those who disagree with it are referred to as "others. " Western morality has deeply engraved itself in our society. Although India has made a progressive move by recognizing the third gender and repealing discriminatory laws, progress in this area remains slow despite decades of independence. However, this has been challenged by various activists, even the LGBTQ+ supporters. In the words of one of Zanele Muholi, one of the prominent LGBTQ+ activists, "If I wait for someone else to validate my existence, it will mean I'm short-changing myself.
"3 The LGBTQ+ community is still the subject of social taboo, and unless this taboo is lifted, progress cannot be made. The government's primary concern is that there will not be any advancement unless the social fabric of society accepts them.
TRANS RIGHTS AND SHORTCOMINGS
Over time, society has not only faced social taboos but also encountered increasing legal complexities. The introduction of gender-neutral laws is still a long way off. We are still
1 Navtej Singh Johar v Union of India (2018) 10 SCC 1 (SC).
2 Ruth Vanita and Saleem Kidwai, Same-Sex Love in India: Readings from Literature and History (2nd edn, Palgrave Macmillan 2021).
3 Zanele Muholi, quoted in ‘30 Inspiring Pride Month Quotes’ (Unexpected Virtual Tours, 1 June 2023)
https://unexpectedvirtualtours.com/resources/pride-month-quotes/ accessed 4 May 2025
adhering to Victorian morality4 in part despite our efforts to eradicate the colonial mindset. Victorian Morality herein means the strict set of moral and social values prevalent in Britain during Victorian era. Victorian Society was generally conservative, defines strict gender roles. The fact that the new criminal laws continue to reject same-sex marriage—even the Supreme Court has refused to recognize it—this demonstrates how deeply ingrained this colonial mindset is. Despite their best efforts, the new criminal law does not account for all genders. In the Bhartiya Nyaya Sanhita, 2024, the word "he" is used in Sec. 25, which are to be interpreted to include all genders. However, Chapter 56 of the Sanhita, dealing with sexual offences, goes against this by excluding transgenders and following gender specific approach.
Even if the Transgender Person Act of 20197 is viewed as a move in the right direction, it is not inclusive as it leaves out essential institution/ideas like marriage, adoption, maternity rights, etc. Of all the populations that fall under the LGBTQ+ category, only transgender people have received legal recognition; nonetheless, despite these rights, they still must deal with many difficulties in level-headedness. We must change nearly every piece of legislation in the nation to make it gender-neutral to recognize this community. The idea behind introducing new criminal laws was to replace the laws of the colonial mindset. However, new laws failed to establish an inclusive society, and the fight for the rights of the third gender persists.
IDEA OF INCLUSIVITY AND COLONIAL IMPACT
PRE-COLONISED INDIAN SOCIETY
The history of homosexuality can be traced back to the Vedic Era. In India, there once existed a society based on the idea of inclusivity, where everyone, irrespective of gender or sexual orientation, lived a life of dignity. In addition to acknowledging the "third gender," the Vedic civilization discussed homosexual relationships. Indian society was one of the most liberal societies, and all forms of gender orientation were considered natural. Such acts were respected not only in texts but also in practice.8 4 Victorian Morality refers to the strict code of ethics, social conduct, and sexual restraint associated with the reign of Queen Victoria (1837–1901) in the United Kingdom. It emphasized values such as chastity, modesty, duty, hard work, family honour, and social respectability
5 Bharatiya Nyaya Sanhita 2023, s 2
6 Bharatiya Nyaya Sanhita 2024, ch 5.
7 Transgender Persons (Protection of Rights) Act 2019
8 Ruth Vanita and Saleem Kidwai, Same-Sex Love in India: Readings from Literature and History (2nd edn, Palgrave Macmillan 2021).
Epics and Third Gender In Hindu Mythology, it was believed that the third gender is natural and sanctioned by God. According to the Rigveda, "Vikruti Evam Prakriti or Perversity/diversity" is to be found in the essence of nature; what appears unnatural is also natural. During the time of the Rig Veda, the idea of yoni, which stands for the womb and the infinite supply of energy, was valued more highly than the union of a man and a woman, proving the cyclical constancy of transsexual dimensions of human life. In the Mahabharata, Arjun assumed the third gender, "Kaliba," after Urvashi cursed him. There is another intriguing tale about Shikhandini, the feminine warrior of the Mahabharata era, who killed and defeated Bhishma. King Drupada reared Shikhandini as a princely daughter to exact revenge on the Kurus, the Hastinapur kings. Shikhandini was even wedded to a woman.
Her wife rebelled when she learned the truth. God intervened at night to provide Shikhandini with the manhood that saved the day. From then on, Shikhandini led a hermaphrodite lifestyle. According to Valmiki's Ramayana, Hanuman once witnessed two women in Ravana's Palace sharing a passionate kiss. The Ramayana also describes the story of Dilip, a king with two wives. He left no heir when he passed away. According to legend, the widowed queens' visions featured Lord Shiva telling them they would have a child if they made love. Following Lord Shiva's instructions, one of the queens became pregnant. Their child grew up to become the well-known monarch Bhagirath, who is most remembered for "having brought River Ganga from heaven to the earth".
As per the Matsya Purana, Lord Vishnu assumed the shape of Mohini, a stunning woman, to deceive the demons and allow the gods to consume all the Amrut, the immortal juice found from churning the milky ocean. Lord Shiva, meanwhile, fell in love with Vishnu the moment he beheld him as Mohini. As a result of their marriage, Lord Ayyappa was born. One of the most well-known works of Indian literature, Kamasutra, discusses the art of creating love and relationships that are viewed as unnatural in contemporary society. "Aupariṣṭaka," a chapter of Kamasutra, discusses same-sexrelationships. It demonstrates how various sexual behaviors were acknowledged and addressed in ancient times. It also recognises "Gandharva vivah" means homosexual marriage. Before colonization, homosexuality was an expected behaviour, as evidenced by literary works.
Mughal artworks also have references of the idea of homosexuality. The well-known writer Bulleh Shah discussed the idea of same-sex relationships in his renowned works of literature. The famous story of the Sufi saint who fell in love with a Hindu boy is widely known. Through his art, another Sufi Saint expressed his
love for a boy. A foreign traveller who saw the practice of homosexuality among the Mughals in Bengal wrote about it in his work. He even said that such practices were normal and many women left their home for this sin. 9 Many authors have claimed in their works that relationships of this nature existed between several well-known Mughal emperors, including Akbar and Allauddin Khilji. Gayatri Reddy, in her book recorded and discussed the concept of queerness. She documented how hijras were in union with various elite male. Some had long-lasting relationships, and sometimes they referred to their relationship as one of 'marriage. '10 It shows that queerness is not strange to our country. In addition to literary sources, Indian history also includes visual remnants through artwork, sculptures, and other works exploring inclusivity.
Temple sculptures, especially in India, like those in the Khajuraho and Konark temples, depict intimate scenes between individuals of the same gender, suggesting a recognition and acceptance of homosexual relationships in certain historical contexts. In Buddhist Monastic Caves of Ajanta and Ellora, there are famous paintings that portray the paintings of the same sex engaging in sexual activities. Historical shred of evidence is proof that homosexuality was not a social taboo and was a widely accepted activity. The anti-sex beliefs and fear of non-normative sexualities are not aligned to our culture and it was the influence of colonialisation. It played a significant role in shaping the Indian National identity.
THE IDEA OF VICTORIAN MORALITY
"It would not be a faithful description of the times to say that queerness was "accepted" by the populace. Rather, society did not often view (many manifestations of) the queer identity as something that required acceptance to begin with because it formed a part of ordinary, dayto-day life, like the heterosexual or cisgender identities. "11 The legacy of long-term colonialism, their ideologies, and the intricate socio-ethnic variety of Indian society are widely acknowledged as the main factors that contributed to the shifting beliefs of Indian society. Colonialism caused a significant shift in sexuality narratives, moving them from the public to the private domain. The distinction between private and public life in 9Pattanaik, Devdutt, Shikhandi: And Other tales They Don’t Tell You,Zubaan Books, 2015. 10 Reddy, Gayatri. With Respect to Sex: Negotiating Hijra Identity in South India.
Chicago: University of Chicago Press, 2005
11 Supriyo @ Supriya Chakraborty vs Union of India (2023) INSC 920
Indian culture was significantly worsened in India by colonial rule, although it is a modern normative idea. The private sphere of sexuality firmly resides and is fiercely preserved as a domain of customary, native, and feudal social customs. The concern of different identities arose from the colonial educationists' assaults on the ideas of Indian sexuality and masculinity—the British established legislation to enforce their moral standards further and their idea of morality. The imposition of Victorian morals led to the criminalization of samesex relationships and non-binary identities. British imposed the stringent ideas and morals of the church in the lives of others. The introduction of section 37712 of the Indian Penal Code in 1861, which criminalized "carnal intercourse against the order of nature," was a direct consequence of these imported values.
This law not only penalized homosexual acts but also stigmatized the LGBTQ+ community, branding them as criminals and deviants. They also introduced Criminal Tribes Act, 187113 to criminalise certain activities. It refers to transgender as eunuchs, and they are subject to harsh treatment and discriminated treatment. They were punished for pursuing their identity. Later, society stigmatized them, and they were forced to conceal their identity. Victorian England considered the idea of homosexuality as a sin and try to impose their outlook on others. The Sexual Offenders Act 196714, passed by the former colonial authority, decriminalized sodomy in 1967. However, because Victorian mindsets brainwashed Indians and forgot everything about their history, including Kamasutra and Khajuraho, the so-called sodomy law persisted in the system.
From being the "land of the Kamasutra" to introducing Section 377 and being a homophobic nation, India witnessed a shift in the narrative. The colonial period thus saw a regression from the relatively inclusive attitudes of ancient India to a more repressive and punitive approach. This legal framework remained largely unchanged for over a century, profoundly influencing societal attitudes and perpetuating discrimination and marginalization of LGBTQ+ minority. This contemporary idea of LGBTQI+ is not a modern concept but a reassertion of past ideas. The turn towards democracy and fundamental rights is one of the main reasons for the increased demand for rights. However, the stigma imposed on Victorian morality is still prevalent in our country.
12 Indian Penal Code, 1860, s. 377
13 Criminal Tribes Act, 1871, s.26, s.27, s.29
14 The Sexual Offenders Act, 1967
LEGAL COMPLICATIONS
Despite the adoption of a progressive constitution that guarantees fundamental rights to all citizens, LGBTQ+ communities continued to face significant socio-legal challenges. One of the most critical legal challenges was the continued existence of Section 377. While this section criminalized homosexual acts, it was interpreted broadly, often leading to harassment, blackmail, and abuse of LGBTQ+ individuals. The fight to decriminalize homosexuality became a long and arduous battle involving various petitions, public interest litigations, and activism. Finally, in the case of Naz Foundation v. Government of NCT Delhi15, the Court declared Sec 377 as unconstitutional. Another major challenge was the absence of specific antidiscrimination laws to protect LGBTQ+ individuals.
While the Constitution guarantees equality before the law and prohibits discrimination on various grounds, sexual orientation and gender identity were not explicitly covered. This gap in legal protections meant that LGBTQIA+ individuals faced discrimination in employment, education, healthcare, and housing without any legal recourse. For transgender, the recognition of their gender identity poses significant challenges. The lack of legal recognition affected their access to education, employment, and social services. The struggle for identity recognition led to the landmark 2014 Supreme Court judgment in NALSA v. Union of India16, which recognized transgender people as a third gender and affirmed their right to self-identification.
The judgement was a landmark as it, for the very first time, gave legal recognition to the third gender and extended fundamental rights granted under the Constitution specifically under Article 14, 15, 19(1)(a) and 21 to transgenders as well, prohibiting discrimination. The court also directed the state to secure social justice and equality to all citizens, including transgenders as a part of their obligations under Part IV of the constitution. The US court in Lawrence v. Texas17 stated that "The choice of sexual orientation is part of the intimate and personal choices and falls under the zone of privacy because it is a choice central to personal dignity and autonomy as well as central to the liberty protected by the Fourteenth Amendment of the American constitution"18. Similarly, in National Coalition of Gay and 15Naz Foundation v. Government of NCT Delhi, 2009 (6) SCC 712. 16NALSA v.
Union Of India (2014) 5 SCC 438.
17 Lawrence v. Texas (2003) 559 US 538
18 Rachel Sweeney, Homosexuals and the Right to Privacy, 34 CUMB L REV 171
Lesbian Equality v. Minister of Justice19, the Constitutional Court of South Africa stated that “to not allow freedom while choosing partner would amount to breach in privacy”. The international Jurisprudence in this regard is also moving towards inclusivity and equal protection of rights to all, parting ways with the idea of Victorian Morality. Legislative Protections provided to Transgenders in India Although the Supreme Court of India scrapped down Section 377 of IPC, 1860 in an historic judgment, followed by the enactment of The Transgender Persons (Protection of Rights) Act,
2019 by the Parliament, it still seems that tolerance and acceptance of homosexual relationships
is, miles away. Despite efforts from the Judiciary and the Parliament, social stigma and violence against LGBTQ+ still persists, while many legal challenges and complications bars inclusivity. Cultural norms and societal attitudes continued to view non-heteronormative identities as deviant leading to inequality, physical and sexual violence, harassment, and discrimination among people. Social exclusion of LGBTQIA+ community has led to mental agony of people, manifesting in many forms and leading to mental health issues like alienation, isolation and depression. The Transgender Persons (Protection of Rights) Act, 2019, giving legal recognition to transgender community falls short in many aspects including; right to self-determination of identity, reservations in education and public employment, non-adequate punishments in cases of sexual violence, among others.
Most importantly the act remains silent on recognition of transgender people in the existing civil and criminal laws, which are still far from being genderneutral. Apart from the shortcomings, implementing the existing setup is a big challenge. There exists no social security for homosexual couples or transgenders. Facing discrimination in employment and social rejection, they are left with no other option than to beg or do sex-work. This problem gets aggravated when met with apathy of the authorities such as Pune Police banning begging by the trans community in 202420. This reflects social stigma around the
19 National Coalition of Gay and Lesbian Equality v. Minister of Justice (1998) ZACC 15
20 IANS, ET Online, ‘Pune Police bans transgenders from forcefully asking money during ...’ The Economic Times (10 April 2024) https://economictimes.indiatimes.com/news/new-updates/pune-police-bans-transgendersfrom-forcefully-asking-money-during-festivals-births-and-at-trafficsignals/articleshow/109203705.cms?from=mdr
community and a dire need of state interference in providing social security and a dignified life under Article 21. Despite Article 15(4) and 46 of the Indian constitution categorically promoting the state to take affirmative action to uplift the weaker sections of the society, the Parliament shows no interest. However, states like Karnataka and Madhya Pradesh have provided 1% reservation for transgenders, but no uniform policy is in place yet. Karnataka have given horizontal reservation to transgenders in all categories, while Madhya Pradesh sees transgenders as an autonomous community giving 1% reservation as a whole under OBC category, signifying ambiguity in policy making. Another burning issue is of legalising same-sex marriages, which will provide social net and marital rights to homosexual couples. The Supreme Court, in Supriyo v.
Union of India left the issue to the Parliament, citing Montesquieu's principle of division of power. However, the bench did not explicitly deny the possibility and made various arguments reinforcing the rights of homosexuals and homosexual couples.
SAME SEX MARRIAGE – A NEVER-ENDING DEBATE
Marriage is an important social institution, providing social acceptance and legal recognition to persons engaged in long-term committed relationship. The case for legalising homosexual marriage is special, as not only will it give social acceptance to a certain extent but also legal and enforceable rights that are associated with marriage. Along with the legal advantage, it is an ideal institution of belief and commitment, and sexual orientation shouldn't bar anyone from being a part of that culture. Marriage has strong roots in Indian civilization which transcends sexual orientation. A married couple is entitled to innumerable tangible and intangible benefits, like matrimonial
and child care benefits, which include provisions relating to permanent alimony and maintenance; property benefits such as securing a share in case of intestate succession. The Indian Evidence Act, 1872 also provides heterosexual couples with the benefits of privileged communication21. Apart from this, heterosexual couples have monetary and taxation benefits
21 Indian Evidence Act, 1872, s.122
under statutes like the Code of Social Security, 202022; Income Tax Act, 196123, etc. State's interference in marriage to an extent is necessary to protect individuals' rights and ensure that the actions of individuals in the intimate space are in consonance with the constitutional values. Laws pertaining to marriage in India, especially the Special Marriage Act are not gender neutral, limiting its application to homosexual union and devoiding them of social acceptance and spousal privileges. The provisions of SMA24 and FMA25 were challenged in a recent case of Supriyo @ Supriya Chakraborty v. Union of India. The petitioners argued that the current regime discriminates against the queer community limiting them from entering into marriage or forming a civil union.
They also argued that right to marry is a 'fundamental right' under Article 21 of the Indian constitution and not allowing homosexual marriages violates the right of freedom of expression, privacy, autonomy and personal dignity. The five judge bench, with a 3:2 verdict upheld the constitutional validity of the existing marriage related provisions and unanimously denied right to marry as a fundamental right. The majority bench stated that non-recognition of LGBTQ+ unions does not deprive them of their right to choose a partner, privacy and autonomy under Article 15 and 21 of the constitution and that the constitution does not put a positive obligation upon the state to recognise LGBTQ+ unions. However, it also reaffirmed the rights of queer community to choose, cohabit and enjoy physical intimacy with a partner of their choice.
The court stated that the act of Parliament gives the spousal rights given to heterosexual couples and not by the inherent nature of marriage, hence it is in the domain of the legislature to grant same benefits to LGBTQ+ unions and is outside the ambit of the judiciary The dissenting opinion however stated that the State has positive obligation to override the right of privacy and democratise private spaces, to reduce discrimination faced by queer communities. Chief Justice Chandrachud opined that state have time and again interfered into the private spaces to democratise physical intimacy, be it the abolition of practises such as Sati, widow remarriage, or protection against domestic violence, dowry, etc. Additionally, the
22 Code on Social Security, 2020
23 Income Tax Act, 1961
24 Special Marriage Act, 1954, s.4(c)
25 Foreign Marriage Act, 1969
minority opinion also stated that right to form union is an inherent right under Article 19 and
21 of the Indian constitution.
AUTHORS OPINION
The issue of equal rights for LGBTQ+ community is a long-standing debate across the world. The courts however through its precedents have tried to bridge the gap and ensure a dignified life to the queer community, it still lacks executive implementation. The Legislature and Executive falls short on the issue and have shown no intention to support the widespread community. Our continued adherence to the colonial mindset is demonstrated by the new criminal laws. Gender neutrality was not addressed, despite the intention of eliminating colonial mindset. There is still a lack of political discussion and proper debates on such sensitive issues. In modern administration, legislations are the most effective way to sparks social reforms. Awareness among the masses is also lacking leading to high violence, social exclusion, and a lack of dignified living for the community.
Due to the efforts of NGOs and private organisations, the issue has taken a form of public discourse, however it is limited to urban minds, and a mass population of the country still lacks awareness. Issues of queer rights are given least importance in our daily discussion. This community faces persistent prejudice, which makes it difficult for them to make a living. Constant societal pressure and social stigma deprive them from education, employment, and many other necessities. In words of Dr. B. R. Ambedkar, in a democracy, the popular government should benefit everyone equally. It is the duty of the government to work for their upliftment. State should take some affirmative actions to provide adequate representation of the community in public domain. LGBTQ+ lacks livelihood, education and most importantly, any political voice and representation.
CONCLUSION
The journey towards inclusivity and acceptance of the LGBTQ+ community in India is deeply rooted in its history, yet significantly impacted by colonial rule. While ancient Indian society celebrated diverse gender identities and sexual orientations, the imposition of Victorian morality during British colonization led to the criminalization and stigmatization of these communities. Despite progressive steps, such as the decriminalization of Section 377 and the
enactment of the Transgender Persons (Protection of Rights) Act, 2019, significant legal and social challenges persist. The recent Supreme Court judgment on same-sex marriage underscores the complexities and limitations of the current legal framework. Although it affirms the rights of LGBTQ+ individuals to choose their partners, it falls short of granting full marital rights and recognition. This highlights the need for comprehensive legal reforms and societal acceptance to truly embrace and uplift the LGBTQ+ community. A multi-faceted approach is required to address these challenges. Legislative reforms must aim
to create gender-neutral laws and provide legal protections against discrimination. Social awareness campaigns are essential to educate the masses and reduce stigma. Additionally, affirmative action policies can help ensure representation and opportunities for the LGBTQ+ community in various sectors. Ultimately, the fight for equality and acceptance is not just a legal battle but a social movement. It requires collective efforts from the government, civil society, and individuals to create an inclusive society where everyone, regardless of their gender identity or sexual orientation, can live with dignity and respect. As India moves forward, it must remember its rich history of inclusivity and strive to reclaim and build upon that legacy for a more just and equitable future.