LGBT Rights in India

LGBT RIGHTS IN INDIA

A crucial element to one’s identity is their sexual orientation and the willingness to be accepted by their family and community. Those who do not fit the desired sexual orientation of their society, can find themselves being rejected and shamed for who they are. In India today, the LGBT community has struggled for centuries and continues to be a marginalized group in society. Over the years, harsh laws and regulations have been put into place to further exclude those who do not fit heteronormative norms in Indian society. The LGBT group, which stands for “lesbian, gay, bisexual, transgender, and queer community” is alive and prospering in India. The sexual orientation and gender identities of LGBT people are considered to be different from the majority of society. Despite the discrimination the Indian LGBT community faces, they have worked hard to repel against state laws and eliminate the stigma around their group. Although the LGBT community has had some successes in advocating for their group, they continue to oppressed through laws created after India’s colonization by Britain.

History of LGBT People in India

The persecution and exclusion of LGBT people from Indian society is a longstanding problem and one that dates back hundreds of years. Following the colonisation by the British, strict laws were implemented on LGBT people determining their fate for centuries to follow. The religion of Hinduism, which is widely practiced across India, is actually very accepting of homosexuals and transgender people. Many argue that the Indian society would not be so divided on LGBT issues, if it weren’t for the implementation of Indian laws by British colonizers.

In 2003, when the discussion of repealing laws against homosexuals was discussed, the Indian government argued it would “open floodgates of delinquent behaviour”. In 2009, the Delhi high court ruled that same-sex intercourse would be legal, but would only be applied to the capital city and not the rest of India. However in 2013, this progress would be eliminated when the Supreme court of India decided it was only fit to make such decision. Homosexuality was once again illegal and put the lives of many people in jeopardy following the 2009 ruling.

Through significant activism, the Indian government has begun to acknowledge the discriminatory laws that govern the LGBT people. The abolishment of Section 377 of the Indian Penal Code is one of the first steps in this acknowledgement by the government. Today, activism around the LGBT community is very alive in India.

Section 377 of the Indian Penal Code

The act of being homosexual in India is not a criminal offence, but sexual acts between those of the same sex was illegal until 2018. In September of 2018, the Indian Supreme Court overturned a law that has been in place since India was under British rule in the 1860s. Section 377 of the Indian Penal Code deemed gay sex to be and “unnatural offence”, which was punishable by law. Harsh penalties would be imposed on those who has “carnal intercourse against the order of nature”. By overturning this old ruling, the Indian government began to show their acceptance for the LGBT community and their importance in society. This colonial-era law however does not set the LBGT community free quite yet. India has several other anti-gay laws that are oppressive and hinder the lives of people daily. Section 377 does however, allows LGBT people to show affection to one another without the fear of being reported or caught by authorities. Following the 2018 overruling of Section 377, protestors took to the streets around India to celebrate the victory. One protestor described feeling “caged” when Section 377 was still in the Penal Code, but now feels liberated.

Protestors celebrating the overruling of Section 377 of the Indian Penal Code in 2018

Same-Sex Relationships

Same-sex relationships are not legal in India. Despite same-sex relationships not being legal, people have taken their relationships to court in order to be granted special marriage permission. Although there are many same-sex court cases currently pending in India courts, a handful of same-sex couples have been granted the permission to get married legally. In July of 2011, one lesbian couple was granted the permission to get married. After much discussion the court ruled that, “although they are both female, they have legally married and their marriage is recognized as valid because they fulfill the legal requirements for a legal marriage”. There are other cases of same-sex marriage being granted to other couples, but they are few.

Despite the discrimination against homosexuals in the modern-day Indian culture, the religion of Hinduism is both accepting and inclusive of homosexuals. The traditional practice of Hinduism is accepting for same-sex couples and those who did not conform to the traditional gender norms. The Christian views imposed by British colonizers is the main reason for the modern-day discrimination against LBGT people. Because of this imposition, the Indian laws are still discriminatory and not inclusive of same-sex couples.  

Transgender and Third Gender People in India

India’s transgender population, estimated at over 500,000 people, continues to struggle with being legally recognized by the India government. The transgender people in India struggle with everyday discrimination and stigma, restricted access to schooling leading them to have fewer opportunities. Due to there being hardly any laws that protect the transgender community from facing discrimination, their access to legal aid and other social services is very limited. The word “Hijra” in the Indian language has often been used to describe transgender people in a derogatory way. “Hijra” refers to someone being incompetent or ineffective in the way in which they present themselves.

After centuries of not being legally recognized as people, in April 2014 The Supreme Court of India stated that one’s sexual orientation is an “integral part of personality, dignity, and freedom”. In addition, they added that they identify transgender people as a “third gender”. This recognition allowed for the Indian transgender community to start being accepted and to hopefully eventually be protected by law. When conducting census data, the Indian government has included the gender option of “other”. This gives transgender people the option of choosing to identify as a gender that is neither male or female.

Transgender activists fight for the right to express their gender as they wish

The health issues concerning transgender people is at the height of advocacy debates. Although transgender people may be recognized as a third gender in India, their health coverage is limited. Due to their constant social isolation, transgender people fear engaging in disease prevention activities and seeking assistance for health matters. Their access to proper health care is limited, including access to proper sexual health and contraceptive measures.

Public Opinion

Despite the celebrations following the removal of Section 337 in the Indian Penal Code, public opinion of LGBT rights remains very divided within the country. The views of homosexuality have become less rigid over the years, allowing for greater acceptance among the non-LGBT community. In a survey conducted by The World Values Survey (WVS), they reported that Indian who believed “homosexuality is never justifiable” fell form 89% to 24% in 2014. As countries around the world have become more accepting of LGBT people, the laws in conservative countries are having to catch up to match public opinion. As 30% of Indians reported being supportive of homosexuality in 2014, Indian policy makers are beginning to recognize this significance. The younger generations in India seem to be the majority of LGBT supporters, as they move away from conservative and strictly religious views.

This table shows the increasing rate of homosexuality in various countries including India

Although public opinion can sway government decisions, it cannot dictate constitutional rights. Following the removal of Section 377, the Indian Solicitor General stated that the ruling of Section 377 will be the last of LGBT changes made in Indian law. The government does not wish to venture into other areas like same-sex marriage, adoption, surrogacy and basic rights for LGBT people.