LGBTQ AI and Its Legal Recognition in India

Abstract

India has seen landmark judicial advances for LGBTQAI rights. In 2014, the Supreme Court’s NALSA ruling affirmed transgender persons’ right to self-identify and equal fundamental rights. In 2018, Navtej Singh Johar v. UoI struck down the colonial-era Section 377 law, decriminalizing consensual same-sex relations. However, significant gaps remain: in October 2023 the Supreme Court explicitly refused to legalize same-sex marriage (deferring the issue to Parliament). Scholars and rights groups note that discrimination and legal exclusions persist, and have called for comprehensive anti-discrimination laws on sexual orientation and gender identity. This paper reviews India’s LGBTQAI legal framework – key cases, statutes, and policies – analyzes their impact and shortcomings, and (briefly) compares India’s approach with other jurisdictions. Key findings highlight progress on decriminalization and transgender recognition, but continuing exclusions in marriage, partnership and anti-discrimination protections. The paper concludes with recommendations for legislative and policy reforms to strengthen LGBTQAI equality in India.

Introduction

The acronym LGBTQAI encompasses a spectrum of sexual orientations and gender identities (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Asexual, Intersex, etc.), reflecting diverse communities that have historically faced stigma. India’s legal history on these issues is deeply influenced by colonial-era laws: Section 377 of the Indian Penal Code (IPC 1860), introduced by the British, criminalized “carnal intercourse against the order of nature”. For much of India’s post-independence history, LGBTQAI issues received little legislative attention. Only in recent years have courts and policymakers begun addressing these rights. Notably, judges have characterized Section 377 as an “anachronistic colonial law” inconsistent with modern human rights norms. At the same time, India has not enacted comprehensive laws to protect LGBTQAI individuals or to recognize same-sex unions. This research examines the current status of legal recognition for LGBTQAI people in India: it reviews major case law and statutes, analyzes how effectively rights are protected, and identifies gaps. The objective is to understand India’s evolving legal framework for LGBTQAI rights and to suggest reforms in light of comparative developments abroad.

Literature Review 

Constitutional Rights and Key Court Judgments: In landmark cases, the Indian Supreme Court has progressively recognized LGBTQAI rights under the Constitution. In National Legal Services Authority (NALSA) v. Union of India (2014), the Court declared transgender persons a “third gender” and affirmed that they enjoy the same fundamental rights (e.g. equality and dignity) as other citizens. It explicitly endorsed the right of each person to self-identify their gender as male, female, or third gender. Building on Puttaswamy (2017) (right to privacy), in Navtej Singh Johar v. Union of India (2018) a five-judge bench unanimously struck down the portion of Section 377 that criminalized consensual same-sex relations between adults. The Court held that sexual orientation is an intrinsic part of identity and that Section 377 violated Articles 14, 15, 19 and 21 of the Constitution by discriminating against LGBT people and infringing their autonomy, dignity and privacy. Earlier, in Naz Foundation (2009), the Delhi High Court had decriminalized adult same-sex relations (overturned in 2013’s Suresh Koushal); Johar ultimately overruled Koushal, rejecting its “minuscule minority” rationale. In essence, the Court now recognizes that LGBT individuals are entitled to equal citizenship and constitutional protections.

The judiciary has also emphasized societal change. Justice Chandrachud called Section 377 an “anachronistic colonial law” that marginalized a class of citizens. Justices writing in Johar urged that the Court’s decision be widely publicized and that government officials (especially police) receive sensitization training to reduce stigma. Notably, Johar judges cited the Mental Healthcare Act 2017, which explicitly removed homosexuality from the list of mental illnesses, reinforcing that sexual orientation is not a “disease” but a normal variation of identity. These cases collectively form the core of India’s queer rights jurisprudence, recognizing fundamental freedoms while framing further action.

Legislative Acts and Policies: Indian law has also seen some legislative attention to LGBTQAI issues, especially concerning gender identity. After NALSA, Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019 (effective Jan 2020). This Act broadly defines “transgender person” to include transmen, transwomen, intersex, hijras and genderqueer individuals. It bans discrimination on the basis of transgender status in education, employment, healthcare and other spheres. The Act creates a procedure for issuing a “Certificate of Identity” through a District Magistrate, whereby a person’s self-perceived gender may be legally recognized. (Under the related 2020 Rules, both transgender and intersex persons can obtain such certificates) The government press release emphasizes these reforms, noting that the Trans Act “ensures legal recognition” and “prohibits discrimination” for transgender persons. It also highlights welfare initiatives (e.g. the SMILE scheme and TG Plus health coverage) designed to support transgender livelihood and healthcare.

However, many other laws remain binary or exclusionary. Marriage statutes do not recognize same-sex unions. For example, the Special Marriage Act, 1954 explicitly defines marriage as between a “male” and a “female”. Petitioners challenging this noted that Section 4(c) of the Act – along with similar provisions in the Hindu Marriage Act (1955) and others – denies all matrimonial rights (adoption, succession, spousal benefits, etc.) to same-sex couples. No national law provides for civil unions or partnerships for queer couples. Adoption laws allow single individuals to adopt, but since same-sex couples cannot legally marry, they have no joint rights to adopt as spouses. In sum, the statutory framework still treats marriage, adoption, and family benefits as inherently heterosexual institutions.

Discrimination and Reports: Several human rights reports document ongoing discrimination despite legal changes. A Human Rights Watch survey in Indian schools found that LGBTQ youth face pervasive bullying and neglect by authorities. UNESCO likewise reported that a vast majority of sexual minority students are bullied: one study found 84% of respondents had been harassed at school. The International Commission of Jurists (ICJ) launched a major 2019 report (Living with Dignity) documenting discrimination in housing, employment and public services. It catalogued instances of landlords evicting queer tenants, employers firing LGBT employees, and police abuse in public spaces. Crucially, the ICJ noted that even after NALSA and Johar, India has “not consistently met its constitutional and international obligations to guarantee the rights of LGBTQ persons”. The report recommends broad reforms, including a comprehensive national anti-discrimination law explicitly prohibiting bias on grounds of sexual orientation and gender identity. These scholarly and NGO sources underscore that legal victories have not fully translated into social equality; they frame the challenges that India still faces.

Analysis and Discussion

Despite the progress noted above, significant gaps and challenges remain in India’s recognition of LGBTQAI rights. Societal stigma and structural barriers persist. As one analysis warns, “while legal changes are an important step, much more is needed for LGBT people in India to be able to live without discrimination and with dignity”. For example, transgender people still struggle with finding jobs or housing, even with the Trans Act in place. The 2019 ICJ report details how, in many cases, neither employers nor landlords comply with anti-discrimination provisions – in part because India lacks a specific mechanism to enforce non-discrimination based on sexual orientation or gender identity. Schools similarly fail to protect queer students: many report suspension or “conversion” therapy rather than support. These realities show that de jure rights have outpaced de facto change.

The Transgender Persons Act 2019 itself has been critiqued by activists for not fully implementing NALSA. The requirement of obtaining a government-issued certificate to change legal gender, though streamlined by later rules, is seen as bureaucratic. Many transgender people and experts argue for easier self-declaration procedures, pointing out that NALSA emphasized a person’s right to self-identify without medical or official gatekeeping. Nonetheless, the Act does mark a shift: it explicitly forbids discrimination against trans (and intersex) persons in education, employment, healthcare, and residency. Continued government initiatives – such as setting up a National Council for Transgender Persons and launching welfare programs (the “SMILE” scheme, transgender health insurance, etc.) – reflect an evolving policy environment. However, enforcement of these policies at the local level is uneven, and many transgender individuals still face social prejudice, violence, and family rejection, factors which legal remedies alone cannot instantly remove.

A major unresolved issue is the legal status of same-sex couples and families. The Supreme Court’s October 2023 decision (a 3:2 verdict) emphatically ruled that the constitution does not guarantee a fundamental right to same-sex marriage. The Court held that legislatures, not the judiciary, must decide whether to extend marriage rights to queer couples. As a result, same-sex couples remain in a legal limbo: they cannot legally marry, adopt jointly, or access spousal benefits like medical leave or inheritance. Petitioners had underscored these practical consequences – for example, Section 4(c) of the Special Marriage Act (1954) excludes them from adoption and surrogacy benefits – but the Court stopped short of providing relief. Observers have called this a “historic missed opportunity”. Amnesty International noted that while the Court’s deferral to Parliament avoids exacerbating the deficit, it underscores that many discriminatory laws must still be “reformed” by elected officials.

In comparative perspective, India lags behind some peers but is not an outlier globally. Only a minority of countries (around 38 as of 2024) legally permit same-sex marriage. In that sense, India’s restraint on marriage equality reflects the global status quo. However, other democracies have moved further: for example, countries like the United States, Canada, and much of Western Europe have enshrined marriage equality and broad anti-discrimination protections. In Asia, Taiwan legalized same-sex marriage in 2019, and Nepal’s Supreme Court (in Sunil Pant v. Nepal, 2007) granted legal gender recognition for transgender citizens. These examples show that legislative action can follow judicial or activist pressure. The Indian Supreme Court itself has signaled awareness of the contrast, remarking that it is for Parliament to enact laws ensuring LGBTQ inclusion.

Findings and Observations

• Decriminalization but not equality: The courts have effectively decriminalized homosexuality and recognized transgender identities, which is a major advancement. Yet, basic legal equality is incomplete. The lack of marriage equality, absence of a national anti-discrimination law for LGB people, and continued social stigma highlight this incompleteness.
• Legalizing gender identity vs. same-sex unions: Transgender individuals have statutory recognition (following NALSA), whereas same-sex couples have no formal status. This dichotomy creates confusing and inconsistent rights: for example, a transgender person can change official documents, but a gay couple cannot enter into marriage.
• Legislative inertia: Despite clear judicial signals, Parliament and state legislatures have not enacted comprehensive reforms. Proposed bills (e.g. to allow civil unions or same-sex marriage) have stalled. Activists have repeatedly urged legislative action, but successive governments have been reluctant, often framing it as a social or cultural question.
• Role of policy and society: Multiple reports (UNESCO, ICJ, NGOs) point out that law alone is insufficient. Schools still lack inclusive curricula, and police often harass LGBT persons. The Supreme Court itself has called for curriculum updates and sensitization training. This suggests that non-legal measures (education, training, awareness) must accompany reforms to change attitudes and enforce rights.
• Global context: On an international scale, India’s progress is mixed. Its highest court’s rulings on privacy and equality have drawn international praise, yet its refusal to recognize same-sex marriage makes it one of the few democracies that have declined such recognition. The global trend, however, shows slow but steady extension of rights; India’s courts have noted this context when urging legislative updates.

Conclusion 

In conclusion, India has taken important but partial steps toward legal recognition of LGBTQAI individuals. The judiciary has invalidated archaic laws and affirmed basic rights, notably decriminalizing gay sex and empowering transgender self-identification. Government policy has likewise begun addressing the needs of transgender people through the 2019 Act and welfare schemes. However, significant work remains. Same-sex couples have no marital or adoption rights under current law, and queer individuals (apart from transgender persons) are not explicitly shielded by anti-discrimination statutes.

To improve the situation, we recommend:

• Legislative reform: Parliament should enact a comprehensive non-discrimination law covering sexual orientation, gender identity, and intersex status – as recommended by experts. This law should apply to both public and private sectors, outlawing harassment or unequal treatment.
• Consider legal recognition of partnerships: Whether by amending the Special Marriage Act or a new statute, India should create a legal framework (marriage or civil unions) that grants basic rights to same-sex couples. Judicial pronouncements aside, as one commentator put it, it is now incumbent on the legislature to “review existing legal framework, repeal discriminatory laws, and address other gaps”.
• Enforce and expand transgender rights: The Transgender Persons Act should be effectively implemented, ensuring accessible identity certification and strict enforcement of its anti-discrimination provisions. The government should also issue clear guidelines to all state agencies (schools, hospitals, police) to comply with NALSA and Johar.
• Educational and social measures: Amend education and civic laws to be gender-inclusive: school curricula should cover gender diversity, and forms/census should allow more than two options. Police, teachers, and medical staff should undergo sensitivity training to reduce stigma and safeguard rights. Public awareness campaigns can help change social attitudes over time.
• Engage in public consultation: Any reforms should involve consultation with LGBTQAI communities. Civil society groups have urged that policy-making be participatory, to reflect the needs of the people affected.

These steps, alongside continued judicial vigilance, would move India closer to truly guaranteeing dignity and equality for all its citizens, regardless of their sexual orientation or gender identity.

Reference(S):

• Human Rights Watch, “Section 377 is History but Young LGBT Indians Need Concrete Policies…” (24 Jun 2019).
• International Commission of Jurists (ICJ), “India: Government must implement NALSA judgment and protect transgender people” (Analysis Brief, 2016).
• International Commission of Jurists, “India: Supreme Court decision ending criminalization of consensual same-sex relationships…” (News, 6 Sep 2018).
• International Commission of Jurists, “India: LGBTQ persons face discrimination in housing, work and public spaces…” (Report launch, 8 Jun 2019).
• Supreme Court Observer (India), “Plain English Summary of Johar (2018)”, 6 Sep 2018.
• Supreme Court Observer (India), “Plea for Marriage Equality”, detailing petitions and 2023 hearing (updated Jul 2024).
• Government of India, Press Information Bureau, “Rights of Transgender Persons in India” (Press Release, 19 Nov 2025).
• UNESCO and ICJ, “Educational and training opportunities denied to LGBTQ due to bullying…” (report excerpt).
• Amnesty International, “India: Failure to legalise same-sex marriage a ‘setback’…” (Press Release, 17 Oct 2023).
• Washington Blade, “Indian Supreme Court rejects marriage equality ruling appeals” (14 Jan 2025).
• Douglas Sanders, “377 and the Unnatural Afterlife of British Colonialism in Asia” (2008).
• Equal Dex, “Same-sex marriage is legal in only 38 countries” (Online Factsheet, accessed 2024)