Authored By: Tanvi Firodiya
ILS Law College
LGBTQIA is an acronym that stands for Lesbian,Gay, Bisexual, Transgender, Queer, Intersex and Asexual , representing a diverse community of people based on their sexual orientation and gender identity.The “+” sign at the end of variations like LGBTQ+ signifies other identities not explicitly included, such as pansexual or gender non-binary. The community has undergone a profound journey of legal battles, setbacks, and ultimately landmark victories through the Supreme Court of India.
Key legal milestones and the battles against section 377
The most defining struggle cantered on Section 377 of the Indian penal code (IPC), a colonial-era law introduced in 1867,which criminalised “carnal intercourse against the order of nature.” The British court criminalised the same marriage as it was against the nature defined as sexual activities.this vague and archaic law institutionalised pervasive governmental abuse, harassment, and imprisonment, allowing police, government officials, and local leaders “free reign to harass and discriminate” against the LGBTQ+ population, imposing criminal penalties of up to ten years in prison. The legal challenge to this provision saw a volatile back-and-forth between judicial authorities that underscored the fragility of constitutional progress.
The Naz Foundation Ruling and the Painful Reversal
The first significant success came with the Delhi High Court ruling in Naz Foundation v. Govt. of NCT of Delhi (2009). The Court held that consensual sex between adults, irrespective of gender, was protected under the Right to Life and Personal Liberty (Article 21), the Right to Equality (Article 14), and the Right to Non-Discrimination (Article 15) under the constitution. Thereby prohibiting discrimination on this basis and recognise the dignity and privacy of queer individuals. That moment of hope was brutally erased in 2013 by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation. Reverting to a literal reading of the colonial law, the court argued that Section 377 did not target any specific group but merely punished “carnal intercourse against the order of nature”. The judgement became infamous for its lack of judicial empathy. Activities left this ruling was more than just a legal setback; it denied the community their “existence as speaking subjects”, attempting to nullify the discourse of queer intimacy that had briefly entered the judicial imagination.
Navtej Singh Johar (2018): History’s Apology
The pinnacle of decades of struggle arrived on September 2018 with the unanimous verdict in the Navtej Singh Johar v. Union of India.The Supreme Court decisively ruled that applying Section 377 to consensual sexual conduct between adults of the same sex was unconstitutional. This judgment was a profound declaration that restored dignity. The Court recognised that the law was “irrational, arbitrary and manifestly unconstitutional”. It asserted that sexual orientation is an essential attribute of privacy, dignity, and personal autonomy guaranteed by Article 21, establishing that the right to privacy extends to “spatial and decisional privacy”. The judgement confirmed that queer citizens are entitled to equal citizenship, unshackled from the shadow of being ‘ unapprehended felons’. The court immediately mandated systemic changes, linking the repeal of the criminal law to the Right to Health (Article 21), noting that stigma forced queer individuals into closeted lives, hindering access to crucial healthcare. Most importantly, the Chief Justice directed the government to implement sensitisation training for police officials to curb institutional harassment and ensure the community’s safety.
NALSA (2014): The Mandate of Self-Determination
The fight for gender identity was still not achieved, it was in 2014 when the Supreme Court delivered a landmark ruling that the affirmed the rights of transgender people, establishing them as the “third gender” under the Constitution under the landmark case of National Legal Services Authority (NALSA) v. Union of India.This decision transformed the relationship between the state and the individual: legal gender recognition was now determined by the person’s identity, not by invasive medical or judicial authorisation, demanding that the state grant full legal recognition as male, female, or third gender.
The court also imposed a crucial positive state obligation, directing governments to treat transgender people as socially and educationally backward classes (SEBC) and implement affirmative action (reservation) in jobs and education to combat pervasive discrimination.
The Legislative Betrayal: The 2019 Act
While the Act was meant to enshrine these rights , its bureaucratic requirements created a painful hurdle: administrative gatekeeping that takes the power of identity away from the individual and hands it back to the state.The most contentious part, Section 7, states that while a person can get an identity certificate, a transgender person who wishes to change their gender from ‘transgender’ to ‘male’ or ‘female’ must submit a medical certificate to the District Magistrate (DM) after undergoing Sex Reassignment Surgery (SRS). This requirement fundamentally contradicts the core principle of self-identification established by the Supreme Court. It forces individuals to subject their deeply personal identity to administrative scrutiny and potentially undergo unwanted medical procedures, reducing an intrinsic right to a conditional status. Critics argue this statutory process severely dilutes the promise of self-determination.
Devaluing Trans Lives: Discriminatory Penalties
A further, shocking flaw in the 2019 Act is its provision for penalties concerning violence. Section 18(d) addresses abuse, including physical and sexual abuse, against transgender persons. However, the maximum punishment stipulated for these grievous crimes is only two years imprisonment.By assigning a lesser punishment for sexual abuse and violence against transgender persons, the law implicitly signals a lower protective value for transgender life and security, compounding existing prejudice.
Supriyo (2023): The Denial of the Home
The battle for institutional recognition of queer relationships reached a constitutional wall with the Supreme Court’s 2023 verdict in Supriyo v. Union of India. T which Justice P.S. Narasimha clarified that while love and partnership are fundamental freedoms, marriage is a “publicly created and administered institution” that the courts cannot compel the state to create.The denial of marriage equality, and a 3:2 majority refusal to allow same-sex couples to adopt, left many feeling relegated to being “second-class citizens,” regardless of judicial platitudes. Despite denying institutional marriage, the Supriyo verdict and parallel High Court actions carved out crucial protections. Despite denying institutional marriage, the Supriyo verdict and parallel High Court actions carved out crucial protections. First, the court unanimously confirmed that transgender persons in heterosexual relationships are fully entitled to marry under existing laws.Second, the Chief Justice issued strong directives to law enforcement, specifically aimed at ending violence and harassment against queer couples. These include mandatory police protection for queer persons facing violence from their families, upholding their freedom of movement, and requiring preliminary investigation before registering an FIR against them . This highlights that even for their personal safety, queer couples often require direct judicial intervention against institutional prejudice.
Finding protection in “Chosen Families”
In parallel, High Courts are moving forward, notably the Madras High Court, which recognized the concept of “chosen families”. This decision challenges the traditional, narrow definition of family, confirming that individuals have the right to build their lives and that this choice deserves protection, regardless of sexual orientation or gender.
Policy Apathy: The Broken Promises of Implementation
The striking legal achievements contrast sharply with the systemic failure to translate those rights into lived reality. This failure is defined by a “gross apathy” from both central and state governments .Years after NALSA and Johar, the LGBTQIA+ community continues to face acute barriers in healthcare, employment, and justice delivery. This goes beyond mere social stigma; it is structural. In the Jane Kaushik v. Union of India (2025) judgment, the Supreme Court expressed dismay that most state governments had failed to enforce welfare schemes. The lack of functional Transgender Welfare Boards and effective grievance redressal cells leaves victims without any institutional means to remedy rights violations .The reality of discrimination is deeply personal. Reports show that queer litigants and witnesses have faced ridicule and laughter inside court premises, even from judicial magistrates. This pervasive prejudice within the justice system itself underscores that a change in law is meaningless without a fundamental change in institutional attitude.
The Path Ahead: Mandatory Sensitisation and Reform
Courts recognise that simply deleting discriminatory laws is insufficient. Healing requires compulsory institutional education and policy change.The Madras High Court, for instance, has issued comprehensive guidelines mandating sensitization training for government authorities, requiring fundamental changes to HR policies for workplace inclusivity, and explicitly prohibiting discrimination based on sexual orientation. It emphasized the need for a unified, comprehensive policy for the entire LGBTQIA+ community, rather than fragmented policies for subgroups. In healthcare, progress is seen with schemes like Ayushman Bharat TG Plus, which explicitly covers gender-affirming surgeries, signaling a governmental step towards health inclusivity. Furthermore, universities, guided by regulations, are directed to ensure anti-sexual harassment committees are sensitive to the vulnerabilities of students based on “sexual orientation”. These directives confirm that dignity can only be secured when entrenched prejudice is actively dismantled.
Conclusion: The Final Arc of Justice
In conclusion, the legal history of LGBTQIA+ rights in India is a story of two forces: a visionary judiciary that granted freedom and identity, and an apathetic executive/legislature that has been slow to grant the security of family and opportunity. The legal battle for survival has been largely won; the struggle now is for substantive equality.The Supreme Court’s decision in Supriyo was a deeply disappointing reminder that true liberation cannot be won by judicial fiat alone. It has shifted the responsibility squarely onto Parliament to create legal recognition, validity, and inclusion. The next chapter in this fight demands immediate legislative action: enacting a secular Civil Union Act to secure foundational family rights, rectifying the punitive flaws in the 2019 Transgender Act , and enforcing mandatory affirmative action (reservation) across the nation as promised in NALSA.The legal foundation for dignity is set; the ultimate goal is for the Executive to build the home. Only when the state translates constitutional rights into policies that protect, include, and value every queer citizen equally will the promise of the Constitution be truly fulfilled.
Reference(S):
- Naz Foundation vs. Govt. of NCT of Delhi ,160 (2009) DLT 277
- Suresh Kumar Koushal vs. Naz Foundation, AIR 2014 SC 563 (2013)
- National Legal Services Authority (NALSA) vs. Union of India 5 SCC 438 or AIR 2014 SC 1863 (2014)
- Navtej Singh Johar vs. Union of India 10 SCC 1 (2018)
- Supriyo @ Supriya Chakraborty & Anr. vs. Union of India INSC 920 (2023) • Citation: 160 (2009) DLT 277
The striking legal achievements contrast sharply with the systemic failure to translate those rights into lived reality. This failure is defined by a “gross apathy” from both central and state governments .
First, the court unanimously confirmed that transgender persons in heterosexual relationships are fully entitled to marry under existing laws.
Second, the Chief Justice issued strong directives to law enforcement, specifically aimed at ending violence and harassment against queer couples. These include mandatory police protection for queer persons facing violence from their families, upholding their freedom of movement, and requiring preliminary investigation before registering an FIR against them . This highlights that even for their personal safety, queer couples often require direct judicial intervention against institutional prejudice.
III.III. Devaluing Trans Lives: Discriminatory Penalties
A further, shocking flaw in the 2019 Act is its provision for penalties concerning violence. Section 18(d) addresses abuse, including physical and sexual abuse, against transgender persons. However, the maximum punishment stipulated for these grievous crimes is only two years imprisonment.
This requirement fundamentally contradicts the core principle of self-identification established by the Supreme Court. It forces individuals to subject their deeply personal identity to administrative scrutiny and potentially undergo unwanted medical procedures, reducing an intrinsic right to a conditional status. Critics argue this statutory process severely dilutes the promise of self determination.
The court also imposed a crucial positive state obligation, directing governments to treat transgender people as socially and educationally backward classes (SEBC) and implement affirmative action (reservation) in jobs and education to combat pervasive discrimination.
