Authored By: Sainoor Nayab
Galgotias University
Abstract
This article looks at the changing legal situation of LGBTQ+ rights in India. It would trace how the community has moved from being ignored and discriminated against to gaining some recognition through supreme court judgement like, Naz Foundation, NALSA, Navtej Singh Johar, and Puttaswamy[1]. These cases supported the right to dignity, equality, and privacy. Even though many legal protections such as, same Sex marriage, adoption rights, and anti- discrimination laws are still missing. The community also faces problems like police abuse, social stigma and lack of support for non binary people. The article further focuses on the stronger laws based on equality and respect for all LGBTQ+ individuals.
Introduction
The journey of LGBTQ+ rights in India has changed greatly over the past few years. For a very long time, LGBTQ+ People faced deep discrimination, social, rejection, and harsh laws like section 377 of the Indian penal code, which made same sex relationship a crime. This law not only made people feel invisible and unsafe, but also added to the stigma and took away their rights to live freely and with respect.
The change began from the year 2010, when supreme court of India started to recognize the right of LGBTQ+ citizens. The judgements confirmed that everyone deserves privacy, dignity, and equal treatment. The following steps helped to create a more open discussion about LGBTQ+ right in the country.
- Historical Context and Evolution of LGBTQ+ Laws in India
- Colonial Criminalization under Section 377 IPC
The legal journey of LGBTQ+ right in India has been a long and complex shaped by colonial laws, social taboos, and recent constitutional developments, one of the earliest and most significant hurdles was section 377 of IPC, introduced by British in 1860. This law criminalized what it called “carnal intercourse against the order of the nature”, which included consensual same sex relationships. Even though this section was rarely used to prosecute people in modern times, it gave the police and others the power to prosecute people in modern times, it gave the police and others the power to harass, threaten, and blackmail LGBTQ+ individuals. It also reinforced stigma and social exclusion making it difficult for people to live openly.
- Emergence of LGBTQ+ Activism in India
From the year, 1990s, LGBTQ+ activism began to gain momentum in India. Cities like Delhi, Mumbai, Bangalore Saw the rise of queer movements. Organisations like the Naz Foundation and Humasafar Trust, along with academics and human rights activists, started advocating for legal reform and spreading awareness. Pride parades for queer literature, and films also played a major role in challenging traditional idea about gender and sexuality promoting visibility and acceptance.
- First Legal Challenge: Naz Foundation v. NCT of Delhi (2009)[2]
A major turning point come in year 2009, when the Delhi high court delivered a historic judgment in the case of Naz Foundation v. NCT of Delhi. The court read section 377 and declared that it involved fundamental rights guaranteed under the constitution like in Articles 14 (equality before the law), 15 (prohibition of discrimination), and 21 (right to life and personal liberty). It recognized the dignity and privacy of LGBTQ+ individuals was celebrated as a major victory. The progress was really short lived, in the case of Suresh Kumar v. Naz Foundation, the Hon’ble Supreme Court, overturned the Delhi High Court ruling and the court reinstated S. 377, stating that only parliament could change the law, and that LGBTQ+ people were a ‘Minuscule minority’. The said decision completely ignored human right and equality, but it gave spark to stronger activism and legal efforts that would eventually lead to more hopeful future for LGBTQ+ rights in India.
- Judicial Milestones in LGBTQ+ Jurisprudence
National Legal Services Authority (NALSA) v. Union of India (2014)
Just a year later, of the judgemnet passed in the case of Suresh Kumar Koushal v. Naz Foundation[3] (2013) the Supreme Court passed a more progressive and empathetic judgment in (NALSA) v. Union of India (2014)[4] This time, the Court addressed the rights of transgender persons, recognizing them as a distinct and dignified group deserving of constitutional protection.
The Court held that:
Transgender people have the right to self-identify their gender as male, female, or third gender.
They must be treated as socially and educationally backward, making them eligible for reservations in education and employment.
Government bodies must implement affirmative action policies and welfare schemes to protect their rights.
This was a historic moment because, for the first time, Indian law legally recognized a gender outside the male-female binary. The judgment affirmed that gender identity is deeply personal and cannot be imposed or denied by the state, For many transgender individuals, this was a recognition of their struggle to live with dignity, access education, find employment, and be treated as equals.
Navtej Singh Johar v. Union of India (2018)[5]
The fight for equality didn’t end with the Koushal judgment. After years of advocacy, and with the courage of LGBTQ+ petitioners from various walks of life including dancers, journalists, and students the Supreme Court revisited Section 377.
In said matter of five-judge Constitution Bench unanimously ruled that Section 377 was unconstitutional insofar as it criminalized consensual same-sex relations between adults.
The Court’s reasoning was powerful and heartfelt:
Article 14[6]: Section 377 arbitrarily discriminated against LGBTQ+ persons.
Article 15[7]: It encouraged discrimination based on sexual orientation.
Article 19[8]: It suppressed freedom of expression and identity.
Article 21[9]: It violated the right to privacy, dignity, and the freedom to love.
Justice D.Y. Chandrachud, in his concurring opinion, wrote:
“History owes an apology to the members of this community and their families, for the ignominy and ostracism they have suffered through the centuries.”
This judgment was not just about decriminalizing a law. It was about recognizing LGBTQ+ people as equal citizens, capable of love, choice, and freedom. It restored their place in the constitutional fabric of India.
- Current Legal Status and Gaps in LGBTQ+ Rights
3.1 Decriminalization but No Legal Recognition of Relationships[10]
In 2018, the Supreme Court’s Navtej Singh Johar[11] judgment decriminalized consensual same-sex relationships between adults. This was a massive victory and gave LGBTQ+ individuals the freedom to love without fear of going to jail. However, decriminalization is not the same as legal recognition.
Same-sex couples in India still do not have the right to marry, adopt children, or even register as a civil union. They cannot file taxes jointly, inherit property as spouses, or make medical decisions for each other in emergencies. Essentially, same-sex love is legal, but not equal in the eyes of the law. This creates real problems for queer couples who want to build a life together. They are forced to live in silence or lie about their relationship to landlords, employers, and even hospitals.
3.2 Transgender Persons (Protection of Rights) Act, 2019[12]
Movement when in year 2014, the NALSA judgment gave transgender individuals the right to self-identify and live with dignity. Following this, the government passed the Transgender Persons (Protection of Rights) Act, 2019. This law aims to protect transgender people from discrimination in education, employment, housing, and healthcare. But many activists and trans persons feel that this law fails to reflect the spirit of self-determination promised by the Supreme Court. For example, it requires transgender individuals to apply to a government committee for a certificate of identity. This process often feels intrusive and humiliating. Additionally, there are no strong penalties for discrimination, making the law weak in practice.
3.2 Absence of Comprehensive Anti-Discrimination Law[13]
One of the biggest gaps in LGBTQ+ rights in India is the lack of a national anti-discrimination law. Queer and trans people continue to face exclusion in schools, workplaces, hospitals, and even public spaces. There is no single law that clearly says discrimination based on gender identity or sexual orientation is illegal. Without legal protection, LGBTQ+ people are often forced to hide their identity to stay safe or employed. Real equality will only be possible when the law actively protects everyone’s right to live with dignity, without fear.
Challenges Facing the LGBTQ+ Community[14]
Even after, such important legal victories for LGBTQ+ people in India, their daily lives are still filled with fear, rejection, and struggle. Laws alone cannot bring change unless people’s attitudes also change.
- Social and Familial Exclusion
One of the first and deepest forms of rejection comes from one’s own family. Many LGBTQ+ individuals grow up hiding who they really are because they fear being thrown out of their homes or shamed by their loved ones. In traditional Indian society, families often expect their children to marry and follow gender roles that match what society considers “normal.” If someone comes out as gay, lesbian, bisexual, or transgender, they are often accused of bringing “shame” to the family.
As a result, countless young people are disowned, forced into conversion therapy, or pushed into marriages they don’t want. For many, home is not a place of love and safety—but a place of fear and silence. This emotional trauma can leave deep scars, leading to depression and even suicide in some cases.
- Police Violence and Legal Harassment
Despite the Supreme Court decriminalizing same-sex relationships in 2018, harassment by the police still continues in many parts of India. LGBTQ+ individuals, especially trans persons and queer people from poor or marginalized communities, are frequently targeted by the police under vague laws or on false accusations. Many trans women, for example, are stopped by the police, questioned without reason, or even beaten. Sex workers from the LGBTQ+ community are often arrested without cause. The fear of being publicly shamed or outed keeps many victims from filing complaints. For queer people, the police who are supposed to protect are regularly a source of trauma.
- Healthcare Discrimination[15]
Accessing basic healthcare is a major challenge for LGBTQ+ individuals. Many doctors and hospital staff are not sensitized to the needs of queer and trans patients. People are often judged, mocked, or mistreated when they reveal their gender identity or sexual orientation.
Trans persons face extra hurdles when trying to get hormone therapy, gender-affirming surgeries, or even something as basic as health insurance. Medical professionals often lack training in LGBTQ+ health issues, leading to poor or even dangerous treatment. Fear of being judged keeps many LGBTQ+ people from seeking care until it’s absolutely necessary which only makes their health worse.
Recent Legal Developments and Policy Initiatives[16]
- Same-Sex Marriage Litigation (2020–2023)[17]
One of the biggest recent legal movements has been the fight for the recognition of same-sex marriage. After the 2018 judgment in Navtej Singh Johar v. Union of India, which decriminalized homosexuality, LGBTQ+ activists and couples began to push for the next big step: the right to marry. Between 2020 and 2023, several petitions were filed in High Courts and eventually brought before the Supreme Court of India.[18] The petitioners argued that the right to marry a person of one’s choice is part of the fundamental right to life, dignity, and equality under Article 21 of the Constitution. The hearings saw emotional testimonies from same-sex couples who had lived together for years but were denied basic rights like joint bank accounts, health insurance, or the ability to make medical decisions for their partner because they weren’t legally recognized. In October 2023, the Supreme Court delivered its verdict. While the Court did not legalize same-sex marriage,[19] it made some important observations. The Bench acknowledged that queer relationships deserve dignity and recognition. The Court directed the government to consider forming a committee to examine the rights and entitlements of same-sex couples, like inheritance, pensions, and adoption, Though disappointing for many, this decision also left the door open for future progress.
Supriyo Chakraborty & Anr. v. Union of India (2023)[20]
- Madras High Court Guidelines (2021)
In June 2021, a significant and compassionate judgment came from the Madras High Court in the case of Sushma v. Commissioner of Police[21] The case involved a lesbian couple who had faced harassment from their families and the police. Justice Anand Venkatesh, who heard the case, took an unusual but admirable approach he admitted that he needed to educate himself about LGBTQ+ issues before giving a ruling. He even attended sessions with psychologists and queer rights activists to better understand the lived experiences of queer individuals.
The final judgment was path-breaking. The court issued a set of progressive guidelines for protecting LGBTQ+ individuals from harassment. These basically included:
Sensitization programs for police officers, judges, teachers, and healthcare workers
Banning conversion therapy, a dangerous and unscientific practice that attempts to change someone’s sexual orientation
Protection of queer couples from violence, abduction, and forced marriages. The following judgment showed how empathy and education can lead to real, human-centered justice.
- Corporate and State Initiatives[22]
Many private companies in India especially in cities like Bengaluru, Mumbai, and Delhi have begun to create LGBTQ+ inclusive workplaces.
Adding same-sex partners to health insurance policies
Creating gender-neutral bathrooms
Setting up employee resource groups (ERGs) for queer employees
Offering counseling support and anti-discrimination training. The Companies like Tata Steel, Godrej, Accenture, and IBM India have become role models in creating safer and more welcoming spaces for LGBTQ+ employees.
Some state governments have also stepped up, like
Kerala launched a Transgender Policy in 2015 and opened India’s first transgender school.
Tamil Nadu has appointed transgender welfare officers and supported skill development programs.
Delhi has started offering free gender-affirming surgeries in government hospitals.
These steps may seem small, but they go a long way in recognizing and respecting queer individuals in everyday life.
Roadmap for Legal and Policy Reforms
To ensure true equality for the LGBTQ+ community in India, we need a clear and inclusive roadmap for legal and policy reforms. One of the most important steps is granting marriage equality and family rights to same-sex couples. While homosexuality is no longer a crime, same-sex couples still can’t legally marry, adopt children together, or inherit property as a family unit. Marriage equality is not just about a wedding ceremony it’s about giving LGBTQ+ people access to the same legal protections and benefits as everyone else. There is a pressing need for a comprehensive anti-discrimination law that protects people from being treated unfairly in schools, workplaces, housing, healthcare, and public services just because of their sexual orientation or gender identity. Today, many LGBTQ+ individuals still face rejection and violence in their own families, bullying in schools, and discrimination in offices, with no legal protection to fall back on. This needs to change through strong, enforceable laws. Equally important is transgender rights reform. Although the Transgender Persons (Protection of Rights) Act, 2019 was a step forward, it has serious gaps. The law makes it hard for trans people to self-identify their gender without going through medical procedures or bureaucratic hurdles. We need reforms that fully respect the right to self-identification, ensure easier access to gender-affirming healthcare, and guarantee reservations in education and jobs. But legal changes alone aren’t enough. There must be large-scale sensitization and education efforts starting from schools to government offices, police stations, hospitals, and even workplaces. When people are taught to understand and accept differences, they are less likely to discriminate. Gender and sexuality education should be part of school curriculums in an age-appropriate way to create a more open-minded next generation. Last but not the least, access to healthcare and employment must be improved. LGBTQ+ people often avoid hospitals due to fear of mistreatment or ridicule. Transgender persons, in particular, struggle to access safe and affordable gender-affirming surgeries and mental healthcare. A strong push is needed to train medical professionals and provide inclusive healthcare. Similarly, employment policies in both government and private sectors must actively encourage diversity and inclusion. Government schemes like skill development, housing, and social welfare should explicitly include LGBTQ+ persons.
Conclusion
India’s journey on LGBTQ+ rights has come a long way from criminalizing same-sex relations to recognizing dignity and equality in court rulings. But many rights still don’t exist in daily life due to a lack of strong laws. To bring real change, we need laws that protect all LGBTQ+ people from discrimination, allow legal gender changes based on self-identity, and support access to healthcare, education, and jobs without bias. Our Constitution stands for dignity and freedom, and now our laws must do the same. True equality means full inclusion, where everyone can live with pride, safety, and respect, no matter who they are.
Reference(S):
[1] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[2] Naz Foundation v. NCT of Delhi, (2009) 160 DLT 277 (Del.).
[3] Suresh Kumar Koushal v. Naz Foundation, (2013) 1 SCC 748.
[4] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
[5] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[6] India Const. art. 14
[7] India Const. art. 15.
[8] India Const. art. 19
[9] India Const. art. 21
[10] Anjana Vasan, Transgender Rights in India: A Critique of the Transgender Persons (Protection of Rights) Act, 2019, 9 Indian J. Const. L. 1 (2020)
[11] Danish Sheikh, The Road to Navtej: Litigating India’s Anti-Sodomy Law, 14 NUJS L. Rev. 1 (2021)
[12] Transgender Persons (Protection of Rights) Act, No. 40 of 2019, § 3, India Code (2019)
[13] Anti-Discrimination and Equality Bill, 2016, introduced by Shashi Tharoor in Lok Sabha (not passed)
[14] Arvind Narrain, Queer Rights in India: A Litigious Struggle, 6 Soc. & Legal Stud. 165 (2014)
[15] Epidemic Diseases (Amendment) Ordinance, No. 5 of 2020, Gazette of India, pt. II, sec. 1 (Apr. 22, 2020)
[16] Ministry of Social Justice & Empowerment, National Portal for Transgender Persons, https://transgender.dosje.gov.in.
[17] Aranya Shankar, Delhi HC Hears Plea for Recognizing Same-Sex Marriage Under Hindu Marriage Act, Indian Express (Nov. 17, 2022), https://indianexpress.com
[18] Supreme Court of India, Judgments Database, https://main.sci.gov.in.
[19] Rishika Sadam, India’s Supreme Court Declines Legalizing Same-Sex Marriage, Reuters (Oct. 17, 2023), https://www.reuters.com
[20] Supriyo Chakraborty & Anr. v. Union of India, Writ Petition (Civil) No. 1011 of 2022
[21] Sushma v. Commissioner of Police, W.P. No. 7284 of 2021 (Madras HC).
[22] Ministry of Law & Justice, The Constitution of India, India.gov.in (last visited July 23rd, 2025), https://legislative.gov.in/constitution-of-india.
