I.

The Need for Comprehensive Legal Protections for the LGBTQ

Community in India

II. Introduction
The recent decriminalization of Section 377 has marked a significant milestone in the
ongoing struggle for LGBTQ rights, yet it raises critical questions regarding the
effectiveness of subsequent legislative and policy measures in safeguarding these rights.
While the repeal of this antiquated law has been hailed as a progressive step towards
equality, the reality remains that legal recognition alone does not guarantee protection from
discrimination, violence, or social stigmatization. Thus, the discourse must shift towards a
more comprehensive examination of the frameworks necessary to support the marginalized
LGBTQ community fully. Without substantial legislation that directly addresses issues such
as hate crimes, workplace discrimination, and access to healthcare, the promise of equality
may remain an empty gesture. The journey towards true equality and inclusion
for the LGBTQ community in India is far from over, and continued
advocacy and action are necessary to address the persistent societal
stigma and discrimination they face.

Overview of Section 377 and its decriminalisation

Before getting into the historical context of Section 377, we need to
understand the term LGBTQ i.e. Lesbian, Gay, Bisexual, Transgender, and
Queer.
Lesbian: - A woman who is sexually attracted to another woman is referred to as a lesbian.
Gay: - A gay is a man who is attracted to another man sexually.
Bisexual: - A bisexual person is someone who experiences sexual attraction to individuals of
both sexes.
Transgender: -Those whose gender identity and gender expression diverge from those
typically linked with their biological sex are referred to as transgender.
Queer: - The term "queer" is used to describe sexual orientations and gender identities that
fall outside of the heterosexual and cisgender categories.

The historical context of Section 377 of the Indian Penal Code

underscores the complexities
surrounding its decriminalisation. Initially enacted in 1860, Section 377
criminalised
“carnal acts against the order of nature” and was used to persecute
individuals for
consensual same-sex relations. Transgender persons are persons whose gender
identity or gender expression does not conform to their biological sex. In India,
“Transgender” is
often used as an umbrella term to include intersex persons and also several identities
including Hijras, Kothis, Aravanis, Jogappas, Shiv- Shakthis etc. Despite all these
legislations that criminalized transgender persons, there was no mass transgender rights
movement in the country that challenged these laws or fought against them. The real legal

Page 1 of 18
battle for LGBTI rights started in 2001 with a petition filed by Lawyers Collective on behalf
of Naz Foundation challenging the constitutionality of Section 377 in the Delhi High
Court. In 2004, the Delhi High Court declined to consider the petition, stating that the
petitioners lacked standing. Thereafter, the petitioners appealed to the Supreme Court and in
2006 the Supreme Court allowed the Petitioner to take up the PIL and sent it back to the
Delhi High Court to decide the case.

The decriminalisation of Section 377 of the Indian Penal Code marked a significant moment
in the fight for LGBTQ rights in India, as it officially ended the legal prohibition of
consensual same-sex relationships. This law, which had long been associated with societal
stigmatization and criminalization, was partially struck down by the Delhi High Court in
2009, only to be reinstated in 2013 by the Supreme Court in the judement Souresh Koushal
V. Union of India. All of this changed in 2014. In April 2014 a bench of Justices K.S.
Radhakrishnan and A.K. Sikri of the Supreme Court passed a judgment in National Legal
Services Authority v. Union of India (“NALSA”) holding that transgender persons have the
constitutional right to self-identify their gender identity as male, female or transgender even
without medical re-assignment and the right. In 2018, in the case of Navtej Singh Johar v.
Union of India, Section 377 of the Indian Penal Code, a colonial-era legislation that
criminalised "carnal intercourse against the order of nature," was read down and
homosexuality was decriminalized. No of their sexual orientation or gender identity, the
Supreme Court has finally recognized that every person has the right to freedom.

However, despite this legal victory, the question remains whether such decriminalisation
translates into meaningful protections for the LGBTQ community’s human rights. The need
for substantial legislation and concrete policies persists, as legal recognition alone does not
adequately address the lived realities of queer individuals facing societal discrimination and
interpersonal violence.

III.Current Legal Framework

The current legal framework impacting the LGBTQ community in India is a complex
interplay of recent advancements and persistent gaps. Following the decriminalization of
Section 377, there has been notable progress in recognizing LGBTQ rights; however,
systemic barriers and hierarchies remain evident. Activism, which gained momentum
from the late 1980s, has often prioritized issues that reflect the interests of more
privileged segments, thereby sidelining the needs of intersectional sexual subalterns. As
highlighted in scholarship, the historical dominance of neoliberal frameworks within
queer activism has shaped advocacy away from critical issues like the Transgender
Persons (Protection of Rights) Act, 2019, thereby perpetuating marginalization within the
community (Swakshadip Sarkar, 2024). Furthermore, the legal apparatus in India, while
supportive of collective rights, often fails to address specific vulnerabilities faced by
individuals, necessitating an inclusive legislative approach reminiscent of the United
Nations Convention on the Rights of Persons with Disabilities (Syed Ashfaq Hussain et
al., 2023).

Page 2 of 18
IV. Continued Discrimination and analysing of existing laws and their implication on the
community:
While the Supreme Court's landmark decision to decriminalize consensual
same-sex relations was a pivotal moment, the LGBTQ community in India
continues to face widespread societal discrimination and a glaring lack of
comprehensive legal protections. Activists and NGOs have reported
ongoing instances of violence, harassment, and denial of access to public
services and opportunities for LGBTQ individuals, highlighting the urgent
need for robust anti-discrimination laws and policies to safeguard their
rights and ensure their equal participation in all aspects of society.
Despite the historic ruling, the LGBTQ community still lacks the necessary
legal framework to effectively protect them from discrimination and
abuse, and more comprehensive legislation is required to address these
persistent challenges and promote true equality. The following are the main
issues LGBTQ individuals still encounter despite the legalising of homosexuality:
Positive discrimination and social exclusion:

Currently, LGBTQ people must deal with the unpleasant reality of social exclusion,
loneliness,
and identity seclusion. They experience marginalisation as a result of the LGBT community's
lack of acceptance. Due to their status as LGBTQ people, they are socially stigmatised and
not accepted for who they are.
Social media Bullying:

The attitudes of society are reflected in and influenced by social media. People who might
feel
weak, alone, or alone can benefit from social media by developing a sense of community.
Because of this, social media can serve as a haven for the numerous LGBT individuals who
endure harassment and prejudice daily.
LGBT individuals experience bullying, harassment, and mockery. Words that are
homophobic and transphobic are frequently used carelessly under the guise of "humour" or
"friendly bullying. Statements like, "Mithai ki dukaan pe 200 rupaye me bik jaayga." this
statement demonstrated how some people find it offensive to refer to someone as gay; not
only is it embarrassing, but it also diminishes the worth of a queer person's existence. These
videos provide a visual representation
of homophobic harassment and bullying.

Conflict and rejection caused by families' responses to LGBTQ people:

Many LGBTQ adults are hesitant to share their lives in public out of concern for rejection
and
Page 3 of 18
severe negative responses. Fighting and family disturbances caused by a lack of
communication and understanding of their gender identity can lead to the removal or forcible
eviction of LGBTQ youth from their home. Due to family tension, a large number of
LGBTQ adolescents wind up in juvenile jails, in foster care, or on the streets.

Educational Crisis: School Bullying

A 19-year-old guy recently committed suicide after experiencing bullying and mockery for
being homosexual. Bullying's negative impacts include depression, panic attacks,
homelessness, school drop-out, suicide attempt, etc. Youth who identify as LGBT are
marginalised by bullying and ragging and are more susceptible to social exclusion. A 2018
UNESCO report explained LGBTQ children experience significant bullying and
discrimination in schools,
colleges, and other settings, according to a 2018 UNESCO report. It frequently takes
people years to recover from this act of bullying and prejudice since it leaves a
lifelong scar on their lives.

While the Transgender Persons’ (Protection of Rights) Act, 2019 has made strides in
establishing shelter homes and skills training programs, it remains underfunded and lacks
robust government support, ultimately limiting its effectiveness in addressing homelessness
and poverty among transgender individuals. The Depressions with the bill include:

There are no rules relating to offering any scholarships, making any

accommodations, modifying the school curriculum to make it LGBT+ inclusive, or
making sure that the trans population has safe inclusive schools and workplaces.

The bill denies transgender people the freedom to choose their sexual orientation.
The bill states that the District Magistrate's certification of the sex reassignment
operation is required before the gender identity on documents can be changed.
Transgender people's autonomy and privacy are impacted by this, and they are also
at risk of harassment from the government.

V. Need for Comprehensive Anti-Discrimination Laws

The decriminalization of Section 377 in India marks a significant step towards enhancing LGBTQ rights;
however, this victory alone is insufficient for achieving lasting equality. Comprehensive anti-
discrimination laws are crucial for safeguarding these rights, as they provide a legal framework that
protects individuals from discrimination based on sexual orientation and gender identity. Such laws
create a societal environment where LGBTQ individuals can partake in various sectors free from
harassment and prejudice. Furthermore, the legacy of colonial-era laws that still impact many nations,
including India, underscores the necessity of reforming legal systems to reflect modern views on human
rights and dignity ((Kanna et al., 2020)). Establishing robust anti-discrimination policies also contributes
to a broader transnational dialogue on equality, as seen in historical cases influencing LGBTQ rights
movements worldwide ((Perrin et al., 2023)). As India navigates its path forward, the enactment of these
laws is essential for fostering an inclusive society.

A. Social Awareness and Education

The intersection of social awareness and education plays a crucial role in protecting LGBTQ rights
in India, particularly in the aftermath of decriminalizing Section 377. Education initiatives can
cultivate an inclusive society by challenging ingrained stereotypes and biases associated with sexual
Page 4 of 18
 orientations. As advocates highlight, the journey toward acceptance hinges on a comprehensive
understanding of LGBTQ identities, which fosters empathy and reduces discrimination. Programs
aimed at disseminating knowledge about LGBTQ rights, including the legislative advancements like
the Transgender Protection Act 2019, must be prioritized within educational systems and community
organizations. By educating young people about gender and sexual diversity, societies can cultivate a
generation that values equality and human rights, thereby solidifying the gains made through legal
decriminalization and moving toward a more inclusive future for LGBTQ communities in India.

Conclusion
In conclusion, the decriminalization of Section 377 in India marks a significant milestone for LGBTQ rights,
yet it is imperative to recognize that legal victories alone do not guarantee the safeguarding of these rights.
To effectively protect LGBTQ individuals, ongoing advocacy and legal mobilization are essential. As
demonstrated, robust transnational legal processes have historically influenced local jurisprudence, playing a
pivotal role in shaping norms around sexual freedom, as seen in the judicial narratives discussed in (Perrin et
al., 2023). Furthermore, many colonial-era laws remain entrenched in postcolonial legal systems,
perpetuating discrimination and violating human rights, as articulated in (Kanna et al., 2020). Therefore, the
journey towards genuine equality requires a dual approach: challenging the remnants of colonial legislation
while leveraging international frameworks that promote dignity and equality. Only through persistent
engagement can the promise of decriminalization transform into lasting societal change for LGBTQ
individuals in India.

B. Reflection on the future of LGBTQ rights and the role of legislation in safeguarding
human rights
As society progresses towards greater acceptance of diverse sexual orientations and
gender identities, the future of LGBTQ rights remains inextricably linked to the role of
legislative frameworks in safeguarding these rights. The decriminalization of Section
377 marked a significant victory, yet merely removing punitive measures is
insufficient for ensuring the full realization of human rights for the LGBTQ
community. Effective legislation must encompass comprehensive anti-discrimination
laws, access to healthcare, and social equality, addressing systemic injustices that
persist. Additionally, concrete policies must promote inclusivity in education,
employment, and public services to dismantle entrenched biases. Advocacy efforts
must be bolstered by community engagement and collaboration with policymakers to
create an environment where LGBTQ individuals are not only tolerated but celebrated.
Ultimately, the effectiveness of such legislative measures in protecting human rights
will depend on their implementation, enforcement, and the societal commitment to
uphold the dignity of all individuals, regardless of their identity.

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• Poonam Kakoti Borah (2018). "Engaging with the Law: Decriminalisation
of Homosexuality and
the Johar Judgement, 2018". 'ACCB Publishing'.
https://core.ac.uk/download/201665145.pdf
• (2023). "Religion and the politicisation of sexual and gender minority
rights in contemporary
Africa : who’s oppressing whom?". 'University of Pretoria - Department of
Philosophy'.
https://core.ac.uk/download/613869957.pdf
• Tonini, Maria (2016). "The Ambiguities of Recognition : Young Queer
Sexualities in Contemporary
India". 'Lund University Library'.
https://core.ac.uk/download/83754550.pdf
• (2023). "Religion and the politicisation of sexual and gender minority
rights in contemporary
Africa : who’s oppressing whom?". 'University of Pretoria - Department of
Philosophy'.
https://core.ac.uk/download/613869957.pdf
• Poonam Kakoti Borah (2018). "Engaging with the Law: Decriminalisation
of Homosexuality and
the Johar Judgement, 2018". 'ACCB Publishing'.
https://core.ac.uk/download/201665145.pdf
• Tonini, Maria (2016). "The Ambiguities of Recognition : Young Queer
Sexualities in Contemporary
India". 'Lund University Library'.
https://core.ac.uk/download/83754550.pdf
• Tonini, Maria (2016). "The Ambiguities of Recognition : Young Queer
Sexualities in Contemporary
India". 'Lund University Library'.
https://core.ac.uk/download/83754550.pdf
• (2023). "Religion and the politicisation of sexual and gender minority
rights in contemporary
Africa : who’s oppressing whom?". 'University of Pretoria - Department of
Philosophy'.
https://core.ac.uk/download/613869957.pdf
• Tonini, Maria (2016). "The Ambiguities of Recognition : Young Queer
Sexualities in Contemporary
India". 'Lund University Library'.
https://core.ac.uk/download/83754550.pdf
• (2023). "Heterosexual nationalism and the mischaracterisation of anti-
sodomy laws in Zambia".
'University of Pretoria - Department of Philosophy'.
https://core.ac.uk/download/613870544.pdf
• (2021). "Envisioning Global LGBT Human Rights". 'School of Advanced
Study'-
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. https://core.ac.uk/download/478116809.pdf
• . "Sex Work, Health, and Human Rights". 'Springer Science and Business
Media LLC'-
. https://core.ac.uk/download/427716087.pdf
This essay was written by Samwell AI.
https://samwell.ai

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