LGBTQ+ Rights and Legal Recognition in India: The Path Forward
Written by Sakkcham Singh Parmaar, Law Student, Jindal Global Law School, O.P. Jindal Global University. “As a gay man, I’ve felt the effects of inequality, particularly in the last 10 years, so I feel very deeply committed to the cause of equality. Facing one kind of discrimination makes you more attuned to other forms of discrimination. Anyone who lives in this country can see how unequal we are,” said Saurabh Kirpal. Saurabh Kirpal, an Indian senior advocate, author, and LGBTQ+ rights activist, was born on April 18, 1972, the son of B. N. Kirpal, a former Chief Justice of India. Saurabh completed a bachelor’s degree in physics at St. Stephen’s College, Delhi, followed by law degrees from the University of Oxford and the University of Cambridge. After a short tenure with the UN in Geneva, he returned to India and has been practising law in the Supreme Court of India for over 20 years, specialising in civil, commercial, and constitutional law. Kirpal was also counsel for the landmark case decided in 2018 that decriminalised consensual same-sex relations in India. Kirpal has also been serving on the board of the Naz Foundation Trust, an NGO that advocates for LGBTQ+ rights. Kirpal was designated a senior advocate by the Delhi High Court in March 2021. Kirpal is in a long-term relationship with Nicolas Germain Bachmann, a Swiss human rights activist. Beginning With acceptance in history giving way to colonial impositions and present-day legal battles, the trajectory of LGBTQ+ rights in India has followed a long and complex journey. The landmark decriminalisation of homosexuality in 2018 represented a glorious victory; however, the LGBTQ+ community continues to face an array of complications ranging from legal recognition and social acceptance to economic equity. A complete analysis of the LGBTQ+ rights scenario in India against the background of the global experience can offer pathways toward a more inclusive society. The discourse stresses the importance of building affirming communities and education aimed at increasing LGBTQ+ awareness, dismantling entrenched prejudices, and securing the community’s rightful place. History Over the ages, India’s ideology regarding diverse sexual orientations and identities has undergone blows and radical transitions. In ancient Indian cultures, gender matters were understood much more fluidly than in contemporary times. Sacred texts and mythological tales from the religions of Hinduism, Buddhism, and Jainism refer to non-binary and same-sex relationships, providing proof against the existence of cultural premises in which such diversity was sometimes recognised or even revered. British colonialism in the nineteenth century spread over their Victorian moralistic practices and cast a deep shadow on the possible freedoms of the LGBTQ+, criminalising same-sex relations in Section 377 of the Indian Penal Code enacted in 1861. Such a draconian law categorised “carnal intercourse against the order of nature” as criminal and secluded gay people cloaked in darkness. Post-independently, despite India’s attempts toward liberal democracy, Section 377 seemed to continue systematic discrimination and social ostracism of the LGBTQ+ community. Towards the latter part of the 20th century, gay activism began to get organised in India. A few of these early organisations included the Naz Foundation, which took up challenges to bad laws and paved the way for major litigation battles. A major victory came in July 2009 with the Delhi High Court ruling to set aside the decriminalisation of consensual sex acts between adults, a ruling later regrettably overruled by the Supreme Court in 2013. The rise and flow of laws illustrated the precarious state of LGBTQ rights in India. Supreme Court verdict of 2018 An important day marked in history was September 6, 2018, when the Supreme Court of India, in the case of Navtej Singh Johar v. Union of India, unequivocally stated that portions of Section 377 would stand annulled, thereby decriminalising consensual same-sex relations among adults. The unanimous verdict became history in the legality of India when, in terms of ethos, sexual orientation became part of unalienable identity, as otherwise suppression thereof would violate fundamental rights. Justice Indu Malhotra noted in her concurring opinion, the historical injustices that the LGBTQ community had undergone and also apologised to her through a long historical time of denial of rights. Current Legal Hurdles The verdict delivered in 2018 was considered a landmark and valid, but it has not settled several significant issues. Indian law does not recognise same-sex marriages, thus denying any legal rights to LGBTQ+ couples as to marriage, inheritance, taxation, and spouse benefits. In 2022, the petition seeking legal recognition of same-sex marriages came before the Supreme Court, but before February 2025, its verdict was still awaited. Finally, the central government hesitated and wanted to suggest that discussing such an extensive social issue was better in the legislature and not resolved exclusively judicially. Having done so, the Transgender Persons (Protection of Rights) Act, 2019, conferred rights for the transgender population, criticised for advocating medical certification for recognition of gender identity, which many reproached against the right to self-identify. Besides, it remained silent on affirmative action measures like reservations in education and employment, which were key towards addressing historical and structural legacies. The second big void is the absence of such comprehensive anti-discrimination legislation in very specific terms for covering LGBTQ individuals. But, without these legal protections, such important discriminations continue to happen in income-generating sectors or further areas like health, housing, or education. Such legislative voids continue to bring about a stigma, which in turn produces economic disenfranchisement for such communities. International Views on LGBTQ+ Rights International paradigms provide an analytic residual that aids in the appraisal of the LGBTQ+ rights status. Canada has outdone other nations in this regard by legalising same-sex marriages as far back as 2005. In addition, the country is home to very strict anti-discrimination policies. Such policies ensure that access to healthcare services accounts for transgender individuals, including gender-affirming procedures and other aspects of inclusive workplace policies. The United Kingdom equally scores high with the passing of the Marriage (Same-Sex Couples) Act, alongside other comprehensive anti-discriminatory protections in virtually all sectors. As young learners, they