Shraddha Kapasya


• Abbreviation

• Table of cases

• Introduction

•Evolution and development

• LGBTQ rights

• LGBTQ rights hinge on the definition of sex?

• Section 377

• Conclusion

• Suggestion

• Bibliography

• Footnote

















Sex refers to the biological gender that we are born with and turn describes how people reflect on and express themselves of their perceived gender identity this is also referred to as the social gender and to cover all those aspects we use the term LGBTQ the first three letters say something about sexual orientation L stands for lesbian they are who are attracted to other women, G stays for men who are attracted to other men and the B stand for bisexual they are people who are interested in the both men and women and T stand for trans which revolves around gender and sex are different. People are both with their biological sex and are the assigned the attribute girl or boy however for some people these binary attributes are not right they know they have a different gender identity from their sex and want to have it accepted by society so if the biological sex is different from the gender of the person we speak of a trans woman or trans men respectively. However, there are people for whom these two attribute are simply not sufficient who feel neither as male nor female and find their own identity, the correct term here is non-binary and the variety is a broad as there are people on earth the I stands for intersexual, some people are born with no definitive biological sex sometimes intersexual kids have surgery to adopt their sex and hence to find a specific sex, however this is very controversial intrusion into the personal physicality of intersexual the umbrella teer queer from which the letter q derives covers people which fit anywhere on the spectrum of sexual orientation sex gender and identity and the LGBT community in general because of the rights of intersexual people some government recently in addition to male and female added a third gender divers Society terminal or diverse on a daily basis between these poles there is a plethora of ways to express and live one's own gender identity

Evolution and Development

LGBTQ rights

For a million of homosexual people in India the fight over section 377 of the Indian penal code is about the difference between their two worlds. It is about respect it is fight to be recognized as normal as well as a fight to be allowed to live and love without the state watching and judging. In recent time there has been a lot of discussion about how the role of government should be limited to governing instead of telling people how to live their lives. Section 377 is a legal provision that allowed authorities to interfere with the way an Indian citizen live his or her life. By saying that people of the LGBT community are however against society and the order of nature section 377 make it legal for them to be treated differently by the law and by society. The clause which is part of to remain of an archaic British legal code have been an endless source of grief for the LGBT community in India because of it lesbian gay bisexual and transsexual people are effectively labelled criminal and as a result of it, face many difficulties when they are in need of legal assistance or social support for the rest of us, no matter who we are this file should matter. When one individual’s freedom are violated everyone’s right are threatened if we allow the state to discriminate against citizen on the basis of their sexual orientation, we are basically paying the path for the state to discriminate on other fronts too LGBT rights are everyone’s right.

LGBTQ rights hinge on the definition of sex?

Before the US civil right act passed in 1964 it had been written to protect American from discrimination on the basis of race, religion, colour or national origin. This bill was controversial not all politician wants to see it go through. One of those people was our representatives from Virginia name Howard w. Smith, who proposed and amendment to insert the word sex. He snuck it into title VII of the bill, which protect people from the discrimination at work and he did it because he thought that adding sex discrimination protection would make the bill so unpopular that it wouldn’t get enough vote to pass, but it didn’t work Congress pass the most sweeping civil rights bill ever to be written into the law instead the inclusion of the word in the civil right act setup a different battle because the civil right at said nothing about sexual orientation or gender identity from the past 50 years, the US have been debating the legal definition of sex and whether it protect LGBTQ American from discrimination too. The answer depend on who you ask and it hangs on the outcome of the 2020 election.

What sex discrimination mean in the context of the civil right act of 1964 was that women who were becoming large part of the workforce couldn’t be discriminate against just because of their sex. At that time it did an explicitly protect LG TV q pupil but over the years a wave of activism and a string of legal battles helped entrapped the CRA to include protection for the LGBTQ American and it all come down to the word and it means to discriminate on their basis

Oregon and California are two of the 27 states that have their own non-discrimination law based on gender identity or sexual orientation, one state only have sexual orientation protection and 22 don’t offer any protection at all. That ambiguity makes the position of the White House on this issue really important starting in 2014 the Obama administration signed executive order to reflect house as discrimination was interpreted in the court and those rule impact all the federal agencies. But in 2017 when President Trump took office his administration reversed all those rule explicitly saying that discrimination do not encompass gender identity meaning sex is limited to biological sex determined at birth and that contradict how the court have evolved other past 50 years. Then in 2020 came another court case that made the court interpretation ever clearer. A major cr decision out of the united. The case involved a juvenile court employee in Clayton County. Georgia a state that doesn’t offer LGBTQ discrimination protection. This decision makes the court logic on LGBTQ protection explicit sex discrimination includes discrimination for sexual orientation too. The legal fight for LGBTQ people to be protected from sexual discrimination took half a century in a court. The change would acknowledge what the courts have decided that the definition of discrimination based on sex should include the LGBTQ community instead of leaving them to continue their fight.


● Naz foundation case 2009 foundation Naz foundation vs government of Nct Delhi.

Naz foundation is an NGO who deal with the health issues, the question arises that case is that we should remove section 377 this question deal with different angle the first is right to life Art 21, they say that without dignity and privacy no one can enjoy right to live and the second right to equality Art 14 and art 15, they said art 377 is variable to art 14 because of unreasonable discrimination they discriminate homosexual as a class and according to art 15 it is prohibited to discriminate on the basis of sex here sex doesn’t mean biological sex it means sexual orientation and it was said that psychological cycles should get more weight age than biological cycle on the day of the result declaration of Delhi court said that the part of section 377 which criminalised homosexual must be declared unconstitutional and left the amendment part for the parliament.

● 2nd case 2013 Suresh Kumar Koushal v. NAZ foundation

There was 2 argument in this case they are that homosexual is criminal offence only Parliament can decriminalize it and court cannot interfere in this matter and second right to privacy cannot be extended to come it right to offence so right to privacy will not cover homosexual act, this judgement Took India a significant step backward by the International organisation. After the case of 2009 The people who started to disclose there Identity was seen as a criminal and was targeted

● NISA V. Union of India

The loophole in this case is that all the Indian exiting law focus on the binary gender means male or female and the other right of transgender community where not protected and because of this transgender community is discriminate. While dealing with this loophole the supreme court recognised various right of transgender they are according to art 14 all the rights enjoyed by any person or protected this include men women and transgender under 8 15 and 16 gender based discrimination is prohibited then there was an important argument for the art 19 that is privacy gender identity integrity is protected under art 19 (1)(a) you can also include our 377 in this indirectly and then it comes to art 21 in this decide right to live with dignity include right to choose and identity we need to bring provisions which focus on the present need after the skates self identity and gender identity got legal recognization .

● Case 4. Justice K.S Puttaswamy v. Union of India 2017

To decide this case 9 judge bench was constituted and to know the reason behind this we have to go through the art 19. This judgement was authorised by justice chandrachud , to rectify the mistake of SC in Suresh Kumar kaushal case, he said that sexual orientation is an essential attribute of privacy and this is protected by part 3 various rights, in this case he rejected the idea of miniature minority

● Case 5 Navtej Singh Johar v. Union of India 6th September 2018

Which declared section 377 partially un-constitution, The 5 judge constitutional bench in this case consists of CJI Deepak Mishra justice indu Malhotra , justice Rohinton Nariman , Justice A.M khanwilkar and most important justice D Y chandrachud with the support of art 14 SC said that criminalised sexual act of two consenting adult just because they are homosexual this is not a intelligible differentia and nor rational nexus, the traditional norms which ate based on morality and ambiguous and subjective must be give away. Art 15 The SC said that during Naz foundation the approach of Delhi court that sex includes biological sex plus sexual orientation is more aqurate and correct approach reflect out improved understanding in supporting art 19 justice chandrachud said that we cannot define human sexuality norrowly descrimination against LGBTQ is unconstitutional, art 19 protect right of a people so that they can disclose their ability freely and finally with the support of Art 21 SC said that right to life and liberty includes privacy, dignity and autonomy so by applying art 377 you cannot stop anyone to enjoy their life

Comparative analysis with other countries

India vs Iran

In the present day the position of the lgbtq community has improved in our country, India. Well its not perfect socially but legally it is far better from the past and same-sex marriages have been legalised in India.

Today we can observe the lgbtq people officially declaring their relationships with their partners. Yes it has been tough at times for them at various places in the country. But it is not like the past where people have to maintain secret relationships with their partners when they have identified themselves as a member of the lgbtq community. The best part about this in India today is the socially rising awareness towards the lqbtq community and the acceptance has also raised from the past. On 6thSeptember, 2018 the supreme court of India overruled section 377 which was stated unconstitutional as it infringes with the fundamental rights of bodily autonomy of a human being.

On the other hand if we take an example of the middle eastern countries like Iran there are various challenges faced by the members of the lgbtq community till date. They are denied various rights which are generally provided to the non-lgbtq community. Although it is legal in Iran for a person to change their sex from the assigned sex at the birth. But sexual activities among the same sexes are considered illegal and are officially punishable. Also the punishment for such death can be given from imprisonment to death sentences. The rules are considered one of the worst nightmares for an lgbtq community individual.


In India the homosexual relationships are still considered a taboo in the society whereas in the western countries the homosexuality concept is widely recognised and accepted by the society.

In America, same sex marriages were legalised from 26thJune , 2015. Whereas in India it happened in 2018. This has made a path for America to be a broadly accepting and socially aware society. Despite these advances into the American mainstream, however, LGBT people continue to face real discrimination in all areas of life. No federal law prevents a person from being fired or refused a job on the basis of sexual orientation. The best part about the Americans is that they have been working on schools and other institutions to make them a better and safer place for the lgbtq community. Which is not observed in India.

Indian society still holds people accountable for their sexual orientation if it’s not heterosexual and refrain from making it a talk in public. People generally have to hide their genders at workplaces and official institutions because of the social stigma socially prevalent in the society. On the other hand, America provides awareness and education of the same sex relationships to the growing children which seems beneficial for individuals and they aren’t deprived of their real identity as the opposite case can be clearly observed in Indian households.

Overall when we lay down all the scenarios of these countries together it is clear to observe that India holds a better position than Iran in the formation and legalisation of the rights for the lgbtq community. But still India is in a backward condition from America in accepting the lgbtq members socially in it is specially and creating awareness about it.

So while it has been a long way for Indians to come up with the legalised laws for the lgbtq community there is still a long way to go on the societal level and make the lgbtq community as a normal part of the society.

Legalised laws are not enough for the lgbtq community in India, we need societal acceptance and awareness about different sexes and rights for their bodily autonomy without ever getting discriminated At any place or for any opportunity in their lives. Also this will enable them to come out of the identity crisis which they have faced since ages in most parts of the world. If the world accepts all these fundamentals for every individual regardless of their gender. The world will become a better place for the lgbtq community.


When we study the overall research report we can observe and conclude the fact that the lgbtq community in India have laws established legally by the supreme authority and are mandatory to be respected by the people. But we see a different reality at the ground level which still discriminates among the non-lgbtq and lgbtq people. Also when we see this from the religious point of view we can totally get that the ancient Hindu culture supported the homosexual relationships which are carved as proofs on ancient temples and kamasutra also mentions this but this is not known by the majority and this creates a lack of knowledge for people and since invasions in the our country the ancient knowledge have vanished to a massive amount so this norm that homosexual relationships do not bear children as a result so they should not be encouraged. Also in the abhramic faiths homosexuality is completey probhited and punishable. But with time the scenarios are changing not religiously but yes regionally and this can be observed with the rights given to lgbtq community demographically. Also as laws are becoming prevalent there is a need for social acceptance. The non-lgbtq people need to step up for this and raise awareness and treat all the individuals equally regardless of their gender or sexual orientation


The motivate behind the topic is that it is important to know the position of the LGBTQ communities about religion so that every one can enjoy their rights and they can have their justice and can be created equally. India is still working on the law for the LGBTQ communities so they can Enjoy their fundamental rights and people should focus on the psychological cycle rather than the biological cycle. Million of homosexual people in India fight over section 377 of the Indian panel code



● PRIDE MONTH : Each year pride month is celebrated for the LGBTQ community for their struggles , this year it was in June . There are various moments for LGBTQ community .

● There was a case of a women name Ann Hopkin worked in the accounting farm was competing against 87 males , some people from hiring community told her to be more femininely to get job she was rejected from the partnership twice so she sued her company using the sex discrimination clause in CRA and won .

● To understand the case of Suresh Kumar Kaushal there was a movie named Aligarh .