LGBT rights in India

Erotic sculptures of two men (centre) at the Khajuraho temples.

The Hindu Khajuraho temples, famous for their erotic sculptures, contain several depictions of homosexual activity. Historians have long argued that pre-colonial Indian society did not criminalise same-sex relationships, nor did it view such relations as immoral or sinful. Hinduism has traditionally portrayed homosexuality as natural and joyful, though some texts do contain injunctions against homosexuality namely among priests.

Hinduism also acknowledges a third gender and has a strong tradition of portraying them positively; there are multiple characters in the Mahabharata who change genders, such as Shikhandi, who is born female but identifies as male and eventually marries a woman. Bahuchara Mata is the goddess of fertility, worshipped by hijras as their patroness.

The Nāradasmṛti and the Sushruta Samhita, two important scriptures from ancient India relating to dharma and medicine, respectively, declare homosexuality to be unchangeable and forbid homosexuals from marrying a partner of the opposite sex. The Nāradasmṛti lists fourteen types of panda (men who are impotent with women); among these are the mukhebhaga (men who have oral sex with other men), the sevyaka (men who are sexually enjoyed by other men) and the irshyaka (the voyeur who watches other men engaging in sex). The Kama Sutra, a Sanskrit text on human sexual behaviour, uses the term tritiya-prakriti to define men with homosexual desires and describes their practices in great detail. Likewise, the Kama Sutra describes lesbians (svairini, who engage in aggressive lovemaking with other women), bisexuals (referred to as kami or paksha), transgender and intersex people. The Sushruta Samhita and the Charaka Samhita delve further into the issue of homosexuality, stating that homosexuals are conceived when the father's semen is scanty and transgender people are conceived when the father and mother reverse roles during intercourse (purushayita, "woman on top").[8][9][10][11]

During the Mughal Empire, a number of the preexisting Delhi Sultanate laws were combined into the Fatawa-e-Alamgiri, mandating a common set of punishments for zina (unlawful intercourse).[12] These could include 50 lashes for a slave, 100 for a free infidel, or death by stoning for a Muslim.[13][14][15][16][17][18]

Modern societal homophobia was introduced to India by the European colonisers and the subsequent enactment of Section 377 by the British, which stood for more than 70 years after Indian independence.[19] The Goa Inquisition once prosecuted the capital crime of sodomy in Portuguese India,[20][21] but not lesbian activity,[22] whereas the British Raj criminalised anal sex and oral sex (for both heterosexuals and homosexuals) under Section 377 of the Indian Penal Code, which entered into force in 1861, and made it an offence for a person to voluntarily have "carnal intercourse against the order of nature." Scholars have also argued that the original intention of Section 377 was to act as a means by which the British Raj could further police and control the body of the colonial subject. In colonial Victorian era morality, these subjects were seen as erotically perverse and in need of the imposition.[23][24]

In 1884, a court in north India, ruling on the prosecution of a hijra, commented that a physical examination of the accused revealed she "had the marks of a habitual catamite" and commended the police's desire to "check these disgusting practices".[25] In 1871, the British labeled the hijra population as a "criminal tribe".[26]

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  Ardhanarishvara in Gangaikonda Cholapuram
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  Two women using carrots as dildos, 20th century gouache painting.

The Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi of 2009 found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution. Section 377 stated that: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine," with the added explanation that: "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."[27]

According to a previous ruling by the Indian Supreme Court, decisions of a high court on the constitutionality of a law apply throughout India, and not just to the state over which the high court in question has jurisdiction.[28]

There have been incidents of harassment of LGBT groups by authorities under the law.[29]

On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality is seen as being immoral.[30] The Central Government reversed its stance on 28 February 2012, asserting that there was no legal error in decriminalising homosexual activity. The shift in stance resulted in two judges of the Supreme Court reprimanding the Central Government for frequently changing its approach to the issue.[31]

On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalising consensual homosexual activity within its jurisdiction.[32][33][34][35][36]

Human Rights Watch expressed concerns that the Supreme Court ruling would render same-sex couples and individuals that had become open about their sexuality following the High Court's ruling vulnerable to police harassment and blackmail,[24][37] stating that "the Supreme Court's ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination"[38] The Naz Foundation stated that it would file a petition for review of the court's decision.[39] Activist group Kavi's Humsafar Trust have reported that two-fifths of homosexuals in the country had faced blackmail after the 2013 ruling.[19]

On 28 January 2014, the Supreme Court of India dismissed the review petition filed by the Central Government, the Naz Foundation and several others against its 11 December verdict on Section 377.[40] The bench explained the ruling by claiming that: "While reading down Section 377, the High Court overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender people, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377, and this cannot be made a sound basis for declaring that Section ultra vires Articles 14, 15 and 21."[41]

On 18 December 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced a bill for the repeal of Section 377, but it was rejected in the House by a vote of 71-24.[42]

On 2 February 2016, the Supreme Court decided to review the criminalisation of homosexual activity.[43] In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution. The Court also ruled that a person's sexual orientation is a privacy issue, giving hopes to LGBT activists that the Court would soon strike down Section 377.[44]

In January 2018, the Supreme Court agreed to refer the question of Section 377's validity to a large bench,[45] and heard several petitions on 1 May 2018.[46] In response to the court's request for its position on the petitions,[47] the Government announced that it would not oppose the petitions, and would leave the case "to the wisdom of the court".[48] A hearing began on 10 July 2018,[49][50] with a verdict expected before October 2018.[51] Activists view the case as the most significant and "greatest breakthrough for gay rights since the country's independence", and it could have far-reaching implications for other Commonwealth countries that still outlaw homosexuality.[48]

2018 Kolkata march on the occasion of the Supreme Court ruling

Participants at the 2019 Bhubaneswar Pride parade

Participants of a 2018 Bhopal parade celebrating the ruling of the Supreme Court

Unofficial pride flag representing the LGBT community of India

On 6 September 2018, the Supreme Court issued its verdict.[1] The Court unanimously ruled that Section 377 is unconstitutional as it infringed on the fundamental rights of autonomy, intimacy, and identity, thus legalising homosexuality in India.[52][53] The Court explicitly overturned its 2013 judgement.

Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.

— Chief Justice Dipak Misra[54]

History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for [the] LGBT community.

— Justice Indu Malhotra

It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It is about people wanting to live with dignity.

— Justice Dhananjaya Y. Chandrachud

Furthermore, it ruled that any discrimination on the basis of sexual orientation is a violation of the Indian Constitution:[55]

Sexual orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorized that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one‘s sexual orientation would entail a violation of the fundamental right of freedom of expression.

The Supreme Court also directed the Government to take all measures to properly broadcast the fact that homosexuality is not a criminal offence, to create public awareness and eliminate the stigma members of the LGBT community face, and to give the police force periodic training to sensitise them about the issue.[56][57][58]

The judgement also included an inbuilt safeguard to ensure that it cannot be revoked again under the "Doctrine of Progressive Realisation of Rights".[59]

Legal experts have urged the Government to pass legislation reflecting the decision, and frame laws to allow same-sex marriage, adoption by same-sex couples and inheritance rights.[60]

Non-consensual sex (rape) and bestiality remain criminal offences. Initially, it was unknown whether the Supreme Court ruling extended to the former state of Jammu and Kashmir, which was governed by its own criminal law, the Ranbir Penal Code (RPC). Legal opinion was divided on whether the Supreme Court judgment applied to the state or not. Per a 1995 judgment of the state High Court, when an IPC (Indian Penal Code) provision is struck down on grounds of violating the Constitution, its corresponding provision in the Ranbir Penal Code too would be struck down.[61] On 31 October 2019, the state was split into the union territories of Jammu and Kashmir and Ladakh, which apply the IPC. The RPC was abolished.[62]

LGBT people are banned from openly serving in the Indian Armed Forces.[71] In late December 2018, Member of Parliament Jagdambika Pal (BJP) introduced a bill to the Indian Parliament to amend the Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950 that would allow LGBT people to serve in the Armed Forces.[72]

Actor Kamal Rashid Khan was processed by the police on 9 December 2018 for making obscene comments against the LGBT community.[73]

The states of Tamil Nadu and Kerala were the first Indian states to introduce a transgender welfare policy. According to the policy, transgender people can access free sex reassignment surgery (SRS) in government hospitals (only for male-to-female), free housing, various citizenship documents, admission in government colleges with full scholarship for higher studies, alternative sources of livelihood through formation of self-help groups (for savings) and initiating income-generation programmes (IGP). Tamil Nadu was also the first state to form a transgender welfare board with representatives from the transgender community.[106] Kerala started providing free surgery in government hospitals in 2016.[107][108]

The state of West Bengal set up a transgender welfare board in 2015 to coordinate all policy decisions and development work pertaining to the transgender population in the state.[109] The board, however, has been labelled an "all-around failure" by several transgender activists. Supposed to meet once every month with representatives from numerous state government departments, the board has only met five times as of July 2017.[110]

In July 2016, the state of Odisha enacted welfare benefits for transgender people, giving them the same benefits as those living below the poverty line. This was aimed at improving their overall social and economic status, according to the Odisha Department of Social Security.[111]

The Government of Himachal Pradesh has set up medical boards at the district and state level for assisting transgender people. The state has also enacted various schemes providing pension, skill development, scholarship and financial support for parents of transgender people.[112][113]

In April 2017, the Ministry of Drinking Water and Sanitation instructed states to allow transgender people to use the public toilet of their choice.[114]

A transgender board was established in Chandigarh on 22 August 2017. The board comprises members from the police department, the social welfare department, the education department and the law department, health professionals, and representatives of Panjab University, and others.[115]

In October 2017, the Karnataka Government issued the "State Policy for Transgenders, 2017", with the aim of raising awareness of transgender people within all educational institutions in the state. Educational institutions will address issues of violence, abuse and discrimination against transgender people. It also established a monitoring committee designed with investigating reports of discrimination.[116]

On 28 November 2017, N. Chandrababu Naidu, the Chief Minister of Andhra Pradesh, announced the enactment of pension plans for transgender people.[117] On 16 December 2017, the Andhra Cabinet passed the policy. According to the policy, the State Government will provide an amount of ₹1,500 per month to each transgender person above the age of 18 for social security pensions. The Government will also construct special toilets in public places, such as malls and cinema halls, for transgender people.[118] In addition, the state has also established a transgender welfare board.[119]

In January 2018, the Kashmiri Finance Minister introduced a proposal to the Jammu and Kashmir Legislative Assembly that would grant transgender people free life and medical insurance, and a monthly sustenance pension for those aged 60+ and registered with the Social Welfare Department. Transgender activists have criticised aspects of the bill, including its requirement to establish medical boards to issue "transgender certificates".[120][121]

The Government of Delhi announced its intention in May 2018 to establish a seven-member committee to review issues surrounding the transgender community, including concerns of sexual abuse, discrimination at work as well as other societal problems. "We will have a dedicated cell for transgender people, which will be headed by a representative from the community. The commission receives a lot of complaints of abuse against them. The cell will enable us to focus on issues faced by [transgender people] and providing members greater support and safety.", said Swati Maliwal, chief of the Delhi Commission for Women.[122][123]

In July 2018, the Rajasthan Transgender Welfare Board (RTWB) announced it would begin issuing "multi-purpose identity cards" to about 75,000 transgender people in the state to help them access government schemes and benefits.[124]

The Uttarakhand High Court directed the State Government in late September 2018 to provide reservation for transgender people in educational institutions, and to frame social welfare programmes for the betterment of transgender people.[125]

In early 2019, the Social Welfare Department of Assam published a draft "transgender policy" with numerous objectives, including providing transgender people access to educational institutions, providing shelter and sanitation for the homeless, raising awareness, and issuing self-identification identity cards.[126] The All Assam Transgender Association has criticised certain aspects of the policy, namely its definition of the term "transgender".[127]

In February 2019, the Maharashtra Government set up a "Transgender Welfare Board" to conduct health programmes and provide formal education and employment opportunities to transgender people. The board provides skill development programmes to help transgender people find a job and free accommodation for those seeking scholarships.[128] A similar board was also set up in the neighbouring state of Gujarat that same month. The Gujarat board provides various welfare programmes for employment and education, and coordinates with state departments to ensure that the transgender community is able to take advantage of government schemes. An educational campaign was also established in order to sensitise the public.[129]

In July 2019, the Bihar Government announced the creation of a transgender welfare board, which would investigate and report on social and legal challenges faced by transgender people in the state and provide financial assistance of up to ₹1.5 lakh for sex reassignment surgery. In addition, those who refuse house on rent or medical facilities to transgender individuals would be eligible for imprisonment ranging between six months to two years.[130][131]

In August 2019, the state of Madhya Pradesh announced its intention to set up a welfare board for the transgender community in the near future. Issues will include a monthly allowance to parents of intersex children, provisions for job reservations for transgender persons in government and separate public toilets.[132]

Vaadamalli by novelist Su. Samuthiram is the first Tamil novel about the local aravani community in Tamil Nadu, published in 1994. Transgender activist A. Revathi became the first hijra to write about hijra issues and gender politics in Tamil. Her works have been translated into more than eight languages and act as a primary resource on gender studies in Asia. Her book is part of a research project for more than 100 universities. She is the author of Unarvum Uruvamum ("Feelings of the Entire Body"), the first of its kind in English from a member of the hijra community.[133][134] She also acted and directed several stage plays on gender and sexuality issues in Tamil and Kannada. The Truth about Me: A Hijra Life Story by A. Revathi is part of the syllabus for final year students of The American College in Madurai. The American College is the first college in India to introduce third gender literature and studies with research-oriented seminars.[135] Naan Saravanan's Alla (2007) and Vidya's I Am Vidya (2008) were among early transwoman autobiographies.[136][137] Kalki Subramaniam's Kuri Aruthean ("Phallus, I cut") is a collection of Tamil poems about transgender lives.

The American College in Madurai also introduced Maraikappatta Pakkangal ("Hidden Pages") as a course book for "Genderqueer and Intersex Human Rights studies" as part of the curriculum for Tamil and English department students in 2018.[138][139] It is the first book on the LGBT community in the Tamil language, launched by Gopi Shankar Madurai and state BJP leader Vanathi Srinivasan in 2014.[140][141][142]

The All India Hijra Kalyan Sabha fought for over a decade to get voting rights, which they finally got in 1994. In 1996, Kali stood for office in Patna under the then Judicial Reform Party. Munni ran in the elections as well for South Mumbai that year. They both lost.[157]

After the defeat of Kali and Munni, three years later, Kamla Jaan was elected Mayor of Katni. Shabnam Mausi was elected to the Legislative Assembly of Madhya Pradesh in 1998. Over the next few years, multiple other transgender candidates won office. These include Heera who won a seat on the City Council of Jabalpur and Gulshan who was elected to the City Council in Bina Etawa. In December 2000, Asha Devi became the Mayor of Gorakhpur, and Kallu Kinnar was elected to the City Council in Varanasi.

Shabnam Mausi is the first transgender Indian to be elected to public office. She was an elected member of the Madhya Pradesh State Legislative Assembly from 1998 to 2003. In 2003, hijras in Madhya Pradesh announced the establishment of their own political party called "Jeeti Jitayi Politics" (JJP; Hindi: जीती जिताई पालिटिक्स), which literally means "politics that has already been won". The party also released an eight-page election manifesto which it claims outlines why it is different from mainstream political parties.[158]

In the 2011 assembly elections in Tamil Nadu, transgender activist Kalki Subramaniam unsuccessfully challenged a DMK ticket.[159] In March 2014, Kalki announced in Puducherry that she would contest a seat in an election in the Villupuram constituency in neighbouring Tamil Nadu.[160]

On 4 January 2015, independent transgender candidate Madhu Bai Kinnar was elected as the Mayor of Raigarh, Chhattisgarh.[161][162][163][164]

Manabi Bandopadhyay became India's first transgender college principal on 9 June 2015 when she assumed the role of principal of the Krishnagar Women's College in Nadia district, West Bengal.[165]

On 5 November 2015, K. Prithika Yashini became the first out transgender police officer in the state of Tamil Nadu. At the time, the Tamil Nadu police had three transgender constables, but Yashini became the first transgender person to hold the rank of officer in the state.[166] Transgender men are an integral part of the police force in many states of India. Many of them remain in the women police force and fear changing their legal name and gender as this could pose a risk to their employment.

On 12 February 2017, two transgender people were appointed by the Kolhapur District Legal Services Authority (KDLSA) as panel members for the local Lok Adalat (People's Court). 30 panels were appointed to settle general local disputes that arise within the community. Members of the KDLSA have stated this appointment was their "main achievement."[167]

In July 2017, Joyita Mondal was appointed to the Islampur Lok Adalat, becoming West Bengal's first transgender judge.[168] In 2018, Swati Bidham Baruah became the first transgender judge in Assam. Swati, founder of the All Assam Transgender Association, was appointed to the Guwahati Lok Adalat.[169]

Transgender representation was particularly noticeable in the Lok Sabha elections of 2019,[170] with many candidates running in Andhra Pradesh, Gujarat, Kerala, Maharashtra, Odisha, Tamil Nadu and Uttar Pradesh. Most major parties mentioned LGBT rights in their election manifestos. The Bharatiya Janata Party (BJP) ran on a platform of greater rights for the transgender community, adding that it "will ensure self-employment and skill development avenues for transgender youth." The Indian National Congress' manifesto states that the party "recognises the sexual diversity among people and promises equality and equal protection of the laws to people with different sexual identities", specifically advocating for a transgender bill drafted in consultation with LGBT groups and gender sensitivity training in all government departments.

Intersex persons are not protected from violations to physical integrity and bodily autonomy.

Cases of infanticide have been reported involving infants with obvious intersex conditions at birth, along with a failure to thrive by infants assigned female.[173] Medical reports suggest that parents in India prefer to assign infants with intersex conditions as male, with surgical interventions taking place when parents can afford them.[174][175][176]

In a reply to a letter from an intersex rights activist Gopi Shankar Madurai, the Ministry of Health and Family Welfare replied that "Any kind of invasive medical procedure including sex reassignment operations are done only after thorough assessment of the patient, obtaining justification for the procedure planned to be conducted with the help of appropriate diagnostic test and only after taking a written consent of the patient/guardian".[177]

Besides male and female, Indian passports are available with an "O" sex descriptor (for "Other").[85]

On 22 April 2019, the Madras High Court issued a landmark judgment in which it upheld the marriage rights of transgender women,[103] and directed the state of Tamil Nadu to ban sex-selective surgeries on intersex infants. Based on the works of intersex activist Gopi Shankar,[104] the Court took note of the rampant practice of compulsory medical interventions performed on intersex infants and children.[105] The court further cited examples from Hindu mythology in its ruling, namely the story of Iravan.

Multiple Indian athletes have been subjected to humiliation, discrimination and loss of work and medals following sex verification.[178] Middle-distance runner Santhi Soundarajan, who won the silver medal in 800 m at the 2006 Asian Games in Doha, Qatar, was stripped of her medal,[179] and later attempted suicide.[180][181] Track athlete Pinki Pramanik was accused by a female roommate of rape and later charged, gender tested and declared male, though she and other medical experts dispute these claims.[182] Indian athlete Dutee Chand won a case against the IAAF in 2015, enabling women athletes with high testosterone levels to compete as women, on the basis that there is no clear evidence of performance benefits.[183] In 2016, some sports clinicians stated: "One of the fundamental recommendations published almost 25 years ago ... that athletes born with a disorder of sex development and raised as females be allowed to compete as women remains appropriate".[184]

Gopi Shankar Madurai was one of the youngest, and the first openly intersex and genderqueer, candidate to run in an Indian election, contesting a seat in the 2016 Tamil Nadu Legislative Assembly election.[185][186][187][188]