Beyond Decriminalisation, A Bird’s Eye View Of Laws Affecting LGBTQ+ Youth

I think that decriminalising same-sex activity between consenting adults is just the beginning of a much needed social overhaul. LGBTQ+ people in India don’t just want to love freely, they also want to live freely. It is time we push for a more rights-based approach where laws targeting affirmative action, anti-discrimination, marriage, adoption, etc., are made accessible to gender and sexual minorities.

LGBTQ+ refers to a varied group of lesbian, gay, bisexual, transgender people and others such as intersex people. The Kinsey scale (originally, the Heterosexual-Homosexual Rating Scale, 1948) devised a 7-point rating scale, where 0 stood for ‘exclusively heterosexual’ and 6 stood for ‘exclusively homosexual’. It was one of the first attempts to use research to define people’s sexual orientation. There lie notable differences among the people who fall within the ambit of the umbrella of LGBTQ+ since sexuality and gender identity are spectrums, not water-tight compartments.

Unfortunately, it is the common thread of their minority group membership which bonds them more than anything else. I see that LGBTQ+ individuals tend to consolidate and mobilise as a team to be able to push for better legal rights and improved social status. If they come together in overwhelming numbers, one can’t dismiss them as being a ‘minuscule minority’. LGBTQ+ people belong to relatively powerless groups because of the social and religious stigma surrounding their lives. I think that gaining more power (in terms of social and economic capital) acts as the glue responsible for queer unity.

Dan Rebello, Kanishka Kutty, and Urvashi Chudawala of the Thane Queer Collective (TQC) say that they founded the collective to “Provide a safe space for queer people in Thane. Growing up, we didn’t have a lot of LGBTQ+ support systems and role models in our area. We wanted to turn that around and give queer folks a community, a family, closer to their homes. Most events happen in the city, far from Thane. We wanted to create an accessible space that’s affordable and worth people’s time. We’re only 6-months-old but have already built a small community through TQC, where people have not only found love and support, but also a space to express themselves and be proud.”

Homosexuality, to this day, remains a taboo subject for the Indian civil society and the government at large. In my opinion, an open discussion about sexual and gender minorities has been restricted due to the fact that such affairs are not considered to be ‘fit‘ for public discourse. These crucial conversations are brushed under the carpet and nothing is discussed publicly.

The current status of LGBTQ+ people in India must be understood with respect to its socio-political context. Specifically, legislation and policy greatly impact the lives of the LGBTQ+ population. What does it mean to grow up as a young LGBTQ+ person in India? Clearly, there isn’t one single answer to this because India is a land of multitudes. However, one can, and must, trace the historical evolution of laws and policy pertaining to the LGBTQ+ community to gain a fuller understanding of their lives in the Indian context.


The “Diagnostic and Statistical Manual of Mental Disorders” (DSM) is an authoritative tool used by mental health professionals around the world to arrive on a diagnosis for their clients. It is a comprehensive handbook that contains the description of different mental disorders, details about their symptoms, etc.

The DSM-II (the Diagnostic and Statistical Manual of Mental Disorders) listed homosexuality as a mental disorder in 1968. In 1973, the American Psychiatric Association (APA) removed homosexuality from the DSM and replaced it with “sexual orientation disturbance” for people “in conflict with” their sexual orientation.

Only in 1987 was homosexuality removed without any traces from the DSM. One should know that the latest version of the DSM (DSM-5) continues to classify ‘gender dysphoria’ as a mental disorder. Dysphoria refers to the intense discomfort experienced by transgender individuals (predominantly), stemming from the incongruence between their body, social roles, and their feelings.

I would say that diagnosing something is nothing but pathologising it. Pathologising a behaviour or a set of behaviours means that they are looked at as symptoms of a disease. People from the LGBTQ+ community have had to deal with being treated like they are deviants, or mentally ill for expressing their sexual orientation and/or gender identity. This has had a tremendously negative impact on the self-image and self-worth of LGBTQ+ people. I believe that pathologising LGBTQ+ identities have been one of the main reasons why abhorrent practices such as conversion therapy came about.

Unfortunately, conversion therapy is still being practiced by quacks who claim to ‘cure’ LGBTQ+ people. They use pseudoscientific processes to abuse LGBTQ+ people and humiliate them. I reckon labeling sexual and gender minorities as abnormal, instead of aptly recognising them as a manifestation of human diversity can add to the shame that LGBTQ+ people are made to feel for their inherent self-expression.

The Indian Psychiatric Society (IPS) clarified its stance on homosexuality when Section 377 was being examined by a constitutional bench of the Supreme Court of India. It said the following to explain its position: “Homosexuality is not a psychiatric disorder. The IPS recognises same-sex sexuality as a normal variant of human sexuality, much like heterosexuality and bisexuality. There is no scientific evidence that sexual orientation can be altered by any treatment and that any such attempts may, in fact, lead to low self-esteem and stigmatisation of the person.”

I see this declaration as important because rightful recognition from medical and mental health professionals can act as a crucial building block to full and formal acceptance of LGBTQ+ people.”As a practitioner, it’s always important that one understands queer terminology and what the different labels stand for because you’re not going to be able to truly help your clients otherwise,” asserted Richa Vashista, a 28-year-old mental health professional and queer activist. “Accepting my own queer identity paved the path for me accepting other parts of myself. I had a lot of body image issues but I have slowly grown to love my body,” she added.

Before Section 377 was revoked, the different kinds of concerns that my clients came up with during counseling sessions revolved around accepting oneself, one’s sexuality, mental health issues such as anxiety and depression stemming from isolation and not being able to come out to their loved ones. After it was finally revoked, there was an overwhelming sense of relief among my clients. The conversations expanded to discussing what queerness means to them, for example, talking about what being ‘non-binary’ means,” said Vashista. 

“Yes, the law is on our side now but there’s a long way to go. Discrimination and stigma against LGBTQ+ people is rampant still. There is a need for sensitisation in schools, colleges, workplaces. It’s gotten better but we need to keep working towards a more tolerant society,” remarked Vasishta.

Section 377 Of The Indian Penal Code (IPC)

In 1861, homosexuality was declared to be a criminal and jailable offense in India as per the laws that were written during the British rule. Chapter XVI, Section 377 of the Indian Penal Code (IPC) 1861, criminalises sexual activities “against the order of nature.” Section 377 reads as follows:

Unnatural offenses: 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.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section. This explanation meant that sexual intercourse between consenting, LGBTQ+ adults was considered to be criminal activity. So, such individuals were not free to live their lives fully and honestly.

In 2009, a two-judge bench of the Delhi High Court held that Section 377 is a violation of fundamental rights guaranteed by the constitution of India as it criminalises consensual homosexual sex between adults (Naz Foundation v. Govt. of NCT of Delhi). This ruling was celebrated as a long-overdue revision of what was deemed to be an archaic law.

But in 2013, a two-judge bench of the Supreme Court overruled the 2009 verdict. The apex court held Section 377 constitutional and applicable to sexual acts notwithstanding the age or consent of the parties involved. Further, in January 2014, a Review Bench reaffirmed this judgment and it set aside Delhi High Court’s historic verdict.

I was sad and I was angry. How did the clock run backward? I had already come out to a lot of my friends and family after the Delhi High Court’s judgment. Most of them were supportive of my sexuality but I felt so uneasy about the back-and-forth. One day I was free to love and the next day I was back to being a criminal,” groused Aniket Shinde*, a 26-year-old gay man.

This decision was also backed by most of the religious leaders. Religion has always essayed a determining role in Indian customs and traditions. The largest religion in India is Hinduism with approximately 80% of the population identifying as Hindu according to the 2011 Indian Census.

Religious and mythological Hindu texts have held numerous positions in relation to sexual orientation and gender expressions. This ranges from the actual depiction of LGBTQ+ characters (for e.g. Shikhandi in Mahabharata or Mohini, who was one of Lord Vishnu’s many avatars, i.e. manifestations) in the scriptures, to themes which adopt a more neutral attitude towards LGBTQ+ people. This has helped scholars, activists, and allies advocate for the recognition of LGBTQ+ people as normal. Indian, historical, literary evidence suggests that the LGBTQ+ population existed and wasn’t necessarily thought of as inferior up until the late 18th century.

Though tyrants may command that lamps be smashed, in rooms where lovers are destined to meet, they cannot snuff out the moon” – Faiz Ahmed Faiz (translated from Urdu by Agha Shahid Ali)

Subsequently, in February 2015, eight curative petitions challenging the 2014 judgment of the Supreme Court were filed and all the eight petitions were reviewed by a five-member constitutional bench. The bench unanimously decriminalised sexual activity between consenting adults in its landmark judgment in September 2018.

Justice Indu Malhotra said that “History owes an apology to the members of this (LGBTQ+) community and their families, for the delay in providing redressal, for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear…”

The NALSA judgment And The Trans Bill

In April 2014, the Supreme Court of India acknowledged transgender people to be the third gender in India (National Legal Services Authority or NALSA v. Union of India and others). The transgender community in India is largely (most visibly) comprised of ‘hijras’. While they dress in feminine clothes, they generally don’t perceive themselves in the binary of men and women, but beyond it. Therefore, this judgment was hailed as a major step towards bringing about gender equality in India.

In direct contravention with the NALSA judgment (which gave transgender individuals the right to self-identify), the Transgender Persons (Protection of Rights) Bill, 2019 (which was passed in August in the Lok Sabha) proposed the setting up of screening committees which will supposedly ‘certify’ transgender individuals as being such. The Bill also fails to provide adequate affirmative action (in educational and employment spaces) to a community that has been pushed to the fringes of mainstream society.

Bharat Krishna*, a 23-year-old trans man, didn’t mince his words when he said that, “The Bill insists that one needs to surgically transition to identify as male. Why is this necessary? I am what I am because I say so, and the Supreme Court of India passed a judgment to this effect. But the Bill violates this prerogative of mine. I now have to prove to others that I am what I say I am. Forcing me to undergo medical procedures or making me strip in front of a medical professional so that I can call myself a trans man doesn’t sit well with me. It is akin to blackmailing the trans community and we won’t stand for it!

Right To Privacy

LGBTQ+ people tend to internalise a lot of guilt because of society’s perception of their identities. In such a scenario, privacy plays a critical role in helping queer people explore themselves, away from the harsh gaze of others. It certainly helped me come to terms with my own queer identity,” insisted Jennifer D’Souza*, a 27-year-old bisexual woman.

On August 24, 2017, the Supreme Court upheld the ‘Right to Privacy’ as a fundamental right. I view this judgment as crucial in protecting the freedom of the LGBTQ+ community to express their sexual orientation, without having to worry about their safety. “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation… Privacy also connotes a right to be left alone,” asserted Justice D.Y. Chandrachud.

The Surrogacy (Regulation) Bill

I would like to start a family of my own someday. It’s all I want. I don’t know how, but maybe I will move to a country like America. I don’t think I will ever be allowed to adopt children here. Indians look down on queer people and don’t treat us with the respect we all deserve,” deplored Preeti Sharma*, a 24-year-old trans woman.

The Surrogacy (Regulation) Bill 2019 was passed by the Lok Sabha in the month of August this year. This discriminatory Bill allows only altruistic surrogacy and bans commercial surrogacy. What this means is that LGBTQ+ individuals and couples will be denied the opportunity to become parents through surrogacy. Additionally, the ex-Minister of External Affairs, the late Sushma Swaraj, had unequivocally stated that “You can say it (allowing surrogacy for homosexual couples) is looking forward and we can say this doesn’t go with our ethos.”

There has been some improvement in attitudes towards the LGBTQ+ community in recent years. The Indian news media has been relatively more forthcoming with the issue of decriminalising homosexuality and there have been increasingly more tactful depictions of LGBTQ+ people in Bollywood films, reality shows, and daily soaps.

Bidishah, a 22-year-old queer person, singer and a semi-finalist on the television show India’s Got Talent, won laurels not just for her crooning, but also for coming out on national TV. Opening up about her evolution from a young artist to a queer icon for many, she said that, “When I came out to my parents, they weren’t accepting of my sexuality from the get-go. They were worried about how society would see me and they were also afraid of me moving to France because of my ex-girlfriend. They have to come to terms with who I am and why I am so vocal about it. I have had to come to terms with their fears and their point of view. It’s been a tumultuous journey but it’s worth it.”

Speaking about her decision to come out on national TV, she said that “I came out because only from the truth, only from embracing yourself as you are, can true art sprout. I didn’t want to hide it. I know of queer singers in the past who have never come out, even Indian ones. I didn’t see myself contributing to that culture of silence. People are not going to be able to wrap their heads around this quickly because we’ve been subjected to years and years of social conditioning. So, it becomes all the more important for me to use my position to reach out to people.”

Scenes from the pride march in Mumbai, 2019. (Photo: Devesh Khatu/Facebook)

While these changes make one hopeful, I believe that there exists a pressing need to bring equality and non-discrimination considerations into the core of Indian social policy-making and social inclusion process. In my experience, LGBTQ+ couples do not enjoy the same rights and protections as heterosexual couples and are therefore deprived of access to social protection schemes like health care and pensions.

Similarly, in the labour market, a vast majority of LGBTQ+ people continue to conceal their sexual orientation. They do so out of the fear of losing their jobs. Also, the LGBTQ+ youth are vulnerable as they experience hostility from family and friendship networks, harassment at school and colleges, as well as invisibilisation. Such discrimination of LGBTQ+ people robs them of key social goods like employment, health care, education, and housing and it excludes them from the rest of society. The gap between the changing of legal and social attitudes needs to be bridged. Ultimately, individual dignity and liberty should be prioritised over social and cultural mores.

(*names changed to protect identity)

Note: The author is part of the current batch of the Writer’s Training Program

Featured Image Credit: Photo credits: DIBYANGSHU SARKAR/AFP/Getty Images
Featured Image For Representation Only.
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