MANIPAL UNIVERSITY JAIPUR

CANDIDATE’S DECLARATION

I hereby certify that work which is being presented in the thesis entitled “SEXUAL
ORIENTATION AND GENDER IDENTITY ISSUES IN THE PRESENT
LEGAL SCENARIO: HUMAN RIGHTS PERSPECTIVE” in partial fulfilment of
the requirements for the award of the degree of Doctor of Philosophy and submitted in
the School of Law of the Manipal University Jaipur, is an authentic record of my own
work carried out during a period from 2014 to 2017 under the supervision of Prof. (Dr.)
Mridul Srivastava, Dean,Faculty of Arts Law, Manipal University Jaipur.

The matter presented in the thesis has not been submitted by me for the award of any
other degree of this or any other Institute.

(Shilpa Rao Rastogi)

This is to certify that the above statement made by the candidate is correct to the best
of my knowledge.

Date. (Prof. (Dr.) Mridul Srivastava)

Supervisor

i
2
 Acknowledgements

This thesis provided me an opportunity to do continuous research on a single topic over a

sustained period of time. It was not possible for me to walk in the complex web of research
without the stout supervision of my guide, Prof. (Dr.) Mridul Srivastava. I am deeply indebted
to her for giving the mantra of studying basic building blocks of any topic before doing any
fruitful research on that topic. This teaching of hers not only inspired this work of mine but
will continue to inspire all the future endeavors of my life.
I owe my deepest gratitude to Prof. (Dr.) T. Bhattacharya for his valuable remarks and
suggestions. I would like to thank Dr. Vijayalaxmi Sharma and Dr. Sony Kulshrestha for their
constant support and encouragement. I am also thankful to the Library Staff of Manipal
University Jaipur and NLIU for providing serene environment to study the rich collection of
books and journals on the subject of my thesis.To my other colleagues at Manipal University
Jaipur, I would like to thank you for your wonderful cooperation as well. It was always helpful
to discuss ideas about my research around with you.
Many people helped me in writing the thesis but it would be impossible to name them all. I
must record a significant and enduring debt to Prof. (Dr.) U.P Singh, who was not only my
supervisor for writing dissertation for completing LL.M at National Law University Bhopal,
but he is the one who provided me a deep insight into the complex and contemporary issues of
Human Rights law. I would also like to thank my elder brother Manish who made many
perceptive and helpful comments on the drafts of the thesis.
My parents and in-laws deserve a particular note of thanks for their wise counsel and kind
words have, as always, served me well. My principal acknowledgement must, as always, be to
my husband Sarthak, who continues to be unbelievably patient and supportive.

Shilpa Rao Rastogi

 PREFACE

Human Rights are the cardinal necessity of all the individuals of all ages to live with dignity,
as life means something more than mere animal existence. The violation of Human Rights on
any ground is a matter of great concern. International and National Human Rights Mechanisms
have witnessed great strides towards the protection of human beings against discrimination of
various kinds. Nonetheless, the violence and discrimination based on sexual orientation and
gender identity continue to be a threat to humanity. Despite the mandate of International
Human Rights law, the instances of discrimination, violence and violation of the basic human
rights on the grounds of sexual orientation and gender identity have been documented in
various States.

The Draconian law criminalizing consensual same-sex acts between adults continue to exist in
many countries including India. The arbitrary interference with the right to privacy and
discrimination in the enjoyment of various economic, social and cultural rights on the grounds
of sexuality and transgenderism is a serious concern in the present legal scenario.

The present work seeks to elucidate the causality of such grievous violation of Human Rights,
witnessed in almost all the parts of the world. The critical analysis of various provisions of the
International Human Rights law and other legal systems has provided an insight into the
lacunae existing in the present legal system. With this work an attempt has been made to
overcome the lacunae present in the existing legal systems and also the impediments in the
implementation of laws for the protection of the basic rights of sexual minorities have been
acknowledged.

Talking about sexuality or anything related to sex is still a taboo in our society and we did not
grow up talking about the same, therefore an empirical study in the given research would not
yield accurate results and the researcher had to rely on the Doctrinal method of legal research.
There is also not much literature on the given subject. Nonetheless, the statement of problem
and research questions were formulated under the guidance of my supervisor. It was an arduous
task to conduct research on the issue dealt with in my thesis but extensive investigation has
allowed me to answer the questions identified in the present research. I was able to complete
my thesis only because of the incessant encouragement and guidance provided to me by my
supervisor. Prof. (Dr.) Mridul Srivastava was always available and willing to answer my
queries. I would like to thank her for the guidance and support during this process of writing
the thesis.

In the end, I am grateful to my family for their avowed support in all the pursuits of my life.

Shilpa Rao Rastogi

 Contents

Candidate’s Declaration ................................................................................................. i

Acknowledgements ....................................................................................................... ii
Preface.......................................................................................................................... iii
Table of Figures .............................................................................................................v
Table of Abbreviations ................................................................................................ vi
Table of Cases ............................................................................................................. vii
INTRODUCTION .........................................................................................................1
MEANING OF THE TITLE OF THESIS .....................................................................2
REVIEW OF LITERATURE ........................................................................................2
STATEMENT OF PROBLEM ......................................................................................5
OBJECTIVES ................................................................................................................5
HYPOTHESIS ...............................................................................................................5
SCOPE OF STUDY.......................................................................................................6
SIGNIFICANCE OF THE STUDY...............................................................................6
METHODOLOGY ........................................................................................................7
SCHEDULE OF WORK ...............................................................................................8

CHAPTER 1 ................................................................................................................9
UNDERSTANDING SEXUAL ORIENTATION AND GENDER IDENTITY
ISSUES ..........................................................................................................................9
1.1 Meaning and Definition .....................................................................................9
1.2 The Issues and Challenges Unique to Homosexual, Bisexual and Transgender
Children............................................................................................................12
1.2.1 Family rejection ...................................................................................12
1.2.2 Homelessness .......................................................................................15
1.2.3 Bullying in school ................................................................................16
1.2.3.1 Available evidence on homophobic bullying in schools .........17
1.2.3.2 Impact of homophobic bullying on mental and psychological
health ........................................................................................21
1.2.4 Homosexual, Bisexual and Transgendered Children in Child Welfare
or Juvenile Justice Agencies ................................................................22
1.2.4.1 The causes and effect of LGBT Youth entering the State Care
Agencies...................................................................................25
1.2.4.2 Mistreatment of homosexual, bisexual and transgendered
adolescents in the State care agencies and Juvenile justice
system ......................................................................................28
1.2.5 Unique health risks to which homosexual and transgendered children
are exposed...........................................................................................30
i. Mental health and other issues .................................................31
ii. Substance abuse .......................................................................32
iii. Sexual and Reproductive Health..............................................34
iv. Obesity, Diabetes and other disorders .....................................35
 v. Cardiovascular diseases and cancer .........................................36
vi. Transgender youth and health issues .......................................37
1.2.6 Hate crimes against homosexual and transgendered children .............38

1.3 The Other Problems Faced by Homosexual, Bisexual and Transgender

Adults ..............................................................................................................43
1.3.1 Marginalization and Social Exclusion .................................................43
1.3.2 Criminalization ....................................................................................44
1.3.3 Legal injustice ......................................................................................44

CHAPTER 2 ..............................................................................................................46
CRITICAL ANALYSIS OF THE EXISTING INTERNATIONAL LEGAL
FRAMEWORK ..........................................................................................................46
2.1 Standards and Obligations under International Human Rights Law ...............47
2.2 The Obligations of the Signatory States under International Human Rights
Law ..................................................................................................................49
a. The obligation to protect the right to life, liberty, and security of
individuals ............................................................................................49
b. The obligation of the States to protect individuals against torture,
inhuman or degrading treatment on the basis of sexual orientation and
gender identity. ....................................................................................51
c. The obligation of the States to protect the right to privacy and
protection against arbitrary detention on the basis of sexual orientation
and gender identity...............................................................................51
d. The obligation to protect individuals against discrimination on the
basis of sexual orientation and gender identity ....................................53
e. The obligation of the State Parties to protect the right to freedom of
speech, expression, peaceful assembly and association without any
discrimination ......................................................................................54
2.3 The Yogyakarta Principles ...............................................................................55
2.3.1 An outline of Yogyakarta Principles: - ................................................56
2.3.1.1 The Preamble ...........................................................................56
2.3.1.2 Right to equality, protection against discrimination and
recognition before the law .......................................................57
2.3.1.3 Right to life and Security .........................................................57
2.3.1.4 Protection against discrimination in the enjoyment of
economic, social and cultural rights.........................................58
2.3.1.5 Right to freedom of Expression, Opinion and Peaceful
Assembly..................................................................................58
2.3.1.6 Right to freedom of movement and asylum.............................59
2.3.1.7 Right to participate in cultural and family life .........................59
2.3.1.8 Protection of Human Rights Defenders ...................................60
2.3.1.9 Rights to redress violations based on sexual orientation and
gender identity .........................................................................61
CHAPTER 3 ..............................................................................................................63
PROTECTION AGAINST DISCRIMINATION BASED ON SEXUAL
ORIENTATION AND GENDER IDENTITY UNDER REGIONAL HUMAN
RIGHTS BODIES ......................................................................................................63
3.1 European Convention on Human Rights .........................................................63
3.2 African Charter on Human and Peoples’ Rights..............................................74
3.3 The Inter American Convention on Human Rights .........................................75
3.4 Asian Legal Framework for The Protection of Homosexual and
Transgendered Individuals ...............................................................................78
3.4.1 Sexual Orientation Issues in Asia ........................................................78
3.4.2 Law Relating to Same -Sex Sexual Activities in Asia .........................79

CHAPTER 4 ..............................................................................................................86
CRITICAL ANALYSIS OF THE EXISTING INDIAN LEGAL
FRAMEWORK ..........................................................................................................86
4.1 Hijra Community in India ................................................................................87
4.2 The Naz Foundation Case ................................................................................92
4.3 Unnatural Offences under Natural Law Theory ..............................................94
4.3.1 Natural Law Based on Reason or Abstract Notion? ............................95
4.3.2 Homosexuality: Natural Phenomenon v. Unnatural Offence ..............97
4.4 Impact of Criminalization of Private Homosexual Acts on Homosexual and
Transgendered Children .................................................................................100
4.5 Obligation of the State to Protect the Rights of the Sexual Minorities under
Indian Legal Framework ................................................................................103
4.5.1 State obligation under the Constitution of India ................................103

CHAPTER5 ............................................................................................................109
EMERGING RESPONSES IN INDIA AND OTHER NATIONS ......................109
5.1 Emerging Responses in India.........................................................................109
5.1.1 Social Acceptance ..............................................................................111
5.2 Other Developments ......................................................................................115

CHAPTER 6 ............................................................................................................118
CONCLUSIONS AND SUGGESTIONS ...............................................................118
6.1 Conclusion .....................................................................................................118
6.2 Suggestions ....................................................................................................120
REFERENCES.........................................................................................................122
APPENDICES
APPENDIX 1. THE SEXUAL MINORITIES (PROTECTION OF RIGHTS)
BILL, 2017

APPENDIX 2. PUBLICATIONS
I. Appendix 2.1: Transfiguring the Laws for Transgenders in India, 4
International Journal of Research and Analysis 5 (2017), ISSN 2347-3185
II. Appendix 2.2: Asian Legal Framework: A Homosexual’s Inferno, 3 Journal on
Contemporary Issues of Law 7 (2017), ISSN 2455-4782
III. Appendix 2.3: Sexual Orientation and Gender Identity Issues of Children in
the Present Legal Scenario: Human Rights Perspective, The Human Rights
Book, Issue:1, ISSN No: 978-1-63415-534-2
IV. Appendix 2.4: Marital Rape in Indian Legal Scenario: Where no is not an
Option, Gender and Violence Different Perspectives (A Collection of
Articles), ISBN:978-81-931620-0-2
V. Appendix 2.5: Ill-Legal Traders: Prostitution and its Aftermath, 5 Human
Rights International Research Journal 1, ISSN 2320-6942
VI. Appendix 2.6: Unnatural Offences under Natural Law Theory, Lex
Revolution, ISSN 2394997x

APPENDIX 3. PAPER PRESENTATION IN CONFERENCE/ SEMINAR

I. Paper on ‘Mainstreaming of Transgenders in India: Human Rights
Perspective’, Presented in the National Seminar on Mainstreaming of
Marginals in India: Issues and Challenges. (May 6, 2017)
II. Paper on ‘Discrimination against Children on the Basis of Sexual Orientation
and Gender Identity’, Presented in the National Colloquium on Human
Dignity and Human Rights: Issues and Challenges in India.
(Apr. 25-26, 2015)
III. Paper on ‘Rights of Dalits’, Presented in the National Seminar on New Dalit
Agenda for 21st Century. (Apr. 11- 12, 2015)
IV. Paper on “Gender and Violence” Presented in the International Conference
Organized by Rit Foundation. (Oct. 9- 12, 2015)
 TABLE OF FIGURES

Figure 1 Gwen Araujo ............................................................................................39

Figure 2 Sakia Gunn ...............................................................................................40
Figure 3 Lawrence King .........................................................................................41
Figure 4 Dwayne Jones ...........................................................................................42
Figure 5 Kaique Batista ..........................................................................................42
Figure 6 Hijra Community in India ........................................................................87
Figure 7 Kamla Jaan ...............................................................................................90
Figure 8 Manabi Bandopadhyay ...........................................................................111
Figure 9 Prithika Yashini appointed as the first Transgender sub-inspector ........112
Figure 10 Transgenders in Kochi Metro .................................................................113
Figure 11 Akkai Padmashali marries Best friend of eight years ............................114
Figure 12 Ireland's First openly Gay Prime Minister- Leo Valadkar .....................115
Figure 13 First Pakistani passport recognizing third gender ..................................116
Figure 14 Nepali Couple registers 'first transgender marriage' ..............................117

v
 TABLE OF ABBREVIATIONS

AIDS : Acquired Immune Deficiency Syndrome

GLSEN : Gay, Lesbian and Straight Education Network

HIV : Human Immunodeficiency Virus

ICCPR : International Covenant on Civil and Political Rights

ICESCR : International Covenant on Economic Social and Cultural

Rights

LGBT : Lesbian, gay, bisexual, transgender

MSM : Men who have Sex with Men

NGO : Non-governmental organization

OHCHR : Office of the High Commissioner for Human Rights

STI : Sexually transmitted infection

UDHR : Universal Declaration of Human Rights

UK : United Kingdom

UN : United Nations

UNCRC : United Nations Convention on the Rights of the Child

UNESCO : United Nations Educational, Scientific and Cultural

Organization

USA : United States of America

WSW : Women who have Sex with Women

WHO : World Health Organization

vi
 TABLE OF CASES

1. A.D.T v. The United Kingdom (Application no. 35765/97) ECHR.

2. B. v. France (Application no. 13343/87)ECHR.
3. Christine Goodwin v. the United Kingdom (Application no. 28957/95)
ECHR.
4. Cossey v. the United Kingdom (Application no. 10843/84)ECHR.
5. Dudgeon v. The United Kingdom (Application no. 7525/76)ECHR.
6. E.B. v. France (Application no. 43546/02)ECHR.
7. Francis Coralie v. Administrator, Union Territory of Delhi, (2006) 8SCC
399:AIR 2006 SC 2945.
8. Grant v. the United Kingdom (Application no. 32570/03)ECHR.
9. I. v. the United Kingdom (Application no. 25680/94)ECHR.
10. Identoba and others v. Georgia (Application no. 73235/12)ECHR.
11. Jayalakshmi v. The State of Tamil Nadu, (2007) 4 MLJ 849.
12. Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors 2017
(10) SCALE 1.
13. K. Prithika Yashini v. The Chairman W.P. NO. 15046/2015 decided on
03.11.2015 by the Hon’ble Madras High Court.
14. Kamala Jaan v. Sadiq Ali and others, Civil Revision No. 1294/2002,
(M.P.H.C.) (Unreported).
15. Karen Atala and Daughters v. Chile Case 1271-04, Report No. 42/08, Inter-
Am. C.H.R., OEA/Ser.L/V/II.130 Doc. 22, rev. 1 (2008).
16. Laskey, Jaggard, and Brown v. U.K , 24 Eur. H.R. Rep. 39 (1997).
17. Lawrence v. Texas 539 U.S. 558, 558 (2003).
18. Lustig-Prean and Beckett v. the United Kingdom (Application
nos. 31417/96 and32377/96)ECHR.
19. M.C. and C.A. v. Romania (Application no. 12060/12)ECHR.
20. Modinos v. Cyprus (Application no. 15070/89)ECHR.
21. National Coalition for Gay and Lesbian Equality v. Minister of Justice,
1999 (1) SA.
22. National Legal Services Authority v. Union of India and others, W.P (C)
No. 604 2013 (unreported).

vii
23. Naz Foundation v. Govt. of NCT of Delhi,160 DLT 277; W.P. (C) No.
7455/2001 (2009) (Delhi HC).
24. Norris v. Ireland (Application no. 10581/83) ECHR.
25. Obergefell et al. V. Hodges, director, Ohio department of health et al. 576
US (2015).
26. Queen Empress v. Khairati, I.L.R. 6 ALL 204.
27. Re: Special Courts Bill, 1987 (1979) 1 SCC 380.
28. Rees v. the United Kingdom (Application no. 9532/81)ECHR.
29. Salgueiro da Silva Mouta v. Portugal (Application no. 33290/96)ECHR.
30. Shivani Bhat v. State of NCT of Delhi W.P Crl 2133/15.
31. Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors.,
(2014)1SCC1
32. Sutherland v. The United Kingdom Application No. 25186/94ECHR.
33. Toonen v. Australia, CCPR/C/50/D/488/1992, UN Human Rights Committee
(HRC), 4 April 1994.
34. X, Y and Z v. the United Kingdom (Application no. 21830/93)ECHR.
35. X. v. Turkey (Application Number: 24626/09)ECHR.

viii
 INTRODUCTION

Every society has its own values regarding appropriate or inappropriate sexuality and
gender. Previously most of the societies condemned homosexual, bisexual and
transgendered individuals and considered them as against morals or people suffering
from some mental or physical disorder. Many societies also imposed the sanction on
such people. At present also there are many States which penalize same-sex
relationships and also consider homosexual, bisexual and transgendered individuals
against morals. Homophobic or transphobic discriminatory practices and violence is,
therefore, a serious predicament, in which basic rights of individuals are neglected.
And privation of fundamental rights including the right to privacy and family life, the
right to social security etc. foster stigmatization for the community and consequently
other human rights abuses against them.

Almost everywhere, people experience violence, discrimination and violations of their

basic rights in the form of killing, rape, verbal or physical assault, arbitrary detention,
denial of right to assembly, speech and expression, discrimination in the sphere of
education, health employment etc. on the basis of their actual or perceived sexual
orientation and gender identity which makes such people vulnerable. And when it
comes to children who are already vulnerable due to their tenderness, young age and
physique, they become easily accessible to various kinds of human rights abuse due to
the stigmatization and being labeled as LGBT. Family exclusion, verbal or physical
harassment, corporal punishments, bullying in the form of name calling and also
physical assault is very common among LGBT children. In fact, in order to fit those
among the heterosexual population or the people whose gender identity and gender
role conform to anatomic sex, parents often force such children to undergo various
reparative therapies in order to alter their sexual orientation and gender identity which
further amounts to child abuse. All these discriminatory practices and acts of violence
adversely affect the physical and mental health of the LGBT community and also
result in the alarming rate of suicidal tendencies, substance abuse, HIV and sexually
transmitted diseases. Despite the gravity of the given situation seldom attention has
been paid to this serious issue.

1
 MEANING OF THE TITLE OF THESIS

The title of the thesis is “Sexual orientation and the gender identity issues in the
present legal scenario: Human rights perspective”. It includes the discrimination and
other practices against individuals on the basis of their sexual orientation and gender
identity which are very serious violations of the human rights.

The phrase “sexual orientation” refers to the general erotic attraction of individuals to
others on the basis of their physical sexual characteristics. It includes heterosexuality,
homosexuality and bisexuality. References to “sexual orientation” in human rights
discussion are almost always about homosexuality for heterosexuality does not attract
discrimination and bisexuals have difficulty gaining visibility as bisexuals. 1

Like sexual orientation all people have a gender identity which means a sense of a
person’s own gender. For transgender youth their innate gender identity differs from
the gender they were assigned at birth. “Transgender” is an umbrella term describing
individuals who depart, to a greater or lesser degree, from the social patterns
associated with their physical sex. 2

The basic human rights issue for homosexual, bisexual and transgendered individuals
is the freedom from discriminatory practices and acts of violence, decriminalization of
same sex relationships and marriage equality. Therefore the title has been framed as
“Sexual orientation and the gender identity issues in the present legal scenario:
Human rights perspective”.

REVIEW OF LITERATURE
1. Douglas Sanders, Sexual and Gender Diversity, Encyclopedia of Human
Rights (Ed. David P. Forsythe.) Volume 4, Oxford University Press, (2009) –
In this article, the author asserts that nowhere in the body of United Nations
treaties and declarations is there any reference to homosexual, bisexual,
transsexual, intersexual or transgendered individuals. The author has further
discussed the problem of discrimination against homosexual, bisexual,

1
Douglas Sanders, Sexual and Gender diversity. Encyclopedia of Human Rights, 435, (Ed. David
P.Forsythe) Vol. 4, Oxford University Press, (2009).
2
Id. at 441.
2
 intersexual and transgendered individuals in the light of UN treaties,
Convention and various case laws.

2. U.N High Commissioner for Human Rights, Discriminatory Laws and

practices and acts of violence against individuals based on their sexual
orientation and gender identity, U.N. Doc A/HRC/19/41, Nov 17 2011- The
given report of the special rapporteur analyses the obligations of the states to
prevent discrimination and violence based on sexual orientation and gender
identity under the international bill of human rights and also suggests the ways
for the protection and mainstreaming of the community.

3. Siddharth Narrain, Crystallising Queer Politics- The Naz Foundation Case and
its Implications for India’s Transgender Communities, 2 NUJS L. Rev. 455
(2009) – In this paper, the author has discussed the impact of the Naz
Foundation Case on the legal status of transgendered individuals in the Indian
society

4. Courtney Duffy, Through a Child’s Eyes: homosexual, bisexual and

transgendered Issues in a Public High School, 32 CHILD.LEG.RTS.J 1
(2012)- The article is based on the author’s interview with a twenty- four year
old graduate student in Chicago who reflected on his experiences with
homosexual, bisexual and transgendered students at public high school in
which he studied. Through the experiences shared by the student during the
interview, the author concludes that the neutral environment towards
homosexual, bisexual and transgendered individuals in the school along with
the resources such as gay- straight alliance club or school counselors,
facilitates a more positive experience for homosexual, bisexual and
transgendered high school students and also protects such issues from being
forced to the forefront and allows such students to handle the issues in their
own way.

5. Caitlin Ryan. , Supportive families, healthy children- Helping families with

lesbian, gay, bisexual and transgender children. San Francisco, CA: Marian
Wright Edelman Institute, San Francisco State University, (2009) - This report
deals with causal sequence of family rejection of LGBT children. It also
3
 discusses about quandary related to the self-awareness of sexual orientation
and gender identity among children.

6. Robert Wintemute, Same sex love and Indian Penal Code Sec-377: An
important Human Rights issue for India, 4NUJS L REV 31(2011) – This paper
discusses the repercussions of criminalization of same sex sexual activity
under Section 377 of the Indian Penal Code in the light of various mandates of
International Human Rights law and also examines the development of the
rights of LGBT community on international front.

7. Danish Sheikh, The Road to Decriminalization: Litigating India’s Anti

Sodomy Law, 16. YALE Hum. Rts. & Dev. L.J. (2014) - This paper reflects
the struggle of homosexual, bisexual and transgendered individuals in India. It
also discusses the impact of Naz foundation judgement in India.

8. Geetanjali Misra, Decriminalising homosexuality in India, 17 Reprod. Health

Matters (2009) – This paper examines the fight against the provision in
Section 377 of the Indian Penal Code that penalised private consensual sex
between adults of the same sex. It concludes that further legal and social
changes are needed for LGBT individuals to gain full acceptance and equality
within Indian society.

9. Dimitrina V. Petrova, The Use of Equality and Anti-discrimination Law in

Advancing LGBT Rights, School of Advanced Study, University of London
(2013) – The given chapter is concerned with the ongoing debate related to the
criminalization of homosexuality in the Commonwealth Nations in the name
of culture religion and moral values. It further suggests ways in which the
right to equality and non-discrimination can be used as a prospective tool for
decriminalization of consensual same sex relationship.

10. Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, 41
Econ.Polit.Wkly.46 (2006) - This paper seeks to explain the provision related
to criminalization of consensual same sex sexual activity under Section 377 of
the Indian Penal Code, 1860. It further discusses the aftermath of such
criminalization and its impact on the sexual minorities.

4
11. Lucie Cviklova, Advancement of human rights standards for LGBT people
through the perspective of international human rights law, 3 Journal of
Comparative Research in Anthropology and Sociology 2 (2012) - The article
examines the development and responses of various religious and legal
systems towards the reconstruction of the concept of sexuality and gender. It
also seeks to appraise the role of international human rights framework in the
augmentation of the rights of homosexuals and transgenders.

STATEMENT OF PROBLEM

Homophobic and transphobic attitude along with the lack of adequate legal protection
against discrimination based on sexual orientation and gender identity expose almost
all homosexual, bisexual and transgendered individuals of all ages to the grievous
violations of human rights.

OBJECTIVES

1. To identify the causal nexus of repudiation and discrimination against

homosexuals and transgenders.
2. To examine the various provisions of existing international and national
human rights framework in order to determine the lacunae that engenders
discrimination against sexual minorities.
3. To determine general trend of development of the rights of homosexuals and
transgenders in the light of emerging responses of various nations towards
homosexual, bisexual and transgendered population.

HYPOTHESIS

The present international and national human rights scheme does not restrain
discrimination and other forms of human rights abuses against homosexuals and
transgendered individuals.

5
 SCOPE OF STUDY

The present study comprises critical analysis of both International and national legal
framework for the protection of human rights.

SIGNIFICANCE OF THE STUDY

Almost all homosexual, bisexual and transgendered individuals face discrimination

and violation of their basic rights in every society due to the misconception regarding
sexuality and transgenderism. More so, homosexual acts are still criminalized in many
parts of the world. However, the International bill of rights including various
Covenants and Conventions which sets out various rights also do not include sexual
orientation and gender identity in the prohibitive grounds of discrimination and also
do not address the need of protection of individuals from discrimination against the
community. Despite the fact that the concept of human rights is dynamic and new
challenges are emerging in the realm of human rights, these international instruments
are not updated or amended in accordance with the changing social order since its
inception. LGBT community in itself is vulnerable and socially segregated and among
the community homosexual or transgendered children are further neglected. Recently
some groups and non-governmental organizations (NGOs) are coming up in the
support of homosexual, bisexual and transgendered individuals but the issues related
to LGBT children are still not addressed by majority.

In India also same sex sexual activity is criminalized under the penal code and there is
no explicit provision for the protection of homosexuals and transgendered individuals.
Although, at present, there are some NGOs and groups who are supporting and
advocating the sexual and reproductive rights (such as right to marry, right to have
children etc.) of homosexual, bisexual and transgendered individuals, but still
homophobic or transphobic discrimination against individuals continue to prevail in
the country and plight of homosexual and transgendered children is nowhere
addressed in the recent studies and researches related to the community. Government
and other organizations have mostly neglected the issue and also there are negligible
positive efforts for the community that would help in their mainstreaming. The
stigmatization and discriminatory practices related to the homosexuals and

6
transgendered individuals, detrimental to the dignity of the individuals are still in
vogue. Hence, the study is quite relevant and holds much significance in the present
context.
METHODOLOGY

a. Research Methodology
The legal research methodology adopted in the study is doctrinal. The nature
of work is both analytical and descriptive. The research design of the given
study is exploratory and experimental. The present study is based on the
projective and predictive model of legal research in order to anticipate the
effect of the proposed legal measure. Both primary and secondary material
sources of law are used in the present study.

In the present study, comparative research method is also used to draft a bill
for the protection of the rights of sexual minorities and transgendered
individuals by comparing the concerned laws of various countries.

b. Sample size and Sampling technique

Not applicable

c. Tools for collecting data

Both primary and secondary material sources of law are used in the present
study as the research methodology adopted in the study is doctrinal.

d. Analysis and interpretation of data

Inferring causal relations.

e. Anticipated results
The present international and national legal framework needs to be updated in
order to meet the challenges of changing social order and developing theories
related to sexuality, genderism and other ancillary matters. Homophobic or
transphobic discriminatory practices and acts of violence persists to be a
global threat. Governments and other state agencies have mostly neglected or
even justified, in some cases, violence and discrimination based on sexual
orientation and gender identity in the name of religion, culture and moral
values.

7
 SCHEDULE OF WORK

1. INTRODUCTION – This part deals with the introduction to the topic and the
basic framework governing the given thesis.
2. UNDERSTANDING SEXUAL ORIENTATION AND GENDER IDENTITY
ISSUES – This part deals with the definitions and various theories related to
sexual orientation and gender identity along with the issues and challenges
unique to homosexual, bisexual and transgendered individuals.
3. CRITICAL ANALYSIS OF EXISTING INTERNATIONAL LEGAL
FRAMEWORK- This part deals with the detailed analysis of the various
provisions envisaged in the international bill of rights with reference to the
protection of individuals from homophobic or transphobic discrimination and
other violent acts.
4. PROTECTION AGAINST DISCRIMINATION BASED ON SEXUAL
ORIENTATION AND GENDER IDENTITY UNDER REGIONAL HUMAN
RIGHTS BODIES- This part deals with the present condition of LGBTs and
various cases related to the sexual minorities in the given Regional
Mechanism for the protection of Human Rights. This part also deals with the
critical analysis of various cases and laws related to the sexual minorities in
Asia in the absence of a Regional Mechanism.
5. CRITICAL ANALYSIS OF THE EXISTING INDIAN LEGAL
FRAMEWORK – This part deals with the detailed analysis of the provisions
related to the obligation of the State to protect individuals from discrimination
under Indian Constitution and other Indian statutes. The present chapter also
deals with the position of homosexual, bisexual and transgendered individuals
including hijra community in the Indian society and the impact of
criminalization of private homosexual acts with reference to various
judgments.
6. EMERGING RESPONSES IN INDIA AND OTHER NATIONS- This part
deals with the development of jurisprudence related to sexual minorities and
transgenders in the light of emerging responses and the initiatives taken by
India and other States towards the protection of LGBT community against
discrimination.
7. CONCLUSION AND SUGGESTIONS
8
 CHAPTER 1
UNDERSTANDING SEXUAL
ORIENTATION AND GENDER
IDENTITY ISSUES
 CHAPTER 1
UNDERSTANDING SEXUAL ORIENTATION AND GENDER
IDENTITY ISSUES

1.1 Meaning and Definition

Sexual orientation refers to an individual’s pattern of physical and emotional arousal
toward other persons. 3 People can be categorized into three broad categories, i.e.
heterosexuals, homosexuals and bisexuals, on the basis of their sexual orientation.
Individuals who are attracted towards the persons belonging to the opposite sex are
called as heterosexuals. Human rights concerns related to sexual orientation do not
include heterosexual population as the population does not attract discrimination.
Individuals who are attracted towards both male and female population are called as
bisexuals. Bisexuals have difficulty gaining visibility as bisexuals and therefore most
of them also do not attract discrimination or violence based on their sexuality.
However, reference to sexual orientation or sexuality in human rights are always
about homosexuals. Homosexual individuals are the ones who are attracted towards
the persons belonging to the same sex. Homosexual males are often referred to as
“gay”, homosexual females are often referred to as “lesbian”.

The ambiguity related to homosexuality is the root cause of all the controversies and
human rights abuse in many societies. It is still believed in many cultures that same
sex behaviour is some sort of mental illness and is also condemned in the name of
religion and moral values. In fact, when the UN was founded, it was widely believed
that homosexuality was an illness or a psychological problem that perhaps could be
prevented or cured. Medical views of sexual and gender variation changed
significantly in the twentieth century. Various studies, the most famous being those of
Alfred Kinsey 4, demonstrated that variations in sexual orientation were common. The
studies of Evelyn Hooker showed that psychological tests were unable to determine

3
Barbara L. Frankowski, American Academy of Pediatrics Committee on Adolescence, Sexual
Orientation and Adolescents, Volume 113 Issue 6,(2004).
4
Alfred Charles Kinsey was an American biologist, professor of entomology and zoology, and
sexologist who in 1947 founded the Institute for Sex Research at Indiana University, now known
as the Kinsey Institute for Research in Sex, Gender and Reproduction. He is best known for
writing Sexual Behaviour in the Human Male (1948) and Sexual Behaviour in the Human Female
(1953), also known as the Kinsey Reports, as well as the Kinsey scale.
9
differences in adjustment between homosexuals and heterosexuals 5. It was evident
from other studies that homosexual activity was common in various animal species.
Then, homosexuality was removed from the list of pathological conditions by medical
associations in the United States and United Kingdom in 1973, by the World Health
Organization (WHO) in 1983, and by medical associations in many countries,
including China in 2001 and by the early twenty-first century medical experts
generally assumed that sexual orientation is determined either genetically or
physiologically. This suggests they are not “chosen” and cannot be altered by
treatment. 6

However, there are others asserting that there could be some other possible reasons
for a person to become a homosexual such as sexual abuse at young age and
misconception related to sex.

It is often asserted that if a child is sexually abused then such child may develop
hatred or fear towards the gender of the abuser and become homosexual. Most of the
children are more likely to be abused by a male. In a case where a female child is
abused by a male, sexual abuse at an early age seems to be a justified cause for the
victim to become homosexual but the same is not true for male children who are also
more likely to be abused by a male. It is also believed that unhealthy sexual
relationship with adults in childhood is also a cause of homosexuality as it results in
perplexed concepts of sex and sexuality. There also some societies alleging that
homosexuality is a modern concept. Despite these contentions related to
homosexuality, many medical associations including American Association of
Pediatrics hold that the sexual orientation is determined either genetically or
physiologically.

Gender identity is the knowledge of oneself as being male or female, and gender role
is the outward expression of maleness or femaleness. Gender identity and gender role
usually conform to anatomic sex in both heterosexual and homosexual individuals.
Exceptions to this are transgendered individuals. Transgender individuals feel

5
Evelyn Hooker was an American Psychologist most notable for her 1957 paper “The Adjustment
of the Male Overt Homosexual” in which she administered several psychological tests to groups of
self-identified male homosexuals and heterosexuals and asked experts to identify the homosexuals
and rate their mental health.
6
See Douglas Sanders, Supra note 1 at 433.
10
themselves to be of a gender different from their biological sex; their gender identity
does not match their anatomic or chromosomal sex. Transgendered individuals can be
heterosexual, homosexual, or bisexual. 7

The terms “sexual orientation” and “gender identity “ are easily confused because of
the predominant belief that a transgendered person who dresses and acts in a manner
associated with the opposite sex must also be a member of a sexual minority, but that
is not true. For example, a male who has long hairs and wears a skirt and blouse
expresses a feminine appearance, but he may still be attracted to other females.
Similarly a female who has a short hair and wears a suit and tie expresses a masculine
identity but may in fact be attracted to males.

References to “sexual orientation” and “gender identity” in human rights discussions

are almost always about homosexuals and transgendered individuals because
heterosexuals and other individuals whose gender identity is similar to their anatomic
sex do not attract discrimination and bisexuals have difficulty gaining visibility as
bisexuals. 8

In the present time, there is a considerable number of members of the society who
hold that sexual orientation and gender identity are not immutable and they also
advocate the rights of sexual minorities including transgenders. Previously it was
widely believed that individuals need to have a sexual relations in order to understand
their sexual orientation, but this is contrary to the fact. According to a report of
Family acceptance project conducted by Caitlin Ryan at San Francisco State
University, children become aware of their sexual orientation in their teenage without
resorting to sexual relationship and also some children may realize the same even
before the age of 13 9. It was also observed that many young people do not associate
themselves with the homosexual community even after being attracted to the
members of the same sex. Furthermore, there is no well-founded technique to
ascertain the sexual orientation of individuals which makes the issue more sensitive.

7
See Barbara L. Frankowski Supra note 3.
8
Id. at 436.
9
Caitlin Ryan, Supportive families, healthy children: Helping families with lesbian, gay, bisexual &
transgender children. San Francisco, CA: Family Acceptance Project, Marian Wright Edelman
Institute, San Francisco State University, 2009 http://familyproject.sfsu.edu/sites/default/
files/FAP_English% 20Booklet_pst.pdf, (Last accessed on 15/03/15).
11
Similarly, like sexual orientation, gender identity is also established at younger age,
usually by 3. 10

Children adopt their gender role in accordance with their gender identity and anatomic
sex. The exception to this is transgender children whose gender identity and gender
role do not conform to their biological sex. Transgender children adopt gender roles
according to their gender identity which is in conflict with their anatomic sex and
such a behaviour may attract non-acceptance and in some cases even sanction as the
society may not approve of the same in the name of culture or moral values. 11

Most of the homosexuals and transgendered children conceal their sexual orientation
and gender identity because of the stigmatization attached to it and also under the fear
of being discriminated and hurt by others, and also to prevent their families from
embarrassment and shame attached to homosexuality and transgenderism in the
conservative societies.

1.2 The Issues and Challenges Unique to Homosexual, Bisexual

and Transgender Children
Unlike other children, homosexual, bisexual and transgendered children are exposed
to various issues and risks such as family rejection or non-acceptance by the family,
homophobic bullying, hate crimes, unique health risks etc. which are discussed
below:-

1.2.1 Family rejection

In order to prevent their homosexual or transgendered children from stigmatization,
harassment and abuse related to their sexual orientation and gender identity, many
parents and guardians try to place their children in the heterosexual population and
with the other individuals whose gender identity and gender role conform to their
anatomic sex. Such parents often try to change their children’s sexual orientation or
gender identity through certain therapies and may also prevent their children from
having access to various groups or resources related to homosexuality or

10
Shannan Wilber, Caitlin Ryan, and Jody Marksamer, Serving LGBT youth in out-of-home care:
Best Practice Guidelines, Child Welfare League of America (2006), http://www.nclrights.org/wp-
content/uploads/2013/07/bestpracticeslgbtyouth.pdf, (Last accessed on 15/03/15).
11
Id.
12
transgenderism, from where such children may learn about homosexuality or
transgenderism for a positive development. 12

Parents of such children justify their unacceptability towards homosexuality or

transgenderism and their resorting to various methods to alter the behaviour of their
children in the name of love and care towards their children. On the other hand, such
children may feel completely rejected which adversely affects their mental or physical
health. 13

This further leads to pressurize such children to conceal their sexual orientation or
gender identity under the fear of rejection or unacceptability of the society members
including parents who believe that homosexuality is against moral values and even
against religion. This concealment has serious implications on the development of
homosexual or transgender youth as it leads to lowering of self-esteem of such
individuals. 14

In a study conducted by Family Acceptance project 15 in San Francisco the cause and
effects of non-acceptance and family rejection based on homosexuality and
transgenderism were outlined. This study was the first to determine the causal
sequence of such homophobic or transphobic rejection. It was also found that the
homosexual or transgendered individuals who were rejected by their families suffered
from low self-esteem as compared to other individuals who were supported by their
families. 16

It was also observed that the family rejection based on sexual orientation and gender
identity is detrimental to the mental and physical health of such individuals. The
homosexual or transgendered youth rejected by their families are more likely to
commit suicide and report high levels of depression and not only this such individuals

12
See Caitlin Ryan, Supra note 9 at 4.
13
Id.
14
Id.
15
The Family Acceptance Project is a research, intervention, education and policy initiative that
works to decrease health and mental health risks for lesbian, gay, bisexual and transgender
(LGBT) children and youth, including suicide, homelessness and HIV – in the context of their
families.
16
See Caitlin Ryan, op cit. at 5.
13
are also exposed to higher risk for substance abuse, HIV and other sexually
transmitted diseases 17.

As compared to the homosexuals and transgendered individuals who were supported

by their families, the ones who were rejected by their families had poor health. In fact
the rejected ones were more likely to use illegal drugs due to the anguish. And it was
further observed that due to the uncertainties they were more likely to not to protect
themselves from HIV and other sexually transmitted diseases which further exposes
them to higher risk of HIV and other diseases.

Some parents may also inflict corporal punishment when they come to know that their
child is homosexual or transgender. They may also prevent their children from having
access to various programmes designed for the LGBT community. And this family
rejection may also result in social exclusion when the parents prevent their
homosexual or transgender children from attending family or other social events out
of embarrassment. 18

Behaviours related to family rejection based on sexual orientation and gender identity
include, but are not limited to, infliction of corporal punishment, verbal or physical
harassment, exclusion from family or other social events, deterring homosexual or
transgendered individual or child from having access to the events and resources
related to homosexuality or transgenderism, forcing their children to hide their actual
sexual orientation or gender identity, not supporting their children on being
discriminated or abused on the basis of their sexual orientation and gender identity,
intimidating children to behave in a particular way to look more masculine or
feminine, etc. 19

Furthermore, many homosexual and transgender youth are forced by their parents to
undergo reparative therapy, which is a method of psychotherapy and attempts to alter
20
homosexuality by converting them into heterosexuals. As per the report of
American Academy of pediatrics the various therapies intended to change sexual

17
Id.
18
Id. at 8.
19
Id.
20
Jack Drescher, I’m Your Handyman: A history of Reparative Therapies, 36 J.
HOMOSEXUALITY 19, 21 (1998).
14
orientation can lead to high levels of anxiety and depression with the null probability
of changing the sexual orientation. 21

1.2.2 Homelessness
Homosexual, bisexual and transgendered youth are overrepresented in the homeless
population. Most homosexual, bisexual and transgendered youth become homeless
because of family abuse, neglect, or conflict over their identity. Many homeless
homosexual, bisexual and transgendered youth are kicked out of their homes while
others ran from foster and group homes because of being mistreated or harassed. 22
Homosexual, bisexual and transgendered children while living on the streets are at a
greater risk of physical and sexual exploitation at the hands of adults, police and other
street children.

Street children who are often subjected to abuse, neglect, exploitation etc. become
more vulnerable when labeled as homosexual, bisexual and transgendered. In
addition, they are more likely to report being asked by someone on the streets to
exchange sex for money, food, drugs, shelter, and clothing than heterosexual
homeless youth. Unfortunately, many homosexual, bisexual and transgendered
homeless youth resort to trading sex to meet their basic needs. 23

In fact, trying to sustain oneself with the life on a street in itself is challenging and
may result in other health issues. Moreover such homeless homosexual or
transgendered youth are more likely to be discriminated and also may face difficulties
while accessing other services related to shelter homes as compared to the other
homeless population. The homosexual or transgendered homeless population
including children are exposed to violence and other forms of exploitation and abuse
on the streets and they are also more likely to indulge in other criminal activities in
the absence of proper shelter and other development opportunities. Furthermore, their
various human rights such as the right to life including the right to live with dignity
and the right to the minimum sustenance of life are at stake. 24

21
Homosexuality and Adolescence, Journal of Pediatrics (Oct 1993), http://pediatrics.
aappublications.org/ content/92/4/631 (Last accessed on 21/04/15).
22
National Recommended Best Practices for Serving LGBT Homeless Youth (Washington), http://
endhomelessness.org/library/entry/national-recommended-best-practices-for-serving-lgbt-
homeless-youth (Last accessed on 25/04/15).
23
Id.
24
Id.
15
1.2.3 Bullying in school
The significance of the right to education cannot be overlooked and also it is
considered to be an inseparable part of the right to life 25. It is one of those basic rights
which not only helps in acquiring knowledge but also aids in the development of the
individuals. Learning environment plays a crucial role in the psychological and
physical development of children. However, bullying in school is one of the biggest
obstacles that not only prevents the development of children but also violates the right
to education. 26

It is widely believed that bullying in school is a frivolous part of the system.

However, according to the report of the United Nations on Violence against
children 27, bullying is a severe threat to the educational systems throughout the world.
Bullying in educational institutions can be in various forms such as calling names,
physical or verbal assault, social exclusion etc. Disabled children or the children
belonging to a particular minority group or specific socio-economic background are
more susceptible to bullying in educational institutions. It has been observed that
bullying not only adversely affects the health of children but also their learning
capacity. In worst cases, it may also result in suicidal tendencies, depression and low
self-esteem. 28

Bullying on the basis of sexual orientation or gender identity exposes children to

serious repercussions. It not only violates human rights of such children but also
hinders their development. It is a global threat occurring in almost every society. Such
type of bullying is a form of discrimination based on sexual orientation and gender
identity and it is as unacceptable as the other grounds of discrimination such as race,
color, sex, ethnic origin, sex etc. 29 The protection against such bullying can be

25
Mohini Jain v. State of Karnataka, AIR 1992 SC 1858 at 1864: (1992) 3SCC 666.
26
Education Sector Responses to Homophobic Bullying, Good Policy and Practice in HIV and
Health Education Booklet 8, United Nations Educational, Scientific and Cultural Organization
(2012), p. 11, http://www.unesco.org/new/en/education/themes/leading-the-international-agenda/
health-education/homophobic-bullying/, (Last accessed on 12/05/15).
27
World report on violence against children, Geneva: United Nations Secretary-General’s Study on
Violence Against Children, http://www.unicef.org/violencestudy/reports.html, (Last accessed on
22/05/14).
28
Stopping Violence in Schools: A guide for teachers, UNESCO (2011) p. 11, http://unesdoc.
unesco.org/ images/0018/001841/184162e.pdf, (Last accessed 22/05/15).
29
Id. at 12.
16
grueling, specifically in the societies where homosexuality or transgenderism is a
taboo or against the law. 30

Homophobic or transphobic attitude may develop in the early school days when
children casually use words such as “gay” or “faggot” for insulting or abusing. 31
Bullying on the basis of sexual orientation or gender identity includes various
discriminatory practices and acts of violence such as calling names, abusing,
defamation, verbal or physical assault, sexual abuse, social exclusion, hate crimes
including criminal intimidation. 32

Such type of bullying is mostly initiated by the students in the educational institutions
but in some cases it is also perpetrated by the teachers and the other staff members. In
a research conducted in five universities of Lebanon, it was found that the
homosexual or transgendered students were more likely to be bullied by the other
students but in some cases also by the staff members including teachers. In few cases
it has been reported by the LGBT children that their teacher did not allow them to sit
in the class and consequently they were isolated by their class mates too for their
33
sexual orientation and gender identity.

1.2.3.1 Available evidence on homophobic bullying in schools

Although homophobic or transphobic bullying has been mostly overlooked but still
few states have collected the data on such specific kind of bullying. The data collected
so far reveals shocking state of Educational institutions indicating towards the
alarming existence of this serious issue. 34
• In Chile, more than 60% of the LGBT population reported homophobic or
transphobic bullying in educational institutions. On the same lines, bullying in
the form of physical assault was reported by more than 40% of the
homosexual male population of Brazil during their school days. 35

30
Id. at 1.
31
Mark Jennet, Stand up for us, challenging homophobia in schools, UK: Department of Health
(2004), 4, http://www.nice.org.uk/niceMedia/documents/stand_up_for_us.pdf, (Last accessed
23/05/15).
32
Id.
33
See Education Sector Responses to Homophobic Bullying, Supra note 26 at 18.
34
Id.
35
The Principles in Action, http://www.ypinaction.org/files/01/94/Homophobia_in_schools.pdf,
(Last accessed on 2/06/15).
17
• In South Africa also the majority of the LGBT population reported bullying in
various forms such as verbal or physical abuse in school not only from the
fellow students but also from the staff including teachers and other
administrators. It was further reported that the bullying was not only limited to
verbal or physical abuse but was also experienced in various other forms such
as sexual abuse, criminal intimidation, calling names, harsh comments, hate
speech etc. Bullying can also be indirect through spreading rumors or social
exclusion. 36

• In Ireland also more than 50% of the LGBT population reported homophobic
or transphobic bullying in educational institutions not only by the students but
also by the administrators and course instructors. Some of them also reported a
physical assault by the peers. 37

• The analysis of a research conducted in the United Kingdom reveals shocking

facts. About 90% of the reported homophobic or transphobic bullying in both
primary and secondary school. More so, homophobic bullying was also
identified as one of the most frequent forms of bullying in the same research.
Apart from this, there were many other kinds of research conducted which
revealed that LGBT children are more susceptible to the discrimination in the
form of bullying. It was also found that such bullying was not only limited to
verbal or physical abuse but also included life threats. In another survey it
was found that almost all LGBT individuals have been bullied in schools or
other educational institutions by name calling and other hate remarks. It was
also found that many homosexual and transgendered individuals reported that
bullying is at its worst in faith or religion based schools. 38

• In France, Belgium, Hungary, the Netherlands and Spain also more than 40%
LGBT children reported bullying in the form of contemptuous caricature,
name calling, social isolation and criminal intimidation. Similar findings have
39
also been reported in Israel.

36
See Education Sector Responses to Homophobic Bullying, Supra note 26 at 18.
37
Id.
38
See Education Sector Responses to Homophobic Bullying, Supra note 26 at 18.
39
Id.
18
• The survey conducted in the United States of America reveals a shocking state
of LGBT children in educational institutions. More than 80% of the LGBT
youth reported bullying in the form of name calling, verbal or physical assault,
and criminal intimidation. It was also found that the derogatory comments for
the LGBT children were not only made by the peers but also by the staff
members. A considerable part of the LGBT population also confessed that
they do not feel safe at school. In other reports of various research conducted
in educational institutions, similar facts were observed. It was also found that
bullying was very common in schools, especially for the learners belonging to
the LGBT community. In Canada also more than 50% of the homosexual
children and more than 75% of the transgendered children reported bullying in
the form of verbal abuse and derogatory remarks not only from the peers but
also from the teachers. 40

• More than 50% of the homosexual men in India and Bangladesh also reported
bullying in various forms including harassment from both peers and teachers
in the educational institutions. However, in Japan, the percentage of the
homosexual men who reported bullying in the educational institution is quite
high. It was found that more than 80% of homosexual men reported bullying
in the educational institution. In Hong Kong also more than 40% of the LGBT
population had experienced bullying based on sexual orientation and gender
identity in the form of both physical and verbal abuse and also in the form of
social exclusion. Similar are the findings of Australia and New Zealand. In
Australia, more than 60% of the LGBT population reported bullying based on
homophobic or transphobic attitude of most of the people in educational
institutions. In New Zealand also more than 60% of the homosexual
population reported bullying in the form of verbal abuse and hate speech. 41

It was found that the individuals who have had experienced homophobic or
transphobic bullying at a young age, have usually higher suicidal tendencies as

40
Id.
41
Id.
19
compared to the others who did not experience such specific type of bullying. And
42
also it may lead to absenteeism in school or other educational institutions.

It is also evident from the various research conducted in school and other educational
institutions that bullying can adversely affect the learning pattern of such individuals
and in some cases it may also result in absenteeism, poor academic performance and
also early drop out from such educational institution. It was also found that
homophobic bullying in the form of assault or criminal intimidation, hate speech etc.
are directly responsible for absenteeism. 43In many cases, LGBT children miss their
classes by pretending to be ill or on the account of incomplete school work. Also, a
considerable number of LGBT adolescents avoid going to educational institutions
because of the fear of getting hurt and safety issues. More so unacceptability of the
LGBT youth among peers and other members of the institution also makes such
individuals uncomfortable among other peers and also adversely affect their learning
interests and in some worst cases may result in ending education early. 44

Absenteeism in school adversely affects academic performance but ending education

early affects future career prospects as the LGBT youth who end up their career early
have comparatively lesser educational qualification which adversely affects their
future employment prospects. Fear, reduced self-esteem, low confidence level, social
isolation are the other factors which make the situation worse for the LGBT
population. 45

42
See Mark Jennet, Supra note 31 at 8.
43
Id.
44
Id. at 21.
45
Id.
20
1.2.3.2 Impact of homophobic bullying on mental and psychological health
Bullying based on sexual orientation and gender identity not only affects education
and future career prospects of the LGBT youth but also has an adverse effect on their
mental and psychological health. It is clearly evident from the studies that
homophobic or transphobic bullying is strongly associated with lower self-esteem,
depression, anxiety, low level of confidence, disturbed sleep and disturbed pattern of
daily routine. The victims of such homophobic or transphobic bullying are more
46
likely to commit suicide as compared to other young people.

It is also established through various studies that the individuals who have been a
victim of homophobic or transphobic bullying are more likely to use illegal drugs and
also they are more likely to engage in such sexual behaviours which may increase the
risk of HIV and other sexually transmitted diseases. 47

• In a research conducted in Ireland, it was established that bullying based on

sexual orientation and gender identity is strongly associated with high levels
of suicidal tendencies. It was also observed that the average age in which
children become aware of their sexual orientation, i.e. 12-16 years, was also
the average age at which such children were more likely to cogitate suicide. 48

• In another research, it was found that the homosexual men who were the
victims of homophobic bullying, were more likely to have been diagnosed
with poor mental health and also have been referred to the health counselor for
having attempted to commit suicide. In the UK also a research conducted on
bullying revealed the similar facts. It was found that more than 50% of the
LGBT population were more susceptible to suicidal tendencies. 49

• In another research conducted in the parts of Latin America, it was found that
the majority of the LGBT population blame homophobic or transphobic
bullying for their distress and struggle in life. Many of the respondents said

46
Id. at 22.
47
Id.
48
Id.
49
Id.
21
 that such type of bullying made them to live under the fear and also there were
few who reported suicidal tendencies. 50

• In a study conducted in USA it was established that there is a very strong

connection between homophobic or transphobic bullying and suicidal
tendencies. The victims of such specific bullying were more likely to attempt
committing suicide. In another study it was found that more than 30% of the
transgendered population had attempted to commit suicide due to
discrimination in the form of bullying based on sexual orientation and gender
identity. 51

• In another study conducted in the Netherlands, it was found that more than
10% of the LGBT youth have attempted to commit suicide at least once. It
was also found that more than 50% of the LGBT population reported suicidal
tendencies. 52

Bullying based on sexual orientation and gender identity not only adversely affects
the mental and psychological health of the victims of such bullying but also that of the
bullies. Those who are involved in such specific form of bullying as perpetrators are
more likely to suffer from depression and other psychological problems as compared
to the other peers involved in the other delinquent acts. As per the various
psychological studies, the children involved in bullying including both the victims and
the culprits, are more likely to suffer poor mental health as compared to other peers.
Homophobic or transphobic bullying has an adverse effect on everyone involved in
53
such a discriminatory act including other non-participant bystanders.

1.2.4 Homosexual, Bisexual and Transgendered Children in Child Welfare or

Juvenile Justice Agencies
In the present scenario, a considerable number of LGBT children is apparent in the
various institutions of the society such as families, cultural or religious communities,
educational institutions and also child welfare or juvenile justice agencies. 54 Many

50
Id.
51
Id.
52
Id.
53
Id. at 23.
54
See Best Practice Guidelines: Serving LGBT youth in out-of-home care, Supra note 10.
22
LGBT adolescents end up in such state agencies due to their delinquency which is
directly attributable to the discrimination and non-acceptance based on sexual
orientation and gender identity 55. Because of being neglected or not accepted by their
parents and society at large, LGBT children may engage in certain activities which are
not legal. And consequently, such children end up in the state care agencies related to
child welfare and juvenile justice system. Social exclusion and marginalization are
directly proportional to juvenile delinquency and a higher risk of involvement in such
state care agencies. However, the state care agencies entrusted with the care of
children fail to address the special needs of LGBT children. Most of these agencies
have not developed understanding related to the sexual orientation and gender identity
issues of the children and continue to neglect the special needs and care of LGBT
children which further amounts to discrimination based on sexual orientation and
gender identity. 56

Almost, all the state agencies charged with the care and administration of justice
related to juveniles have overlooked the special needs of the LGBT children
according to their sexual orientation and gender identity. These agencies often try to
fit such children in the need of care amongst other adolescents whose needs may be
different as compared to them. The ignorance and the lack of guidance related to
sexual orientation and gender identity issues of adolescents result in discriminatory
practices based on the homophobic or transphobic attitude of the public at large. 57

The failure of state agencies, charged with the care of children in the need of care or
conflict with the law, in addressing the needs of the LGBT children is clearly evident
from certain common practices such as:-
• Many state agencies consider homosexual adolescents unfit for adoption
because of their sexual orientation.
• The staff members of the state agencies often blame the homosexual
transgendered youth who have been harassed or discriminated for their distress
because most of them believe that such homosexual or transgendered youth
himself invited such a discriminatory treatment by being open about their
sexuality or transgenderism.

55
Id. at xiii.
56
Id. at ix.
57
Id.
23
• Despite the adverse effects of reparative therapies as explained by various
medical associations including the American Association of Pediatrics, many
state agencies refer homosexual adolescents to the counselors for
administering therapies on them in order to fit them among the heterosexual
population. Such therapies may lead to various serious psychological disorders
such as depression, low self-esteem, suicidal tendencies etc.
• Many a time, the staff members of the state agencies, charged with the
administration of juvenile justice and child welfare, place LGBT adolescents
in isolation as a remedy for prevention against discrimination based on sexual
orientation and gender identity which consequently violates their basic rights
such as the right to education, the right to have access to various networks and
groups supporting LGBT population, the right to freedom of speech and
expression, the right to life and personal liberty and other ancillary rights.
• Foster parents of the homosexual or transgendered children in the need of care
often resort to various ways such as verbal abuse, corporal punishments, and
exclusion from the family engagement etc. to fit such children among so-
called “normal” population.
• The staff members of the state agencies in charge of children welfare
commonly move LGBT adolescents from one place to other to protect them
from ongoing rejection and other discriminatory practices. This constant
shifting not only adversely affects the stability but also deprive such children
of a permanent home or shelter.
• The state agencies for the welfare of children mostly neglect the need of
separate washrooms for the transgendered adolescents.

Most of the homosexual or transgendered adolescents in the state care agencies do not
disclose their sexual orientation or gender identity due to the stigmatization and also
under the fear of non-acceptance and other discriminatory practices associated with
sexuality and transgenderism. The nondisclosure of sexual orientation or gender
identity makes it impracticable to ascertain the actual number of LGBT adolescents in
such state care agencies.

In a research conducted in San Diego, it was found that more than 75% of the LGBT
youth hold that they were subjected to violence and other discriminatory practices on

24
the disclosure of their sexual orientation or gender identity to the service providers of
the state care agencies. 58

1.2.4.1 The causes and effect of LGBT Youth entering the State Care Agencies
However, there is no reliable source or statistical data to show the actual number of
LGBT adolescents in the state care agencies but the staff members of such agencies
and juvenile justice administration have frequently reported the issues related to the
LGBT children in the state care agencies and other reformatories. Homosexual or
transgendered children may end up in the state care agencies or juvenile justice
system for many reasons related directly or indirectly to their sexual orientation or
gender identity, such as:-

Many LGBT children enter the foster care agencies because of being abandoned on
the disclosure of their homosexuality or transgenderism. Certain LGBT adolescents
also enter the state foster care or juvenile justice administration as a prevention from
the ongoing abuse or neglect from their parents or the society in which they used to
live. A considerable number of LGBT youth enter juvenile justice administration
system because of the use of illegal drugs which is directly attributable to the neglect
and non-acceptance based on sexual orientation and gender identity.

Most of the individuals who are either neglected, rejected or abused by the other
members of the society are more likely to enter the state care agencies. Some of them
end up in the juvenile justice system because of being involved in crimes committed
for survival and while there are others who are booked under the juvenile system for
being wrongly labeled as sex offenders because of their actual or perceived sexual
orientation and gender identity. 59

Most of the Homosexual or transgendered population enter the state care agencies or
juvenile justice system because of being rejected by their own families or
surroundings. In a study related to family acceptance and rejection of homosexual and
transgendered adolescents, it was found that more than 50% of the homosexual and
transgendered individuals who participated in the study, were either thrown out of
their homes or ran away because of the family rejection and unacceptability of their

58
Id. at 1.
59
Id. at 3.
25
sexual orientation or gender identity. 60 It was also found that more than 30% of the
homosexual and transgendered adolescents entered juvenile justice system because of
the use of illegal drugs, violence and other behavioural disorders which may be
directly or indirectly attributable to the family neglect or abuse based on the sexual
orientation and gender identity. 61

Also, there are many homosexual or transgendered children who enter the state care
agencies due to their habitual absenteeism. In a Nationwide study conducted on
LGBT youth in the USA, it was found that one-third of the homosexual and
transgendered population in high school and middle schools reported being harassed
on the basis of their sexual orientation or gender identity. Also more than 80% youth
reported verbal abuse and derogatory remarks based on sexual orientation and gender
identity from the peers and more than 20% of the homosexual and transgendered
adolescents reported verbal abuse including homophobic or transphobic remarks from
the staff members of the educational institutions. It was also found that homosexual or
transgendered adolescents are more likely to get into the physical fights, and get
injured and also likely to be intimidated which makes the surrounding unsafe for them
and gradually result in absenteeism. 62

Being victimized at an early age not only affects the health of the homosexual or
transgendered individuals but also adversely affects their future career prospects and
their prospects of development as an adult. Being more open about sexual orientation
or gender identity is directly proportional to the chances of being victimized. 63 Most
of the homosexual and transgendered youth prefer to live on the streets as compared
to their homes or living in groups because of the rejection, neglect, and harassment
based on the homophobic or transphobic attitude of the other members of the society.
Most of the adults responsible for the care of such homosexual or transgendered youth
continue to ignore and tolerate their victimization which further aggravates their

60
Caitlin Ryan, Rafael M. Diaz, Family responses as a source of risk & resiliency for LGBT youth,
Child Welfare League of America, (2005). https://www.aclu.org/files/images/asset_upload
_file186_27147.pdf, (Last accessed on 23/09/15).
61
See Best Practice Guidelines: Serving LGBT youth in out-of-home care, Supra note 10 at 4.
62
Robert Garafalo, et al. , The Association Between Health Risk Behaviours and Sexual Orientation
Among a School-based Sample of Adolescents, 101 J. Pediatr. 895-902 (1998).
63
Anthony R. D’ Augelli et al., Incidence and mental health impact of sexual orientation
victimization of lesbian, gay, and bisexual youths in high school, 17 School Psychol Quart. 2: 148-
167 (2002).
26
living conditions and as a result, most of them end up on streets. In a research
conducted in New York related to the child welfare system, it was found that more
than 50% of the youth admitted that they preferred living on streets as compared to
the child welfare agencies or foster homes because they felt safer staying on the
streets instead of being rejected or neglected by the other adults in the state care
agencies and foster home. 64 It was also found that more than 35% of the homosexual
or transgendered youth in San Diego reported being thrown out of their homes and
other state care agencies because of their sexual orientation or gender identity. 65

However, life on street exposes youth to numerous issues including the risk of being
victimized in various offences such as rape, assault, robbery etc. and also
homelessness may lead to involvement in various criminal acts as a survival strategy
such as prostitution, the sale of illegal drugs, theft etc. Homeless homosexual or
transgendered youth often resort to sex work for their survival which further exposes
them to the risk of HIV, STDs and other infections. As compared to the other
homeless population, homosexual or transgendered adolescents are more likely to be
66
victimized, abused and are also at a higher risk of other health complications.

Some of the homosexual or transgendered youth also enter juvenile justice system and
enter juvenile justice system and reformatories for being engaged in same sex sexual
activities which otherwise would not attract arrest or prosecution if the consenting
partners to such sex activity were of opposite sex. It has also been seen that many a
time the complaints are lodged against homosexual adolescents by the parents of the
other consenting homosexual adolescent and such an action is taken by the parents to
wipe off the stigma which otherwise would have been labeled on their child. Another
reason for such a conduct of the parents is their feudal thinking which generates
hatred towards homosexuality. In some other cases, the complaints related to same
sex sexual activities are also registered by the staff members of educational
institutions and state care agencies who consider it as their responsibility to report the
same in order to prevent such acts in future. The label of a sex offender is not only

64
Gerald P. Mallon, The Experience of Gay and Lesbian Adolescents in Child Welfare Systems,
New York: Columbia University Press (1998).
65
Id.
66
Bryan N. Cochran, et al., Challenges Faced by Homeless Sexual Minorities: Comparison of Gay,
Lesbian Bisexual, and Transgender Homeless Adolescents with their Heterosexual Counterparts
92 Am J Public Health 5: 773-777 (2002).
27
detrimental to the mental health of such adolescents but also adversely affects their
future employment prospects. 67

Non-acceptance, rejection, bullying in educational institutions, homelessness,

criminalization etc. are the issues which reflect the homophobic or transphobic
attitude of the public at large. These forms of discrimination based on sexual
orientation and gender identity are the consequences of stigmatization related to
homosexuality and transgenderism and also could be the reason of bringing such
adolescent to the state care agencies or juvenile justice system. All these inter-related
discriminatory factors are the reason behind the presence of a considerable number of
homosexual or transgender adolescents in state care agencies and juvenile justice
system. 68

1.2.4.2 Mistreatment of homosexual, bisexual and transgendered adolescents in

the State care agencies and Juvenile justice system
Homosexual and transgendered youth continue to be exposed to various forms of
discriminatory practices and violent acts even in the state care agencies and juvenile
justice system. These adolescents are also deprived of stability and permanent home
or shelter because of frequent shifting forced by the rejection and discrimination in
various forms including physical or sexual abuse and other violent acts. In a study, it
was found that more than 75% of the homosexual and transgender population in the
state care agencies were either relocated or ran away due to the non-acceptance of
their sexual orientation or gender identity. A considerable number of homosexual and
transgendered adolescents, who were subjected to various discriminatory practices
and violent acts including sexual abuse, criminal intimidation, assault etc. were also
prompted to abscond from their placements due to the rejection and ongoing
discriminatory treatment based on their sexual orientation and gender identity. 69

Majority of the homosexual and transgendered youth in the state care agencies and
juvenile justice system also report sexual assault by the other adolescents and the staff
members. The adolescents who end up in such state agencies and juvenile justice

67
See Best Practice Guidelines: Serving LGBT youth in out-of-home care, Supra note 10 at 5.
68
Id.
69
Id. at 6.
28
systems because of the rejection, neglect and discrimination based on sexual
orientation and gender identity, continue to go through much worse in such agencies.
Generally, homosexual and transgendered adolescents who are not convicted or guilty
of a sex offence are also placed with others convicted of a sex offence. These
adolescents are often wrongly labeled as sexual offenders and also they are seen as the
ones having trouble with ‘sexuality’ or having some ‘sexual problem’, by most of the
members of juvenile justice system and reformatories who have limited understanding
of sexual orientation and gender identity. These discriminatory practices and labelling
are detrimental to the interests of such adolescents. Being labeled as sexual offenders
not only adversely affects the future career prospects and development opportunities
70
but also may cause lethal damage to the psychology of such adolescents.

Most of the staff members and other inmates of the state care agencies and juvenile
justice system lack the basic understanding of sexual orientation and gender identity
issues and in fact, the staff members are not even trained to provide appropriate
service to homosexual and transgendered youth. Therefore most of the homosexual
and transgendered youth, who report their grievances to the adults relating to the
protection against discrimination based on sexual orientation and gender identity, are
often ignored and blamed for their being victimized.

Moreover, the staff members and other adults of such agencies also frequently
relocate or even try to isolate such adolescents as a response to the abuse, harassment
or other discriminatory practice based on sexual orientation and gender identity.
Instead of addressing and protecting adolescents from various discriminatory and
violent acts, most of the adults find placing the victim in isolation as an easier solution
to protect further victimization of such homosexual or transgendered adolescent. The
whole act of placing the victim in isolation and away from the other inmates is a
punishment to the victim instead of the abuser and further causes mental trauma to the
victim. 71

70
Id.
71
For example, in R.G v. Koller (2006), the Hawaii Youth Correctional Facility (HYCF) admitted
that staff used isolation as a means of protecting wards who were known or perceived to be
homosexual, bisexual or transgender. The Court found this practice to be both harmful and
punitive, explaining, “ Consistently placing juvenile wards in isolation… simply to separate
homosexual, bisexual and transgender wards from their abusers, cannot be viewed in any
reasonable light as advancing a legitimate non-punitive governmental objective. HYCF has
attempted to remedy one harm with an indefensible and unconstitutional solution”.
29
In some cases, the homosexual or transgendered adolescents are often placed in
isolation by the staff members under the misconception that such homosexual or
transgendered youth will try to make sexual contacts with other inmates because of
being labeled as sexual offenders or sexually abnormal. In an interview with a lesbian
adolescent it was found that she was not allowed to cohabit with other female
adolescents or spend time with them without any supervision. This act of keeping her
away from other female adolescents made her feel that there was something abnormal
about her. More so she also explained that her sexual orientation should not be the
cause of keeping her in isolation with minimum interaction with other female
adolescents. In another interview with a gay adolescent it was found that he was
forced to live in isolation and also being watched by the staff members of the state
care agency. He also asserted that no one trusted him around the other male
adolescents because of his sexual orientation. It was also found that, many a times, the
staff members of the state care agencies for children and juvenile justice system also
prevented homosexual and transgendered children from having an access to various
programmes intended to support homosexual and transgendered youth or LGBT
centers or other social activists group because most of the staff members failed to
understand the unique issues related to the sexual minorities and transgenders and also
because most of the staff members and other people associated with such agencies
believed that it is morally wrong to support sexual orientation and gender identity of
such adolescents. 72

1.2.5 Unique health risks to which homosexual and transgendered children are
exposed
As compared to other children, homosexual and transgender children often face
difficulties in having an access to healthcare centers due to stigmatization and
homophobic or transphobic attitude prevalent in the society. Such children are more
likely to be ignored or treated in improper ways as children are already dependent on
others, not only financially but also socially. More so a considerable number of health

72
See Best Practice Guidelines: Serving LGBT youth in out-of-home care, Supra note 10 at 7.
30
care professionals are also not properly trained to deal with unique health issues
related to homosexual and transgender population. 73

i. Mental health and other issues

In various studies, it has been found that homosexual and transgendered youth are
more likely to have a poor mental health as compared to other children. Their mental
health issues include but are not limited to anhedonia, depression, suicidal tendencies,
and self-injury. Homosexuality or transgenderism is not in itself a cause of such
health issue but it makes youth vulnerable to various psychological hazards. 74

Homosexual and transgendered adolescents often face discrimination, harassment,

denial of their basic rights in their day to day life. Mostly, the affliction caused by
such discriminatory practices, stigma and inequality exposes homosexual and
transgendered population to the risk of various psychological problems. This is
popularly called as ‘minority stress’. Minority stress refers to anxiety or mental
pressure caused by social exclusion, discrimination, stigmatization, and other forms of
violent acts against a minority group. 75

Such type of behaviour may result in the following:

• Gender dysphoria and also such homosexual or transgendered youth may face
difficulty in accepting who they are.
• Concealment of the sexual orientation or gender identity from everyone,
which further forces such individuals to live a dual life by pretending to be
someone else.
• Family disintegration and broken family bond due to the lack of support from
family and friends.
• Segregation and solitude.

73
The health and wellbeing of LGBTQI youth, IGLYO (2013), 7, http://www.iglyo.com/wp-
content/uploads/2012/04/Health-and-Wellbeing-of-LGBTQI-Youth-.pdf ,(Last accessed on
25/10/15). (IGLYO is the International Lesbian, Gay, Bisexual, Transgender, Queer Youth and
Student Organization. IGLYO is a network gathering LGBTQ youth and student organizations in
Europe and beyond. It is run for and by young people. In 2014, IGLYO celebrates 30 years of
LGBTQ activism, capacity building and advocacy.).
74
Id. at 8.
75
Id.
31
• Depression and other forms of psychological disorders as a long term effect of
discrimination and other acts of violence on the basis of sexual orientation and
gender identity.
• Deflated self-esteem and self-doubt.

Discrimination on the basis of sexual orientation and gender identity is one of the
most serious issue which further results in disintegration of families and break down
of other relationships in the society. Homophobic or transphobic attitude prevalent in
the society also results in lack of emotional or other support. These issues further
aggravate when homosexual and transgendered adolescents are denied proper health
care or have negative experiences in having an access to proper mental health care
service. Such denial or discrimination in having an access to proper mental health care
is due to homophobic or transphobic attitude of people in charge of mental health care
service and also because of misconceptions and lack of awareness and other
knowledge related to LGBT specific issues in the mental health care centers.

Poor mental health due to the discrimination and other violent acts against
homosexual and transgendered adolescents also adversely effects the overall health of
such individual. Homosexual or transgender adolescents may often face difficulties in
making rights decisions related to health care due to an adverse effect on his or her
self-efficacy.

ii. Substance abuse

In general perception, substance abuse is commonly associated with LGBT youth.
However, the frequency of substance abuse among LGBT adolescents cannot be
ascertained with certainty because of the following reasons:-
i. Most of the LGBT patients of substance abuse tend to conceal their sexual
orientation and gender identity from the health care service providers.
ii. And also, many staff members, due to their homophobic or transphobic
attitude, find it difficult to inquire about the sexual orientation or gender
identity of the patients related to substance abuse.

32
However, it was found in a research that substance abuse including drugs and alcohol
was higher among the homosexual and transgendered population. 76

Homosexual and transgendered youth tend to reach for drugs, alcohol or other forms
of substance abuse, in order to feel good or escape from the ongoing psychological
disorders or poor mental health including depression, anxiety and other forms of
stress directly attributable to their sexual orientation or gender identity. In various
studies, it has been established that the usage of drugs among homosexual and
transgender population is higher as compared to heterosexual population. It was also
found that popular drugs used among LGBT adolescents are cocaine, MDMA
(Methylenedioxymethamphetamine), ecstasy, GHB (Gamma-hydroxybutyrate) and
77
methamphetamine.

Apart from the other health issues directly related to substance abuse, such as various
kinds of cancer, cardiovascular problems, it was also found that LGBT adolescents
are at higher risk of unprotected sex. In a study conducted in US, it was found that
substance abuse including drugs and alcohol misuse, and unprotected sex are
associated with each other, especially among the young LGBT population 78.

It was also found in a research that LGBT youth are more likely to smoke as
compared to the heterosexual population. Among LGBT population, smoking and
alcohol consumption is more prevalent among gay, lesbian and bisexual adolescents.
Smoking may further lead to lethal diseases such as lung cancer, cervical cancer in
women, and also it increases the chances of occurrence of AIDS among people with
HIV. 79

76
Id. at 9.
77
Id.
78
Id.
79
Id.
33
iii. Sexual and Reproductive Health
For the overall health of an individual, sexual health also plays an important role.
Sexual health is not only restricted to the state of physical well-being but also includes
mental, emotional and social well-being. Sexual orientation and gender identity are
not the direct causes of health risks related to sexual health, but it is the behaviour
specific to homosexuals and transgendered individuals which exposes them to a
higher risk of contracting sexually transmitted disease (hereinafter referred to as
STD). Usually, adolescents and other individuals have curiosity and solicitude
towards their sexual health and safe sex practices. But for homosexual and
transgendered youth, there is not much information available related to their sexual
health and more so there is also lack of expert advice on this sensitive issue which
further adds to their indulgence in unsafe sexual behaviours. In fact, due to the lack of
awareness related to safe sexual practice and sexual health, LGBT youth often avoid
80
regular health check-ups, which is further detrimental to their overall health.

Effective healthcare of LGBT youth requires not only the disclosure of their sexual
orientation or gender identity but also an open dialogue session between health care
experts and patients regarding their sexual behaviours. As a general practice, most of
the homosexual and transgender youth do not disclose their sexual habits with the
health care professionals because of the common notion that the medical health care
services remain largely inclined towards heterosexual population and do not meet the
needs of homosexual and transgendered youth. 81

Women who have sex with other women also belong to the sexual minority with
contrast sexual behaviour and practices. In a recent study, it was found that women
who have sex with other women and also bisexual women who have sex with both
male and female partners are at a higher risk of contracting STDs and HIV due to
certain unsafe sexual behaviours and practices. Women belonging to the sexual
minority, including lesbian and bisexual women, may also face discrimination in
having an access to the treatment related to fertility because the archetype of majority

80
Id. at 10.
81
Id.
34
health service providers are inclined towards heterosexual population and are also
discriminatory towards the sexual minority. 82

Men who have sex with other men, as a part of the sexual minority are also exposed to
various sexual health risks. Gay and bisexual men are at a higher risk of being
diagnosed with STDs, HIV, hepatitis and other related diseases. It was found in a
study, that the rate of HIV diagnosis among men who have sex with other men or both
male and female partners, is more than 45 times than that of other men. It was also
found that such men are also more likely to be diagnosed with primary and secondary
syphilis as compared to the male heterosexual population. There are many factors
responsible for the higher risk of contracting HIV and STDs among gay or bisexual
men as compared to the heterosexual population of men. HIV, STDs and other health
issues are prevalent among men who have sex with other men, which further increases
the risk of aggravating the sexual health of other men belonging to the sexual minority
and indulged in such unsafe sexual behaviours. Complacencies related to HIV and
other STDs is also very common among LGBT youth. Lack of proper sex education
among the sexual minority including young individuals is directly contributable to
83
their complacencies and unsafe sexual behaviours.

iv. Obesity, Diabetes and other disorders

Various studies show that women belonging to the sexual minority are prone to
obesity and therefore also susceptible to adult onset diabetes mellitus, which is a type
2 diabetes that affects young individuals because of obesity. In another study, it was
found that a considerable number of homosexual women were also diagnosed with
polycystic ovary syndrome (PCOS). A research conducted in the UK in the year 2004,
revealed that more than 30% of lesbian participants were diagnosed with PCOS unlike
the other 15% female participants. PCOS is one of the major causes of infertility and
84
may also lead to various metabolic disorders.

In these studies, it was also found that obesity, diabetes, and other disorders among
LGBT youth is directly attributable to the minority stress, anxiety, depression and
other disorders associated with homophobia, which is also serious impediments in

82
Id.
83
Id.
84
Id. at 11.
35
changing the unhealthy behaviour of such youth. Eating disorders are also very
common among LGBT youth. Due to minority stress, it becomes difficult to develop
healthy lifestyle including healthy attitude towards diet and exercise. Due to the lack
of awareness, most of the young LGBT population remain unaware of these health
risks and continue with their unhealthy behaviours. More so, if such unhealthy
behaviours are not recognized at the young age, LGBT youth may continue such
behaviour in their adulthood. 85

v. Cardiovascular diseases and cancer

At present, cardiovascular diseases remain the major cause of death all over the
world. However, various research-based studies suggest that homosexual and
transgendered individuals are more susceptible to cardiovascular diseases as
compared to the other population. As already mentioned, higher prevalence of
substance abuse also including smoking and alcohol abuse, minority stress, anxiety,
depression, lack of awareness and various other disorders expose homosexual and
transgendered youth to the other unsafe and unhealthy behaviours which can lead to
cardiovascular issues. 86

Women belonging to the sexual minority are at a higher risk of developing breast
cancer and other gynecological cancers as compared to other women. Regular
gynecological checkups and examinations are indispensable for women’s health.
However, due to the homophobic and transphobic attitude prevalent in the society and
also due to the feeling of uncomfortableness, such women tend to avoid medical and
gynecological checkups. Similarly, gay and bisexual men are also at higher risk for
87
prostate, testicular and colon cancers, as compared to other male individuals.

Due to the lack of awareness, homophobic and transphobic attitude prevalent even
among medical professionals, homosexual and transgendered youth are at a higher
health risk as compared to other population. These health risks may even exist in the
adulthood of such homosexual and transgendered youth. 88

85
Id.
86
Id. at 12.
87
Id.
88
Id.
36
vi. Transgender youth and health issues
Young transgendered individuals have unique health issues. For transgendered
individuals, their gender identity does not conform to their anatomic sex and therefore
proper medical care under the supervision of such health care experts who have
experience and expertise in health issues related to the transgendered individuals is of
utmost importance. And it is also required that such medical intervention should be
unbiased and not discriminatory. However, a majority of health care professionals do
not have experience or expertise on the subject of unique health issues of transgenders
and therefore may act discriminatorily towards them. Due to the ongoing
discrimination on the basis of gender identity, most of the transgenders avoid their
regular health checkups and do not visit medical practitioners under the fear of
89
discriminatory or inappropriate behaviour.

Transgender adolescents usually do not have an access to the medical assistance and
also they do not get support from the other social groups. Such young people are also
mostly unaware about the social gender system. There is a common misconception
about gender system among transgender youth. Most of them do not know that the
social gender system is not binary. In fact, this misconception and lack of awareness
regarding social gender system were also very common among medical practitioners
until recently. That is why when young transgendered individuals disclose their
feelings to a medical healthcare service provider, the only option given to them is of
complete conversion to the ‘opposite sex’. 90

The term ‘transsexual’ refers to the individuals whose gender identity is opposite to
their anatomic sex and such people also desire to convert the same through medical
intervention. In such complete transition into the opposite sex, medical care is
required in all phases of such conversion such as treatment of hormones and its
monitoring, surgical removal of breasts (mastectomy), plastic surgery performed to
construct penis (phalloplasty), surgery performed to create vagina (vaginoplasty) etc.
Even after such surgeries, medical support is pivotal. All the transsexual individuals

89
Id. at 13.
90
Id.
37
do not take hormones or undergo such surgeries. Such individuals may or may not opt
91
for sex reassignment based on hormones and surgeries.

In most of the European countries, transgendered individuals who are willing to

undergo medical transition into opposite sex are also required to go through a surgery
for their sterilization. In such surgeries, all the reproductive organs of the
transgendered individuals are obliterated, which not only violates their reproductive
rights but is also detrimental to their overall health. Such pre-requisites of medical
transition are dehumanizing and also lead to social stigmatization. The whole medical
process of transition can lead to traumatic experience for the transgendered
individuals involved in such transition. The traumatic experience of such
transgendered individuals is directly attributable to the lack of awareness regarding
unique health risks on the part of medical healthcare service providers. Nonetheless,
the procedure of such transition is very bureaucratic which demands certain pre-
92
requisites and specific responses.

In fact, there is lack of knowledge and research on the part of medical professional
organizations for supporting and helping transgendered adolescents. And also these
organizations are not unanimous regarding sex reassignment surgeries. There are
certain medical professionals who assert that sex reassignment surgery should be
performed before puberty in order to reduce the psychological trauma. Whereas, there
are others who argue that the present knowledge, regarding long-term effects of
hormonal therapy, is not sufficient and also not fully updated. Due to the uncertainty
among medical professionals and lack of experience and expertise regarding the
unique health issues of transgendered individuals, most of the transgendered
adolescents are often deprived of the proper health care. And also there is lack of clear
guidance from medical practitioners for the transgendered youth. 93

1.2.6 Hate crimes against homosexual and transgendered children

Hate Crimes are basically those acts which are punishable under the penal laws of the
State and committed on the grounds of personal traits. Such type of a crime can be
stimulated by religion, caste, ethnic origin, nationality, sex and also sexual orientation

91
Id.
92
Id.
93
Id.
38
and gender identity. 94 Therefore, if a person kills or assaults a victim on the grounds
of being a homosexual or a transgender, then such type of a crime would fall in the
category of hate crimes.

Hate crimes against homosexual and transgendered youth include bullying, physical
or sexual abuse, assault, murder, rape etc. Such crimes are committed on the ground
of non-acceptance of sexual orientation and gender identity which are seen
transgressing the norms of the society. Such Homophobic and Transphobic violence
has been witnessed in all regions.

Killings
• On Oct. 4, 2002, Gwen Araujo was brutally murdered by a group of men in
Newark, which is the largest city in the US state of New Jersey. After the
murder, her body was buried in a temporary grave in Sierra. The
transgendered youth was killed by the group of men when they came to know
that she was a transsexual and biologically male. Gwen Araujo or Eddie
Araujo was a transsexual teenager who was born as a boy but lived as a girl
since the age of 14. After two years of her death, her name was legally
changed to Gwen Amber Rose Araujo. 95

Figure 1 Gwen Araujo

94
Reducing and preventing crime, https://www.gov.uk/government/policies/reducing-and-
preventing-crime--2/supporting-pages/hate-crime, (Last accessed on 5/11/15).
95
Nika Megino, Remembering Slain Transgender Teen Gwen Araujo, Newark Patch (Oct. 24, 2017)
http://newark.patch.com/groups/goodnews/p/remembering-slain-transgender-teen-gwen-araujo,
(Last accessed on 16/11/15).
39
• On May 11, 2003, Sakia Gunn was brutally murdered in a hate crime in
Newark. She was a 15-year-old African American lesbian. While returning
from a night out in Greenwich Village, Manhattan, she along with her friends
were approached by two African American men for sexual advances. When
Sakia and her friends rejected the advances by disclosing their sexual
orientation, the two men attacked them. However, Sakia resisted and fought
back but one of the men stabbed her in the chest. She succumbed to her
injuries when she was taken to the nearby University Hospital. 96

Figure 2 Sakia Gunn

• On Feb. 12, 2008, a 15-year-old student named Lawrence King was shot twice
by a 14-year-old class mate. Lawrence was a gay student at E.O. Green Junior
High School in Oxnard, California, United States. Lawrence was kept on
97
Ventilator but he died two days after he was shot.

96
Kelly Cogswell and Ana Simo, Erasing Sakia: Who is to Blame? The Gully online magazine,
(June 6, 2003), http://www.thegully.com/essays/gaymundo/030606_sakia_gunn_murder.html,
(Last accessed 26/03/13).
97
Hunter Stuart, Gay Student’s Flamboyant Behaviour Blamed for his Murder, Huffpost (Nov. 23,
2011), http://www.huffingtonpost.com/2011/11/23/lawrence-king-gay-murder_n_1109047.html,
(Last accessed on 16/11/15).
40
 Figure 3 Lawrence King

• In the year 2013, Dwayne Jones who was a transgender teen was killed by a
mob in Jamaica. Dwayne Jones was constantly bullied and teased in High
school for being feminine and later on he dropped out from the school. At the
age of 14, he was not only thrown out of the house by his own father but was
also ridiculed by the family and neighbors and subsequently he was forced to
leave the Jamaican slum where he grew up. At the age of 16, the
transgendered teen was brutally killed by a mob on being dressed as a woman
in a street party. He was not only beaten up but also stabbed and shot before
being run over by a car. His only mistake was revealing his secret to a friend
that he was attending a party for ‘straight’ people as a girl for the first time.
His father did not want to talk about his son’s life or death. In fact, according
to Dwayne’s friends, his family would not even claim the body. In a US based
research with Human Rights Watch in the year 2006, it was observed that
Jamaica is one of the most unsafe places for the LGBT group. 98

98
Newser, http://www.newser.com/article/da83pfn82/transgender-teen-killed-by-mob-in-jamaica-as-
country-addresses-long-standing-discrimination.html, (Last accessed on 26/12/15).
41
 Figure 4 Dwayne Jones

• In Jan. 2014, a 16-year-old gay teen was brutally killed by a mob in

Sao Paulo. Sao Paulo is the largest city in Brazil, where the gay teen
was repeatedly beaten and assaulted after attending a party in a gay
night club. The gay teen named Kaique Batista Dos Santos, was
tortured before being assaulted and battered to death. He has all his
teeth pulled out with plier before he succumbed to his injuries. 99

Figure 5 Kaique Batista

Also, homosexual, bisexual and transgendered children are often sexually abused.
Family rejection and stigmatization often lead to homelessness and many homeless
homosexual, bisexual and transgendered children end up on streets where they are

99
Andy Lines, Teeth Pulled out with Pliers: Gay teen tortured and murdered near World Cup
opening ceremony stadium (Jan. 17, 2014), http://www.mirror.co.uk/news/world-news/kaique-
batista-dos-santos-gay-3030613, (Last accessed on 26/12/15).
42
sexually abused by adults. Whenever such children try to seek the help of parents or
other adults they are often themselves held responsible for being a victim. These
instances clearly show that hate crimes against homosexual, bisexual and
transgendered children are rampant all over the world.

1.3 The other Problems Faced by Homosexual, Bisexual and

Transgender Adults
1.3.1 Marginalization and Social Exclusion
Homosexual and transgendered individuals belong to the marginalized section of the
society. Such population face marginalization in multiple forms including racism,
sexism, poverty etc. The stigma attached to homosexuals and transgendered
individuals of all the ages pushes them to the margins of society because they are seen
as transgressing the norms related to heterosexuals and non-transgendered
individuals. 100 Due to marginalization, LGBTs are often excluded from various
aspects of the society. Such individuals may face exclusion from various support
groups and structures including family; they may also face exclusion or
discrimination in having an access to various inevitable services such as medical care,
education, and legal aid. Marginalization along with the homophobic and transphobic
attitude of the general public also may prevent such homosexual and transgendered
individuals from having an access to basic public services such as healthcare and
housing. Exclusion and being unable to access basic services is further detrimental to
the overall health of such individuals. 101 Due to the exclusion from the family and
society and marginalization, homosexual and transgendered individuals are often
forced to indulge into criminal activities such as trafficking, sex work, drug peddling
etc., which further deteriorates their living conditions.

Impact of Exclusion and Discrimination:

The exclusion and discrimination based on sexual orientation and gender identity
adversely affect the lives of homosexual and transgendered individuals. Such
exclusion may further result in the following -

100
Chatterjee Subhrajit, Problems Faced by LGBT People in the Mainstream Society: Some
Recommendations, 1 IJIMS 317, 317-331 (2014).
101
Id. at 319.
43
• Homosexual or transgendered individual being forced to leave family and
society.
• Exclusion may also act as an impediment in finding a suitable job.
• Being marginalized may also result in being ignored and isolated from the
society.
• Exclusion and marginalization may also result in lack of support from the
society. Such exclusion may also act as an impediment in having an access to
various basic public services.
• Due to exclusion and discrimination, homosexual and transgendered
individuals often migrate to other countries for seeking acceptance and safety.
• Homosexual and transgendered individuals are often rejected by the religious
or cultural groups.
• Exclusion and marginalization in the society may also result in aggravating
suicidal tendencies.
• Due to the ongoing exclusion and discrimination in the society, homosexual or
transgendered individual often marry other people who are not suitable
according to their sexual orientation and gender identity. Such marriages are
performed due to family pressure but often end up in divorce.

1.3.2 Criminalization
Still, in many countries including India homosexuality is illegal and punishable by
fines, imprisonment, life imprisonment and even the death penalty as a result of which
most of the homosexual and transgendered individuals hide their sexual orientation
and gender identity from the society which is further detrimental to their mental as
well as physical health. Moreover, homosexual couples do not have same rights as
heterosexual couples.

1.3.3 Legal injustice

Homosexual and transgendered individuals also face discrimination in having an
access to justice. Nonetheless, LGBTs are often exposed to violence and
discrimination at the hands of law enforcement officials. There is a significant number
of documented instances of police brutality and violence directed towards homosexual
and transgendered individuals in almost all the parts of the world. There is lack of

44
sensitivity and proper training and expertise among the officials of police
departments. More so, such excluded homosexual and transgendered individuals have
to struggle for justice. Police departments continue to be ignorant and insensitive
towards violence and discrimination based on sexual orientation and gender identity.
In fact, such homosexual and transgendered victims of violence are often blamed for
102
being a victim due to their own personal characteristics. In police custody,
homosexual and transgendered individuals are at a greater risk of being abused or ill-
treated by police officials. In prisons also, homosexual and transgendered individuals
remain a soft target of abuse. They continue to be abused and treated more inhumanly,
when behind the bars.

Other issues related to homosexual and transgendered individuals also include but are
not limited to discrimination at the workplace, poor economic condition, name calling
etc.

102
Id. at 326.
45
 CHAPTER 2
CRITICAL ANALYSIS OF THE
EXISTING INTERNATIONAL
LEGAL FRAMEWORK
 CHAPTER 2
CRITICAL ANALYSIS OF THE EXISTING INTERNATIONAL
LEGAL FRAMEWORK

Violence and discriminatory acts based on sexual orientation and gender identity
includes, but are not limited to, murder, rape, assault, physical abuse, sexual abuse,
torture, arbitrary detention, discrimination in the sphere of education, healthcare and
employment, violation of basic rights such as right to freedom of speech and
expression, right to peaceful assembly, right to information etc. Such violations have
been documented by the United Nations 103 mechanism for the monitoring of Human
Rights issues and other Human Rights treaty bodies including the monitoring
mechanism of Human Rights Council, for more than twenty years.

In the year 2010, the Secretary General of UN in his speech on Human Rights day,
expressed his concern for violence and discrimination based on sexual orientation and
gender identity. He said that the discrimination should be rejected in general and more
particularly discrimination on the basis of sexual orientation and gender identity
should be rejected by all the men and women of conscience. He further said that
whenever there is a controversy between culture and universal human rights, human
rights should prevail. And in the end of his speech, he further made a declaration to
seek repeal of laws criminalizing consensual homosexuality which further lead to
discrimination and violence on the basis of sexual orientation and gender identity and
also encourages violence 104.

On Mar. 7, 2012, the Secretary General again expressed his concern towards ongoing
discrimination and other issues based on sexual orientation and gender identity. He
said that although sexual orientation and gender identity are very sensitive issues and
most of the people did not grow up talking or discussing about such issues but it is
high time when one should talk about it because human lives are at stake. He further
stated that he chose to speak about sexual orientation and gender identity issues
because, it is the duty to protect the rights of all individuals in all the parts of the

103
Hereinafter referred to as UN.
104
Ken Plummer, Cosmopolitan Sexualities: Hope and the Humanist Imagination, Polity Press
(2015), 171.
46
world as prescribed by the United Nations Charter and the Universal Declaration of
the Human Rights. 105

International Bill of Human Rights for the protection of the Human Rights of the
individuals includes:-
1. Universal Declaration of Human Rights 106
2. International Covenant on Civil and Political Rights 107
3. International Covenant on Economic, Social and Cultural Rights 108

These three instruments do not address the issues related to discrimination against
individuals on the basis of sexual orientation and gender identity separately.

Convention on the Elimination of all forms of Discrimination against Women 109

(which is often described as an international bill of rights for women) and the United
Nations Convention on the Rights of the Child 110 (which is often described as an
international bill of rights for children) also do not address separately the issues
related to the discrimination and other forms of violence against women and children
on the basis of sexual orientation and gender identity.

2.1 Standards and Obligations under International Human Rights

Law
Article 1 of the Universal Declaration of the Human Rights declares that all
individuals are born free and are equal in dignity and rights. The application of
International human rights law is based on the principle of equality and universality as
enshrined in the above mentioned provision of the Universal Declaration of the
Human Rights.

All human beings irrespective of their sexual orientation and gender identity are
entitled to certain basic human rights guaranteed by the International Human Rights
law. These basic rights guaranteed by the International declarations, Covenants and

105
United Nations Human Rights Office of the High Commissioner http://www.ohchr.org/EN/Issues/
Discrimination/Pages/LGBT.aspx, (Last accessed on 15/04/16)
106
Hereinafter referred to as UDHR.
107
Hereinafter referred to as ICCPR.
108
Hereinafter referred to as ICESCR.
109
Hereinafter referred to as CEDAW.
110
Hereinafter referred to as UNCRC.
47
Conventions include right to life; right to family and privacy; right to freedom from
torture, arbitrary arrest and detention; right to freedom of speech and expression, right
to peaceful assembly and association; right to freedom against discrimination. It was
observed in the Vienna Declaration and Programme of Action that the respect for
national, regional and various historical, cultural and religious background should be
sustained but it is the duty of the States to promote and protect all human rights and basic
111
freedoms irrespective of their political, economic, cultural or religious structure.

Protection against discrimination is the most crucial human rights principle embodied
in the United Nation Charter, Universal Declaration of Human Rights, International
Covenant on Civil and Political Rights, International Covenant on Economic Social
and Cultural Rights and other core human rights conventions. The principle of non-
discrimination enshrined and explicitly mentioned in the provisions of International
Human Rights instruments provide that the rights guaranteed should be made
available to all the individuals universally without any discrimination of any kind. It
further provides that the States should ensure that their laws, policies and other
programmes are not discriminatory in its implementation. Article 2 of the
International Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights provides that the State parties should ensure
all the rights mentioned in the Covenants to all the individuals within their jurisdiction
irrespective of their race, colour, sex, language, religion, political structure, national
or social origin, birth or other status.

The words ‘other status’ used in the prohibitive grounds set forth in the Covenants
connotes that the grounds of discrimination mentioned in the International Covenant
on Civil and Political Rights and International Covenant on Economic, Social and
Cultural Rights and other International Human Rights treaties is not exhaustive. It
further implies that the drafters of the International Human Rights treaties,
intentionally used the words ‘other status’ as one of the prohibitive grounds of
discrimination to keep the prohibitive grounds of discrimination open for the
inclusion of other grounds of discrimination. The prohibitive grounds of
discrimination such as sexual orientation, gender identity, health status, disability, age

111
World Conference on Human Rights, UN Documents, A/CONF.157/23, para. 5. http://www.un-
documents.net/ac157-23.htm, (Last accessed on 18/04/16).
48
etc. are not explicitly mentioned in the International Covenants and Human Rights
treaty bodies. In Toonen v. Australia 112, it was held by the Human Rights Committee
that the States are under the obligation to protect the individuals against
discrimination based on sexual orientation and gender identity. 113

2.2 The Obligations of the Signatory States under International

Human Rights Law
The States are under the obligation to protect the individuals, within its jurisdiction,
from violence and discrimination based on sexual orientation and gender identity.
This obligation of the signatory States has been derived from various International
Human Rights Conventions. The obligation of the States towards individuals within
its jurisdiction also includes the following, as explained below.
a. The obligation to protect the right to life, liberty, and security of
individuals
Article 3 of the Universal Declaration of the Human Rights guarantees right to life,
liberty and security to all individuals universally 114 . Article 6 of the International
Covenant on Civil and Political Rights further declare that the Right to life is inherent
in every individual 115. The above mentioned rights are to be protected by the law of
the States and no person shall be arbitrarily deprived of the right to life 116. It is the
obligation of the State to protect the lives of the individuals and also to exercise due

112
Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994).
113
Human Rights Library, http://hrlibrary.umn.edu/undocs/html/vws488.htm, (Last accessed on
20/04/16).
114
United Nations, Universal Declaration of Human Rights, http://www.un.org/en/universal-
declaration-human-rights/, (Last accessed on 20/04/16). Article 3 of the UDHR provides that every
individual has a right to life, liberty and security of person.
115
United Nations Human Rights Office of the High Commissioner, International Covenant on Civil
and Political Rights, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx, (Last
accessed on 20/04/16). Article 6 of ICCPR provides that the right to life is inherent in every human
being and no person shall be arbitrarily deprived of life and the same shall be protected by the
State.
116
United Nations, General Assembly, Sixty-fifth session, Resolution adopted by the General
Assembly on 21 December 2010, 65/208. Extrajudicial, summary or arbitrary executions
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/65/208, (Last accessed on 20/04/
16). In its resolution 65/208, the General Assembly commended that all the signatory States should
ensure the effective protection of the right to life of all individuals under its jurisdiction and to
investigate expeditiously and exhaustively all killings and violent acts intended to violate the right
to life, including hate crimes targeted at a certain group, such as killing on the basis of sexual
orientation and gender identity.
49
diligence in the expeditious redressal of deprivation of life 117. The States are also
under the obligation to diligently investigate and prosecute the acts of violence and
deprivation of life. 118

It is also provided under the Article 33 of the Convention relating to the Status of
Refugees 119 that the signatory States are under the obligation of protecting the right to
life of refugees and also States shall not expatriate or replace a refugee to a place
where they are under a fear of deprivation of their right to life or freedom on the
grounds of race, religion, nationality, ethnic origin, membership of a social group or
any political group. 120 It was observed by the United Nations High Commissioners
for Refugees 121 that the individuals who are under the fear of discrimination on the
basis of sexual orientation or gender identity, could be considered as a member of a
particular social group. If the concerned individual fulfils the criteria mentioned for
the status of refugee, the States shall recognize and protect them on the lines of
provisions laid down in the Convention and also the States party to the Convention
should ensure that such refugee is not replaced to a place where their right to life and
other freedoms are at stake. 122

117
Committee on the Rights of the Child, Thirty-ninth session, Human Rights Committee general
comment No. 6 (2005), http://www2.ohchr.org/english/bodies/crc/docs/GC6.pdf, (Last accessed
on 25/04/16).
118
United Nations, General Assembly, Human Rights Council, Nineteenth session, Discriminatory
laws and practices and acts of violence against individuals based on their sexual orientation and
gender identity- Report of the United Nations High Commissioner for Human Rights A/HRC/19/4,
http://www.ohchr.org/Documents/Issues/Discrimination/A.HRC.19.41_English.pdf,
(Last accessed on 25/04/16).
119
Convention relating to the Status of Refugees, http://www.ohchr.org/EN/ProfessionalInterest/
Pages/StatusOfRefugees.aspx, (Last accessed on 25/04/16). The Convention was adopted in July
,1951 in the United Nations Conference of Plenipotentiaries on the Status of Refugees and
Stateless Persons convened under General Assembly resolution 429 (V) of December 14, 1950.
120
United Nations Human Rights Office of the High Commissioner, Convention relating to the Status
of Refugees, http://www.ohchr.org/EN/ProfessionalInterest/Pages/StatusOfRefugees.aspx, (Last
accessed on 25/04/16). Article 33 of the Convention relating to the Status of Refugees provides for
the prohibition of expulsion or return where a refugee is under the threat of deprivation of life or
freedom on the grounds of his race, religion, nationality, membership of a particular social group
or political opinion. Nonetheless, the prohibition on expulsion or return is not applicable on a
refugee for whom there are reasonable grounds for regarding him as a threat to the security of the
country in which he is, or who, having been convicted by a final judgement of a particularly
serious crime, constitutes a danger to the community of that country.
121
Hereinafter referred to as UNHCR
122
UNHCR Guidance note on Refugee claims relating to sexual orientation and gender identity,
UNHCR Protection Policy and Legal Advice Section Division of International Protection Services
Geneva 21 November 2008 https://www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/
UNHCR_Guidelines_Sexual_Orientation.pdf, (Last accessed on 28/04/16).
50
b. The obligation of the States to protect individuals against torture,
inhuman or degrading treatment on the basis of sexual orientation and
gender identity.
The right to protection against torture, cruel, inhuman or degrading treatment
guaranteed under the International Human Rights law is absolute. Article 5 of the
Universal Declaration of the Human Rights and Article 7 of the International
Covenant on the Civil and Political Rights provides for the protection of individuals
against torture, cruel, inhuman or degrading treatment or punishment. 123

The United Nations Human Rights Committee against Torture has commended that
all the signatory States are under the obligation to protect all individuals within their
jurisdiction from the torture, cruel, inhuman or degrading treatment, irrespective of
their sexual orientation or gender identity 124. It was also observed by the Committee
that the States should expeditiously prohibit, prevent and provide redress for the
torture and inhuman treatment 125 . The Committee also expressed concern, in its
concluding observation on State parties report, regarding the allegations related to the
abuses and ill-treatment on the grounds of sexual orientation and gender identity 126.

c. The obligation of the States to protect the right to privacy and protection
against arbitrary detention on the basis of sexual orientation and gender
identity.
The right to privacy is guaranteed under Article 12of the Universal Declaration of
Human Rights and Article 17 of the International Covenant on Civil and Political
Rights, which state that the State parties should ensure to all the individuals within
their jurisdiction, the right to the protection of privacy and against arbitrary

123
The Universal Declaration of Human Rights, Supra note 114. International Covenant on Civil and
Political Rights, Supra note 115. The mentioned provisions of the International Bill of Rights
provide that no individual shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment and the State parties are under the obligation to protect the individuals within their
jurisdiction against such inhuman treatment or punishment. Article 7 of the ICCPR further
provides that, no individual shall be subjected to medical or scientific experimentation without his
free consent.
124
Committee against torture, Thirty-ninth session, Advance unedited version, Convention against
torture and other cruel, inhuman or degrading treatment or punishment, General Comment No. 2,
(CAT/C/GC/2), Para. 21 http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.GC.2. CRP.1.Rev.
4_en.pdf (Last accessed on 1/05/16).
125
Id. Para. 15
126
See UN report A/HRC/19/41, Supra note 118 at 6.
51
detention 127. It also provides that no individual should be afflicted with arbitrary or
unlawful interference with his private life, family, home or correspondence. All
human beings are further guaranteed protection against arbitrary arrest and detention
under Article 9 of the Universal Declaration of the Human Rights and the
International Covenant on the Civil and Political Rights 128. It was observed by the
Human Rights Committee in its General Comment no. 16 that any interference with
the right to privacy and protection against arbitrary interference shall be in accordance
with the provisions and preamble of the International Covenants and should also seem
to be reasonable in the given circumstances. 129

It is held by the Human Rights Committee, since Toonen’s Case 130 that the laws
criminalizing private consensual same-sex acts and behaviour between adults violates
the right to privacy and also violates the right to protection against discrimination.
The argument against decriminalization of private consensual same-sex acts between
adults, that such criminalization could be justified as reasonable on the grounds of
preserving public health and morals, is also rejected by the Human Rights Committee.
It is also observed by the Committee that the laws criminalizing such private
consensual same-sex acts and behaviour are neither necessary nor reasonable 131 .
Amendment in such Draconian law or even its repeal is encouraged, in the concluding
observation of various Human Rights treaty bodies, including the Human Rights
Committee, the Committee on Economic, Social and Cultural Rights, the Committee

127
The Universal Declaration of Human Rights, Supra note 114. International Covenant on Civil and
Political Rights, Supra note 115. Article 12 of the UDHR and Article 17 of the ICCPR provide
that no individual shall be subjected to arbitrary interference with his private life, family or other
ancillary matters. It further provides that it is the obligation of the State parties to prevent such
attacks upon the honour and reputation of it subjects.
128
The Universal Declaration of Human Rights, op cit. International Covenant on Civil and Political
Rights, op cit. Article 9 of the UDHR and ICCPR provides that State parties shall ensure to all the
individuals, right to liberty and security. It further provides that no individual shall be afflicted
with arbitrary arrest or detention and also no person shall be deprived of his liberty except
according to the procedure established by law. Article 9 of the ICCPR further provides for the
various rights of the person arrested or detained in order to ensure that no person is a victim of
unlawful arrest or detention.
129
See UN report A/HRC/19/41, op cit.
130
See Toonen v. Australia, Supra note 112.
131
Human Rights Committee, Fiftieth session, Views of the Human Rights Committee under Article
5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights
CCPR/c/50/D/488/1992, paras. 8.3-8.7. http://hrlibrary.umn.edu/undocs/html/vws488.htm, (Last
accessed on 6/05/16).
52
on the Elimination of Discrimination against Women and the Committee on the
Rights of the Child 132.

d. The obligation to protect individuals against discrimination on the basis

of sexual orientation and gender identity
The principle of non-discrimination and equality is embodied in the International
Human Rights law. International Human Rights law comprising of all the
International Covenants, Declarations and Conventions provides for the rights against
discrimination of any kind. 133 . Article 26 of the ICCPR also guarantees right to
equality before the law, which further imposes an obligation on the State parties to
prohibit discrimination of all kinds 134.

The obligation of the State parties to prohibit and protect all the individuals against
discrimination on the basis of sexual orientation and gender identity is confirmed and
commended by all the human rights treaty bodies in their general comments,
observations, and communications. Being homosexual or a transgendered individual
is no ground to restrict the entitlement to enjoy the basic Human Rights 135.

132
UN report A/HRC/19/41, Supra note 118 at 6.
133
The Universal Declaration of Human Rights, Supra note 114. International Covenant on Civil and
Political Rights, Supra note 115. United Nations Convention on the Rights of the Child,
http://www.ohchr.org/ EN/ProfessionalInterest/Pages/CRC.aspx, (Last accessed on 6/05/16).
Article 2 of the UDHR provides that every individual is entitled to all the rights and freedoms
mentioned in the Declaration, without any discrimination on the grounds such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status.
Article 2 of ICESCR also provides that the States Parties to the Covenant should ensure the rights
guaranteed in the Covenant to all the individuals without any discrimination on the grounds such
as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. However, developing Nations may determine the extent of
guarantee related to the realization of Economic Rights on the grounds of their national economy.
Article 2 of the UNCRC provides that the States Parties shall respect and ensure the rights
guaranteed in the Convention to every child within their jurisdiction without any discrimination on
the grounds of child's or his or her parent's or legal guardian's race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
It is the obligation of the State Parties to diligently prevent such discrimination and to
expeditiously punish and redress such discrimination.
134
International Covenant on Civil and Political Rights, Supra note 115. Article 26 of ICCPR
provides that the State Parties to the Covenant shall ensure equality before law and equal
protection of law without any discrimination to all the individuals within their jurisdiction. More
so, the law should provide for prohibition of any kind of discrimination and ensure protection
against discrimination.
135
See UN report A/HRC/19/41, Supra note 118 at 6.
53
As per the directions of the Human Rights Committee, State Parties should ensure all
the rights guaranteed in the Covenant to all the individuals irrespective of their sexual
orientation and gender identity 136. The Human Rights Committee also commended
reformation of the existing legal systems for the inclusion of sexual orientation and
gender identity as one of the prohibitive grounds of discrimination. The principle of
equality and non-discrimination on the grounds of sexual orientation and gender
identity, in the realization of the right to livelihood, work, water, social security and
the highest attainable standard of health has been upheld by the Committee on
Economic, Social and Cultural Rights. The Committee in its general comments also
included sexual orientation and gender identity as one of the prohibitive grounds of
discrimination as provided by the Covenant. The recommendations on the protection
of the individuals of all ages against the discrimination based on sexual orientation
and gender identity are also included in the general comments and observations of the
Committee on the Rights of Child, the Committee against Torture and the Committee
on the Elimination of Discrimination against Women.

e. The obligation of the State Parties to protect the right to freedom of

speech, expression, peaceful assembly and association without any
discrimination
The right to freedom of expression, peaceful assembly and association is one of the
most important fundamental right guaranteed by the International Human Rights law.
These rights are also guaranteed by the Universal Declaration of the Human Rights
under the Articles 19-20 and also by the International Covenant on Civil and Political
Rights under Articles 19, 21-22. Article 19 of the UDHR provides that the right to
freedom of speech, expression, and thoughts is inherent to all the individuals. It
further provides that individuals also have a right to freedom to hold opinions without
any interference and also they have right to seek, receive and impart information.

136
Human Rights Committee, Eighty-ninth session, Concluding observations of the Human Rights
Committee, CHILE (CCPR/C/CHL/CO/5), para. 16.
http://www2.ohchr.org/english/bodies/hrc/docs/AdvanceDocs/CCPR.C.CHL.CO.5.pdf?Opendocu
ment; Human Rights Committee, Ninety-third session, Concluding observations of the Human
Rights Committee, Republic of San Marino, (CCPR/C/SMR/CO/2) para. 7.
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2
FSMR%2FCO%2F2&Lang=en; (Last accessed on 15/05/16).
54
Article 20(1) of the Declaration provides that every individual has the right to
freedom of peaceful assembly without any interference and discrimination. 137

However, these rights are not absolute and reasonable restriction on these rights is
permitted by the International Covenant on Civil and Political Rights on certain
grounds such as national security, public safety, public order, public health and public
morals. The Human Rights Committee also observed that any restriction on the right
to freedom of expression, peaceful assembly and association should be in accordance
with the provisions and preamble of the Covenant. It was also upheld by the
Committee that such restrictions should not violate the right to protection against
discrimination including sexual orientation and gender identity as one of the
prohibitive grounds of discrimination.

2.3 The Yogyakarta Principles

The International Human Rights mechanism has witnessed a great journey of progress
towards gender equality and protection of individuals against violence and
discriminatory acts in the States. As a matter of fact, International Human Rights law
also provides that the State Parties are under the obligation to ensure the protection of
all the individuals against discrimination on the grounds of sexual orientation and
gender identity. Nonetheless, the response of various countries towards the human
rights violations and violence on the basis of sexual orientation and gender identity
has been ambiguous and inconsistent.

To overcome the ongoing discrimination and violence based on sexual orientation and
138
gender identity, the International Commission of Jurists and the International

137
United Nations International Covenant on Civil and Political Rights, Human Rights Committee
102nd session, General comment No. 34 (CCPR/C/GC/34), para. 26. See also general comment No.
22 (CCPR/C/21/Rev.1/Add.4), para. 8, http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf,
(Last accessed on 15/05/16).
138
The International Commission of Jurists, https://www.icj.org/commission/, (Last accessed on
25/08/16). The International Commission of Jurists, established in 1952, consists to sixty
renowned judges and lawyers representing various parts of the world. Its function is to protect and
promote Human Rights on the basis of Rule of law. It is an expert body dedicated towards
strengthening of International and National Justice Systems. The aims and objectives of the
International Commission of Jurists includes progressive development in the sphere of Human
Rights, ensuring basic rights including various civil and political rights and economic, social and
cultural rights to all the individuals, effective implementation of the International Human Rights
law, to protect separation of powers and also to ensure the guarantee of independent judiciary and
legal profession.
55
 139
Service for Human Rights , had committed to develop and propose a set of
International principles based on the notions of universality and equality for the
protection of individuals of all ages against the discrimination and violence based on
sexual orientation and gender identity. These International principles for resolving the
issues related to the sexual orientation and gender identity were formulated,
developed and discussed by a prominent group of human rights experts. The group
consisted of 29 experts from 25 countries. After a meeting held at Gadjah Mada
University in Yogyakarta, Indonesia from Nov 6- Nov 9, 2006, the group of Human
Rights expert unanimously adopted the ‘Yogyakarta Principles’ as a part of
International Human Rights law concerned with sexual orientation and gender identity
issues. 140 These principles formulated by the Human Rights experts address a wide
range of human rights standards applicable on various issues related to the sexual
orientation and gender identity.

The Yogyakarta Principles enumerate various obligations targeted towards the State
to prevent discrimination and violence based on sexual orientation and gender
identity. These principles are applicable on all the organs and functionaries of the
Government running in a State. These principles also enumerate obligations to be
imposed on various State agencies concerned with health, education, and social
welfare and also applicable to police system, judiciary, military services, and other
services on behalf of the State Parties. 141

2.3.1 An outline of Yogyakarta Principles: -

2.3.1.1 The Preamble
The Preamble of the Yogyakarta Principle provides the definitions of key terms
related to the sexual orientation and gender identity issues. It also acknowledges the
discriminatory acts and violence based on sexual orientation and gender identity and
seeks to prevent such human rights violation through the appropriate legal framework
established under the guidance of the Principles.

139
The International Service for Human Rights, http://www.ishr.ch/, (Last accessed on 25/08/16). It is
an independent civil society, which aims at promotion and protection of Human Rights.
140
The Application of International Human Rights Law in relation to Sexual Orientation and Gender
Identity, http://www.yogyakartaprinciples.org/, (Last accessed on 25/08/16).
141
An Activist’s guide to the Yogyakarta Principles, Sonia Onufer Corrêa and Vitit Muntarbhorn,
August 2010, http://www.ypinaction.org/wp/wp-content/uploads/2016/10/Activists_Guide_
English_nov_14_2010. pdf, (Last accessed on 25/08/16).
56
2.3.1.2 Right to equality, protection against discrimination and recognition
before the law
Principles 1 to 3 provides that the human rights are universally applicable without any
discrimination and it further provides that all the individuals are entitled to the right of
recognition before the law.

For example, the laws criminalizing consensual same-sex acts between adults violate
the International human rights relating to the protection against discrimination. The
Human Rights Committee also upheld that the law criminalizing same-sex acts
between consensual adults to be violative of the rights guaranteed in the ICCPR 142.

2.3.1.3 Right to life and Security

Principles 4 to 11 address provides for various basic rights such as the right to life; the
right to protection against violence, torture, cruel or inhuman treatment; the right to
privacy; the right to protection against arbitrary detention and access to justice.

In the present times, there are many instances of violation of the right to life and
security on the grounds of sexual orientation and gender identity. Despite the
mandates of International Human Rights law which provide that the death penalty
may not be imposed on consensual same-sex acts between adults, death penalty is still
awarded in the cases relating to consensual same-sex acts between adults.

Recently a case related to the arbitrary detention of homosexual men attracted the
attention of International Human Rights mechanism. In this case, eleven men were
arrested in a gay bar and were also detained for consensual same-sex activity between
adults. It was observed by the United Nations Working Group on Arbitrary Detention
that the detention of men on the account of consensual same-sex activity is a gross
violation of International Human Rights law, where one of the homosexual prisoners
died due to the arbitrary detention 143.

142
Born free and equal: Sexual Orientation and Gender Identity in International Human Rights Law,
United Nations Human Rights Office of the High Commissioner HR/PUB/12/06, 2012 United
Nations, http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf, (Last
accessed on 1/09/16).
143
Criminalization (Fact sheet), Free and Equal: United Nations for LGBT equality, https://www.
unfe.org/system/unfe-43-UN_Fact_Sheets_-_FINAL_-_Criminalization_(1).pdf, (Last accessed on
1/09/16).
57
2.3.1.4 Protection against discrimination in the enjoyment of economic, social
and cultural rights
Principles 12 to 18 provides that all the individuals have a right to enjoy economic,
social and cultural rights as guaranteed in the International Human Rights law,
including the right to work, livelihood, shelter, social security, education and access to
health care services, without any discrimination. Nonetheless, according to a report of
UN Special Rapporteur on adequate housing, women belonging to sexual minorities
are at a higher risk of homelessness, discrimination, and violence 144.

In another report of UN Special Rapporteur on the right to education, it was observed

that women belonging to sexual minorities are also at a higher risk of being expelled
and discriminated in the higher educational institutions 145.

The UN High Commissioner for Human Rights has also expressed a concern about
the laws prohibiting transgendered individuals to undergo sex reassignment surgery or
requiring transgenders to undergo the process of sterilization irrespective of their
consent 146.

2.3.1.5 Right to freedom of Expression, Opinion and Peaceful Assembly

Principles 19 to 21 deals with the right to freedom of speech and expression, opinion;
the right to peaceful assembly and association; the right to choose one’s identity
without any discrimination based on sexuality or transgenderism. Therefore all the
individuals are free to choose their community and express their sexuality and also
participate in a peaceful assembly and associations.

According to the report of UN Special Rapporteur on racism, discrimination and other

targeted violent acts, in many States, a peaceful symposium to promote the rights of
sexual minorities and to propagandize the right to equality and the protection against
discrimination based on sexual orientation and gender identity was proscribed by the

144
Sexual orientation and gender identity as human rights issues in development cooperation, Federal
Ministry for Economic Cooperation and Development, http://www.institut-fuer-menschenrechte.
de/uploads/tx_commerce/e-info-
tool_sexual_orientation_and_gender_identity_as_hr_issues_in_dc.pdf, (Last accessed on
12/09/16).
145
LGBT PRIDE 2010: Lesbian, Gay, Bisexual and Transgender Rights are Human Rights; Activist
Resource Packet; Amnesty International http://www.amnestyusa.org/sites/default/files/pdfs/
pridekit2010.pdf, (Last accessed on 12/09/16).
146
Born free and equal, Supra note 142.
58
State authorities. Moreover, the participants were also intimidated and harassed by the
police authorities. The participants of such gathering who intend to promote non-
discrimination on the basis of sexual orientation and gender identity are often also
intimidated by the extremist nationalists 147.

2.3.1.6 Right to freedom of movement and asylum

Principles 22 and 23 elucidate and further provide that the right to seek asylum is
inherent in all the individuals and it also includes the right to seek asylum for the
protection against violence and discriminatory acts based on sexual orientation or
gender identity.

As per the guidelines of the United Nations High Commissioner for Refugees the
States should ensure the right to protection also to the refugees under the fear of
persecution based on sexual orientation or gender identity 148.

2.3.1.7 Right to participate in cultural and family life

Principles 24 to 26 provides that all the individuals, irrespective of their sexual
orientation and gender identity, have the right to family and to participate in the
cultural life of the community. It is also provided that the right to participate in the
administration and other public affairs without any discrimination should also be
protected by the States

As per the observation of the UN Human Rights Committee, the State Parties are
under the obligation to protect individuals against discrimination and the States
should also ensure that in the matters related to the allocation of partnership benefits
such as survivors’ pension, the individuals should not be discriminated on the basis of
their sexuality or homosexual relationships 149.

147
LGBT PRIDE 2010, Supra note 145.
148
United Nations High Commissioner for Refugees, Guidelines on International Protection no. 9,
Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of
Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
http://www.unhcr.org/ 50ae466f9.pdf , (Last accessed on 23/10/16).
149
The Yogyakarta Principles: an Overview http://www.yogyakartaprinciples.org/principles-en/the-
yogyakarta-principles-an-overview/, (Last accessed on 5/11/16).
59
2.3.1.8 Protection of Human Rights Defenders
Principle 27 150provides that the right to promote and also defend Human Rights in
inherent in all the individuals irrespective of their sexual orientation and gender
identity. It further explains that the States should ensure the protection of the
individuals engaged in the promotion and the acts of defending Human Rights.

As per the report of UN Special Rapporteur on the protection of Human Rights

Defenders, the individuals of all ages engaged in the protection and promotion of the
rights of sexual minorities have been threatened, physically and sexually abused,
assaulted, intimidated and even murdered. The Special Representative of the UN
Secretary-General also expressed concern regarding the casual attitude of the State
authorities towards such serious cases 151.

150
The Yogyakarta Principles also provide for the protection of the right to promote Human Rights.
The mentioned right enshrined in the Principle states that the right to promote and defend human
rights is inherent in all individuals. Every person has a right to promote human rights either
individually or in a group, without discrimination based on sexuality or transgenderism. This right
to protect and defend human rights also includes right to promote and defend the rights of sexual
minorities such as homosexual and transgendered individuals. This further connotes that all the
individuals have right to promote and defend the rights of homosexual and transgendered
individuals and also work towards developing new human rights principles for their protection.
The Principles also enumerates certain directions for the States to ensure the protection of the
mentioned right. These directions include:
1. States should adopt all the pivotal measures required to ensure the protection of individuals in
the acts intended to promote and defend human rights including the rights of homosexuals and
transgendered individuals. States should also make efforts to ensure a favorable environment
for the promotion of human rights.
2. States should also adopt appropriate measures for the protection of the individuals engaged in
the promotion and realization of the rights and issues related to sexual orientation and gender
identity and also ensure the protection of human rights defenders belonging to the sexual
minority.
3. States should also ensure the protection of the right to participate in various international and
national programmes and organizations without any discrimination based on sexual
orientation and gender identity. States should also ensure that all the individuals, irrespective
of their sexual orientation or gender identity and also irrespective of the issues they advocate,
should have a right to access various organizations and bodies.
4. States should also ensure the protection of all persons of all ages engaged in the promotion of
human rights and issues related to sexuality and transgenderism against violence, threats,
vengeance, pressure, arbitrary actions, discrimination etc. States should also ensure the same
protection to various human rights defenders who belong to the LGBT community.
5. States should also promote and recognize various organizations engaged in the promotion and
protection of the rights of individuals belonging to diverse sexual minorities.
151
Yogyakarta Principles Supra note 149.
60
2.3.1.9 Rights to redress violations based on sexual orientation and gender
identity
Principles 28 and 29 provides that the States should adopt appropriate measures for
the redress of discriminatory acts and violations of human rights based on sexual
orientation and gender identity and also should adopt appropriate legislative measures
for holding such perpetrators accountable for their acts.

It was also observed by the UN Commissioner for Human Rights that the violence
against sexual minorities and non-liability and acquittal of such perpetrators is a
matter of great concern and the States should also ensure extended protection for the
protection of individuals against hate crimes, other forms of violence and
discrimination based on sexual orientation and gender identity. It was also stated by
the UN High Commissioner that failure of the States to protect sexual minorities from
the violation of human rights and also excluding them from the protections and other
rights not only violates International Human Rights norms but is also against the
principles of humanity. 152

Additional Recommendations: The Principles also enumerates several additional

recommendations for the effective working of International and Regional Human
Rights mechanisms, NGOs, UN agencies, Human Rights treaty bodies and other
organizations.

The Yogyakarta Principles also summarize the responsibilities of various organs of

the State and other organizations for the promotion and protection of human rights
and also suggested the inclusion of these Principles as standards for their effective
functioning.

On Dec 1, 2006, it was submitted to the UN Human Rights Council by various

representatives of 54 States that the violations of Human Rights based on sexual
orientation and gender identity is a matter of a serious concern and protection and
prevention such discriminatory acts should remain the focus of the Council. It was
further recommended that special procedures should be adopted the sexual orientation

152
Id.
61
and gender identity issues should be included in the treaty bodies within their scheme
of relevant provisions.

It was rightly observed in the given joint statement of the State representatives from
four UN regions and also by the Yogyakarta Principles that the protection of Human
Rights is the responsibility of every individual 153.

153
Id.
62
 CHAPTER 3
PROTECTION AGAINST
DISCRIMINATION BASED ON
SEXUAL ORIENTATION AND
GENDER IDENTITY UNDER
REGIONAL HUMAN RIGHTS
BODIES
 CHAPTER 3
PROTECTION AGAINST DISCRIMINATION BASED ON
SEXUAL ORIENTATION AND GENDER IDENTITY UNDER
REGIONAL HUMAN RIGHTS BODIES

Since the adoption of the European Convention on Human Rights, 1950, there was a
movement for developing detailed regional standards for the protection of Human
Rights. American Convention on Human Rights was adopted in the year1967 and
thereafter the African Charter on Human and Peoples’ Rights was adopted in the
year1981. Subsequently, other regional treaties also came into force for the protection
of Human Rights including not only civil and political rights but also economic, social
and cultural rights 154.

3.1 European Convention on Human Rights

The European Convention on Human Rights is a regional mechanism for the
protection of Human Rights and other basic freedoms. On Nov. 4, 1950, the
convention was made open for the signatures and it finally came into force in the year
1953. The Convention is the first of its kind adopted to ensure the protection of the
rights as mentioned in the Universal Declaration of Human Rights. Since its
inception, the instrument has been amended many times and meanwhile, many other
rights have been added to the same which were originally not there in the Convention.

The Convention 155 does not explicitly includes sexual orientation and gender identity
as one of the prohibitive grounds of discrimination. However, it has been established
by the European Court of Human Rights in many cases that the discrimination and
violence based on sexual orientation and gender identity is a serious violation of the
right to life and also the law criminalizing consensual same-sex activities between
adults was held to be violative of the right to private life as provided in the Article
8 156 of the ECHR 157.

154
Chapter 3 The Major Regional Human Rights Instruments and the Mechanism for their
Implementation, Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and Lawyers, Available at http://www.ohchr.org/Documents/Publications/
training9chapter3en.pdf, (Last accessed on 12/10/16).
155
Hereinafter referred to as ECHR.
156
European Convention on Human Rights, http://www.echr.coe.int/Documents/Convention_
ENG.pdf, (Last accessed on 15/10/16). Article 8 of the Convention guarantees the right to private
63
In the year 1981, in a landmark case, Dudgeon v. The United Kingdom 158 , the
European Court of Human Rights held that the law criminalizing consensual
homosexual acts and subjecting such consenting homosexuals to an investigation is a
violation of Article 8 of ECHR and such restriction cannot be justified on the grounds
of morals or for protecting the other rights and freedom. In the given case, the
applicant belonging to a sexual minority complained that he had been subjected to
investigation for certain same-sex acts and behaviour due to which the applicant was
under the constant fear of being harassed or blackmailed. It was also submitted by the
applicant that such interference with his right to private life also resulted in
psychological stress. Accordingly, it was held by the European Court of Human
Rights that there had been a violation of Article 8 of the ECHR.

In another case, Norris v. Ireland 159 (1988), it was observed by the European Court of
Human Rights that the criminal laws criminalizing consensual homosexual acts
between adults cannot be justified on the grounds of causing shock or offending the
general public for whom such consensual same-sex acts are against morality. It was
submitted by the applicant in this case that the then law of Ireland criminalizing
consensual same-sex acts amounted to the interference with his right to respect for his
private life which also includes sexuality and sexual relations. It was held by the
Court that criminalization of consensual same-sex acts and behaviour between adults
is a violation of Article 8 of the Convention.

life and family. It provides that the right to private and family life is inherent in all the individuals
and any interference of the same amounts to its violation. For the mentioned right there should be
no interference by any public authority except according to the procedure established by law.
Nonetheless, the right is not absolute and could be subjected to certain restrictions in the interest of
national security, public safety, prevention of crime, protection of public health and morals, also
for the protection of the other rights and freedoms.
157
Study Guide: Sexual orientation and Human Rights, Human Rights Education Associates (HREA)
2003, University of Minnesota Human Rights Library, http://hrlibrary.umn.edu/edumat/
studyguides/sexualorientation.html, (Last accessed on 15/10/16).
158
European Court of Human Rights, Dudgeon v. The United Kingdom (Application no. 7525/76),
http://hudoc.echr.coe.int/eng#{"itemid":["001-57473"]}, (Last accessed on 15/10/16).
159
European Court of Human Rights, Norris v. Ireland (Application no. 10581/83), http://hudoc.
echr.coe.int/ eng#{"dmdocnumber":["695424"],"itemid":["001-57547"]}, (Last accessed on
15/10/16).
64
The same view was reiterated by the European Court of Human Rights in another
landmark case, Modinos v. Cyprus 160 (1993). In this case, it was observed by the
Court that the law criminalizing consensual same-sex acts and behaviour between
adults is a continuous interference with one’s private life. In the given case it was
submitted by the applicant that due to the provisions of law prescribing punishment
for the homosexual acts, he had suffered mental harassment and also was forced to
live under a fear of prosecution for having a relationship with the member of same-
sex. It was held by the Court that such interference with the right to respect for private
life including sexual relations is a violation of Article 8 of ECHR.

The European Court of Human Rights has not only a substantial and extensive
jurisprudence of matters related to sexual orientation but it is also the first
International Human Rights body to hold that the law criminalizing consensual
homosexual acts between adults is a grievous violation of human rights. The
European Commission on Human Rights 161, before being abolished in the year 1998,
also played a significant role in developing the Court’s jurisprudence in the matters
relating to the sexual orientation issues. It was held by the Commission that the law
prescribing higher age of consent for the homosexual acts than that prescribed for
heterosexual acts is discriminatory and also violative of Article 14 162 which provides
the right to protection against discrimination on the basis of various grounds 163.

160
European Court of Human Rights, Modinos v. Cyprus (Application no. 15070/89)
http://hudoc.echr.coe.int/ eng#{"ecli":["ECLI:CE:ECHR:1993:0422JUD001507089"],"itemid":
["001-57834"]}, (Last accessed on 15/10/16).
161
Council of Europe: European Commission on Human Rights, http://www.refworld.org/publisher/
COECOMMHR.html, (Last accessed on 15/10/16). European Commission on Human Rights was
a part of European regional mechanism for the protection of Human Rights as a special tribunal.
Individuals did not have a direct access to the European Court of Human Rights from the year
1954 till the Protocol 11 came into the force. For a complaint to be addressed by the Court,
individuals had to apply to the Commission and if the case was found to be appropriate to be
addressed by the Court, Commission would file a case on the behalf of the individual concerned.
The Commission was abolished in the year 1998 when the Protocol 11 came into force and since
then individuals have a direct access to the Court.
162
European Convention on Human Rights, Supra note 156. Article 14 of the Convention provides
for the protection of human rights against discrimination. It ensures the protection of the
individual’s enjoyment of the rights enumerated in the Convention without any discrimination on
the grounds of national or ethnic origin, sex, caste, race, property, opinion, membership of any
political association etc. or any other status.
sex, race, colour, language, religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.
163
Sutherland v. The United Kingdom, Application No. 25186/94, http://www.hrcr.org/safrica/
equality/Sutherland_UK.htm, (Last accessed on 15/10/16).
65
In another case, A.D.T v. The United Kingdom 164, the applicant submitted that the
authorities violated his right to respect for private life. The applicant was prosecuted
and convicted for indulging into the consensual same-sex acts with more than one
homosexual adult at his own house. The Court held that such prosecution and
conviction for participating in consensual homosexual acts is a violation of the right
to private life and therefore violative of the Article 8 of the ECHR. It was observed by
the Court that consensual same-sex acts in question were private in nature and
therefore the law criminalising the same cannot be justified.

The European Court of Human Rights also played a crucial role in ensuring the
protection of the individuals against arbitrary acts and degrading treatment of the
State authorities. In a recent case, Identoba and others v. Georgia 165 (2015), the
applicants argued that the Georgian authorities failed to protect them from violence
based on discrimination. It was submitted by the applicants that a peaceful
demonstration for the protection and defense of the rights of sexual minorities
organized by an NGO on the occasion of the International Day against Homophobia
in Tbilisi in May 2012 was agitated by the other demonstrators as a counter on the
peaceful demonstration of the applicants. The number of counter-demonstrators was
more than that of the defenders of the rights of sexual minorities. The applicants also
argued that the State authorities also failed to investigate the case in order to find out
the real discriminatory motive behind such attack.

It was held by the Court that in this case there was a violation of Article 3 166 and 14
of the Convention. The Court also pointed out that according to the various reports
related to the LGBT population there was a widespread homophobic attitude in some
of the parts of Georgia which were also affirmed by a report of the Commissioner for
Human Rights of the Council of Europe. The Court observed that the discriminatory
motive behind the violent attacks on the applicants is clear in the light of the

164
European Court of Human Rights, A.D.T v. The United Kingdom (Application no. 35765/97),
http://hudoc.echr.coe.int/eng-press#{"itemid":["003-68197-68665"]}, (Last accessed on 16/10/16).
165
European Court of Human Rights, Identoba and others v. Georgia (Application no. 73235/12),
http://hudoc.echr.coe.int/webservices/content/pdf/001-154400?TID=mmtaazzsab, (Last accessed
on 16/10/16).
166
European Convention on Human Rights, Supra note 156. Article 3 of the Convention provides that
all the individuals have the right to protection against torture, cruel, inhuman or ill-treatment. It
implies that the States are under the obligation to protect individuals against such torture or ill-
treatment.
66
mentioned reports. The Court also mentioned in its findings that such a violent attack
and threats by the counter-demonstrators is a violation of inherent right to live with
dignity as such acts would have caused fear, anxiety, and insecurity among the
applicants. The Court also held that the Georgian authorities failed to protect the right
of human rights defenders as in the given homophobic environment the authorities
knew or should have known the sensitivity and risks surrounding such demonstration.
The Court also issues directions to the authorities to investigate the case expeditiously
as the criminal law of Georgia also includes discrimination on the basis of sexual
orientation and gender identity as a provocation to the commission of an offence. The
State authorities under the obligation to protect the right of the individuals to promote
or defend human rights failed to investigate the given case involving the violent attack
by the counter-demonstrators on the applicants 167.

168
In a similar case, M.C. and C.A. v. Romania (2016), the applicants argued that the
State authorities failed to investigate violent homophobic attacks on them which
amounted to the violation of their rights enshrined in the Convention. In the given
case it was submitted by the applicants that on their way to home in the metro, they
were attacked by a group consisting of six young men and a woman on the account of
the participation of the applicants in the annual gay march held in Bucharest. During
this attack, the applicants were not only physically assaulted but also verbally abused
them in public by shouting derogatory remarks. It was further submitted by the
applicants that the State authorities failed to investigate the case to the effect of
finding the discriminatory homophobic motive of such an attack. The Court held that
in the given case there was a serious violation of Article 3 and 14 of the Convention
as the State authorities failed to investigate the case expeditiously as their
investigation on the account of the complaint of the applicants did not take into
account the discriminatory motives involved in the degrading and cruel treatment
towards the applicants.

167
European Court of Human Rights, Factsheet – Sexual orientation issues, February 2017, Available
at http://www.echr.coe.int/Documents/FS_Sexual_orientation_ENG.pdf (Last accessed on
19/02/17).
168
European Court of Human Rights, M.C. and C.A. v. Romania (Application no. 12060/12),
http://hudoc.echr.coe.int/eng#{"itemid":["001-161982"]}, (Last accessed on 19/10/16).
67
The role of the Court in the protection of human rights of the homosexual prisoners is
also noteworthy. In X. v. Turkey 169, the Court observed that it is the obligation of the
State authorities to protect the prisoners belonging to the sexual minorities from cruel,
inhuman or degrading treatment. In the given case, a homosexual prisoner was placed
in a solitary confinement followed by a complaint lodged by him against the inhuman,
degrading acts and bullying by his fellow inmates on the basis of sexual orientation
and gender identity. The solitary confinement of the homosexual prisoner continued
for about 8 months. It was observed by the Court that such solitary confinement
adversely affected the mental and physical health of the prisoner and also deprived
him of his dignity which further amounts to the violation of the right to protection
against torture and inhuman treatment as enshrined in Article 3 of the Convention. It
was further observed by the Court that the main reason behind the solitary
confinement of the homosexual prisoner was not his protection but his sexual
orientation which amounts to the discrimination based on sexuality and hence also
violates Article 14 170.

The European Court of Human Rights reaffirmed the rights of sexual minorities
including the right to respect for private and family life in a number of cases. In E.B.
v. France 171, the applicant argued that she had to face discrimination based on her
sexual orientation in the process of adoption. She also submitted that she had been
subjected to a discriminatory treatment at each step of authorization for the adoption
of a child. In this case, it was held by the Court that the denial of adoption of a child
on the basis of sexual orientation is the violation of Article 14 and 8 of the
Convention which respectively provides for the right to protection against
discrimination and right to respect for private and family life.

The Court also observed that the French law allows even a single person to adopt a
child, which implies that a single person is allowed to adopt a child irrespective of his

169
European Court of Human Rights, X. v. Turkey (Application Number: 24626/09), Available at
http://hudoc.echr.coe.int/eng-press#{"itemid":["003-4110556-4833050"]}, (Last accessed on
19/10/16).
170
See European Court of Human Rights, Factsheet – Sexual orientation issues, Supra note 167.
171
European Court of Human Rights, E.B. v. France (Application no. 43546/02), Available at
http://hudoc.echr.coe.int/eng-press#{"itemid":["003-2245258-2392886"]}, (Last accessed on
19/02/17).
68
or her sexual orientation but in the given case the denial of adoption request was
based on sexual orientation.

The European Court of Human Rights also held that the ban in military services on
the basis of sexuality is the violation of the right to respect for private life as
enshrined in the Article 8 of the Convention. In Lustig-Prean and Beckett v. the
United Kingdom 172 , the applicants who were all British armed forces personnel
alleged that they had been removed from the military services on the basis of their
sexual orientation. It was further submitted by the applicants that such discharge for
the military services on the basis of their sexuality amounted to a gross violation of
their right to respect for private and family life. It was unanimously held by the Court
that in the given case there was a violation of Article 8 of the Convention 173.

In another case, Salgueiro da Silva Mouta v. Portugal 174it was held by the Court that
the denial of the custody of one’s child on the basis of the sexual orientation of the
father is a violation of the right to respect for family and private life as provided in the
Article 8 ECHR. The Court also observed that the prohibitive grounds of
discrimination as provided in the Article 14 of the Convention also includes sexual
orientation and gender identity as one of the prohibitive grounds 175. Nonetheless, the
views of the Court are not applicable to private consensual sadomasochistic practices
which can be prohibited on the grounds of public health and morals. As it was held in
a case that such violent sexual acts although between consenting adults in their private
premises can be prohibited on the grounds of public health. 176

The Court’s substantial jurisprudence is not only limited to the sexual orientation
issues but it also has an extensive jurisprudence on the matters relating to the
transgendered individuals.

172
European Court of Human Rights, Lustig-Prean and Beckett v. the United Kingdom (Application
nos. 31417/96 and 32377/96), Available at http://hudoc.echr.coe.int/eng-press#{"itemid":["003-
68190-68658"]}, (Last accessed on 19/02/17).
173
See European Court of Human Rights, Factsheet – Sexual orientation issues, Supra note 167.
174
European Court of Human Rights, Salgueiro da Silva Mouta v. Portugal (Application no.
33290/96), http://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20
Salgueiro%20Da%20Silva%20Mouta%20v%20Portugal%20_parental%20responsibility_.pdf,
(Last accessed on 19/02/17).
175
See, Study Guide: Sexual orientation and Human Rights, Supra note 157.
176
Laskey, Jaggard, and Brown v. U.K , 24 Eur. H.R. Rep. 39 (1997).
69
Rees v. the United Kingdom 177 is one the earliest cases related to the gender identity
issues that came before the Court. In the given case it was submitted by a female to a
male transgendered applicant that the law of the United Kingdom which did not
confer legal status to him violated his right to respect for private and family life.
However, it was held by the Court that there has been no violation of Article 8 of the
Convention. The Court asserted that the changes demanded by the applicant would
require the transformation of the entire system of maintaining the birth records and
which would subsequently result in imposing an extra burden on the other population
and also would have invited crucial administrative consequences. It was also pointed
out by the Court that the State did perform its duties by referring to the fact that the
cost of the medical treatment of the applicant was borne by the United Kingdom.
Nonetheless, the Court expressed its concern regarding the unique issues related to
the transgendered individuals of all ages and also commended that appropriate
changes and measures in the light of societal and scientific development should be
adopted to overcome the distress of the population.

In the same case, the Court also held that the applicant’s right to marry and family as
provided under the Article 12 of the Convention was not violated. The Court pointed
out that the State has an authority to regulate the right to marry and find a family in
the light of the traditional concept of marriage which suggests that marriage is a bond
between two persons of opposite anatomical sex 178.

The similar views were reiterated by the Court in Cossey v. the United Kingdom 179 as
the Court did not find any rationale on the basis of which the Court could depart from
the previously decided matter. In the given case also it was held by the Court that
there had been no violation of Article 8 of the Convention.

The Court pointed out that all the biological traits of the other sex were not acquired
by the sex reassignment surgery. The Court also asserted, on the same lines of the
previous case, that transformation or addition in the maintenance of birth record is no

177
European Court of Human Rights, Rees v. the United Kingdom (Application no. 9532/81),
http://hudoc.echr.coe.int/eng#{"dmdocnumber":["695441"],"itemid":["001-57564"]}, (Last
accessed on 19/02/17).
178
European Court of Human Rights, Factsheet – Gender identity issues, April 2016,
http://www.echr.coe.int/ Documents/FS_Gender_identity_ENG.pdf, (Last accessed on 19/02/17).
179
European Court of Human Rights, Cossey v. the United Kingdom (Application no. 10843/84),
http://hudoc.echr.coe.int/eng#{"itemid":["001-57641"]}, (Last accessed on 20/02/17).
70
practical solution. The Court in this case also held that there was no violation of the
right to marry and family provided under Article 12 of the Convention as States have
authority to regulate the norms of marriage, which presupposes that the marriage is
consummated between two persons of opposite sex, The Court also observed that the
criteria of opposite sex in marriage is based on reason 180.

The Court held, for the first time, in B. v. France 181 that the norms related to the
recognition of transgendered individuals were violative of the right to respect for
private and family life as provided in the Article 8 of the Convention. In the given
case a male to a female transgendered applicant argued that the French authorities
violated her right to respect for private and family life in refusing her request to
amend her civil status in the register. The Court also pointed out the difference
between the present case and the previously decided cases namely Rees v. the United
Kingdom and Cossey v. the United Kingdom. The Court pointed out the difference
between the civil status systems of the United Kingdom and France and asserted that
for the United Kingdom there were major impediments in amending the birth
certificates but it was not the case in France where the civil status of an individual was
intended to be updated throughout the lifetime of the person concerned. The Court
also observed, on the account of various official documents and payslips, that there
were irregularities in the status of the applicant as regards to her legal and apparent
sex. Accordingly, it was held by the Court that the French authorities violated the
applicant’s right to respect for private life by denying her request to update her civil
status 182.

Nonetheless, the Court also held that the norms related to the marriage and
relationship of the transgendered individual are not violative of the right to respect for
privacy and family life. And the Court also reaffirmed that only a biological male and
not a female to a male transgendered individual could be recognized as a father 183.

180
European Court of Human Rights, Factsheet – Gender identity issues, Supra note 178.
181
European Court of Human Rights, B. v. France (Application no. 13343/87),
http://hudoc.echr.coe.int/eng #{"itemid":["001-57770"]}, (Last accessed on 20/02/17).
182
European Court of Human Rights, Factsheet – Gender identity issues, op cit.
183
European Court of Human Rights, X, Y and Z v. the United Kingdom, (Application no. 21830/93),
http://hudoc.echr.coe.int/eng#{"itemid":["001-58032"]}, (Last accessed on 20/02/17).
71
The Christine Goodwin case (2002) 184 is the turning point in the development and
protection of the rights of the transgendered individuals. The applicant, in this case,
argued that there was a lack of recognition as to her changed gender and also alleged
that she had to face discrimination in the sphere of employment and social security
and also her rights related to pension and marriage were violated. It was held by the
Court that there had been a violation of the right to respect for private and family life
as provided under the Article 8 of the Convention. In the given case the Court relied
on the contemporary International Human Rights law and the recent advancements
towards the legal recognition of the transgendered individuals without any
discrimination as to their gender identity. The Court also observed that the law
denying the right to recognition of the transgendered individuals after the sex
reassignment surgery cannot be justified on the account of public policy and morals
and it is also a violation of the principle of fair balance inherent in the Convention 185.
The Court also held that the denial of the right to marry on the grounds of one’s
gender identity is a violation of the Article 12 which provides for the right to marry
and family of the individuals without any discrimination. The Court further held that
the States are under the obligation to determine the norms and conditions related to
the marriage of transgendered individuals and also held that in the given case there
were no grounds to justify the denial of the right of the transgendered individual to
marry under any circumstances 186.

In another case decided on the same day, similar views were reiterated by the Court in
the case of I. v. the United Kingdom 187 . The Court held that there had been a
violation of the right to respect for private and family life and right to marry as
enshrined in the Article 8 and 12 of the Convention. On the basis of the above-
mentioned judgments, the United Kingdom introduced a system for the transgendered
individuals to apply for the legal recognition of the gender.

184
European Court of Human Rights, Christine Goodwin v. the United Kingdom, (Application no.
28957/95), Available at http://hudoc.echr.coe.int/eng-press#{"itemid":["003-585597-589247"]},
(Last accessed on 20/02/17).
185
See, European Court of Human Rights, Factsheet – Gender identity issues, Supra note 178.
186
Id.
187
European Court of Human Rights, I. v. the United Kingdom (Application no. 25680/94),
http://hudoc.echr.coe.int/eng#{"itemid":["003-585782-589432"]}, (Last accessed on 20/02/17).
72
Other cases related to the rights of the transgendered individuals which came before
the Court were concerned with the procedure of legal recognition of a transgendered
individual married before the sex reassignment surgery 188.

189
In the case of Grant v. the United Kingdom , a 68-year-old male to female
transgendered applicant argued that the denial to pay her a pension on retirement on
the grounds of lack of legal recognition of her changed gender, which was otherwise
applicable to the women on attaining the age of 60 years violated her right to respect
for private and family life as provided under the Article 8 of the Convention. It was
held by the Court that in the given case there had been a violation of the Article 8 of
the Convention. The Court observed that the given case was similar to the Christine
Goodwin’s case.

The Court recognized the obligation of the State authorities to provide for the norms
and other conditions related to the legal recognition and marriage of the transgendered
individuals and also held that the absence of such procedure cannot warrant the denial
of the rights of the transgender community. Subsequently, after the Christine
Goodwin’s judgment, it was upheld that the denial to recognize the gender of the
transgendered individuals after the sex reassignment surgery cannot be justified on
any ground. The applicant in the given case had no possibility to attain the recognition
before the Gender Recognition Act, 2004, came into the force. But thereafter, she
could obtain the recognition and hence she could only claim the breach of the said
right for the period in which she couldn’t obtain the recognition from the
authorities 190.

In the light of the cases decided by the European Court of Human Rights, it can be
established that the prohibitive grounds of discrimination as mentioned in the Article
14 of the Convention also includes sexual orientation and gender identity as one of the
prohibitive grounds of discrimination. However, it is not explicitly mentioned in the
Convention but it is upheld in many cases that the expression ‘other status’ used as
one of the prohibitive grounds of discrimination is used intentionally in order to leave

188
European Court of Human Rights, Factsheet – Gender identity issues, Supra note 178.
189
European Court of Human Rights, Grant v. the United Kingdom (Application no. 32570/03),
http://hudoc.echr.coe.int/eng#{"itemid":["003-1674922-1755206"]}, (Last accessed on 20/02/17).
190
See, European Court of Human Rights, Factsheet – Gender identity issues, Supra note 178.
73
it open for the inclusion of other ground of discrimination including sexual orientation
and gender identity. The Court has protected various rights such as the right to marry,
right against discrimination, right to respect for private and family life etc. concerning
homosexuals, and transgendered individuals but the same has not been explicitly
guaranteed in the Convention.

3.2 African Charter on Human and Peoples’ Rights

The African Charter on Human and Peoples' Rights is also known as the Banjul
Charter. It is a Regional International Human Rights instrument established for the
promotion and protection of the human rights and other inherent freedoms of the
individuals in the African continent 191.

The Charter enumerates certain objectives based on the principles of the International
Human Rights law and to achieve the mentioned objectives and goals, African
Commission on Human and Peoples Rights was established in the year 1987. The
Commission has its headquarter in Banjul, Gambia. In the year 1998, African Court
on Human and Peoples' Rights was also created by a Protocol adopted in 1998.

The African Charter prohibits discrimination on the basis of various grounds such as
national or ethnic origin, language, religion, sex, birth, colour, political or any other
opinion etc. Like other International and Regional Conventions and Charters, the
African Charter also included ‘other status’ while enumerating the prohibitive
grounds of discrimination 192. The Charter does not include sexual orientation and
gender identity explicitly as one of the enumerated prohibitive grounds. In fact, the
African Court’s jurisprudence related to the matters concerning the right to protection
against discrimination based on sexual orientation and gender identity under the
African Regional mechanism is not as profound as the European Human Rights
mechanism.

191
African Commission on Human and Peoples Rights, http://www.achpr.org/instruments/achpr/,
(Last accessed on 20/02/17).
192
African (Banjul) Charter on Human and Peoples' Rights, http://www.achpr.org/instruments/achpr/,
(Last accessed on 21/02/17). Article 2 of the Charter provides that the human rights and basic
freedoms enumerated in the Charter are inherent in all the individuals and it further guarantees the
enjoyment to rights and basic freedom recognized in the Charter without any discrimination on the
basis of any ground such as national or ethnic origin, birth, colour, race, sex, religion, political or
other opinion or any other status.
74
Homosexuality is prohibited and considered as a serious offence in most of the
African Countries. As a matter of fact, the rights of the sexual minorities are very
limited and also null in some parts of the Continent. However, South Africa remains
an exception and discrimination on the basis of sexual orientation and gender identity
is prohibited by the Constitution. Nonetheless, Africa remains as one of the most
homophobic regions around the world with the law criminalising consensual same-sex
acts between adults in more than 35 nations 193.

As an addition to the homophobic environment of the Continent, recently anti-

homosexual legislations have been proposed or passed in Nigeria, Uganda, and the
Gambia. The Same-sex Marriage (Prohibition) Act, 2013, prohibits same-sex
marriages in Nigeria 194. Not only this, the country also has certain discriminatory
laws as a part of their legal system which outlaws homosexual clubs and other related
homosexual organizations in Nigeria. Such prohibition in participating or having an
access to various groups and organizations for the protection of the rights of the
sexual minorities not only violates the right to peaceful assembly, association, and
expression but also forces the individuals belonging to the sexual minorities to live
without dignity 195. Similarly, Anti-Homosexuality Act, 2014 and the Prohibition of
the Promotion of Unnatural Sexual Practices Bill of 2014 of Uganda also reflects the
same Homophobic attitude. As similar to the draconian homophobic law of Nigeria
and Uganda, the Penal Code of Gambia has been recently amended for the inclusion
of ‘aggravated homosexuality’ as a crime punishable with a life imprisonment 196.

3.3 The Inter American Convention on Human Rights

Following the Universal Declaration of Human Rights, the process towards the
formation of Inter-American Regional mechanism for the protection of Human Rights
started in the year 1959 with the drafting of Inter- American treaty. Subsequently, in
the year 1969, the American Convention on Human Rights came into existence. The
193
Africa Check, How many African states outlaw same-sex relations?, https://africacheck.org/
reports/same-sex-relations-illegal-in-34-african-states-likely-35/, (Last accessed on 21/02/17)
194
Same-Sex Marriage (Prohibition) Act 2013, NASS/CAN/115/VOL 31/24, 30 December 2013,
http://www.aidsfreeworld.org/Newsroom/Press-
Releases/2014/~/media/Files/Nigeria%20Same%20Sex% 20Law%202014.pdf, (Last accessed on
21/02/17).
195
A Rudman, The protection against discrimination based on sexual orientation under the African
human rights system, 15 African Human Rights Law Journal (2015), p 1-27, http://
dx.doi.org/10.17159/1996-2096/2015/v15n1a1, (Last accessed on 21/02/17).
196
Id.
75
Convention is also popularly known as the Pact of San José, Costa Rica. It enumerates
around twenty-six basic freedoms and rights 197.

The Convention provides that the State Parties are under the obligation to ensure the
protection of human rights and basic freedoms enumerated in the Convention and
inherent in all the individuals without any discrimination on the grounds of national or
ethnic origin, birth, sex, colour, language, social or economic status, political or other
opinion or any other social condition 198.

The Convention enumerates basic human rights such as the right to life 199; the right to
protection against cruel, inhuman or degrading treatment 200 ; the right to personal
liberty and security 201 and also the right to privacy 202. However, the Convention does
not explicitly prohibits discrimination and violence based on sexual orientation and
gender identity.

197
Henry J. Steiner, Philip Alston, International Human Rights in Context, 2nd Edition, Oxford
University Press (2000).
198
Inter-American Convention on Human Rights, American Convention on Human Rights,
http://www.cidh. oas.org/basicos/english/basic3.american%20convention.htm, (Last accessed on
21/02/17). Article 1 of the Convention recognizes the obligation of the State Parties to respect and
protect the rights. The Convention states that the State Parties are under the obligation to ensure
the protection of the human rights and freedoms enumerated in the Convention to all the
individuals within their jurisdiction without any discrimination on the grounds of national or ethnic
origin, birth, sex, colour, language, social or economic status, political or other opinion or any
other social condition. The Convention also explains that the term ‘person’ strictly means human
beings and does not include any other creature.
199
American Convention on Human Rights, Supra note 198. Article 4 of the Convention ensures the
protection of the right to life to all the individuals. It provides that it is the obligation of the State
Parties to protect the right to life of all the individuals within their jurisdiction. It further
recommends for the abolition of death penalty and also provides that the individuals below 18
years of age and above 70 years of age and pregnant women should not be awarded death penalty.
It further provides for the right to apply for amnesty, pardon or commutation of sentence.
200
Id. Article 5 of the Convention provides for the right to protection against cruel, inhuman or
degrading treatment. It provides that the physical, mental and moral integrity of every individual
should be respected and no person should be subjected to inhuman or degrading punishment or
torture. It further commends that reformation and social re-adaption should be the objective of the
punishments depriving the liberty of individuals.
201
Id. Article 7 of the Convention deals with the right to personal liberty and social security. It
provides that the State Parties are under the obligation to ensure the protection of personal liberty
and security to all the individuals within their jurisdiction. It further provides that no person shall
be deprived of his personal liberty except according to the procedure established by law. It further
ensures the right to protection against arbitrary detention to all the individuals and also lays down
various rights of the accused person such as the right to be informed the grounds of detention, the
right to be produced before a judge or a judicial officer within reasonable time, and the right to
justice.
202
Id. Article 11 of the Convention provides the right to respect for private life and family. The right
to privacy also includes the right to protection against unlawful attacks or interference on the
honour or reputation of the individuals.
76
In Atala case 203 , Inter-American Court held that the individuals belonging to the
sexual minorities are entitled to the right to enjoy the human rights and basic
freedoms in all aspects of their life without any discrimination based on their sexual
orientation and gender identity 204. In the given case question of law was whether the
custody of children given to a homosexual parent (Mrs. Atala) would harm the moral
values and security of such children. Mrs. Atala and her husband were married for 9
years and after their divorce, it was decided that their three daughters would live with
the mother. After a year of divorce, Mrs. Atala moved to live with her new female
partner along with her daughters and following that her husband filed a complaint
against her in a local court. It was alleged by the ex-husband of Mrs. Atala that the
morality and security of their children living with her would be harmed due to her
homosexuality and her living with another homosexual partner. From the local courts,
the case made its way to the Supreme Court where it was decided in majority that the
daughters of Mrs. Atala were in a situation of risk as their home environment was
unique as compared to their fellow classmates due to which the girls were also placed
in a vulnerable position 205 . Nonetheless, Mrs. Atala filed a petition in the Inter-
American Court where it was unanimously held that State authorities violated her
right to equality and non-discrimination as enshrined in the Article 1 and 24 of the
Convention.

It was observed by the Court that in the light of the provisions of the Inter-American
Convention, the provisions of the Vienna Convention, and the standards set by the
European Court and International Human Rights law, the discrimination on the basis
of sexual orientation is prohibited and the homosexuals belong to a category which is
protected under the Convention. Therefore it is an established human rights principle
that any law or act which is discriminatory in nature towards homosexual shall be
prohibited and also any law or act of the State authority cannot violate or discriminate
any person on the basis of his or her sexual orientation. It was also observed that the

203
Karen Atala and Daughters v. Chile, Case 1271-04, Report No. 42/08, Inter-Am. C.H.R.,
OEA/Ser.L/ V/II.130 Doc. 22, rev. 1 (2008), https://www.cidh.oas.org/demandas/12.502eng.pdf,
(Last accessed on 10/03/17).
204
Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, Judegement
of February 24, 2012, http://www.corteidh.or.cr/docs/casos/articulos/seriec_239_ing.pdf, (Last
accessed on 10/03/17).
205
Id. at para 57.
77
State authorities are under the obligation to protect the individuals against the
discrimination and violence based on sexual orientation 206.

3.4 Asian Legal Framework for the Protection of Homosexual And

Transgendered Individuals
As far as the recognition and protection of the rights of the homosexuals are
concerned, Asian countries are way behind many other parts of the world. In almost
all Asian countries the primary concern is the protection of homosexuals from the
stigma, discrimination, physical and mental abuse and other forms of violence in the
given legal and social environment. At present, there are many Asian Countries which
penalize same-sex relationships such as Iran, Kuwait, Qatar, Saudi Arabia, United
Arab Emirates, Yemen, Afghanistan, Bhutan, Bangladesh, India, Maldives, Pakistan,
Sri Lanka etc. Not only this, in some societies homosexuals are considered as against
morals or people suffering from some sort of mental or physical disorder.
Homophobic attitude along with the lack of adequate legal protection against
discrimination based on sexual orientation expose almost all homosexual individuals
of all ages to the grievous violations of human rights in the form of killing, rape,
verbal or physical assault, arbitrary detention, denial of right to assembly, speech and
expression, discrimination in the sphere of education, health employment etc. on the
basis of their actual or perceived sexual orientation. More so the present international
and domestic human rights framework do not prevent discrimination and violence
based on actual or perceived sexual orientation. And in the absence of effective Asia-
wide regional mechanism or conventions to promote or protect human rights,
homosexuals are further denied of their basic rights including the right to live with
dignity. In the given legal and social environment of Asian countries, it is necessary to
probe into the causes and effect of discrimination and violence based on actual or
perceived sexual orientation.

3.4.1 Sexual Orientation Issues in Asia

As compared to the other parts of the world, the rights of sexual minorities are limited
in Asia. As per the societal norms of most of the Asian countries, homosexuality and
bisexuality fall under inappropriate sexual behaviours. Bisexuality does not attract

206
Id. at para 314.
78
discrimination as compared to homosexual individuals because mostly bisexuals are
not visible as bisexuals.

However, homosexuality is still addressed as ‘abnormal’ behaviour in many Asian

societies. Despite scientific and other medical advancements homosexuality is still
labeled as mental disorder or abnormality of some sort in many parts of the continent.
The primary human rights concern in the continent is protection against
discrimination and violence based on actual or perceived sexual orientation. Family
and reproductive rights such as the right to marry, the right to procreate etc. still
seems to be a distant goal in most of the Asian countries. LGBT individuals living in
Asian countries are exposed to various unique issues such as family rejection,
homelessness, social exclusion, bullying, health issues including AIDS, substance
abuse, mental disorders etc., hate crimes, legal injustice etc. More so in some Asian
countries, same-sex intercourse is punishable with death penalty. These issues along
with lack of stringent laws for the protection of homosexual individuals against
discrimination and violence makes it difficult for them to survive in many parts of the
continent. Therefore it is the need of the hour to critically analyse Asian laws
regarding same-sex intercourse and other ancillary matters thereto.

3.4.2 Law Relating to Same -Sex Sexual Activities in Asia

Consensual same-sex sexual acts between adults are prohibited in most of the parts of
Asia. Furthermore, it is also considered as a criminal offence punishable with the
death penalty in some of the countries in the continent such as Iran, Afghanistan, and
207
Brunei etc. However, the penal code of Afghanistan does not explicitly
criminalizes consensual same-sex sexual activity but the Constitution of Afghanistan
permits recourse to Sharia law in certain situations, which considers the same-sex

207
Penal Code 1976, Chapter Eight: Adultery, Pederasty, and Violations of Honour,
http://aceproject.org/ero-en/regions/asia/AF/Penal%20Code%20Eng.pdf/view, (Last accessed on
17/07/17). Article 427 of the Penal Code provides for the punishment relating to the intercourse
between males. It states that an individual who is convicted for the offence of adultery or pederasty
shall be punished with an imprisonment that shall be for a long period. The mentioned provision of
law also enumerates certain specifications when the commission of the mentioned offence is
considered as aggravating conditions. Those specifications include the commission of the
mentioned crime against an individual under the age of eighteen years or against a third degree
relative; the commission of the same by a tutor, teacher or servant; the commission of the offence
against a married woman or a maiden; when the offence is committed with the assistance of one or
more persons; when due to the commission of such crime victim is affected by a genital disease or
becomes pregnant.
79
sexual activity as against morality and hence punishable with a maximum of death
penalty 208.

The penal code of Iran also prescribes the death penalty for same-sex sexual activity.
Articles 108-113 of Islamic Penal Code of the Islamic Republic of Iran prescribes
Hadd punishment for sodomy. In the given code sodomy is defined as sexual
intercourse between male individuals, whether it takes place as penetration or rubbing
penis between thighs. It further prescribes 74 lashes as a penalty for consenting
immature or minor men convicted of sodomy and death penalty for mature men 209.
Same-sex sexual activities are also punishable in Bangladesh under the section 377 of
the Penal Code. The said law prescribes a punishment which may extend to life
imprisonment or imprisonment for a term of ten years or fine for the commission of
210
the mentioned offence . Nonetheless, in 2013 Bangladesh legally recognized
“Hijras” as belonging to a ‘third sex’ for the purposes of voting, travel, identification
and other civil rights 211 . In Bhutan also consensual homosexual activity between
adults is prohibited by the law and also considered as against morality and against the
order of nature 212.

In the present time where people are more concerned towards Human Rights, Burnei
takes a step back towards the medieval form of punishment by prescribing death
penalty by stoning for homosexual acts 213 . Previously, before the enactment of
Syariah Penal Code, the Penal Code in force prescribed a punishment of

208
Aengus Carrol, State Sponsored Homophobia 2016: A world survey of sexual orientation laws:
criminalization, protection and recognition, International Lesbian, Gay, Bisexual, Trans and
Intersex Association (2016),
http://ilga.org/downloads/02_ILGA_State_Sponsored_Homophobia_2016_ENG_WEB_150516.pd
f, (Last accessed on 17/07/17).
209
Islamic Penal Code of the Islamic Republic of Iran – Book One & Book Two, chapter 2,
http://www.iranhrdc.org/english/human-rights-documents/iranian-codes/3200-islamic-penal-code-
of-the-islamic-republic-of-iran-book-one-and-book-two.html#20, (Last accessed on 17/07/17).
210
The Penal Code 1860 (ACT NO. XLV OF 1860), http://bdlaws.minlaw.gov.bd/
print_sections_all.php?id=11, (Last accessed on 18/07/17).
211
Adnan Hossain, The paradox of recognition: hijra, third gender and sexual rights in Bangladesh,
Culture, Health & Sexuality: An International Journal for Research, Intervention and Care (2017),
http://www.tandfonline.com/doi/full/10.1080/13691058.2017.1317831, (Last accessed on
18/07/17).
212
The Penal Code of Bhutan (2004), Chapter 14 Sexual Offences, https://www.oecd.org/
site/adboecdanti-corruptioninitiative/46814108.pdf, (Last accessed on 17/07/17). Section 213 of
the Penal Code provides that an individual who engages in sodomy or unnatural acts shall be held
guilty.
213
Dominique Mosbergen, Brunei’s LGBT Community Faces Terrifying Future- Gay people live
under the threat of an agonizing death, Huffpost, Oct 15, 2015, http://www.huffingtonpost.
com/entry/lgbt-brunei_us_561501f9e4b0fad1591a1167, (Last accessed on 17/07/17).
80
imprisonment for a term of 10 years for the commission of homosexual acts 214. The
given enactment is a serious threat to the rights of LGBTs and their mainstreaming.

Similarly, Indian Penal Code also considers same-sex sexual activities as against the
order of nature under the section 377. The old draconian law framed during the
colonial period is still applicable in India. (The sexual orientation and gender identity
issues concerning Indian legal framework have been dealt with in the next chapter.)
Indonesia, on the other hand, does not have a sodomy law i.e., same-sex sexual
relations between consenting adults are not prohibited according to the Indonesian
Penal Code. However, the country fails to protect homosexuals and transgendered
individuals from discrimination and hate crime. Recently two men were caned 83
times as a punishment for consensual same sex sexual intercourse in Aceh 215. A Huge
number of people witnessed the infliction of punishment on the accused. Not only
this, recently Indonesian police detained dozens of men including several foreigners
in a raid on a gay sauna which is another sign of growing hostility to homosexuality in
the world's most populous Muslim nation 216.

In Iraq, same-sex sexual activity is not explicitly prohibited by the law but the country
still remains unsafe for the individuals belonging to the sexual minorities. According
to a report by Human Rights Watch, it was found that in the year 2009, Iraqi militia
members launched a wide campaign targeting a sexual minority for punishing them as
they are considered to be the sinners transgressing the moral values and religious
norms. It was also found that the so-called campaign for the hunting of homosexual
men or the ones who do not conform to the notion of masculinity involved executions,
abduction, and torture of those belonging to sexual minorities. Furthermore, the state
authorities of Iraq did not adopt any measure to check such heinous violation of
human rights. It was reported that the killings began in the Baghdad, which is a
stronghold of the Mahdi Army and late on the extrajudicial executions were carried

214
Aengus Carrol,State Sponsored Homophobia 2016, Supra note 208.
215
Ben Westcott and Gomos Simajuntak, CNN, Two men caned 83 times in Indonesia for
homosexual sex, (May 23, 2017) http://edition.cnn.com/2017/05/23/asia/indonesia-caning-
homosexuality/index.html, (Last accessed on 17/07/17).
216
Tatan Syuflana, Niniek Karmini , Independent, Indonesian police raid gay sauna and arrest dozens
as crackdown on homosexuality continues: Authorities say 141 men detained for violating
pornography laws as country's LGBT community again targeted despite same-sex relations being
legal, (May 22, 2017) http://www.independent.co.uk/news/world/asia/indonesia-police-gay-sauna-
raid-arrests-jakarta-the-wild-one-homosexuality-crackdown-muslim-a7749041.html, (Last accessed
on 17/07/17).
81
on by the other members of militia groups in various other cities of Iraq 217 . Also
recently, an Iraqi actor named Karar Noshi was also murdered due to his perceived
sexual orientation. He had been receiving death threats because of his appearance
which was presumed to be transgressing the norms of masculinity 218. Sharia judges,
who are the Non-State actors, are also known to order executions of men and women
for indulging in consensual same-sex sexual behaviour and acts, despite the fact that
the legal framework of Iraq makes no reference to same-sex sexual behaviour and
also does not criminalize homosexuality 219.

In Kuwait also consensual sexual intercourse between men is punishable under the
law 220 and similar is the status of homosexuals in Lebanon 221. However, Lebanon is
more tolerant to homosexuality as compared to other Arab countries like Saudi Arabia
and the United Arab Emirates.

There is no codified penal law in Saudi Arabia but the country applies strict Islamic
Sharia law as the criminal law of the land. Sura 7:80/81 describes homosexual acts as
a misdemeanour and does not prescribe punishment for the same 222. More so, the
same-sex acts and behaviour are not listed in Sharia law as one of the crimes
punishable with death penalty such as murder, adultery, apostasy etc. but the same is
punishable by death sentence in Saudi Arabia. In the year 2002, three homosexual

217
Human Rights Watch, Iraq: Cleric’s Call against Anti-LGBT Violence, (August 18, 2016),
https://www.hrw.org/news/2016/08/18/iraq-clerics-call-against-anti-lgbt-violence, (Last accessed
on 17/07/17).
218
Amrou Al- Kadhi, As a gay man born in Iraq, I know that western intervention is to blame for the
murder of LGBT Iraqis, Independent (July 5, 2017), http://www.independent.co.uk/Voices/iraq-
actor-karar-nushi-war-homosexuality-lgbt-home-office-western-intervention-gender-
a7824881.html, (Last accessed on 17/07/17).
219
The International Lesbian and Gay Human Rights Commission (ILGHRC), LGBT people in Iraq,
“When Coming out Is a Death Sentence” and “We’re Here: Iraqi LGBT People’s Accounts of
Violence and Rights Abuses”, http://iglhrc.org/content/exposing-persection-lgbt-individuals-iraq,
(Last accessed on 17/07/17).
220
Kuwait: UPR Submission 2014, (Jan. 11, 2014), https://www.hrw.org/news/2015/01/11/kuwait-
upr-submission-2014, (Last accessed on 17/07/17). Article 193 of Penal Code provides that the
commission of consensual same-sex activity by men over 21 years of age is an offence punishable
with imprisonment up to seven years.
221
United Nations Office on Drugs and Crime, Sharing Electronic Resources and Laws on Crime,
https://www.unodc.org/cld/document/lbn/1943/lebanon_penal_code.html?, (Last accessed on
17/07/17). Article 534 of the Penal Code of 1943 deals with the sexual intercourse against nature.
It provides that the sexual intercourse against nature is an offence punishable imprisonment up to
one year.
222
Aengus Carrol, State Sponsored Homophobia 2016, Supra note 208.
82
men were executed by beheading in the country 223. In another case, in the year 2014,
Saudi Arabia sentenced a man for three years imprisonment and 450 lashes for
meeting men on Twitter 224.Not only this, Saudi Arabia also objected to a resolution of
UN Human Rights Council which condemns the use of torture by law enforcement
and reaffirms the human rights of LGBT people 225. So is the state of affairs in the
United Arab Emirates and Yemen. In the United Arab Emirates all sexual acts outside
heterosexual marriage are banned 226. Although the Federal Penal Code, 1987 does not
explicitly deals with Homosexuality but same-sex sexual behaviour is punishable with
death penalty in the country 227.

In Yemen also homosexual acts are considered as against the law in accordance with
the Sharia law. Article 264 of the 1994 Penal Code prescribes the punishment for the
same-sex behaviour. It states that a homosexual act committed by unmarried men is
punishable with 100 lashes of the whip or one year imprisonment and the homosexual
acts committed by married men is punishable with the death by stoning 228. Article
268 of the 1994 Penal Code defines homosexuality between women as sexual
stimulation by rubbing. The Code prescribes that the commission of an intentional or
consensual same-sex sexual activity is punishable with three years of imprisonment
and in case of the commission of the same-sex sexual acts under duress, the
perpetrator is punishable with seven years of imprisonment 229.

However, this may not be the case in Hong Kong, Israel, Japan, Nepal, Philippines,
Taiwan, Thailand, Vietnam, and Cyprus. These countries are said to be the most open
to the sexual minorities in Asia. The countries which have recognized and made

223
Kit O’Conell, At UN Human Rights Council, Saudi Arabia Supports Right To Torture & Execute
LGBT People, Mintpress News, April 12, 2016 http://www.mintpressnews.com/un-human-rights-
council-saudi-arabia-supports-right-torture-execute-lgbt-people/215528/, (Last accessed on
19/07/17).
224
Jack Simpson, Gay Saudi Arabian man sentenced to three years and 450 lashes for meeting men
via Twitter, Independent, July 25, 2014 http://www.independent.co.uk/news/world/middle-
east/gay-saudi-arabian-man-sentenced-to-three-years-and-450-lashes-for-meeting-men-via-twitter-
9628204.html, (Last accessed on 19/07/17).
225
United Nations Human Rights Office of the High Commissioner, http://www.ohchr.org/en/
NewsEvents/Pages/DisplayNews.aspx?NewsID=18530&LangID=E, (Last accessed on 19/07/17).
226
Aengus Carrol, State Sponsored Homophobia 2016, op cit.
227
Federal Law no. (3) of 1987 on Issuance of the Penal Code, http://mublegal.com/wp-
content/uploads/ 2014/07/Federal-law-penal-code.pdf, (Last accessed on 19/07/17).
228
Republican Decree for Law No 12 for the Year 1994 Concerning Crimes and Penalties,
http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/83557/92354/F1549605860/YEM83557.pdf
(Last accessed on 19/07/17).
229
Id.
83
efforts for the protection of the rights of the sexual minorities in Asia are Japan,
Israel, Taiwan, and Nepal. More so, recently the judges of Taiwan have ruled in
favour of gay marriage, which is a significant step towards becoming the first country
in Asia to legalize marriage between homosexual individuals 230.

The legal status of sexual minorities in the Eastern Asia is far better than that of in the
Southern Asia, where the homosexual and transgendered individuals are the soft
targets of hatred and violent acts. Such human rights violations and discriminatory act
are not only derogatory but also adversely affect the mental and physical health of the
victims who tend to conceal their sexual orientation and gender identity under the fear
of being harassed. Criminalization of the consensual same-sex sexual activities
between adults is not only violative of the right to respect for private and family life
but also aggravates the homophobic attitude of people towards the members of the
sexual minorities.

Criminalization of same-sex sexual activity is justified by the Asian countries on the

following grounds:-
i. Some of the States support criminalization of same-sex sexual activity on the
grounds of their HIV prevention strategy. However, this rationale has been
constantly rejected by experts around the world. In the case of Toonen v.
Australia (1994), the UN Human Rights Committee held that criminalization
of the consensual same-sex sexual activity cannot be justified on the grounds
of public health as no connection was established between the continued
criminalization of the consensual homosexual acts and the effective control on
the spread of HIV/AIDS virus, It was also observed that due to the
criminalization of consensual homosexual acts between adults, a considerable
number of homosexual individuals hide their sexual orientation and tend to
avoid public health programmes 231.
ii. Some States find their justification to criminalize same-sex sexual activity in
laws based on religion such as Sharia law or law based on Bible, which
condemns homosexuality. In fact legal framework of most of the former
European colonies in Asia which penalizes homosexuality is based on Penal

230
Taiwan's top court rules in favour of same-sex marriage, BBC News, May 24, 2017,
http://www.bbc.com/news/world-asia-40012047 (Last accessed on 19/07/17).
231
Toonen v. Australia, Supra note 112.
84
 Code of 1860 which is one of the most important parts of British legacy.
However, some scholars allege that during the age of Bible the terms
‘homosexual’ or ‘homosexuality’ were not introduced. They further assert that
references to same-sex sexual behaviour in Bible are related to violence,
idolatry, and exploitation related to the behaviour which further indicates that
what is condemned by God is violence and exploitation based on same-gender
behaviour 232.

In Asia, the taboo related to the sexual minorities still exist in most of the societies.
Although the wide-spread misconception related to sexuality and transgenderism is
eroding passively in the Continent but it is noteworthy that in the present time many
Asian countries are considering the issue of the protection of sexual minorities from
ongoing discrimination and decriminalization of homosexuality and same sex
marriage thereof but the social inclusion of the homosexual and transgendered
individuals still remains the biggest challenge for the Asian societies.

232
Human Rights Campaign, What does the Bible say about Homosexuality?, http://www.hrc.org/
resources/what-does-the-bible-say-about-homosexuality (Last accessed on 18/07/17).
85
 CHAPTER 4
CRITICAL ANALYSIS OF THE
EXISTING INDIAN LEGAL
FRAMEWORK
 CHAPTER 4
CRITICAL ANALYSIS OF THE EXISTING INDIAN LEGAL
FRAMEWORK

Homophobia or transphobia is still prevalent in the Indian society. Nonetheless,

homosexuality and transgenderism are not new to the country. In fact, the oldest and
the first criminal code of India, Manusmriti, also referred to the homosexual acts but
did not consider the same as a crime. But the Code considered homosexual acts to be
something that needed to be regulated. In the light of ancient texts, it is clear that
homosexuality is a part of sexual behaviour since time immemorial but its acceptance
in the Indian society is still controversial. Homosexuality and never received a warm
welcome, rather there were norms providing punishments for the homosexual acts 233.

The same is true for the transgendered individuals who are also not accepted by the
society and considered as gender deviant or transgressing the established gender
norms. After so many years of scientific advancement still homosexuals and
transgendered individuals are mostly considered as a case of mental illness or some
sort of mental or physical disorder. Recently one of the past president of the Indian
Psychiatric Society, Dr Indira Sharma called homosexuality as "unnatural", thus
aggravated the controversy concerning the sexual minorities. She further added that
the manner in which the homosexuals discuss their rights and sex in public is
offending and unnatural, as for heterosexual population do not discuss sex in public
keeping it a private matter 234 . Following this statement, the agitated individuals
belonging to the sexual minorities submitted the matter before the Indian Psychiatric
Society, which disaffirmed the previous statement given by Dr. Indira Sharma. In fact,
the President and the General Secretary of the Indian Psychiatric Society further made
a statement that there is no scientific evidence on the basis of which homosexuality
could be considered as an illness or a disease 235.

233
George Buhler, The Law of Manu (Sacred Books of the East, Vol. 25), Chapter VIII, www.sacred-
texts.com/hin/manu/manu08.htm, (Last accessed on 17/03/14).
234
Malathy Iyer, Homosexuality is Unnatural- Leading Psychiatrist says, The Times of India, Jan. 21,
2014, https://timesofindia.indiatimes.com/india/Homosexuality-is-unnatural-leading-psychiatrist-
says/articleshow/29126819.cms, (Last accessed on 17/03/14).
235
Homosexuality not mental illness, disease: Indian Psychiatric Society, Firstpost India, Feb. 7,2014
http://www.firstpost.com/india/homosexuality-not-mental-illness-disease-indian-psychiatric-
society-1378661.html, (Last accessed on 17/03/14).
86
Section 377 236 of the Indian Penal Code enacted in 1860 outlaws same-sex sexual
acts and behaviour and also prescribes punishment for the same. In fact, it is alleged
that the law criminalizing homosexuality has been often used to harass, coerce and
also to arbitrarily detain the members of the sexual minorities 237 .

4.1 Hijra Community in India

The term ‘Hijra’ is popularly used in South Asia to refer to the transgendered
individuals 238. Hijras also face discrimination and rejection from the society, similarly
like homosexuals. Hijra is also a community consisting of transgendered individuals.
Most of the Hijras live in a community and resort to begging or sex work for their
survival. The community is open to the transgendered individuals of all ages and has
existed since time immemorial. The hijra community also adopts young transgendered
individuals rejected by their families 239.

Figure 6 Hijra Community in India

236
Section 377, Indian Penal Code (Act No. 45 of 1860) provides that an individual who voluntarily
had a carnal intercourse against the order of nature shall be punished with life imprisonment, or
imprisonment for a term which may extend to ten years or fine.
237
Siddharth Narrain, Crystallising Queer Politics- The Naz Foundation Case and its Implications for
India’s Transgender Communities, 2 NUJS L. Rev. 455 (2009), 457.
238
Mansi Choksi, The ties that Bind Transgendered Communities, The New York Times (December
19, 2013) http://india.blogs.nytimes.com/2013/12/19/the-ties-that-bind-transgendered-
communities/?_php=true&_type=blogs&_r=0 (Last accessed 17/03/14).
239
Shahodari Foundation, http://www.sahodari.org/education.html (Last accessed on 17/03/14).
87
Till recently, the community remained in deprivation of many civil and other rights.
Furthermore, the law of the land was also discriminatory towards them. The history of
discriminatory laws towards the Hijra community began with an amendment to the
Criminal Tribes Act of 1871 240 which was introduced by the British Parliament in
India. This amendment was specifically applicable to the Hijra community. During
those days Hijra community was seen as a tribe and as per the discriminatory law, all
the members of the mentioned tribe or castrated men were to register themselves with
an appointed authority and also their actions were subjected to certain restrictions.
Besides that, in the year 1908 special colonies were created for the community where
they were subjected to perform hard labour 241. Jawaharlal Nehru, in his speech at
Lahore in 1936, addressed the Criminal Tribes Act as a ‘monstrous provision of law’
and also asserted that such a discriminatory law should be repealed. He further said
that a legal provision which describes a tribe as criminal is against all the basic
principles of criminal justice and an attempt should be made to repeal the same 242.
The discriminatory piece of legislation was repealed in 1951 but the stigma still
remains attached to them. Even after the repeal of the law labeling transgendered
individuals as a criminal tribe, the harassment and abuse of the community continue
till date. In fact, the colonial attitude towards the hijra community continued even in
the legislations of the post-colonial era. Nonetheless, the discriminatory feature of the
Criminal Tribes Act was resurrected in the form of legislations like the Bombay
Habitual Offenders Act, 1959 243.

Since then, the community is looked down as a tribe of criminals. Often, they are also
suspected of the offences such as kidnapping, sexual offences, and castration of
children etc. and also required to register their names and place of residence with the
police authorities 244. The stigmatization and labeling of the community, is the most
crucial impediment in the mainstreaming of the transgendered individuals in the
society and is also a reason of the violation of their basic rights. The case of
Khairati 245 is a perfect example to show how the community has been harassed and
abused on the basis of their gender identity. In the given case, Khairati was a eunuch

240
Criminal tribes Act, 1871, Act No. XXVII of 1871 modified in 1897.
241
Siddharth Narrain Supra note 237 at 458.
242
Id.
243
Id.
244
Id. at 459.
245
Queen Empress v. Khairati [I.L.R. 6 ALL 204].
88
belonging to the hijra community and was accused of dressing and singing as a
woman in public. He was also under a close observation, in accordance with the then
Criminal Tribes Act, 1951, when he was caught singing and dancing dressed as a
woman among other women. Khairati was also subjected to a medical examination
where it was found that his orifice was deformed to a wedge-shape. It was also found
that Khairati had also contracted syphilis. On the basis of this medical examination,
he was convicted for committing unnatural offence as explained under section 377 of
the Indian Penal Code 246. Although the accused admitted his being habitual to dress
as a woman but denied to have been subjected to unnatural intercourse and also
alleged that he was not dressed as a woman when the police authorities found him.
Khairati was convicted under Section 377 by the lower court but later on, his
conviction was quashed by the Allahabad High Court on the basis of vague
evidence 247.

Another case concerning gender identity issues that attracted much of media attention
is Kamla Jaan’s case 248. Kamla Jaan, a member of hijra community, was elected as
the Mayor of Katni in 1999 and consequently became the first transgender mayor in
the country. Her contesting election was challenged by the opposition party on the
ground of being unqualified. It was also argued that the post for which Kamla Jaan
was appointed was reserved for a female candidate and Kamla Jaan being a hijra did
not fit to that 249. The question of law before the Court was that whether hijras belong
to the category of male or female? The legal recognition of the transgendered
individuals is also one of the grounds on the basis of which the community is often
subjected to discriminatory acts. The judges referred to various Epics and other
ancient texts such as Mahabharata, Manusmriti, and Kamasutra etc. and came to a
conclusion that apart from males and females there exists another category of persons
who are neither male nor female. It was also observed by the Court that through a
medical examination, the gender status of the respondent could be established but the
respondent refused to undergo such medical examinations. Finally, it was observed by
the Court that the term ‘female’ means a person who could give birth to a life and on
the basis of this definition, it was held that Kamla Jaan was not a female and hence

246
Siddharth Narrain op cit.
247
Id.
248
Kamala Jaan v. Sadiq Ali and others, Civil Revision No. 1294/2002, (M.P.H.C.) (Unreported).
249
Siddharth Narrain, Supra note 237 at 458.
89
not qualified to be elected as a Mayor on the seat reserved for a woman. The High
Court of Madhya Pradesh also upheld the decision of the lower court. However, the
directions of the Election commission which suggest that a hijra is eligible to be
registered on the electoral roles either as a male or a female, was completely ignored
in the given case 250.

Figure 7 Kamla Jaan

Another case, involving violence and hatred toward the community is Jayalakshmi’
case 251. In this case the deceased transgender committed suicide. It was submitted by
the brother of the deceased that the aravani was physically and sexually abused by the
police officials and other people in the police station. The authorities were held guilty
by the bench headed by the then Chief Justice of Madras High Court and the brother
of the deceased was awarded compensation of Rs.5 Lakhs.

The hijra community has been targeted by the police authorities since the colonial era.
In the present time as well the community is often seen with suspicion by the state
authorities. In an incident in Bengaluru in the year 2008, whole hijra community was
targeted due to a single case of alleged abduction. The police authorities also directed
the land-lords to not to rent out their homes to the members of hijra community on the
grounds of their involvement in immoral acts. Following the same, a considerable
number of hijras were evicted. The community is also alleged to forcibly castrate

250
Id.
251
W.A.No. 1130 of 2006 and WP.No.24160 of 2006 decided by the High Court of Judicature at
Madras, Dated 10.07.2007.
90
young boys, which in itself is a serious allegation that attracts charges of kidnapping,
attempt to murder and grievous hurt. However, it has been observed that the
authorities did not act cautiously to investigate such cases in fact in many cases
members of the hijra community are already presumed to be the offenders which is
totally against the principles of criminal justice and human rights. Nonetheless, the
cases in which the young boys approach hijra community for voluntary castration are
often ignored by the authorities. Young transgendered adolescents tend to run away
from their homes and approach the community to become a part of it largely due to
family and societal rejection. Hijras are often convicted for the offence of extortion
and begging, apart from being booked under Section 377 of the Indian Penal Code 252.

The legal recognition of the hijras after sex reassignment surgery continued to be a
controversial issue till recent. The transgendered individuals, after the sex
reassignment surgery, often face complications in their documentation. Until the year
2005, there were only two categories of gender options given in the passport
application. Nevertheless, the Central Government placed ‘E’ category in the
application for the passports for the transgendered individuals. In fact, they can also
get a voter ID and the other identity cards by mentioning their status as of the third
gender. There are certain positive developments towards the legal recognition of the
transgendered individuals, but the problem persists in many areas where the only
binary system of gender is recognized. Changing of the gender status in documents,
after the sex reassignment surgery is in itself a tiring task in the given bureaucratic
system. More so, there are no guidelines or norms related to the changing of legal
status after the sex reassignment surgery and also there are no efforts on the part of
Government authorities concerned for making the tedious task of changing the
gender, easier for the community 253.

Another important concern related to the transgendered community is safe and

pocket-friendly access to the sex reassignment surgery. The sex reassignment surgery
is a crucial requirement of the community. The Penal law of the country recognizes
castration as a criminal offence, punishable under the Indian Penal Code. However,
there is also a provision in the Penal Code which provides that an act done in a good

252
Siddharth Narrain, Supra note 237 at 461.
253
Id.
91
faith and with the consent to suffer is excluded from the definition of grievous hurt.
There are many hospitals providing the facility of sex reassignment surgery but the
legality of the surgery is still ambiguous in the absence of proper norms and directions
of the State authorities. Although till date there are no cases related to the prosecution
of the doctors for performing the sex reassignment surgery but due to the transphobic
attitude and other provisions of the existing law such as Section 377 of the Indian
Penal Code, the community is still far away from the reach of proper health
services 254.

4.2 The Naz Foundation Case

The Naz foundation case 255marks the beginning of a new era in the history of the
rights of the sexual minorities in India. The case somehow seems to have opened the
gates to various debates related to the homosexual and transgendered individuals in
India. The case appears to deal with the issue of criminalization of consensual same-
sex acts and behaviour under the Section 377 of the Indian Penal Code but it also
addresses the discrimination based on sexual orientation and gender identity. The
Judges in this case also mentioned the jurisprudence of International Human Rights
which provides for the protection of human rights without any discrimination based
on sexual orientation and gender identity. The Court also relied on the Yogyakarta
Principles, which is the compilation of the principles relating to the sexual orientation
and gender identity issues 256 . It was held by the Delhi High Court that the law
criminalizing consensual same-sex acts and behaviour between the adults to be
unconstitutional. The judgment was welcomed by the International Human Rights
organizations, various civil societies and also by the members of the sexual
minorities.

257
However, on Dec. 11, 2013, the Supreme Court, in Suresh Kumar Koushal’s case ,
reversed this significant ruling of the Delhi High Court given in the Naz Foundation
case stating that there are not sufficient instances to hold Section 377 as
unconstitutional and discriminatory towards the members of the sexual minorities. In

254
Id. at 462.
255
Naz Foundation v. Govt. of NCT of Delhi (2009) 160 DLT 277; W.P. (C) No. 7455/2001 of 2009
(Delhi HC).
256
Siddharth Narrain, Supra note 237 at 461.
257
Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. (2014)1SCC1.
92
the given case, the Supreme Court held Section 377 to be Constitutional. Furthermore,
the Supreme Court also rejected the review petition in Suresh Kumar Koushal’s
258
case . This said decision is discriminatory towards the sexual minorities and also
259
reflects the homophobic attitude .

Following the Apex Court’s rejection of the review petition, Naz Foundation filed a
curative petition in the Supreme Court to rectify the judgment of Suresh Kumar
Koushal’s case which criminalized consensual same-sex behaviour between adults.
Naz Foundation is the original petitioner in the case which challenged the
260
constitutionality of Section 377 of the Indian Penal Code . The curative petition
filed by the Naz Foundation maintains that the present case is fit for the Court’s
curative jurisdiction as the human rights of the sexual minorities are at stake and
261
justice should prevail on the notions of Rule of Law . The petitioners also
maintained that in the decision of Suresh Kumar Koushal’s case, the most serious
error was neglecting the fact that the amendment in the criminal law in 2013,
prohibits nonconsensual penile vaginal and penile-non vaginal sexual acts between
man and woman which implies that consensual penile vaginal and penile-non vaginal
sexual acts between heterosexual adults is permitted. However, such sexual acts
between consenting homosexual adults is prohibited. Therefore the law criminalizing
consensual same-sex acts and behaviour is discriminatory and violative of Article 14
262
and 15 of the Constitution . A three-judge Bench comprising of the Chief Justice of
India T.S. Thakur, and Justices Anil R. Dave and J.S. Khehar accepted that the law
criminalizing consensual same-sex activities between adults may lead to
discrimination and denial of other basic rights such as the right to privacy and dignity.
The bench, however, referred the petition further to a Constitutional bench to be set

258
Order dated 28.01.2014 in Review Petition (C) Nos. 41-55 of 2014, Review Petition (C) No. 197
of 2014 in Civil Appeal No. 10972 of 2013 and Review Petition (C) No. 202 of 2014 in Civil
Appeal No. 10972 of 2013.
259
Partners for Law in Development, http://pldindia.org/blog/2014/02/01/supreme-court-rejects-
review-petition-against-its-judgement-criminalizing-homosexuality-under-sec-377/, (Last accessed
6/04/14).
260
Satya Prakash, Gay sex: Naz Foundation files curative petition in SC, Hindustan Times,
April,8,2014, http://www.hindustantimes.com/india/gay-sex-naz-foundation-files-curative-
petition-in-sc/story-yGAmJGXi41eDYZW4VyRcKK.html, (Last accessed 6/04/14).
261
Naz Foundation files Curative Petition challenging the Supreme Court judgment on Section 377,
Lawyers Collectively, April,1,2014, http://www.lawyerscollective.org/updates/naz-foundation-
files-curative-petition-challenging-supreme-court-judgment-section-377.html (Last accessed on
15/04/14).
262
Id.
93
shortly for hearing this petition. The bench did not admit the petition and also did not
issue any directions thereto and referred it to a Constitutional bench, as it was pointed
out by the Court that the petition poses certain questions of law which are
Constitutional in nature 263.

4.3 Unnatural Offences under Natural Law Theory

The term “unnatural offence” in itself has generated much debate in the recent times.
The law criminalizing homosexuality and the language incorporated thereof,
suggesting consensual homosexual acts to be ‘crimes against nature’ or ‘unnatural
acts’, has its roots in the Natural law theory. The major reason for the non-acceptance
of consensual homosexual acts and its criminalization is Natural law theory, which
suggests that consensual same-sex activity is against the order of nature and therefore
considered to be immoral. More so, in present times, there are adherents of Natural
law theory, who not only defend the ongoing discrimination against homosexuals but
also make arguments against homosexual marriage.

Criminal law in India criminalizing homosexuality was drafted during the colonial
period and since then such behaviour is condemned not only in the Indian society but
also in the other former British colonies. The provision of law in India criminalizing
consensual homosexuality, i.e., Indian penal code based on British criminal law came
straight from the Natural law theory. The reason lies in the fact that as per the natural
law theory, the law is of divine origin and homosexuality is considered immoral
according to Bible. And based on biblical notions, the same was also considered as a
criminal offence, prescribed under archaic English law and practiced in the majority
of States. Although, the legal system of the United Kingdom has evolved with time so
as to decriminalize homosexuality, but the various commonwealth nations and old
British colonies are still continuing with archaic laws which were initially developed
under the influence of the English laws. Considering the continuing struggle for
decriminalization of consensual homosexual acts in many parts of the world including
India, it is important to critically analyze the arguments of Natural law theorists on the
basis of which the same has been termed as ‘unnatural act.

263
Krishnadas Rajgopal, Five-Judge Constitutional Bench to take a call on Section 377, The Hindu,
Feb. 02, 2016, http://www.thehindu.com/news/national/Five-judge-Constitution-Bench-to-take-a-
call-on-Section-377/ article14056992.ece, (Last accessed on 15/04/17).
94
4.3.1 Natural Law Based on Reason or Abstract Notion?
Natural law theory is pervasive in almost all the disciplines since the ancient period of
Greek civilization 264 . In fact, in the present times, it has formed an important
instrument of justification and reasoning of various existing political and legal
theories. Although, Natural law theory lost its significance in the 19th century with the
popularity of Positivism, but the Natural law thinking revived in the 20th century and
still remains an important weapon in the present ideologies.

In summary, Natural law theory asserts that the law is of divine origin and can be
discovered by reason. During ancient times, the law was necessarily associated with
the divine entity. The terms ‘Natural law’ and ‘Eternal law’, were considered as
synonymous. Hesiod in his writings also pointed out that the chief of Olympian gods,
Zeus, gave law to the mankind as his greatest gift 265 . Natural law theory and its
association with religion continued till the middle ages, where theological origin
theory of law was further developed by St. Augustine and St. Thomas Aquinas. In the
middle ages, the church was considered as the guardian of the law given by divine
entity. The earliest premises of the Natural law thinking tended to link reason with
266
some notions of theology . St. Thomas Aquinas explained the law as an
authoritative dictate of reason laid down by a person who has the charge of the perfect
community 267. Since God has the charge of the perfect community, the authoritative
rule of action coming from him is law. Therefore, Natural law is not only to be
understood as a religious notion but as the basis of living a rational life for the
betterment of the community. Natural law simply draws a strict theoretical line
between right and wrong acts. In simpler words, it talks about morality, i.e., ‘what
ought to be’. For example, to violate the strictures of Natural law, such as by killing
someone or by physically abusing others, is to commit acts which are not only
immoral but also unjustifiable. Similarly, consensual same-sex activities were also
considered as sinful and irrational. Therefore, such acts were also recognized as a
criminal offence in most of the countries. The justification for criminalizing
consensual same-sex acts was perceived to be religious norms prescribed in Bible and

264
Michael Freeman, Lloyd’s Introduction to Jurisprudence, Thomas Reuters, 9th Edition (2014), 75.
265
Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Harward University
Press, Revised edition , ISBN 978-0-674-73308-4, (2013), 4.
266
Ian Mcleod, Legal Theory, Palgrave Macmillan (2005), 55.
267
Id. at p.52
95
other forms of lex divina. Although, with the emergence of the gay liberation
movement in the West, the perception of a considerable percentage of the population
across the world, regarding homosexuality and other sexual minorities, has undergone
a drastic change but the criminalization of consensual homosexual acts still remains
the central issue of debate for various legal and political structures. In the given
changing social order, it is pivotal to probe into the religious norms on the basis of
which Natural law theorist support criminalization of consensual homosexuality.

The term ‘homosexuality’ originated in the 19th century, much subsequent to the era
268
of Bible. It was coined by Karoly Maria Benkert, a German psychologist .
Therefore Bible and other holy scriptures to do not explicitly use the term
‘homosexuality’, but condemn the similar sexual behaviour. Nonetheless,
substantiating criminalization of homosexuality on the grounds of Natural law
thinking of Middle Ages suggesting the law to be of divine origin, in itself is
contentious. In fact, many people contributed to the writing of Bible. And for other
holy scriptures, condemning homosexuality, also owe its existence to human beings.
Human writings are not free from flaws and there is a probability of errors in these
Holy Scriptures too. Therefore criminalizing homosexuality on the basis of ancient
holy texts is like being a mindless follower of a law without probing into the rationale
behind such precept. More so, the term ‘homosexuality’ is not explicitly mentioned in
any of the Holy Scriptures, therefore it is also asserted that the references to the same
sexual behaviour in Bible and other holy texts are related to violence, idolatry, and
exploitation based on same-sex behaviour. Therefore, what is condemned is not
consensual homosexuality, but violent homosexual acts which are not consensual,
fetishism and sexual abuses based on homosexual behaviour.

Sharia law or Islamic law is one of the oldest substantial legal systems and also
influenced western penal law. It also condemns homosexuality as an immoral act. The
punishment prescribed by the law includes death by stoning, mutilation of limbs,
lashes etc., which are not approved by many developed nations. More so, Sharia law
is derived from Quran and Hadith, which are not untouched by human intervention for
its present existence.

268
Pickett, Brent, Homosexuality, The Stanford Encyclopedia of Philosophy, Edward N. Zalta (ed.),
URL = https://plato.stanford.edu/archives/fall2015/entries/homosexuality/ (2015), (Last accessed
on 18/10/17)
96
Nonetheless, the contemporary Natural law thinking emphasizes practical reasons
contrary to the speculative knowledge of nature. It is also advocated by many legal
theorists that practical reason is the foundation of Natural law theory. For instance,
practical reason is also the foundation of Kant’s moral philosophy 269. The rationalistic
version of modern natural law theory suggests that law is the dictate of practical
reasons. Hugo Grotius, who laid down the ground for the secular and rationalistic
version of the modern Natural law, asserted that natural law would subsist even if
God did not exist 270.

4.3.2 Homosexuality: Natural Phenomenon v. Unnatural Offence

The word ‘unnatural’ means different from what is normal or expected, or from what
is generally accepted as being right 271. It also implies phenomenon which is contrary
to the ordinary course of nature; abnormal or not existing in nature 272. This connotes
that the ‘unnatural offences’ mentioned under Section 377 of the Indian Penal Code,
covered under the sexual offences means those sexual behaviours which are contrary
to nature. The said provision of law defines ‘unnatural offences’ as voluntary carnal
intercourse ‘against the order of nature with any man, woman or animal’. The given
definition of the same-sex sexual act has generated much debates in the present times.
It poses a question on the criteria by which consensual same-sex sexual behaviour and
acts are treated as against the order of nature. The current controversy related to the
decriminalization of consensual same-sex activities has also raised a question,
‘whether consensual homosexuality is a natural phenomenon or an unnatural act?’

The term ‘natural’ implies things existing in or derived from nature 273 . It is still
presumed in many States penalizing homosexuality that consensual homosexual acts
are not ‘natural’ as they are not derived from nature and the same is explained in
many legal systems including India. Section 377 under Indian Penal Code, 1860,
which criminalizes consensual homosexuality, is a product of British colonial-era law

269
Williams, Garrath, Kant's Account of Reason, The Stanford Encyclopedia of Philosophy, Edward
N. Zalta (ed.), URL = https://plato.stanford.edu/archives/spr2016/entries/kant-reason/ (2008), (Last
accessed on 18/10/17).
270
Edgar Bodenheimer, Supra note 265 at 35.
271
Unnatural, Oxford Advanced Learner’s Dictionary (8th ed. 2015).
272
Unnatural, English Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/
unnatural, (Last accessed on 20/10/17).
273
Natural, https://en.oxforddictionaries.com/definition/natural, (Last accessed on 20/10/17).
97
based on biblical notions. In the present legal scenario, consensual homosexuality is
no more considered as against the order of nature under the English laws following
Dudgeon v. United Kingdom. 274 In fact, in the year 2016, the nation had around more
than 30 LGBT members of Parliament, which is exceptional in the history of any
other parliament around the world 275 . However, criminalization of the same-sex
sexual acts has been retained in many nations including India, considering the same to
be against the order of nature.

The old school Natural law thinkers considered ‘consensual homosexual acts’ as
unnatural acts on the basis of no procreation generating from such sexual acts. The
Natural law theorists emphasized procreation as the sole object of marriage and
sexuality and for them, the sexual acts were to be generative in order to be considered
not against moral principles. This implies that the sexual acts and marriage of infertile
couples also fall under the category of ‘immoral acts’ or ‘unnatural acts’ because of
non-generative sex, which is not true. In reality, the sexual acts in which both or one
of the partners is infertile are considered morally good. Therefore, ‘non-generative
sex’ argument as the basis of considering consensual same-sex behaviour as an
unnatural act, in itself is contradictory. Procreation is not the only purpose of
sexuality and marriage. The other objects of sexual acts include pleasure and
biological instincts. According to ‘Kamasutra’, which is an ancient Hindu text on
human sexual behaviour, written by Vatsyayana, there are four important goals of
human life. These goals are Dharma, Artha, Kama and Moksha. ‘Dharma’ refers to
virtous living; ‘Artha’ refers to material prosperity, ‘Kama’ refers to sensual desires
of life and ‘Moksha’ refers to liberation 276 . This further connotes that apart from
procreation, sensual desire or pleasure is also one of the objects of sexual acts.

Homosexuality is animal species- Previously, it was widely believed that animals

indulge into sexual acts for only procreation and not pleasure. However, the same

274
Dudgeon v. United Kingdom, Supra note 158. In this case, European Court of Human Rights held
that the law criminalizing consensual private homosexual acts violated right to private and family
life as enshrined in the European Convention on Human Rights.
275
Matt Hooper, The UK has more LGBT MPs than anywhere else in the world, Gay Times, (Feb. 21,
2016), http://www.gaytimes.co.uk/news/28378/the-uk-has-more-lgbt-mps-than-anywhere-else-in-
the-world/, (Last accessed on 20/10/17).
276
Kaustav Chakraborty, Rajarshi Guha Thakurata, Indian concepts on sexuality, Indian Journal of
Psychiatry, 55(Suppl 2), (2013), S250–S255. http://doi.org/10.4103/0019-5545.105546, (Last
accessed on 20/10/17).
98
does not holds true. In fact, many scientific studies suggest that all animals have sex
for pleasure. 277It is also argued by many scholars, that most of the animals are not
aware of the fact that sexual acts lead to procreation, and hence they do that for
pleasure. In fact, masturbation is very common among a considerable number of
animal species. There are also many species which are observed to be engaged in
autoeroticism 278. And also according to various research studies, homosexuality has
been observed in 1500 species 279.Therefore, homosexuality in animals provides for
the foundation of argument in favour of decriminalising consensual homosexuality in
human beings and considering the same as a natural phenomenon. Homosexuality in
animal species has also been cited by American Psychiatric Association and other
groups in the United States Supreme Court for the case Lawrence v. Texas 280which
quashed anti-homosexual laws of 14 states 281.

The labeling of a ‘natural’ phenomenon as ‘unnatural’, is what that is causing

hardship to the sexual minorities since ages. This labeling does not only leads to
stigmatization but also discrimination based on sexuality. It further conveys that the
homosexual behaviour is not acceptable in the society along with the person indulging
in such same-sex acts and behaviour, as it is ‘unnatural’. Even though it has been
scientifically proven and reiterated in the reports of various organizations that
‘homosexuality is natural’ and it is something, people are born with and not a disease,
still the old draconian law criminalizing homosexuality and labelling it as unnatural,
is still in force in many parts of the world including India. The law in itself is violative
of the principles of natural justice and equality and also discriminatory towards
homosexual and transgendered individuals. Thus, the law criminalizing consensual
same-sex behaviours and acts between adults is contrary to the principles of the
International Human Rights law which prohibits discrimination on the basis of sexual
orientation.

277
Cara Santa Maria, Is Sex for Pleasure Uniquely Human?, Huffpost, (Nov. 13, 2011), http://www.
huffingtonpost.in/entry/sex-for-pleasure_n_1090811, (Last accessed on 20/10/17).
278
Id.
279
Against Nature- an exhibition on animal homosexuality, Natural History Museum (Feb. 25, 2009),
University of Oslo, Norway, http://www.nhm.uio.no/besok-oss/utstillinger/skiftende/againstnature/
index-eng.html , (Last accessed on 20/10/17)
280
539 U.S. 558, 558 (2003).
281
Brief for Amici Curiae, http://www.apa.org/about/offices/ogc/amicus/lawrence.pdf, (Last accessed
on 20/10/17).
99
Nonetheless, the Natural law argument against homosexuality has no substantial
ground as such sexual behaviour is found in nature and prohibiting the same on the
grounds of natural law argument is nothing but the misinterpretation of the Natural
law theory. In fact, one can find arguments in support of decriminalization of the
consensual same-sex acts between adults on the basis of Natural law theory.

Natural law theory, basically provides that the law can be discovered by the reasons to
be found in nature and decriminalization of consensual homosexual acts is based on
the reasons established by nature itself. Contrasting sexual orientations are found in
the nature and punishing a person for something that he or she is born with is a gross
violation of the basic principles of natural justice and equality. The law needs to be
updated and transformed with the changing social order, where the individuals
belonging to the sexual minorities have gained much visibility and cannot be ignored.
It’s high time when homosexuals should not only be acknowledged by the law but
also protected against ongoing discrimination.

4.4 Impact of Criminalization of Private Homosexual Acts on

Homosexual and Transgendered Children
When it comes to homosexual and transgendered children in India, such issues are
mostly suppressed at home only. Talking about sexual orientation or sexuality is still a
taboo in the Indian society. And therefore most of the children belonging to the sexual
minorities do not disclose their sexual orientation or gender identity before the society
because they are under the fear as they had already witnessed that being a homosexual
or a transgendered individual is despicable and considered as against morals. And also
if they disclose their sexual orientation or gender identity, there is a chance of being
discriminated and hurt by others.

In a country like India, where the consensual private homosexual acts and behaviours
are criminalized, the situation is worse for the homosexual and transgendered children
who are already struggling with their sexuality and transgenderism. Such children are
at a higher risk of being subjected to violence or other discriminatory acts in their
family and society since they are considered as deviants who do not abide by the
societal norms concerning sexuality and gender. Moreover, criminalization of

100
homosexuality may aggravate stigmatization and the fear of family rejection among
the young homosexual transgendered population.

Due to the fear of being rejected by the society and stigmatization, the members of the
sexual minorities including children tend to hide their actual sexual orientation and
gender identity from the family and community. This concealment of what they
actually are is detrimental to the physical and mental health of young homosexual and
transgendered individuals who are already struggling with their sexuality and gender.
Such young people also tend to run away from their families, which in turn exposes
them to various hazards such as homelessness, physical or sexual abuse, substance
abuse etc. as discussed in the previous chapters. This tendency to hide actual sexual
orientation and gender identity is the reason why such cases of discrimination against
adolescents on the basis of sexual orientation and gender identity fail to attract the
attention of media and law.

In fact, the parents of such homosexual and transgendered children mostly react with
anger, fear, aversion or dejection when they come to know about the sexuality or
transgenderism of their children. This reaction of the parents is mostly due to the fear
of their children being rejected and discriminated in the society on the basis of their
sexual orientation and gender identity. To protect their children from such anticipated
discriminatory acts and distress and also in order to protect the reputation of the
family, parents usually react negatively in the given homophobic or transphobic
environment. The negative reaction of a family towards gay and transgendered
children also includes a forcible attempt to change one’s sexual orientation and gender
identity through various therapies.

It has been found in various research-based studies that such attempts to change the
sexual orientation and gender identity of individuals are detrimental to their overall
health and well-being. It was also reiterated in the report of the American Academy of
Pediatrics that the therapies directed at the transition of sexuality or transgenderism
may result in depression, anxiety, and self-condemnation. It was also found that while
resorting to such therapies for changing sexuality or transgenderism, there is a very

101
slim or no chance of such change 282. Furthermore, an attempt to convert homosexual
or transgendered adolescents is more threatening as compared to that of converting
adults.

Young homosexual and transgendered children are more likely to face family
rejection and societal pressure to convert into what they are not. In fact, as compared
to the heterosexual or other population conforming to the gender norms of the society,
homosexual and transgendered children are more likely to experience depression,
suicidal tendencies, and segregation, and also they are likely to become victims of
various violent acts as discussed in the previous chapters. Despite the dangers and
risks involved in subjecting a homosexual or a transgendered adolescent to such
therapies, there are no legal provisions to prevent children and other individuals
belonging to the sexual minorities from being subjected to such reparative therapies.
Moreover, a considerable number of therapists also continue to claim that
homosexuality or transgenderism is a sort of disorder which ought to be changed 283.

It is believed by a considerable number of parents and adults that homosexuality or

transgenderism is a psychiatric disease which can be corrected. In fact, it has been
reported by many psychologists that the parents of homosexual and transgendered
children often forcibly take their children to the psychiatrist under the hope to fit them
among heterosexual and gender conforming population. It was reported by Dr. Pulkit
Sharma, psychologist, (VIMHANS) that once an educated family approached him to
give electric shocks to their son in order to make him fit in the heterosexual
population. Dr. Samir Parikh, chief psychiatrist (Max Healthcare) also asserted that
most of the parents who approach psychologists for changing the sexual orientation or
gender identity of their children widely believe that homosexuality or transgenderism
is a mental disease which can be cured 284 . Dr. Sandeep Vohra, senior consultant
psychiatrist (Apollo Hospital), pointed that it is more difficult for the upper-class and
educated families to accept their homosexual or transgendered children. It is also
submitted by many LGBT rights activists that in the given homophobic and

282
Kaolyn Ann Hicks, “Reparative” Therapy: Whether Parental Attempts to Change a Child’s Sexual
Orientation Can Legally Constitute Child Abuse 49 Am. U.L. Rev. 2 514 (1999).
283
Id. at 518.
284
Shara Ashraf, Unhappy parents look to ‘cure’ gay kids, Hindustan Times, November 27, 2011,
http://www.hindustantimes.com/delhi-news/unhappy-parents-look-to-cure-gay-kids/story-
M3gFv356R3fzIXdxR0WkeO.html, (Last accessed on 17/04/14).
102
transphobic environment, many doctors also try to take advantage of the parents of
homosexual or transgendered children to make a good fortune out of their distress. In
fact, one of the gay rights activist, Ashok Row Kavi reported that renowned
psychiatrists are also involved in making money by giving electric shock therapies to
the homosexual and transgendered individuals and thus endangering their lives 285.

A transgendered girl, Katrina reported that she was physically and sexually abused,
often subjected to corporal punishments and given electric shocks by the authorities
and staff members of a mental institute where she was sent for a reparative therapy for
‘gender correction. The transgendered girl admitted to have suicidal tendencies and
also attempted to commit suicide thrice 286. In the year 2012, a transgendered girl
brought a suit against her parents for availing sex reassignment surgery. The
transgendered girl filed a petition in the Bombay High Court alleging that her parents
obstructed her scheduled sex reassignment surgery by threatening the doctors.
Whereas, her parents argued that the sex reassignment surgery cannot be seen as a
personal choice or freedom and requires the consent of the family 287. Her parents
further alleged that the transgendered girl was misguided by her friends and doctors of
the hospital concerned. It was held by the Court that the transgendered girl is an adult
and has a right to make such choices. The Court further held that there is no law
which prohibits sex reassignment surgery.

4.5 Obligation of the State to Protect the Rights of the Sexual

Minorities under Indian Legal Framework
4.5.1 State Obligation under the Constitution of India
i. To protect the right against discrimination and right to equality.
Article 14 288 of the Constitution of India provides for the right to equality and also
ensures the rule of law. In order to promote and protect the right to equality, separate
provisions are enshrined in Part III of the Constitution to deal with certain issues

285
Id.
286
Id.
287
Man sues parents over sex change operation, Hindustan Times, April 27, 2012, http://www.
hindustantimes.com/india-news/mumbai/man-sues-parents-over-sex-change-operation/article1-
847317.aspx (Last accessed on 17/04/14).
288
INDIA CONST. art. 14. It provides that it is the obligation of the State to ensure the protection of
the right to equality and equal protection of law to all the individuals.
103
related to discrimination. Article 15 289 further enumerates various prohibitive grounds
of discrimination. It provides that, it is the obligation of the State to protect
individuals against discrimination based on religion, race, place of birth and sex.
Article 14 and 15 together ensure the right to equality and protection against
discrimination to all the individuals.

The ruling of the Naz foundation case 290 still holds significance in the context of
human rights protection in India, despite the fact that the same has been overturned by
the Supreme Court of India.

The petitioners in the given case argued that the criminalization of consensual same-
sex acts and behaviour between adults is a discrimination on the grounds of sexual
orientation. They also advocated that the prohibitive grounds enumerated under
Article 15 of the Constitution also includes sexual orientation implicitly. The
petitioners also pointed out that ‘sex’ as a prohibitive ground of discrimination is not
restricted to ‘gender’ but also includes ‘sexual orientation’. Therefore, the question of
law in the given case was that whether discrimination based on sexual orientation can
be covered under Article 15 291. For the purpose of decoding the mentioned question
of law, the judges relied on the Declaration of Principles of Equality developed by the
experts and issued by the Equal Rights Trust 292. The Declaration is regarded as the
contemporary International Human Rights principles of equality. Part II of the
Declaration deals with the right to protection against discrimination of all forms. The
Declaration enumerates various prohibitive grounds of discrimination such as, race,
color, ethnic or social origin, nationality, religion, belief, political or other opinions,
sex, sexual orientation, gender identity, age, disability, health issue, or any other
ground related to these grounds 293.

The Court agreed with the contention of the petitioners and held that ‘sex’ as a
prohibitive ground of discrimination under Article 15 of the Constitution also includes

289
INDIA CONST. art. 15.
290
Naz Foundation v. Govt. of NCT of Delhi Supra note 255.
291
See Siddharth Narrain Supra note 237 at 467.
292
Declaration of Principles on Equality, Equal Rights Trust, http://www.equalrightstrust.org/content/
declaration-principles-equality, (Last accessed on 19/10/16).
293
Id.
104
sexual orientation and gender identity 294. The primary object of the fundamental right
of equality and non-discrimination on the basis of sex or sexual orientation connotes
that any individual should not be discriminated or treated in a prejudicial manner on
the notions of ‘normal’ or ‘natural’ sexuality and gender roles 295.

Prohibition of discrimination based on sexual orientation and gender identity flows

from the principles of justice and equality. International human rights law also
includes these grounds as a part of prohibitive grounds of discrimination mentioned in
various Conventions and treaties. It has been observed by various jurists and legal
commentators that the discrimination based on sexuality and transgenderism is a
violation of Article 15, although the same is not explicitly mentioned in the Article as
these grounds are corresponding to the other explicit grounds of discrimination
mentioned in the provision. The principle of non-discrimination includes all those
grounds within the ambit of prohibitive grounds which are based on one’s autonomy.

Nevertheless, the Supreme Court, in Suresh Kumar Koushal’s case 296 overturned the
decision of Naz Foundation case but the Apex Court maintained that Section 377 does
not criminalize a particular group of people, sexuality or transgenderism but
recognizes those acts which on the commission would constitute the offence as
mentioned in the given provision of law. The object of the law contained in the
Section 377 of the Indian Penal Code is to regulate sexual behaviours by prohibition
irrespective of sexual orientation and gender identity of the individuals 297.

The Apex Court, in determining the constitutionality of Section 377 with respect to
the principle of equality as enshrined under Article 14 of the Constitution, referred to
Re:Special Courts Bill 298and asserted that the concept of equality does not mean that
every person should be treated alike but it implies that persons similarly
circumstanced shall be treated alike both in privileges conferred and liabilities
imposed likes. And it was held that the classification of a class for the purpose of

294
Naz Foundation v. Govt. of NCT of Delhi op cit.
295
Siddharth Narrain Supra note 237at 468.
296
(2014)1SCC1.
297
Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. Supra note 257.
298
1987 (1979) 1 SCC 380.
105
legislation in the given case was ‘rational’ and not arbitrary and based on the
reasonable nexus 299.

ii. To protect the right to freedom of expression irrespective of sexual

orientation or gender identity
Article 19 of the Constitution guarantees the right to freedom of speech and
expression to all its citizens. Part III of the Constitution ensures the right to freedom
of speech and expression to all its citizens without regard to sexual orientation or
gender identity. The right to freedom of speech and expression also includes the
expression of one’s identity through the anatomic features, dressing, choice of name,
conduct or behaviour, and also the freedom to seek, receive or impart any information
or ideas including that related to the human rights and sexual orientation and gender
identity issues.

iii. To protect the right to life, liberty, and privacy of persons irrespective of
sexual orientation or gender identity
Article 21 of the Constitution of India provides for the right to life and personal
liberty. The right also includes the right to live with dignity. Article 21 has been
interpreted liberally and it also implies that the right to life means something more
than mere survival or mere animal existence. Therefore, the right to life includes all
those aspects of life which are essential for an individual to live with dignity and to
make one’s life meaningful and complete 300.

Article 21 enshrined in the Constitution is a negative right and it provides that State
should not interfere with the right to life and personal liberty of individual except for
the procedure established by law. Nonetheless, in a considerable number of cases, the
judiciary has interpreted the right in terms of the positive obligations of the State so as
to ensure the right to live with dignity and better enjoyment of the life 301. In Francis
Coralie 302, the Supreme Court expanded the scope of Article 21 and gave a wide
meaning to the right to life and personal liberty. It was held by the Apex Court that
the right life does not mean merely ‘animal existence’ but also includes the right to

299
Suresh Kumar Koushal Op cit.
300
M.P Jain, Indian Constitutional Law, LexisNexis Butterworths Wadhwa, 6th edition (2010).
301
Id.
302
Francis Coralie v. Administrator, Union Territory of Delhi, (2006) 8SCC 399:AIR 2006 SC 2945.
106
live with ‘human dignity’. The Court has thus given broad specifications to be
considered under Article 21.

The question before the court was whether the right to life includes the obligation of
the State to protect limb or something more than that. It was observed in the given
case that the right also includes the right to live with dignity and it follows the right to
bare necessities of life such as adequate nutrition, clothing, shelter, facilities for
reading, writing, learning and expressing, liberty of movement and association with
others and also the right to carry on such a conduct or behaviour which constitutes the
bare minimum expression of the human self. The realization of the positive rights
including economic, social and cultural rights depends on the availability of funds but
the right to basic necessities of life and the right to carry on such conduct which
constitute the bare minimum expression of one’s self are the basic tenets of the right
to live with dignity 303.

The Right to life also includes the right to protection against cruel, inhuman or
degrading treatment. Therefore, the State is under the obligation to protect all the
individuals including homosexual and transgendered individuals of all ages, against
inhuman or degrading treatment. Subsequently, torture or ill-treatment including hate-
crimes on the basis of sexual orientation and gender identity violates the right to life
and liberty

In Naz Foundation case 304 , the Court observed that the right to life enshrined in
Article 21 includes the right to live with human dignity and the right to freedom of
choice related to an individual’s autonomy. It was further held that the protection of
the right to privacy is an important pre-requisite to ensure the protection of human
dignity. In a recent case 305, the Supreme Court held that the right to privacy is a
fundamental right guaranteed by the Constitution of India. The right to privacy also
includes preservation of the right to respect for private and family life, personal
intimacies, procreation, marriage and sexual orientation. It was further maintained by
the Court that the right to privacy is an inherent right which cannot be denied even to
a minuscule fraction of the population. It implies that privacy is not only about what

303
M.P Jain Supra note 300 at 1226.
304
Naz Foundation v. Govt. of NCT of Delhi Supra note 255.
305
Justice K.S. Puttaswamy (Retd.), and Anr. v. Union of India and Ors 2017 (10) SCALE 1.
107
one does at home but it also includes decisional privacy as to how to live one’s life.
The given judgment has an important bearing on the issue of criminalization of
consensual private homosexual acts between adults.

In National Coalition of Gay and Lesbian Equality (NCGLE) v. Minister of Justice 306,
it was observed by the Constitutional Court of South Africa, that the aspect of one’s
sexuality, gender or sexual orientation is inherent in every individual to the extent that
an individual cannot leave behind those aspects of gender or sexuality at his home.
The right to privacy allows permits individuals to make autonomous choices about
their lives. The judgments concerning the right to privacy, dignity, and autonomy
have an important implication for the rights of sexual minorities 307.

The Apex Court in Suresh Kumar Koushal’s case, maintained that a legislation should
be just, fair and reasonable based on the principles of legitimate state interest and the
principle of proportionality. The Court pointed that the right to live with dignity is
included as a part of the right to life. On the previous ruling of the High Court which
contended that Section 377 violates the right to privacy, dignity, and autonomy, the
Apex Court criticized High Court for relying largely upon the judgments from foreign
jurisdictions in its anxiety to protect the rights of sexual minorities. The Apex Court
concluded that Section 377 is not unconstitutional. In the given case, the Apex Court
neglected the application of Article 21 to Section 377 308.

306
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6.
307
Siddharth Narrain Supra note 237 at 466.
308
Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. Supra note 257.
108
 CHAPTER 5
EMERGING RESPONSES IN INDIA
AND OTHER NATIONS
 CHAPTER 5
EMERGING RESPONSES IN INDIA AND OTHER NATIONS

5.1 Emerging Responses in India

In India, although there is hardly any initiative taken by the government that seeks to
address violence and discrimination against individuals on the grounds of sexual
orientation and gender identity. On hearing a curative petition filed by the original
petitioners of Naz foundation case, recently the Apex Court gave credence to the
arguments that the criminalization of consensual same-sex acts between adults under
Section 377 violates the right to privacy and dignity. The Apex Court referred the
same to the Constitutional Bench as it was found that the questions of law arising out
of the petition have a Constitutional dimension.

In a landmark judgment, the Supreme Court on Apr. 14, 2014 recognized the “third
gender” status for hijras or transgenders. 309 Previously, they were forced to write
male or female against their gender as the gender system was binary. The Supreme
Court also directed the Centre to treat transgendered individuals as socially and
economically backward. The Apex Court further held that the transgenders will be
allowed admission in educational institutions and given employment on the basis of
their third gender category. 310

The Supreme Court also observed that the absence of law recognizing the legal status
of transgendered individuals or hijras as belonging to the third gender could not be
sustained as a ground to discriminate the minority in availing equal opportunities in
education and employment. For the first time, in this case, transgendered individuals
or hijras have been formally recognized. The third gender people will be considered
as ‘Other Backward Classes’ (OBCs), the Supreme Court said. The Supreme Court
said that they will be given educational and employment reservation as OBCs. 311

309
National Legal Services Authority v. Union of India and others W.P (C) No. 604 2013
(unreported).
310
Dhananjay Mahapatra, Supreme Court recognizes transgenders as ‘third gender’, The Times of
India,
Apr. 15, 2014,https://timesofindia.indiatimes.com/india/Supreme-Court-recognizes-transgenders-
as-third-gender/articleshow/33767900.cms, (Last accessed on 10/03/17).
311
Id.
109
The Apex Court directed the States and the Centre to formulate social welfare
schemes for third gender community and also to initiate a public awareness campaign
to erase social stigma. The Supreme Court also directed the State authorities to
construct special public toilets and departments to look into their unique health issues.
The Court also pointed out that in the cases related to sex reassignment surgery, the
transgendered individuals are entitled to the legal recognition of their changed sex and
cannot be discriminated. 312

In the given case, the Apex Court also expressed concern over the transphobic attitude
and the discrimination based on gender identity and also issued many directions to the
State and Centre for the social welfare of the transgenders. The Court pointed out that
previously transgendered individuals were respected and were also in a better position
in the society but at the present time, they are subjected to violence and
discriminatory acts. It was further observed by the Court that the economic and social
status of the minority is dissatisfactory and Section 377 of Indian Penal Code is being
used against the transgendered individuals by the authorities to harass such
individuals 313. The Court also maintained that the given verdict is only applicable on
the ‘eunuchs’ or hijra community and homosexual and bisexual individuals are
excluded intentionally from the purview of the judgment. The Court concluded that
the transgendered individuals are a part of the society and the government should
adopt necessary steps to protect their rights and also to bring them in accordance with
the mainstream. The Court passed the order on a Public Interest Litigation filed by
National Legal Services Authority (NALSA) for the legal recognition of the
transgendered individuals by giving them a separate identity as a ‘third-gender’ 314.

In another case, Shivani Bhat v. State of NCT of Delhi 315 where an NRI transgender
adult was illegally confined and also her identity documents were withheld by the
family, it was directed by the Court that appropriate steps should be adopted by the
authorities to prevent her from any other harassment and also be allowed to visit the
US for completing her higher studies.

312
Id.
313
Id.
314
Id.
315
W.P Crl 2133/15
110
There are also many cases of successful sex-change surgery and after such surgeries,
people do lead a normal life. Recently a transgender girl named Khwaish underwent a
sex-change operation and at present, she is under the training of air hostess in
Mumbai. She says that since childhood she had a deep feeling of being a girl trapped
in a male body. 316

5.1.1 Social Acceptance

Social acceptance of the sexual minorities in India is still a big question. However
subsequent to the Nalsa judgment, there were certain the recent judgment, some
positive developments towards the social acceptance of sexual minorities in India. In
May 2015, India’s first transgendered Principal, Manabi Bandopadhyay was
appointed as a Principal of women’s college in Nadia district of West Bengal. In an
interview for a newspaper, she said that it was not an easy journey for her. Despite
being a first transgender who completed her Ph.D. she was subjected to verbal abuse
and also threatened by her colleagues. She also published India’s first transgender
magazine, ob-manab. However, being a symbol of transgender empowerment, she
resigned from the post in Dec 2016 due to alleged non-cooperation of the staff
members and the students 317.

Figure 8 Manabi Bandopadhyay

Recently, a transgender was also appointed as a police officer. Born as a male,

Yashini is the first transgender to become a police sub-inspector in Dharmapuri,
Tamil Nadu. Her job application was challenged on the ground of her being a

316
Dainik Bhaskar, April 19, 2014, p. 18.
317
India’s first transgender college principal resigns, The Times of India, Dec. 29, 2016.
https://timesofindia.indiatimes.com/india/indias-first-transgender-college-principal-
resigns/articleshow/56242412.cms, (Last accessed on 17/04/17).
111
transgender and there were only two columns with the option of binary gender system
i.e., male or female. Nonetheless, she filled the form as transgender and also it was
observed by the Chennai’s High Court that such an appointment is a huge step
towards mainstreaming of transgenders and the social impact of the same cannot be
ignored 318.

Figure 9 Prithika Yashini appointed as the first Transgender sub-inspector

Another significant step towards social acceptance and mainstreaming of transgenders

was taken by Kochi Metro Rail Limited, which recently employed 23 transgendered
individuals. However, the transgendered employees claim that the only job is not
sufficient to meet their ends and there are other issues which need to be dealt with
such as accommodation. And more so, in the given homophobic and transphobic
environment, they are still abused and ridiculed at public places 319.

318
K. Prithika Yashini v. The Chairman, W.P. NO. 15046/2015 decided on 03.11.2015 by the
Hon’ble Madras High Court.
319
Kerela: In a first, Kochi Metro to employ 23 transgenders, Hindustan Times, May 15, 2017,
http://www.hindustantimes.com/india-news/kerala-in-a-first-kochi-metro-to-employ-23-
transgenders/story-52WRY2ees5fo6hEnkVsukI.html, (Last accessed on 08/07/17).
112
 Figure 10 Transgenders in Kochi Metro

Recently, Indira Gandhi National Open University (IGNOU) announced free

education for the transgendered individuals, which is another landmark achievement
320
towards uplifting the social status of the transgendered individuals . Another
instance breaking stereotypes toward transgender community is the marriage of Akkai
Padmashali, who is a transgender rights activist. She married her friend of eight years.
Nonetheless, she also reports various instances of discriminatory behaviour based on
her gender identity. She also admitted having attempted suicide due to non-acceptance
in her young age 321.

320
IGNOU announces course fee waiver for transgender students, Hindustan Times, Jul. 2, 2017,
http://www.hindustantimes.com/india-news/ignou-announces-course-fee-waiver-for-transgender-
students/story-dnXyWvWW18G7A4tS0nVooN.html, (Last accessed on 08/07/17).
321
Arun Dev, Transwoman-activist, man tie the knot, Jan. 30, 2017, https://timesofindia.indiatimes.
com/city/bengaluru/transwoman-activist-man-tie-the-knot/articleshow/56861146.cms, (Last
accessed on 08/07/17).
113
 Figure 11 Akkai Padmashali marries Best friend of eight years

In 2016, Kozhikode district administration had set up the country’s first grievance
redressal mechanism against harassment based on sexual orientation and gender
identity. This grievance redressal is one of the major steps of the authorities towards
mainstreaming and removing the stigma attached to the sexual minorities 322. Other
positive steps towards the social acceptance and mainstreaming of sexual minorities
include India’s first LGBT community-powered radio cab 323 and first state-level
transgender athletics meet 324.

Although, there are some positive responses towards the social acceptance of
transgendered individuals but still the mainstreaming of homosexuals and
transgendered individuals in the Indian society seems to be an uphill task. However, it
is noteworthy to see that all such developments are restricted to the transgender
community and the concerns of homosexuals have largely remained unaddressed.

322
K.P Saikiran, Kozhikode takes the lead in addressing LGBT issues, Sep. 20, 2016,
https://timesofindia.indiatimes.com/city/thiruvananthapuram/Kozhikode-takes-the-lead-in-
addressing-LGBT-issues/articleshow/54417935.cms, (Last accessed on 08/07/17).
323
Nupur Karam, Radio cabs run by LGBT community to hit city roads, Jan. 21, 2016,
http://indianexpress.com/article/cities/mumbai/radio-cabs-run-by-lgbt-community-to-hit-city-
roads/, (Last accessed on 08/07/17).
324
Thiruvananthapuram to host first state-level transgender athletics meet, Apr. 10, 2017,
https://timesofindia.indiatimes.com/city/thiruvananthapuram/city-to-host-first-state-level-
transgender-athletics-meet/articleshow/58098998.cms, (Last accessed on 08/07/17).
114
5.2 Other Developments
It has been found that many nations have taken necessary steps to prevent
stigmatization and discrimination or violence on the basis of sexual orientation and
gender identity. In fact, homosexual marriage has been legalized in many parts of the
world such as United States, United Kingdom, New Zealand, Ireland, Columbia,
Belgium, Spain, Canada, South-Africa, Norway, Sweden, Portugal, Iceland,
Argentina, Luxembourg, Denmark, Mexico, Columbia, Uruguay, Brazil and France
etc. In 2015, the Supreme Court of the US legalized homosexual marriages in all the
states of the Country 325. Recently, Ireland became the first country to legalize same-
sex marriages by popular vote 326. In fact, in the present year, the country also elected
327
its first openly Gay Prime Minister, Leo Valadkar . This year, the German
Parliament also approved same-sex marriage 328.

Figure 12 Ireland's First openly Gay Prime Minister- Leo Valadkar

There are some positive responses towards the mainstreaming of the sexual minorities
on the part of the conservative and developing nations as well. Recently, Pakistan, one

325
Obergefell et al. V. Hodges, director, Ohio department of health, et al. 576 US (2015).
326
Henry McDonald, Ireland becomes first country to legalise gay marriage by popular vote, May 23,
2015, https://www.theguardian.com/world/2015/may/23/gay-marriage-ireland-yes-vote, (Last
accessed on 24/08/17).
327
Colin Dwyer, Ireland's First Openly Gay Prime Minister Formally Takes Office, Jun. 14, 2017,
http://www.npr.org/sections/thetwo-way/2017/06/14/532916075/irelands-first-openly-gay-prime-
minister-formally-takes-office, (Last accessed on 24/08/17).
328
Alison Smale and David Shimmer, German Parliament Approves Same-Sex Marriage, The New
York Times, Jun. 30, 2017, https://www.nytimes.com/2017/06/30/world/europe/germany-gay-
marriage.html, (Last accessed on 24/08/17).
115
of the most conservative Asian country, issued a passport to a prominent transgender
activist and granted legal recognition to her with X as a symbol in the passport
denoting third gender other than male and female 329.

Figure 13 First Pakistani passport recognizing third gender

As a matter of fact, Nepal remains one of the most open countries for the rights of
homosexual and transgendered individuals. It is the only country in Asian Continent
providing Constitutional guarantees to the sexual minorities 330 . In recent past, a
transgender woman also secured registration and a marriage certificate from the state
authorities of Nepal 331.

329
Pakistan issues landmark transgender passport, NBC News, Jun. 30, 2017,
https://www.nbcnews.com/feature/nbc-out/pakistan-issues-landmark-transgender-passport-
n778076, (Last accessed on 24/08/17).
330
Nepal ratifies new Constitution that includes LGBT protections, Human Right Campaign, Sep. 17,
2017, (Last accessed on 19/09/17).
331
LGBT couple registers marriage, first in Nepal, The Himalayan Times, Aug. 5, 2017,
https://thehimalayantimes.com/nepal/lgbt-couple-registers-marriage-first-nepal/, (Last accessed on
19/09/17).
116
 Figure 14 Nepali Couple registers 'first transgender marriage'

Despite, the positive developments towards preserving and protecting the rights of the
sexual minorities, mainstreaming of the homosexual and transgendered individuals
still remains a question. There are many parts of the world where the members of the
sexual minorities find it hard to survive in the given homophobic and transphobic
environment. Mainstreaming of the homosexual and transgender population not only
depends on the law reform but also on the social-acceptance.

117
 CHAPTER 6
CONCLUSIONS AND
SUGGESTIONS
 CHAPTER 6
CONCLUSIONS AND SUGGESTIONS

6.1 Conclusion
Discrimination against children on the basis of sexual orientation and gender identity
remains a global threat. Most of the homosexual, bisexual and transgender children
are subjected to hostile treatment not only by the society at large but also by the
family members. However, bisexual individuals remain invisible as they can easily
hide their sexual orientation.

Even in schools, other educational institutions, foster care and State care institutions,
children are subjected to homophobic or transphobic bullying, discriminatory
behaviours and other violent acts. These discriminatory practices and acts of violence
affect the physical and mental health of the children badly. Although few States have
taken initiatives to curb the discriminatory practices and acts of violence against
children based on sexual orientation and gender identity but still the problem persists
across the globe. Governments and inter-governmental bodies have mostly
overlooked violence and discrimination based on sexual orientation and gender
identity, against children. United Nations Convention on the Rights of the Child,
which is the most important Convention for the protection of the rights of children,
does not take into account the rights of homosexual, bisexual and transgender
children. In Article 2 of the United Nations Convention on the Rights of the Child
which provides that it is the obligation of the States Parties to respect and ensure the
protection of rights enumerated in the Convention without any discrimination based
on ethnic or social origin, birth, sex, color, race, language, political or other opinions,
nationality, disability, or other status. The Convention does not explicitly include
sexual orientation and gender identity as a prohibitive ground of discrimination.
Similarly, the prohibitive grounds of discrimination referred to in Universal
Declaration of Human Rights, International Covenant on Civil and Political Rights
and International Covenant on Economic, Social and Cultural Rights also do not
include sexual orientation and gender identity. Despite no explicit mention of
sexuality and transgenderism as a prohibitive ground of discrimination, it has been

118
held by the Human Rights Committee that the prohibitive grounds mentioned in the
provision of non-discrimination also includes sexual orientation and gender identity.

In India homosexuality still remains a taboo and so is the transgenderism. Consensual

sex among the adult members of the same sex is also an offence under Section 377 of
the Indian Penal Code which has a worse impact on homosexual, bisexual and
transgender children. Most of the homosexual, bisexual and transgender children hide
their sexual orientation and gender identity from their family and society under the
fear of stigmatization and rejection from others. Subsequently, the cases of
discrimination against children on the basis of sexual orientation and gender identity
do not come into light. And in a case, if a child discloses that he or she is a
homosexual or transgender, then most of the parents do not accept this fact and rather
they take their ward to psychiatrists considering being homosexual or transgender as
some sort of mental illness. Nevertheless, homosexuality is still being labeled as
‘unnatural offence’, despite the fact that homosexuality is discoverable in nature i.e.,
it is also found in other animal species.

Indian Constitution also prohibits discrimination on the grounds of religion, caste,

place of birth (Article 15) but does not include sexual orientation and gender identity
as a prohibitive ground. The Apex Court of the country also overturned the verdict
directing decriminalization of consensual same-sex activities between adults, and
hence restored homophobia in the Indian society. The judgment attracted
condemnation from many human rights activists and the members of sexual
minorities. Although the Apex Court gave legal recognition to the transgender
community and also considered them within the category of the other backward
classes, the homosexual individuals are kept distant from the given verdict and it has
been further maintained by the Court that the given judgment is not applicable to
homosexual and other members of the sexual minorities except transgender
community. The legal reforms and efforts for the mainstreaming of the sexual
minorities are largely inclined towards the transgender community. There are lesser
no. of convictions based on consensual same-sex behaviour and the major cause of
discrimination and non-acceptance of the LGBT community is ‘social inclusion’.
Social inclusion of the sexual minorities cannot be achieved only with the help of law

119
reforms but through other tools such as awareness programmes and sex education in
educational institutions.

6.2 Suggestions
The researcher has the following suggestions in the given study along with a proposed
legislation for the protection of the rights of sexual minorities in India drafted by the
researcher and attached in the Appendices.
1. The International Human Rights Mechanism should explicitly include ‘sexual
orientation’ and ‘gender identity’ within the prohibitive grounds enumerated
in the non-discrimination clause of various Conventions, such as the Universal
Declaration of Human Rights, United Nations Convention on the Rights of the
Child, International Covenant on Civil and Political Rights, and International
Covenant on Economic, Social and Cultural Rights etc.
2. The State authorities and various Governmental organizations should adopt
appropriate measures to ensure the protection of basic human rights and
freedoms to the individuals irrespective of their sexual orientation and gender
identity and also should take adequate steps in order to prevent discrimination
and violence based on sexuality and transgenderism. The cases concerning
discrimination or other violent acts including hate crimes targeted on the
sexual minorities should be investigated expeditiously.
3. The States should adopt appropriate and comprehensive legislation for the
protection of the sexual minorities against discrimination based on sexuality
and transgenderism. Also, sexual orientation and gender identity should be
included among the prohibitive grounds of the non-discrimination clause of
the Constitution and other statutory acts.
4. The State authorities should promote various training programmes for the
sensitization towards sexual minorities and also support public information
campaigns to create awareness and impart knowledge to the general public in
order to root out homophobia and transphobia.
5. The National Human Rights mechanisms and institutions should also adopt
appropriate measures on the lines of International Human Rights law, to
prevent discrimination based on sexual orientation and gender identity.

120
6. The law criminalizing homosexual acts should be restricted only to those acts
which are not consensual or related to children. The consensual same-sex acts
and behaviour should be decriminalized and the State authorities should also
ensure to all the individuals of all ages that the criminal laws or other statutes
are not misused by the police or other authorities in order to harass or illegally
detain them.
7. The grievance redressal mechanism for the sexual minorities should be
established in all public or private undertakings along with the educational
institutions.
8. Appropriate sex education and information related to sexuality and gender
issues should be included as a part of the curriculum in schools, colleges, and
other higher educational institutions in order to root out the popular
misconceptions regarding sexuality and transgenderism.
9. Educational institutions should also adopt appropriate measures in order to
ensure the protection against homophobic or transphobic bullying to all the
individuals of all ages
10. The proper training should be given to the medical experts and other staff
members of the agencies concerning the welfare of the individuals, such as
child welfare and juvenile justice agencies, regarding sexual orientation and
gender identity issues so that they understand the unique requirements of
sexual minorities.

121
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APPENDICES
 APPENDICES

APPENDIX 1. The Sexual Minorities (Protection of Rights) Bill, 2017

The Sexual Minorities (Protection of Rights) Bill, 2017
A
BILL
to protect the rights of sexual minorities and their welfare and for matters connected
therewith and incidental thereto.
BE it enacted by Parliament in the Sixty-eighth Year of the Republic of India as follows:—

CHAPTER I
PRELIMINARY
1. (1) This Act may be called the Sexual Minorities (Protection of Short title,
Rights) Act, 2017. extent and
commencement
(2) It extends to the whole of India.
(3) It shall come into force on such date as the Central Government
may, by notification in the Official Gazette, appoint.
2. In this Act, unless the context otherwise requires,— Definitions
(a) "appropriate Government" means,—
(i) in relation to the Central Government or any establishment, wholly
or substantially financed by that Government, the Central
Government;
(ii) in relation to a State Government or any establishment, wholly or
substantially financed by that Government, or any local authority,
the State Government;
(b) "establishment" means—
(i) any body or authority established by or under a Central Act or a
State Act or an authority or a body owned or controlled or aided by
the Government or a local authority, or a Government company as
defined in section 2 of the Companies Act, 2013, and includes a
Department of the Government; or
(ii) any company or body corporate or association or body of
individuals, firm, cooperative or other society, association, trust,
agency, institution;

(c) "inclusive education" means a system of education wherein the

 students belonging to the sexual minorities along with other
students learn together and the system of teaching and learning is
suitably adapted to meet the learning needs of such students;
(d) "institution" means an institution, whether public or private, for the
reception, care, protection, education, training, rehabilitation or
any other service of the members of sexual minorities;
(e) "local authority" means the municipal corporation or municipality
or Panchayat or any other local body constituted under any law for
the time being in force for providing municipal services or basic
services, as the case may be, in respect of areas under its
jurisdiction;
(f) "National Council" means the National Council for the Sexual
Minorities established under section 17;
(g) "notification" means a notification published in the Gazette;
(h) "prescribed" means prescribed by rules made by the appropriate
Government under this Act;
(i) "Sexual Minorities" means the groups or communities consisting
of the members whose sexual identity, orientation or practices
differ from the majority of the surrounding society. It includes
both homosexual and transgender population.
(j) "Homosexual person” means a persons who is attracted towards
the person belonging to the same sex.
(k) “Transgender person” means a person who is neither wholly
female nor wholly male; or a neither female nor male; and
combination of female or male; or whose sense of gender does not
match with the gender assigned to that person at the time of birth,
and includes trans-men and trans-women, persons with intersex
variations and gender-queers.
 CHAPTER II
PROHIBITION OF CERTAIN ACTS

3. No person shall discriminate against a homosexual or a Prohibition

transgender person on any of the following grounds, namely:— against
discrimination
(a) the denial, or discontinuation of, or unfair treatment in, educational
establishments and services thereof;
(b) the unfair treatment in, or in relation to, employment or
occupation;
(c) the denial of, or termination from, employment or occupation;
(d) the denial or discontinuation of, or unfair treatment in, healthcare
services;
(e) the denial or discontinuation of, or unfair treatment with regard to,
access to, or provision or enjoyment or use of any goods,
accommodation, service, facility, benefit, privilege or opportunity
dedicated to the use of the general public or customarily available
to the public;
(f) the denial, or, discontinuation of, unfair treatment with regard to
the right of movement;
(g) the denial or discontinuation of, or unfair treatment with regard to
the right to reside, purchase, rent, or otherwise occupy any
property;
(h) the denial or discontinuation of, or unfair treatment in, the
opportunity to stand for or hold public or private office;
(i) the denial of access to, removal from, or unfair treatment in,
Government or private establishment in whose care or custody a
transgender person may be.
 CHAPTER III
RECOGNITION OF IDENTITY OF TRANSGENDER PERSONS

4. (1) A transgender person shall have a right to be recognised as such, in Recognition of

accordance with the provisions of this Act. identity of
transgender
(2) A person recognised as transgender under sub-section (1) shall
person.
have a right to self-perceived gender identity.
5. A transgender person may make an application to the District Application for
Magistrate for issuing a certificate of identity as a transgender certificate of
identity.
person, in such form and manner, and accompanied with such
documents, as may be prescribed:
Provided that in the case of a minor child, such application shall
be made by a parent or guardian of such child.
6. (1) On the receipt of an application under section 5, the District District
Magistrate shall refer such application to the District Screening Screening
Committee.
Committee to be constituted by the appropriate Government for
the purpose of recognition of transgender persons.
(2) The District Screening Committee referred to in sub-section (1)
shall comprise—
(a) the Chief Medical Officer;
(b) District Social Welfare Officer;
(c) a Psychologist or Psychiatrist;
(d) a representative of transgender community; and
(e) an officer of the appropriate Government to be nominated by that
Government.
7. (1) The District Magistrate shall issue to the applicant under section 5 Issue of
a certificate of identity as transgender person on the basis of the certificate of
identity.
recommendations made by the District Screening Committee in
such form and manner, within such time, as may be prescribed,
indicating the gender of such person as transgender.
(2) The gender of transgender person shall be recorded in all official
documents in accordance with certificate issued under sub-section
(1).
(3) A certificate issued to a person under sub-section (1) shall confer
rights and be a proof of recognition of his identity as a transgender
person.
8. (1) After the issue of a certificate under sub-section (1) of section 7, if Change in
there is any change in the gender of a transgender person, he shall gender.
make an application to the District Magistrate for revised
certificate.
(2) The District Magistrate shall, on receipt of an application under
sub-section (1), and on the recommendation made by the District
Screening Committee, issue a certificate indicating change in
gender in such form and manner and within such time, as may be
prescribed.
(3) The person who has been issued revised certificate shall be entitled
to change the first name in the birth certificate and all other official
documents relating to the identity of such person: Provided that
such change in gender and the issue of revised certificate under
subsection (1) shall not affect the rights and entitlements of such
person under this Act.

CHAPTER IV
WELFARE MEASURES BY GOVERNMENT
9. (1) The appropriate Government shall take steps to secure full and Obligation of
effective participation of the members of the sexual minorities and the appropriate
Government.
their inclusion in society.
(2) The appropriate Government shall take such measures as may be
necessary to protect the rights and interests of the sexual
minorities, and facilitate their access to welfare schemes framed by
that Government.
(3) The appropriate Government shall formulate welfare schemes and
programmes which are sensitive, non-stigmatising and non-
discriminatory towards the members of sexual minorities.
(4) The appropriate Government shall take steps for the rescue,
protection and rehabilitation of homosexual and transgender
persons to address the needs of such person.
(5) The appropriate Government shall take appropriate measures to
promote and protect the rights of homosexual and transgender
persons to participate in cultural and recreational activities.
 CHAPTER V
OBLIGATION OF ESTABLISHMENTS AND OTHER PERSON

10. No establishment shall discriminate against any homosexual or Non-

transgender person in any matter relating to employment discrimination
in employment.
including, but not limited to, recruitment, promotion and other
related issues.
11. Every establishment shall ensure compliance with the provisions Obligations of
of this Act and provide such facilities to the homosexual or establishments.
transgender person as may be prescribed.
12. Every establishment consisting of one hundred or more persons Grievance
shall designate a person to be a complaint officer to deal with the redressal
mechanism.
complaints relating to violation of the provisions of this Act.
13. (1) No member of the sexual minorities shall be separated from Right of
parents or immediate family on the ground of being a homosexual residence.
or a transgender, except on an order of a competent court, in the
interest of such person.
(2) Every homosexual or transgender person shall have—
(a) a right to reside in the house-hold where parent or immediate
family members reside;
(b) a right not to be excluded from such house-hold or any part
thereof;
(c) a right to enjoy and use the facilities of such house-hold in a non-
discriminatory manner.
(3) Where any parent or a member of his immediate family is unable
to take care of a homosexual or a transgender, the competent court
shall by an order direct such person to be placed in rehabilitation
centre.
 CHAPTER VI
EDUCATION, SOCIAL SECURITY AND HEALTH OF HOMOSEXUAL OR
TRANSGENDER PERSON

14. All educational institutions funded or recognised by the Obligation of

appropriate Government shall provide inclusive education and educational
institutions to
opportunities for sports, recreation and leisure activities without
provide
discrimination on an equal basis with others. inclusive
education to
transgender
persons.

15. The appropriate Government shall formulate welfare schemes and Vocational
programmes to facilitate and support livelihood for homosexual training and
self-
and transgender persons including their vocational training and
employment.
self-employment.
16. The appropriate Government shall take the following measures in Health care
relation to the homosexual and transgender persons, namely:— facilities.

(a) a separate human immunodeficiency virus Sero-survellance

Centres;
(b) to provide for medical care facility including sex reassignment
surgery and hormonal therapy;
(c) pre and post sex reassignment surgery and hormonal therapy
counselling;
(d) bring out a Health Manual related to sex reassignment surgery in
accordance with the World Profession Association for Transgender
Health guidelines;
(e) review of medical curriculum and research for doctors to address
their specific health issues;
(f) to facilitate access to the homosexual and transgender persons in
the hospitals and other healthcare institutions and centres;
(g) provision for coverage of medical expenses by a comprehensive
insurance scheme for homosexual and transgender persons.
 CHAPTER VII
NATIONAL COUNCIL FOR HOMOSEXUAL AND TRANSGENDER PERSONS

17. (1) The Central Government shall by notification constitute a National National
Council for homosexual and transgender persons to exercise the Council for
Homosexual
powers conferred on, and to perform the functions assigned to it,
and
under this Act. Transgender
(2) The Council shall consist of— persons.

(a) the Union Minister in-charge of the Ministry of Social Justice and
Empowerment, Chairperson, ex officio;
(b) the Minister of State, in-charge of the Ministry of Social Justice
and Empowerment in the Government, Vice-Chairperson, ex
officio;
(c) Secretary to the Government of India in-charge of the Ministry of
Social Justice and Empowerment, Member, ex officio;
(d) one representative each from the Ministries of Health and Family
Welfare, Home Affairs, Housing, Urban and Poverty Alleviation,
Development, Human Resources Development, Rural
Development, Labour and Employment and Departments of Legal
Affairs, Pensions and Pensioners Welfare and NITI Ayog, not
below the rank of Joint Secretaries to Government of India,
Members, ex officio;
(e) one representative each from the National Human Rights
Commission and National Commission for Women, not below the
rank of Joint Secretaries of Government of India, Members, ex
officio;
(f) representatives of the State Governments and Union territories by
rotation, one each from the North, South, East, West and North-
East regions, to be nominated by the Central Government,
Members, ex officio;
(g) five representatives of homosexual community and five
representatives of transgender community, by rotation, from the
State Governments and Union territories, one for each community
from the North, South, East, West and North-East regions, to be
nominated by the Central Government, Members;
(h) five experts, to represent non-governmental organisations or
associations, working for the welfare of homosexual and
transgender persons, to be nominated by the Central Government,
Members;
(i) Joint Secretary to the Government of India in the Ministry of
Social Justice and Empowerment dealing with the welfare of the
homosexual and transgender persons, Member Secretary, ex
officio.
(3) A Member of National Council, other than ex officio member,
shall hold office for a term of three years from the date of his
nomination.
18. The National Council shall perform the following functions, Functions of the
namely:— Council.

(a) to advise the Central Government on the formulation of policies,

programmes, legislation and projects with respect to homosexual
and transgender persons;
(b) to monitor and evaluate the impact of policies and programmes
designed for achieving equality and full participation of
homosexual and transgender persons;
(c) to review and coordinate the activities of all the Departments of
Government and other Governmental and non-Governmental
Organisations which are dealing with matters relating to
homosexual and transgender persons;
(d) to perform such other functions as may be prescribed by the
Central Government.

CHAPTER VIII
OFFENCES AND PENALTIES
19. Whoever,— Offences and
(a) compels or entices a homosexual or a transgender person to penalties.
indulge in the act of begging or other similar forms of forced or
bonded labour other than any compulsory service for public
purposes imposed by Government;
(b) denies a homosexual or a transgender person the right of passage
to a public place or obstructs such person from using or having
access to a public place to which other members have access to or
 a right to use;
(c) forces or causes a homosexual or a transgender person to leave
house-hold, village or other place of residence;
(d) harms or injures or endangers the life, safety, health, or well-being,
whether mental or physical, of a homosexual or a transgender
person or tends to do acts including causing physical abuse, sexual
abuse, verbal and emotional abuse and economic abuse; shall be
punishable with imprisonment for a term which shall not be less
than six months but which may extend to two years and with fine.

CHAPTER IX
MISCELLANEOUS
20. The Central Government shall, from time to time, after due Grants by
appropriation made by Parliament by law in this behalf, credit such Central
Government.
sums to the Council as may be necessary for carrying out the
purposes of this Act.
21. The provisions of this Act shall be in addition to, and not Act not in
derogation of, any other law for the time being in force. derogation of
any other law.

22. No suit, prosecution or other legal proceeding shall lie against the Protection of
appropriate Government or any local authority or any officer of the action taken in
good faith.
Government in respect of anything which is in good faith done or
intended to be done in pursuance of the provisions of this Act and
any rules made there under.
23. (1) The appropriate Government may, by notification, make rules for Power of
carrying out the provisions of this Act. appropriate
Government to
(2) In particular, and without prejudice to the generality of the
make rules.
foregoing powers, such rules may provide for all or any of the
following matters, namely:—
(a) the form and manner in which an application shall be made under
section 5;
(b) the form and manner in which a certificate of identity is issued
under sub-section (1) of section 7;
(c) the form and manner in which an application shall be made under
sub-section (2) of section 8;
(d) facilities to be provided under section 10;
(e) other functions of the National Council under section 18;
(f) any other matter which is required to be or may be prescribed.
(3) Every rule made by the Central Government under sub-section (1),
shall be laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session
immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the
rule or both Houses agree that the rule should not be made, the rule
shall thereafter have effect only in such modified form or be of no
effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything
previously done under that rule.
(4) Every rule made by the State Government under sub-section (1),
shall be laid, as soon as may be after it is made, before each House
of the State Legislature where it consists of two Houses, or where
such legislature consists of one house, before that house
24. (1) If any difficulty arises in giving effect to the provisions of this Act, Power to
the Central Government may make such order or give such remove
difficulties.
directions, by order published in the Official Gazette, make such
provisions, not inconsistent with the provisions of this Act as
appear to it to be necessary or expedient for removing the
difficulty:
Provided that no such order shall be made after the expiry of the
period of two years from the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after
it is made, be laid before each House of Parliament.
 PUBLICATIONS

I. TRANSFIGURING THE LAWS FOR TRANSGENDERS IN INDIA, 4

INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS 5 (2017),
ISSN 2347-3185.

II. ASIAN LEGAL FRAMEWORK: A HOMOSEXUAL’S INFERNO, 3

JOURNAL ON CONTEMPORARY ISSUES OF LAW 7 (2017), ISSN 2455-
4782.
III. SEXUAL ORIENTATION AND GENDER IDENTITY ISSUES OF
CHILDREN IN THE PRESENT LEGAL SCENARIO: HUMAN RIGHTS
PERSPECTIVE, THE HUMAN RIGHTS BOOK, ISSUE:1, ISSN NO: 978-1-
63415-534-2.
IV. MARITAL RAPE IN INDIAN LEGAL SCENARIO: WHERE NO IS NOT AN
OPTION, GENDER AND VIOLENCE DIFFERENT PERSPECTIVES (A
COLLECTION OF ARTICLES), ISBN:978-81-931620-0-2.
V. ILL-LEGAL TRADERS: PROSTITUTION AND ITS AFTERMATH, 5
HUMAN RIGHTS INTERNATIONAL RESEARCH JOURNAL 1, ISSN
2320-6942
VI. UNNATURAL OFFENCES UNDER NATURAL LAW THEORY, LEX
REVOLUTION, ISSN 2394997X

PAPER PRESENTATION IN CONFERENCE/ SEMINAR

I. PAPER ON ‘MAINSTREAMING OF TRANSGENDERS IN INDIA: HUMAN

RIGHTS PERSPECTIVE’, PRESENTED IN THE NATIONAL SEMINAR ON
MAINSTREAMING OF MARGINALS IN INDIA: ISSUES AND
CHALLENGES. (May 6, 2017)
II. PAPER ON ‘DISCRIMINATION AGAINST CHILDREN ON THE BASIS OF
SEXUAL ORIENTATION AND GENDER IDENTITY’, PRESENTED IN THE
NATIONAL COLLOQUIUM ON HUMAN DIGNITY AND HUMAN RIGHTS:
ISSUES AND CHALLENGES IN INDIA. (Apr. 25-26, 2015)
III. PAPER ON ‘RIGHTS OF DALITS’, PRESENTED IN THE NATIONAL
SEMINAR ON NEW DALIT AGENDA FOR 21ST CENTURY. (Apr. 11- 12,
2015)
IV. PAPER ON “GENDER AND VIOLENCE” PRESENTED IN THE
INTERNATIONAL CONFERENCE ORGANIZED BY RIT FOUNDATION.
(OCT. 9- 12, 2015)