Mar 11,2023 | 11 min read

LGBTQ Rights and Protection in India overall with special focus at work

In India, the recognition and acknowledgement of LGBTQ rights has been a slow and gradual process, but there has been significant progress in recent years. LGBTQ is an acronym that has been used since 1990 and refers to a wide range of sexual orientations and gender identities. The letter 'L' stands for lesbian, which describes females who are attracted to other females, 'G' stands for gay, which refers to males who are attracted to other males, 'B' stands for bisexual, which refers to individuals who are attracted to both sexes. 'T' stands for transgender, which refers to people whose gender identity and expression differ from that which is typically associated with their birth sex. Lastly, 'Q' stands for queer, which is a term used to describe individuals whose sexual and gender identities fall outside of the traditional heterosexual and cisgender norms.


Recognition of LGBTQ Rights:

The Supreme Court in the landmark decision in NALSA v. Union of India (2014) granted recognition to transgender individuals as the "third gender" under the Indian Constitution. The ruling acknowledged the systemic injustices and discrimination faced by the transgender community in various aspects of their lives, including employment. Furthermore, the court established that discrimination based on gender identity is a violation of the constitutional right to equality.

Section 377 of Indian Penal Code provides penal provisions for sexual acts that were not related to procreation, including same-sex relations. This law has been widely criticized for its discriminatory nature and its disproportionate impact on the LGBTQ community. It has been deemed as out of step with contemporary moral standards. In 2009, the Delhi High Court ruled that Section 377 was in violation of constitutional morality, but in 2013, a 3-judge panel of the Supreme Court overturned the Delhi High Court's ruling, thereby reinstating the validity of Section 377.

Finally in the case of Navtej Singh Johar and Ors. v. Union of India case on September 6, 2018, the Supreme Court invalidated certain provisions of Section 377 of the Indian Penal Code, 1860 which made sexual intercourse that deviated from the norm illegal. Consequently, the Supreme Court granted consenting adults who identify as lesbian, gay, bisexual, or transgender the right to engage in sexual intercourse without fear of prosecution.

The Supreme Court's unanimous decision in KS Puttaswamy v. Union of India, 2017 SCC(1) 10, established that an individual's sexual orientation is a private matter. The court further upheld that the right to privacy is a fundamental right under article 21 of the Indian Constitution.

Despite the decriminalization of homosexuality, the LGBTQ community in India still faces discriminatory policies. This is due to a significant disparity between the judicial and legislative progress of LGBTQ legislation in the country. While the Indian Supreme Court has set precedent for granting fundamental human rights to LGBTQ individuals through landmark cases such as National Legal Services Authority V. Union of India, Navtej Singh Johar V. Union of India, and Justice K.S. Puttaswamy V. Union of India, the legislature has failed to keep pace with these advancements.


  • Same-sex union: Legal recognition of same-sex marriage is still not clear through several court ruling has permitted such marriages.

  • Adoption: Adoption in India is governed by both secular and religious regulations. Despite the decriminalization of Section 377 of the Indian Penal Code, which previously criminalized homosexuality, the law still doesnot allow the members of the LGBTQ community to adopt children. This discriminatory policy highlights the unequal treatment of homosexual couples under the law. 

  • Surrogacy: The newly implemented surrogacy law prohibits single individuals and LGBTQ couples from becoming parents through surrogacy.

  • Inheritance: The laws that pertain to inheritance in India are not gender-neutral and exclusively refer to men, women, and husbands.


LGBTQ Rights under Transgender Act:

The Transgender Persons (Protection of Rights) Act, 2019, was passed by the Indian parliament.  Section 3 of the Transgender Act prohibits both the government and private individuals from discriminating against transgender people in employment relationships, including by denying or terminating employment based on gender identity. According to Section 3, "Prohibition against discrimination-

No person or establishment shall discriminate against a transgender person on any of the following grounds, namely:

(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, or 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; and

(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."


Section 9 of the Transgender Act specifically protects against discrimination in employment. "Non-discrimination in employment- No establishment shall discriminate against any transgender person in any matter relating to employment including, but not limited to, recruitment, promotion and other related issues." Section 9 provides.


Physical or sexual abuse of a transgender person is punishable with imprisonment upto two years under Section 18 of the Transgender Act. It reads-


(a) compels or entices a transgender person to indulge in the act of forced or bonded labour other than any compulsory service for public purposes imposed by Government;

(b) denies 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 transgender person to leave household, village or other place of residence; and

(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of 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."


The historic judgment of Navtej Singh Johar & Ors v. Union of India acknowledged that discrimination on the basis of sex includes discrimination against homosexual people and violates their fundamental rights to non-discrimination, equality, and dignity, as enshrined in the Indian Constitution. 



The existing legal provisions in India are insufficient in safeguarding the rights of the LGBTQ community, particularly the workplace rights. Thereby it is utmost necessary to promulgation and amend certain laws and regulations. To ensure the protection of workplace rights for the LGBTQ+ community, a specific framework is required that embraces the identity of all individuals and their rights, particularly within the private sector. Urgent measures must be taken to strengthen protection, including sensitisation programmes and the effective enforcement of existing rights.




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