India’s LGBTQ community for decades endured deep-seated discrimination and societal repression, living in the shadows of a nation that often refused to see them. Yet, in recent years, a wave of change has swept across the country. 

Slowly but surely, the community is winning battles on multiple fronts. The most significant breakthrough came in 2018 when India’s Supreme Court struck down Section 377, decriminalizing homosexuality. This landmark ruling not only rewrote a colonial-era law — it ignited hope, signaling the dawn of a more inclusive India where love is not a crime.

India’s Social Justice and Empowerment Ministry on Sept. 1 took a bold step, inviting feedback from stakeholders and the public to shape more inclusive policies for the LGBTQ community. This move follows the Supreme Court’s landmark October 2023 directive in the Supriya v. Union of India case, which called on the government to safeguard LGBTQ rights. 

The government since then has initiated several measures aimed at creating a more equitable future for the community, ensuring their voices are heard, and their interests protected.

The Indian government in response to the Supreme Court’s ruling formed a high-level committee, chaired by the Cabinet secretary, to clarify and define the rights and entitlements of the LGBTQ community. The Social Justice and Empowerment Ministry announced this in a statement, marking a crucial step toward formalizing protections, and ensuring the community’s legal recognition and inclusion in India’s evolving social framework.

The Indian government in April formed a committee that includes officials from the Home Affairs, Women and Child Development and Health, and Family Welfare Ministries with the secretary as the convening member. The committee by May met to tackle pressing issues facing the LGBTQ community. 

Their discussions covered vital matters like the issuance of ration cards, allowing LGBTQ people to open joint bank accounts with their partners, and preventing harassment based on gender identity and sexual orientation.

Ration cards in India serve as official documents that state governments issue, granting eligible households access to subsidized food grains through the Public Distribution System under the National Food Security Act. These cards are a lifeline for many, ensuring affordable food security for millions across the country.

The Washington Blade in July reported the Home Ministry issued a memo to state and territorial officials, as well as prison administrators, that acknowledges discrimination and violence queer people often face because of their sexual orientation and gender identity. The government urged states and territories to ensure equal rights for queer inmates, instructing officials to prevent discrimination and uphold visitation rights, 

The Department of Food and Public Distribution, meanwhile, has advised state and territorial governments to recognize partners in queer relationships as members of the same household for ration card purposes. This directive seeks to prevent discrimination and ensure that LGBTQ couples receive equal access to subsidized food and benefits under the Public Distribution System.

The Health and Family Welfare Ministry has already taken significant steps to prevent discrimination in healthcare. 

It issued guidelines that prohibit so-called “conversion therapy” and other harmful practices and ensure access to gender-affirming surgery. These measures aim to create a safer and more inclusive healthcare environment for LGBTQ people, affirming their right to respectful and appropriate medical care.

The Indian government has announced that it is developing additional guidelines to support the mental health and well-being of the LGBTQ community. They include the establishment of medical protocols for intersex babies and children that seek to provide more compassionate and informed healthcare interventions. 

The government has also invited the public to share their suggestions and feedback on additional measures to support the LGBTQ community.

Rani Patel, president and founder of Aarohan, during an interview with the Washington Blade expressed frustration with the government’s slow progress in implementing LGBTQ initiatives. She highlighted the ongoing challenges faced by transgender people, noting they often face skepticism and doubt when they introduce themselves as trans.

Patel emphasized the need for faster, more effective action to change societal perceptions and protect the dignity of trans people in India.

“They should have a choice that they reveal their identity as transgender individual,” she said. “[At a] maximum transgender people are now getting married, because they do not trust the government or government’s initiatives. They are not finding protection, security, or benefits.” 

“We work with a huge number of transgender individuals, and we know because of these issues, no government schemes are benefiting the transgender community,” added Patel.

Patel said only 1 percent of India’s trans or LGBTQ community will likely benefit from these efforts. She stressed the need for more comprehensive efforts to ensure these policies reach and uplift the broader community, rather than just a small fraction.

Harish Iyer, a plaintiff in the Supreme Court’s marriage equality case who is also the head of diversity, equity and inclusion at Axis Bank, on Tuesday spoke with the Blade after government officials announced they plan to seek public input on LGBTQ issues.

He described how they attentively listened to the community’s needs, took detailed notes as he passionately spoke. Iyer said the meeting was a hopeful sign of what he described as genuine engagement and commitment to addressing their concerns.

“I am pleasantly surprised to see a list of directives issued,” said Iyer. “I had suggested a directive that could be issued so that all banks could open their doors to LGBTQIA+ people without bias. I know that there is nothing that restricts any two people from opening a joint account as I had introduced the same in Axis Bank in 2021 and had checked all policies then. Now, what was a reality in Axis Bank, has been reiterated through a directive. Now any two people can avail of this in any bank.

When asked about his colleagues’ reactions to the new directive, Iyer shared with a smile that they are “delighted.” 

“All banks and facilities should open their doors. I’d rather compete with peers on providing better service for the community,” he said. “Ultimately, it’s the community that should reap the long-term benefits.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

A guideline from India’s National Blood Transfusion Council and the National AIDS Control Organization under the Health and Family Welfare Ministry permanently prohibits men who have sex with men from donating blood. This prohibition, however, may change with the Supreme Court reviewing a challenge to the constitutionality to the 2017 blood donor rule.

The Supreme Court on July 30 agreed to hear the challenge that a gay man from Delhi — Shariff D. Rangnekar, director of the Rainbow Literature Festival — brought. Lawyer Rohin Bhatt drafted the complaint and Ibad Mushtaq filed it.

The rule also applies to transgender people, female sex workers, and LGBTQ people.

Rangnekar pointed out these rules were rooted in a highly prejudicial and outdated perspective from the 1980s in the U.S. 

He noted many countries, including the U.S., UK, Canada, and Israel, have since revisited their guidelines, adopting new policies that no longer impose blanket bans on gay men or genderqueer people from donating blood.

“It is presumed that a particular group of persons may be suffering from sexually transmitted disease,” said Rangnekar in his lawsuit, according to the New Indian Express, a major English newspaper in India. “Medical technology and education, especially in the field of hematology, has progressed tremendously. The screening of donors is conducted for every donation before a transfusion.”

Rangnekar urged the Supreme Court to reconsider the blanket prohibition, arguing such a sweeping ban is unreasonable. He asserted this prohibition violates fundamental rights, including equality, dignity, and life, safeguarded under Articles 14, 15, 17, and 21 of the Indian Constitution. 

Rangnekar further argues the ban effectively denies LGBTQ people full participation in society, relegating them to the status of second-class citizens.

He contends that clauses 12 and 51 of the 2017 blood donor guidelines are both discriminatory and unconstitutional, because they permanently exclude LGBTQ people from donating blood. Rangnekar argues these provisions unfairly single out LGBTQ persons, barring them from contributing to a life-saving cause, and thus, violates their fundamental rights. Rangnekar also emphasized that such exclusion perpetuates stigma and reinforces inequality, contradicting the principles of justice and equality the constitution enshrines.

The Supreme Court on Aug. 2 took a significant step by issuing a formal notice to the Indian government regarding Rangnekar’s case.

Led by Chief Justice Dhananjaya Yeshwant Chandrachud, the three-judge bench sought responses from the National AIDS Control Organization and the National Blood Transfusion Council. This move marked the court’s recognition of the serious constitutional issues raised in the petition, setting the stage for a critical review of the rules that have long excluded LGBTQ people from donating blood.

The Union Health Ministry in 2023 responded to a Supreme Court petition that Thangjam Santa Singh filed, which challenged the 2017 blood donor selection criteria. Singh sought the removal of provisions that barred trans people, MSM, and female sex workers from donating blood. 

The Union Health Ministry at the time defended the exclusionary clauses in the Supreme Court, stating they are based on substantial evidence that demonstrates trans people, MSM, and female sex workers are at increased risk for HIV, Hepatitis B, and Hepatitis C. The ministry argued these guidelines were designed to protect the safety of the blood supply, though this stance has faced significant criticism for perpetuating stigma and discrimination against marginalized communities.

Rangnekar during an interview with the Washington Blade said India’s blood donation ban reflects a complete bias against the LGBTQ community. He emphasized this pattern of exclusion is not just about blood donation, but is part of a broader effort to deny the community basic rights and dignity. 

“There are many groups that could be high risk in certain areas, but you have a deterrence system in place,” said Rangnekar. “Globally, India claims to be a superpower, It is a country that has sold medical tourism to many parts of the world, and it is a hub for people coming from the developing world to have medical treatment, so what stops the government from having a testing system in place to allow us blood donation, but to have a blanket ban is absolute bias and nothing less than rubbish. We are in a country where there is a shortage of blood.”

Rangnekar also expressed optimism about his case.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

The Delhi High Court on Aug. 13 directed the Indian government to clarify its stance on non-consensual sexual offenses against LGBTQ people and men under the country’s revised penal code. The court’s order has spotlighted the gaps in the legal framework, urging the government to address the protection of these vulnerable groups within the new law.

The Indian LGBTQ community on Sept. 6, 2018, celebrated one of its most significant legal victories when the Supreme Court struck down Section 377 of the country’s colonial-era penal code that criminalized consensual same-sex sexual relations. The Supreme Court invalidated the law for consensual acts, but it retained provisions that concern non-consensual sex to protect transgender people and other vulnerable communities.

The Bharatiya Nyaya Sanhita, which revised the existing penal code, took effect on July 1 and entirely omits the law.

“Where is that provision? There is no provision at all,” asked the court. “There has to be something. The question is that if it is not there, then is it an offense? If an offense is not there and if it is obliterated, then it is not an offense.”

The petitioner who approached the Delhi High Court said the omission of protections in the new law could have unforeseen consequences. The petitioner, lawyer Gantavya Gulati, argued that even after the Supreme Court’s 2018 ruling that decriminalized consensual same-sex sexual relations, Section 377 continued to provide crucial protection to men and LGBTQ people from non-consensual sexual acts.

The Parliamentary Standing Committee on Home Affairs, in its 2023 report on the Bharatiya Nyaya Sanhita, noted that omitting Section 377 would result in the absence of penalties for non-consensual sexual offenses against men and trans people, and for acts of bestiality. The committee, therefore, recommended including Section 377 in the Bharatiya Nyaya Sanhita.

The Supreme Court in its 2018 ruling referred to the portions of Section 377 that criminalized consensual sex as “irrational, indefensible, and manifestly arbitrary.” The Supreme Court at the time emphasized authorities used Section 377 as a weapon to harass LGBTQ people, leading to widespread discrimination.

“Persons who are homosexuals have a fundamental right to live with dignity,” said the Supreme Court. “We further declare that such groups (LGBTQ) are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them. We further direct that Section 377, insofar as it criminalizes homosexual sex and transgender sex between consenting adults, is unconstitutional.”

Acting Chief Justice Manmohan and Justice Tushar Rao Gedela on Aug. 12 led a bench of justices who heard the case that Gulati brought.

The petitioner argued that “the absence of Section 377 of the Indian penal code poses a threat to every individual, but especially to LGBTQ persons.” The petitioner also highlighted that the Bharatiya Nyaya Sanhita does not include any protections for a man who is sexually assaulted by another man.

The Indian government contended the court could not compel parliament to enact a specific provision, even in the presence of a legal anomaly. The government’s counsel emphasized a motion had already been submitted, highlighting this issue to the national government, and it is currently under consideration. The High Court, led by Manmohan, in response directed the government to return on Aug. 28 to clarify its position on non-consensual sexual offenses in light of Section 377’s omission.

The remnants of Section 377 after the 2018 judgment were gender-neutral, offering protection regardless of gender. When the Bharatiya Nyaya Sanhita came into effect, however, the government completely omitted this provision from the new law. It failed to introduce an alternative to protect male rape victims and trans people. Section 63 of the Bharatiya Nyaya Sanhita instead defines rape in a highly gendered manner: As an act where a man’s penis penetrates a woman’s vagina, mouth, urethra, or anus, or compels her to do so with him or another person. This definition narrows the scope of the law, failing to provide adequate protection for LGBTQ individuals.

A report the Guardian published in 2018 found 71 percent of men respondents reported being abused, yet 84.9 percent of them never disclosed their experiences to anyone. The report highlighted the primary reasons for this silence were shame (55.6 percent), followed by confusion (50.9 percent), fear (43.5 percent), and guilt (28.7 percent). The findings shed light on the profound psychological barriers that prevent male survivors from seeking help or sharing their stories.

Gulati recently spoke to the Washington Blade about the case.

He said his concern is the Bharatiya Nyaya Sanhita in its current form primarily frames rape as an act committed by a man against a woman. This narrow definition, he argued, fails to encompass the full spectrum of sexual abuse endured by trans people and men, particularly those within the LGBTQ community.

Gulati emphasized that while there are existing laws that address various forms of sexual violence, they often fall short in specifically protecting these marginalized groups in the way that is urgently needed. He underscored this significant omission within the Bharatiya Nyaya Sanhita indicates a pressing need for reform. Gulati suggested the Bharatiya Nyaya Sanhita must be thoughtfully revised and expanded to ensure that every person, regardless of their gender or sexual orientation, is afforded the protection they deserve from sexual abuse.

“Whether Parliament’s decision was deliberate or not, the removal of Section 377 provision has raised concerns,” Gulati told the Blade. “Section 377 of the Indian penal code covered important issues, like bestiality and other non-consensual acts, that are not clearly addressed in the BNS (Bharatiya Nyaya Sanhita). By leaving out this provision, the law may no longer provide the same level of protection against these acts. It’s a decision that has significant consequences, especially for those who are vulnerable.”

He also said the roles of the courts and parliament are different in a democracy.

The courts’ job is to interpret the law and make sure it is applied fairly, while parliament is responsible for creating and changing laws. Gulati said courts can point out when a law is missing or needs improvement, but they cannot force parliament to make a specific law. Gulati said that the government’s position reflects this balance of power, acknowledging only elected representatives have the authority to make laws.

Sudhanshu Latad, the dedicated advocacy manager at Humsafar Trust, an organization at the forefront of promoting LGBTQ rights in India, also spoke with the Blade.

Latad reflected on the crucial role the judiciary has historically played in bridging gaps within existing legal frameworks, particularly when they fall short of safeguarding specific groups or subgroups. Latad said the Delhi High Court’s decision to hear the Section 377 case is emblematic of this judicial intervention.

“We hope that the Honorable Delhi High Court orders the parliament to create a provision to separately address protection of transgender persons and LGBTQ+ community or reinstitute Section 377 until such provisions are made separately in BNS (Bharatiya Nyaya Sanhita),” said Latad. “Section 63 of BNS (Bharatiya Nyaya Sanhita) primarily presents itself to be written with a heteronormative perspective.”

“While if read with the NALSA vs Union of India judgment 2014, trans women may be able to seek recourse under this, there is an element of ambiguity for assigned males at birth nonbinary persons,” he added. “It does though take into consideration any person raping a woman as it refers to objects being used for the purpose of rape, which may be the case in an instance of woman or nonbinary persons raping a woman.”

Latad told the Washington Blade the Bharatiya Nyaya Sanhita’s introduction is a pivotal point of transformation for the Indian legal system and strengthening it to a position to be able to govern and protect a country with the highest population in the world may be a strenuous affair. He said rape and other sensitive topics may need longer discussions.

“Hence, I feel this is a great opportunity — a clean slate — to introduce a robust gender-neutral law against rape,” said Latad. “I am hopeful that parliament will view this the same way and will take into consideration the recommendations made by the Standing Committee. If they do not retain Section 377 to protect consent, I hope they introduce something equivalent that protects every citizen of the country from rape.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion.