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Court asks Indian government to clarify stance on non-consensual sexual offenses

Colonial-era sodomy law struck down in landmark 2018 ruling

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Gantavya Gulati (Photo courtesy Gantavya Gulati)

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. 

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India

India’s ‘pink economy’ could bolster economic growth

LGBTQ purchasing power in country estimated to be $168 billion

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(Photo by Rahul Sapra via Bigstock)

The rollback of the U.S. Agency for International Development under the Trump-Vance administration represents a global setback for LGBTQ rights. A report from the Observer Research Foundation, a leading Indian think tank that advises the government on policy, however, highlights a unique opportunity for the country to rely less on overseas funding to promote LGBTQ inclusion and integrate the “pink economy” into its broader economic growth strategy, fostering a more inclusive and self-reliant framework.

The “pink economy,” defined as the purchasing power of the queer community, is valued globally at approximately $3.7 trillion. In India, this market is estimated at $168 billion, but remains largely untapped due to persistent stigma that obstructs economic inclusion for LGBTQ people.

The ORF report notes that, as a result, India’s LGBTQ community has relied heavily on international aid and funding, with Western narratives often shaping perceptions of queer identities.

Despite India’s efforts to advance LGBTQ rights — through recognizing a “third gender” in the 2011 Census, the Supreme Court’s 2018 decision to decriminalize consensual same-sex sexual relations by striking down Section 377, and the passage of the Transgender Persons (Protection of Rights) Act in 2019 — these measures have done little to meaningfully to elevate the social and economic status of the LGBTQ community.

India’s queer community constitutes roughly 18 percent of the global queer population. A 2025 study reveals it receives only 1 percent of global LGBTQ funding, despite heavy reliance on international donors.

The Against All Odds — Advancing Equity for India’s LGBTQIA+ Communities report reveals that, within India, only one of the nation’s top 50 donors explicitly funds queer causes, underscoring a significant gap in domestic philanthropy for the LGBTQIA+ community.

India’s Social Justice and Empowerment Ministry for the 2025-2026 fiscal year allocated $1.07 billion to support education, skilling, healthcare, and rehabilitation for marginalized groups. The ORF report, however, emphasizes this funding falls significantly short for the estimated 140 million-strong queer community, as it narrowly focuses on trans people, thereby limiting its impact on the broader LGBTQ community.

A 2014 World Bank report, the Economic Cost of Homophobia and The Exclusion of LGBT People: A Case Study of India, found that excluding the LGBTQ community from economic participation results in a GDP loss of between .1 and 1.7 percent, translating to an annual economic impact of $1.9 billion to $30.8 billion.

The ORF report underscores that social stigma restricts access to education and hinders opportunities for meaningful employment. 

A 2024 report, Fundamental Rights of Work Inclusion for LGBTQ in India, reveals that fewer than 6 percent of trans people are part of the formal workforce, with their presence in the public sector being nearly negligible. It further notes that, for daily survival, many trans people are forced into hostile environments or resort to street begging.

Thailand, with a marriage equality law that took effect in January, is widely recognized for its relative tolerance toward the LGBTQ community, fostering a vibrant queer culture in cities like Bangkok. The country actively promotes itself as a gay-friendly tourism destination, with businesses capitalizing on the “pink economy” through events, nightlife, and tailored travel services. A 2017 report highlighted Thailand as a leading hub for gay-friendly holidays, significantly bolstering its pink economy.

China stands out as a major player in the “pink economy,” valued at an estimated $300 billion annually in 2017, the largest in Asia, fueled by at least 70 million people. Despite government restrictions on queer content, businesses like Blued, a gay social networking app with 54 million users, and Taobao and other e-commerce platforms have tapped into the “pink market,” offering services such as same-sex wedding packages abroad.

Japan has made gradual strides in LGBTQ inclusion with Goldman Sachs, Panasonic, Rakuten and other companies implementing inclusive policies, such as same-sex partner benefits, since 2015. The Japan Business Federation in 2017 issued guidelines to promote LGBTQ-inclusive employment. Tokyo’s rising status as an LGBTQ-friendly city bolsters tourism and consumer markets tied to the “pink economy.” Japan’s tech and tourism sectors remain robust, despite the country’s modest economic growth, with “pink economy” initiatives driving urban economic vitality.

Anish Gawande, the first openly gay national spokesperson for India’s Nationalist Congress Party, told the Washington Blade that excluding the LGBTQ community carries a tangible financial cost. He emphasized India must soon recognize that marginalizing this group not only triggers a brain drain of top talent but also bars hundreds of thousands of highly capable individuals from driving the nation’s economic progress.

“I am a firm believer in a politics of care. If we only want LGBTQ+ inclusion for the sake of economic prosperity, there will never be true inclusion,” said Gawande. “What we must understand is that an embracing of diversity — across caste, class, religion, region, gender, and sexuality — is fundamental to ensuring that we build communities that listen to and learn from each other. By embracing diversity, which has been at the very heart of what it means to be Indian, we do not just prosper economically — but also build more resilient, more equal, and more harmonious societies.”

Kalki Subramaniam, a prominent LGBTQ activist and artist, told the Blade the issue transcends mere economic gain, emphasizing the vibrant spirit and unrecognized potential of LGBTQ people across India.

“We are here, we exist, and our contributions are invaluable. But the government is yet to recognize and fully tap it,” said Subramaniam. “If they are not listening, they will lose out, not just on money, but on the richness we bring to the fabric of India. This is not just an economic report, it is a heartbeat of a community yearning to be seen, to be accepted, and to be allowed to shine for the prosperity of our shared home.”

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Indian Supreme Court orders government to reconsider trans blood donor policy

Transgender people, MSM ineligible to donate under 2017 guidelines

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(Bigstock photo)

The Indian Supreme Court on May 14 ordered the central government to consult experts and address policies that label transgender people as “high-risk” blood donors, a designation rooted in assumptions rather than scientific evidence.

“Are we going to brand all transgender individuals as risky and stigmatize them?” said Justices Surya Kant and Nongmeikapam Kotiswar Singh. “You cannot say that all transgender individuals are indulging in sexual activity.”

These restrictions stem from guidelines that the National Blood Transfusion Services, under India’s Health and Family Welfare Ministry, issued on Oct. 11, 2017. The regulations categorize trans people, men who have sex with men, female sex workers, IV drug users, and those with multiple sexual partners as ineligible to donate blood due to presumed risks of HIV, Hepatitis B or C, and require clearance by a medical officer.

The justices considered a petition that contested the constitutional validity of Sections 12 and 51 of the guidelines.

Solicitor General Aishwarya Bhati, representing the central government, stated the rules, which the National Blood Transfusion Council’s panel of medical experts crafted, aimed to prioritize public health and safety without intending to stigmatize any group. The justices during the hearing noted barring trans people from donating blood reinforces their social exclusion, questioning whether these restrictions deepen existing societal biases.

“Just think of something that such feeling does not come, and health standards are not compromised,” they said, granting the government time to address these concerns while maintaining medical safety.

The justices further observed that evolving times and emerging medical technologies offer solutions to screen blood donations for infections without excluding entire groups, allowing broader participation in civic programs.

Bhati said she would relay the court’s recommendations to medical experts for consideration. She explained that donated blood goes directly to blood banks, critical for thalassemia patients and other vulnerable groups who depend entirely on these supplies for their survival.

“As a group, transgenders are considered a high-risk group the world over, with certain exceptions,”Bhati told the justices. “There is a period within which infection has to be identified, and the risk window has to be carefully considered. Nobody can claim to have a fundamental right to donate blood. These guidelines must be seen from the perspective of public health as the idea is not to stigmatize anyone.”

The Washington Blade on Aug. 28, 2024, reported Shariff D. Rangnekar, a gay man from Delhi and director of the Rainbow Literature Festival, challenged the constitutionality of India’s blood donor rules, which bar trans people, MSM, female sex workers, and others from donating blood due to presumed health risks.  

The Supreme Court on July 30, 2024, agreed to hear Rangnekar’s petition that Ibad Mushtaq filed and lawyer Rohin Bhatt wrote. It questions the policy’s reliance on outdated stereotypes from the 1980s. Rangnekar notes the U.S., the U.K., Canada, and Israel are among the countries that have updated their blood donor policies. He urged India to adopt individualized risk assessments. 

South Asian countries have varying blood donation policies for trans people and gay men, with some avoiding blanket bans and others enforcing them. 

Equaldex notes Nepal allows MSM to donate blood without specific restrictions based on sexual orientation or gender identity, suggesting trans people and gay men face no categorical bans. Bangladesh also lacks a specific ban on such donors, although its policies remain ambiguous due to limited documentation.

Pakistan, Sri Lanka, and Malaysia ban MSM and trans people from donating blood, categorizing them as high-risk groups for HIV and other infections.

“It is not just LGBTQIA+ people whose blood can test positive for infections, it could be anybody. All blood that is transfused needs to be tested before transfusion,” said Harish Iyer, a prominent LGBTQ activist in India. “If that is not happening, we have much reason to worry. There is no test on fidelity, regardless of the sex, gender, or sexual orientation. There are open marriages and clandestine affairs that happen in every sexuality. The solution is to speak of safe sex practices and not to take anyone’s word and to test every packet of blood before transfusion.”

Iyer told the Blade that branding and banishing minorities by stereotyping them is an underlying cause of hate crimes. He highlighted that MSM and trans people for years have been seen as simply vectors of HIV, and not as people who lead happy, fulfilling lives. Iyer added the blood donor ban further accentuates this divide and further marginalizes the community.

Iyer said the government should enhance public awareness campaigns around safer sex practices and ensure that all blood undergoes rigorous testing before transfusion. Ankit Bhupatani, a global DEI leader and LGBTQ activist, told the Blade the justices’ directive represents a long-overdue recognition that India’s blood donation guidelines require scientific scrutiny rather than perpetuating stigma.

“By asking the government to seek expert opinion, the bench has opened a path toward evidence-based policy reform. The bench’s observation that labeling all transgender persons as ‘risky’ is troubling, shows judicial wisdom in identifying how these guidelines institutionalize prejudice,” said Bhupatani. “This intervention creates an opportunity to align our healthcare policies with constitutional values of equality and dignity while maintaining necessary medical safeguards.”

He said the 2017 guidelines are a form of structural discrimination.

“Such policies do not merely restrict access to a civic activity; they codify stigma into our healthcare system and reinforce harmful stereotypes about LGBT individuals,” said Bhupatani. “The international trend has indeed moved toward individual risk assessment rather than categorical exclusions. India’s policy remains anachronistic in its approach.” 

“The government absolutely should implement individualized medical screening based on specific behaviors rather than identity,” he added. “The current policy creates the paradoxical situation where a heterosexual person engaging in high-risk behaviors faces less scrutiny than a transgender person in a monogamous relationship. The selective application of supposed ‘public health concerns’ reveals that these guidelines are more informed by social prejudice than medical evidence. Rigorous individual screening would better protect our blood supply while eliminating discriminatory practices.”

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LGBTQ Kashmiri students targeted after terrorist attack

26 people killed in Baisaran Valley on April 22

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Baisaran Valley in Kashmir (Photo by SB Stock/Bigstock)

Baisaran Valley, a Kashmiri meadow surrounded by pine trees, was bustling with Hindu tourists on April 22.  

Families were wearing phirans (traditional Kashmiri clothing) for photos, while ponies trotted along the Lidder River. Gunfire shattered this peace when five terrorists opened fire. They targeted Hindu men, checking their religion before shooting them. The terrorists killed 26 people — 25 tourists, including a Navy officer who was on his honeymoon — and Syed Adil Hussain Shah, a pony guide who died protecting others. More than 20 others were wounded.

The Resistance Front, a Pakistan-based group tied to Lashkar-e-Taiba, a terrorist organization, initially claimed responsibility for the attack, but retracted the claim three days later, fearing India’s diplomatic and military response that eventually included the tightening of borders and the suspension of the Indus Waters Treaty.

The attack sparked outrage across India.

Misdirected anger targeted Kashmiri students in Dehradun, Jalandhar, and other cities in which LGBTQ people face heightened vulnerability. They endured harassment, evictions, and threats of violence. The J&K Students Association reported more than 1,000 distress calls, and Kashmir Chief Minister Omar Abdullah urged states to protect them.

Activists across India have rallied to help LGBTQ Kashmiri students in their cities.

Harish Iyer, a prominent activist, offered shelter and legal assistance to them in Mumbai, the country’s financial hub.

“Religion is a tool used by terrorists worldwide to ensure that their victims divert their energy towards fighting each other while  they continue to focus on our destruction,” said Iyer. “It is a tried and tested formula designed to divide us while we should all be united against them.”

Iyer told the Washington Blade he saw videos of Kashmiri students being targeted.

“Hate gets compounded when you look at it from several intersectional points,” he said. “To belong to identities like queer, Muslim, and Kashmiri makes one vulnerable. In a moment where hate reveals its fang, it is important that love opens its home too.”

Iyer said he received a couple of phone calls from queer people in northern India who had been attacked. He offered to pay for their travel to Mumbai or any other city, but they eventually told him they found a place where they would be safe.

“It just reinstates our collective faith in humanity and asserts that there are kind people everywhere,” said Iyer. “The community stands united with each other against terror.”

He stressed “intersectional realities make us most vulnerable” and “that’s why we need to rise up and be the best of who we are as queer humans.” Iyer told the Blade that other queer activists in India are trying to do just that, albeit silently, by opening their homes to people who have been targeted. 

“Anish Gawande, the queer spokesperson of the Nationalist Congress Party, has been working hard to restore peace in the valley,” he noted. “He has been doing good work in the Kashmir Valley for several years now. I truly admire his courage and candor. But truly, it’s the everyday queer Indian who advocates for kindness who matter.” 

“They would not be known to all and sundry, may not have a fan following or several followers on social media, but they have it in them to open their homes and their world to those affected,” added Iyer. “Sometimes, love doesn’t cause outpouring visibility, sometimes it silently protects and creates homes with a beating heart.”

Gawande has worked in Kashmir since 2012, running a program for Kashmiri journalism students and an art residency. 

He acknowledged to the Blade the increase in violence against Kashmiri students. Gawande also said LGBTQ Kashmiri students face unique challenges because they are a “minority within a minority.”

“In these difficult times, several activists like Harish Iyer have come forward to offer their support to young Kashmiri LGBTQ students who are afraid for their own safety,” he said. “The intent of the terrorists was to divide us — we cannot let their strategy succeed. I am incredibly grateful to so many members of the queer community and allies who have stepped forward to help all Kashmiris in this difficult time.”

Gawande said he has been supporting the efforts of student leaders, including Nasir Khuehami of the J&K Students Association, who has been leading efforts to ensure Kashmiris across India remain safe and secure. Gawande also said government officials, politicians, and law enforcement are working to protect the students.

“I am grateful to both the central government and state governments across the country for their prompt assistance in this matter,” said Gawande. “In these difficult times, when emotions run high, we remain united against hate.” 

“Today, attempts are being made to create divides between Indians and Kashmiris, between Hindus and muslims,” he added. “We must stand up against such attempts in one voice.” 

Gawande last weekend traveled to Srinagar, the Kashmiri capital, and led multi-faith prayer services in temples, churches, gurdwaras (Sikh places of worship), and dargahs (shrines) “to mourn those who lost their lives in Pahalgam and to send out a message of communal harmony.”

“When attempts are being made to divide us on religious grounds, we must unite through religion,” he said.

Gawande also spoke directly to Kashmiri LGBTQ students, urging them to reach out to the J&K Students Association. He said his New Delhi home and his party’s offices across the country are “also available to those who need a safe space or a place to grieve.”

“In this time of grief, where we are all mourning the dastardly loss of life, it is important to stand up for what is right,” said Gawande. “Queerness has taught me that we have two kinds of families — those of birth and of choice.”

“Kashmir holds a special place in my heart, and when the well being of those who I consider family is under threat, there is no question of even thinking about any potential jeopardizing of my own safety,” he added.

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