India
Court asks Indian government to clarify stance on non-consensual sexual offenses
Colonial-era sodomy law struck down in landmark 2018 ruling

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.
India
Madras High Court says families are possible outside marriage
May 22 ruling could set important legal precedent in India

In a significant moment for India’s LGBTQ community ahead of Pride month, the Madras High Court on May 22 affirmed people can form families outside of marriage.
The decision, handed down by Justices G.R. Swaminathan and V. Lakshminarayanan, emphasized “marriage is not the sole mode to found a family,” recognizing the concept of “chosen families” as a well-established principle in LGBTQ jurisprudence.
A two judge Madras High Court panel ordered the release of a 25-year-old lesbian woman who had been forcibly separated from her partner and subjected to harassment by her birth family.
The Madras High Court sharply criticized the local police for their mishandling of the case, condemning their decision to force the woman back to her parents against her will. The two judges denounced the police’s “rank inaction” and insensitivity, emphasizing that government officials, particularly law enforcement, are obligated to respond swiftly and appropriately to complaints from LGBTQ people, ensuring their rights and safety are upheld.
The Madras High Court expressed unease with the term “queer,” noting its dictionary definitions as “strange” or “odd.” The judges questioned the appropriateness of the label in the context of describing LGBTQ identities, urging sensitivity in language to reflect the community’s dignity and rights.
“For a homosexual individual, their sexual orientation is natural and normal,” said the judges. “There is nothing strange about such inclinations. Why then should they be labeled queer?”
The Madras High Court judges observed that not all parents embrace their children’s identities, unfavorably comparing the detained woman’s mother to late-Justice Leila Seth, who publicly supported her son’s sexual orientation. The panel highlighted Seth’s acceptance as a model for familial understanding, underscoring the need for greater societal compassion toward LGBTQ people.
“The mother of the detenue is no Leila Seth,” said the court. “We understand her desire for her daughter to live a conventional heterosexual life, marry, and settle down. However, as an adult, the detenue is entitled to choose her own path.”
The Madras High Court emphasized the concept of “family” must be understood expansively, citing the Supreme Court marriage equality case and other precedents. These international guidelines affirm that all people, regardless of their sexual orientation or gender identity, are entitled to the full spectrum of human rights, reinforcing the court’s stance on recognizing chosen families within the LGBTQ community.
“While the Supriyo case may not have legalized marriage between same-sex couples, they can very well form a family,” the court said in its order. “The concept of ‘chosen family’ is now well settled and acknowledged in LGBTQIA+ jurisprudence. The petitioner and the detenue can very well constitute a family.”
The Madras High Court referenced Supriyo Chakraborty v. Union of India, which is the marriage equality case on which the Supreme Court ruled in 2023.
The Supreme Court in that ruling declined to extend marriage rights to same-sex couples, but recognized the rights of queer people to form families and urged the government to explore civil union protections, bolstering the court’s call for an expanded understanding of family.
The Madras High Court invoked landmark rulings, including NALSA v. Union of India (2014), which affirmed the right to self-identify as one’s gender, Navtej Singh Johar v. Union of India (2018), which decriminalized consensual same-sex sexual relations, and Shakti Vahini v. Union of India (2018), which upheld the right to marry by choice as a fundamental right. The two judges reaffirmed sexual orientation is an individual choice, falling within the ambit of personal liberty protected under Article 21 of the constitution.
Article 21 guarantees the right to life and personal liberty, stating no person shall be deprived of these rights except through lawful procedure. This fundamental right has been expansively interpreted by courts to encompass dignity, privacy, and autonomy, including protections for sexual orientation and other individual identities.
Souvik Saha, an LGBTQ activist and founder of People for Change, a leading Indian advocacy group, described the Madras High Court’s recognition of chosen families as both a relief and a validation of the community’s lived realities.
“As the founder of Jamshedpur Queer Circle and someone who has worked closely with LGBTQ+ individuals navigating rejection, violence, and social isolation, for decades, queer, and trans persons in India have built nurturing ecosystems outside their biological families — often due to rejection, abuse, or lack of acceptance,” said Saha. “This concept of ‘chosen family’ is not new to us; it’s a survival mechanism, a source of healing, and a space where we find dignity, belonging, and love. The fact that the judiciary now formally acknowledges these relationships marks a progressive and humane shift in how family is legally and socially understood.”
Saha shared the story of S, a transgender man from Jamshedpur whose biological family disowned him at 17.
Finding refuge with a queer couple who became his guardians, S received emotional support, celebrated milestones like birthdays, and was guided through education and gender-affirming healthcare. “Isn’t that family?” asked Saha.
Saha told the Washington Blade the Madras High Court’s ruling sparks hope for legal reforms; particularly in securing adoption, inheritance, and caregiving rights for queer people. He said the decision affirms that queer lives are not deviant but diverse, vibrant, and capable of forming loving, responsible families. Most crucially, Saha noted, it sends a powerful message to queer youth in Jamshedpur and other smaller cities that their lives and relationships are valid and valued.
“This ruling is a step forward, but we must be honest. Legal rulings alone won’t change police behavior unless they are followed by systemic structural reforms,” said Saha. “Policing in India is still deeply patriarchal, casteist, and heteronormative. Many officers still view LGBTQ identities as criminal or immoral, even after Section 377 was struck down in 2018.”
Saha said mandatory sensitization programs in every police academy are needed to transform attitudes. He said the inclusion of queer rights in law enforcement curricula — beyond token workshops — are also important. Saha added the recruitment of LGBTQ liaison officers and the formation of compliant mechanisms at the district level is needed.
“This ruling is a strong message from the judiciary, but unless the Ministry of Home Affairs and state police departments institutionalize this into practice, change will remain slow and uneven,” said Saha.
India
India’s ‘pink economy’ could bolster economic growth
LGBTQ purchasing power in country estimated to be $168 billion

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.”
India
Indian Supreme Court orders government to reconsider trans blood donor policy
Transgender people, MSM ineligible to donate under 2017 guidelines

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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