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LGBT Rights Abroad: A Process-Oriented Approach

All Human Beings Are Born Free And Equal In Dignity And Rights[1].

The recent filing of petitions in the Supreme Court for the recognition of same-sex marriage opens the legal skirmish in which the apex court has issued the notice and the same also creates exhilaration about the outcome.

LGBT is an acronym that stands for lesbian, gay, bisexual, and transgender. Whilst their communities are still growing, discrimination against them occurs. Today they are facing problems such as bullying, inequality, sexual abuse and cybercrime also exist. However, recent times have seen a more powerful use of the constitutional framework to articulate and protect the basic rights of LGBT people. In India, the relevant laws for the welfare of LGBT people are not in existence.

People belonging to the LGBT Community in India eagerly wait for policies such as recognition of their marriage, prevention of discrimination, and other welfare policies in the sector of health, education, and job opportunities. India also abstained from voting on 7TH July, 2022 in a favour of resolution passed at the UN Human Rights Council to extend the mandate of an Independent expert to monitor or check the human rights violations against the LGBT Community. The same spurn has also been forwarded by India in 2016 when the mandate of an independent expert was introduced and again in 2019 to extend the mandate whilst voting at UN Human Rights Council.

In light of the same, it is pertinent to discern the existence of the LGBT Community/rights beyond India and under international law:

LGBT Rights Beyond India And Under The Internation Law

After the establishment of the League of Nations, 1919 a few countries started to recognise the rights of LGBT people under the auspices of evolving then International Law, as a consequence of the approval of international conventions and accords among the newly formed states. Since the foundation of the UN Charter in 1945, a range of standards, protocols, and practices have been devised to guarantee that sex minorities receive support as soon as feasible:

The charter[2] of the UN provides that every member state should ensure equal rights to all individuals without any discrimination and laid down several obligations for the member states. The United Nations is an international organization with 193 member nations. Nevertheless, the UN continues to be the primary mechanism for preserving and taking steps for the global recognition of the rights of LGBT people at international the level. The UN has a plethora of diverse entities and methods that have evolved as a result of its own nature and international conventions that governments signed up and agreed to be bound by:
  1. UNDHR[3]
    The United Nations Declaration on Human Rights was adopted in 1948 by the General Assembly of the UN which claims every human being is entitled to equal access to rights and freedom without any discrimination of any type[4]. This document was adopted when most Nations classified homosexuality as a psychological disorder and unlawful conduct, and also many spiritual organisations saw it as the highest sin. However, it is only a declaration and is not obligatory on U.N.

    Member states as international conventions. Nevertheless, since its ideas have been adopted into practice by numerous organisations, tribunals, and nations, the Universal Declaration may be enforceable as jus-cogens. Article 29 of the declaration contains the text that states may modify the various rights of the LGBT Community and article 30 prevents the states to exploit article 29 to deprive the rights of the LGBT Community. Each article of the declaration insists the member states to prevent any kind of discrimination against the members of the society.
  2. European Convention[5]
    The Convention guarantees constitutional treatment to all individuals, and the transgender population is likewise regarded equally in these norms. Equality under the law provides equitable rights and serves as a deterrent to bias and inhumane treatment of transgender persons. In a series of decisions involving the acknowledgment of reassignment sex, the Court of the European Union of Individual Rights held that: Nevertheless, the essence of the convention is to safeguard selfhood and dignity. It was the first authority[6] to lay down the rules that discrimination based on "sexual orientation" breaches the fundamental of appreciating basic rights, and it also has the broadest precedence in addressing the issue of the LGBT Community.
  3. ICCPR[7]
    This covenant plays the most important rights to ensure the civil and political rights of all human beings without any discrimination, therefore preventing discrimination on any grounds including sexual orientation. Article 6 of the covenant provides that every person has a natural right to life on the other side article 7 prohibits any inhuman treatment of the individuals i.e., all should be treated humanely, it imposes a duty on the member states to not mistreat the LGBT people on any ground[8].

    The right to privacy, initially mentioned in the Declaration, is expanded in Article 17 of the ICCPR, which protects individuals' own decisions on how to display their sexuality. Stronger enforcement of Article 26 of the ICCPR, which protects the right to equal protection under the law stipulated by the ICCPR, will also help LGBT populations.

    Nevertheless, the recommendation of the Covenant, member states have yet to enact suitable legislation which can function as a comprehensive law to ensure rights and freedom to the LGBT Community. The ICCPR's most fundamental flaw is that it only asks States to take steps toward the Covenant's goal and purpose, rather than mandating suitable and efficient measures.
  4. Yogyakarta Principles, 2006 [9]
    These principles were adopted in the experts meeting held in Yogyakarta in Indonesia, 2006. The principles enshrined under it consist of a wide range of rights regarding LGBT people and address the issues of them. These principles provide for the obligations of the states to promote and protect human rights, especially of LGBT people.

    Denmark, in 1989 became the first country that legally recognised same-sex marriage, which was followed by "Norway, Sweden, and Iceland".

    LGBT people's rights diverge from country to country. In some countries, same-sex marriage is legally recognized whereas in others it is not. On the other hand, countries are there which also criminalised homosexuality and enacted anti-sodomy laws.
In 2003, the US Supreme Court in the case (Lawrence v. Texas) by a 6:3 majority held that laws which penalised consensual sexual activity between same-sex couples are unconstitutional as it violates the IV amendment of the US Constitution by keeping in mind the essence of individual choice/existence[10]. It laid down a watershed moment as till this decision homosexuality was penalised in the majority states of the USA. In another significant case Obergefell vs Hodges, 576 U.S. 644 (2015) the US Supreme Court obliged all the fifty member states to legalise same-sex marriages.

The First act i.e. The Buggery Act 1533 was passed during the reign of Henry VII to prosecute homosexuals and intended to outlaw sodomy out of Britain. Later supplemental codes and enactment were also brought to penalise homosexuality. It was continued till a report known as Wolfenden Report on homosexuality offences was published by the Departmental Committee.

The report recommended that homosexuality between the consenting couple should not be considered an offence. But the Government took a decade to adopt the recommendation of the Wolfenden Report and allowed consensual homosexuality between adults vide the Sexual Offence Act 1967. In furtherance of the same in 2004 same-sex couples were also allowed to legalise their marriage vide Civil Partnership Act 2004 and another paradigm is the "The Equality Index Act 2010" which prohibits discrimination/harassment against LGBT people in the workplace.

Being a part of the British Empire the Australian states adopted anti-sodomy laws and in many jurisdictions of Australia, the death penalty was provided for consensual homosexuality. Decriminalisation of the same began in 1973 when then Prime Minister John Gorton passed a motion suggesting the decriminalisation of homosexuality.

Thereafter, South Australia became the first state to repeal the anti-sodomy law, and over a year the majority of Australian states moved towards the decriminalisation of homosexuality. In the case then, Toonen vs Australia (CCPR/C/50/D/488/1992) was brought before the UN Human Rights Committee since Tasmania's Government persistently abstained to repeal the Anti-sodomy laws.

The UN Committee categorically held that such laws violate the principles of ICCPR. In the furtherance of the same, Tasmania Government struck down the anti-sodomy laws. In 2017 the Australian Government also legalised same-sex marriage vide Marriage Amendment (Definition and Religious Freedom Act 2017).

According to the report world review by population 2021:
Countries in which homosexuality is an offence[11]:
Saudi Arabia, Yemen, Somalia, Sudan, Nigeria, Iran, Brunei, Afghanistan, Qatar, Pakistan

In many Islamic countries, Homosexuality is still punishable by death[12].

Countries that are safest for the living of LGBT people[13].

The Netherlands legalised "same-sex marriage" in 2001. Below given are the countries which are assumed to be safest for LGBT people:

Sweden, Canada, Norway, Portugal, Belgium, the United Kingdom, France, Iceland, and Spain.

Following countries so far allowed same-sex marriage (legally recognised):
According to a report published by Statista Research Department in 2021, almost 71 countries are there in which homosexuality is punishable[14]. Another report of it which was published recently shows that currently, 32 countries have legally recognised same-sex marriage[15].

"State shall not deny any person equality before the law or equal protection of the laws within the territory of India[16]".

The First Law Commission which was chaired by Lord Macaulay proposed the contentious law against homosexuality when establishing the Indian Penal Code 149 years ago. The draconian law section 377[17] was enacted by the colonial government at the time the of British era.

However, it took decades to scrap this draconian law. Finally, in 2018 SC whilst hearing a case[18] in which the constitutionality of section 377 of IPC was challenged held unanimously by 5-0 that "Homosexuals have a fundamental right to live with dignity, and the LGBT community is entitled to equal constitutional protection and to be recognised as humans without any shame connected to them."

Many petitions are still pending in Indian courts seeking legal status for the marriage of same-sex couples. Many times courts also provided protection to same-sex couples. People belonging to LGBT people are eagerly waiting for the legal recognition of their marriage so that they can also avail of basic rights that are availed by other couples.

The recent development shows that society's attitude getting changing and state governments also taking favourable steps for the LGBT Community as:
  • Karnataka is the first state which provides reservation in employment for the transgender Community[19].
  • In Noida a metro station is named as a pride station making it inclusive of transgender people[20].
  • In 2017, the directions were issued by Centre Government Ministry issued instructions to the states to allow transgender people to use the toilet of their choice.[21]
  • In a prominent Judgment the Madras High court has issued guidelines to protect LGBT people from police harassment[22].

Recently two bills have been tabled in the parliament i.e. The Special marriage (amendment), 2022 this bill proposed to amend section 4A of the act to allow same-sex marriage and also to amend sections 15, 22, 23, and 27 of the act to remove the word husband and wife from these sections, to place the word spouse in the place of the same. However, this bill is not comprehensive as it failed to address the issue of adoption and inheritance specifically.

Another bill was the "Equal Protection of Rights for LGBT Persons Bill 2021" Community though it is the first charter for the welfare of the LGBT Community as it includes many rights i.e., relating to abortion, guardianship, and surrogacy, and further includes a provision to prevent discrimination, harassment and bullying at the workplace, home and in the education institutions. Both of these bills were private bill as it was not introduced by any Minister and the bills were not set into motion by the parliament.

In 2018 a bill was introduced to amend the Armed forces Act to allow LGBT people to join the forces but the same has lapsed[23]. Even no comprehensive data on public opinion on LGBT is available in India, therefore, comprehensive research requires to be done on the same which might help the legislature to enact a comprehensive welfare policy for the LGBT Community.

Recently, filed petitions before the Supreme Court for the recognition of same-sex marriage and which also challenged the Hindu Marriage Act, Foreign Marriage Act, and Special Marriage act so far they do not recognise same-sex marriage raises new hope for the rights of the LGBT Community, and in a recent development the Supreme Court referred the petitions seeking recognition of same-sex marriage to the Constitution bench considering that the issue is of seminal importance[24].

The conundrum which the LGBT Community is dealing with can be well encapsulated as:

"The repealing of section 377 which criminalises sexual acts between same-sex couples, nevertheless created hope for the LGBT people but in the absence of the basic right to marry it is of no use. The same-sex couple is still deprived of any social and legal recognition.

While the Supreme Court's decriminalization of homosexuality is an ahead step, now legislature should come up with a law to acknowledge homosexual marriages in order to provide LGBTs with the recognition of their marriage and rights same as those of another gender (heterosexual couples). Currently, marriage rules cause prejudice towards LGBT people since they only consider marriage between heterosexuals[25].

The use of words like "bridegroom," "bride," "male," and "female"[26] in these statutes leaves no place for LGBT people to get any matrimonial rights. Article 44 of the Constitution imposes an obligation upon the state to achieve the "uniform civil code" which governs personal rights irrespective of religion, which is yet not achieved. Therefore, A Uniform Civil Code with a common gender-neutral concept of marriage, which would grant LGBTs marital rights".

Constitutions are more than just government agreements; they are also ethical writings that spell out a Community's common commitment to defined values. It's crucial to remember that principles enshrined in the constitution are the values that justify why we create a constitution for ourselves.

  1. ART. 1, United Nation Declaration on Human Rights, 1948
  2. Drafted in San Francisco on June 6th, 1945.
  3. United Nation Declaration on Human Rights, adopted on 10 Dec. 1948 by General Assembly.
  4. Ibid.
  5. European Convention on Human Rights, 1950.
  6. European Human Rights Courts.
  7. "The United Nations International Covenant on Civil and Political Rights", Adopted 16 Dec. 1966 by General Assembly Resolution 2200A XXI.
  8. The encyclopaedia of Gay, Lesbian, Bisexual Transgender, available at: (Visited 5 May 2022).
  9. Yogyakarta Principles, 2006, an outcome of international meeting of experts at Yogyakarta, Indonesia.
  10. Lawrence v. Texas, 539 U.S. 55 2003.
  11. LGBT rights by population, world review by population, 2021
  12. Countries where being gay is legally punishable by death, Hristina Byrnes 24/7 Wall Street, USA TODAY. Published 10 a.m. June 14, 2019.
  13. Ibid
  14. Nov 9. 2021.
  15. Dec 9, 2022.
  16. Art. 14, The Constitution of India, 1950.
  17. Indian Penal Code, 1860.
  18. Navtej Singh Johar v Union of India, 2019, 3 SCC 345, Supreme court of India.
  19. K Venkatesan, "Karnataka Becomes the First State to Reserve Jobs for Transgender Persons", THEWIRE, JULY 22, 2021, available at (last visited on July 29, 2021)
  20. Ashna Butani, "At 'pride' Noida Metro station, transgender find welcoming workplace", THE INDIANEXPRESS, Nov. 3, 2020
  21. Sharma Kuheena, "Sanitation ministry allows transgender people use public toilets, wants them recognised as equal citizens, India Today. Visited on 20 May, 2022
  22. S. Sushama and another v Commissioner of Police and others, Madras HC, W.P.No. 7284 of 2021
  23. Simran Bhasker, No space for Homosexuality in Indian Army, a comparative study, available at, visited on 22 May 2022.
  24. Supriyo v. UOI WP no. 1011/2022 PIL.
  25. The Hindu Marriage Act, 1955 s.5 (iii)
  26. Special Marriage Act, 1954, s.4(c)

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