India

The environment for lesbian, bisexual, transgender, and intersex (LBTI) people has been evolving for many years now; they face significant legal and societal challenges. In September 2018, through a landmark decision in Navtej Johar v. Union of India, the Supreme Court decriminalised same-sex conduct by striking down Section 377 of the Indian Penal Code.

Same-sex marriages and civil unions are not legally recognised in India. In the NALSA v. Union of India in April 2014, the Supreme Court recognised that the rights and freedoms of transgender people are protected by the Constitution.

Although the Transgender Persons (Protection of Rights) Act 2019 includes the definition of gender non-confirming identities, it wrongly defines intersex people within the definition of “transgender”, and does not recognise the right to self-identify.

To date, the explicit protection against treatment and surgery on intersex children without their consent has only been introduced in the state of Tamil Nadu.

The last State party report was submitted in 2005 and contained no LBTI specific information. India, then, sent a follow up report (a report on exceptional basis) on the 2002 Gujarat incident and its impact on women, but this did not contain any information on LBTI people affected.

The CEDAW Committee provided India with a SOGIESC-specific recommendation at the 58th Session. The List of Issues did not ask any pertinent questions related to LBTI people.

The Committee indicated its concern about the criminalisation of consensual same-sex relationships between adults according to the ruling of the Suresh Kumar Koushal v. Naz Foundation case. This case was overturned by the Supreme Court in the Navtej Johar case in 2018.

The Committee urged the State party to make efforts to eliminate any criminalisation of consensual same-sex relationships between adults.

Other general recommendations by the Committee that can apply to LBTI people include:

(a) to adopt comprehensive anti-discrimination legislation that prohibits discrimination on all grounds referred to in General Recommendation No. 28;

(b) to protect women from multiple or intersectional forms of discrimination;

(c) to implement the recommendations of the Justice Verma Committee regarding violence against women, including women from the marginalised communities;

(b) to ensure more equal and inclusive access to sexual and reproduction health and rights.