Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. This prohibition applies to acts by the State and extends to various aspects of life, including access to public places as well as the use of public facilities. Discrimination, however, extends far beyond both the state’s actions and direct acts of intolerance. For the LGBTQIA+ community in India, it extends to every sphere of an ordinary life—from simple needs such as opening a joint bank account with a partner to having dignified and harassment-free experiences in classrooms and workplaces.
A particularly concerning gap is that the constitutional guarantee of non-discrimination does not cover private acts of discrimination, even though a significant amount of discrimination against the LGBTQIA+ community takes place in the private sphere. According to a 2018 study on the status of human rights of transgender persons in India conducted by the National Human Rights Commission, 98 percent of transgender individuals reported facing social discrimination from peers, neighbours, and families, while more than 92 percent reported discrimination in the workplace. Approximately 62 percent also experienced ridicule and verbal abuse in educational institutions. Further, in pan-India consultations conducted by Vidhi Centre for Legal Policy and Keshav Suri Foundation (KSF), a majority of queer respondents shared anecdotal evidence of being rejected by landlords and facing harassment when looking for housing.
In addition, there are instances of indirect discrimination that may not seem targeted at the community but have a discriminatory effect regardless. Take adoption laws, for example. The guidelines on adoption prohibit unmarried couples from adopting jointly. Since LGBTQIA+ couples are not eligible to marry under India’s marriage laws, these guidelines disproportionately affect them.
India’s laws also fail to address historical disadvantages faced by the community. Access to basic goods and services such as banking, finance, housing, healthcare, employment and education becomes severely limited. This discrimination becomes more pronounced for sections of the LGBTQIA+ community that have faced systemic exclusion, such as the transgender community. It is thus imperative for the law to not only prohibit discrimination but also put in place affirmative measures for their inclusion.
India needs comprehensive reforms
In 2022, several petitions were filed in the Supreme Court seeking legal recognition for same-sex marriages in India. The case, Supriyo vs Union of India, reached a verdict in October 2023. Although the verdict denied marriage equality to certain sections of the queer community, it acknowledged the discrimination that queer persons face because of their gender identity or sexual orientation, as well as the non-recognition of queer relationships. Consequently, it directed the state to undertake measures to redress such discrimination through appropriate law and policy reform measures.
Following the verdict, the Union Government set up a high-powered committee (HPC) chaired by the union cabinet secretary, to draft recommendations towards queer inclusion. The HPC carried out a closed-door consultation in New Delhi with a few queer civil society organisations and lawyers, and subsequently invited inputs from the public via email.
In light of this development, Vidhi in collaboration with the KSF submitted comprehensive recommendations (‘Supriyo recommendations’) to the HPC on how India’s laws and policies can be made queer-inclusive. These recommendations were informed by consultations with approximately 150 stakeholders, including members of the queer community, civil society, lawyers, activists, academics, and other interested stakeholders.
The first critical measure to address discrimination, identified in the Supriyo recommendations, is the introduction of a comprehensive anti-discrimination law. The need for such a law has been voiced by several quarters, with a private member’s bill on the issue being introduced in 2016 in the Rajya Sabha. However, the bill was not taken up for deliberation and lapsed.
For an anti-discrimination law to be effective, it must have the following features:
1. It must prohibit discrimination by both state and non-state actors, including private parties.
2. It must prohibit discrimination on all grounds protected under Article 15, such as religion, race, caste, sex and place of birth, as well as grounds recognised in judgements and other existing laws. This would include sexual orientation, gender identity, disability status, marital status, pregnancy, mental health status, and HIV/AIDS-related grounds.
3. It must define discrimination in a comprehensive manner to cover direct, indirect, and intersectional discrimination, as well as discrimination based on stereotyping and that by association.
4. Finally, such a law must be strongly enforced through a robust mechanism. This can be ensured by provision of an independent authority armed with sufficient powers, including the power to receive complaints, adjudicate violations, and impose effective penalties.
Voiced vociferously by transgender community, the second measure to address discrimination is the reform of the Transgender Persons (Protection of Rights) Act, 2019. Two critical areas of reform are required:
- Reservation: Horizontal reservations must be provided in public education and employment to correct for the historical discrimination faced by the community. A direction to provide reservations has been issued by the Supreme Court in NALSA vs Union of India, where it recognised the fundamental rights of transgender persons. However, this is not reflected in the 2019 act.
- Grievance redressal: The 2019 act does not provide for effective grievance redressal in case of violations, specifically private discrimination. The authorities under this act, the National Council for Transgender Persons and the complaints officer, have not been vested with the power to adjudicate violations and non-compliance. Consequently, the 2019 act must be amended to designate special courts or tribunals empowered to hear and adjudicate violations.
Sectoral reforms can help
In addition to general measures, sector-specific measures can play an important role in ensuring the inclusion of the queer community.
1. Financial services
Financial services broadly include banking services, credit, insurance, and pension. Access to formal finance is critical for one’s livelihood and socio-economic mobility. Although there is no pre-requisite for a marital or familial relationship for opening a joint bank account as per India’s banking policies, such conditions are often present in the private policies of banks. Similar eligibility criteria are also present in joint access to credit and insurance, and nominations for the purpose of pension. In the absence of marriage equality, persons in queer relationships cannot jointly access financial services.
An effective measure to address this issue would be removing marital and familial ties as a prerequisite for joint access. Across each of these sectors, appropriate regulators, such as the Reserve Bank of India and the Insurance Regulatory and Development Authority, can clarify that self-declaration of intent to jointly access the relevant financial service should be sufficient. Further, informed safeguards can be introduced to protect against misuse.
Second, beyond joint access, it is critical to take affirmative measures to include queer persons into the formal financial sector. This particularly holds for transgender persons who have been systematically excluded from formal finance. A study by the National Human Rights Commission revealed that 45 percent of transgender persons surveyed did not have bank accounts, and 31 percent did not have any money in their accounts. Measures to ensure financial inclusion can include relaxing the eligibility criteria, devising trans-inclusive micro-credit schemes, priority sector lending to and earmarking of credit for transgender persons, and ensuring that the collection of gender-disaggregated data designed for financial inclusion of women also includes transgender persons.
2. Employment
Labour and employment policies need to be reshaped to focus on equality, recognising queer and transgender people as workers, caregivers, and individuals who deserve social security. The three labour codes passed in 2019–20 should remove gender-specific terms such as ‘husband’, ‘wife’, and ‘commissioning mother’. These should be replaced with gender-inclusive language that allows employees to nominate partners in civil unions or other family structures for work-related benefits. Concurrently, the Maternity Benefit Act, 1961, and parental leave provisions in the Social Security Code, 2020, must be reframed as inclusive parental-benefit regimes, equalising leave across childbirth, adoption, and surrogacy, and adopting the Supreme Court’s language of the ‘pregnant person’ to encompass birth givers of all gender identities. Equality of opportunity further demands an explicit statutory prohibition of discrimination, hostile environment, or harassment based on sexual orientation or gender identity across public and private workplaces.
To ensure that such protections are effective, all workplaces should be required to set up Equal Opportunity Committees, which are grievance redressal bodies. In addition, employers must conduct regular diversity audits in the organisation to assess inclusion and conduct mandatory training programmes to sensitise employees on sexual orientation and gender identity.
3. Education
Schools and other formal education spaces are meant to provide a safe environment for learning and growth. However, these spaces can very often become sites of severe discrimination and harassment.
The law must therefore take effective steps to prohibit discriminatory treatment and prevent harassment. Corporal punishment in schools must be barred by law. Facilities such as hostels and washrooms must guarantee access in a safe and non-discriminatory manner. For instance, the California Education Code, 2024, provides that a pupil will be permitted to participate in sex-segregated school programmes and activities, including athletic teams and competitions, and use facilities in accordance with their gender identity, regardless of the gender listed on their school records.
Efforts must be made to ensure inclusivity in various aspects of education, such as the educational curriculum, co-curricular activities, uniforms, and mental and physical health establishments. Anti-ragging laws and policies must include discriminatory or harassing conduct against LGBTQIA+ students. Horizontal reservation must also be provided to transgender students.
4. Housing
The legal landscape on housing is highly fragmented and includes a range of laws on tenancy, rent control, cooperative housing, and central and state housing schemes. Certain changes can be made to existing laws to make them more inclusive. Tenancy laws across states must be amended to ensure that members of the LGBTQIA+ community are not discriminated against while looking for rented accommodation. Similarly, laws governing cooperative housing societies, such as Resident Welfare Associations (RWAs), must require adequate representation from the community and prohibit additional documentation or other requirements for availing of housing in the society.
The Transgender Persons (Protection of Rights) Act, 2019, must be amended and its approach towards the residence rights of transgender persons should be rehauled. Government housing schemes must explicitly include queer families and individuals. In addition, the government must provide queer-friendly shelter homes and assisted living facilities, as well as safe and accessible Garima Grehas.
A clear, wide-ranging anti-discrimination law, a stronger version of the 2019 act, and targeted rules for key sectors can place both government and private actors under the same duty to treat queer people fairly. Laws alone, however, will not suffice. Independent equality bodies must be empowered to hear complaints and order remedies, regular audits must track progress, and public funds must support inclusion programmes. Together, these measures can turn constitutional rights into everyday freedom and dignity for LGBTQIA+ persons.
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Know more
- Read this article to learn more about how India can make inclusive family laws.
- Read this policy brief to learn more about how India’s queer laws can change.
