Legal Recognition and Institutional Violence: LGBTQI+ Rights in India

When we think about violence, we often picture overt physical harm. But some of the most enduring and systematic harm against LGBTQI+ communities has been encoded in law – laws that dictate who is “legitimate,” who gets to exist publicly, and who is denied basic rights. In India, the relationship between law and LGBTQI+ lives has been one of the most contested sites of struggle and transformation in recent decades. From colonial-era criminal statutes to landmark Supreme Court judgments, the legal framework has alternated between being a tool of oppression and an instrument of recognition. Understanding this relationship requires examining not just what the law says, but what it does – and who it protects.

Understanding institutional violence through law 🔗

Institutional violence refers to the harm inflicted on individuals or communities through the structures, rules, and norms of institutions – including governments, courts, hospitals, and educational systems. Unlike interpersonal violence, institutional violence is often invisible and normalized precisely because it operates through “official” channels. When a law criminalizes your intimate relationships, or when the state refuses to recognize your identity, the harm done is real even if no one throws a punch.

For LGBTQI+ communities in India, the law has historically functioned as one of the most powerful mechanisms of institutional violence. Legal frameworks have shaped who can access healthcare without stigma, who can seek justice when harassed, and who can live openly without fear of arrest. The absence of legal protection is not neutral – it actively enables other forms of violence by signaling that certain lives are less deserving of protection. As scholars in gender studies argue, law does not merely reflect social norms; it produces them. When the state criminalizes queer intimacy or refuses to recognize gender diversity, it sends a message about whose humanity counts, shaping everything from police behavior to family dynamics to medical practice.

Legal recognition of non-binary identities: the 2014 NALSA judgment 🔗

One of the most significant moments in the history of LGBTQI+ rights in India came on April 15, 2014, when the Supreme Court delivered its landmark ruling in National Legal Services Authority (NALSA) v. Union of India. The case was brought by NALSA, a statutory body, along with transgender activists including Laxmi Narayan Tripathi, seeking legal recognition for people who fall outside the male-female binary.

The Court’s ruling was historic in scope. It legally recognized the “third gender” – an umbrella term covering transgender persons – and accorded them the right to freedom of expression and privacy. Critically, the judgment established that gender identity is not about biology but about self-perception. The Court clarified that gender identity refers to “an innate perception of one’s gender,” and held that no third gender person should be subjected to any medical examination or biological test that would invade their right to privacy.

The constitutional grounding of the judgment was robust. The Court recognized transgender persons as a “third gender” under the Indian Constitution and established the right to self-identification of gender identity as a fundamental right, holding that discrimination against transgender individuals violates constitutional guarantees of equality and non-discrimination. This meant that the right to equality under Article 14 and freedom of expression under Article 19(1)(a) – framed in gender-neutral terms – extend to transgender persons.

What self-identified gender recognition means in practice 🔗

The concept of self-identified gender recognition – the principle that a person’s own declaration of their gender should be legally sufficient, without requiring surgery or medical certification – was central to the NALSA ruling. Before this judgment, transgender persons in India existed in a legal gray zone, excluded from protections and welfare systems that were structured around a binary understanding of sex.

The Court directed the government to make provisions for third gender recognition across all documents, recognize transgender persons as a “socially and educationally backward class” entitled to reservations in educational institutions and public employment, and develop welfare schemes for the community. Grounding its reasoning in the rights to equality, non-discrimination, freedom of expression and dignity, the Court directed the government to grant legal recognition of self-identified gender and take specific steps to ensure equality and non-discrimination for transgender persons.

However, the gap between legal declaration and real-world implementation has remained stark. Even two years after the NALSA decision, Indian Central and state governments had not implemented some of the core directions of the judgment, and the basic process of accessing legal gender recognition remained unclear, forcing individuals to navigate significant bureaucratic hurdles. The eventual legislative response – the Transgender Persons (Protection of Rights) Act, 2019 – was widely criticized by activists for actually narrowing the rights the Court had granted. The Act does not have any provision for self-determination of gender, fails to address transgender reservations despite the NALSA judgment, and treats transgender persons as victims rather than as empowered subjects with rights.

The long shadow of Section 377 🔗

No discussion of law and LGBTQI+ rights in India is complete without examining Section 377 of the Indian Penal Code – a provision introduced under British colonial rule in 1861 that criminalized “carnal intercourse against the order of nature.” Though the law did not explicitly name homosexuality, it was used for over a century as a tool to police and persecute queer people in India, enabling harassment, blackmail, and prosecution.

The journey to striking down Section 377 was neither quick nor linear. In 2009, the Delhi High Court in Naz Foundation v. Government of NCT of Delhi ruled that punishing sexual activity between two consenting adults under Section 377 violates the right to equality, privacy, and personal liberty. This decision was appealed before the Supreme Court, and in 2013, the Court reversed the Naz verdict in Suresh Kumar Koushal v. Naz Foundation, holding that only Parliament could decriminalize homosexuality. The 2013 reversal was a devastating setback, widely condemned by human rights organizations globally. The Supreme Court’s reasoning – which referred to LGBTQI+ people as a “minuscule minority” whose rights did not warrant judicial protection – exemplified how institutional violence can operate through legal language itself.

Navtej Singh Johar: the decriminalization ruling of 2018 🔗

The legal battle resumed when five individuals from the LGBTQI+ community – dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, and hoteliers Aman Nath and Ayesha Kapur – filed a fresh writ petition challenging Section 377. On September 6, 2018, a five-judge constitutional bench of the Supreme Court unanimously ruled in Navtej Singh Johar v. Union of India that Section 377, insofar as it criminalized consensual sexual conduct between adults, was unconstitutional.

The court ruled that criminalizing “carnal intercourse” was “irrational, arbitrary and manifestly unconstitutional,” and held that LGBTQ people in India are entitled to all constitutional rights, including the liberties protected by the Constitution. The bench found that the provision violated Articles 14 (equality), 15 (non-discrimination), 19 (freedom of expression), and 21 (right to life and personal liberty).

The health consequences of Section 377’s long existence were also formally acknowledged. The Court confirmed that Section 377 forced consensual sex between adults into a realm of fear and shame, and that the LGBTQI community was forced to live a “closeted” life which seriously disadvantaged them when it came to equal access to healthcare facilities and health outcomes. The judgment also carried deep symbolic weight – Chief Justice Dipak Misra declared that history owed an apology to the LGBTQI+ community for the years of criminalization and stigma they had endured.

What decriminalization did and did not achieve 🔗

The 2018 ruling was celebrated globally and marked a genuine turning point. But it is important to understand its limits. Section 377 was only partially struck down – the provision continues to apply to non-consensual sexual activity against adults, sexual acts against minors, and bestiality. More significantly, decriminalization does not equal full equality. Same-sex relationships remained without legal recognition, and LGBTQI+ individuals still had no access to the rights and protections that come with legal marriage – joint property, adoption, inheritance, or insurance benefits.

Challenges with legal normativity: recognition that stops short of justice 🔗

The years following these landmark judgments have revealed a critical tension at the heart of legal recognition for LGBTQI+ communities: the law can grant formal rights while simultaneously reinforcing the very structures that produce marginalization. This is what scholars of gender and queer theory call legal normativity – the tendency of legal systems to extend rights only to those who conform to dominant social norms, while excluding or penalizing those who do not.

The October 2023 Supreme Court verdict on same-sex marriage made this tension painfully visible. The Indian Supreme Court rejected the legal recognition of same-sex marriage, blocking marriage equality for LGBTQ+ people and contending that the right to marry neither qualifies as a fundamental right under the Indian Constitution nor falls within the Supreme Court’s purview. The court – which had celebrated constitutional morality and dignity in 2018 – now deferred to Parliament and the government, which had argued during hearings that same-sex marriage reflected only “urban elitist views” and went against Indian religious values.

Activists and legal scholars pointed out the inconsistency. The refusal of the Indian legal system to honor same-sex marriage while calling for an end to societal violence and discriminatory behavior against the LGBTQ+ community is inherently contradictory. A person may no longer be criminalized for their sexual identity, but they remain a legal non-entity when it comes to forming a family, accessing welfare entitlements, or being protected under anti-discrimination law.

Critiques from queer theory and feminist scholarship 🔗

Several important critiques from queer theory and feminist scholarship challenge the uncritical celebration of legal milestones. A recurring argument is that the mainstream legal recognition of LGBTQI+ identities has often been structured around recognizing a narrow, assimilable version of queerness – one that is urban, middle-class, gender-conforming, and non-threatening to heteronormative family structures.

The NALSA judgment, while groundbreaking, is an example. The Court recognized “third gender” as a legal category, but this recognition was partly premised on aligning hijra and transgender identities with a visible, named community – essentially fitting non-binary identity into a manageable third box rather than fundamentally questioning the gender binary itself. The subsequent Transgender Persons Act of 2019, enacted as the legislative implementation of NALSA, drew fierce criticism precisely because it introduced a bureaucratic certification process that calls for a certificate of identity to be obtained from the District Magistrate based on a District Screening Committee’s recommendation – reinstating the gatekeeping the NALSA judgment had tried to dismantle.

Similarly, the framing of both the Section 377 decriminalization and the same-sex marriage debate has largely centered on rights already enjoyed by dominant groups – the right to privacy, the right to marry – rather than on the specific and intersecting forms of violence that queer people face: family rejection, forced institutionalization, caste-based discrimination, police brutality, and denial of employment. When the law offers inclusion primarily on the terms of the dominant, it risks absorbing some voices while leaving others further behind.

Scholars like Ruth Vanita have argued that nonheterosexual couples and individuals are being treated as second-class citizens under the constitution by being denied the right to marry, which is among the most fundamental rights one can imagine. But queer feminist critics go further – pointing out that marriage itself, as a legal institution, is structured to consolidate property, gender roles, and reproduction in ways that have historically been oppressive for women and marginalized communities. The demand for marriage equality is a legitimate rights claim, but it does not automatically translate into liberation for those at the intersections of caste, class, disability, or gender non-conformity.

The gap between law on paper and protection in practice 🔗

Institutional violence does not end when a discriminatory law is struck down. It persists through the structures that were built under that law and through the absence of new structures to replace it. India’s LGBTQI+ community, particularly transgender persons, continue to face significant barriers in healthcare, housing, employment, and education. The police – historically a primary agent of harassment under Section 377 – continue to use other provisions and informal pressure to police queer bodies and spaces. Families use courts to enforce conformity through conversion practices or forced marriages, and there are no comprehensive legal protections covering sexual orientation and gender identity in the workplace or housing sector.

The law is not the ceiling of justice – nor is it the floor. At its best, legal recognition opens up new possibilities and gives communities a language and a platform to demand more. At its worst, it offers symbolic victories while leaving material conditions unchanged. The LGBTQI+ rights movement in India has navigated this tension consistently, celebrating legal milestones while insisting that the work is far from done.

What do you think? When the law recognizes a marginalized identity but the state fails to implement those protections, does legal recognition still constitute progress – or does it provide a false sense of security? And who gets to define which LGBTQI+ rights are “legitimate” enough to be included within existing legal frameworks, and who gets left out of that process?

References

1. https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/
2. https://www.pmfias.com/nalsa-verdict-and-present-status-of-transgenders/
3. https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
4. https://www.pbs.org/newshour/world/indias-supreme-court-declines-to-legalize-same-sex-marriage-saying-its-up-to-parliament