Section 377 of the IPC

LGBTQ+ Community

Hello, Friend Welcome to our official website. This article mainly discussed the LGBTQ+community.

By the creativity of the god, there are two sex in humans (1) Male and (2) female. But there are some types in gender included male and female and others are Lesbian, Gay, Bisexual, Transgender and Queer Which are shortly known as LGBTQ.

The first thing in people minds is; what is the difference between Sex and Gender?

So Sex is based on biology, chromosomes, anatomy and hormones. But a person’s gender identifies the inner sense of being male, female or both, which doesn’t always match their biology.

In another way, sex refers to the biological difference between males and females. So that sex is clearly identified but what about the gender? So let’s go ahead,

Meaning and definition of the Transgender.

According The World Health Organization defines gender as;

  • ‘’Gender refers to the socially constructed characteristics of women and men, such as norms, roles, and relationships of and between groups of women and men. It varies from society to society and can be changed.”

Gender is something in the inner sense of the body which may be hard to identify by society. So let’s go ahead towards the topic. There are types of Gender like Lesbian, Gay, Bisexual, Transgender and Queer which are shortly known as the LGBTQ+. Now it is the LGBTQ+ community.

In short, way if the female is sexually attracted to another female homosexual known as Lesbian’. if the male is sexually attracted to another male homosexual known as Gay’.

The further thing was Bisexual. Bisexual is a sexual attraction or sexual behaviour towards both males and females, or also be defined as sexual attraction to people of any sex or gender.

Transgender,  defined in section 2(k) of The TRANSGENDER PERSONS (PROTECTION OF RIGHTS) Act, 2019 are as under;

  • “Transgender person”

    means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations, genderqueer and person having such socio-cultural identities as Kinner, hijra, Aravani and Jogta.

  • In an easy way when the gender does not match with the gender assigned to that person at Birth is all Persson called transgender.

Example; Trans-man, Trans-woman. Kinner, Hijra, Aravani, Jogta.

Queermay refer to anyone who is non-heterosexual or non –cisgender, instead of exclusively to people who are lesbian, gay, bisexual, or transgender. An easy way the people whose identity is questioning their sexual identity. And this plus+ is represented other sexual identities including pansexual, asexual and omnisexual.

This community have a different sexual orientation than the other male or female person where sexual orientation includes so many things like sexual fantasies, sexual attraction, sexual behaviour and lifestyle and social preference and self-identification.

Problems of community and General Justice to them

India is a sociology country. Most of the people of the country have a sociology mindset. So the LGBTQ+ community face many problems cause of their heterosexuality and homosexuality. Indian society never accepted the cause of their sexual orientation. So they face the problem almost every day. People of the country are discriminated against, harass and threatened by violence to this community due to their sexual orientation. They face inequality and violence in every place around the world. Our society makes their life difficult and realises them that they are different from others. Cause of that sometimes people of this community hide their gender from maintaining their reputation and image in society.

Let’ see this,

→ LGBTQ+ community also ragging and harassed by students into colleagues and school. Some parents teach their children to avoid meeting with them and don’t wonder with them. It has been heard that Some schools and colleagues don’t give admission to them and if give admission to them after some months or years dropping them and sometimes they by their own self quitting schools and colleagues due to the ragging and harassment of people in the school.

  • In the business and any private company also avoiding them. They could not be given the job but also make fun of their gender and realize them that from what community you belong. Because of that, they are ashamed of their gender.
  • Sometimes their parents also extract them due to maintaining their reputation in society. their parents did not accept them what do we hope from Indian society?
  • So that they are homeless and So that facing with this situation unemployment, and poverty. Decreased their confidence, quite their talent, career and bright future. Not get good reputation image in the society.

• As a result they got depressed and sometimes they commit suicide.

  • Because of that, they face many problems. In the name of reputation people of India abolishing the right of this community.

So what about the justice of this community?

Where is gender justice? T

  • here are human beings and citizens of the most reputed democratic country  They have also fundamental rights governed under the constitution of India. So, let’s go ahead towards justice and rights.

→ There are so many petitions filed by social reformers for the protection of humans as well as a fundamental right of the said person in the constitutional court.

  • Before, discussion regarding their right, we have referred to the useful case law of the Hon’ble Apex Court are as under.

Landmark Case Laws

National Legal Service Authority Vs Union of India

  • In this Landmark Judgement given the supreme court of India which declare that transgender means all the people of the LGBTQ+ Community considered as the ‘third gender’.and also says that It was the right which is given by the constitution to the LGBTQ+ community and the right to self -identification given to the third party given to the third Gender by Supreme court.
  • Further, Court says that there is a reservation of this community for admissions to educational institutions and Jobs because transgender people were treated as socially and economically backward classes. It means it implies the right to seduction and the right to employment.

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 TARIKHA BANU Vs. Health and Family Welfare Department

• In this case the appellant was Trans-women. This woman was applied for a UG degree in Sindh medicine and surgery. She applied under the SC and Transgender category.

• Appellant admission core fell under the qualification score of 50% by a small margin. Consequently, the appellant does not qualify for the BSMS merit list and her application was rejected.

→ It Considered that the qualification score of 50% was only applicable to men and women so that Transgender was not eligible. Its cause to discrimination, So Hon’ble High Court Held that Transgender is eligible to this criteria. It means a qualification score of 50%  is also applicable to the third gender.

  • Hon’ble Constitutional court lying that the third gender has the right to protection against Discrimination and the Right to Education.

Suresh Kumar Kaushal and another vs Naz Foundation and Others

  • In this case, Honorable Apex Court held that targeting LGBTQ+ community members for their sexual preference violated their fundamental likes right to equality, right to freedom of expression and right to choice coupled with the right to dignity.

 Naz Foundation VS Government of NCT Delhi

  • In this case, the Hon’ble Dehli Constitutional Court considers that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by the constitution.

Navjet Singh Zohar Vs Union of India

  • In this case, a judgment was given by the Honorable Apex Court and this judgment become the landmark judgment of IPC section 377.
  • In this case, Honorable Apex Court considered that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex.

• The petition, filed by Navtej Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality,

→ that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.

LGBTQ+ Rights

In the above of all cited cases, The Hon’ble Apex court has considered the following the Rights of  LGBTQ+ in the express and implied manners.

  •  A Right to Self–identification
  • Right to Education
  • Right to take Employment
  • A Right to Privacy
  • Right to Liberality  
  • A Right to Protections against Discrimination
  • Right to reservation                  
  • A Right to Equality
  • Right to freedom of expression
  • Right to choice coupled with the right to dignity


In the case of the Navjet Singh johar vs Union of India, Honorable Apex Court removed section 377 of IPC,1860 and gave justice to the LGBTQ+ Community. So that they enjoy all of the rights as well as fundamental rights of the Constitution of India independently.

After the removal of section 377 of IPC,1860 the bill of The TRANSGENDER PERSONS (PROTRACTION OF RIGHTS) Bill, 2016 approved by the President, and become the act as THE TRANSGENDER PERSONS (PROTRACTION OF RIGHTS) Act, 2019 and come into force at 5th of December, 2019.

This act mainly comes into the force to protect the rights of the LGBTQ+ community. The legislature has enacted the law for the welfare of the transgender person and provided the following provision in  THE TRANSGENDER PERSONS (PROTRACTION OF RIGHTS) Act, 2019 regarding the right of the transgender which is as under;

According to Sec (3) of the Transgender Persons Protection of Rights act, 2019 →→ No person → Establishment → discrimination → a transgender person → on the following grounds;

The denial, discontinuation or unfair treatment is prohibited by this section let’s see it.

In educational establishments

In relation to employment or occupation

termination from →employment or occupation;

Enjoyment or use of

→any goods →Accommodation →service →facility →benefit →privilege →opportunity

dedicated to the use of the general public

regard to the right of movement

regard to the right to reside, purchase, rent, or otherwise occupy any property;

he opportunity to stand for or hold public or private office

Government or private establishment in whose care or custody a transgender person may be.

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Section 4

  • According to section 4 (1) says that Transgender person has the right to recognition as a third gender.
  • According to section 4(2) says that Transgender person has the right to self-perceived gender identity.

Here section 12(2) also talks about the rights of the transgender,

Right to reside

in the household where parent/immediate family members reside

Right not to be excluded

from such household or any part.

Right to enjoy and use

the facilities of such household

in a non-discriminatory manner

  • If the Rights are violated by someone so that there are provisions of the punishment also in the TG Act 2019.


According to all of the judgment of the cases ration led down by the Hon’ble Apex Court as well as the Hon’ble High Court, it appears that LGBTQ+ are covered under the head of the third gender and also have the same rights as enjoyed by the other sex in form of Human right as well as fundamental right governed under the Human Right Act and Indian Constitution of India.

Now the days, with help of amendments and enactment in the law they have the right to take justice and enjoy their rights independently. The legislature can amend and frame the law but how to change the mindset of people in the society to accept them!

One man rightly says that God makes the world for all human beings and makes no difference between humans, but human is making a difference between gender, even though all human beings have the same blood in form of colour and group!

“The Shelter of the night is not the end of the journey”

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