DECONSTRUCTING THE BINARY: LEGAL RECOGNITION AND

THE DIVERSE EXPERIENCES OF LGBTQIA+ COMMUNITY

Authored by Niveditha V P, 4th Sem LLM

Student, Central University of Kerala, and
Sreehari A S, 4th Sem LLM Student,
Central University of Kerala.

Introduction

Young people often throw around labels like "alpha male" and "maverick woman," but what
about other individuals? These individuals, simply because of who they are, are forced to
live lives that don't feel authentic. They face a constant barrage of negativity, from outright
insults to more subtle jabs that mock their identity and make them feel like outsiders. Even
though our Constitution guarantees equality1, members of the LGBTQIA+ community often
experience discrimination despite the law's clear protection.

The LGBTQIA+ community is a vibrant tapestry woven from diverse sexual orientations and
gender identities. Lesbians, or women attracted to women, are a central thread 2. The term
"gay" is typically used for men attracted to men, but can also encompass lesbians or others
attracted to similar genders3. Bisexual individuals experience attraction to more than one
gender4. Transgender people have a gender identity that differs from their assigned sex at
birth5. "Queer" can be a specific identity itself, or an umbrella term for anyone who isn't
heterosexual or cisgender6. Intersex people are born with sex characteristics that defy the
strict binary of male or female 7. Asexual individuals experience little to no sexual attraction,

1 I NDIA CONST. art. 14.

2 Samuel Osborne, Women Are Never Straight - They Are Either Gay or Bisexual, Study Suggests | The
Independent, THE INDEPENDENT, Nov. 6, 2015, https://www.independent.co.uk/life-style/love-sex/women-are-
never-straight-they-are-either-gay-or-bisexual-study-suggests-a6723276.html (last visited Mar 13, 2024).
3 gay, (2024), https://dictionary.cambridge.org/dictionary/english/gay (last visited Mar 15, 2024).
4WebMD Editorial Contributors, What Is Bisexual?, WEBMD, https://www.webmd.com/sex/what-is-bisexual
(last visited Mar 15, 2024).
5 Answers to your questions about transgender people, gender identity, and gender expression,
HTTPS://WWW.APA.ORG, https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression
(last visited Mar 15, 2024).
6 What does queer mean?, https://www.plannedparenthood.org/learn/teens/sexual-orientation/what-does-queer-
mean (last visited Mar 15, 2024).
7 What is Intersex? | Definition of Intersexual, https://www.plannedparenthood.org/learn/gender-identity/sex-
gender-identity/whats-intersex (last visited Mar 15, 2024).
though they might still experience romantic feelings. 8Finally, the "+" sign acknowledges the
spectrum of identities beyond these letters.9

The fight for legal recognition of LGBTQIA+ identities is a critical aspect of on-going
struggles for equality. Legal recognition is a crucial stepping stone, but it is not the end goal.
By deconstructing the binary, we can pave the way for a more inclusive legal system that
truly represents the diverse experiences of the LGBTQIA+ community.

Beyond the Binary: The Quest for Inclusive Legal Recognition in the LGBTQIA+
Community

Gender binary an old concept of classifying people only into male and female is not a proven
scientific principle but we can say it is a time immemorial practice or belief that is still held
by a majority of people due to the social construction. The contribution from the part of
religion is in high proportion when we talk about the gender binary. Christianity and Islam
expressly treat homosexuality as a sin, however, Hinduism and Buddhism do not expressly
forbid homosexuality but Jews have a positive approach towards lesbians and gays, as they
support their rights. Even though textbooks like “Kamasutra” and temples of Khajuraho
sculptures depict homosexuality, several Hindu devotees are also against homosexuality.

There are numerous reasons for dissenting homosexuality, but finally, everything will end up
at a particular point that is “it will disrupt the family structure”. Irrespective of religion and
caste everyone considers marriage as a tool for procreation and this is only possible when a
man and woman enter into a sexual relationship. It is a common trend that everyone is
interested in knowing what is happening inside the four walls of others. Understanding the
needs, desires and feelings of others is an important matter that everyone must realise.

Homosexuality is not a mental disorder, being transgender or being a gay or being a lesbian
can never make a person insane. There is evidence to support the statement that
homosexuality is a normal variant of human sexual orientation 10. Still, there are beliefs
among people that counselling and medication can convert a homosexual to a heterosexual.

8 Asexuality, Attraction, and Romantic Orientation, LGBTQ CENTER (2021),

https://lgbtq.unc.edu/resources/exploring-identities/asexuality-attraction-and-romantic-orientation/ (last visited
Mar 15, 2024).
9 Site Factory admin, LGBTQIA Resource Center - LGBTQIA Resource Center Glossary, (2015),
https://lgbtqia.ucdavis.edu/educated/glossary (last visited Mar 15, 2024).
10 Kinney, Robert L 3rd. “Homosexuality and scientific evidence: On suspect anecdotes, antiquated data, and
broad generalizations.” The Linacre quarterly vol. 82,4 (2015): 364-90. doi:10.1179/2050854915Y.0000000002
The Indian Constitution nowhere expressly says that non-heterosexuals shall be excluded or
they have no rights instead says that no person shall be discriminated against on the grounds
of sex. In the case law, National Legal Services Authority V. Union of India11. The Supreme
Court has interpreted “sex” as including both sexual orientation and gender identity which
has extended the protection of Article 15 to the LGBTQIA+ community.

The gender binary is thus a failed concept as it can only accommodate males and females.
There are several sexual orientations hence only an umbrella concept can take care of them.
For example, we can consider intersex, they are born with sexual organs which cannot be
categorised solely into male or female and thus they are forced to convert themselves to
either male or female because the gender binary is not able to accommodate them.

Striving for a more inclusive world that celebrates the vast spectrum of human experience
when it comes to gender identity and sex characteristics is true.

Unequal Access: Family, Jobs, and Acceptance

Inequality of access is an internal difficulty that the LGBTQIA+ movement faces despite
advances toward equality. Transgender people frequently face major obstacles in starting
children, finding employment, and feeling completely accepted within the movement itself,
even as the fight for all identities goes on.

Disownment and Rejection

It can be challenging to come out as LGBTQIA+, especially when trying to get family
members to accept you. Sadly, even while many families are good and encouraging, there are
still situations where people experience rejection and even the cutting of links with their
loved ones. Coming out is frequently a very personal and brave choice for LGBTQIA+
people. It entails being honest about who they are in the hopes that people closest to them
will accept and understand them. Not all families, nevertheless, can accept this information
with dignity and comprehension. The experience of rejection can significantly affect an
individual's sense of self-worth and identity. They may find it difficult to manage other facets
of their lives, such as relationships, employment, or schooling. Families react to LGBTQIA+
members coming out in various ways. Some may completely cut off communication and
support, leaving individuals feeling abandoned and alone. This unexpected lack of love and
acceptance can be incredibly painful. Others might resort to emotional manipulation, verbal
11 (2014) SCC 438
abuse, or trying to force their loved ones to hide who they truly are. This kind of rejection can
deeply wound an individual's sense of self-worth, leading to long-lasting emotional scars.
There is a report which says that 80% of individuals who belong to the LGBTQIA+
community in India face some form of rejection from their families 12.
There are many reasons behind familial rejection, often rooted in deeply ingrained beliefs or
cultural norms that see LGBTQIA+ identities as wrong or unnatural. Social stigma and
religious teachings can also heavily influence how families respond. The consequences of
this rejection can be devastating. LGBTQIA+ individuals may struggle with depression,
anxiety, and even thoughts of suicide as they cope with losing the support of their family. It
can also shake their sense of belonging and self-esteem, making it tough to handle other
aspects of their lives like school, work, or relationships. But it's important to know that
rejection from family isn't the end of the road. LGBTQIA+ individuals can find acceptance
and support in chosen families, friends, support groups, and the broader LGBTQIA+
community. Creating a network of understanding and affirming people can help ease the pain
of familial rejection and provide a sense of belonging and validation.

Forced Marriage and Conversion Therapies

Forced marriage and conversion therapies have become common nowadays, not only within
the LGBTQIA+ Community but also among the so-called straights, if anyone is having a love
affair with a person who is out of their caste or religion, on the next moment the parents will
book an appointment from a psychologist to change their kids mind through counselling.
Forced marriage occurs when individuals are pressured or coerced into marrying someone
against their will, often by their own families or communities 13. Within the LGBTQIA+
community, this can be especially devastating, as individuals may be forced into heterosexual
marriages despite their true sexual orientation or gender identity. The pressure to conform to
societal norms, cultural expectations, or religious beliefs can contribute to forced marriages
within LGBTQIA+ communities. Those who resist or come out may face threats, emotional
manipulation, or even physical violence from their families. Forced marriage not only
violates individuals' right to choose their partners freely but also subjects them to emotional,
physical, and sexual abuse. LGBTQIA+ individuals forced into heterosexual marriages may

12 Srishti Jaswal, India’s LGBTQ Community Battles Same-Sex Marriage ‘Heartbreak’ from Court, AL
JAZEERA, https://www.aljazeera.com/news/2023/10/24/india-lgbtq-supreme-court-same-sex-marriage-rights
(last visited Mar 16, 2024).
13Forced Marriage, https://travel.state.gov/content/travel/en/international-travel/emergencies/forced-
marriage.html (last visited Mar 16, 2024).
feel deeply isolated, depressed, and disconnected from their true selves as they're forced to
hide their identity to please others. Recently lesbian couples in Kerala, decided to pursue a
legal fight for their rights and eventually achieved for the freedom they longed for, on May
31st 2022, the Kerala High Court allowed them to reunite14.

The term "conversion therapy" refers to efforts aimed at altering, suppressing, or redirecting
an individual's sexual orientation, gender identity, or gender expression. These practices may
also be known as reorientation therapy, reparative therapy, sexual orientation change efforts,
ex-gay/ex-trans therapy, gay cure therapy, or, more recently, support for unwanted same-sex
attraction or transgender identities15. It often involves various psychological or religious
interventions under the false belief that being LGBTQIA+ is a mental illness or moral flaw
that can be "fixed"16.Conversion therapy has been widely condemned by medical and mental
health professionals for its lack of scientific basis and potential for severe harm 17.
LGBTQIA+ individuals subjected to conversion therapy often experience increased shame,
guilt, and self-loathing, along with higher risks of mental health issues and suicide. Both
forced marriage and conversion therapy perpetuate discrimination, stigma, and violence
against the LGBTQIA+ community, denying individuals the right to live authentically and
freely. It's crucial to raise awareness about these issues, advocate for legal protections, and
offer support and resources to those affected.

Economic Dependence
Freedom to be yourself shouldn't come at a financial cost. Yet, for many LGBTQIA+
individuals in India, economic dependence on their families creates a heart-breaking paradox.
Imagine wanting to be yourself at home, but being held back by money. This is the reality for
many LGBTQIA+ people in India. A study by The Williams Institute found they're more
likely to struggle financially than others. There are a few reasons for this, like facing

14 Keralite lesbian couple, who fought epic legal battle to unite, on what freedom means, ON MANORAMA,
https://www.onmanorama.com/news/kerala/2022/08/15/fathima-noora-adila-nasreen-lesbian-couple-
interview.html (last visited Mar 16, 2024).
15 Emily Juarez, Conversion Therapy, CONVERSION THERAPY (2019),
https://www.academia.edu/41639062/Conversion_therapy (last visited Mar 16, 2024).
16 Lawrence S. Mayer & Paul R. McHugh, Sexuality and Gender: Findings from the Biological, Psychological,
and Social Sciences, THE NEW ATLANTIS 10 (2016), https://www.jstor.org/stable/43893424 (last visited Mar 16,
2024).
17 G. Andrade & M. Campo Redondo, Is Conversion Therapy Ethical? A Renewed Discussion in the Context of
Legal Efforts to Ban It, 20 ETHICS, MEDICINE AND PUBLIC HEALTH 100732 (2022),
https://www.sciencedirect.com/science/article/pii/S2352552521001092 (last visited Mar 16, 2024).
discrimination when trying to find a job or a place to live 18. This financial dependence traps
them in situations where they might not feel accepted by their families. The fear of losing
financial support can make it hard for them to speak their truth or live authentically. It's like
constantly walking on eggshells, hiding who they are just to keep the peace and a roof over
their head.

Being stuck in an unsupportive environment can be incredibly isolating. Many LGBTQIA+

youth who experience rejection from their families feel trapped and hopeless. Financial
dependence takes away their options, making it difficult to move out and build a safe,
accepting life for themselves19. This combination of financial dependence and family
rejection can have a serious impact on mental health. Studies show a higher rate of
depression, anxiety, and even suicidal thoughts among LGBTQIA+ people facing these
challenges. This highlights a crucial need for support systems that specifically address the
needs of LGBTQIA+ individuals facing financial hardship due to family rejection20.

Even though LGBTQIA+ rights and visibility have improved, many people in this
community still struggle to get support from their families, find jobs, and feel accepted by
society. This shows that LGBTQIA+ people continue to face unfair treatment and unequal
opportunities.

Media Metamorphosis: Representing the Transgender Movement

In the past, the media portrayed the LGBTQIA+ community narrowly and misleadingly.
Transgender people were especially left out or shown in a stereotypical light. But things are
changing Today, there's a big shift happening. We're seeing more transgender characters with
complex personalities appear on TV, in movies, and online.

There's a lot more transgender representation on screen these days Shows like Pose 21 and
Sense822 broke new ground by putting transgender actors in starring roles. Series like

18 Loyal, thisisloyal.com, LGBT Poverty in the United States, WILLIAMS INSTITUTE,

https://williamsinstitute.law.ucla.edu/publications/lgbt-poverty-us/ (last visited Mar 16, 2024).
19 Sabra L. Katz-Wise, Margaret Rosario & Michael Tsappis, LGBT Youth and Family Acceptance, 63
PEDIATR CLIN NORTH AM 1011 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5127283/ (last visited
Mar 16, 2024).
20 Stephen T. Russell & Jessica N. Fish, Mental Health in Lesbian, Gay, Bisexual, and Transgender (LGBT)
Youth, 12 ANNU REV CLIN PSYCHOL 465 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4887282/
(last visited Mar 16, 2024).
21 POSE, (2018).
22 SENSE8, (2015).
Euphoria23 and Sex Education 24don't just focus on a character being transgender; they make
them important parts of the story. This means viewers get to see transgender people as
individuals they can connect with, which helps build understanding and acceptance. In the
past, transgender characters were mostly there to tell the story of coming out. These stories
are important, but they don't show everything about being transgender. Shows like Billions 25
and Superstore26 are different. They feature transgender characters that are already out and
living their lives. We see their jobs, relationships, and the everyday challenges they face. This
wider view lets viewers see transgender people as complete individuals with all kinds of
experiences, not just their gender identity.

Not only at the international level, there are films in the Malayalam industry which feature
prominent transgender characters played by transgender actors 27. Movies like “Njan
Marykutty28” portray the life of transgender women who strive to become Police officers.
Documentaries like “Is it too much to ask 29" offer a more nuanced look at the lives of
transgender individuals, It chronicles the journey of Vidya, a transgender activist,
highlighting the struggles and triumphs of the community.

One of the best-seller novels “Ram c/o Aanandhi” written by Akhil P Dharmajan also
portrays the life of a Trans woman where lead is on a particular character named Malli.
However, there are bitter sides also on this transgender portrayal in media, even though
transgender characters are popping up more often, they're still a rarity and mostly focused on
Trans women. The stories told often rely on stereotypes or just focus on them coming out,
which doesn't show the full picture. Finding the right actors, being sensitive about how
transition and language are portrayed, and balancing social messages with entertainment are
all challenges that need to be addressed to create a more accurate and respectful portrayal of
the transgender community in media. Additionally, some portrayals, even with good
intentions, can perpetuate stereotypes like the "tragic transgender figure."

23 EUPHORIA, (2019).
24 SEX EDUCATION, (2019).
25 BILLIONS, (2016).
26 SUPERSTORE, (2015).
27 Queerlessness of Mollywood, THE TIMES OF INDIA, Mar. 19, 2019,
https://timesofindia.indiatimes.com/entertainment/malayalam/movies/news/queerlessness-of-mollywood/
articleshow/68481290.cms (last visited Mar 16, 2024).
28 NJAN MARYKUTTY, (2018).
29 IS IT TOO MUCH TO ASK? (2017).
Rainbow Shadows: A Philosophical Discourse

The society has been on a forward curve, though the pace has been glacial on matters related
to the LGBTQIA+ community. But more importantly the movement has been much widely
accepted than its western counterparts such as the ‘racial movement or the gender movement’
or its eastern counterpart ‘the caste movement’. Though each of these movements has been
created to resolve a particular social vulnerability that has persisted and most importantly
affected the social justice of a sect of people of our society, we can observe ignorance or
rather a leap over these movements by the LGBTQIA+ movement, where by the majority of
the media representation has been either wholly accepting or partially accepting of the
existence of this sect of our society. The significance of the same is that media representation
can be seen as a window into the perception of our society and vice versa, thus this
representation bring the community up as a talking point in our main stream conversation,
rather than being just limited to an academic exercise or a mere election promise, which
might be limited to just the election manifesto. Thus through this representation in our media,
the conversation has started. Yet in the Indian context this representation is problematic.
There is the misrepresentation of information, or presenting a ‘victim or cautionary tale trope
or villainization’ of the community members. The laymen who turn to these mediums as
one’s primary source of information often get misinformed about the community and their
issues. This creates an additional problem in resolving such issue. Thus the question rises as
to what are the issues that are faced by the LGBTQSIA+ community in our present society?
What are the actions that have been taken by the State in order to incorporate them into our
society as though as I’ve told in the beginning section of this part of our paper, ‘society has
been on a forward curve’ but the acceptance of a sect of people born within a state and the
granting of rights to them shouldn’t be dependent on the mere factor that society is beginning
to accept them as this is contradictory to the Social contract theory whereby our state has
been formed whereby rights and duties are given on the mere fact that we have been born as a
part in our respective nations.

The issues faced by the LGBTQIA+ community are multifaceted and most importantly are
not representative by giving it a mere terminology, but the main issues faced by the
community is acceptance into the mainstream society. The acceptance that is given in the
present scenario often seems peripheral and is not addressing the root cause of the issue.
Religious faith and family structure can been seen as two of the main culprits that have
hindered State from accepting the community and more importantly mobilizing the society
against them. Though this can be seen in the Western Nations or the nations under the Crown
which have been largely professing Christianity as its official religion for a period of time,
the question arises how did this affect a multi-cultured society such as India? The short
answer for the same is the advent of missionaries from the west, be it Portugal, France, Dutch
or English, and the bringing of majority of India as a part of colonization under the Crown. In
this period our history, one observes various acts and rules made whereby the crown seems to
criminalize many acts that, where at a time of our vibrant history, celebrated, we can observe
the criminalization of same-sex relation, oral sex and sodomy, which were seen as sin by the
priest at that time. Thus the law created by such a state criminalised such acts. Other than the
argument of ‘sin’ under religious text, another main argument that has been often raised
against the acceptance of the community has been that it destruction of the hetronormative
family structure, though that has been the trend till date, and thus the relation between the
community might seem strange to the society this argument only holds true when the purpose
behind ‘family’ is limited to ‘organic procreation’, this limited perception though have been
the crux of all family structure, but this is now changing, as the society is moving from a
perspective of collective liberty to an individualistic one, thus the meaning and definition of
family structure is evolving rather than being destroyed.

Acceptance as such is also a limited approach, as mere acceptance would not be

compensatory to the discriminatory attitude show by the state, which has caused the
community to get side-lined and live out their existence either hidden or in conformity with
the hetronormative society, which are in most cases one and the same. Thus mere acceptance
can’t take away all the suffering faced by the community till date, but this ‘acceptance’ is a
good starting point, whereby the state have opened a door way for the individuals of this
community to go through to reach the mainstream of our society. Yet mere opening of door
doesn’t mean that the community is actually equipped to walk through it, take the case of
Kerala, whereby the State government made a program to incorporate trans persons as part of
the work force for the Kochi Metro Program, the policy as such was widely accepted, but the
on ground reality was that those trans person who wished to join the workforce ‘in order to
earn a living’ were not able to find a house to reside nearby, more accurately they were able
to find but was declined by the owners of the residence to give the place for rent. This has led
to the program by the government look progressive on paper, but since adequate follow
through wasn’t made on the other requirements and the means to satisfy these requirements
by the government the community members had to go back to their old job of either begging
or offering themselves up for sexual services. The purpose of the case study was to illustrate
the necessity of doing follow up and not being limited to ‘acceptance’ on paper.

Different Sides of Acceptance

President Lyndon B Johnson during a speech at Howard College (DC) (1965) remarked “You
do not take a man who for years has been hobbled by chains, liberate him, bring him to the
starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly
believe you have been completely fair… This is the next and more profound stage of the
battle for civil rights. We seek not just freedom but opportunity––not legal equity but human
ability––not just equality as a right and a theory, but equality as a fact and as a result. 30”
Though the context might differ from why and when former President Johnson remarked the
same, the philosophy behind these words remain the same, we can treat a group who have
been discriminated against, ‘free’ and expect them to secure all rights that we have been
enjoying on their own. Herein the issue of equality not a theory, but as a fact and in practice
comes into play. The mere acceptance, though is a good starting point, is not able to fully
bring the members of the community to the mainstream as of yet. Here after there needs to be
positive action that is to be taken from the side of the state in accordance to the ‘need’ of the
community. Herein lies, our subsequent problem, though the state has taken action, such as
providing them job opportunities or to give them loans, or to acknowledge their gender
identity through giving an option for ‘other’ or ‘transgender’ in government forms, these
actions, though shows a positivity towards accepting the community, lacks a basis need, ie.,
to have representation from the members of the community while framing the policies. Take
for example the recent Transgender Persons (Protection of Rights) Act, 2019 31 one of the
main criticism that has been laid out against it is that the act is not representative of the
requirements of the community, thus the policy makers have to put themselves into the shoes
of the members of the community while framing the legislation, but such a creation would
not only be inadequate, moreover it’ll have biases that the policymakers would have inside
them about the community, thus representation while creating policy is essential to create a
‘sustainable acceptance scenario’ for the community.

30 Gerhard Peters and John T. Woolley, Lyndon B. Johnson, Commencement Address at Howard University:
"To Fulfill These Rights.", THE AMERICAN PRESIDENCY PROJECT,
https://www.presidency.ucsb.edu/node/241312.
31 The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019, (India).
Now look back into the case study of the Kerala Metro’s Pro Transgender policy 32, though
the program was intended to create a more accepting attitude towards trans person by the
society, the result of the same has been in the opposite direction, though the state can a
partially blamed for the same, because of not creating an ‘accepting mentality’ among its
citizens. The state role is not just limited to giving education, creating jobs, handing out
salaries, giving protection from foreign acts, but with the expansive definition of the ‘welfare
state’, the state is expected to create an atmosphere for social transformation through its
organs. The term ‘social transformation’ is not limited to the legislature and judiciary by
taking on an pro approach towards the transforming society, but to create an atmosphere for
the citizens, through education, debates, awareness classes, about the LGBTQIA+ community
as well, the lack of this social acceptance was evident in the aftermath of the Kerala Metro
Case study, thus the question arises, is India as a society not yet progressed enough to accept
the shift from hetronormative attitude of the society, and thus the state should wait for the
society to progress first, and then make suitable changes in order to incorporate the
community into them or should the state lead the society into a social transformation, through
‘transformative constitutionalistic’ approach and thereby enforce a change and expect the
society to follow through, herein lies the debate between social morality and constitutional
morality, which should guide which. Among us legal scholars, the unsaid yet sought after,
answer is that the latter should guide the former not vice versa, yet on an application level,
we have witnessed the struggle between a progressive approach by the Judiciary and the
religious instincts within the society in the aftermath of the Sabarimala 33 Judgement. The
struggle between the legislature and the judiciary not being complimentary of the other is a
result of trying to overcome the separation of power put forward by the Indian constitution, is
yet another factor that pushes or pulls back the social transformation. Herein lies the question
of how to create a social change, acceptance is the first stage, and this has been received by
various progressive judgements such as Naz foundation 34 judgement or the NALSA35
judgement and its subsequent cases, Legislature and Executive has also taken action pro-
community through legislations and various programs and policies, now the role of the state
has to shift into a fourfold approach, i.e., 1. Create social transformation by prompting the
society to evolve, 2. Ensure post impact assessment is done, thereby making suitable changes

32 Sibi K I, Major Concerns Of Transgender Employees In Kochi Metro Train Service Work Environment, 4
JETIR, 710-717, 2017, https://www.jetir.org/papers/JETIR1710110.pdf
33 Indian Young Lawyers Association and Ors. vs. The State of Kerala and Ors., (2019) 11 SCC 1.
34 Naz Foundation vs Government Of Nct Of Delhi And Others, 2009 (6) SCC 712.
35 NALSA vs. Union of India, (2014) 5 SCC 438.
wherever necessary. 3. Ensure that the benefit reaches the benefactors, by adopting strategies
to reach out to the grassroots level, 4. Ensure the participation form the community, not as
mere benefactors, but while policy creation and implementation, thereby creating a change in
attitude, an accepting one, within the community as well as its counterpart the society. The
role of the state does not end by mere opening the door, and saying that equality has been
delivered, it must recognise whether or not the benefactor is equipped enough to walk
through, if not the role of the state extends to guide them as well.

Conclusion

Acceptance is a complex phenomenon, from acceptance on paper to being incorporated to the

functioning society is a long and arduous journey, but when compared to the rest of the
movements that began in India, the LGBTQIA+ movement has been on the fast track to
fruition, yet till the movement have completed its journey, the rights of the members of the
community are being tied down, either by public morality or by bureaucratic red-tapism.
Thus, there exist a need for the society to evolve along with addressing the needs of the
community, through incorporating inclusive policies, into the public domain, not merely
limited to the aids rather into the positions of the organs of government whereby they’ll
accepted into the system through normalisation and reduction of the stigma. Yet recently
former Chief Justice of India UU Lalit addressed in the Q&A session on a special lecture on
‘Affirmative Action and Constitution of India’ 36 that though theoretically the community
would come under the ambit of Constitutional Affirmative action, he argued that, being born
in a community such as SC, ST, or OBC is beyond the control of the individual while
choosing a sexual orientation is a choice. He contends that the sexual orientation is not thrust
upon the individuals, and is thus not deprived of anything. Here I’d like to make a counter
argument, sexual orientation in the present Indian society is mostly hetronormative, and this
is forced on to the individuals by birth, by the time they grow up and starts recognising the
changes within them in comparison to their compatriots, they’re often ridiculed, shunned and
side-lined by this attitude of the society. If these individual opt to embrace their true self, they
are most likely secluded from the community through a lack of awareness and fear associated
with it. Thus most often than not through the morals and ideal of the society they’re forced to
be someone they’re not, they’re forced to live a dual life, they’re forced to make choices
they’re not comfortable with, they’re forcefully side-lined by the society. Thus making the
36 LGBTQ not entitled to reservations like SC, ST, OBC: Ex CJI UU Lalit; BUSSINESS STANDARD, (Jan. 12
2024, 9:19 AM) https://www.business-standard.com/india-news/lgbtq-not-entitled-to-reservations-like-sc-st-
obc-ex-cji-uu-lalit-124011200045_1.html .
choice or not making the choice of living out their life in their preferred sexual orientation is
currently seen with disgust and fear. Only through a transformative and embracing attitude
the state and its organ can this situation change and thereby be able to fulfil its role as a
welfare state which protects the interest of the minority citizens. Moving away from the
utilitarian approach I’d like to conclude by making the statement ‘justice is the interest of the
weak’ and the state should work in order to create not a mere equal but an equitable society.