Sexuality and Gender Identity under the Constitution of India

Abstract

This article focuses on a pair of recent inconsistent decisions from the Supreme Court of India. In Koushal v. Naz Foundation (2013), the Court overturned a lower court decision striking down India’s colonial-era sodomy law, while in National Legal Services Authority (NALSA) v. Union of India (2014), the Court ordered sweeping protections to be extended to the transgender community. Koushal suggested that homosexuality is inconsistent with Indian values, gave short shrift to the constitutional rights claims raised by the plaintiffs and rejected reliance on comparative and international law, while NALSA pointed to the long role transgender persons have played in Indian society, construed constitutional rights broadly and made wide-ranging use of comparative and international materials. This article provides context for these competing positions by exploring the evolution of social and legal attitudes toward minority sexualities and gender identities in India and examining the doctrinal and philosophical similarities and divergences between the Indian constitutional system and those of other jurisdictions (particularly the United States). It argues that the tension between the two recent decisions is untenable in the long run and that the approach of Koushal must eventually be discarded. It also seeks to highlight the issues raised by the unique historical role of “third gender” communities in India, the legacy of colonialism, the use and abuse of anticolonial and nationalist rhetoric, and the role of comparative and international law in a system that has historically been quite open to foreign legal authority but that also lays claim to a distinctive identity.

Keywords: India, Constitutional Law, Sexuality, Gender Identity, Comparative Law, Human Rights