Author – Anand Pandey , Atal Bihari Vajpayee School of Legal Studies , CSJMU Kanpur Nagar
INTRODUCTION
Granting individuals their fundamental rights does not require compromise, financial investment, political bargaining, or public endorsement. Respect for human dignity is a basic moral obligation embedded in the concept of humanity itself. A society that prioritizes love, inclusion, and respect over hatred and exclusion strengthens its ethical foundation. Conversely, when dignity is denied to any group, the moral legitimacy of the social and legal order is undermined.
Human rights are universally applicable, indivisible, and interdependent. They are grounded in the principle that every human being possesses inherent worth and must be treated equally before the law. Any action that diminishes human dignity violates the principle of equality and legitimizes discrimination. These rights are not privileges granted selectively; they belong to all individuals by virtue of being human.
Among the groups that have experienced systemic marginalization across cultures and legal systems is the LGBTQ+ community. Historically subjected to criminalization, social exclusion, and violence, LGBTQ+ individuals have had to continuously assert their identity and humanity in hostile environments. Despite being entitled to the same rights as others, they have often been forced to struggle merely for recognition and dignity. Denying fundamental rights to LGBTQ+ persons contradicts the very purpose of human rights law.
The term LGBTQ+ , which gained widespread usage in the 1990s, functions as an inclusive umbrella representing diverse sexual orientations and gender identities. ‘Lesbian’ refers to women who are emotionally or sexually attracted to other women; ‘Gay’ refers primarily to men attracted to men; ‘Bisexual’ denotes individuals attracted to more than one gender; ‘Transgender’ describes persons whose gender identity or expression differs from their sex assigned at birth; and ‘Queer’ is a broader term encompassing identities that fall outside heterosexual and cisgender norms.
While the global movement for LGBTQ+ rights has existed for decades, the pace of legal and social acceptance varies significantly across jurisdictions. Some countries have enacted comprehensive anti-discrimination laws and recognized same-sex relationships, while others continue to treat sexual orientation and gender identity as taboo or as medical and psychological anomalies.
Highlighting the international significance of this issue, former United States Secretary of State Hillary Rodham Clinton, in her address to the United Nations on Human Rights Day in 2011, emphasized that protecting the equality and dignity of LGBTQ+ individuals is one of the most pressing human rights challenges of the modern era. She referred to LGBTQ+ persons as an “invisible minority” whose rights are threatened worldwide, reinforcing the idea that LGBTQ+ rights are an integral component of universal human rights.
This article undertakes a comparative analysis of LGBTQ+ rights protection in India and Mexico, examining judicial developments, legislative frameworks, and societal attitudes to evaluate progress, limitations, and future directions.
SITUATION IN INDIA
Social and Cultural Context
In India, discussions concerning sexuality and gender identity remain deeply stigmatized. Cultural conservatism, religious orthodoxy, and entrenched gender norms have historically restricted open dialogue on sexual orientation. As a result, LGBTQ+ individuals often face social exclusion, familial rejection, and psychological distress.
Despite these challenges, the LGBTQ+ movement in India has gained momentum over the past two decades. Activism, judicial intervention, and increased public discourse have contributed to gradual legal progress, although social acceptance remains uneven.
Decriminalization of Homosexuality
A historic turning point occurred in 2018, when the Supreme Court of India, in Navtej Singh Johar v. Union of Indiazdecriminalized consensual same-sex relationships by partially striking down Section 377 of the Indian Penal Code.
Section 377, introduced in 1860 during British colonial rule, criminalized “carnal intercourse against the order of nature.” Though facially neutral, the provision was primarily used to target homosexual conduct. The Supreme Court held that criminalizing consensual sexual acts between adults violated Articles 14,15, 19, and 21 of the Indian Constitution, thereby affirming the rights to equality, dignity, privacy, and personal liberty.
The judgment was celebrated as a major victory for LGBTQ+ rights in India. However, decriminalization merely removed criminal liability; it did not automatically confer positive rights or legal recognition.
Continuing Challenges
Despite the 2018 ruling, LGBTQ+ individuals continue to face widespread discrimination. Many encounter harassment in educational institutions, workplaces, healthcare facilities, and public spaces. Familial rejection remains a critical concern, with numerous individuals being forced out of their homes due to fear of social stigma.
Pride marches have been organized in India since 1999 and are now held annually in most major cities, serving as both a form of protest and a platform for visibility. Additionally, non-governmental organizations play a crucial role in providing legal aid, healthcare services, mental health support, and educational outreach.
Nevertheless, India does not recognize same-sex marriage or civil unions. Marriage laws remain religion-specific and heteronormative, excluding LGBTQ+ couples from legal recognition. This exclusion has cascading effects, denying them access to adoption, surrogacy, inheritance, insurance benefits, and spousal rights.
Employment protection laws and social welfare legislation also fail to address the needs of LGBTQ+ persons. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 for instance, does not account for transgender or non-binary individuals, leaving them without adequate legal remedies.
Opposition to LGBTQ+ rights is often justified on the grounds that homosexuality is “unnatural.” However, scientific research has documented same-sex behavior in over 1,500 animal species, undermining such claims and demonstrating that sexual diversity is a natural phenomenon.
TRANSGENDER RIGHTS IN INDIA
A significant milestone for transgender rights was achieved in National Legal Services Authority v. Union of India (2014), where the Supreme Court recognized transgender persons as a “third gender” and affirmed their right to self-identify their gender.³ The Court held that gender identity is an intrinsic part of personal autonomy and dignity.
To operationalize these principles, the Transgender Persons (Protection of Rights) Act, 2019, was enacted. The Act prohibits discrimination against transgender persons in education, employment, healthcare, housing, and access to public spaces.
Despite its progressive intent, the Act has been widely criticized by activists and scholars. Concerns include excessive bureaucratic control over gender recognition, inadequate penalties for offenses, and the absence of provisions addressing intersectional discrimination. Practical issues—such as lack of gender-neutral public restrooms—continue to marginalize transgender individuals, especially those who do not conform to binary gender norms.
LEGISLATIVE GAPS IN INDIA
Although Indian courts have played a proactive role in advancing LGBTQ+ rights, legislative reform has lagged behind. This disconnect between judicial interpretation and legislative action has resulted in continued legal exclusion.
Key areas where discrimination persists include:
Same-sex marriage: Not legally recognized
Adoption: Prohibited for same-sex couples
Surrogacy: Barred for LGBTQ+ couples and single individuals
Inheritance: Laws remain gender-specific and assume heterosexual marital relationships
Despite landmark judgments in NALSA v. Union of India, Navtej Singh Johar v. Union of India, and Justice K.S. Puttaswamy v. Union of India, comprehensive legislative protection remains absent.
SITUATION IN MEXICO
Legal Progress and Constitutional Reform
Mexico has emerged as one of the more progressive nations in Latin America concerning LGBTQ+ rights. A federal anti-discrimination law enacted in 2003 included sexual orientation as a protected category, marking a significant step toward equality.
In 2011, constitutional reforms elevated international human rights treaties to constitutional status, strengthening protections against discrimination. These reforms laid the groundwork for subsequent judicial and legislative developments.
Same-Sex Marriage and Adoption
Nationwide recognition of same-sex marriage followed a 2015 ruling by the Supreme Court of Justice of the Nation,which held that state bans on same-sex marriage were unconstitutional. Although implementation initially varied by state, the ruling effectively established marriage equality across the country.
In 2016, adoption rights were extended to same-sex couples, affirming the principle that sexual orientation does not affect parental capability. Mexico also permits transgender individuals to change their legal gender without undergoing gender reassignment surgery, reflecting respect for bodily autonomy and self-identification.
Ongoing Challenges
Despite strong legal protections, violence against LGBTQ+ individuals—particularly transgender women—remains a serious concern. Studies report hundreds of hate crimes and violent deaths between 1995 and 2016, with many cases linked to organized crime and systemic impunity.
Social acceptance varies significantly by region. Urban areas tend to be more inclusive, while rural and remote regions often retain conservative attitudes. However, public opinion surveys indicate that younger generations are increasingly supportive of LGBTQ+ equality, suggesting a gradual cultural shift.
COMPARATIVE ANALYSIS: INDIA AND MEXICO
A comparison of India and Mexico reveals contrasting approaches to LGBTQ+ rights. India has relied heavily on judicial intervention to advance equality, while legislative action remains limited. Mexico, by contrast, has combined judicial rulings with constitutional and legislative reforms, resulting in broader legal recognition.
While India has made significant strides in decriminalization and gender recognition, it lacks comprehensive anti-discrimination laws and family law reforms. Mexico’s experience demonstrates that legal recognition, when combined with social awareness, can contribute to greater inclusion, although challenges persist.
CONCLUSION
The decriminalization of Section 377 marked a transformative moment in India’s constitutional history, but it represents only the first step toward full equality. Legal reform must extend beyond decriminalization to encompass marriage, family rights, inheritance, and workplace protection.
While countries such as Mexico, South Africa, Sweden, Portugal, and New Zealand provide constitutional or legislative protection based on sexual orientation and gender identity, India still lacks a comprehensive framework safeguarding LGBTQ+ rights.
A comparative analysis of progressive legal systems underscores that meaningful equality requires both legal recognition and social acceptance. Without legislative commitment and sustained public education, the promise of judicial pronouncements remains incomplete.
Ensuring dignity, equality, and liberty for LGBTQ+ individuals is not merely a legal obligation but a moral imperative. Until these principles are fully realized, the struggle for LGBTQ+ rights in India continues.