SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

morality, as distinct from a constitutional morality derived from constitutional
values, is based on shifting and subjecting notions of right and wrong. If there is
any type of “morality” that can pass the test of compelling state interest, it must
be “constitutional” morality and not public morality.”
Ultimately the court determined that Section 377, in so far as it criminalized adult, private,
consensual sexual acts violated the rights to equality and life as contained in the Indian
Constitution. In doing so the court allowed Section 377 to continue to stay in the law books to
tackle child sexual abuse of boys due to the lack of a specific law in this regard in Indian
criminal law with a recommendation that the government reform the Indian law related to
sexual assault. It also highlighted “inclusiveness” as a constitutional tenet that is the
underlying theme of the Indian Constitution and held: “In our view, Indian Constitutional law
does not permit the statutory criminal law to be held captive by the popular misconceptions
of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and
that it is the recognition of equality which will foster the dignity of every individual.”
The decision of the Delhi High Court de-criminalizing adult, consensual, same-sex sexual
conduct has resulted in the filing of 14 appeals in the Indian Supreme Court challenging the
decision. 66 During preliminary proceedings before the Supreme Court, requests by the various
petitioners challenging the decision to stay the order of the Delhi High Court were denied by
the Supreme Court. 67 The Indian Government has decided not to challenge the verdict and has
left the final decision on the matter in the hands of the Supreme Court. 68 Hearings on the
review petitions are yet to commence.
The laws in the research countries do not contain specific equality provisions with regard to
sexual orientation. 69
The aforementioned judgments from Nepal and India are momentous watersheds in the
region in advancing the fundamental rights of Lesbian, Gay, Bisexual, Transgender and
Intersex persons, with potentially significant fallouts in relation to their sexual health. Their
basis in equality is of particular importance in that it recognizes the essential aspect of
Lesbian, Gay, Bisexual, Transgender and Intersex citizenship from which emanate varied
other rights that can secure their lives, including access to services, and health. The expansive
interpretation of ‘sex’ by the Delhi High Court to include ‘sexual orientation’ has created a
precedent, which can be adapted for similar situations in other national constitutions. The
unprecedented recognition of equal rights for persons of a third gender by the Nepal Supreme
Court also opens opportunities to re-examine legal frameworks that fail to recognize or
understand sexuality and gender outside the male-female binary and continue to criminalize
or victimize alternative gender expressions. Whether they have a positive impact in other
jurisdictions remains to be seen.
1.3 Non-discrimination based on gender identity
While all the research countries have constitutional guarantees of equality, none of them
specifically prohibit discrimination based on gender identity either through constitutional
66 The authors have received this information from lawyers appearing in the case.
67 The authors have received this information from lawyers appearing in the case.
68 See ‘Cabinet puts Section 377 in Supreme Court's hands,’ 17 September 2009, Sify News, available at
http://sify.com/news/cabinet-puts-section-377-in-supreme-court-s-hands-news-national-jjrqadjfgcc.html
69 Laws relating to de-criminalisation are discussed in Chapter 2.
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