WEIGHING MORALITY AGAINST RIGHTS OF LGBT PERSONS
ARGUMENTS BY THE PETITIONERS
Public morality cannot prevail over constitutional morality, and the rights of LGBT persons deserve to be protected under the Constitution
Homosexual or same-sex sexual orientation is part of the order of nature; it is not a mental disorder, which is globally and nationally accepted position of medical practitioners
A nine-judge bench hearing the matter of ‘Justice Puttuswamy and another versus Union of India’ made sexual orientation an inherent aspect of an individual’s privacy, and read the right to privacy into Article 21 of the Constitution. Other judgments have also read the right to choose sexual partner as part of Article 21 (right to life and liberty). Thus, Section 377 is discriminatory towards LGBT persons, who too must have the rights guaranteed by the Constitution.
There are no laws or rules that specifically discriminate against LGBT persons because they are not written into rules in the first place. The invisibilisation results in greater stigma and violence.
Section 377 is not simply a matter of consent between adults, but about the business of life, including professional life, mental health, feeling like equal citizens of the country.
Homosexuality is part of Indian culture and was not stigmatised prior to colonial rule
While the NALSA judgment of the Supreme Court of 2014 granted self determination of gender identity, among a galaxy of rights, section 377 impedes the most basic aspect of their lives, which is their sexuality, as it continues to criminalise them
Section 375 of the Criminal Law (amendment) Act criminalizes non-consensual non-penile vaginal intercourse between a man and a woman, thus making section 377 redundant on this aspect. Since this law makes a distinction between consensual and no consensual non-penile vaginal intercourse between a man and woman, section 377 discriminates against consenting adult gay men.
The new Mental Healthcare Act clearly lays down that there will be no discrimination to access mental healthcare on basis of sexual orientation, which is an acknowledgement that discrimination against LGBT persons does occur.