Home / Legal Explainers / Crimes & Violence / Crimes against LGBTQ+ / Violence Based on Gender Identity and Sexual Orientation

People face violence of various forms such as physical, sexual, mental or emotional violence due to their sexual orientation or identity. It is important to identify this violence and reach out for help or to take action to stop the violence.

Violence Based on Gender Identity and Sexual Orientation

This explainer discusses specific instances of violence faced by people based on their sexual orientation or gender identity.

Harassment & Violence

Love and Relationships for LGBTQ+
Facing Harassment and Violence
Hurting or Injuring LGBTQ+ Persons
Blackmailing LGBTQ+ Persons
Locking Up LGBTQ+ Persons
Online Harassment and Violence against LGBTQ+ Persons
Rape of LGBTQ+ Persons
Sexual Violence against LGBTQ+ Persons

Help & Support

Who (LGBTQ+) can File a Complaint
Complaining/Reporting Problems by LGBTQ+ Persons
Filing an FIR by LGBTQ+ Persons
Difficulties in filing the FIR by LGBTQ+ Persons
LGBTQ+ Persons Arrested By the Police
Rights of LGBTQ+ Persons While Being Arrested
Custodial Harassment of LGBTQ+ Persons by Police
Getting Bail for LGBTQ+ Persons
Helplines for LGBTQ+ Persons
Getting Help and Support for LGBTQ+ Persons

FAQs

Are Hijras transgender?

Yes, hijras were brought under the umbrella term of transgender and are recognized as “third gender” under the law. Transgender is generally described(( National Legal Services Authority vs. Union of India (UOI) and Ors. (2014) 5 S.C.C. 438 (para 11).)) as an umbrella term for persons who do not conform to their biological sex and hijras fall under this category. Hijras typically claim to be part of "third gender". Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites).

What can I do if I see a transgender person being arrested or harassed on the road?

Many states have anti-begging laws by which police officers specifically target transgender persons and arrest them. In such situations if you see a transgender person being arrested/harassed on the road, you can take the following steps:

Intervene, and ask on what grounds the police is harassing/arresting the transgender person.
Get help and support from lawyers NGOs, etc and inform them of the incident taking place. Support the person being arrested by informing them of the rights they have under the law while being arrested.

If you witness such an incident, you can file a complaint with the Police Complaints Authority of your State, which is empowered to investigate accusations of serious misconduct, like illegal arrest, rape, death in custody, etc. For example, you can file a complaint here for Delhi Police Complaints Authority. Many states have the option of emailing the complaint to a specified email address that can be found on the respective PCA’s website.

What is Section 377 of Indian Penal Code?

Section 377 of the Indian Penal Code, 1860 was used to punish same sex intercourse between adults above the age of 18 and still punishes intercourse with animals, also known as bestiality. After 2018, Courts have held that same sex intercourse and same sex relationships are not a criminal act anymore. You cannot be arrested under this law for having consensual sexual intercourse or relationships. You can choose who you want to be with.

What does sexual orientation mean?

Sexual orientation refers to a person’s sexual attraction and sexual relations with someone of their same gender or a different gender. This is known as ‘sexual orientation’. This is a right recognized under the law and it is not a crime to be sexually intimate with someone of the same gender.

As a queer person, who can I file a complaint against for rape or sexual violence under the law?

The law for rape and sexual violence, recognizes specific genders to be victims or offenders/harassers. See below to see what remedies are available to you, based on your gender. If you are woman/transwoman You have a right to file a complaint under the laws on sexual violence in India but only against a man. If you are a transwoman and the police refuses to file the FIR stating that you are not a ‘woman’ under the law, then read here to see what steps you can take. If you are a man/transman You cannot file an FIR under the laws on sexual violence in India, since men/transmen cannot be victims of sexual violence. Your only alternative is to file an FIR with the help of the laws which punish those who hurt or injure you.

Is it a crime to be sexually intimate with someone of the same gender?

No, if two adults of the same gender have consensual sex, it is not a crime under the law.

What do I do if someone harasses me or blackmails me on a dating site because I am an LGBTQ+ Person?

If you are being harassed or blackmailed on a dating site/platform, you can first block or report them, and approach the administrators of the specific site to report the abuse you are facing. If the administrators of the platform are not being responsive or the kind of harassment you are facing is severe and repetitive, then you can also file a complaint at the local police station or cyber cell only if you are a woman/transwoman. If you are a man/transman, you will be able to file an FIR with the laws which punish those who hurt or injure you.

Which authority can I approach for help other than the police as an LGBTQ+ person?

If you do not want to approach the police or you have been turned away by the police, you can approach the following institutions:

National Human Rights Commission, which looks at matters concerning human rights violations, such as custody harassment, illegal detention, etc. As the NHRC is located in Delhi, you can approach the State Human Rights Commission situated in your state, and ask them for help.
National Commission for Women, which is a national level government organisation that works in the protection of women from violence such as sexual crimes, domestic violence, etc.

What happens after filing the FIR as an LGBTQ+ Person?

Once you have reported the crime by filing an FIR, the officer in charge must send the details of the FIR to the Magistrate (Court), who will take note of the case without any unnecessary delay, and proceed with the investigation. This is a mandatory step that the police have to follow, as it allows the Magistrate to take control of the investigation, and if necessary give appropriate directions to the police. There may be situations where the police may conduct a preliminary enquiry before approaching the Magistrate. Such details will also have to be given to the Magistrate with the report. When the police are done with their investigation and have found enough evidence to proceed with a criminal case, they will note down the details of their findings and they will file a charge sheet with the Magistrate. However, after the investigation if they have not found anything proving the commission of a crime, they will suggest the closing of the case by filing a closure report to the Magistrate.

What happens after I get arrested as an LGBTQ+ Person?

After you get arrested, this is what happens:

You will be taken to the police station and you will be under police custody.
Within 24 hours of your arrest, you will be taken to the nearest Magistrate (Court).

What are the cases in law that I can use while approaching the police?

While approaching the police, you can primarily use two cases by the Supreme Court of India, which are:

NALSA Judgment (National Legal Services Authority v. Union of India): This judgment declared transgender people are the ‘third gender’, with fundamental rights, and the right to self-identification of their gender as male, female or third-gender.

Navtej Singh Johar & Ors. v. Union of India: This judgment decriminalised all consensual sex among adults in private, including homosexual sexual intercourse.

My family has locked me in the house because I told them I am gay. What do I do?

It is a crime to lock you and restrain you inside your house for any reason. No one can forcibly confine you against your will as it violates your liberty and freedom of movement. Under the law, this is known as wrongful confinement, and anyone found guilty of doing this can face jail time up to one year and a fine of Rs. 1000. Your first step should be to reach out to government helplines, or an NGO, that can help you file a complaint with the police. You can file a complaint with the help of Section 340/342 of the Indian Penal Code, 1860.