HIGHLIGHTS

LGBTQ+ Rights and Same-Sex Marriage in China and India: A Comparative Legal Overview (2026)

Background

In May 2017, Taiwan became the first jurisdiction in Asia to recognise same-sex marriage after a landmark constitutional court ruling. The decision inspired LGBTQ+ communities across Asia, particularly in mainland China, where same-sex relationships are legal but same-sex marriage remains unrecognised.

Nearly a decade later, both China and India have decriminalized homosexuality, yet neither country legally recognises same-sex marriage.

Position in China (2026)

1. Legal Status of Homosexuality

• Homosexuality was decriminalised in China in 1997.
• In 2001, homosexuality was removed from China's list of mental disorders.

2. Same-Sex Marriage

• Same-sex marriage is not recognised under Chinese law.
• Multiple proposals submitted to the National People's Congress (NPC) seeking marriage equality have been rejected.
• Chinese courts have consistently refused challenges seeking recognition of same-sex marriages.

3. Recent Developments

In May 2026, China's Supreme People's Court issued a written response indicating that:

• Public insults, defamation, and discrimination based on sexual orientation or gender identity may infringe personality rights.
• Employers may face legal claims for discriminatory hiring or dismissal practices.
• Schools may be liable for bullying based on sexual orientation or gender identity.

However:

• The statement is not legally binding.
• It does not create enforceable rights.
• No national anti-discrimination law specifically protects LGBTQ+ persons.

4. Social and Political Environment

• LGBTQ+ advocacy remains heavily restricted.
• Online content relating to LGBTQ+ issues is frequently censored.
• Several prominent LGBTQ+ organisations have ceased operations due to regulatory pressures.

Conclusion on China

Although limited judicial acknowledgement of LGBTQ+ discrimination has emerged, same-sex marriage remains unrecognised, and significant legal and political barriers continue to exist.

Position in India (2026)

1. Decriminalisation of Homosexuality

The landmark Supreme Court judgment in Navtej Singh Johar v. Union of India (2018) struck down portions of Section 377 of the Indian Penal Code.

Impact

• Consensual same-sex relations between adults were decriminalised.
• The Court affirmed rights to dignity, privacy, autonomy, and equality for LGBTQ+ persons.

2. Same-Sex Marriage

The issue was addressed by the Supreme Court in Supriyo v. Union of India (2023).

Key Findings

The Constitution Bench unanimously held that:

• There is no fundamental right to same-sex marriage under existing constitutional jurisprudence.
• Courts cannot rewrite marriage laws enacted by Parliament.
• The Special Marriage Act, 1954, cannot be judicially expanded to include same-sex couples.

Important Observations

The Court nevertheless recognised that:

• LGBTQ+ persons are entitled to equal dignity and protection.
• Same-sex relationships deserve legal recognition and protection.
• The State must address discrimination faced by LGBTQ+ individuals.

3. Review Petitions

• Review petitions against the 2023 judgment were dismissed in 2025 and again in 2026.
• The Court found no error warranting reconsideration of its decision.

Conclusion on India

While India's judiciary has significantly advanced LGBTQ+ rights through constitutional interpretation, it has left the question of same-sex marriage to Parliament.

Constitutional Arguments for Marriage Equality in India

Article 14 – Equality Before Law

Supporters argue that excluding same-sex couples from marriage creates an arbitrary distinction that violates equal protection under the law.

Article 15 – Non-Discrimination

Courts have interpreted "sex" broadly to include sexual orientation, making denial of marriage rights potentially discriminatory.

Article 21 – Life and Personal Liberty

The right to dignity, privacy, and choice of partner forms part of personal liberty. Advocates argue that denying marriage recognition infringes these rights.

Arguments Against Judicial Recognition

The Union Government has argued that:

• Marriage laws are based on a heterosexual framework.
• Recognition of same-sex marriage would affect personal laws and family structures.
• Any change should be made by Parliament rather than the judiciary.

The Supreme Court largely accepted that legislative reform, rather than judicial intervention, is the appropriate route.

China and India: Key Comparison

Conclusion

• Both China and India have decriminalized homosexuality, but do not recognise same-sex marriage.
• In China, legal reform is unlikely without action by the National People's Congress, while public advocacy remains tightly regulated.
• In India, courts have expanded LGBTQ+ rights through constitutional interpretation but have declined to legalise same-sex marriage, leaving the matter to Parliament.
• Consequently, in both countries, the future of marriage equality depends primarily on legislative action rather than judicial intervention.

Reference

• - The Wire (India)
• - U.S. News & World Report (US)
• - Reuters (UK)
• - Newsweek (US)
• - HuffPost (US)
• - South China Morning Post (Hong Kong)
• - NBC News (US)
• - BBC News (UK)
• - The Diplomat (Asia-Pacific)
• - Deutsche Welle (Germany)
• - Eco News (China)
• - CGTN (China)
• - Los Angeles Blade (US)
• - Central News Agency (Taiwan)