News
Gay ambassador reflects on U.S. efforts in Ukraine
Baer talks monitoring mission, being openly gay in negotiations with Russia

Gay U.S. ambassador Daniel Baer is representing U.S. interests during the Ukraine crisis at the Organization for Security & Cooperation in Europe (Washington Blade photo by Michael Key).
Amid the ongoing crisis in Ukraine following Russian President Vladimir Putin’s military incursion into the country, the Obama administration is relying on a gay ambassador to help de-escalate tensions.
Daniel Baer, U.S. ambassador to the Organization for Security & Cooperation in Europe, has in the days since the start of the crisis been working with envoys at the Vienna-based pan-Atlantic international forum to address the situation — in addition to keeping the world updated via his Twitter account.
His priority for the moment is achieving a consensus to allow a OSCE-based monitoring mission to enter Ukraine, although he admits he’s under “no illusion” that will be easy in a body on which Moscow has veto power.
In an interview with the Washington Blade via phone from Vienna after the third emergency meeting at the forum in as many days, Baer described the multi-level approach the United States is undertaking to de-escalate tensions in Ukraine.
“In the past, we’ve seen in other situations where there have been similar concerns raised, a monitoring mission [has worked] by both assessing and reporting facts on the ground and by being there to work to mediate tension and addressing the concerns that have been raised,” Baer said.
But Baer’s participation has significance because he’s openly gay and handling negotiations with a country that is known for enacting anti-LGBT laws and having an anti-LGBT climate.
Nonetheless, Baer, 37, said he’s never felt that his sexual orientation has been an issue for Putin’s representatives at OSCE.
“Just like being gay, working with the U.S. ambassador is not a choice, and I’m ready to work with all of them,” Baer said.
Founded during the Cold War, the OSCE was set up as a forum for the United States and the Soviet Union to speak about concerns and has become a pan-Atlantic forum now comprising 57 European, Asian and North American countries.
After the U.S. Senate confirmed Baer in August as U.S. envoy to OSCE, he relocated to Vienna with his partner of three-and-a-half years Brian Walsh, 27, a physicist now working at an international think-tank on environmental issues.
The transcript of the interview between the Washington Blade and Baer follows:
Washington Blade: How would you characterize the situation in Vienna as the crisis in Ukraine unfolds?
Daniel Baer: I guess a couple things. The OSCE is a big political organization, and an operational entity that has field offices in 16 countries, including Ukraine and many independent institutions that are doing things all the time. So, there’s been kind of two levels of activity.
One, there’s been a sense of urgency in terms of getting the existing capacities of OSCE mobilized to engage in Ukraine, and particularly in Crimea now, in the ways that they can to help de-escalate tension. So, there’s a High Commissioner for National Minorities, the Swiss special envoy who’s the current ambassador to Germany now, but a designated special envoy to Ukraine who sits as the chair of the OSCE right now. The Representative on Freedom of the Media, they just arrived in Crimea a couple hours ago, and then the project office in Kiev is being supplemented.
In addition, because OSCE does arms control, and military transparency, the Ukrainians have invited military monitoring missions. They have an invitation for two military monitors from every participating state in the OSCE.
Then, there’s the political side, and lot of people focus on the downside of the OSCE, which is you operate on consensus. And it’s a big tent that includes the Russian Federation, the United States, Canada and basically everybody in between — and Mongolia. That is both a hindrance, in the sense that it makes consensus harder, but it’s also an asset in the sense that the other project that we’re starting to work on now is trying to develop a mandate for a new special monitoring mission to Ukraine and that will require consensus, but the upside is that if we can find a description of a mandate that works for everyone, it will also have the political value of being blessed by Ukrainians, the Federation, the EU countries, Turkey, ourselves and Canada.
So, it’ll have broad backing. And so, we’re kind of taking the two-pronged approach of mobilize quickly everything that’s already set up and teed up, and ready to go, and also look at this kind of near-to-medium term possibility of setting up a monitoring mission.
That’s something that I’m under no illusions — I think it’s going to be very hard, and really all we can do is tee it up, and leave that door open. And if and when the Russian Federation decides to engage on that and walk through that door, we’ll be ready to work with them.

U.S ambassador to the Organization for Security and Cooperation in Europe (OSCE) Daniel Baer addresses the media following a meeting. (Photo public domain)
Blade: What makes setting up that monitoring mission “very hard”? I know Moscow has veto power on the OSCE, so how likely is it that we’ll actually see that happening?
Baer: I think the answer is it won’t happen unless Moscow decides that they see value in it, or they think it can be useful. I think our position all along has been there are a variety of concerns that have been raised by the Russian Federation, including concerns about the security of their military base and the human rights of the Russian minority in Crimea, and Ukraine more broadly, etc. There are obviously concerns that are being raised by the Ukrainians themselves about a Russian military incursion on their territory.
But the way to address the concerns that the Russians have raised is not through sending in troops, but through a monitoring mission. And this is an alternative for them. In the past, we’ve seen in other situations where there have been similar concerns raised, a monitoring mission [has worked] by both assessing and reporting facts on the ground and by being there to work to mediate tension and addressing the concerns that have been raised. Yes, they have to choose to take that route instead of the illegal and illegitimate route that they are currently taking, but… one of the ways in which we can make de-escalation more likely is by teeing up that choice, so they can make that choice. …
Blade: Let’s get a little personal. What do you think is the significance of an openly gay person representing U.S. interests in diplomacy with Russia, a country that has passed laws against gay people?
Baer: You know, I think to all of my colleagues when I showed up here in Vienna, most of my colleagues only knew one or two things about me. Everyone knew that I was gay, and the other thing talked about was that I was young. Other than that, they knew that I was an American ambassador. Six months later, it’s certainly more important that I’m the U.S. ambassador than anything else about me, and I have a decent working relationship with all my colleagues.
I have a weekly meeting with the Russian ambassador, and Brian and I have invited him and his wife to the Marine ball along with others. So, we built a working relationship. I guess it would be an interesting question for him. For me, I’m trying to do my job the best I can and represent my country the best I can.
I think one of the strengths that America has is that we increasingly — there’s still work to do on many dimensions — but we increasingly have a diplomatic corps that represents our diversity, and part of that is important because it makes us more effective. Part of that is important because it more accurately represents the country. And it’s super important because part of what others see as valuable and powerful and engaging and attractive about America is the promise of progress toward a society that embraces rights for everyone. I don’t see that as having anything to do with me, per se, but to the extent that there’s a broader story there. I think it’s valuable that we continue to make progress on that front.
Blade: So no Russian officials refused or expressed any reluctance to negotiate with you because of your sexual orientation?
Baer: I have not had any experience where they have refused to engage with me. For some people, whether Russian or otherwise, I’m the first ambassador from the United States that they’ve known was gay and they have to work with. I guess one of the advantages of being the U.S. ambassador in a multi-lateral institution is that it’s pretty hard to be effective and not work with the U.S. ambassador — one way or the other. Just like being gay, working with the U.S. ambassador is not a choice, and I’m ready to work with all of them. And I certainly go into it giving everybody the benefit of the doubt that it isn’t an issue because it shouldn’t be an issue.
Blade: You said they haven’t refused, but have they expressed any reluctance to work with you because of your sexual orientation?
Baer: Not to me. Not to me. If they have, they’ve kept it from me.
Blade: Let’s get back to the bigger picture. Regarding Secretary of State John Kerry’s visit to Ukraine, what impact do you think it’ll have on the situation?
Baer: I think the secretary has actually come and has already arrived in Paris, and will meet with [Russian] Foreign Minister [Sergey] Lavrov in Paris tomorrow. But he spent today in Kiev. I think everybody recognizes that the people of Ukraine have a new temporary government. An election’s declared for May 25. It’s usually important that there is strong support for free and fair elections, and a free and fair campaign environment. Everybody is rightfully focused on the security crisis in Crimea, and also in the rest of the country, there’s a lot of work to do.
And I think the people of Ukraine need to be supported in their efforts to build a prosperous, free, democratic Ukraine. And that’s going to take a lot of support from the international community, and I think Secretary Kerry is going to demonstrate our support for the transition government that is there until the election and our willingness and readiness to help support them in their efforts to build a free, democratic Ukraine.
Blade: How is Kerry being there having an impact as opposed to monitoring the situation from overseas?
Baer: Well, I think, certainly there’s a diplomatic value to it in terms of the conversations that you have, and, of course, it also sends a signal. So if being there sends a signal that the depth of the U.S. commitment and our engagement with the government, I think that signal is an important one to send, particularly at a moment like this.
Blade: What about sanctions? A number of European countries seem reluctant to impose sanctions on Russia. What actually can this administration do to convince its NATO allies and trading partners to get on the program for sanctions with real teeth against Russia?
Baer: Oh, I think the president and Secretary Kerry have had a number of conversations over the last 72 hours and 96 hours with allies and partners in Europe, and I think although the EU has its own function, and we have ours, etc., I think there’s a lot of strong cooperation right now on ways to respond to Russia’s illegal actions…I think there is strong cooperation between the U.S. and the E.U. and individual member states in the E.U. making clear that the Russian incursion and military presence is unacceptable and that they need to go back to their bases, and that it’s up to President Putin to do the right thing and de-escalate the situation.
Blade: Do you see that co-operation extending to an agreement on sanctions with Europe with regard to Russia?
Baer: Like I said, the secretary and president are working very hard to keep our allies and partners appraised of our steps, and to coordinate those. I think those conversations are ongoing, and I think that that strong cooperation will continue.
Blade: What do you think Putin is trying to accomplishment with this incursion? Restoration of the Soviet Union?
Baer: I don’t know. That’s a question for President Putin. I don’t know what he’s trying to accomplish, but certainly the steps that he’s taking are not contributing to stability in the region, to the future of a strong Ukraine, which Russia has everything to gain from as a close neighbor. Russia and Ukraine are going to have a relationship determined by geography if not by partnership, and so Russia has everything to gain from a strong Ukraine. There’s not an either-or choice, and the actions that Mr. Putin have taken are a violation of international law, they’re a violation of many commitments the Russian Federation has made, including here at the OSCE with respect to the sovereignty and territorial integrity of participating states. And they’re a violation of reason, and they are not in Russia’s interest, and certainly not in Ukraine’s.
Blade: What’s your reaction to today’s news that Putin said he sees no reason for Russian forces to intervene in eastern Ukraine at the moment but that Russia “reserves the right to use all means at our disposal to protect” Russian speakers if they are in danger?
Baer: I think I reject the rationale that has been offered for the military incursion and invasion so far, and there’s no defensible rationale for further movement. The right direction for the troops to move is not further, but back to their bases.
Blade: Do you think that comment is troubling?
Baer: Like I said, I think there’s no good rationale for the Russian Federation to have its troops on Ukrainian soil.
Blade: Do you see any scenario in which this crisis will escalate into military engagement involving the United States?
Baer: Nobody wants an escalation into war, so all of our efforts are focused on de-escalating the situation through direct diplomatic engagement and the deployment of an international monitoring force either through the OSCE or the UN. They’re other ways to approach this, but we’re certainly working around the clock to the head in that direction.
Blade: Is it safe to say military engagement is off the table?
Baer: That’s not a question for me.

U.S. ambassador for the Organization for Security and Co-operation in Europe (OSCE) Daniel Baer with partner Brian Walsh. (Image public domain)
Blade: Let’s get back to some personal stuff. How is the situation with Brian since you’ve moved to Vienna and since the start of his crisis?
Baer: I get to spend far less time with Brian, but other than that it hasn’t changed anything. We’re settling well, and he’s incredibly supportive.
Blade: Do you have any anecdotes about any activities you too had engaged in since you’ve moved to Vienna?
Baer: Well, it’s been a big change because it’s a new country and a new job. And we’ve been skiing in Austria, and that was fun. Being a diplomat overseas is very different from working in the State Department. One of the advantages being here in this post is you have 56 other ambassadorial colleagues and there’s an interesting and diverse group of people to get to know.
We’re settling into that world, and the whole time, we’re very, very much aware of the fact that this is a temporary arrangement. We’re trying to make the most of it. Enjoy the hard work, enjoy the fun and cool parts of the job.
Blade: Let’s get back to Russia. How do you evaluate how Russia handled the Olympics?
Baer: I think we’re all glad that the Olympics came off without any security incidents, etc. I think, as everyone knows, there was a great deal of investment of resources and political attention in the Olympics, and I was proud of U.S. athletes.
Blade: There were reports that were some arrests of demonstrators, including those protesting about LGBT rights. Were you aware of that and do you think they were cause for concern?
Baer: Yes. It’s always of concern when there are arrests of people protesting. In the Russian Federation, unfortunately, it’s not extraordinary. And there were arrests this past weekend of protesters who were protesting Russia’s invasion. Several hundred people were detained, I believe. I should check the reports. And there was a sentence last week of protesters, people who protested in the Bolotnaya Square, protests in 2012. So, Russia’s recent record on freedom of expression and freedom of association and assembly is not encouraging.
Blade: Russia has passed anti-gay laws that were criticized by the international community. Now that the Olympics are over, what is going to happen to LGBT people in Russia?
Baer: I think there are two things. One, we will continue to call out the so-called gay propaganda law and the other laws that have either been proposed or enacted along with it. Obviously, they’re inconsistent with internationally recognized human rights, and that such laws not only affect gay people, but the broader population, and also have a teaching effect, which creates a climate in which the rights of LGBT rights are most likely to be disrespected. We’ve seen an uptick in the kind of vigilante beatings of LGBT people posted online. The climate of intolerance that such laws encourage is something to be deeply concerned about.
That said, I think one of the things that it’s really important to focus on is that it’s not only gay people who have their rights trampled in the Russian Federation. Minorities, migrants from neighboring countries that represent minority populations suffer enormous discrimination, and obviously any Russian citizen has a hard time expressing political views that are critical of the government or joining a peaceful protest. The anti-gay laws are actually happening against a much broader recession on human rights more generally.
Blade: And what do you think is the best way forward to address that by the international community?
Baer: I think first of all, I always start from the premise that lasting change comes from within, so to continue to shine a light on human defenders and advocates who are making the case for change where they are — both LGBT, and more broadly, the human rights defenders and activists — and to call out the cases when their rights are violated. I think making the case to the Russian population more broadly as well to Russian leadership that a strong stable Russian Federation does not come from doubling down on restrictions it comes from democratic progress, including people who have respect for human rights. You have to make the political argument, and you have to call out the failures, and to continue to press, and know that doors will open where you don’t expect them, and you need to be ready to walk through them.
By calling out people’s situations, you remind them that they’re not alone and that they have people who are with them, and, over the long run, you push and you push and you push.
There’s a strong civil society that understands all of the reasons why the backsliding on human rights more broadly is bad for business, and all around it’s bad for Russia, and that trajectory needs to be turned around.
Blade: What about upcoming plans for you and Brian?
Baer: We’re getting married this summer. We haven’t quite figured that out yet because same-sex marriage isn’t legal in Austria, but we’re working on that. But in August.
Congress
Lindsey Graham has passed away. Do LGBTQ people have a right to celebrate his death?
SC senator opposed marriage equality, despite speculation over sexual orientation
Uncloseted Media published this article on July 16.
By SPENCER MACNAUGHTON | On Sunday, the office of Lindsey Graham reported that the Republican senator and Trump ally from South Carolina died “from a brief and sudden illness.” The office said that the preliminary cause of death was a rupture of his aorta due to a hardening of his arteries.
Since then, many folks in the LGBTQ community, including a large number of Uncloseted followers, have — for better or worse — celebrated the senator’s death. When we posted the news on our Instagram page on Sunday, our followers commented:
- “Maybe he rest in hell”—this one got 194 likes.
- “She made sure to wait until Pride was over.”
- “And just like that the world is a better place.”
These responses are fueled by allegations that the senator lived as a closeted gay man while supporting policies that would roll back LGBTQ rights. In 2006, he voted in support of a constitutional amendment that would have restricted marriage to only being between one man and one woman. After gay marriage became legal across the U.S. in 2015, he said “I am a proud defender of traditional marriage.” And in 2022, he told CNN he would oppose the Respect for Marriage Act and later reiterated that states should decide the issue of marriage.
Outside the Washington rumor mill, there wasn’t much evidence that Graham could be gay until 2020, when adult video performer Sean Harding wrote on Twitter that “There is a homophobic republican senator who is no better than Trump who keeps passing legislation that is damaging to the lgbt and minority communities. Every sex worker I know has been hired by this man. Wondering if enough of us spoke out if that could get him out of office?”
Harding followed up with another post, writing “If you’d be willing to stand with me against LG please let me know,” and, “So far I have two individuals who would be willing to go public and support my claims. Anyone else?”
A few days later, another anonymous sex worker came forward and made similar allegations.
But after that, there was silence, with some believing these sex workers were slapped with non-disclosure agreements (NDAs). And while at least one lawyer took to Twitter saying that he’d “be more than happy to read the NDAs and look for loopholes. For free!” nobody else came forward.
That is until earlier this week, when author Jesse James Rose posted to her Instagram that Graham had paid her for sex work prior to her gender transition. Rose wrote that “Most of you know him as the homophobic senator from South Carolina but to me he will always be the man who paid a twinky pre-transition college student a fat stack of cash to do unspeakable things to him in a hotel room while he wore red lingerie.”
This dynamic has created a complicated question for LGBTQ people: Is it appropriate to posthumously celebrate the death of a man who railed against our community and used his position of power to make our lives less equitable and less safe? Is it even more fair to criticize him if he was living a secret queer life?
Or should we go high and give his track record on LGBTQ issues a positive spin now that he’s no longer with us?
In a time where social media feels like a breeding ground for angertainment, I’ll admit that the immediacy of the response to his death at first felt intense.
At the same time, I knew I didn’t want to send thoughts or prayers to a man who tried to rip my rights away.
If the alleged NDAs that Graham handed his sex workers were legitimate, they likely evaporated after his death. So now really may be the first time people can speak their truth and offer an accurate window into the absurd hypocrisy between Graham’s public and private life.
For that, I think it’s fair game to speak candidly about the story he may have worked hard to muzzle while he was here.
Pentagon
Hegseth announces testosterone initiative as trans troop ban continues
SPARTA Pride criticized Pentagon policy
The U.S. military will begin testing and treating service members with hormone therapy despite banning similar medical care for transgender service members.
Defense Secretary Pete Hegseth said Wednesday that troops ages 30 and older will be subject to annual testosterone screenings, while younger service members will have the option to voluntarily opt in. Some troops may then be recommended for hormone therapy, he explained in a video posted to social media.
“Under the supervision of our world-class medical professionals, warfighters age 30 and older are going to be tested annually as part of their periodic health assessment,” Hegseth said in a video posted to X, captioned “The High-T Department of War.”
This push to test testosterone levels, as the hormone is commonly referred to as “T,” runs counter to current medical guidelines. Physicians are generally advised to discuss testosterone therapy only with men who have symptoms consistent with low testosterone and documented low hormone levels on two separate blood tests.
Testosterone is a vital sex hormone that all humans naturally produce. It helps regulate muscle mass, bone density, and sex drive. In men, it is primarily produced in the testicles, while in women it is produced in the ovaries and adrenal glands.
Natural testosterone levels in men decline with age and have long been associated with issues such as erectile dysfunction, low libido, mood changes, and weight gain. However, experts continue to debate whether these conditions should routinely be treated with testosterone therapy.
Hegseth’s announcement aligns with other actions taken by the Trump-Vance administration — including efforts by Health Secretary Robert F. Kennedy Jr. — to make testosterone therapy more accessible for men, particularly those assigned male at birth.
Last month, the Food and Drug Administration proposed easing prescribing restrictions on testosterone gels, pills, patches, and injections following a December advisory panel that recommended reducing regulatory hurdles to expand access to testosterone therapy.
Currently, FDA labeling specifies that these medications are approved only for men with hypogonadism, a medical condition that causes abnormally low testosterone levels.
The announcement came as a shock to many LGBTQ advocates because Hegseth and the Defense Department have cited the use of hormone therapy by trans service members as justification for their dismissal under President Donald Trump’s 2025 executive order, “Prioritizing Military Excellence and Readiness.“
The Pentagon continues to pursue implementation of the trans military ban as litigation proceeds. As a result, many trans service members have had their gender-affirming medical care halted, even as similar hormone therapy is now being expanded for cisgender service members. Under the executive order, the military currently disqualifies individuals diagnosed with gender dysphoria and has begun formal administrative separation proceedings for trans personnel.
SPARTA Pride, a nonpartisan nonprofit organization made up of trans service members, veterans, and their allies, issued a statement to the Washington Blade following Hegseth’s announcement.
“If hormone therapy helps warfighters perform at their best, then it cannot simultaneously be used as evidence that transgender service members are unfit to serve,” said Kara Corcoran, executive director of SPARTA Pride. “The same class of evidence-based medical treatment cannot be characterized as readiness-enhancing for one group and readiness-destroying for another.”
The legal fight over trans military service remains ongoing.
On June 1, the U.S. Court of Appeals for the D.C. Circuit ruled that trans service members already serving in the military could continue to do so, while allowing the armed services to continue refusing to enlist new trans recruits.
The Blade reached out to the Pentagon to ask why cisgender service members could receive hormone therapy while trans service members could not, but did not receive a response by the time of publication.
India
Expected India Supreme Court ruling could shape future LGBTQ rights cases
Decision to determine whether courts can use constitutional morality doctrine
India’s Supreme Court is expected to issue a closely watched constitutional ruling that could shape the future of LGBTQ rights litigation.
The decision will determine whether courts can continue to rely on the doctrine of constitutional morality, a principle that has underpinned several landmark rights decisions. During hearings in April, the Indian government urged the Supreme Court to reject the doctrine, arguing that it has no basis in the Constitution and should not guide judicial decision-making.
For years, the Supreme Court has relied on the constitutional morality doctrine to treat the Constitution as a living document: one whose enduring promises of justice, liberty, equality, and fraternity must be applied to the realities of a changing society rather than remain frozen in the era in which it was written.
The Indian government in April asked the Supreme Court to revisit the constitutional reasoning behind two landmark judgments: one that struck down the country’s adultery law and another that decriminalized consensual same-sex relations, arguing that both relied on a subjective invocation of constitutional morality and should no longer be treated as good law.
Arguing before a 9-judge bench considering constitutional questions referred from the Supreme Court’s 2018 Sabarimala temple case, which allowed women of menstruating age to enter one of Hinduism’s holiest shrines after a centuries-old ban, Solicitor General Tushar Mehta, India’s second-highest law officer, argued that “constitutional morality” has no textual basis in the Constitution and is instead a judicially evolved concept that is vague and indeterminate.
Mehta said the government did not oppose the Supreme Court’s decision to strike down Section 497 of the Indian penal code, which criminalized adultery, if it was based on Article 14 of the Constitution, which guarantees equality before the law and equal protection of the laws. Instead, he argued that the court should not have relied on what he described as the “vague and subjective” doctrine of constitutional morality to reach its conclusion.
Mehta told the Supreme Court that its 2018 Navtej Singh Johar v. Union of India ruling that decriminalized consensual same-sex relations wrongly equated “morality” with majoritarian or mob morality while relying on constitutional morality as the basis for its reasoning.
To support his argument against relying on constitutional morality, Mehta quoted extensively from then-Justice Antonin Scalia’s dissent in the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas.
Scalia argued that courts should not import foreign legal trends or allow evolving social values to drive constitutional interpretation, contending that judges must remain neutral arbiters rather than participants in broader cultural debates.
Referring to the Supreme Court’s landmark decisions in Navtej Singh Johar and Joseph Shine, Mehta questioned whether the judgments reflected the constitutional vision of India’s founding generation.
“If these judgments, Navtej Johar, Joseph Shine, etc., were to be read by Dr. Ambedkar or Kanhaiyalal Munshi or Alladi Krishnaswamy Iyer, I do not know whether they would be surprised, shocked or they would say that this is what we wanted. I believe, they did not want this to happen,” he told the bench.
“A new trend starts, which is Naz Foundation v. Government of NCT of Delhi,” Mehta said. “This is the judgment of Delhi High Court which was ultimately affirmed in Navtej Johar, sodomy … ‘In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.’ In case of a country governed by democratic principles, the view which is always majoritarian will prevail. When it is question of testing a law, it is always the majority which passes the law. How can you define morality based on this?”
The Naz Foundation case marked the beginning of a landmark constitutional challenge to Section 377 of the Indian penal code, a colonial-era provision that criminalized consensual same-sex relations between adults as “against the order of nature.” The public interest litigation, filed in 2001 by the Naz Foundation, an NGO working on HIV/AIDS and sexual health, argued that the law violated fundamental rights guaranteed under the Constitution.
In 2009, the Delhi High Court ruled in the organization’s favor, holding that Section 377 violated the rights to equality under Article 14, protection against discrimination under Article 15, and life and personal liberty under Article 21 of the Constitution.
The Delhi High Court’s ruling was short-lived.
In 2013, the Supreme Court, in Suresh Kumar Koushal v. Naz Foundation overturned the decision, recriminalizing homosexuality under Section 377.
The court held that the law affected only a “minuscule fraction” of the population and said it was for Parliament — not the judiciary — to decide whether the provision should remain on the statute books. Five years later, the Supreme Court’s Constitutional Bench in Navtej Singh Johar, unanimously overruled its 2013 judgment, holding that Section 377 was unconstitutional. The decision marked the culmination of the Naz Foundation’s long legal challenge to the colonial-era provision.
Anish Gawande, the first openly gay person to serve as a national spokesperson for a major political party in India, the Nationalist Congress Party (Sharadchandra Pawar), told the Washington Blade that the doctrine of constitutional morality, which he said underpinned not only Navtej Singh Johar but also forms one of the foundational principles of India’s constitutional jurisprudence, is “an incredibly important concept.”
“It provides a moral backbone to the document in a way that prevents any amendments to the Constitution from being out into place that would violate the very ethos upon which the Constitution was framed,” Gawande said. “Constitutional morality is an incredibly important antidote to societal morality. It’s been what has allowed us to clamp down on things like dowry. It’s been something that has allowed us to bar even regressive religious practices that might go against human dignity. It’s also been an incredibly important framework that has allowed for the advancement of LGBTQ rights in opposition to arguments made by practitioners and leaders of various religious denominations about the societal immorality of queerness.”
“The most critical part of constitutional morality, which is a doctrine that has been put in place by the courts, is that it is a very effective bulwark against majoritarianism and the unilateral diktat of the executive over the judiciary and, in some ways, also the legislature,” he added.
Gawande said those factors make constitutional morality “an incredibly important concept” in Indian constitutional jurisprudence.
If the Supreme Court were ultimately to narrow or reject the doctrine, he said, judgments that have relied on constitutional morality, including the landmark Navtej Singh Johar ruling could come under renewed scrutiny. He added, however, that he did not believe the Supreme Court would take that step because it would run contrary to its own institutional interests.
Gawande said the government has advanced several reasons for challenging the doctrine of constitutional morality. One of them, he said, is that the solicitor general has opposed the doctrine in cases involving religious issues, arguing that courts should not rely on it in constitutional adjudication.
“The downward repercussions of this, however, could extend to LGBTQ rights and to the rights of all sorts of persecuted minorities in the future,” he said.
“The second thing is that, in principle, the section 377 judgment, of course, rests upon constitutional morality, but it is also resting upon so many other fundamental rights, including the right to privacy that Puttuswamy upheld before the Navtej Singh Johar verdict,” Gawande added. “In Navtej, the right to privacy was also cited as an incredibly important condition upon which the decriminalization of ‘carnal intercourse against the order of nature’ could be permitted. In many ways, the fact that Section 377 does not exist on the statute books at all in the present updated penal codes, Bharatiya Nyaya Sanhita and Bharatiya Nagarik Suraksha Sanhita, provides some respite. The entry of Section 377, at least immediately after a reading down of constitutional morality, is not imminent yet. However, it opens the door for a new Section 377 to be introduced and the judicial mechanism available to counter that new section 377, if it were to be introduced, to be reduced significantly.”
Ankit Bhupatani, an LGBTQ activist, said he does not believe the Supreme Court’s reconsideration of constitutional morality would lead to the recriminalization of consensual same-sex sexual relations.
He argued the 2018 Navtej Singh Johar decision rests on multiple constitutional principles beyond constitutional morality, but warned that weakening the doctrine could make it more difficult to secure future LGBTQ rights through the courts.
“If we have to take an informed guess on why the government does not like the concept of constitutional morality, it is because it wants a narrower field of judicial review and an elected legislature restored as the primary author of social policy,” Bhupatani said. “But we have already seen parliament’s ability to make laws related to LGBT rights, and it does not give optimism.”
“The only practical way forward for LGBT rights in India is the judiciary,” he added. “But if the government’s argument is accepted by the Supreme Court, it means the next gay Indian who walks into a court for marriage, for adoption, for inheritance, or for a job they were fired from, finds it more difficult to secure these rights from the only institution from which we could hope for a positive outcome.”
Bhupatani said the decriminalization of consensual same-sex sexual relations would probably survive because the Navtej Singh Johar judgment also rests on the constitutional principles of privacy and equality. However, he warned that weakening the doctrine of constitutional morality could stall broader progress for LGBTQ rights.
“The community keeps the floor and loses the staircase,” he said. “Nobody is criminalized, but nobody moves up.”
“The clever thing about this is that it lets the government have it both ways. To its so-called base, who think that making the law, especially on social issues, is the work of elected parliamentarians and not judges,” said Bhupatani. “It signals that the 2018 verdict was a judicial overreach that ought never to have happened. To everyone else, truthfully, that it never asked to recriminalize anyone. Both messages, one filing.”
Bhupatani said the implications of the government’s position extend beyond LGBTQ rights, arguing that asking the Supreme Court to treat the reasoning in Navtej Singh Johar as “not good law” raises broader questions about India’s commitment to constitutional rights. He said such a move could also affect how India’s constitutional democracy is perceived internationally.
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