This article is written by Yashika Kapoor pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
In 2019, YouGov conducted a survey on LGBTQIA+ queries wherein they interviewed 1000 people. Not only 300 people identified themselves as homosexual, queer and transgender but also shared the challenges faced by them. 48% of people responded that social acceptance of the LGBTQIA+ community is still a major issue including other problems like social violence, employment discrimination, conversion therapy, housing discrimination, marriage, and adoption. So, even after the decriminalization of Section 377 in the celebrated judgment; Navtej Singh Johar & Ors. v. Union of India, the LGBTQIA+ community is still fighting for equal rights and social acceptance. Even though the law upholds the rights of the LGBTQIA+ community, sensitization on this momentous topic still remains a persisting issue. It is true that social acceptance of the LGBTQIA+ community requires awakening in the society which is not going to happen overnight and might take years to normalize.
The acronym LGBTQIA stands for lesbian, gay, bisexual, transgender, queer and/or questioning, intersex and asexual and/or ally; where the term ‘lesbian’ refers to a woman who is sexually and/or emotionally attracted to other women, ‘gay’ refers to a man who is sexually and/or emotionally attracted to other men, ‘bisexual’ refers to someone who is sexually and/or emotionally attracted to more than one gender, ‘transgender’ refers to someone whose gender does not conform with the sex they are assigned at birth,’ queer’ is an umbrella terms that covers individuals who are neither straight nor cisgender (cisgender refers to someone whose gender expression conforms with the sex they are assigned at birth), ‘questioning’ refers to someone who is not sure how they identify, ‘intersex’ includes people who naturally have biological traits that do not conform with what is normally identified as male or female, ‘asexual’ is an umbrella term used for people who either experience a low level of sexual desire or does not experience at all, ‘ally’ refers to individuals who identify themselves as straight and cisgender however they support and believe in social and legal equality for LGBTQIA+ community. Lastly, adding a ‘+’ to the acronym LGBTQIA implies inclusion of such other people (non-cisgender and non-straight) who are not previously included in the given acronym.
Before discussing the progressive order of Madras High Court and the landmark steps involved therein to end the prejudice against the LGBTQIA+ community, we should discuss the most commonly used term ‘Pride Month’. The month of June is celebrated as Pride Month to honor the members of the LGBTQIA+ community. The struggles faced by the LGBTQIA+ community against discrimination and ostracisation are commemorated in June. The landmark step was taken by the Madras High Court surely seems to be a win-win situation for the LGBTQIA+ community members and an add-on to the pride month.
The recent case of Madras High Court that ended prejudice against the LGBTQIA+ community
This case is yet another ordinary story of a lesbian couple (petitioners) whose relationship was not backed by their parents and they strongly opposed such a relationship between their daughters. The couple with the support of an NGO and some members of the LGBTQIA+ community managed to secure accommodation and were looking for employment opportunities that could sustain them. Meanwhile, the parents filed missing complaints before the concerned police authorities, following which two FIRs were registered. Thereafter, the concerned police authorities landed at the couple’s place and apprehended a threat to their safety and security. Consequently, the couple approached the Madras High Court by way of filing a writ petition under Article 226 of the Indian Constitution seeking direction to the police authorities not to cause harassment and protect from any threat or danger to their safety and security.
The Hon’ble Justice N. Anand Venkatesh instead of deciding this case in terms of the precedents and by the law itself went a step ahead and adopted a very unusual and interesting approach. He considered this matter to be a sample case of how society is grappling to deal with homosexuality. In order to break the preconceived notions of people including Hon’ble Justice Venkatesh himself about the LGBTQIA+ community, the court dealt with the matter with more sensitivity and empathy. Not only did the Hon’ble Court arrange counseling sessions for the couple and their parents with a psychologist and psychotherapist but also requested the psychologist to share the reports. Also, the concerned police officials were directed not to interfere in the present issue any longer and close the complaints immediately.
The concerned report shared by the counseling psychologist was divided into four parts:
- First Part: Understanding the falsified notions of sex, gender, sexual orientation.
- Second Part: Mental status and observations made after counseling the petitioners.
- Third Part: Mental status and observations made after counseling the first petitioner.
- Fourth Part: Mental status and observations made after counseling the second petitioner.
The psychologist in the second part of the report opined that the couple perfectly understands their relationship and has no confusion with respect to that. Undoubtedly, the couple is affectionate towards their parents but the fear of their separation by the parents surpasses their love. The couple is even willing to wait for their parents to understand their relationship at some point of time in the future. On the other hand, the psychologist in the third and fourth part of the report opined that parents are concerned about the stigma attached to such a relationship in society and the consequences it shall have on their family. Not only do the parents feel a great amount of shame, fear, social disdain, and concern about the safety and security of their daughters but also have serious confusion with respect to lineage, adoption, and other normal consequences seen in a heterosexual relationship. Staggeringly, the parents instead prefer their daughters to live a life of celibacy. The Hon’ble Justice Venkatesh suggested another round of counseling for the parents of the couple by rightly mentioning that evolution cannot take place overnight and it requires continuous efforts to bring in a change. However, on observing the details of the second counseling session, no substantial change was noticed in the attitude or thought process of the parents.
The Hon’ble Justice Venkatesh then decided to undergo a counseling session himself and opined that;
“I want to give myself some more time to churn. Ultimately, in this case, the words must come from my heart and not from my head, and the same will not be possible if I am not fully “woke” on this aspect. For this purpose, I want to subject myself to psycho-education with Ms.Vidya Dinakaran (counseling psychologist) and I would request the psychologist to fix a convenient appointment for the same. I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart”.
Following are some of the key points extracted from the report of the counseling session of Hon’ble Justice Venkatesh:
- Seeing homosexuality as a relationship confined only to sex is one of the biggest misconceptions people have in their minds.
- The discussion took place on a problematic binary understanding of sex, gender, and sexuality. It is wrongly believed by most people that heterosexuality is the only natural orientation that can arise out of the binary system.
- A common notion is that sexual relationships that don’t result in procreation are not the ‘right’ or a ‘valid’ kind of relationship.
- It was discussed that homosexuality existed for long and references can be drawn from Hindu scriptures, mythologies, and in the iconography of temples.
- Our education system does not represent or discusses queer narratives.
- When a queer person discloses their identity at their own homes which are considered to be the safest place for any human being, the same home turns into a hostile environment. So the way society would deal can be imagined.
- It is observed that homonegativity is present in every sector be it with loans, jobs, housing. Talking about same-sex marriage is still not recognized by the law and hence considered illegitimate.
- Forces (Police Authorities) that are responsible for protecting the members of such communities instead turn out as potential dangers. There are several incidences in police stations when queer individuals seeking support and protection are faced with demeaning dialogues. Such reasons contribute to suicide and self-harm amongst the queer community, the rate of which is manifold when compared to cis individuals with heterosexual identity.
- Hon’ble Justice Venkatesh realized that there is something fundamentally misunderstood by him and part of society. However, the wellbeing of the upcoming generations is the prime concern and so efforts must be taken for their well-being as such steps cannot be overlooked because of the rigid attitude of some people.
- Hon’ble Justice Venkatesh shared his belief that an institution is responsible for working towards the betterment of society. A judge being a public servant has to work for the well-being of society and if such a purpose of the public servant is not achieved then the person is unfit to hold the position.
- No verse in the Gita or Bhagavata Purana condemns homosexuality, only talks of love and integrity as a necessity for a healthy relationship and does not state a presence of a man and woman as the requirement for the same.
- Lastly, it was observed that sexual pleasure can be obtained in several ways and intercourse is just one of them (even in a heterosexual relationship) and not the ultimate goal. This lack of awareness or understanding itself creates a lot of misconceptions and one needs to have open conversations around these topics too.
By the aforesaid observations, it can be viewed that even after the decriminalization of Section 377 of the Indian Penal Code, the lives of the members of the LGBTQIA+ community changed merely on paper and not very much in reality.
To understand the ground realities, distress, social discrimination, and other issues of the LGBTQIA+ community, Hon’ble Justice Venkatesh interacted with various members of the LGBTQIA+ community. One of them was Dr. Trinetra, a transwoman herself who not only shared her lived experiences but even submitted an extensive report post the interaction wherein she shared details based on her research and knowledge on the subject of the LGBTQIA+ community.
Constitutional Rights Available to the LGBTQIA+ community
Following are the relevant provisions under the Indian Constitution that guarantee rights to the LGBTQIA+ community.
Article 14 of the Indian Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15(1) of the Indian Constitution that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. The Delhi High Court in Naz Foundation v. Government of the NCT of Delhi opined that “sexual orientation” is a prohibited ground analogous to “sex” in Article 15(1) of the Constitution. Chief Justice A.P Shah held:
“We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”
Furthermore, Justice Indu Malhotra in her concurring judgment observed the elements constituted under the prohibited grounds in Article 15(1) and reasoned that any sort of discrimination based on these grounds would undermine the personal autonomy of the individual. She also observed that the word “sex” is not merely restricted to the biological attributes of the individual but also their “sexual identity and character” as well as “sexual orientation.
Justice Chandrachud in his concurring judgment observed Article 21 of the Indian Constitution to safeguard and protect the constitutional values of liberty, dignity, autonomy, and privacy. It was noted by him that the right to privacy is intrinsic to liberty, central to human dignity, and the core of autonomy. These values are integral to the right to life under Article 21 of the Constitution. Further, it was held that a meaningful life is a life of freedom and self-respect and nurtured in the ability to decide the course of living.
Referring to Navtej Singh Johar & Ors. v. Union of India case, it can be concluded that “Article 21 of the Indian Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners. Sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression, and choice of partner thereof. This right and the manner of its exercise are constitutionally protected under Article 21 of the Constitution. Furthermore, the enactment of the Transgender Persons (Protection of Rights) Act, 2019 is a clear pointer that Parliament has recognized varying forms of sexual identity”.
Interim guidelines and directions passed by the Madras High Court
The guideline and directions passed by the court are:
- In case, if the police come across any complaint concerning a girl, woman, or man and upon further investigation if such individuals are found as consenting adults belonging to the LGBQTIA+ community, then the police shall close the complaint immediately without subjecting such individuals to any kind of harassment.
- The Ministry of Social Justice and Empowerment (MSJE) is directed to provide as well publish a detailed list of NGOs particularly dealing with the issues of the LGBQTIA+ community on its website.
- The aforementioned step is done to protect the LGBQTIA+ community members.
- Not only do the NGOs are directed to maintain confidential records of the people approaching them but also they are responsible to submit the aggregate data to MSJE biannually.
- Issues faced by the members of the LGBQTIA+ community shall be dealt with exclusively either by providing monetary support, counseling, or legal assistance with the help of DLSA or any other support. For the resolution of problems faced by the community members and for offences committed against members of the LGBQTIA+ community, help can be taken from the law enforcement agencies.
- Suitable arrangements shall be made for dealing with the issue of accommodation. The existing accommodation facilities (stay homes, Anganwadi shelters, and Garima Greh) were only limited to provide shelter, food, medical care, and recreational facilities, however, post this order, such homes shall also provide support for capacity building and skill development of the LGBQTIA+ community.
- Other measures and policies required to eliminate preconceptions against the members of the LGBQTIA+ community shall be taken up and such measures shall be devised with the help of the Union and State Govt. along with other ministries and departments.
- The Hon’ble Court suggested certain awareness programmes for stakeholders including police and prison authorities, DLSA and SLSA, judiciary, physical and mental health professionals, education institutions, health workers, public and private workplace institutions, and parents of LGBQTIA+ community members. It is pertinent to mention that this is a mere suggestive measure and so the list is only indicative and not exhaustive in nature.
Police and prison authorities
The Home Department and Govt. of Tamil Nadu shall be responsible for:
- Conducting programs at regular intervals and shall take steps for protecting the LGBTQIA+ community.
- Conducting sensitization periodically about legal rights of LGBTQIA+ community.
- Conducting sensitization programs for police personnel and creating awareness about the Offences and Penalties under the Transgender Persons (Protection of Rights) Act, 2019 and complying with Rule 11 of the Transgender Persons (Protection of Rights) Rules, 2020.
- Conducting outreach programs for understanding the problems faced by law enforcement agencies and training them in providing effective assistance.
- Ensuring that transgender and gender-nonconforming prisoners are housed separately from cis-men prisoners to eliminate chances of sexual assault by the cis-men prisoners on the transgender and gender-nonconforming prisoners.
DLSA and SLSA (District and State Legal Services)
The Ministry of Law, Govt. of Tamil Nadu and Tamil Nadu State Legal Services Authority shall be responsible for:
- Conducting awareness programs periodically to provide effective legal services to the LGBTQIA+ community.
- Conducting awareness programs promoting the rights of transgender persons and prohibition of discrimination against them
- Providing free legal aid to the members of the LGBTQIA+ community.
- Inclusion of issues faced by the LGBTQIA+ community in Lok Adalat.
The MSJE, Tamil Nadu State Judicial Academy, Ministry of Law, Govt. of Tamil Nadu shall be responsible for:
- Conducting awareness programmes for Judicial Officers at all levels in coordination with the enlisted NGOs and community support and providing suggestions/ recommendations to ensure non-discrimination of persons belonging to the LGBTQIA+ community.
Physical and mental health professionals
The National Medical Commission, Indian Psychiatric Society, Rehabilitation Council of India shall be responsible for:
- Assisting the members of the LGBTQIA+ community by providing physical and mental health support to people who face stigma and discrimination from society.
- Organising mental health camps and awareness programs about gender, sexuality, sexual orientation and promoting acceptance of diversity.
- Prohibiting any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ members to heterosexual or the gender identity of transgender people to cisgender.
- Raising voice and taking action against the professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.
- Organising sensitization programs given under Rule 10(7)(b) of Transgender Persons (Protection of Rights) Rules, 2020.
Note: Conversion therapy refers to procedures offered by hospitals or religious institutions by which they falsely claim to medically cure LGBTQIA+ persons or change transgender people to cisgender in order to confirm their gender with birth sex.
The National Medical Commission, Ministry of Education, Government of India, School Education Department, Government of Tamil Nadu, Department of Higher Education, UGC, AICTE, National and State Council for Education Research and Training (NCERT, SCERT) shall be responsible for:
- Bringing effective changes in curricula of schools and universities for educating the students on LGBTQIA+ community.
- Conducting outreach programs with NGOs and LGBTQIA+ community members.
- Sensitizing parents on issues of LGBTQIA+ community and gender nonconforming students in Parents Teacher Association (PTA) meetings.
- Amending the necessary policies and resources to include students belonging to the LGBTQIA+ community in all spheres are schools and universities.
- Some examples of such policies include: ensuring the availability of gender-neutral restrooms for gender-nonconforming students, changing names and gender on academic records for transgender persons, including ‘transgender in addition to M and F gender columns in application forms for admission, competitive entrance exams, etc.
- Appointing counselors who are LGBTQIA+ inclusive, for assisting the staff and students to address grievances, if any, and to provide effective solutions for the same.
- The appropriate government shall also take effective measures for education, social security, and health of transgender persons as according to the Transgender Persons (Protection of Rights) Act, 2019.
The Ministry of Women and Child Development, Health and Family Welfare, and the Government of India shall be responsible for:
- Non-pathologizing of gender diverse children, intersex children, and LGBTQIA+ youth.
- Sensitizing the Anganwadi workers and similar personnel for transgender issues, and include the theme to assist the parents of LGBTQIA+ youth.
Public and private workplace institutions
The Government of India and the Government of Tamil Nadu shall be responsible for:
- Raising awareness by conducting workshops and organizing programs along with LGBTQIA+ members/workers, to include the LGBTQIA+ community amongst the other employees.
- Conducting such awareness programs on the prohibition of discrimination as given in the Transgender Persons (Protection of Rights) Act, 2019 and its rules.
- Making suitable changes in hiring policies of.
- Efforts must be taken to set up and enforce Human Resource policies LGBTQIA+ community-friendly.
- Supporting members of the LGBTQIA+ community in case of any grievance.
- Providing benefits, e.g. insurance to members of the LGBTQIA+ community.
- Adopting policies that address non-discrimination on grounds of sexual orientation, including sexual harassment of persons belonging to the LGBTQIA+ community in the workplace.
Parents of LGBQTIA+ community members
- The Ministry of Social Justice and Empowerment (MSJE) is required to take steps to make the parents of the members belonging to the LGBTQIA+ community understand and accept children of diverse gender expressions, sexual orientation, gender identities, and gender presentation.
- The MSJE shall also provide peer support for such parents by support groups.
The aforementioned steps taken by the Madras High Court demonstrate the novel approach adopted by Hon’ble Justice Venkatesh in deciding the matter. In times were belonging to an LGBTQIA+ community has become a tool of harassment, this order surely proves to be a very progressive and favorable one. Before ruling this case, Hon’ble Justice Venkatesh first decided to deal with his own prejudices and learn more about the LGBTQIA+ community. The court was cognizant of the difference that was being referred to. That is to say, the difference between the law of land (precedent) that existed and the perspective of society.
Hon’ble Justice Venkatesh passed a series of guidelines/directives after he underwent psycho-education sessions and counseling sessions. He not only gained an insightful impression about the LGBTQIA+ community himself but also stood as an example for others. Hon’ble Justice Venkatesh affirmed that he belongs to the majority of commoners who are yet to comprehend homosexuality completely, however, he believes that Ignorance is no justification for normalizing any form of discrimination. The efforts taken by Hon’ble Justice Venkatesh are laudable. He truly inspires every individual to understand the emotions and sentiments of the LGBTQIA+ community. Similarly, individuals must set aside their prejudices and notions and instead educate themselves about homosexuality and the LGBTQIA+ community.
These extensive guidelines were passed when Hon’ble Justice Venkatesh thoroughly completed his ground research and understood the societal perspective. Even after the ruling, efforts are still being taken to improvise the situation for the LGBTQIA+ community and so the present case is set to be monitored regularly and followed up with various departments to ensure that the directions issued by this Court are executed and enforced. The manner adopted by the Hon’ble Court in ending the prejudice against the members of the LGBTQIA+ community proves to be quite a historic and path-breaking way to sensitize people.
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