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A Step Towards Transformative Constitutionalism To Hailing LGBTQIA + Rights: Madras High Court Bans Gay Conversion Therapy

Ignorance is no justification for normalizing any form of discrimination [1]

LGBTQIA+ stands for lesbian, gay, bisexual, transgender, queer, intersex and asexual and plus sign allows to cover allies, pansexual, androgynous, and polyamorous who form a faction of the society which have faced timeworn discrimination since times immemorial as a result of their sexual orientation and gender identity.

The recent order of Madras High Court is in furtherance of the precedents set by Supreme Court, in Navtej Singh Johar V UOI[2] and NALSA V UOI[3] which recognised the rights of LGBTQIA+ community. Both the above judgements triumphed the rights of inclusivity of the LGBTQIA+ community.

The recent order of the Madras High Court hails to be the first judicial decision in India in which a Judge underwent a psycho-educative counselling to ensure that his very preconcieved notions and biases do not pollute the clear stream of justice. The counselling session reports were shared by Justice Venkatesh in the judgement to instill life in the order. The historic order issues various steps and guidelines to be brought into action for realising the right of the LGBTQIA+ community in its true sense.

Background
The Case brought forth before the High Court introduced the petitioners as a lesbian couple, in their early twenties, who have fled their hometown in Madurai to take shelter in Chennai with the support of an NGO. The petitioners decision of fleeing from their hometown was to evade their parents (respondents) who were both resistant and apprehensive of their relationship. As a result, the respondents filed an FIR of missing complaints of their daughters before the police authorities. The police officials began with their interrogation of the couple at their premises which further escalated them of their concern of safety and security.

To avoid the above circumstances, they filed a writ petition before the High Court of Madras to issue directions to the police authorities to avoid harassment and protect them from any danger towards their safety and security from their parents. In the light of the above state of facts the court considered the matter as of grave concern and suo moto added various Ministries, NGO and National Commission as respondents in the above matter. Justice Anand Venkatesh futher ensured counselling of the lesbian couple, their parents and of himself as well. It was all done in order to destigmatise homosexuality and to avoid any iota of doubt among all the parties to the court.

A Historic Order For The LGBTQIA+

The order of the Madras High Court can be deconstructed on two points namely:
  • Transformative Constitutionalism
  • Issuing Guidelines And Steps For Building A LGBTQIA+ Inclusive Society.
     

Transformative Constitutionalism:

The order is a step towards transformative constitutionalism as it tries to bridge the gap of the previous rulings on LGBTQIA+ community to the current case in hand. The earlier rulings recognised the rights of the community but the recent order went a step further by not only recognizing the rights but also undergoing psycho educative counselling to eliminate homophobic stigmas.

It also explicitly issued guidelines and steps for various authorities to abide by the order and submit a report of the implementation of the order issued by the court. Transformative Constitutionalism does not mean amending the constitution so that its in pace with the current societal needs but includes wider interpretation and enforcement of the existing provisions in the constitution itself. The order cited the various fundamental rights under article 14 15 and 21 available to the petitioners.

The court cited the supreme court judgment of Suresh Kumar Kaushal case[4] and departed from the rationale adopted in it and stood in consonance with the NALSA[5] judgement and further reaffiremed it's stand with the above decisions made in light with Article 14 and 15 that:
We have referred exhaustively to the various judicial pronouncements and legislations on the international arena to highlight the fact that the recognition of sex identity gender¯ of persons, and guarantee to equality and non-discrimination¯ on the ground of gender identity or expression is increasing and gaining acceptance in international law and, therefore, be applied in India as well.

Under article 21 the court upheld that:

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.

It reaffirmed and was in consonance with the previous rulings that a wider interpretation of the LGBTQIA+ rights in light of the constitution of India is needed. To trace it, it cited various rulings, before the constitution got enacted till current date, it acknowledged that emphasis has shifted from negating the LGBTQIA+ rights to finally accepting it not only in Indian constitution but overseas as well.

Issuing Guidelines And Steps For Building A LGBTQIA+ Inclusive Society:

  1. The police on receiving missing complaints of consenting adults (girl/man/woman) of LGBTQIA+ community shall on the receipt of such complaints must not subject them to any kind of harassment and close the report for the same.
     
  2. The Ministry of Social Justice & Empowerment (MSJE), has to mention the list of all Non Governmental Organisations including community based groups that revolve around dealing with sufficient experience in matters related to LGBTQIA+ community with contact details on it's portal within 8 weeks from the receipt of this order.
     
  3. Individuals belonging to LGBTQIA+ community may approach the NGOs for safeguarding their rights on issues related to their belongingness to the community.
     
  4. NGOS to maintain record of the individuals contacting it as confidential records with the Ministry of Social Justice & Empowerment (MSJE).
     
  5. The problems arising out of the above mentioned issues should be dealt with appropriate methods such as counselling, monetary support and legal assistance with the help of District Legal Services Authority or other law enforcement agencies as per the needs and circumstances of the case brought before it.
     
  6. The issues arising out of accomodation of LGBTQIA+ people, appropriate changes can be made in that regard by existing short stay homes, Anganwadi shelters, and garima greh¯( shelter home for transgender persons) with regards to basic facilities of shelter, food, medical care and recreational activities in addition to skill development as well to live a life of dignity in the society. It is the duty of MSJE to provide requisite infrastructure within 12 weeks of receipt of this order.
     
  7. The Central and State governments in consultation with other ministries needs to devise such policies which take into regard other issues faced by the LGBTQIA+ community to eliminate prejudices.

It also issued various sensitization programmes that needed to be conducted by the concerned Ministry of the Union/State Government(s) to destigmatize homophobic prejudices such as:
  1. Home Department, Government of Tamil Nadu
    • The Police and Prison authorities have to create both awareness and sensitization programmmes in conformity with the Transgender Persons (Protection of Rights) Act, 2019 and compliance of Rule Home Department, Government of Tamil Nadu of the Transgender Persons (Protection of Rights) Rules, 2020. in addition to it conducting Outreach programs by the NGOs with community support to deal with issues of first-hand problems and providing requisite training for the same to provide effective assistance and also ensure that transgender and gender-nonconforming prisoners are housed separately from cis-men prisoners to avoid sexual assault of the latter.
       
  2. Tamil Nadu State Legal Services Authority, Ministry of Law, Government of Tamil Nadu:
    • District Service Legal Authority has to conduct awareness programmes with the help of NGOs and other community based groups in relation to the right of the transgenders and prohibit discrimination as per the Transgender Persons (Protection of Rights) Act, 2019. To include free legal aid and also including issues of LGBTQIA+ community in Lok Adalats for their benefit.
       
  3. MSJE, Tamil Nadu State Judicial Academy, Ministry of Law, Government of Tamil Nadu
    • Judiciary it needs to conduct awareness programmes for Judicial officers at all levels in coordination with the NGOs enlisted by MSJE and community support by providing recommendations to end discrimination of LGBTQIA+ community.
       
  4. National Medical Commission, Indian Psychiatric Society, Rehabilitation Council of India.
    • Physical and mental health professionals needs to conduct awareness programmes for the LGBTQIA+ community to end stigmas in the society with respect to them. To prohibit such therapies which involves conversion to hetrosexuals by revoking the license of the professional concerned who is employing such therapies. Mental Health camps to be organised to spread awarenes about gender, sexuality, sexual orientaton and to promote acceptance of the community.
       
  5. National Medical Commission, Ministry of Education, Government of India, School Education Department, Government of Tamil Nadu, Department of Higher Education, Government of Tamil Nadu, UGC, AICTE, National and State Councils for Education Research and Training (NCERT, SCERT)
    • Education institutions have to change their curricula in schools and universities to include sensitization and outreach programmes to sensitize about LGBTQIA+ community both in schools and universities. To include parent teacher associations (PTAs) about LGBTQIA+ to sensitize them about gender non conforming students to ensure supportive families through these PTAs. Change in necessary policies and resources of school and varsities to include students belonging to LGBTQIA+ community. E.g.
      1. To provide gender-neutral restrooms for the gender-nonconforming students.
      2. To allow Change of name and gender on academic records especially for transgender persons.
      3. Inclusion of transgender column as well in addition to M and F gender columns in application forms for admission, competitive entrance exams, etc.

      Appointment of LGBTQIA+ inclusive counsellors, for the staffs and students to address grievances, if any, and to provide appropriate remedy for the same. The government shas to take necessary steps to implement measures in relation to transgender persons as stipulated by Chapter VI of The Transgender Persons (Protection of Rights) Act, 2019 and Rule 10 of Transgender Persons (Protection of Rights) Rules, 2020.
       
  6. Ministry of Women and Child Development; Health and Family Welfare, Government of India.
    • Health workers need to create awareness and avoid pathologizing of LGBTQIA+ youth. Sensitization among Aganwadi workers and other similar personnels on issues of transgender and to develop initiative by supporting the parents of LGBTQIA+ youth.
       
  7. Government of India and Government of Tamil Nadu
    • Public and Private workplace/ institutions have to conduct awareness programmes and workshops inclusive of LGBTQIA+ community members. To end discrimination as per the Transgender Persons (Protection of Rights) Act, 2019 and relevant rules under Transgender Persons (Protection of Rights) Rules, 2020. Policies need to be drafted to build LGBTQIA+ inclusive workplaces by hiring members of the community. To support and extend benefits to the LGBTQIA+ community such as insurance to it's members.
       
  8. Ministry of Social Justice & Empowerment (MSJE)
    • Parents of LGBTQIA+ members need to welcomes and support to childrens of diverse gender expressions, sexual orientation, gender identities and gender presentations. In addition to, providing peer support to parents of the childeren of LGBTQIA+ community.

Conclusion
The Madras High Court order, has approached a distinct style of delivering the order, is appreciated as it set aside the conventional way of delivering orders. It is of utmost importance that the above decision employed psycho educative counselling to arrive at a better decision making ability in which the court accepted:
To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue.[6]

The decision was welcomed by the community members as it has explicitly laid down guidelines for their inclusion in almost all spheres by giving directives and steps to various state and central departments and ministries for it's holistic development. It cannot be denied that society is still grappling with concerns related to the community members and fails to acknowledge them.

The recent order may set new precedents which will whole heartedly welcome diverse gender expressions and identities in the future without any anathema.

To ensure that the directive issued by the court are being followed and not at a standstill, the court has not dismissed the petition instead it has kept it pending to follow the monitoring of the regular updates brought before it by the concerned departments as well as ministries in this regard.

End-Notes:
  1. Sushma v. Commissioner of Police, W.P.No. 7284 of 2021
  2. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
  3. NALSA V. UOI Writ Petition (Civil) No.400 Of 2012
  4. Civil Appeal No. 10972 of 2013.
  5. NALSA V. UOI Writ Petition (Civil) No.400 Of 2012
  6. Supra Note 1

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