Ignorance is no justification for normalizing any form of discrimination
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
 and NALSA V
UOI which recognised the rights of LGBTQIA+ community. Both the above
judgements triumphed the rights of inclusivity of the LGBTQIA+ community.
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.
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
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
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.
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
 and departed from the rationale adopted in it and stood in consonance
with the NALSA 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
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:
- 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.
- 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.
- Individuals belonging to LGBTQIA+ community may approach the NGOs for
safeguarding their rights on issues related to their belongingness to the
- NGOS to maintain record of the individuals contacting it as confidential
records with the Ministry of Social Justice & Empowerment (MSJE).
- 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
- 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.
- 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:
- 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.
- 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.
- MSJE, Tamil Nadu State Judicial Academy, Ministry of Law, Government of
- 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+
- 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.
- 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.
- To provide gender-neutral restrooms for the gender-nonconforming
- To allow Change of name and gender on academic records especially for
- 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.
- 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.
- 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.
- 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.
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
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.
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.
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.
- Sushma v. Commissioner of Police, W.P.No. 7284 of 2021
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
- NALSA V. UOI Writ Petition (Civil) No.400 Of 2012
- Civil Appeal No. 10972 of 2013.
- NALSA V. UOI Writ Petition (Civil) No.400 Of 2012
- Supra Note 1