In a ground-breaking judgment on the rights of the LGBTQIA+ community, the Madras High Court on June 7, 2021, issued guidelines for creating a safe environment for LGBTQIA+ persons and to ensure that they are not harassed by the police during the investigations into missing complaints filed by their parents.
Madras High Court passed the judgment in a hearing of a case pertaining to a lesbian couple from Madurai, who had eloped and moved to Chennai. Their parents, who were against this, filed missing persons complaints and in connection with the same, the police tracked down the couple and interrogated them. An activist and another member from the LGBTQIA+ community had alleged harassment from police for giving shelter to the couple. Following this, the two women approached the Madras High Court, seeking a direction to stop harassment from the police and to protect them from any form of threat or danger to their safety and security from their parents.
The Court in its order directed the Union government to devise policies to eliminate prejudices against LGBTIQA+ people and organize sensitization programme for judiciary, police, public servants, health professionals and parents of LGBTIQA+ persons.
The Madras High Court also said that it hopes the legislature also starts evincing more interest on this very important issue. “This is more so since people, especially the present generation have started talking more about it and they are desperately wanting to find a solution at least to the extent that persons of the LGBTQIA+ community are left to live peacefully.” Following this, the Madras High Court issued slew of guidelines for protecting LGBTQIA+ community till such a law is brought in. The Hon’ble Judge said that, “Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety. This gap is now sought to be filled in by way of issuing guidelines till law takes over and guarantees safety and protection.”
POLICE AND PRISON AUTHORITIES; DISTRICT AND STATE LEGAL AUTHORITIES
- Programmes at regular intervals on steps to be taken for protection from and prevention of offences against the LGBTQIA+ community.
- Conduct sensitization about the legal rights of the LGBTQIA+ community at regular intervals.
- Not limited to the above programs, sensitization programs are to be conducted for police personnel, creating awareness about the Offences and Penalties as stipulated under Chapter VIII of The Transgender Persons (Protection of Rights) Act, 2019 and compliance of Rule 11 of the Transgender Persons (Protection of Rights) Rules, 2020.
- Outreach programs to be conducted by the NGOs with community support to put forth first-hand problems faced in the hands of law enforcement agencies, and to train them in providing effective assistance.
- Ensure that transgender and gender-nonconforming prisoners are housed separately from cis-men prisoners to eliminate chances of sexual assault by the latter on the former.
- To conduct awareness programmes for Judicial Officers at all levels in coordination with the enlisted NGOs and community support and to provide suggestions/ recommendations to ensure non-discrimination of persons belonging to the LGBTQIA+ Community.
PHYSICAL, MENTAL HEALTH PROFESSIONALS
- Assistance to the LGBTQIA+ community and their environment, by affording physical and mental health support who are facing stigma and discrimination from society.
- Mental health camps and awareness programs to understand gender, sexuality, sexual orientation and promote acceptance of diversity.
- Prohibit any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender.
- To take action against the concerned professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.
- Sensitization programs as provided by Rule 10(7)(b) of Transgender Persons (Protection of Rights) Rules, 2020 shall be in addition to the above.
- Effective change in curricula of schools and universities to educate students on understanding the LGBTQIA+ community. Outreach programs to be conducted in association with NGOs and members of the LGBTQIA+ community.
- Through Parents-Teacher Association (PTA) meetings, sensitize parents on issues of the LGBTQIA+ community and gender-nonconforming students, to ensure supportive families.
- Amendment of necessary policies and resources to include students belonging to the LGBTQIA+ community in all spheres are schools and universities. e.g.,
- Ensure the availability of gender-neutral restrooms for gender-nonconforming students.
- Change of name and gender on academic records for transgender persons.
- Inclusion of transgender in addition to M and F gender columns in application forms for admission, competitive entrance exams, etc.
- Appointment of counsellors who are LGBTQIA+ inclusive, for the staff and students to address grievances, if any, and to provide effective solutions for the same.
- Non-pathologizing of gender-diverse children, intersex children, and LGBTQIA+ youth. Sensitization and orientation of Anganwadi workers and similar personnel on transgender issues and involve them in assisting the parents of the LGBTQIA+ youth.
- Awareness programs and workshops, with the help of LGBTQIA+ members/workers, for inclusion of the LGBTQIA+ community, amongst the employees.
- Such awareness programs shall also include sensitization on the prohibition of discrimination as provided in The Transgender Persons (Protection of Rights) Act, 2019 and relevant rules under Transgender Persons (Protection of Rights) Rules, 2020.
- Suitable changes in hiring policies for inclusivity. Setting up and enforcement of Human Resource policies to make them the LGBTQIA+ community friendly.
- Support members of the LGBTQIA+ community in case of any grievance.
- Extension of benefits, e.g., insurance to members of the LGBTQIA+ community. To adopt suitable 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 LGBTQIA+ MEMBERS
- Understanding and accepting children of diverse gender expressions, sexual orientation, gender identities and gender presentation.
- Provide peer support for parents of members belonging to the LGBTQIA+ community through support groups.
Justice Venkatesh remarks:
- Justice N Anand Venkatesh, who had undergone an educational session with a psychologist to understand the same-sex relationship said that “I have no hesitation in accepting that I too belong to the majority of the commoner who is yet to comprehend homosexuality completely”, ignorance is not justification for normalizing any form of discrimination so I took this upon myself the vested responsibility and the duty to deliver justice in all the form and spirit of cutting across personal and prejudice and notion setting forth to at least educate myself list my ignorance interference within guiding homosexuality and LGBTQIA the community toward the social justice.
- “Unlike regular litigations, the present case has given this Court, not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition.”
- “I realized, after a one-on-one interaction with the Petitioners, that it was I (us), who has to set off on a journey of understanding them and accepting them and shed our notions, and not they who have to turn themselves inside out to suit our notions of social morality and tradition.”
- “The society and my upbringing have always treated the terms ‘homosexual’, ‘gay’, ‘lesbian’ as anathema. A majority of the society would stand in the same position of ignorance and preconceived notions.”
- “I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships,”
‘Change needed in law, in society’
The Court observed that, “…the actual problem is not the fact that the law does not recognise a relationship but that the sanction that is accorded by the society is not available. It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships.”
The High Court directed that if the police in case of a missing complaint, finds the persons and the people are found to be consenting adults belonging to the LGBTQIA+ community, the police should take their statements and close the missing persons complaint without subjecting them to any harassment.
The Court then instructed the Union of India and other Central Government Departments and Institutions to ensure that the concerned departments file their reports on the steps and measures taken by them to implement the interim directions. The High Court then posted the case for further hearing to August 31.
– Vaishali Jain, Advocate & Associate – POSH at Work