'Change must take place...': Madras HC interim order on LGBTQIA community

Updated on Jun 08, 2021 12:48 AM IST

Justice Anand Venkatesh observed that, unlike other cases, this case gave the court an opportunity and responsibility to weigh in on inclusiveness, justice against discrimination.

File photo: Madras high court. (PTI)
File photo: Madras high court. (PTI)
By, Chennai

Madras high court Justice Anand Venkatesh on Monday issued a slew of guidelines for the LGBTQIA community’s safety, prevention of harassment by authorities and destigmatisation in a society, in an interim order passed in the case of a lesbian couple who had sought protection.

The Justice observed that, unlike other cases, this case gave the court an opportunity and responsibility to weigh in on inclusiveness, justice against discrimination, social understanding of morality and traditions. “The society and my upbringing have always treated the terms “homosexual”, “gay”, “lesbian” as anathema,” the Justice said, adding that he has no hesitation in accepting that he belongs to the majority of commoners who are yet to comprehend homosexuality.

“Ignorance is no justification for normalizing any form of discrimination,” the Justice said. "...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,” he said.

Justice Venkatesh had voluntarily undergone psycho-educative sessions with a clinical psychologist to better understand the LGBTQIA community as he aimed to deliver his judgement.

In a judgement that goes on for 107 pages, the court delved into how the interaction with the petitioners of the case and psychologist helped him in his judgement.

Sensitising stakeholders

In its judgement, the court has prohibited attempts to "cure" or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender. Failing which, action will be taken against professionals and licenses will be withdrawn. Mental health camps and awareness programs are to be conducted to understand gender, sexuality, sexual orientation and promote acceptance of diversity, the court said. This is among the suggestions indicated by the court to create awareness by ensuring that all stakeholders, such as police, judiciary, educational institutions, parents and health workers, are sensitised.

Under this, police and prison authorities are to be sensitised about the Offences and Penalties as stipulated under Chapter VIII of The Transgender Persons (Protection of Rights) Act, 2019 and compliance with Rule, 2020. NGOs with community support are to put forth first-hand problems faced in the hands of law enforcement agencies and to 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. The court also suggested programs for judicial officers at all levels to ensure non-discrimination.

Educational institutions have been asked to ensure supportive families. Schools and colleges have been asked to make gender-neutral restrooms available, include ‘transgender’ in addition to M and F gender columns and change of name and gender on academic records for transgender persons.

Directions for state and union departments

In its interim directions, the court called for Union and state governments to work towards removing prejudices and channelling the community into the mainstream. The directions include asking the police to close complaints without harassing trans persons if they receive ‘missing complaints’ of a girl/woman/man when it is found that these are consenting adults who belong to the LGBTQIA community.

The court has asked the Union ministry of social justice and empowerment to publish a list of NGOs, along with their contact details, who have expertise in handling the issues faced by the LGBTQIA+ community. The NGOs and the concerned ministry can address problems, such as counselling, monetary support, legal assistance with the support of the District Legal Services Authority, or coordinate with law enforcement agencies about offences committed against any persons belonging to the LGBTQIA+ community. The ministry is also directed to make infrastructure arrangements in existing accommodation facilities for trans persons within 12 weeks of this order.

The case pertains to a lesbian couple who fled their hometown in Madurai and are living in Chennai with the help of an NGO. Their parents had opposed the relationship and had filed a missing complaint against them with the police. Having been interrogated by the police, they approached the court for protection.

Previously the couple and their parents had also gone through counselling on the direction of the court. The case has been posted for July 31 for passing further orders when reports are expected to be submitted on measures taken to implement the interim directions by the state’s advocate general, the state public prosecutor representing the police and the Union’s government’s additional solicitor general, all state and central government departments and institutions.

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