[LGBTQIA+] The judiciary's path towards "woke-ness" till 2021

The last decade has seen significant progressive changes, globally, when it comes to the rights and acceptance of the often-marginalised LGBTQI+ individuals across the world.

. Several laws and policies have been repealed and enacted respectively for the well-being of queer persons with simultaneous progression, although not always in a linear trajectory, of acceptance of various sexual orientations and gender identities.

. While the longest strides in the LGBTQIA+ movements across the world have come from social movements, often triggered by events such as the Stonewall riots, in the Indian context such social movements to change the heteronormative idea of family and interpersonal relationships have been limited in their impact.

The Indian legislature has not prioritised a policy shift in this regard but the judiciary can and often has, especially over the last few years year, lit a path forward with increasingly inclusive judgements.

. The most significant milestone in the recent past came in 2018 with the case of Navtej Singh Johar & Ors. v Union of India when the Supreme Court read down Section 377 of the Indian Penal Code effectively decriminalising all consensual sex, including homosexual intercourse.

Justice DY Chandrachud, in his concurring judgement, said thus

" De-criminalisation is but the first step ; The Constitution envisages much more. LGBTs are victims of Victorian morality. Constitutional morality and not Societal morality should be the driving force for deciding validity of Section 377. "

. Just a year later, the Madurai Bench of the Madras High Court in Arunkumar v Inspector General of Registration held a marriage between a cis man and a trans woman valid.

In its judgement, the Court referred not only to the NALSA case but Hindu mythology, traditional lore and modern neuroscience and redefined the meaning of bride stating, " It would also include an intersex person/transgender person who identifies herself as a woman. T he only consideration is how the person perceives herself. "

. The Court also directed the Tamil Nadu government to ban sex-reassignment surgeries on intersex infants and children.

" Intersex children must be given their time and space to find their true gender identity. But the parents make the infant undergo sex reassignment surgery. The consent of the parent cannot be considered as the consent of the child ", the Court noted in its judgement.

. In December 2021, a PIL was filed before the Delhi High Court for similar orders with the petitioner arguing that such 'normalising surgeries' have long-lasting psychological impact on the minds of intersex persons and could deter them from seeking medical assistance in the future, or even during the ongoing Covid-19 pandemic.

. However, the most significant judgement in 2021 came from Justice N Anand Venkatesh of the Madras High Court in S Sushma v. Commissioner of Police where a lesbian couple had sought police protection.

The case made headlines globally and captured the hearts of many as Justice Venkatesh acknowledged that the matter has to be dealt with s ensitivity and empathy and that it is " a sample case of how society, even now, is grappling to come to terms with same sex orientation."

In a rare moment, the Judge admitted subsequently that he is trying to get over his own preconceived notions on homosexual relationships and decided to undergo an educational session with a psychologist to understand same-sex relationships better and pave the way for his evolution.

" I am not fully woke on this aspect, " he said.

. While the case has been kept open, amongst the host of directions issued in the initial judgement, a few, along with progress made in those areas, are mentioned below:

. - On Educational institutions

Necessary amendments should be made to policies and resources to include students belonging to the LGBTQIA+ community in all spheres of school and college life by providing for, among others, gender-neutral restrooms, change of name and gender on academic records, and counsellors who are LGBTQIA+ inclusive.

In December, the Madras High Court expressed its disappointment after the National Council of Educational Research and Training (NCERT) withdrew an LGBTQIA+ sensitisation action plan from its website due to external pressure.

“ Sensitisation has to start from schools and the home, and without family support, children belonging to this Community will never be able to get support elsewhere," the Court said.

. - On Judiciary

Conduct awareness programmes for judicial officers at all levels in coordination with enlisted NGOs and community support, and to provide suggestions/recommendations to ensure non-discrimination of persons belonging to the LGBTQIA+ community.

. - On Police and Prison authorities

Sensitisation and up-to-date educational programs should be held at regular intervals on steps to be taken for protection from and prevention of offences against the LGBTQIA+ community.

. - On Physical and Mental Health Professionals

Mental health camps and awareness programs should be conducted to understand gender, sexuality, sexual orientation and promote acceptance of diversity. Moreover, any attempts to medically “cure” or change the sexual orientation or gender identities of LGBTIQA+ persons should be prohibited.

The Court, in subsequent orders issued in the case of Sushma S , noted that medical courses in India reaffirm queer-phobia and discrimination and therefore, called for necessary changes to the medical curriculum which still endorse forms of "conversion therapy" camouflaged as medical and mental health support.

This was followed by the Kerala High Court which directed the National Medical Commission and the Undergraduate Medical Education Board to expeditiously take action to address the use of outdated, inhumane and discriminatory language and concepts used in MBBS textbooks while referring to the LGBTQIA+ community.

The Kerala High Court later directed the State government to frame guidelines to ensure that stringent action is taken to prevent the practice of forced conversion therapy .

. The judgement in Sushma S opened the floodgates to a torrent of LGBTQIA+ persons approaching various Courts across the country seeking legal intervention to continue in their employment or same-sex relationships in the face of objections from family and society.

. Even before the Madras High Court's comprehensive judgment, the Allahabad High Court in February this year directed the Home Guard Quarters in Uttar Pradesh to reinstate a staff member belonging to the LGBT community whose appointment was cancelled due to a video which revealed his sexual orientation. The Court said that treating sexual orientation, an individual choice of a person, as an offence would violate their right to privacy.

. Later in July, the Delhi High Court asserted that a safe house has to be provided to all type of couples, be it inter-faith, inter-caste or those belonging to the LGBTQIA+ community facing opposition from families; not doing so would amount to a violation of their rights under Article 21 .

. This was followed by two judgments from the Madras High Court , one granting police protection to a woman who was facing threats and harassment from her family after she revealed that she was queer.

The other reunited a transman and a cis woman who were in a relationship and had been living together before they were forcibly separated by the woman's father.

. In December, the Uttarakhand High Court , while granting granting police protection to a gay couple, held that persons above the age of 18 have the fundamental right to choose who they choose want to be in a relationship with regardless of any opposition raised by family members.

. Constitutional Courts stepping in to grant protection to same-sex couples can be seen not only as an after effect of Navtej Singh Johar but even as a pre-cursor to the push to legalise same-sex marriage. Two years after the landmark ruling, litigants did indeed approach Courts seeking equal marriage rights and two years hence, the case remains pending.

. " We would be like to be recognised as full human beings, " argued Senior Advocate Menaka Guruswamy in 2020 on behalf of two same-sex couples who petitioned the Delhi High Court for the legal recognition of same-sex marriage .

. However, in response to the plea, the Central government told the Delhi High Court that in spite of the decriminalisation of homosexuality, there is no fundamental right of same-sex marriage.

" Living together as partners and having sexual relationship by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a 'husband', a biological woman as a 'wife' and the children born out of the union between the two," the government submitted.

. The march pushing for legal recognition of same-sex marriages has faced opposition from litigants as well with a plea filed before the Delhi High Court in December 2021 against registration of same-sex marriages under the Hindu Marriage Act.

The plea filed by members of an organisation named Sewa Nyay Utthan Foundation said that the Hindu Marriage Act is derived from dharmic texts which allow marriages only between a man and woman. Hence, registration of same-sex marriages should be allowed only under secular laws like Special Marriage Act, it was submitted.

. The opposition to the movement towards expanding the meaning of marriage and conferring equal rights to all, especially same-sex couples, is unsurprising because marriage as we have understood it for years, has arguably been an institution to maintain heteronormativity and hegemonic caste structures.

. Recently, while delivering the 13th BR Ambedkar Memorial Lecture, Justice DY Chandrachud argued that the mere presence of multiple rights in the Constitution has not always led to a positive change in the society's perception of individuals who belong to marginalised groups such as the LGBTQIA+ community.

What is equally important, he opined, is that we celebrate their identity, recognise their individual and group identities, and create conducive spaces for them to exercise their agency.

. 'We' in this regard, implies society as a whole with the citizens, media, judiciary and legislature acting in tandem to provide active community support to the LGBTQIA+ community.

. Focusing on the role of the media, just a few days ago in the continuing case of Sushma S , the Madras High Court directed the Tamil Nadu government to come up with a standardized guide/prospective glossary containing the words and expression to address persons belonging to the LGBTQIA+ community.

"At some stage, there must be a beginning where persons belonging to this community are addressed in a more dignified manner," the Court stated.

The words include listing and explanation of terms like sex, gender, pansexuality, coming out etc. The Court urged the media and press to consider using the said list of words and expressions to address the LGBTQIA + community.

. On a host of issues such as opening of joint bank accounts, insurance coverage, and home loan eligibility, LGBTQIA+ Indians continue to be placed at a disadvantage.

Changing these circumstances has not come easily in any nation across the world but as has been suggested by Indian Constitutional Courts themselves, it requires regular deliberation to ensure queer-friendly education and work environments, "woke" government and police officers, unbiased medical professionals and respectful media reporting to name a few measures.

. This could go a long way in shattering, or at the very least cracking, preconceived notions of gender identities, sexual orientations and relationships, including for persons who belong to the queer community.

[LGBTQIA+] The judiciary's path towards "woke-ness" till 2021

Giti Pratap

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