In historic order, Madras HC gives guidelines against discrimination of LGBTQI+ people

Justice Anand Venkatesh of the Madras High Court had sought education on the issues of the LGBTQI+ communities in India before giving a thoughtful judgment.
A pride march held in India
A pride march held in India
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In a groundbreaking judgment on the rights of the LGBTQIA+ community, the Madras High Court on Monday, June 7, 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. The High Court bench of Justice Anand Venkatesh had sought education in April with a psychologist and members of the  LGBTQIA+ community to better understand their issues and deliver an informed judgment.  

The court, in its June 7 order, has directed the Union Ministry of Social Justice and Empowerment to publish a list of NGOs with contact details for LGBTQIA+ people to approach for safeguarding and protecting their rights. The court also asked the Union government to ban any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ persons — also known as conversion therapy.

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.

HC issues guidelines to Union govt

The High Court has asked the Ministry of Social Justice and Empowerment (MSJE) to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. “The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order,” the High Court said. “Any person who faces an issue for the reason of their belongingness to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights,” the court added. Such NGOs have to maintain confidential records of every person who approaches them and the data should be provided to the concerned Ministry twice every year.

The court has asked that suitable changes be made in existing short-stay homes, Anganwadi shelters, and “garima greh” (a shelter home for transgender persons) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The Court has asked the Union government to make adequate infrastructural arrangements within a period of 12 weeks.

The Court has said that sensitization programs should be conducted for police and prison authorities, district and state legal service authorities, officials in the judiciary, physical and mental health professionals, education institutions, health work, public or private institutions as well as parents of people from LGBTQIA+ community.

The government has also been asked to take up any other measures that are needed for eliminating prejudices against the LGBTQIA+ community and channelizing them back into the mainstream. The court also asked the Union government to prohibit any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ persons to heterosexual, or the gender identity of transgender people to cisgender. The High Court has asked authorities to take action against people or professionals who claim to be involved in any form or method of conversion therapy, including cancelling their license to practice.

'Ignorance no justification for discrimination'

In April, the judge hearing the case, Justice Anand Venkatesh, had requested an appointment with a psychologist to understand same-sex relations and for his evolution on this matter. In the order, the judge explained why he decided to do so. He said, “I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination. Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards 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,” he added. 

“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,” Justice Anand Venkatesh said.

‘Change needed in law, in society’

On Monday in his order, Justice Venkatesh wrote, “...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 Madras High Court also said 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,” the court said. Following this, the Madras High Court issued slew of guidelines for protecting LGBTQIA+ community till such a law is brought in. He said, “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.”

The High Court has said 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 judge 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.

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