8 Jun 2021 5:00 AM GMT
The Madras High Court has directed the Union and the State Government to take steps to prohibit attempts by physical and health professionals to medically "cure" or change the sexual orientation of people belonging to LGBTQIA+ community.The Court has also directed that action should be initiated against the concerned professional involving themselves in any form or method of conversion...
The Madras High Court has directed the Union and the State Government to take steps to prohibit attempts by physical and health professionals to medically "cure" or change the sexual orientation of people belonging to LGBTQIA+ community.
The Court has also directed that action should be initiated against the concerned professional involving themselves in any form or method of conversion "therapy", including withdrawal of license to practice.
These directions were passed by a single bench of Justice Anand Venkatesh while considering a writ petition filed by two lesbian women seeking protection from police harassment at the instance of their parents.
While holding that the LGBTQIA+ people cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety, the Court issued a slew of guidelines. Detailed story on the guidelines may be read here.
It is notable that Justice Anand Venkatesh voluntarily underwent psycho-educative sessions with a clinical psychologists and had interactions with transgender persons to overcome his prejudices and to understand the problems of homosexual people in a better manner.
'My Upbringing Treated "Homosexual", "Gay", "Lesbian" As Anathema' : Madras HC Judge Explains How He Overcame Prejudice Against LGBTQIA+ Community
The Court also issued guidelines for the sensitization of police, judiciary, educational institutions and health care professionals regarding LGBTQIA+ issues.
In 2019, a single bench of Justice GR Swaminathan had directed that sex re-assignment surgeries on inter-sex children should be banned.
Some of the significant directions by the Court in the present case are as follows:
- Parent Teachers Association (PTA) meetings should be used to sensitize parents on issues of LGBTQIA+ community and gender nonconforming students so as to ensure supportive families.
- Further, necessary amendment should be made to policies and resources to include students belonging to LGBTQIA+ community in all spheres of school and college life. In this regard, the following suggestions were issued:
1.Ensure availability of gender-neutral restrooms for the gender-nonconforming student.
2.Change of name and gender on academic records for transgender persons.
3. Inclusion of 'transgender' in addition to M and F gender columns in application forms for admission, competitive entrance exams, etc.
4. Appointment of counselors who are LGBTQIA+ inclusive, for the staffs and students to address grievances, if any, and to provide effective solutions for the same.
- In addition to the above, the appropriate government shall take effective 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 the Transgender Persons (Protection of Rights) Rules, 2020.
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.
Police and Prison authorities
- Programs should be held at regular intervals on steps to be taken for protection from and prevention of offences against the LGBTQIA+ community.
- Conduct sensitization about legal rights of 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 should 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.
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.
- Any attempts to medically "cure" or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender should be prohibited.
- Action should be initiated against the concerned professional involving themselves in any form or method of conversion "therapy", including withdrawal of license to practice
The Court also issued the following interim directions:
A. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/ investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
B. The Ministry of Social Justice & Empowerment (MSJE), should 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 should be published and revised periodically on the official website. Such details should be published within eight weeks from the date of receipt of copy of this order.
C. 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.
D. The concerned NGO in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the concerned Ministry bi-annually.
E. Such problems should be addressed with the best-suited method depending on the facts and circumstances of each case be it counselling, monetary support, legal assistance with the support of District Legal Services Authority, or to co-ordinate with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.
F. With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and "garima greh" (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE should make adequate infrastructural arrangements in this regard, within a period of 12 weeks from the date of receipt of copy of this order.
G. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream should also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies.
Title : S. Sushama and another v Commissioner of Police and others.
Bench : Justice Anand Venkatesh
Appearances : S Manuraj for petitioners; Hasan Mohammed Jinnah State Public Prosecutor; Shanmugasundaram Advocate General Assisted by Ms.Shabnam Banu Government Counsel; Shankaranayanan Additional Solicitor General Assisted by Mr.V.Chandrasekar Central Government Standing Counsel
Click here to read/download the judgment