Almost three years after the Supreme Court landmark ruling that gay sex is no longer a criminal offence and struck down the colonial-era law known as section 377, Madras High Court on Monday, June 7, issued sweeping guidelines to end the discrimination against the LGBTQIA+ community.
While hearing a case filed by a lesbian couple in which the couple had accused the police of subjecting them to harassment after their parents filed a missing person report, a single judge bench of Justice Anand Venkatesh ruled in favour of the couple.
However, the court did not stop here and issued an expansive set of guidelines, including legislations, and called for the elimination of illegal discrimination against members of the LGBTQ community.
“The actual problem is not the fact that the law does not recognize 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 law there will be a remarkable change in the outlook of the society by recognising same-sex relationships,” Judge Venkatesh said in his judgement, according to Live Law.
To ensure that members of the LGBTQIA+ community are not subjected to any harassment regarding “missing person” complainants filed by their families. The Court has ordered police to close the missing police complaints if it is found that the case involves two consenting adults belonging to the LGBTQIA+ community.
The High Court has asked the Ministry of Social Justice and Empowerment (MSJE) to enlist NGOs including community bases groups in handling issues faced by the LGBTQIA+ community. MSJE will have to put the details of such NGOs with address, contact details and services provided on the official website and maintain the confidentiality of persons who approaches them. The MSJE will also provide short-stay homes, Anganwadi shelters, and "Garima Greh" (shelter home for trans 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 12 weeks.
The Court has also asked the government to take measures that are needed for eliminating prejudices against the LGBTQIA+ community and channelising them back into the mainstream. It has also asked the government to conduct sensitisation programmes for police and prison authorities, district and state legal service authorities, officials in the judiciary, physical and mental health professionals, education institutions, health workers, public or private institutions as well as parents of people from LGBTQIA+ community.
The High Court has also government to 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” and revoke licenses of medical practitioners who claim to be involved in any form of conversion therapy. Conversion Therapy is a procedure offers to change the sexual orientation of LGBT people.
For educational institutes, the High Court recommended that schools should use parent teachers’ association meetings to sensitise parents on the LGBTQIA+ community and gender nonconforming students. It also asked schools and colleges should make gender-neutral restrooms available.
“Ignorance is no justification for normalizing any form of discrimination”
One of the remarkable factor in the judgement was that Judge Anand Venkatesh mentioned his own lack of knowledge and understanding on record. He underwent a counselling process, while hearing the case, to understand the same-sex relationship better.
In his order, he referred to Vidya Dinakaran and Dr Trinetra, who became his “gurus” and helped him “in the process of evolution and pulled him out of darkness”, reported Live Law.
“I also felt that I remove the "Lordship's" hat and instead wear the hat of the average commoner in the society, who have not given thought to understand or accept, who are attempting to understand, who totally refuse to understand or accept the LGBTQIA+ community. 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,” Judge Venkatesh said in his judgement, according to Live Law.
“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 added.