LGBTIQA+: India
This is a collection of articles archived for the excellence of their content. |
Contents |
Court decisions
HC bans ‘cure’ for LGBTIQA+ members/ 2021
Sureshkumar k , June 8, 2021: The Times of India
The Madras high court suggested a ban on health professionals from attempting to medically ‘cure or change’ the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender. The court also directed National Medical Commission, Indian Psychiatric Society and Rehabilitation Council of India to take action, including withdrawal of licence to practise, against professionals involved in any form or method of conversion “therapy” to LGBTIQA+ members.
Justice N Anand Venkatesh laid down a slew of guidelines covering issues ranging from gender-neutral restrooms for the gender-nonconforming student and help to change name/gender on academic records for transgender persons, besides suggesting separate jails for transsexuals.
These are among directives issued by Justice Anand Venkatesh, who chose to undergo ‘psycho-education’ under qualified counsellors to understand same-sex relationship issues, before writing the verdict.
Duo moved HC to restrain police from harassing them
The case relates to a Madurai-based lesbian couple, aged 23 and 20 years, who chose to live as a married couple. Facing resistance from their families, they fled to Chennai and took refuge with an NGO. As police continued to visit them following complaints lodged by their parents, the two had moved the HC to restrain cops from harassing them.
Justice Anand Venkatesh said: “The voice of this community is now getting louder and stronger and society can no more turn a deaf ear and the time has come to make that change.” Noting that he himself was “pulled out of darkness (ignorance)” by two counsellors, he said: “The society and my upbringing have always treated the terms ‘homosexual’, ‘gay’, ‘lesbian’ as anathema.”
The court has directed the Centre to organise sensitisation programme for judiciary, police, public servants, health professionals and parents of LGBTIQA+ persons. The matter has been adjourned to August 31.
Supriyo verdict, 2023, and after
Kartavi Satyarthi, Rakshita Goyal & Namrata Mukherjee, Oct 17, 2024: The Times of India
Thanks to Supreme Court judgments, queer persons can name their partners as nominees while opening bank accounts. Protection has also been provided against discrimination in healthcare settings. But gaps still remain. In this context, the apex court’s verdict in Supriyo vs Union of India (‘Supriyo’) presents an opportunity for the central and state govts to move a step closer towards ensuring the inclusion of queer persons within the country’s legal regime. The top court noted the govt’s duty to address discrimination faced by persons from the LGBTQIA+ community and directed the Union govt to set up a high-powered committee (HPC) to examine this and propose measures. While access to goods and services is being facilitated for those in same-sex relationships, there are some necessary next steps that remain to be taken:
Relationship Benefits
Marriage allows access to a bouquet of rights and entitlements. These include maintenance, inheritance, healthcare decision-making, joint loan application, and nomination for benefits such as insurance. Queer persons are denied these rights because their relationships are not recognised by law.
What Has Been Done?
➤ Bank Accounts: The department of financial services has issued a circular clarifying that there is no restriction on queer couples from opening joint bank accounts. Persons in a ‘queer relationship’ can nominate their partner to receive the balance in their account upon their death.
➤ Ration Cards: An advisory issued by the department of food and public distribution has clarified that persons in queer relationships will be treated as part of the same household for the purpose of ration cards. States and UTs have been directed to take measures to ensure there is no discrimination against queer couples in the issuance of ration cards.
➤ Deed Of Family Association: The draft Tamil Nadu Gender and Sexual Minority Policy provides for the legal recognition of queer relationships through a deed of family asso- ciation. However, the legislation is yet to be enacted.
What Needs To Be Done?
➤ Amendments To Special Marriage Act, 1954: It was enacted to recognise inter-faith marriage of heterosexual couples. Amending it to accommodate queer relationships may be a first step towards inclusion. Provisions referring to ‘husband’ or ‘wife’ under the Act should be amended to the gender-inclusive ‘spouse’. A gender-inclusive maintenance provision should be brought in, accompanied by an indicative list of factors for courts to grant maintenance, accounting for gendered factors such as the value of unpaid domestic labour.
Recognising Civil Unions: Despite the advisories regarding joint bank accounts and ration cards, one overarching question remains: How will the state determine who is in a ‘queer relationship’? Will it be based on a self-declaration? Or will the officials concerned examine the existence of such a relationship in each case? A law recognising and regulating civil unions would provide an answer. While benefits may be extended to same-sex partners in non-marital relationships through piecemeal amendments to various beneficial laws, a holistic law would ensure smoother implementation and clarity, and would help avoid exploitation.
A law on civil unions must outline the following:
■ Who can enter into civil unions (for example, people above the age of 18, irrespective of their gender).
■ The characteristics of such civil unions (for example, living in a shared household at some point or sharing a degree of financial interdependence).
■ A process for the registration or declaration of such unions, as well as for their dissolution.
■ Rights flowing from such a union, such as adoption and inheritance. Countries around the world have adopted a progressive approach towards recognising queer relationships. UK allowed same-sex couples to enter civil partnerships before enactment of the Marriage (Same Sex Couples) Act, 2013. In Canada, before the nationwide recognition of same-sex marriage in 2005, different states and provinces progressively recognised and regulated civil unions.
➤ Recognition Of Atypical Families Through Nominations: The queer community has demanded that people should be allowed to nominate any person of their choice as their next-of-kin for purposes ranging from healthcare decision-making and bank account nominations to execution of their estate following death. It believes that the choice of such a person should not be restricted to natal family members, marital family members, or partners in civil unions.
A typical family structures, beyond marriage and kinship, abound in India. Some examples are hijra gharanas and platonic cohabitation arrangements among friends. These chosen families provide both emotional and financial support outside the bonds of marriage and biology. Provisions for nomination are a way of legally recognising these de facto structures of care.
Access To Goods, Services
Queer individuals often find themselves struggling to access basic amenities and goods, singly or as part of a relationship. This includes lack of access to housing, education, and employment. For instance, accessing rental properties is accompanied by disheartening stigma as most owners or neighbours prefer traditional families. Similarly, queer persons are generally vulnerable to extreme forms of harassment, bullying, isolation and prejudicial treatment at workplaces and educational institutions. To ensure access to goods and services will, therefore, require legislative and executive measures.
What Has Been Done?
➤ Healthcare: Directions to state health departments to address the discrimination faced by queer persons in accessing healthcare.
➤ Transgender Rights Act: Transgender persons are covered by the Transgender Persons (Protection of Rights) Act, 2019, which prohibits discrimination in matters of education, employment, healthcare, movement, housing, holding public or private office, and accessing care or custody, and goods and services.
What Needs To Be Done?
Comprehensive Anti-Discrimination Law: The Transgender Rights Act prohibits discrimination against only transgender persons. A comprehensive anti-discrimination law that prohibits private and public discrimination, including on the grounds of sexual orientation, is the need of the hour.
➤ Effective Remedies: The Transgender Rights Act does not provide for effective remedies against discrimination by private parties. This can be addressed by providing an accessible grievance redressal mechanism.
➤ Reservations: Affirmative action in the form of reservation corrects historical and continuing discrimination against marginalised groups. SC had directed the govt to provide reservations to transgender persons in matters of public employment and education. The Transgender Act does provide for reservations, and it is critical to introduce the same.
➤ Education: Educational institutions need to be safe spaces for individuals to express themselves. This can be achieved through sensitisation and a review of the educational curriculum, including National Education Policy. Not very long ago, a 16-yearold committed suicide due to bullying in school. Hence, law must expressly recognise bullying directed against queer individuals.
➤ Old Age Homes: There is a pressing need for queer-inclusive old-age care facilities as a lot of queer persons are rejected by their natal families and have precarious livelihoods. Implementing policies that provide for a discrimination-free environment for queer persons at old age homes can go a long way in this regard.
Part 1 of a two-part series.
The writers are with Vidhi Centre for Legal Policy
Glossary
HC proposes glossary on LGBTQIA+ for media reports
Suresh Kumar, Dec 28, 2021: The Times of India
CHENNAI: In a bid to add dignity to the lives of members of the LGBTQIA+ community, Madras high court has come up with a style sheet -- a standardised glossary -- to be followed by media in their news articles about the community.
Justice N Anand Venkatesh has also requested the media, particularly Tamil media, to adopt the style sheet till the state government comes up with a glossary to be followed by media.
“This court wants to make an earnest request to the media to take into consideration the words and expressions mentioned in the glossary, to be used while addressing persons belonging to the LGBTQIA+ community,” the judge said.
If these words and expressions are used regularly, it will become a common practice and that will pave the way for a dignified identity for persons belonging to this community, the court added. “This court reposes confidence in the media that they will seriously consider the request made by this court and start implementing the same henceforth,” the judge said. The issue pertains to a plea moved by a same-sex couple who faced harassment at the hands of police and their parents.
Initially, when the plea came up for hearing, Justice Anand Venkatesh chose to undergo a counselling session, as he felt that lacked understanding of the issues faced by the community. The judge then passed a series of orders touching upon the need to sensitise people, particularly judiciary and police, on the issue. The court also highlighted the need to revamp the medical education curriculum to sensitise medical practitioners.
On December 23, when the plea came up for hearing, advocate S Manuraj, who initially represented the petitioners and now assisting the court, circulated a short note focusing on the standardised guide/prescriptive glossary containing the words and expressions to be used by the press and media while addressing persons belonging to the LGBTQIA+ community. Taking the note on record, the court passed the order.
TN unveils glossary
Sureshkumar k, August 24, 2022: The Times of India
Chennai:In a first for the nation, Tamil Nadu has issued a government order publishing a glossary of Tamil terms to address LGBTQIA+ community members. Nudged by the Madras high court to do so, the government has also made it mandatory for all forums, including the media, to address them only by using the specific terms published in the gazette.
The order dated August 20 was passed following a suggestion made by Justice N Anand Venkatesh to address persons belonging to the LGBTQIA+ community with due dignity. The suggestion was made during the hearing of a plea moved by a lesbian couple alleging police harassment.
When the plea came up for hearing, counsel for the state produced a copy of the order issued by the social welfare and women empowerment department in the court.
“It is made clear that all concerned, including the press, must take note of the notification published in the gazette on August 20 and address persons belonging to LGBTQIA+ community by using only the notified terms wherever required,” said Justice Anand Venkatesh, recording the order.
The judge directed the state to file a status report and adjourned the hearing to September 2.
Same-sex marriage
Madras HC asks TN government to consider adopting a “deed of familial association” for recognising gay relationships
Ambika Pandit, Nov 27, 2023: The Times of India
New Delhi : The Madras high court order aimed at providing minimum protection from harassment and discrimination to LGBTQIA+ couples by suggesting to the Tamil Nadu government to consider adopting a “deed of familial association” for recognising such relationships, has come like a ray of hope for the community.
An emerging concept, the ‘deed of familial association’ as proposed by the petitioner in the case provides for a deed to ensure that two persons from the LGBTQIA+ will have a right to live in a relationship and also have a right to protection. The deed will provide a shield against harassment by society and discrimination that can impact employment, housing and assimilation in society. However, the deed will not give the contracting individuals the legal status or rights flowing from a marriage or a civil union.
After the Supreme Court judgement refused to recognise same sex marriages or even civil unions putting the ball in the court of the legislature, the community was seized by disappointment. Interestingly, the HC order suggests a deed of familial association while citing the SC judgement.
Justice N Anand Venkatesh said that though the SC has refused to recognise marriage between same sex cou ples, it has categorically recognised the right of choice of two persons to have a relationship.
With no specific guidelines yet on safeguards against harassment for such couples, the legal experts and the community are now hoping to see if the deed of familial association (DFA) going forward could provide that much needed legal template for recognition of such relationships and safegaurd against harassment.
All eyes are now on the Tamil Nadu government as to whether it will agree to creating a mechanism for DFA and define the scope of a such deeds. The HC order puts the onus on states to take the lead.
SC, 2023: Judges enumerate hurdles
Dhananjay Mahapatra, April 26, 2023: The Times of India
From: Dhananjay Mahapatra, April 26, 2023: The Times of India
New Delhi: A five-judge constitution bench of the Supreme Court was prima facie unanimous that even if it decides to grant marriage rights to same-sex couples, it will refrain from determining consequential rights, including adoption, succession and inheritance, as these are inseparably linked to religion-based personal laws.
On the fourth day of hearing on pleas by LGBTQIA+ community members and social workers demanding right to marriage as a natural corollary to decriminalisation of gay sex, a five-judge bench headed by Chief Justice DY Chandrachud offered a reality check to them by pointing out that nearly three dozen laws governed various rights accruing to spouses from a marriage. “There is no denying the fact that these issues are intrinsically linked to religion-based personal law. The Special Marriage Act is a secular law and intended to facilitate inter-caste and interfaith marriages. But Hindus, Jains, Buddhists and Sikhs, who get married under this law, fall back on their perso- nal law for inheritance and other benefits,” the CJI said.
“The canvas covered by the petitioners demanding marriage rights for same-sex couples does fall in the domain of Parliament,” he added.
SC rejects same sex marriage 5 – 0, adoption 3 – 2
Dhananjay Mahapatra, Oct 18, 2023: The Times of India
NEW DELHI: The Supreme Court rejected the plea to legalise same-sex marriages and extend the right of adoption to queer couples, in a setback to the push for equal treatment of those with alternative sexual orientation.
Despite asserting that queerness is neither urban nor elite, a bench of Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha disappointed the hopeful faces in the courtroom with a unanimous ruling that the right to marry was not a fundamental right and the legislature had the power to regulate it in accordance with societal conditions.Unequivocally stating that the legislature alone could effect changes in marriage laws and other consequential legislations to allowsame-sex couples the right to legally tie the knot, the bench said it was not for the court to read down or insert words into Section 4 of the Special Marriage Act (SMA), 1954, to erase the statutorily essential man-woman component of a marriage.
The bench also agreed that a high-powered committee to be set up by the government should examine all factors relevant to the queer community and consider benefits for them.
But the unanimity ended there. While the CJI and Justice Kaul opined that same-sex couples could adopt, the majority opinion was against it.
An emotional roller coaster in apex court
It was a roller-coaster of emotions as CJI DY Chandrachud on Tuesday held that same-sex couples could adopt a child - an opinion Justice SK Kaul concurred with. After the rejection of same-sex marriage, hopes were momentarily raised for a consolatory relief for the LGBTQIA+ community, 21 of whom had petitioned the Supreme Court last year and numerous others had intervened.
But their hopes crashed as the opinions of the CJI and Justice Kaul became the minority view after the blunt opinion of Justices SR Bhat and Hima Kohli, with whom Justice PR Narasimha agreed, rejecting adoption rights to same-sex couples. Both Justice Chandrachud and Justice Bhat spent 45 minutes each reading out important portions of their judgment in the courtroom.
While the bench unanimously held that right to marry was not a fundamental right, the judges differed on the issue of same-sex couples entering into civil unions which would entitle them to marriage-like rights.
CJI Chandrachud, in his 247-page opinion, said, "Queerness is a natural phenomenon known to India since ancient times. It is not urban or elite." However, he conceded that the regulation of marriage through legislation by the state was necessitated to "democratise personal relationships”.
"The Constitution does not expressly recognise a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law... This court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This court cannot read words into the provisions of the SMA and provisions of other allied laws because that would amount to judicial legislation. The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain," he said. However, the CJI and Justice Kaul said a transgender male could legitimately marry a transgender woman under SMA. This opinion was agreed to by other three judges.
The CJI said, "The gender of a person is not the same as their sexuality. A person is a transgender person by virtue of their gender identity. If a transgender person is in a heterosexual relationship and wishes to marry their partner (and if each of them meets the other requirements set out in the applicable law), such a marriage would be recognised by the laws governing marriage. This is because one party would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband.”
Agreeing with the CJI, Justices Bhat and Kohli said, "There cannot be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom." However, they disagreed with the CJI and said it was not necessary to refer to same-sex relationships as civil unions and make them entitled to other rights that flow from a marriage-like relationship.
"We do not, therefore, agree with the CJI who has underlined that the positive postulate of various rights leads to the conclusion that all persons (including two consenting adult queer persons) have an entitlement to enter into a union, or an abiding cohabitational relationship which the state is under an obligation to recognise 'to give real meaning' to the right," Justices Bhat and Kohli said. Justice Narasimha agreed with their opinion.
Referring to the Navtej Johar judgment decriminalising same-sex relationships, Justices Bhat and Kohli said, "Previous judgments of this court have established that queer and LGBTQ+ couples too have the right to union or relationship (under Article 21) - 'be it mental, emotional or sexual' - flowing from the right to privacy, right to choice, and autonomy. This, however, does not extend to a right to claim entitlement to any legal status for the said union or relationship.”
How queer couples could achieve legal status for their relationships was an issue to be addressed by the legislature, Justice Bhat said. "The modalities of how it should play out, what it will entail etc are facets that the state - here the legislature and the executive - needs to exercise its power in furtherance of. Now, whether this will happen through proactive action of the state itself, or as a result of sustained public mobilisation, is a reality that will play out on India's democratic stage, and something only time can tell.”
