THE CONTEXT: Underlining that sexual autonomy is an essential aspect of the right to privacy, the Madras High Court issued far-reaching guidelines aimed at mainstreaming LGBTIQA+ persons.
Analysis:
- The order was issued by Justice N Anand Venkatesh on a plea filed by a lesbian couple whose relationship was being opposed by their parents.
- The petitioners had moved the Madras High Court seeking protection against police harassment and from any threat or danger to their safety and security.
- Saying LGBTQIA+ persons are entitled to their privacy and “have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof”, the court said, “This right and the manner of its exercise are constitutionally protected under Article 21 of the Constitution.”
- With the order prohibiting “any attempts to medically cure or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender”, Tamil Nadu is set to be the first state to ban ‘conversion therapy’, a widely available procedure that hospitals as well as religious institutions offer to change the sexual orientation of LGBT people.
- Issuing the order, the court said action, including withdrawal of licence to practice, should be taken against professionals involving themselves in any form or method of conversion therapy.
- The court added that government departments should implement the guidelines “in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society.”
- The court said if police, while inquiring into any missing person’s complaint, finds that the case involves consenting adults belonging to the LGBTQIA+ community, they shall close the complaint without subjecting them to any harassment.
- Earlier, in April 2019, the Madras HC had banned forced sex selection surgeries on intersex infants.
GUIDELINES ISSUED BY THE COURT
- The use of Parent Teachers Association (PTA) in schools to sensitise parents on issues of the LGBTQIA+ community and gender nonconforming students;
- Necessary amendments to be made in policies to include students belonging to the community in all spheres of school and college life;
- Availability of gender-neutral restrooms;
- The option of change of name and gender on academic records for transgender persons;
- Inclusion of ‘transgender’ in addition to M and F in the gender columns of application forms, competitive entrance exams, etc;
- Appointment of counselors who are LGBTQIA+ inclusive, conducting awareness programmes for judicial officers and programmes for police and prison officials for protection from and prevention of offences against the LGBTQIA+ community.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019
- It defines a transgender person as one whose gender does not match the gender assigned at birth.
- It includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.
- It prohibits the discrimination against a transgender person, including denial of service or unfair treatment in relation to: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.
- Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court.
- A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.
- The Act states that the relevant government will take measures to ensure the full inclusion and participation of transgender persons in society.
- It must also take steps for their rescue and rehabilitation, vocational training and self-employment, create schemes that are transgender sensitive, and promote their participation in cultural activities.
- National Council for Transgender Persons will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons.
- The draft of the Transgender Persons (Protection of Rights) Rules, 2020, stated that a District Magistrate would issue a transgender identity certificate and card based on an affidavit by the applicant, but without any medical examination
