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Hina Haneefa v State of Kerala and Ors WP (C) 23404/2020 (A) Kerala High Court

On the 15th of March, 2021, a single bench of the Kerala High Court issued a writ of mandamus to the National Cadet Corps to permit the applicant, a transgender woman, to apply as a candidate under the female category. This case provided an opportunity for the interpretation of Transgender Persons (Protection of Rights)Act, 2019 (2019 Act). Specifically, this case was crucial in holding that there were two rights granted under the 2019 Act: gender recognition and gender identity. They were distinct and came into operation at different times. In this blog, I will summarize the facts of the case, the arguments of the parties, and the decision of the court.

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S. Sushma and Anr. v. Commissioner of Police, Chennai and Others WP No. 7284/2021

A COUPLE, THE PARENTS, AND THE POLICE

In early June, 2021, the Madras High Court gave a truly unique order. The occasion arose when a lesbian couple ran away from their parental homes. As is often seen in such cases, the parents of the two women filed missing complaints with the police. The police interrogated the couple at their residence. They failed to close the case upon learning that the women were adults and had left their homes of their own volition, once again, not an uncommon occurrence in such cases. Feeling threatened for their safety both by the police and their parents, the women filed for a writ of mandamus before the Madras High Court. A writ of mandamus is an instrument which directs a public body to perform its duty. They prayed for a writ directing the police not to harass them and to protect them from threat and danger from their parents. The government advocate who represented the police confirmed that the police will be instructed to provide protection, no longer interfere with the petitioners, and close the missing cases immediately. The court ordered accordingly. 

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Sumana Pramanik v. The Union of India and Ors. WPA 9187 of 2020

On the 2nd of February 2021, a single judge of the Calcutta High Court, through a writ of mandamus, directed the administrators of the Joint CSIR-UGC NET examination to institute certain affirmative action measures for transgender candidates. The examination is a means to determine eligibility for Junior Research Fellowships and Lectureships/Assistant Professorships at Indian Universities.

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Pramod Kumar Sharma v State of UP and Ors Writ A No. 8399 of 2020

The petitioner’s appointment to the post of Home Guard was cancelled after a video of him was made ‘viral’ by someone. From the rudimentary facts that appear in the final judgment, it seems that the petitioner was engaged in public displays of affection with a person of the same sex. When this video was seen by his employer, the District Commandant of the Home Guard, his appointment was cancelled. This cancellation was challenged in the Allahabad High Court and was duly reversed.

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Poonam Rani and Ors. v. State of UP and Ors. Writ C No. 1213 of 2021

1.PROTECTION ORDERS

On the 20th of January, 2021, a Division Bench of the Allahabad High Court granted a protection order to two women in a live-in relationship. I have previously argued[1] that protection orders are privacy enhancing tools for queer women and transgender men in live-in relationships. Recorded cases show that live-in relationship related litigation is a unique category of litigation that queer women and transgender women face in the queer community. In this blog, I will discuss why protection orders can be an important legal instrument for queer women in live-in relationships and then specifically discuss the case at hand and the protection order granted therein. Protection orders can be utilized not just by queer couples but more generally by members of the queer community.

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Christina Lobo v. The State of Karnataka

On the 1st of October, a single judge bench of the Karnataka High Court ruled that a transgender person does not have to get a District Magistrate’s certificate to request a name and gender change on their documents, even if they make the request after the coming into effect of the Transgender Persons (Protection of Rights) Act, 2019, so long as they have their identity recorded prior to the Act becoming operational.

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Chinmayee Jena v. State of Odisha and Ors. Writ Petition (Criminal) 57/2020

On the 24th of August, 2020, a division bench of the High Court of Orissa confirmed the right of a transgender man and a woman to be in a live-in relationship. The present case was a habeas corpus petition concerning the live-in relationship of a transgender man, the petitioner, and a woman, the alleged detenue. Summarily, the court confirmed their right to be in a relationship, and placed an obligation on the State to offer “all kinds of protection” to them to facilitate their exercise of this right. I will first summarily restate the facts of the case and then draw the attention of the reader to five items: 1. The judge’s easy recognition of the self-identified name of the petitioner—an important “best practices” for judges and lawyers dealing with SOGI matters. 2. The not completely relevant history of how the petitioner came to be recognized as a transgender man; 3. Arguably, familial ideology in motion, resulted in adjournments and the delay of the detenue’s (and the couple’s) live-in relationship right, along with certain fundamental rights; and 4. The usage of protection orders to secure the safety of the detenue and the couple.

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Legal Discourses on Queer Women- Privacy

What are the legal experiences of queer women in India? This is a severely under-researched topic from the legal point of view. Most of the academic work on the experiences of queer women in India lies in the area of literature and culture and associated fields.

In the present blog, I will discuss one aspect of an article that I recently wrote about the legal issues of queer women. That article had the following aims: 1. to study the case law and understand the legal narrative surrounding queer women in India; 2. theorize about the main legal problems faced by them; 3. analyze the Navtej judgment to see whether it provides solutions for those problems; and 4. begin a conversation to address the problems.

Queer women are women, i.e., persons who are socialised as women, who have, romantic and/or sexual feelings for/relations with, other women. The history of activism on this issue in India has shown that a variety of terms have been used to refer to them. Examples include, lesbians, bisexual women, ekal mahila, gender non-conforming women, women in a husband-wife relationship. Some of these terms reflect personal choices, but some also reflect what was possible to say at a particular time in history. In this article, I argued that the experiences of transgender men may have commonalities with queer women since many of them may have been socialized as women. Therefore, to that extent, the findings of the article were relevant to understand the problems faced by that community as well. I identified the core issues faced by queer women through two distinct methods. The first was a case-law method where I identified cases pertaining to queer women using a keyword search on Manupatra. The second was to study various scholarly articles and stock-taking reports that have concentrated on queer women in India. These two methods allowed me to cull out the seemingly core areas of concern for queer women that law needs to address. They were: 1. Privacy; and 2. Live-in relationships; 3. Marriage pressure; and 4.allegations of lesbianism in divorce cases. In this blog, I will discuss the issue of privacy as it relates to the legal entitlements of queer women.

1. PRIVACY

The lack of privacy is a major area of concern for women, and queer women India. The Navtej judgment has allowed sexual relationships between two consenting queer adults in private. This formulation of the sexual right has failed to take into account the realities of the lives of queer women. Women in general, including queer women, do not have access to privacy within their homes, and little say over how they would like to exercise their sexuality. In the first known large-scale Indian study to understand the violence faced by lesbians, Bina Fernandez and NB Gomathy found that the family was the main source of violence for lesbian women. They faced physical, mental, and sexual violence from their family members, which only ever abated when they either left their homes or lied about not being attracted to women anymore. Thus, for this section of the queer community, granting a right in private was no grant at all, not unless the idea of privacy was connected to the idea of access to public spaces.  What those spaces could be, whether hostels, or cafes, or parks, etc. is a question that can be best answered by taking the views of a wide cross-section of queer women, and the State and funding bodies should devote funds to this enterprise. In the meanwhile, within existing structures, two options can be further strengthened; 1. Access to shelter homes; and protection orders.

1a. ACCESS TO SHELTER HOMES

Shelter homes have their own set of problems. They restrict the mobility of women, and their ability to take up employment among other things. Many of them are queerphobic, and either refuse to take in queer women or claim to cure them. Still, being able to take shelter in a shelter home offers immediate access to a physically safe place for queer women who leave their home, and are in need. They also offer a bargaining position to women who can then negotiate better terms of treatment with their families.

1b. PROTECTION ORDERS AS PRIVACY ENHANCING TOOLS

Understanding privacy from the point of view of queer women also offers up other legal solutions to their concerns. One such solution is a protection order which is available through the writ jurisdiction of the High Court. Recorded cases show that women who exercise their choice to live with one another have taken recourse to these orders. These orders typically place the local station house officer in charge of the physical safety of the couple, with the responsibility to determine the safety protocol for the couple. Usually the phone number of a beat constable is shared with the couple to call in case of any actual or apprehended danger. Lawyers working on these cases have shared that these orders provide an immediate sense of physical safety to the couple, even if they can provide only limited protection from emotional blackmail from the families involved.

The discussion on other areas identified by this blog, along with a fuller discussion on privacy can be found in the forthcoming article, Surabhi Shukla, The L World: Legal Discourses on Queer Women 13 NUJS Law Review 3 (September 2020). Update (Oct, 2020): The article can be found here.