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.
A JOURNEY TOWARD UNDERSTANDING
The uniqueness of the case came from the initiative taken by the judge who presided over the case. In order to understand the issues at stake, the judge undertook a number of measures, which can be seen as a blueprint or a roadmap for anyone who wants to unlearn their prejudices and understand LGBT lives. The court directed counselling for the petitioners, the parents, and even itself.
Counselling for Parents, Petitioners and the Court
For the parents, the counselling was an opportunity to talk about the societal stigma they anticipated, the sense of hopelessness they felt over their daughters’ decision, and their fear for the safety and security of their daughters. At the same time, it also brought out deep-seated shame: they preferred a life of celibacy for the daughters rather than a partner of the same-sex. One set of parents expressed that the daughter’s happiness was fundamental to them and that they accept her despite their reservation. The counselling also revealed that the patriarchal conditioning of the families meant that they were unable to imagine inheritance, adoption, lineage, without a male partner for the daughters.
For the other parties involved, the report was an opportunity to understand the petitioners’ relationship, the mental trauma that they were undergoing owing to the present circumstances, the pain that they experienced because of their parents’ rejection, and the hope that they carried that their parents would one day understand them. The court clarified that the petitioners were asked to undergo counselling not so that they change something about themselves, but so that the judge could see the issues through an expert’s lens. The judge also underwent counselling to challenge his heteronormative assumptions. The counsellor’s report revealed the sense responsibility he felt to educate himself as he was the arbiter of fundamental rights. In addition, the judge held a meeting with persons of the LGBT community to understand their lived experiences.
Overall, the psychologist’s reports from all these sessions which have been extracted in the order, deconstructs the problematic notions of gender, sex, sexual orientation and gender identity. The idea that these categories are ‘natural’ and not in fact, stamps created by society, are at the root of the social and legal trouble faced by the LGBT community. Extracted in this way in the order provides an opportunity for the lay reader to ‘hear’ from an expert. The judge’s decision to undergo counselling also sets a powerful example that can provide impetus to State authorities/government officials and families to unlearn their prejudices.
The judge also arranged a mediation session between the parents and the daughters. All of these efforts were a way for the various parties involved to air their feelings and grievances, and for the court to understand the full gamut of emotions and vulnerabilities involved in these situations. The court did not want to leave any party behind or unheard. To that extent, the path taken by the court deserves appreciation. However, it is important to remember that the right to choose a partner is a fundamental right recognized under Article 21, and mediation and counselling can never be made a precondition for anyone to exercise this right. What happened in this case cannot be abstracted to a legal procedure. Doing so would violate the constitution.
THE LEGAL BASIS FOR THE DECISION
The Indian constitution guarantees freedom from sex discrimination. Slowly but surely, courts over the world are coming to realise, that behind every act of sexual orientation or gender identity discrimination, lies sex discrimination. The Indian higher judiciary has also recognized this through Naz, NALSA and Navtej. For instance, if an employer dismisses a female employee for having a female partner, but does not dismiss a male employee for the same, the employer treats the sexes differently for the very same thing.
The Articles 21 guarantee to right to life and liberty has been conclusively held in the Navtej case to include complete autonomy to make personal life decisions. This includes the choice of a partner regardless of their sex. This right is protected by the dual values of autonomy and privacy that have been identified within Article 21 by the courts. Moreover, the right to dignity identified under Article 21 has been held to protect the exercise of sexual orientation, gender identity and presentation, and choice of a partner. Once again, these findings come through a joint operation of the Puttaswamy, NALSA, and Navtej cases.
DIRECTIONS PASSED BY THE COURT
The court passed a series of orders to the police, central and state government departments, and regulatory bodies. The police were directed to close missing persons complaints if found to involve consenting adults. The Ministry of Social Justice and Empowerment was directed to put up a list of NGOs working on LGBT issues. LGBT persons approaching the NGOs would be eligible for the best suited method for the resolution of their grievance, which can include counselling, monetary support, and legal assistance from the District Legal Services Authority (DLSA). Shelter homes were directed to modify their policies to accommodate LGBT persons.
In addition, the central and state governments were tasked with initiating awareness programmes to eliminate LGBT related prejudice. To this end, the court illustrated a list of authorities that should be targeted by the governments. They were the prison authorities, the judiciary, the DLSA, mental and physical health professionals, educational institutions, workplaces and parents of LGBT persons. The court sought also to have these awareness programmes incorporate certain specific mandates. For example, the prison authorities were to ensure that transgender inmates are not housed with cis-men, free legal services were to be offered to the LGBT community though the DLSA, corrective treatment was to be prohibited in medical practices, change of curricula was required in schools and universities apart from gender neutral bathrooms, change of name and gender in academic records, and the inclusion of the transgender gender column in application forms. The court also passed directions for training aganwadi workers, changing hiring policies in public and private workplaces, and providing peer support to parents of LGBT persons. The full details are available in the order dated 07.06.2021.
The date of 31.08.2021 has been set up by the court to follow up on the implementation of these directives.
See here for a fuller study on the legal issues faced by queer women. Some of these issues are also relevant to transmen. Previous entries on run away cases and live-in relationships have been recorded in the blog archives. These are the relevant cases: 1, 2, 3, 4, 5, and 6.