S. Sushma and Others v. Director General of Police and Others WP 7284/2021 (December Hearings)

PART I

Previously

This blogpost pertains to the December hearings in the S. Sushma case. To recap, the case originally concerned a lesbian couple that had run away from their homes to be together. They approached the Madras High Court as they were being harassed by the police and their parents although they were adults who had left of their own volition. Through a writ of mandamus, the court ordered the police to close the missing persons cases that had been filed by the parents of the couple, and passed other orders to central and state governments, and regulatory bodies (June order). The orders are wide-ranging and cover a host of issues that arise when queer life intersect with societal authority structures. The court has kept the case open and hears it from time to time to gauge the progress on its orders and issue new ones, in a PIL-style continuing mandamus.

This is Part I of a two part blog. In this part, I will focus on certain substantive matters dealt with by the court in December. The next part will carry a summary of compliance measures taken by various authorities.

Revising the MBBS Curricula

Previously, the court had bemoaned the current undergraduate medical curricula, which continued to classify lesbianism, oral sex, sodomy, etc. as sexual perversions. It had directed the National Medical Commission (NMC) and the Indian Pyschiatric Association (IPA) to file a report indicating their plans to update the curricula. In December, the NMC submitted that they had commenced their work on curricula revision, starting with a focus on two issues: virginity test, and LGBT issues. They had constituted an expert committee and based on its report, issued an advisory to all medical colleges in the country:

  1. when teaching gender related issues, symptoms, findings, histories of nomenclature, etc., shall not be taught in a way that deprecates the queer community; and
  2. medical textbook writers must update information about the queer identities and expressions in line with scientific literature, government guidelines, and the orders of the court in the present case. Failure to comply will result in the textbook being rejected for use in colleges.

However, it was pointed out that the curricula competencies highlighted by NMC, which forms the basis of medical textbooks, themselves use unscientific notation to refer to the queer community. For example, different kinds of sexual orientations are labelled as unnatural and psychological disorders. Further, up to date information is not called for on the rape law and child sexual abuse. Even more, virginity is taught as a medico-legal concept of significance, and there is no information on the unscientific, inhumane, and unreliable nature of the two-finger test (two fingers are inserted in the vagina to test if the girl/woman is a virgin). The petitioners submit that if NMC changes how it addresses these topics, the textbook writers would be obliged to follow suit. The court orders the NMC to give serious consideration to changing their competencies, and to file an update in due course.

NCERT Training Materials

An important and topical issue was addressed in this order. The National Council for Education Research and Training (NCERT), an advisory body to the government on school education that has among its various objectives the training of teachers, had prepared certain training materials for teachers on the issue of gender non-conformity. The material was prepared by an expert committee and uploaded on their website. The thinking was that the teacher is a bridge between the parent and child and for the child who does not receive support at home for their gender expression, a primary means of support. Teachers can sensitise parents.

However, in November 2021, within hours of its publication, the NCERT removed this material from their website, owing to ‘pressure that was exerted from some quarters’. The court questioned this ‘knee-jerk reaction’ of the NCERT, and asked why grievances against the materials were not pursued through proper channels, ‘arm twist[ing]’ the council to removing the published materials. The court saw the use of pressure tactics to influence policy as a threat to the democratic fabric of the nation.

The NCERT averred that the training material was only a draft, and as it had not been reviewed by appropriate stakeholders and authorized by the competent authority, in other words improperly uploaded on the NCERT website, it was taken down. Further, the NCERT stated that the training material needed to be in a specific format; it needed to be ‘designed and customized in the format of a training module’ and go through various stages of trial and consultations with stakeholders before it could be so customized. They proposed a plan of internal and external review and customization and stated their plan is to have the training material up on their website for the 22-23 academic year. The court orders that the NCERT must keep the court apprised of the review process and provide an update in the next hearing.

Shelter Homes for the Queer Community

In the June order, direction F, the court had directed that garima greh, shelter homes for transgender persons, be opened up to other members of the queer community as well. The Ministry of Social Justice and Empowerment (MSJE) had detailed in the October hearing the current services offered by these shelter homes and described their plans to open new ones. At the time, their plans did not include catering to other members of the queer community. In the December hearings, the MSJE provided new details into their future plans, which once again did not include provisions for other members of the queer community. Although the court was silent about this singular focus in the October order, it remarked this time that transgender persons were but one segment of the queer community which is heavily reliant on welfare schemes from the government owing to widespread discrimination from family and society. Accordingly the MSJE had to extend the shelter homes to all members of the queer community.

In direction F, the court had also ordered that aaganwadis and other shelter homes also be opened up to the queer community. However, it is unknown whether this is happening. The MSJE plans submissions extracted in the order give no such indication. The MSJE was supposed to have complied with this order within 12 weeks of the June order.

Glossary Developed for Media Reporting

In the August order, the court had taken notice of the unscientific and queerphobic reporting in the press. In October order, the court had received an update that a glossary of words and expressions was being developed to refer to the queer community with accuracy and dignity. This glossary was provided in this order and is to be used, at the very least, by the Tamil Nadu press when referring to the queer community. It contains definitions of sex, gender, sexual orientation, etc, but also clarifications of terms that are preferred by the community (gender affirmation surgery instead of sex reassignment surgery, etc.), and clarifies that there is no necessary link between sexual expression from sexual orientation (e.g., all men who have sex with men may not identify as gay, for various reasons). These clarifications, it is hoped, will press the media to carefully pick their words, avoid hurtful or incorrect jargon, and not mislabel persons and activities. In effect, the media will need to understand the event they are reporting about more closely and convey the story accurately. The court even directed the government counsel to forward the glossary to the Tamil Nadu government so that it could publish it as a guide. The court’s view was that once the glossary is formalised in this way it will ‘have more force and be easier to implement.’ The court reiterated the request it had made in its August order that the press use these words in their reporting, while still not passing any formal orders for the press.

The next hearing was scheduled for 18th of February, 2022.

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