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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.

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Madhu Bala v. State of Uttarakhand and Others Habeas Corpus Petition No. 8 of 2020

FACTS OF THE CASE

On the 12th of June, 2020, a single judge bench of the Uttarakhand High Court reiterated the legal position that a consensual relationship between persons of the same sex is not barred by law. This was a case of a live-in-relationship between two women, whose relationship was once again, openly acknowledged in court. In a previous blog, I had discussed that the open acknowledgment in court of a romantic relationship between two women was certainly something new to be seen after the Navtej Judgment in 2018. The first case to do so was Sreeja S. v. Comm. of Police, decided a few weeks after the Navtej Johar case. The present case follows in this line of cases. In this blog post I will demonstrate that the court makes remarkably strong theoretical points about the meaning of the fundamental right to liberty, which it equates with the exclusive right of an adult individual to decide with whom they want to live (among other things). However, the court severely waters down this right in application in this case. They do not implement the declaration made by one of the women in the relationship that she wants to continue to live with her partner because she makes this statement in the absence of her family. This raises the question: is this because of the deep-seated paternalism and homophobia of the legal system, or is it because the legal procedure requires the presence of her family members in this case. Even if this is the case, does the procedure itself suffer from paternalism and homophobia?

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Arunima Bora v. Pradyunnajit Bora Mat. App. 33/2017

On the 3rd of September, 2019, a division bench of the Gauhati High Court decided whether an unsubstantiated (as opposed to unproven) allegation of homosexuality by one of the spouses against the other in a divorce case amounts to cruelty. Summarily, the court answered this question in the affirmative. This is the first recorded instance in which an Indian court has taken a stance on a homosexuality allegation in a divorce case. Though these allegations are raised in divorce cases from time to time, they are always ignored at the argumentation staged, and have never been attended to by the judges in their judgment. In this blog, I will summarize the facts of the case very briefly and discuss the circumstances under which the homosexuality allegation was raised and decided by the court.

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Mohammed Arif Jameel and Anr v. Union of India and Ors. (WP 6435/2020)

DIRECTIONS WITH RESPECT TO CORONAVIRUS

On the 9th of April, 2020, a division bench of the Karnataka High Court directed the Karnataka Government to institute measures for vulnerable communities, including the transgender community, in the light of the coronavirus outbreak and the resulting lockdown. Though this interim order does not identify its legal basis, these directions have arguably been issued under Article 226 of the Indian Constitution as they have been made in connection with writ petitions filed in the High Court seeking relief.

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Medical Control of Legal Gender Recognition in India and the Nordic Countries

This blog is based on a talk that Dr Daniela Alaattinoğlu and I delivered recently at the University of Oxford. As we delivered the talk together, we have also authored this text together. As its title suggests, the main finding of the talk was that the medical field exercises immense control over the legal gender recognition of trans persons. Even when the law is based only on self-identification, and no role has been carved out for medical professionals, they seem to exercise a great influence in the desire and ability of a trans person to get legal gender recognition. Let us look closer at the Nordic countries and India.

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Monu Rajput v. State and Ors. W.P. (Crl.) 1879/2019 and Crl. M.A. 30835/2019

Habeas Corpus Petition in Delhi High Court

On the 12th of July, 2019, a division bench of the Delhi High Court decided whether a habeas corpus petition filed by a transgender man (Monu) to set his romantic partner at liberty from her family members, could be allowed. The petition was filed against the State to ensure that if the detenue was indeed found to be detained against her will, she be at once set at liberty. Summarily, the court rejected the petition.

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