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In pursuance to the judgement of the Madras High Court where Justice Venkatesh had undergone counselling to understand the LGBTQIA+ community, the court has passed another order giving directions against harassment of the community and insensitive reportage in media.
The petition was filed by two persons in a same sex relationship seeking police protection from the parents, which has now culminated into a continuing mandamus whereby the court is trying to ensure sensitisation of the police, the media as well as changes in MBBS curriculum to be more sensitive towards LGBTQIA+ persons and recognise the community’s issues, especially in field of mental health.
The judgement passed in June has been hailed as a landmark judgement, pioneering transformative jurisprudence that will help assimilation of the community in mainstream society and one that aims to prevent discrimination against the community from government agencies. In June, the court had given some detailed directions to police, judiciary, legal aid services and central ministries to sensitise employees and personnel in dealing with members of LGBTQIA+ community, which may be read here.
Compliance by Police
The Tamil Nadu police filed a compliance report with regards to the court’s directions in the judgement passed on June 7. The report stated that there is no discrimination and abuse in the process of incarceration of transgender and intersex persons at prisons in the state. Further, Tamil Nadu Police Academy informed the court that to create awareness about the offences and penalties as stipulated under Transgender persons (Protection of Rights) Act, 2019, training was conducted for 42 Deputy Superintendent of Police (Trainees) and for 25 TNPA staffs as well as online training for women Inspectors on field.
Harassment of LGBTQIA+ members
The court expressed its shock that NGOs reported instances where police refused to provide protection to the community members, and in certain cases, even harassed, not only the community members but also NGOs and field workers. The court was appalled that these instances took place subsequent to the court’s judgement in June.
One of the excuses given by the police authorities while shunning these persons is the lack of an internal circular and/or notification issued by the higher authorities of the Department in this regard.
“Evidently, the larger excuse seems to be the sheer lack of awareness and the apathy towards arming themselves enough to fight for a community of public belonging to the citizenry of this nation, to whom they swore to be servants. This Court in its earlier Order already observed that ‘lack of awareness can be no excuse to any form of discrimination’, and the absence of internal communication and hierarchical orders is no excuse to deny protection to the community that is vulnerable, susceptible to threat and harassment,” the court observed.
The state counsel assured the court that the state DGP will be informed and steps will be taken to create awareness among Police about the circular memorandum. Yet, the court found it necessary to pass the following directions for more clarity on this issue:
a. Police department to refrain from harassing activists and people belonging to NGOs, not just the people who belong to the LGBTQIA+ community.
b. A specific clause is to be added in the Police Conduct Rules specifically providing that any harassment by the police, to the persons belonging to the LGBTQIA+ community and/or to the activists and NGO workers, will be treated as misconduct and will entail a punishment for such misconduct. and;
c. While conducting sensitisation programs for the Police, it must be conducted through the persons belonging to the community and/or the activists and NGO workers who are involved in this cause.
Confidence in the state government
The court expressed its confidence in the government of Tamil Nadu which has been known for introducing reforms in the interest of persons belonging to the marginalised communities and sects, and believes that the State Government will work towards the recognition and development of persons belonging to the community and they will be brought within the mainstream of the society.
Insensitive media remarks
The court also took notice of the insensitive language used by news media when reporting news about the community members.
“Media’s insensitive commentary and ridiculing with dramatic words, music on “reporting” though not new to our society, cannot be normalised. The reportage of the most intimate and personal aspects of an individual’s identity by the contemporary vernacular media is deeply problematic and it not just reflects the pre-existing harmful stigmatization of the community, but also perpetuates it,” observed the court.
The court refrained from giving any directions to the media which may unwittingly trench upon the freedom of press, however, urged the media to play a major role in spreading awareness through sensitive reporting of cases. The court also reposed confidence in the media and expected them to show more sensitivity while reporting cases and maintain the confidentiality of the identity of the persons involved in a news report.
Revamping MBBS course
The court pointed to the report submitted by Dr. Trinetra Haldar Gummaraju where she pointed out that medical fields of Psychiatry and Psychology have been complicit in perpetuating queerphobia. She said that there are vast amounts of transphobic and homophobic literature in medical textbooks. She cites Forensic Medicine describing “sodomy”, “lesbianism” and oral sex as sexual offences, and “transvestism” (cross-dressing) as a “sexual perversion”.
The above reflects how queerphobia is being reaffirmed as legitimate throughout the education of a doctor who might go on to become a psychiatrist or any physician who might be approached by a person from the community, the court noted. The court rightly pointed out, “Knowledge about a patient’s gender identity and sexuality may be of interest to a doctor, physician and a mental health professional if it is pertinent in cracking the course of treatment, but the course of treatment cannot be one which aims to “cure” their gender identity or sexuality itself.”
The court thus directed the Additional Solicitor General to bring this to the notice of National Medical Commission and Indian Psychiatric Society and further directed them to file a report as to how they are going to handle this issue in future by carrying out necessary changes in the curriculum.
Miscellaneous
The court finds it necessary to carry on with this momentum and create a congenial atmosphere for the persons belonging to the LGBTQIA+ Community by accepting them as they are. The court also expects the State and the Central Government to give more priority to this issue and come up with some positive actions on their part.
The case will next be heard on October 4 and the court has directed that te compliance reports be filed by then.
The complete order may be read here:
Related:
Madras HC issues guidelines for sensitisation of stakeholders in LGBTQIA+ matters
When a judge allows himself to be counselled, justice can mean a transformation
I am not fully ‘woke’: Madras HC judge to start psychology sessions to understand same sex relationships