Quoting the Guidelines: An Ethical Dilemma

Under the new policy, Meta states:

“We do allow allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like ‘weird.’”

Additionally, the revised policy allows content such as:

“Comparing people to household objects, calling entire ethnic groups ‘filth,’ or arguing that LGBTQIA+ individuals should be excluded from certain spaces or professions.”

This represents a stark departure from previous hate speech policies that prohibited such dehumanising language, recognising its potential to create “an environment of intimidation and exclusion.”

Employee and Advocacy Group Backlash

Meta’s own employees have criticised the decision as “appalling,” with one post reading:

“I am LGBT and “mentally ill”. Just to let you know that I’ll be taking time out to look after my mental health.”

Advocacy groups have been equally vocal. GLAAD, for instance, stated:

“Meta is giving the green light for people to target LGBTQ people, women, immigrants, and other marginalised groups with violence, vitriol, and dehumanising narratives.”

The Consequences of hate normalisation

Meta’s history provides troubling evidence of its platforms enabling real-world atrocities, most notably the Rohingya genocide in Myanmar and the Capitol riots in the United States. In Myanmar, Facebook was identified by UN investigators as a key tool in spreading dehumanising rhetoric against the Rohingya Muslim minority, with hate-filled posts labelling them as “vermin” and “threats.” This unchecked hate speech incited widespread violence, resulting in over 700,000 people being displaced and thousands killed. Similarly, in the U.S., Meta’s platforms played a significant role in facilitating the organisation of the January 6 Capitol riots by allowing misinformation and extremist content to proliferate unchecked. These events demonstrate how Meta’s platforms, when deregulated or permissive, become breeding grounds for hatred and violence. With its new policies permitting users to call LGBTQIA+ individuals “mentally ill” or compare women to “household objects,” Meta risks repeating these disastrous patterns. By legitimising dehumanising rhetoric, these policies pave the way for escalating offline violence, societal polarisation, and the erosion of public safety. Without decisive corrective action, Meta could again find itself at the centre of global crises fuelled by its own platforms.

Way forward

While the world moves forward to embrace inclusivity and champion LGBTQIA+ rights, Meta’s recent policy changes reflect a regressive step reminiscent of the discriminatory attitudes of past generations. The global momentum for LGBTQIA+ equality is evident in initiatives like the United Nations’ Free and Equal campaign, which tirelessly works to combat harmful practices, promote legal protections, and foster societal acceptance of LGBTQIA+ individuals in regions as diverse as Africa, Albania, Brazil, and Vietnam​. These efforts underscore a commitment to ensuring dignity and equality for all, yet Meta’s decision to permit users to call LGBTQIA+ individuals “mentally ill” directly undermines this progress. By sanctioning such language, Meta is aligning itself with outdated, oppressive ideologies at a time when the global community is advocating for inclusion and acceptance. Human rights activists and allies worldwide must stand in solidarity to condemn this policy and demand accountability from Meta. It is imperative that Meta rescind these harmful changes and reaffirm its commitment to safeguarding dignity, equality, and respect for all users.

Related:

India’s LGBTQIA+ struggle: beyond legal victories, battle for true equality remains

From Judgments to Handbook: India’s Transformative Journey towards LGBTQIA+ Equality

The post Meta’s policy shift: Fuelling hate in an era of LGBTQIA+ inclusion appeared first on SabrangIndia.

Pursuant to the parade, reports of an altercation between two groups of marchers raising political slogans during the event surfaced. According to a report in the Free Press Journal, Ambedkarite queers alleged that members of the Humsafar Trust, a part of the MQP involved in the organising of the parade, seized posters of Dr. BR Ambedkar that were being carried by them and asked them to refrain from chanting ‘Jai Bhim’. The slogan of ‘Jai Bhim’ is considered as a greeting by many, especially the Dalit community, and is, moreover, a salutation which displays the deep reverence that the marginalised sections have had for Ambedkar’s contribution to their emancipation. As per one of the marchers, the organisers of the said pride parade of 2024 turned an event that was meant to draw attention to the rights of the queer and trans* community into “just a celebration.”

This brings us to the question again- can pride be apolitical? Can a community which cuts across religious minorities and marginalised castes and classes be asked to “desist from raising political slogans”? Can the discourse of those who face double or more levels of marginalisation, owing to their caste, gender identity, religion, be asked to keep these complex issues away from the pride parade?

Intersectionality and solidarity amidst the struggle against caste and capital – Shripad Sinnakaar

When we spoke to Shripad Sinnakaar and asked their views on intersectionality, pride and politics, they said that they were reminded of a poem they had written in the year 2023. Reciting this one line from the same, Shripad wondered “How many generations does it take for a dream to come true?”

Shripad belongs to a fourth generation Dalit family in Dharavi. Dharavi features as a central figure in their writings and work. Their poem details the myriad unending obstacles faced by individuals from the marginalised genders and castes that deter their struggle for equality and justice. As per Shripad, it is this intersectionality that threads issues together to evoke a perspective unique to the Dalit Trans community.

When asked to share their perspective on the role that Mumbai as a city, which is often claimed to be the city of hopes and dreams, actually play in the life of the marginalised person, they stated “This question itself is a deeply political question. The oft-repeated phrase, Mumbai never sleeps, is profoundly a labour question. What is the caste of the people who are rendered sleepless by the city? It is visibly an empirical phenomenon. One that can be answered by simple observation. Who is outside at nights? At Carter Road, Bandra? Highways at Bandra-Kurla-Complex? It is the sex workers, the couples on bikes – those who don’t have the right to the city exercising their right to the city.”

Shripad Sinnakaar (they/them) is a poet and researcher based in Mumbai whose work centres around caste and gender. They have been the recipient of a research fellowship from Centre for Studies in Gender and Sexuality, Ashoka University. During the fellowship, they continued their research on caste and gender, particularly intersecting literature from transgender studies and anti-caste literature. Dharavi is a place which remains central to their work – they have created a literary initiative called Flamingos in Dharavi. Through their project, they talk of issues related to reservation, caste, climate change, wild life, preservation of environment; they have been in conversation with members of the Rohingya community over extinction of birds, a collection of poems that are a part of their project.

According to Shripad, to speak about the Dharavi Redevelopment Projects enables one to broaden the solidarities and struggles imagined because ecology, corporate powers such as Adani, and climate change remains central and very integral to the question of caste. The struggle against these majoritarian and dominant powers cannot be put into boxes and categorised, they stated. Delving deeper into their hopes, Shripad asserts that their politics is like the river Mithi, which flows through Mumbai, which sutures together caste, marginality, and solidarities is central to them.

To Shripad, individuals cannot be brought down to just one identity, their existence is layered and mired within histories, communities, affinities and solidarities, and to limit them to just one part of their being, especially to do so at the cost of reducing one’s struggle, would be a loss. When asked whether they are losing one’s own perspective or specific history being a cost to broadening horizons and building solidarities, Shripad thoughtfully responds by saying, “It is a question about one’s standpoint. Mine is sub-categorisation.”

Elaborating on the politics of sub-categorisation of caste and the clubbing of separate traditions under the umbrella of Hinduism, Shripad stated “For instance, Dalit Christians and Dalit Muslims fight for recognition of their Scheduled Caste (SC) status. In these cases, there is an overt recognition of religions. However, the traditions practice by the Hijra, Jogti, Yellamma & Tribal communities are different from the Hindu religion. To not recognise their practices is to give in to Brahminical colonisation of their religion— to not recognise their sovereignty (with respect to religion), would be an injustice.”

Emphasising upon understanding history and ensuring that the same is not lost in translation while limiting the fight for caste to courts, Shripad further states that “It is important to recognise different histories around caste which cannot be subsumed under a Hindu fold. Caste, thus, cannot be limited to a fight for a legal structure. Caste, its sub-categorisation can be used as a methodology, a standpoint. I use it in my work, as it has a certain centrality to it in the practices of the Hijras, their religion and so forth. (For the Hijras) they are neglected and (much is) lost in translation.”

Pausing for a moment, Shripad then relates the history that is shared by the caste trans* and queer communities to the history of Mumbai, erstwhile Bombay, and brings our discussion to the same point from where we started. Raising pertinent questions, Shripad asks “Would Thane, Mumbra, Dombivli, Kalyan, all of which are peri-urban locale, be included in the definition of the city that never sleeps? Do we include Badlapur when we talk of Mumbai? What about Govandi, Mankhurd or Dharavi? Govandi has the worst slums, even worse than Dharavi. So does Bandra, in fact, the railway station is a slum too. Will these places be included in the (idea of Mumbai) avenues of changes and hope and dreams? These are the kind of questions I am interested in thinking about.”

To Shripad, Mumbai exists of slums as much as of Highrise buildings, just as a Dalit queer and trans* individual is as much their caste identity as their gender identity and sexual orientation. Shripad states “None of these tall buildings can exist without slums. None of them would exist without the labour of minorities and lowered castes. It’s the history of the making of slums & chawls: Mumbai needed labourers but not a good living condition. Which is why the chawls came up. The slums, the chawls, they are sites where the unwanted live.”

Shripad concludes by sharing their thoughts about the year 2023. To them, the year gone by had been the year where the “crisis” (of the pandemic) had ended, and suddenly people were confronted with “the ordinary of life”. Shripad pointed out that, “During the lockdown, we were all existing within multiple kind of constraints, and restrictions. However, once the lockdowns ended, we were faced with multiple crises, including that of having to carry on. Everyone was encountered with now what? However, there was no looking back. But in these times, I think the normative ideas of friendship and family were intimately shaken – a dispossession of the normative ways of relations we structure our lives with.”

Institutional discrimination in the classrooms and workspace continue, no redressal mechanisms available?

The NALSA judgment (National Legal Services Authority v. Union of India) came out about a decade ago, forming a pivotal moment and milestone in the fight for rights of the transgender community. The judgement recognised transgender people as an entity belonging to “third gender” and directed the government to take measures to protect the rights of transgender people in India. However, many pitfalls and pervasive precarity mar the everyday life of transgender individuals with discrimination, violence, and brutality, especially at the hands of the state, continuing to remain strife and rife.

Vaivab Das (they/them) spoke to the CJP team about what came after the NALSA Act and how the executive, by bringing in the controversial Transgender Persons (Protection of Rights) Act 2019, shed all its responsibility towards the community and rather snatched the protections guaranteed by the courts through the NALSA judgment. It is essential to highlight here that the union government had faced resistance by many against the said Act and had witnessed protests by the members of the community requiring a transgender people to “compulsorily” go through medical procedures to prove their trans-ness. Arguments were also raised regarding the Trans Act’s failure to implement the guidelines laid down by the NALSA judgement, which had focussed on autonomy and self-identification, and added invasive checks and procedures to be followed while granting certificates to transgender people.

Speaking on this, Das said, “The Trans Act 2019 didn’t take much space in the public imagination. That’s where we disconnect. The Trans Act took an undemocratic approach, where protection was granted on the basis of a certain authenticity of trans-ness to rescue trans people. However, the construction of authentic trans-ness is exclusionary. It is sad that there are newer ways of gatekeeping within marginalised communities. A movement is a movement with ground support, if it is without ground support, then it is only a moment.”

Despite their being a NALSA and a special act to protect the rights of the transgender community, the on-ground truth, as shared by Jane Kaushik (she/her) in her conversation with CJP remains far from good, with institutional discrimination continuing abound, especially at workplaces. Jane, who is an activist and teacher by profession, was removed from two private schools, one in Gujarat and the other in Uttar Pradesh, reportedly on account of her gender identity. The case is currently being heard in the Supreme Court at the moment by a bench of Chief Justice of India, DY Chandrachud and Justices JB Pardiwala and Manoj Misra. During the last hearing of the case, CJI Chandrachud had expressed his concerns over the treatment being meted out to Jane for being a transgender person. During the hearing, the counsel representing Jane in the court had highlighted the issue of social stigma that the teacher had been facing in the women’s hostel and how the school environment has been unwelcoming of her sexual identity. Her counsel had in clear words argued that “They cannot accept the fact that she is a trans* woman,” as per a report in LiveLaw.

Speaking to CJP, Jane confirmed that facing discrimination has become a norm for the transgender community, and these two incidents that went viral in 2023 were not no exception but a continuation of the discrimination that she has been facing her entire life and in her career. “They either outrightly say ‘No, we will not take you’, or they ask me to join but to hide my gender identity. They would ask me to work as a female and hide my identity.”

To explain her situation, Jane asked us to imagine a situation where we were forced to lie or hide about their gender identity. Jane asked, “How would you feel if you as a woman are forced, and even encouraged, to pretend and tell the world that you are a man? As a matter of course, this has been a cause of great anguish and mental distress for me.”

Elaborating upon the vicious form of discrimination she faced from students as a transgender person and the derogatory slurs that were thrown her way, Jane provided “I can hide my gender, but I cannot hide my body. The students hurl various kinds of slurs at me, such as ‘Chakka’, ‘Hijra’. They constantly engage in body shaming me.”

She further pointed out that, “There is no mechanism to address this. I believe schools should sensitise people on issues of gender identities.”

On being asked if any action had been taken against any such incident, “Never has any sensitisation or addressal happened for such acts.”

For basic rights and implementation of the NALSA guidelines, we have to fight the government

The issue of the lack of effective mechanisms in place to address the concerns of the transgender community, explained by Jane above, were also shared by Kiran Nayak (he/him), a disabled trans man. Kiran is a social activist from the Southern part of India who works on the matter of health, which is a basic right, being denied to the transgender community, especially those that suffer from disabilities.

While in conversation with Kiran, he stated “After Covid-19, things have gotten way worse, especially for transgender people who suffer from disabilities. There are health issues that medical staff are not equipped or prepared to handle, and that many of us from the community cannot afford. I had lost my job during the pandemic, which made my situation worse. After that, I had a lot of issues finding a house as well. Landlords would not give homes to rent to us because of my gender identity. I was compelled to open up a general store with my wife in a village to make a basic income, however we suffered a complete loss after this. My mental health too was in shambles. I suffer from rheumatoid arthritis and for that I have to spend around 7000-8000 every month for my medical treatments.”

Highlighting the issue of hospital staff needing sensitising regarding the transgender community and their basic needs, Nayak expressed his anguish and states “When I go to the doctor, how do I go and get treatment? It is impossible. There is a strong need for the hospital staff to be sensitised and made aware about gender identities and the need to be sensitive to these.”

Discussing the ineffectiveness of any form of government action, Nayak argues that there has been no implementation of any policies favouring the transgender community by the state. Nayak says “When politicians want your votes, you are welcome. However, you are just used for your vote. Because even though there are many schemes, judgements and policies that have come in the favour of the transgender community, there is implementation. I demand the state government to implement these schemes and policies at the state level. The situation in these states is exceptionally bad.”

The government, as per the transgender community, have not done justice to the guidelines set by the NALSA judgment in terms of providing horizontal reservations as well.

In March of 2023, an application had been filed by Grace Banu, a Dalit trans woman and activist who runs the Trans Rights Now collective, seeking clarification from the Supreme Court regarding the reservation reference made in the NALSA judgement. Banu had petitioned that there was a need for a distinction between horizontal and vertical reservation as while delivering the NALSA judgment, the Supreme Court had directed the Union and the States to treat transgender persons as a socially and educationally backward class and provide them reservation in education and public employment. However, the Court had not provided how the reservation needed to be implemented and had rather stopped short of recognising the particularity and intersectionality of disadvantages that the transgender community faces.

On March 27, 2023, the Supreme Court bench led by CJI Chandrachud had refused to hear the application moved and had subsequently disposed off the matter.

The longstanding demand for horizontal reservation for the transgender community has been raised for decades, even before the NALSA judgement had been delivered, as the same would have allowed community members to seek reservation within each affirmative action category, including Scheduled Caste, Scheduled Tribe, other backward classes, and the unreserved general category.

Under Article 16(4) of the Indian Constitution, Scheduled Castes, Scheduled Tribes, and other backward classes had been deemed as recipients of “social reservations,” a category which thus served to create vertical distinctions. However, on the other hand, reservations benefiting women, individuals with disabilities, freedom fighters, and project-displaced persons were separately considered as “special reservations”, forming horizontal categories that intersected and came under categories with vertical reservations. To provide in brief, special reservations are a part of the existing social reservation categories. This is a formation that understands that marginalisation and social identities are an interlinked and intersectional phenomenon that need a layered understanding to deal with. Thereby, the transgender community seeks to demand horizontal reservation quotas.

Speaking to CJP, Vasundhara* (name changed to protect the identity of the individual) stressed upon the necessity to have horizontal reservation in educational intuitions and public employment, and stated that, “It is an absolute need of the hour to have horizontal reservations. In Karnataka, horizontal reservations have already been implemented for government employees. We need this in educational institutes, public employment. Furthermore, we need horizontal reservation for transgender people in all government schemes for the people of India. Men and women are direct beneficiaries of these schemes, including reservation in education. Why can transgender people not enjoy the same access to equal opportunities?”

Colonial era law done away with, colonial era gaze to marriage stays: The Courts

As with all struggles, there are pitfalls and successes. While referring to the politics of the courts and the colonial gaze that it holds over the queer and the trans* community, one shall begin with the one victory that the community, in the legal fight for rights, was able to secure in the year 2023.

In the past year, the Telangana Eunuchs Act, originally known as the Andhra Pradesh Eunuchs Act, was abolished. The abolition was wholly welcomed by the transgender community, who referred to the draconian legislature as dehumanising to the transgender community.

To provide a brief history, the now struck down law had been introduced in the year 1919 and unlawfully mandated registration for transgender individuals with the authorities and also required community members to disclose details such as their place of residence. The basis for such registration was reportedly due to a “reasonable suspicion” of committing offences, such as abducting boys or engaging in unnatural activities, by the community members. Stripping away all legal protections otherwise available to all citizens of India, the Act provided authorisation for the arrest of transgender persons without the requirement of a warrant, and could be used to subject such arrested individuals to a two-year imprisonment if found dressed in female attire, participating in public entertainment in any public venue, or in the company of a boy under sixteen years of age.

Trans activists and others had challenged the legislation, labelling it an “outdated” legal framework. During the legal battle, social activists had drawn parallels with the now partly struck down Section 377 of the Indian Penal Code, and where the part that constructed the idea of “unnatural offences” was read down, as they questioned the relevance and fairness of such restrictive measures. Trans activist Vyjayanti Vasanta Mogli had challenged this act, along with a batch of petitioners, that had claimed that the law was “unconstitutional and discriminatory.”

The team of Citizens for Justice and Peace spoke to trans activist Shalini* (name changed to protect the identity of the individual) on the issue of the Telangana Eunuch Act. As stated by them, the legislature was an oppressive and colonial stature, a “statute that had to go owing to the dehumanising aspects it contained with regards to the transgender community.” Shalini further stated how the Act mandated for transgender people to be recognised as a ‘Eunuch’ under this act to register themselves with the authorities. Elaborating on this, Shalini highlighted how the name of the legislature itself was extremely derogatory, comparing the usage of the word “Eunuch” for a transgender person to be as dehumanising and deplorable as using the term “female” while referring to a woman. For the transgender community, using the above-mentioned word reduces an individual or community entirely to their genitalia.

As stated by Shalini, the essence of this Act was similar to the British era Criminal Tribes Act which criminalised certain tribal groups, putting them under the lens of scrutiny of the executive merely for existing, and stripped away their dignity. The Act offers impunity to the average person, whereas the transgender individual would be in turn treated like a criminal. It was a law that prevented the transgender community from receiving and practising their constitutional rights. Therefore, just like Section 377, Criminal Tribes Act, the (Telangana) Eunuch Act too had to go, reiterated Shalini. The bench of Justice CV Bhaskar Reddy and the then Chief Justice Ujjal Bhuyan of the Telangana High Court, which ruled down the act, had categorised the law as “an assault on the dignity of transgender people.”

While the aforementioned colonial act was done away with, the colonial gaze of the courts towards the queer and trans* community continued. On October 17, the Supreme Court of India had pronounced its judgment on the issue of extension of marital rights to the queer community. A Constitution bench of five-judges headed by the Chief Justice of India D.Y. Chandrachud had declined to allow recognition to same-sex marriages in India, leaving the issue for the Parliament to decide upon. The bench had also comprised former Justices S.K. Kaul and S. Ravindra Bhat and Justice Hima Kohli and P.S. Narasimha.

Referring to the same, Priya* (name changed to protect the identity of the individual) stated “Although, I knew I cannot place all my hopes on a judgement, it was very disappointing nonetheless. While I do not uncritically subscribe to the idea of marriage, I still feel having similar, and equal, rights to that of cis-gender and heterosexual people would have been a step in the right direction. The fact that these are simple things one has to fight for in India’s biggest courts is a mental setback, and kind of tends to break morale, if one thinks of it.”

Ironically, in the judgment, the Supreme Court bench while refusing equal marital rights had acknowledged the discrimination that the LGBTQIA+ community faced from the state and held that the court does not feel required to get into “judicial law-making” on issue of recognising same-sex marriages as the same fell outside its purview. The court also ruled against granting adoption rights to unmarried same-sex couples. Referring to this, Priya stated that, “It is a dehumanising feeling, you feel that the people don’t see you as human.”

Vaivab Das (they/them), a scholar, also spoke to CJP on the nuances involved in the equal marriage legalisation debate and the ramifications faced by them in everyday life. Referring to the rights of property and capital that come from the legal acceptance of union, something which the heterosexual couples enjoy, Vaivab said that “With respect to the marriage-equality discussion, I think rather an ideological-theoretical divide whether one is against marriage or one if for marriage is immaterial. There are more material concerns, for instance of property. Marriage is essentially about capital. This is missing from the discussion. The divide is actually about experience, not ideology. For instance, there are those who do not or have never had access to property. For many, marriage is not lucrative. Thus, the articulation of marriage is rooted in privilege. There are, of course, transgender people who marry but in ways that fall outside the purview of the same-sex marriage purview. However, of course, I don’t support the way that things are, I don’t support non-recognition. It is discrimination. However, the articulation in the theoretical scaffolding about marriage, because marriage is unequal.”

Bringing into view the politics of the legal battle, the same-sex marriage issue and the exclusions faced by the non-upper-caste and non-upper-class members of the community, Vaivab states, “Questions of caste, class, religion always play out. My point of contention is that lines are always drawn on ideological inclination. But, what position would I have, if I come from a small town? I don’t have an affinity towards a particular ideology, my ideology stems from conversations with people. Hence, I believe, experience is what structures people, not ideology. The same-sex marriage discussion is also problematic in the very phraseology that structures it. ‘Same-sex’ marriage is given to media by a few lawyers. However, it also comes with its own set of exclusions. There are people who are from the LBT and trans* sections who have offers robust feedback on this.”

A political existence of many layers

The reading down of Section 377, the NALSA judgment, and the Trans Act form the basis of the rights we now seem to demand from the courts and the state. The fight for “same-sex” marriage can only be sustained when we recognise the community’s history, especially the contribution made by the transgender community. And these fights cannot be understood in isolation, as these were political resistances.

The discrimination that the community faces for their sexual orientation and/or their gender identity at the hands of society and state cannot be separated from the discrimination that the members face for their caste, creed, religion, class, etc, rather the resistance to such discrimination sits at the intersections of these layered identities, and to separate them, these subaltern identities, will result in erasing of our history.

Related:

MAT relaxes age criteria, makes provision for grace marks for transgender community in public employment, refuses to direct state to grant reservation

9 years since the passing of the NALSA judgment, has the cycle of discrimination and ostracism finally been broken for the transgender community?

Our own hurt us the most: Familial violence in the lives of queer & Trans persons within marriage equality debates

Delhi HC Approached for Separate Public Job Vacancies for Transgender Persons

No proposal for affirmative action in education or employment for transgenders: Govt

Queer partner approaches Kerala HC to demand release of partner’s dead body after the family of the deceased refuse to take responsibility

The post Can pride be apolitical? Queer and trans* voices and politics appeared first on SabrangIndia.

According to The News Minute, Manu was declared dead on February 4, after he fell from the terrace and suffered grievous injuries that proved to be fatal. He was taken to Aster Medcity hospital. According to the report, the family members have refused to take responsibility for settling medical bills and coordinating the removal of the body from the private hospital in Kerala’s Kochi.

Following these events, Manu’s partner Jebin made a petition to the High Court in Kerala to get custody of Manu’s body, according to News18. The High Court had reviewed the petition, and thereafter, a formal notice was given to the private hospital through email.

TNM has reported statements from Athul PV, who is a friend of the couple as well as an advocate for LGBTQIA+ rights, who revealed that Manu and Jebin were partners for several years and had even recently celebrated their marriage in a traditional ceremony last year, despite the lack of official recognition under Indian law.

The case was heared on February 6 with the bench of Justice Devan Ramachandran. The counsel representing Jebin, who according to reports happens to be Kerala’s first transgender lawyer, Advocate Padma informed the court that Jebin was ready to settle all of the medical bills owed to Aster Medcity Hospital and appealed to the bench to grant permission for Jebin to take Manu’s body from the hospital for his final rites.

The judge heard the case again on February 8, and also directed the family to present their perspective.

Despite being a state that performs well on the educational and social and economic indexes, Kerala has been often criticised and called out by many with regards to its treatment of the LGBTQIA+ community. This is also not the first instance of prejudice that has made the news. In 2020, the state was in the news again after Anjana Suresh committed suicide after she was reportedly given conversion therapy after coming out to her family as bisexual. A report by The News Minute claims that conversion therapy is something that is not out of ordinary and states that family members often take LGBTQIA+ people to psychiatrists and rather than providing support to the person, many psychiatrists align with parents, resorting to shaming and unnecessary medication.

The struggle for rights continues for the community which received a setback in 2023 after the Supreme Court judgement on marriage where the Supreme Court declined to legalize same-sex marriage. The unanimous decision of the five-judge Bench asserted that there is no inherent fundamental right to marry. Furthermore, the court stated that marriages between queer people cannot be incorporated into the Special Marriage Act, 1954.

Related:

Our own hurt us the most: Familial violence in the lives of queer & Trans persons within marriage equality debates

Play about Queers Cancelled, As VHP and Right Wing Organisations Protest 

Uttarakhand: Women’s groups reject UCC say provisions are unconstitutional, criminalises constitutional behavior, Muslims

The post Queer partner approaches Kerala HC to demand release of partner’s dead body after the family of the deceased refuse to take responsibility appeared first on SabrangIndia.

The Evolution of Judicial Pronouncements

Recent judgments by various High Courts across India have been instrumental in challenging societal norms and advancing the rights of the queer and transgender community. These legal milestones embody the increasing recognition of the LGBTQIA+ rights movement on both national and global scales. By embracing a more inclusive perspective, these judgments signal a departure from traditional norms, shedding light on the significance of individual identity and personal freedom.

Catalysing Change through Legal Precedent

Legal judgments wield considerable influence in shaping societal norms and ensuring justice for marginalized communities. The judgments delivered by the courts hold the power to set critical precedents that can facilitate broader legal reforms and transformative social change. By interpreting laws in the context of evolving gender identities and sexual orientations, these courts have paved the way for a more equitable society, one that values diversity and respects individual autonomy.

The SC Handbook: An Emblem of Progress

The Supreme Court’s endeavour to combat gender stereotypes through its comprehensive handbook stands as a testament to its commitment to nurturing an inclusive society. This handbook, adorned with LGBTQIA+-friendly terms and phrases, serves as a beacon of hope for marginalized individuals seeking recognition, understanding, and legal protection. Its emphasis on unbiased language and fair representation underscores the Court’s recognition of the power of words in shaping perceptions and attitudes.

The SC handbook’s mention of gender-neutral pronouns, acknowledgment of non-binary identities, and avoidance of heteronormative assumptions aligns with the broader movement to promote equality and respect. This handbook, with its innovative approach, not only guides legal professionals but also contributes to a broader cultural shift by encouraging sensitivity and empathy.

Synthesis of Progress

The intersection of recent court judgments and the SC handbook underscores the harmony between legal discourse and the evolving societal consciousness. The judgments themselves, often peppered with LGBTQIA+-friendly terminology, reflect a broader acceptance of diverse identities within the legal framework. This convergence fosters an environment where legal practitioners, judges, and society at large are encouraged to engage with these concepts without preconceived biases.

Beyond the Horizon:

As we navigate the intricate tapestry of LGBTQIA+ rights in the context of Indian legal jurisprudence, it becomes evident that these recent judgments and the SC handbook are stepping stones toward a more equitable society. They herald an era where queer and transgender individuals can assert their rights and identities without fear of discrimination. However, this journey is far from over; the road ahead entails continuous legal advocacy, widespread education, and a collective commitment to challenging stereotypes.

In a world where visibility and recognition for LGBTQIA+ individuals are becoming increasingly vital, legal judgments and documents like the SC handbook carry immense significance. Through these milestones, the Indian legal system not only establishes legal precedents but also sends a powerful message of inclusion and affirmation. As we celebrate the strides made so far, we must remain vigilant in pushing for further progress, ensuring that every individual, regardless of their gender identity or sexual orientation, can live with dignity, equality, and pride.

I. Patna High Court Judgment: A Step towards Inclusive Enumeration

Case Summary:

The Reshma Prasad v. State of Bihar case presented a unique legal challenge concerning the inclusion of transgender individuals in the Caste Survey of 2022 conducted by the State Government of Bihar. Reshma Prasad, the petitioner, argued that including transgender individuals in the caste enumeration violated their fundamental rights enshrined in Articles 14, 15, 16, and 21 of the Constitution of India, as gender and caste are distinct identities. This case was heard by a two judge bench which included the HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY. The judgement was delivered by the chief justice of the Patna High Court.

Analysis of the Court’s Approach towards LGBTQIA+ Rights:

The Patna High Court’s approach to LGBTQIA+ rights in this case showcased a delicate balance between acknowledging distinct identities and promoting inclusive welfare measures. The court recognized the intent behind the caste survey – to uplift marginalized groups – while also respecting transgender individuals’ right to self-determination.

Queer and Transgender-Friendly Terms/Phrases:

In its observations, the court exhibited sensitivity by referring to transgender individuals and their concerns with accuracy and respect. The court recognized that the transgender community seeks upliftment and equal rights and that the inclusion in the caste list was likely an administrative mistake rather than a deliberate infringement.

Implications on Community’s Rights Progression:

This judgment holds significant implications for the rights progression of the queer and transgender community. By addressing the distinct identities of gender and caste, the court set a precedent that acknowledges the complexity of transgender rights. The court’s emphasis on the importance of targeted welfare measures for transgender individuals signifies an understanding of their unique needs and challenges.

Key Excerpts from the Judgment:

Distinct Identities of Caste and Gender: The court was quick to discern that transgender identity is not synonymous with caste identity. By asserting that individuals, irrespective of their conformity to conventional gender norms, should be empowered to determine their gender, the court aligned its stance with the evolving understanding of gender diversity. Notably, the court cited a clarification by the State Government, highlighting the provision for respondents to indicate their gender as “other” and independently specify their caste.

Mitigation of Concerns: The court’s approach to mitigating the petitioner’s concerns showcases its commitment to striking a harmonious balance. While recognizing that the inclusion of transgender individuals in the caste enumeration might have been an oversight, the court advocated for a more nuanced approach. It suggested the possibility of identifying the transgender community separately, allowing for a targeted assessment of their socio-economic and educational status. This approach, the court emphasized, aimed at improving the lives of transgender individuals and providing them with better living conditions without perpetuating caste-based advantages.

The Patna High Court’s judgment in the Reshma Prasad case serves as an emblem of progress in recognizing the rights of the queer and transgender community. By thoughtfully addressing the interplay between gender identity and caste enumeration, the court not only upheld fundamental rights but also demonstrated a willingness to adapt legal perspectives to an evolving understanding of gender. This judgment reverberates as a milestone in the legal journey towards equality and inclusion for the LGBTQIA+ community, paving the way for future cases and affirming the importance of nuanced consideration in shaping policy and rights frameworks.

II. Allahabad High Court Judgment: Pioneering Transgender Rights

Overview of the Case and the Court’s Decision:

In the case of Neha Singh v. State of U.P. and 2 Others (WRIT – A No. 7796 of 2023), the Allahabad High Court addressed the rights of transgender individuals, with Neha Singh, a Woman Constable in the Uttar Pradesh Police, at the center. Neha, identifying with a male personality, experiences an innate urge to connect with females despite having male physical characteristics. Seeking Gender Dysphoria recognition, Neha aims to undergo Sex Reassignment Surgery (SRS) to align her body with her true gender. This judgement was delivered by Justice Ajit Kumar.

Examination of the Court’s Stance on LGBTQIA+ Rights Evolution:

The court’s stance reflects a progressive understanding of LGBTQIA+ rights evolution, hinged on the landmark judgment in the case of “National Legal Services Authority v. Union of India and Others” (2014 5 SCC 438). This case laid the foundation for recognizing gender identity as an intrinsic facet of human dignity and autonomy, thereby safeguarding it under fundamental rights.

Notable LGBTQIA+ Inclusive Language from the Judgment:

The Allahabad High Court employed inclusive language in its judgment, emphasizing the significance of gender identity and the right to self-identified gender. This approach mirrors the sentiment of the Supreme Court’s 2014 verdict, acknowledging the right of individuals to choose and assert their gender identity, be it male, female, or third gender.

Contributions to the Broader Narrative of Rights for the Community

The judgment’s significance reverberates within the broader narrative of LGBTQIA+ rights. By upholding the right of individuals like Neha Singh to undergo gender-affirming procedures like SRS, the court enforces the principles established in the Transgender Persons (Protection of Rights) Act, 2019. This legislation emphasizes the recognition of gender identity and the need for healthcare provisions for transgender individuals, including SRS and hormonal therapy.

Key Aspects of the Case:

1. Supreme Court’s Recognition of Gender Identity: The excerpt underscores the Supreme Court’s assertion that gender identity is pivotal to human dignity and forms an integral aspect of fundamental rights.
2. Upholding the Right to Choose Gender Identity: The court reiterates the Supreme Court’s stand, affirming individuals’ right to self-identify their gender as male, female, or third gender, establishing it as an essential dimension of the right to life.
3. Transgender Persons (Protection of Rights) Act, 2019: The mention of this Act illustrates the legislative strides taken to ensure medical care and recognition for transgender individuals. The Act aligns with the broader thrust of the judgment.
4. Precedents and Application: The reference to similar cases highlights the broader legal landscape’s alignment with recognizing gender identity post-SRS. It underscores the consistency in judicial interpretation.
5. Director General of Police’s Role: The court emphasizes the constitutional validity of gender reassignment surgery and stresses the importance of prompt consideration of Neha Singh’s application for SRS by the Director General of Police.
6. Court Directions and Compliance: The court’s directions underscore its commitment to upholding transgender rights. It not only directs immediate action on Neha Singh’s application but also calls for appropriate legislation and healthcare provisions to ensure comprehensive compliance.

The Allahabad High Court’s judgment in the Neha Singh case emerges as a remarkable step in advancing transgender rights. By aligning its stance with the Supreme Court’s pronouncements and the provisions of the Transgender Persons (Protection of Rights) Act, 2019, the court emphasizes the importance of recognizing and respecting gender identity as an inherent facet of human rights. Through this judgment, the court contributes significantly to fostering an environment of inclusivity, dignity, and equality for transgender individuals within the legal framework.

III. Bombay High Court Order: A Trailblazing Path towards Inclusivity

Case Summary and Key Points of the Order:

A recent division bench of the Bombay High Court, consisting of Justices Revati Mohite-Dere and Gauri Godse, handled a plea by a same-sex couple who sought protection and sensitivity in dealing with LGBTQIA+ related cases. The court’s proactive engagement demonstrated its recognition of the pressing need for specialized guidelines to address challenges faced by the LGBTQIA+ community.

Analysis of the Court’s Perspective Regarding Queer and Transgender Rights:

The Bombay High Court’s perspective on queer and transgender rights emerges as progressive and inclusive. By actively considering and addressing the unique concerns of LGBTQIA+ individuals, the court affirms its commitment to protecting their rights and dignity. This perspective reflects a nuanced understanding of the struggles and vulnerabilities faced by this community.

Identification of LGBTQIA+ Affirming Terms/Phrases within the Order:

The court’s recognition of the broader issues at play, such as “missing or kidnapping complaints against lesbian or gay couples,” underscores its sensitivity to the particular challenges faced by LGBTQIA+ individuals. The court’s use of these terms serves to humanize and validate the experiences of same-sex couples, emphasizing their right to protection and fair treatment.

Significance of the Order in the Context of Rights Progression:

The Bombay High Court’s proactive approach and emphasis on formulating guidelines for the sensitization of law enforcement agencies showcase a significant step towards advancing LGBTQIA+ rights. By recognizing the need for specialized measures to protect same-sex couples and proposing the formation of a committee inclusive of LGBTQIA+ community members, the court sets a precedent for judicial activism that fosters inclusivity, equality, and human rights.

Key Aspects of the Order:

Recognition of the Broader Issue: The court’s proactive stance goes beyond addressing the immediate case. By acknowledging the larger issue of harassment and conflicts faced by LGBTQIA+ individuals, the court showcases a comprehensive understanding of the challenges and aims to establish a supportive framework.

Integration of Stakeholders: The court’s suggestion to involve LGBTQIA+ community members in the committee formation emphasizes an inclusive approach. By inviting those directly impacted to contribute, the court ensures that guidelines are not only effective but also informed by lived experiences.

Sensitization of Police: The court’s emphasis on sensitizing law enforcement in LGBTQIA+-related cases demonstrates a commitment to combating discrimination. This approach aims to prevent undue harassment and ensures that police interactions respect the rights and dignity of LGBTQIA+ individuals.

Alignment with International Standards: Referencing guidelines from the Madras High Court demonstrates the Bombay High Court’s alignment with international standards of LGBTQIA+ rights. This approach reflects a commitment to adopting successful practices from around the world.

The Bombay High Court’s active engagement with LGBTQIA+ concerns and its recommendation to create guidelines for sensitizing law enforcement agencies is a remarkable stride towards equality and inclusivity. By recognizing unique challenges and proposing solutions that involve LGBTQIA+ voices, the court showcases a profound commitment to fostering an environment of understanding and respect. This order contributes significantly to the advancement of LGBTQIA+ rights and represents a beacon of hope for future progress within the Indian legal landscape.

IV. Madras High Court Judgment: Catalysing Transgender Rights and Social Inclusion

Brief Outline of the Case and its Outcome:

The Madras High Court recently rendered a significant judgment addressing a discriminatory resolution by the Nainarkuppam Village Panchayat. The resolution denied land ownership rights (land patta) to transgender individuals, citing concerns about local culture and youth. The court emphatically struck down this discriminatory resolution and asserted the imperative of social inclusion. This Judgement was delivered by Justice S.M Subramanium.

Evaluation of the Court’s Attitude towards LGBTQIA+ Rights Advancement:

The Madras High Court’s attitude towards LGBTQIA+ rights advancement in this judgment is unequivocally progressive. The court robustly upholds the rights of transgender persons, challenges discrimination, and highlights the constitutional responsibility to protect marginalized communities from injustices.

Spotting LGBTQIA+ Friendly Terminology Used in the Judgment:

The judgment employs inclusive language by consistently referring to transgender individuals as “transgender persons.” This terminology reflects respect for their self-identified identities and aligns with contemporary LGBTQIA+ affirmative language.

The Judgment’s Role in the Trajectory of Queer and Transgender Rights:

This judgment plays a pivotal role in advancing queer and transgender rights. By vehemently rejecting a discriminatory resolution and advocating for the inclusion of transgender persons, the court reinforces the principles of equality, non-discrimination, and dignity. The judgment contributes to the broader trajectory of recognizing the rights of marginalized communities within the Indian legal framework.

Analysing the Madras High Court Judgment on Transgender Rights and Inclusion:

Challenging Discriminatory Resolutions: The case revolved around the discriminatory resolution of the Nainarkuppam Village Panchayat, which the court deemed unconstitutional. The court’s unambiguous stance on addressing discriminatory practices underscores its commitment to justice and equality.

Resisting Withdrawal for a Just Cause: The court’s refusal to permit withdrawal of the writ petition by the Panchayat President showcases its unwavering dedication to safeguarding constitutional values. This stance reflects the court’s recognition of its responsibility to address social issues with lasting implications.

Transgender Rights and Reservation: Justice SM Subramaniam’s emphasis on recognizing transgender rights and advocating for their reservation in law making forums is a significant stride towards inclusivity. The court’s reliance on the Transgender Persons (Protection of Rights) Act, 2019, reaffirms the relevance of this legislation in promoting equality.

Promoting Inclusivity and Eradicating Stigma: The court’s metaphor of diverse gifts underscores the importance of dismantling stereotypes and embracing diversity. This resonant language reinforces the need for a more inclusive and empathetic society that respects the uniqueness of every individual.

Safeguarding Constitutional Mandates: The court’s unwavering commitment to upholding constitutional mandates is evident in its refusal to allow withdrawal. This principle reinforces the judiciary’s role as a guardian of constitutional values, particularly when marginalized communities are marginalized.

Direction for Action: The court’s proactive directives for action against the Panchayat President and members, as well as its mandate for granting land patta and participation rights to transgender persons, underscores its commitment to effecting tangible change. This reflects a holistic approach towards dismantling discrimination and ensuring practical implementation of rights.

The Madras High Court’s judgment serves as a beacon of hope for social justice and inclusion. By taking a resolute stand against discrimination and promoting the rights and dignity of transgender individuals, the court sets a remarkable precedent. This judgment demonstrates the judiciary’s transformative potential in fostering a more equal and compassionate society for all, regardless of their gender identity or sexual orientation.

V. Kerala High Court Judgment: Empowering Intersex Rights and Autonomy

Summary of the Case and the Ruling:

The Kerala High Court delivered a ground breaking judgment on August 7, 2023, addressing intersex rights and non-consensual medical interventions. The case revolves around parents seeking permission for a non-consensual genital reconstructive surgery on their intersex child. The judgment navigates intricate considerations, including the child’s autonomy, parental rights, medical ethics, and broader human rights principles. This judgement was delivered by Justive V.J Arun.

Discussion of the Court’s Viewpoint on LGBTQIA+ Rights Progression:

The Kerala High Court’s viewpoint reflects a progressive stance on LGBTQIA+ rights. By delving into the complexities of gender identity, biological sex, and international legal frameworks, the court underscores the importance of safeguarding the rights, autonomy, and dignity of intersex individuals.

Noteworthy LGBTQIA+ Inclusive Phrases or Expressions Featured in the Judgment:

The judgment consistently employs the term “intersex” to refer to individuals born with ambiguous genitalia. This terminology reflects an inclusive and respectful approach, recognizing the diverse experiences and identities within the LGBTQIA+ spectrum.

How This Judgment Contributes to the Overall Landscape of the Community’s Rights:

The Kerala High Court’s judgment significantly contributes to the advancement of LGBTQIA+ rights:

1. Legal Precedent: The judgment establishes a precedent that prioritizes the autonomy and rights of intersex individuals, providing a framework for future cases to uphold human rights principles.
2. Protection of Vulnerable Individuals: By addressing the vulnerability of intersex infants and children, the judgment safeguards them from potentially harmful non-consensual medical interventions.
3. Promoting Awareness and Education: The judgment encourages awareness and education about intersex rights and gender diversity, fostering a more inclusive societal perspective.
4. Advancing Human Rights: This judgment aligns with global efforts to promote equal treatment for all individuals, irrespective of gender identity or biological sex, thus contributing to the broader LGBTQIA+ rights movement.

The Kerala High Court’s judgment signifies a significant step forward in the realm of intersex rights and gender identity. By prioritizing autonomy, inclusivity, and the protection of vulnerable individuals, the judgment resonates as a beacon of progressiveness. It underscores the evolving legal landscape’s dedication to preserving and championing the rights of all individuals, regardless of their gender identity or expression. This landmark case serves as a testament to the power of the judiciary in shaping a more equitable society that respects and honours individual agency in determining their gender identity.

VI. Supreme Court’s Handbook on Combating Gender Stereotypes: Nurturing Inclusion and Progress

The struggle for gender equality and recognition of diverse identities in India has witnessed significant strides, supported by progressive judgments and the judiciary’s commitment to combatting gender stereotypes. This analysis explores key Supreme Court judgments impacting the queer and transgender community, the utilization of LGBTQIA+ friendly terms, and the role of the new handbook in shaping perceptions and legal discourse.

The Ongoing Battle against Stereotypes:

The Indian Supreme Court’s recognition of the harmful impact of gender stereotypes is crucial. The judgments highlighted showcase the Court’s dedication to challenging stereotypes that perpetuate gender inequality. By dismantling discriminatory provisions and rejecting harmful stereotypes, the Court lays the foundation for progress not only for women but also for the queer and transgender community.

Transcending Stereotypes: Progress for the Queer and Transgender Community:

While the provided handbook emphasizes gender stereotypes impacting women, the principles extend to the queer and transgender community. The fight against stereotypes goes beyond gender, encompassing gender expressions and sexual orientations. The Court’s focus on dignity, privacy, and credibility resonates with queer and transgender individuals facing discrimination and violence.

LGBTQIA+ Friendly Terms and Inclusive Language:

The new handbook’s emphasis on inclusive language and LGBTQIA+ friendly terms is a significant stride towards recognizing and affirming the rights of queer and transgender individuals. By using respectful and affirming language that acknowledges self-identified gender, the Court underscores the importance of linguistic sensitivity in fostering respect and dignity. Terms like “gender identity,” “queer,” and “transgender” reflect the Court’s commitment to diverse identities and avoiding marginalization.

Linking Handbook Recommendations to Earlier Judgments:

The handbook’s recommendations align with earlier judgments:

1. Navtej Singh Johar v. Union of India (2018): This judgment decriminalized same-sex relations, recognizing LGBTQIA+ individuals’ right to love without fear of criminalization.
2. National Legal Services Authority v. Union of India (2014): This case affirmed transgender rights, laying the foundation for recognition and acceptance.
3. Anita v. State of Maharashtra (2016): Recognizing the right to marriage and equality for transgender individuals.

Impact on Shaping Perceptions and Legal Discourse:

The handbook’s role is pivotal in shaping perceptions and legal discourse. It signals a shift towards acknowledging diverse gender identities and breaking deeply rooted prejudices. By using inclusive language, recognizing survivors’ credibility, and rejecting discriminatory laws, the Court propels queer and transgender rights forward.

The Indian Supreme Court’s journey towards dismantling gender stereotypes and embracing inclusive language underscores its evolving commitment to human rights. The discussed judgments exemplify the Court’s determination to challenge biases, ensuring justice for all, irrespective of gender identity or sexual orientation. As India progresses towards inclusivity, the judiciary plays a pivotal role in shaping norms, perceptions, and laws. The struggle for the queer and transgender community’s rights aligns with the broader pursuit of gender equality and justice.

VII. Comparative Analysis and Overall Progression: Navigating the Evolution of LGBTQIA+ Rights

Drawing Comparisons between Judgments’ Approaches:

A comparative analysis of the discussed judgments reveals both unique nuances and shared themes in their approaches towards LGBTQIA+ rights. While each case addresses distinct issues, a consistent commitment to dismantling stereotypes, protecting autonomy, and promoting inclusivity is evident.

Identifying Common Themes and Trends:

1. Autonomy and Identity: Across judgments, a common thread is the emphasis on an individual’s autonomy to determine their gender identity. Whether discussing transgender rights or non-consensual interventions, the courts underscore an individual’s right to self-identification, free from societal norms.
2. Protection against Discrimination: Discrimination emerges as a central concern. The courts recognize that discrimination against queer and transgender individuals perpetuates inequality. The need to challenge discriminatory practices and provide protection against harm is a recurrent theme.
3. Inclusive Language: The embrace of inclusive language is consistent. Courts recognize that using derogatory terms perpetuates stereotypes and marginalizes LGBTQIA+ individuals. Inclusive language is viewed as a powerful tool to foster acceptance and respect.

Collective Impact on LGBTQIA+ Rights Advancement:

Collectively, these judgments represent significant strides in the advancement of LGBTQIA+ rights in India. They challenge discriminatory laws, protect autonomy, and promote inclusivity. The judgments have sparked important legal reforms and underscore the judiciary’s role as a driving force for societal change.

The Role of Inclusive Language: Promoting Understanding and Acceptance:

Inclusive language stands as a unifying element in the judgments. The courts’ usage of LGBTQIA+ friendly terms signifies a broader commitment to fostering understanding and acceptance. This linguistic shift goes beyond semantics; it signals respect for diverse identities and challenges deeply ingrained biases.

The comparative analysis of these judgments underscores the Indian judiciary’s evolution in tackling LGBTQIA+ rights. The collective emphasis on autonomy, protection against discrimination, and the power of inclusive language reflects a growing understanding of the complexities surrounding gender identity and sexuality. These judgments collectively contribute to dismantling stereotypes, fostering inclusivity, and laying the foundation for a more equitable society. As the Indian legal landscape continues to evolve, these cases serve as milestones in the journey towards justice and equality for all, irrespective of their gender identity or sexual orientation.

Conclusion: Navigating the Path to Equality and Inclusion

The journey through the analysed judgments has illuminated a remarkable evolution in the recognition and protection of LGBTQIA+ rights in India. A tapestry of cases spanning diverse aspects of queer and transgender rights presents several key takeaways that underscore the positive trajectory of these rights.

Key Takeaways:

1. Autonomy and Inclusivity: Across cases, the courts consistently prioritize individual autonomy, acknowledging that one’s gender identity is a deeply personal matter. The emphasis on inclusivity in language and rights resonates as a cornerstone of these judgments.
2. Challenging Stereotypes: The Indian judiciary stands resolute against gender stereotypes and discrimination. Through progressive decisions, stereotypes are debunked, and a commitment to an equitable society is reinforced.
3. Intersectionality: The judgments reflect an understanding of the intersectionality of identities. While the focus remains on LGBTQIA+ rights, the courts acknowledge the broader implications on society and promote comprehensive change.
4. Legal Precedents: Each case contributes to building a robust legal framework for queer and transgender rights. The recognition of international standards and past legal precedents solidifies the jurisprudential foundation for equality.

Positive Trajectory:

The analysed judgments collectively narrate a story of progress, from the decriminalization of same-sex relations to the recognition of transgender rights and protection against discrimination. Each judgment reflects the judiciary’s endeavour to ensure that societal norms do not infringe upon the rights and dignity of queer and transgender individuals.

Evolving Legal Landscape and Societal Attitudes:

These judgments mirror the ongoing evolution of both the legal landscape and societal attitudes. While the legal victories are undeniable, they mirror a broader societal awakening to the need for acceptance and inclusivity. The resonance between judicial decisions and shifting societal paradigms underscores a shared commitment to fostering an environment where diversity thrives.

A Glimpse into the Future:

Looking forward, the harmonious interplay of judicial decisions and inclusive language holds immense promise. The courts’ role as champions of justice and equality is pivotal. Inclusive language, as seen in the Supreme Court’s handbook, not only transcends courtroom decorum but also ushers in a new era of understanding and acceptance.

Conclusion in Progression:

The journey from challenging stereotypes to protecting autonomy and promoting inclusive language is a testament to India’s march towards a more equitable society. As the nation continues to evolve, the convergence of progressive judgments and inclusive language holds the promise of further advancements in LGBTQIA+ rights. The legal framework stands fortified, and as society continues to grow, the principles underscored in these judgments will guide the path to a more inclusive, accepting, and just future.

Related:

Courts take forward steps for India’s LGBTQIA+ community

Purge incorrect, derogatory references to LGBTQIA+ persons: National Medical Commission

Madras HC issues guidelines for sensitisation of stakeholders in LGBTQIA+ matters

Police need sensitisation on couple’s autonomous life choices: Bombay HC

Liberating Life through the Law

India’s LGBTQIA+ struggle: beyond legal victories, battle for true equality remains

When an Indian court allowed a LGBTIQ+ marriage

The post Unravelling India’s Legal Evolution: LGBTQIA+ Rights and the Supreme Court Handbook appeared first on SabrangIndia.

The nation has made tremendous strides towards public acceptance and legislative reform in recent years. To really accept the LGBTQIA+ community and secure their rights, respect, and wellbeing, however, much work remains.

Like many other nations, India has struggled with social prejudices and stereotypes towards the LGBTQIA+ population that are deeply rooted. The path to equality entails confronting these stereotypes and removing the obstacles that prevent LGBTQIA+ people from fully participating in all facets of life. By fostering an inclusive atmosphere, we provide people the chance to right past wrongs, advance communication, and increase understanding among many facets of society. As a result, the social fabric becomes more equitable and peaceful.

It is critical to acknowledge and uphold the fundamental human rights and dignity of every person, regardless of their sexual orientation, gender identity, or gender expression, in a varied and diversified community like India. By guaranteeing that no one is marginalised or excluded, an inclusive environment upholds the idea that everyone deserves respect, justice, and protection against discrimination.

For upholding human dignity, addressing social injustices, promoting mental and emotional well-being, facilitating personal and professional growth, catalysing positive social change, and advocating for legal reforms, it is crucial to create an equal, inclusive, enabling, and just environment for the LGBTQIA+ community in India.

India may make tremendous progress towards establishing a society that celebrates individuality, upholds human rights, and promotes inclusivity through embracing variety, dispelling prejudices, and providing equal rights. It will take the combined efforts of individuals, communities, institutions, and legislators to create an LGBTQIA+-friendly environment, but the final result will be a stronger, more vibrant, and progressive country that upholds the principles of equality and justice for all.

This piece attempts to go deeper into the court rulings, decrees, and directives that have made it possible for the LGBTQ+ community to flourish in an inclusive, just, and equitable environment.

Let’s take a walk through these pivotal moments for the community, in the honour of the pride month.

Judgments furthering equality

A theory of law, legal positivism[1], posits that different judges, would give different outcomes to the same legal problem in front of them.

The principles, moral convictions, and ethical frameworks that people hold dear are referred to as values and beliefs. Judges’ decision-making is influenced by their personal values and opinions, just like that of any other person. These individual viewpoints may include how they perceive justice, fairness, individual liberties, and social norms. Judges may interpret legal principles in light of their views and beliefs when applying the law to particular instances. Judges may emphasise various legal reasons, give different weights to opposing interests, and eventually arrive at different conclusions as a result of these disparities in attitudes and views.

Different Judges then, may arrive at different sets of findings from the same factual situations based on their personal values and opinions. Putting aside one’s personal beliefs and giving a judgement is a challenge.

The LGBTQIA+ community saw a different kind of glimmer of hope in the case of Mrs. S. Sushma & Ors. v. The Director-General of Police & Ors[2] where Justice Ventakesh, recognising his own lack of comprehension of the realities of the community, sought psychoeducation and counselling to increase his understanding of same-sex partnerships.

Such an openness in attitude is both precious and rare. It is not often that those in positions of power and judicial authority acknowledge their own shortcomings.

Justice Venkatesh therafter issued a landmark decision in June 2021, giving specific instructions to the police, judiciary, legal aid services, and central ministries to sensitise their employees and personnel in their interactions with LGBTQIA+ people after undergoing counselling and consulting with community members, NGOs, and lawyers.

These are the kind of judges India needs, the ones who are open to learning and educating oneself, while keeping an open mind, not the kind of judges who will compromise on the integrity of the constitution in order to protect their own set of discriminatory values and beliefs.

Other Jurisprudence

1. NALSA v. Union of India[3]

For the nation of India, the 2014 NALSA Judgement represented a turning point. The Supreme Court of India issued a significant ruling in this matter in April 2014. The right of transgender people to self-identify as male, female, or third gender was upheld by the court, who also acknowledged their legal rights.

According to the ruling, transgender individuals should be seen as a socially and economically underprivileged group that is entitled to numerous affirmative government policies from both the state and the federal level.

The ruling confirmed that transgender people are entitled to the fundamental freedoms and rights protected by the Indian Constitution, such as the right to life, equality, and freedom from discrimination. It emphasised the need to treat the transgender population with respect and decency.

The government was ordered by the court to take action to formally recognise transgender people’s gender identities. It acknowledged the value of granting gender identification certificates to make it easier for people to obtain a range of rights, privileges, and benefits.

The NALSA ruling classified transgender people as a socially and economically disadvantaged group, making them eligible for affirmative action initiatives and accommodations in the workplace and in education. It demanded that social welfare programmes and other actions be taken to support the transgender community.

The judgement emphasised the necessity for facilities and services tailored specifically to the needs of transgender people. It recognised that transgender people have the legal right to hormone therapy and sex reassignment surgery (SRS) without facing any prejudice.

In addition to stressing the significance of raising knowledge about transgender rights among the general public, elected officials, and law enforcement agencies, the judgement also ordered the government to guarantee transgender people’s access to education and job training. To combat the discrimination and stigma experienced by transgender people, it called for sensitization campaigns. It demanded the abolition of prejudice in educational settings and the development of welcoming environments. The court’s ruling emphasised the necessity of expanding employment possibilities and taking action to combat workplace discrimination.

The NALSA decision marked a significant advancement in the recognition and defence of transgender people’s rights in India. It serves as the basis for later legal, political, and social changes aimed at advancing equality and inclusivity for the transgender population.

2.  Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors[4]

The 2017 ruling by the Supreme Court of India in the K.S. Puttaswamy v. Union of India case, generally known as the Aadhaar case, was a significant decision.

The lawsuit largely focused on the right to privacy in relation to the Aadhaar biometric identification system, but it also has implications for other groups, such as the LGBTQ+ community.

The Indian Constitution protects the right to privacy as a basic right, according to this Supreme Court’s ruling.

According to the court, a fundamental component of the right to life and personal freedoms protected by Article 21 of the Constitution is the right to privacy. This decision has a favourable effect on the rights of the LGBTQ+ community by having substantial implications for personal autonomy, freedom, and dignity.

The idea of equal treatment and non-discrimination is reaffirmed by the right to privacy judgement. It acknowledges that people have the freedom to make private decisions free from unwarranted government or social involvement. This idea can be used to shield LGBTQ+ people from stigma, prejudice, and discrimination because of their sexual orientation or gender identity.

The ruling emphasises the value of shielding people from unwarranted state interference in their personal affairs. This protection can cover private decisions, personal connections, and other areas that are important to LGBTQ+ people. It can assist in stopping governmental authorities from meddling in their personal affairs, such as outing people against their will or conducting intrusive monitoring based on sexual orientation or gender identity.

The acceptance of the right to privacy promotes a person’s ability to publicly express their sexual orientation or gender identity. It enables LGBTQ+ people to express themselves without worrying about society or government pressure. This could help create a more accepting culture that respects and upholds the right of LGBTQ+ people to self-determination.

The importance of close friendships and family ties is acknowledged by the right to privacy. It can safeguard LGBTQ+ people’s ability to establish relationships, pick partners, and exercise their rights to be married, adopt, or start families without unjustifiable restrictions. This offers a foundation in law for the acceptance and defence of LGBTQ+ families.

Although the K.S. Puttaswamy ruling dramatically increased the rights of the LGBTQ+ community in India, there are still difficulties and battles to be won before there is complete equality and acceptance. The ruling offers a legal basis, but in order to provide complete protection and rights for LGBTQ+ people, societal attitudes, cultural norms, and more legal reforms are required.

3.  Shakti Vahini v. UOI[5]–

In 2018, the Apex Court acknowledged the freedom to select a life mate as a basic right in its decision.

When two adults mutually decide to become partners in life, the SC noted that this is a manifestation of their choice recognised by Articles 19 and 21 of the Constitution.

Although the LGBTQ+ community was not specifically mentioned in this ruling, it did describe the ability to choose a partner as a fundamental freedom and used gender neutral terms which can be applied to the LGBTQ+ community

4. Navtej Singh Johar v. UOI[6]

The 2018 ruling expressly reversed the Supreme Court’s prior ruling in the 2013 Suresh Kumar Koushal v. Naz Foundation case, which had affirmed Section 377’s constitutionality. In doing so, the Supreme Court upheld legal history actually made by the Delhi High Court in 2009 when a two judge bench that unequivocally held that treating consensual sex between adults as a crime is violative of fundamental rights protected by India’s Constitution. In 2013, ironically a two judge Supreme Court bench re-instated Section377 of the IPC. This, the Koushal decision had harmed the LGBTQ+ community greatly and had continued prejudice, the court admitted.

Overturning the 2013 Suresh Kumar Koushal v. Naz Foundation case, the court cited the idea of constitutional morality and said it is the responsibility of the judiciary to uphold individual rights and avoid the tyranny of the majority.

It was argued that in order to uphold constitutional morality, the LGBTQ+ community’s rights must be acknowledged and safeguarded. The verdict emphasised the value of social justice and the necessity of defending the rights of disadvantaged and marginalised people.

The decriminalisation of homosexuality was acknowledged as a step towards guaranteeing social justice for the LGBTQ+ population, which has historically been the target of discrimination, social stigma, and exclusion. In discussing issues of sexual orientation, the court emphasised the value of individuality and personal autonomy. It was decided that the freedom to select a partner who is also of the same sex is an expression of personal autonomy and is protected by the right to privacy.

The court made clear that laws that discriminate against people based on their sexual orientation are not supported by a legitimate classification and cannot, therefore, withstand constitutional scrutiny by highlighting the lack of intelligible differentia in Section 377.

5.  Deepika Singh v. CAT[7]

In this case, in 2022, the Indian Judiciary in its judgement, highlighted the different forms of families can evolve. The traditional definition of a family, which consists of a heterosexual couple and their kids was changed in this judgement to include all sorts of families.

An excerpt from the judgement reads-

“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the ‘mother’ and the ‘father’) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts.

“Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation

“The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”

The Naz Foundation decision, in which the Delhi High Court’s Division Bench declared Section 377 of the Indian Penal Code to be unconstitutional, first raised the issue of inclusivity by rejecting the conventional socio-legal definition of “family” as defined by a married mother and father. This decision furthers that idea by rejecting the traditional definition of a family.

6.  Arunkumar and Another Versus Inspector General of Registration[8]

It was decided in the case of Arunkumar v. Inspector General of Registration in 2019 that transgender people have the right to marry under Article 21 of the Indian Constitution and that the term “bride” under the Hindu Marriage Act includes transgender people who identify as women. The Court upheld Ms. Sreeja’s self-identification as a woman and acknowledged her right to do so, as well as the rights of other intersexes and transgender people who identify as women, to be included in the term of “bride.” It was observed that the State’s refusal to register her marriage constituted a breach of her fundamental rights.

7.  Nangai Versus Superintendent of Police, Karur District, Karur and Others[9]

In 2014, the Court acknowledged that Indian law does not take into account the gender fluidity of transsexuals. The Court acknowledged that forcing someone to undergo a gender medical examination was against Article 21.

The judgement upheld the individual’s right to self-identify as a particular gender. In addition to noting the continuous emphasis on binary gender identities in Indian and international publications, it rejected medical evidence of gender. Consequently, sex is decided at birth based on physical traits and by society as a whole under the Registration of Births and Deaths Act of 1969 and other laws. It has never been necessary to submit to a medical examination to demonstrate a person is female, thus making the petitioner do so in this instance is unfair.

Additionally, it was decided that failing to treat Nangai as a woman would be a breach of her constitutional rights  (Articles 14, 15, 16, 19(1)(a), 21) to equality, non-discrimination, freedom of speech and expression, life, and personal liberty, which were upheld in NALSA v. Union of India. The Court ultimately decided that Nangai was a woman and qualified for the position of a lady police constable.

Nangai also had the ability to self-identify as a third gender, among other gender identities. The Court overturned the decision to terminate Nangai’s employment and instructed the Superintendent to rehire her as a woman police constable after noting that she had not mislead the Board about her gender and recognised the stress that the forced medical exams had caused her.

8.  Queerythm and Anr. v. National Medical Commission and Ors. [10]

NGOs argued in 2021 that a section of the MBBS textbooks that promoted “Queer phobia” should be removed. They said that these textbooks stigmatise the sexual and gender identities of the LGBTQ (lesbian, gay, bisexual, and transgender) population as a crime, mental condition, or depravity.

According to the petitioners, the use of this kind of content violates the rights of LGBT people under Articles 14, 17, 19, and 21 of the Indian Constitution.

The National Medical Commission and the Undergraduate Medical Education Board were directed to act swiftly in order to address the problem of MBBS textbooks using “outdated, inhuman and discriminatory text and unscientific data” referring to the Queer community by the Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly of the Kerala High Court.

9.  Matman Gangabhavani v State of Andhra Pradesh and Ors[11]

This 2019 case pertains to reservations for transgenders. The High court of Andhra Pradesh recalled Supreme Court Directive 3 in NALSA (page 128) which instructed the federal and state governments to treat transgender people as members of socially and educationally underprivileged classes and to grant them “all kinds of reservations” in public employment and school admissions.

The court came to the conclusion that the State was compelled by this directive to establish a distinct category of reserved classes—the transgender category. This reservation category was supposed to be an addition to the others. The court referred to this reservation as “vertical.”

The court characterised the law by saying that it was compelled by the Supreme Court orders and that reservation in public positions was authorised by the constitution. But it has to be vertical in form. The NALSA guidelines were incorrectly implemented in terms of horizontal reservation.

However, failing to give vertical reservations constituted a disobedience of the Supreme Court’s order, for which contempt actions may be appropriate.

10.  Queerala An organization for Malayali LGBTIQ Community v. State of Kerala[12]

In 2020, J. V. Kunhikrishnan ordered Kerala’s government to take stern action against the state’s LGBTQA+ community’s forced conversion treatment. The Court further ordered the government to establish an expert group and develop a directive based on its findings in this regard.

11.  Sushma v. Commissioner of Police, Chennai[13]

This 2021 judgement is an extremely crucial one, as it laid down guidelines for the Police and prison authorities, educational institutes and for Physical and mental health professionals. The efforts Justice Venkatesh has gone through, in order to be able to deliver a fair and just judgment is historic.

The rules that have been established for the field of education include:

1. Educating parents on gender nonconformity and the LGBTQIA+ community will help to guarantee that families are accepting.
2. Ensuring that the restrooms are gender neutral for the transgender pupils.
3. People who identify as transgender should have the ability to modify their name and gender on their academic records.
4. In addition to the male and female gender columns in the application forms for admissions, competitive exams, etc., the term “transgender” should also be included.
5. Appointing counsellors who are more inclusive of all genders, whether in terms of the staff or the students, to ensure that complaints are handled in a more effective way

The guidelines for police and prison authorities recommend that:

1. There should be frequent programmes that concentrate on the procedures that should be taken to protect and also prevent offences against the members of this group.
2. Along with raising knowledge about the crimes and punishments listed under The Transgender Persons (Protection of Rights) Act, there should also be sufficient sensitization on their legal rights.
3. There should be separate prisons to reduce the likelihood of cis-men sexually assaulting transgender and gender non-conforming inmates. Programmes should be run by various NGOs with community support to highlight the issues that are faced by law enforcement agencies. Proper training should also be provided to ensure effective assistance with these issues.

The guidelines for Physical and mental health professionals include-

1. Along with programming that helped people grasp the concepts of gender, sexuality, and sexual orientation and encouraged acceptance of diversity, there should be mental health camps.
2. It should be strictly forbidden to make any attempts to medically treat or transform the sexual orientation of members of the LGBTQIA+ community into that of a heterosexual.
3. Professionals who participate in this conversion therapy should be sanctioned by taking strong action against them or perhaps having their licence to practise revoked.

Other policy directions that have helped create a just and equitable environment for the community are-

1. In 2020, the Karnataka government issued a directive prohibiting the recruitment of transgender people into the police force. But in July of that same year, the Karnataka government decided to make provisions for the reservations of transgender while hiring state police.[14]

2. The Karnataka government formally agreed in July 2021 and was the first to implement a 1% reservation for the transgender population in positions with the government. Soon after, a new petition was filed asking for the consideration of transgender accommodations in state-owned businesses and statutory organisations.[15]

3. Earlier this year, a petition was submitted to the Delhi High Court asking it to order the State government to build exclusive restrooms for transgender people since not doing so would violate their right to privacy. Additionally, when transgender people use bathrooms intended for males or women, it makes them uncomfortable and leaves them up to harassment.

The Delhi government had stated that the letter “T” will be put to bathrooms built for the disabled so that transgender people may also use them. The Court informed the State, but there had been no update on how this was being put into practise. The persistent stigma associated with transgender people makes access to basic health care facilities difficult for them[16]

4. Rajesh Bindal, the acting chief justice of the Calcutta High Court, appointed transgender person Ankani Biswas to the West Bengal State Legal Services Authority as an attorney. First transgender person to hold the job is Biswas.[17]

5. Rejecting claims that Kirpal’s “ardent involvement” in gay rights issues could lead to potential “bias and prejudice,” the apex court Collegium, led by Chief Justice of India D Y Chandrachud and also including Justices S K Kaul and K M Joseph, reiterated its November 11, 2021 recommendation for Kirpal to be appointed as a judge of the Delhi High Court.
6. According to the Collegium, Kirpal’s application to become a judge of the high court has been pending for more than five years and has to be reviewed quickly. If Saurabh Kirpal is appointed as a judge, he will be the country’s first openly gay judge.[18]

There have been multiple remarks made by CJI DY Chandrachud in the petition to legalize same-sex marriages, which the Supreme Court is currently hearing –

“There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals”

These judgements, remarks and orders not only show hope for a better future of India and the LGBTQ+ community but also reflect the change in the mindset of sections of the Indian Judiciary at least since Suresh Kumar Koushal v. Naz Foundation (2013).

With the changing atmosphere, one can be certain that there is hope for an India which recognized and provides all the right available to heterosexual people to the queer community.

[1] Hart, H. L. A., 1961 [2012], The Concept of Law, Oxford: Clarendon Press. Third edition, 2012

[2] S. Sushma, D/o. Mr. V. Senthil Kumar and Another Versus Commissioner of Police, Chennai and Others [2021] 5 MLJ 9

[3] NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA, AIR 2014 SC 1863

[4] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors, (2017) 10 SCC 1

[5] SHAKTI VAHINI v. UNION OF INDIA [(2018) 7 SCC 192]

[6] Navtej Singh Johar and Ors. vs. Union of India, AIR 2018 SC 4321

[7] Deepika Singh v. Central Administrative Tribunal, 2022 SCC OnLine SC 1088

[8] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[9] Nangai Versus Superintendent of Police, Karur District, Karur and Others [2014] 4 MLJ 12

[10] Queerythm and Anr. v. National Medical Commission and Ors. W.P.(C) No.18210 of 2021

[11] Matman Gangabhavani v State of Andhra Pradesh and Ors WP No 16770 of 2019 (AP High Court)

[12] Queerala An organization for Malayali LGBTIQ Comunnity v. State of Kerala, WP(C) No. 21202 of 2020

[13] S. Sushma, D/o. Mr. V. Senthil Kumar and Another Versus Commissioner of Police, Chennai and Others [2021] 5 MLJ 9

[14] https://www.barandbench.com/news/litigation/reservation-for-transgender-persons-state-police-constable-recruitment-state-government-karnataka-hc

[15] https://www.barandbench.com/news/litigation/karnataka-becomes-first-in-the-country-to-provide-1-reservation-for-transgender-persons-in-public-employment

[16] https://www.barandbench.com/news/litigation/delhi-high-court-govt-response-progress-regarding-separate-toilets-transgender-persons

[17] https://www.barandbench.com/news/litigation/transgender-lawyer-ankani-biswas-panel-lawyer-west-bengal-state-legal-services-authority

[18] https://economictimes.indiatimes.com/news/india/saurabh-kirpal-may-become-first-gay-judge-of-constitutional-court-if-centre-accepts-collegiums-recommendation/articleshow/97175651.cms?from=mdr

Related:

Manoeuvring Law and Legality for Same-Sex Marriage

Kerala’s Islamic Groups Face Accusations of Discrimination Against LGBTQIA+ Community

India’s LGBTQIA+ struggle: beyond legal victories, battle for true equality remains

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