LGBTQIA | SabrangIndia

Queer Indians Forge Alternative Careers Amid Workplace Discrimination

sabrang — Wed, 18 Jun 2025 12:07:23 +0000

Himachal Pradesh: With a brush in his hand and eyes focused on a 2.5 x 4 ft canvas, Suvajit, also known as Rony, is making intricate designs on his newly commissioned Gond painting.

His studio, Aaki Booki, is located in Himachal Pradesh’s Rakkar area, 8 km away from Dharamshala. “When everything was falling apart, these brushes held me together,” the 35-year-old gay artist says, pointing to a box filled with art brushes.

Rony, who hails from Kolkata, earlier worked in Hyderabad. That’s when he faced the “dark side of society,” he says. “People would mock me; they would throw slurs at me, and no one would sit next to me.”

Things only got worse when his human resource (HR) manager ignored his complaints. Rony then decided to move to Dharamshala, which he deemed to be a safer space. After years of struggle and self-identification, Rony now runs an art studio. “This place gives me peace. This is a place that knows no gender,” says Rony, who sometimes organises Pride Bethaks–hour-long sessions where queer individuals come together and discuss issues and life–at his studio.

Suvajit, aka Rony, left a hostile corporate environment in Hyderabad and now runs an inclusive art studio in Himachal. “This place gives me peace. This is a place that knows no gender,” he says.

Rony’s is not an isolated story. Studies in India and abroad reflect the discrimination and harassment faced by individuals from the LGBTQIA+ community in the workplace, with few protections and support, pushing them to seek alternate careers.

Silent struggles

“As someone who has been part of the LGBTQIA+ movement in India for over a decade, I have seen and experienced the many barriers queer individuals face in employment,” says Sonal Giani, a queer activist.

“These challenges are not always loud or dramatic,” she says. Often, they show up in quiet ways through environments where we have to constantly self-edit or work twice as hard to be seen as credible.

“Many LGBTQIA+ people today are turning to alternative platforms like social media or freelance work not just for livelihood but for dignity,” Giani says. “These spaces offer autonomy, creativity, and a way to work without shrinking ourselves to fit into narrow expectations.”

In Delhi, a 27-year-old gay man is working on a crocheted flower bouquet. Sohail (name changed), who hails from Bhopal, joined an NGO in Delhi. “I knew I was a diversity hire,” he says. “My identity was used as a political tool.”

After a few uneventful months, he was asked to conduct a session on gender and sexuality. “I was very happy,” he says, his hands busy crocheting with multi-coloured threads. “I thought this would be a chance for me to open up to all my colleagues and educate them.

“When I started the session, my colleague came up with a religious text and, in front of everyone, told me that I’m ‘haraam,’ that my existence is a curse,” Sohail recalls. The memory brings tears to his eyes and his voice breaks. “It did not end there. I felt all alone. Not a single person came to defend me. I was told to defend myself, my identity, and my existence all on my own.” After months of humiliation, he resigned from the organisation.

“I felt liberated,” he says of that moment. “The environment was so toxic that at times, I couldn’t sleep.”

After the trauma and anxiety, he started his own crochet business on Instagram. “Here, people don’t judge me,” he says about his Instagram presence. Being new to digital business is not easy, but he keeps at it. “I’m getting a good number of orders. From bouquets to scrunchies and sweaters, people are supporting me in my journey. Especially people from the community,” he adds.

A pattern on prejudice

Deepak Tandon, 28, of New Delhi, identifies as a transgender nonbinary person. “I’ve seen the opposite side of embracing your true identity,” Tandon, who goes by ‘Dee’ says, sitting at her godown in Lajpat Nagar. “From parents to classmates and office colleagues, my identity came to be the biggest reason for my mental breakdown.” She left a corporate job after facing slurs and discrimination regularly.

“At the office they would touch me randomly, follow me to the washroom, and openly humiliate me,” Tandon says. “From school to office, the pattern of harassment remained the same.”

Deepak Tandon, a transgender nonbinary person, left a corporate job after facing slurs and discrimination regularly. She now runs an online thrift store with a friend. Their Instagram page has over 41,000 followers, a community that Tandon describes as her family.

Four out of 10 transgender persons face sexual abuse before they turn 18, a 2017 survey of 2,169 people in three states had found, as IndiaSpend reported in January that year. Abuse begins as early as five years but most vulnerable are those aged 11 to 15.

After leaving the corporate world, Tandon, along with a friend, started an online thrift store, ‘Dee & Ron’ (@theelitethrift). This page on Instagram has over 41,000 followers, a community that Tandon describes as her family.

“Whatever I had wanted from my people, I received all of that from my virtual family,” says Tandon. “If some user comments something wrong, my followers make sure to show them their place and correct them. This is the support that I had expected in real life also.”

While the harassment at the office still haunts Tandon, with this online space she feels she has found a new identity. “Through Instagram I found a new identity, which was sabotaged by regular bullying and harassment,” she adds.

Presently, Tandon says, she makes ‘six figures’ through this business. “If I have enough money someday, I would definitely hire a bodyguard to protect me.”

Tandon is open about her identity, including in her attire. “In my family, my sisters accepted me, and I live with them only,” Tandon says. But whenever she steps out of her house, which she describes as her safe space, words like ‘meetha’ and ‘Chakka’ are thrown at her. “Men feel entitled to harass you,” she says.

Numbers behind the neglect

While there are no countrywide surveys or reports, multiple qualitative reports highlight ostracisation and stigma faced by India’s transgender community, as IndiaSpend reported in June 2021.

Transgender children are forced to quit their education due to harassment and bullying, impacting their chances of employment and societal integration. Individuals who identify as transgender often face discrimination from healthcare workers, limiting their access to health services. They are subjected to higher rates of gender-based violence, especially by police personnel. Most of these issues go unreported or underreported due to limited data, we had reported.

Mohit Sharma, a fashion illustrator and designer, said that job discrimination does happen. Some of his queer friends feel they can’t fully express themselves at work because of common stereotypes.

A 2021 survey of 103 LGBT+ individuals containing 10 questions showed that only 17 of the respondents were completely open about their orientation at work, while six were “partially open”. Eight of them reported facing negativity when coming out. Sixteen of the 17 respondents who were open about their orientation said they faced discrimination, including denial of opportunities and promotions, and substandard increments.

Twelve individuals said they faced harassment such as exclusion from colleague groups and verbal abuse/offensive remarks, with one case of physical abuse.

Among the 80 employees not open about their sexuality at work, only 18 (22.5%) plan to come out in the near future, with 27 unsure and 35 having no intention, reflecting workplace insecurity.

The study emphasises the urgent need for workplace protections, as well as a scarcity of employers actively hiring from the LGBTQ+ community or implementing inclusive policies.

A 2024 report from the Williams Institute, a research centre on sexual orientation and gender identity law and public policy at the School of Law under the University of California, Los Angeles detailed the results of a survey of 1,902 LGBTQ individuals in the workforce. Nearly 47% said they faced workplace discrimination or harassment, and 33% reported leaving a job due to unfair treatment based on their identity. Even after landmark legal protections, nearly half still feel the need to hide their identity at work or alter their appearance to avoid mistreatment.

Closeted at work, out on weekends

In Bhopal, 29-year-old Prabhat works as a sales professional for a mid-sized consumer products company. He is on time, courteous, and well-grounded. However, beneath his meticulously staged presentation is a persistent dread that he would lose his career if he were to be overtly feminine or even a little outspoken about his queer identity.

Prabhat laughs along with his male coworkers when they make sexist jokes at work, lowers his voice, and refrains from making wrist motions that could be interpreted as “too soft”.

When asked about marriage, he pretends to have a girlfriend and avoids talking about his personal life. “I feel like I’m acting every day,” he says. “I practice being straight in the same way that I practice my sales pitch.”

Outside of work, he’s a whole different person–joyful, outspoken, and unabashedly feminine. He wears crop tops and eyeliner in the safe spaces where he attends LGBTQ meet-ups on the weekends. However, he never uploads photos to the internet out of concern that someone from his office would find them.

In 2017, a report submitted to the National Human Rights Commission of India by the Kerala Development Society found that 96% of transgender people were denied jobs, 92% were denied the right to participate in any form of economic activity, and 18% suffered physical abuse.

An October 2024 paper published in the International Journal for Multidisciplinary Research identifies key structural barriers faced by LGBTQIA+ individuals in Indian workplaces. The paper highlights how transgender persons, in particular, are subjected to misgendering, workplace hostility, and microaggressions that hamper their professional growth.

Despite the 2018 Supreme Court ruling decriminalising same-sex relations, the authors note that “there remains a substantial gap between legal frameworks and their implementation in practice. Many LGBT employees continue to face routine discrimination and harassment, underscoring the need for more robust and inclusive measures within organizations.”

A 2021 survey of 201 business leaders published by HR consulting firm Randstad India revealed that 53% organisations do not have career-development opportunities for people from the LGBTQ+ community, 40% provide training to reduce hiring bias and 9.5% reported making efforts to be LGBTQ+ inclusive.

According to 2023 Equity Rising report by the US-based Human Rights Campaign, which conducted a survey of over 3,000 workers including 2,000 LGBTQ+ workers, found that 40% LGBTQ+ workers withheld their identity due to actual or perceived risk of violence, stigma and victimisation, 35% have heard their colleagues make jokes and/or negative comments about gay or lesbian people, or about transgender people, and 31% said their colleagues seem uncomfortable when they talk about their sexual orientation. More than half the transgender and non-binary workers say they have felt unhappy or depressed at work.

According to a World Bank study conducted in 2014, 56% of LGBTQ+ people reported discrimination in white-collar jobs in the country.

The authors reached out to officials in the Ministry of Labour and Employment for comment on steps being taken to address such discrimination. We will update this story when we receive a response.

Amir Bin Rafi is a Kashmir-based journalist.

Mansi Rathee is a Delhi-based lawyer and journalist who covers issues related to human rights and women’s empowerment.

Indiaspend.org is a data-driven, public-interest journalism non-profit

Original story can be read here

The post Queer Indians Forge Alternative Careers Amid Workplace Discrimination appeared first on SabrangIndia.

Same sex marriage not legalised, but couples can form a family: Madras HC

sabrang — Thu, 05 Jun 2025 11:21:38 +0000

Recognising and reiterating that the concept of chosen family is now well-settled and acknowledged in LGBTQIA+ jurisprudence, the Madras High Court has allowed a 25-year-old lesbian, who was detained by her family against her will, and to go with her female partner as she is entitled to do the same as per her will reported the New Indian Express.

This order was passed by a division bench of justices G R Swaminathan and V Lakshminarayanan on a habeas corpus petition (HCP) filed by the woman’s partner, hailing from Tirupattur district, praying for an order to liberate the woman from being illegally detained by her parents at Gudiyatham in Vellore district.

The bench also pulled up the police for failing to respond to the urgent messages sent by the petitioner and forcing the woman to go with her parents. Further, the bench slammed police attached to Gudiyatham in Vellore district, Reddiyarpalayam in Puducherry and Jeevan Beema Nagar in Karnataka for failing to respond to the SOS messages sent by the petitioner and forcing the woman to go with her parents. Going further and expressing disappointment that no action was taken by the Inspector of Police in Gudiyatham, the DSP and Vellore SP despite a complaint being lodged, the bench said only after the HCP was filed, the police woke up.

We hold that the government officials, in particular the jurisdictional police, have a duty to respond whenever complaints of this nature are received, the bench noted.

The Order also observed that the Supreme Court’s order in the Supriyo @ Supriya Chakraborty v/s Union of India case may not have legalised marriage between same sex couples but they can very well form a family.

Mother of lesbian detenue is no Leila Seth, says Madras HC

“We have come to the conclusion that the detenue is entitled to go with the petitioner (female partner) and that she cannot be detained against her will by her family members,” the bench said.

It restrained the woman’s natal family members from “interfering with her personal liberty”. It also issued a “writ of continuing mandamus” to the jurisdictional police to provide adequate protection to the woman and her partner as and when required.

“Marriage is not the sole mode to found a family. The concept of a ‘chosen family’ is now well-settled and acknowledged in LGBTQIA+ jurisprudence,” the bench stated. It explained, citing the NALSA and Navtej Johar cases, that the SC has declared that sexual orientation falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.

Dealing with the statement of the lesbian woman’s mother that the petitioner had led her daughter “astray” and turned her into a “drug-addict,” the bench said it could see that the detenue is a perfectly normal-looking young woman.

The bench pointed out that the petitioner has not mentioned anywhere about the true nature of their relationship but called herself as a close friend. “We can understand the hesitation on her part. Our society is still conservative, notwithstanding (the judgment in) NALSA and Navtej Singh Johar,” it said,

The bench recalled the heart-rending letter written by Leila Seth when the Delhi HC decision to decriminalise the same-sex relationship in the Naz Foundation case was reversed by the Supreme Court. Unfortunately, she was not alive to see homosexuality be decriminalised via the historic judgment in Navtej Singh Johar Vs Union of India case, it said.

“The mother of the detenue is no Leila Seth. We could understand her feelings and temperament,” the bench said in the order. Stating that it had endeavoured in vain to impress upon her that her daughter is entitled to choose a life of her own since she is an adult, the bench noted that the law is clear and the precedents are clearer on the issue.

Delhi HC issues notice to Union in a plea to recognise same sex marriage

In the face of conservative opposition, India’s Supreme Court will decide on petitions on Same-Sex Marriage

The post Same sex marriage not legalised, but couples can form a family: Madras HC appeared first on SabrangIndia.

Meta’s policy shift: Fuelling hate in an era of LGBTQIA+ inclusion

sabrang — Fri, 17 Jan 2025 06:23:55 +0000

Meta’s recent revisions to its hate speech guidelines mark a troubling shift towards normalising harmful narratives targeting marginalised communities. By explicitly permitting users to accuse LGBTQIA+ individuals of being “mentally ill” or to compare women to household objects, Meta’s policies not only put inclusivity on stakes but risk inciting real-world violence against these communities thereby disturbing the harmony in the society.

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.

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.

Transgender rights in India: stalled progress and a frustrated community

sabrang — Tue, 25 Jun 2024 13:17:31 +0000

The landmark NALSA judgment in 2014 ushered in a new era for the transgender community in India. Building on this precedent, various courts across the country have recognised their rights. However, a crucial gap remains. While the judiciary has played a proactive role, legislative action to translate these legal pronouncements into concrete protections has been sluggish.

In the Vishaka judgment, sexual harassment at workplace was recognized as a violation of human rights and guidelines were given to the state in 1997, however only 10 years later did the government come up with the new legislation (POSH). In the KS Puttaswamy judgement also, the right to privacy was laid as a fundamental right in 2017. However, the notified DPDP Bill doesn’t conform with the principles laid down in the judgment nor has it still come into effect.

This lack of legislative enthusiasm is the problem that exists. The judiciary can only go as far as to recognise the rights, the implementation and societal acceptance of those rights is in the hands of the legislature and the executive, but they don’t seem to care.

This piece delves into this very gap. This piece aims to point out the gap that exists between the judiciary and the implementation by the legislature, particularly with respect to transgender rights.

Reservations- a judicially yes, a legislative no?

The NALSA judgement directed the state to extend the reservation benefits to the transgender community as well, however these instructions have not been consistently implemented. The judgement directed the Centre and the State governments to provide trans people “all kinds of reservation” in admissions to educational institutions and in employment. The Transgender Persons (Protection Rights) Act, 2019 does not include a provision for reservations for Transgenders.

In the case of National Legal Services Authority of India vs Union of India, Miscellaneous Application No. 396/2023 in W.P.(C) No. 400/2012, the applicant pointed out that in National Legal Services Authority vs Union of India, 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 did not state how the reservation should be implemented. Therefore, the applicant stated that many states are yet to implement such reservations.

The Supreme Court refused to entertain an application which sought a clarification that the reservation meant for transgender persons as per the 2014 judgment in the NALSA case is horizontal reservation. The bench led by CJI DY Chandrachud expressed disinclination to entertain the application in a disposed of matter. The bench however gave liberty to the applicant to avail other remedies in law (such as filing a separate substantive petition) for the reliefs sought.

In yet another case, Mx Kamlesh & Ors. v. Niten Chandra & Ors., Contempt Petition (Civil) No. 952 of 2023 in Writ Petition (Civil) No. 400 of 2021, the centre has unequivocally stated that transgender persons can avail SC/ST/OBC/EWS reservation and that no separate quota can be made for them.

These cases show the judiciary’s stand, which is horizontal reservations for the transgender community and also reflect that the judiciary has passed on the baton to the legislature. The legislature however is clear on its stand on reservations. So where does one go from here?

When we look at High courts of the country, the situation is sadly similar.

After the case of Sangama v. State of Karnataka, Karnataka government implemented limited horizontal reservations for transgender individuals in government jobs by amending the Karnataka Civil services (General Recruitment) (Amendment) Rules, 2021. However, this initiative fell short, as these reservations only apply to specific categories of positions (Groups A, B, C, and D) and do not extend to other sectors like private companies or educational institutions. Additionally, these amendments did not address other barriers faced by transgender people, such as high exam fees or limitations on the number of attempts allowed.

In the case of The President v The District Collector, 2023 LiveLaw (Mad) 240, the Madras High Court directed the state government to extend reservations to the transgender community in local body elections. The court held as follows:

“It is also important to hear the voices of this community…In order for this, the reservation for Transgenders must extend to forums of law making institutions. It is in these law making forums, where Transgender persons can express their views and discuss their rights. More so, Transgender persons have a Right to Reservation, owing to the fact that “they are socially Backward Class,”

However, no steps were taken by the Madras government to ensure that the transgender community got reservations in the local body elections. At this juncture, it is also pertinent to note that there is not even one MLA or MP who is from the transgender community, so essentially there is no representation of the community in the legislature or the judiciary.

In the case of in the S. Tamilselvi v. Sect to Government 2022 LiveLaw (Mad) 430, the court directed that the transgender student has to be availed with special reservation in the cut-off for admission in an educational institution.

Now, in June, 2024 the Madras High court in the case of Rakshika Raj v State of Tamil Nadu and Others, 2024 LiveLaw (Mad) 228, has issued another judgement which quashed the government order giving reservation to transgender persons as a most backward class community. Justice GK Ilanthraiyan noted that the state had failed to implement the judgment of the Supreme Court in the NALSA case properly. The court noted that by bringing transgender persons into the Most Backward Class community, the state was treating gender as a caste which was against the judgment of the Supreme Court. The court added that only horizontal reservation could be granted to the community for complying with the order of the Apex Court. The court has granted the government 12 weeks for implementing horizontal reservations of transgender persons.

In the case of Mrinal Barik -Versus- The State of West Bengal & Ors., 2024 LiveLaw (Cal) 145, the Calcutta High Court has directed the West Bengal government to ensure 1% reservation for all transgender persons in public employment in the State, in accordance with the Supreme Court’s NALSA guidelines.

A single bench of Justice Rajasekhar Mantha held:

“This Court, however, notes that in terms of paragraph 135 (3) in the National Legal Service Authority Vs. Union of India & Ors. (2014) reservation has not yet been made in the State for transgender persons. In those circumstances, this Court directs the Chief Secretary of the Government of West Bengal to ensure 1% reservation for the category of persons mentioned in the NALSA case in all public employment in the State.”

In January 2022, the Andhra Pradesh High Court had directed the state government to follow the guidelines laid down in the NALSA judgement and gave the state three months of time for the same. We are in the year 2024 now, and Andhra Pradesh still does not have horizontal reservations of the transgender community.

As now (June 20204), Karnataka is the only state that has provisions for 1% horizontal reservations, which too has its own shortcomings.

The gap between the legislature and the executive

The legislature does not seem to care about the judiciary and the executive does not seem to care about the legislature.

Kerala was the first state in India to launch the State Policy for Transgenders in 2015. However, the police has time and again been accused of harassment of transgender people. Two transgender people were, walking on the street and were jumped by cops. In another instance, 15 transgender people were beaten up and pushed by the Kerala Police.

In Tamil Nadu, the legislature took a progressive step by amending the Tamil Nadu Subordinate Police Officers’ Conduct Rules in response to a directive issued from the Madras High Court in the case of Mrs S. Sushma & Ors. v. The Director-General of Police & Ors. This amendment, known as Rule 24-C, explicitly prohibits police officers from harassing individuals belonging to the LGBTQIA+ community and those working for their welfare. The amendment was a response to widespread reports of police misconduct and was intended to create a safer and more inclusive environment for LGBTQIA+ individuals.

The Madras High Court, in the landmark case of Mrs. S. Sushma & Ors. v. The Director-General of Police & Ors., provided comprehensive guidelines for the police, judiciary, and other public servants to ensure non-discrimination and respect for the LGBTQIA+ community. The court’s directives were clear and aimed at sensitizing all levels of government to the needs and rights of LGBTQIA+ individuals. A detailed analysis of the case can be read at Sabrang.

Despite the clear legislative mandate and judicial directives, the executive branch has shown a troubling pattern of non-compliance. Reports of continued harassment and discrimination by police officers indicate that the amendment to the conduct rules is not being enforced effectively. This disregard for legislative mandates is not just a failure of individual officers but points to a systemic issue within the executive branch.

One egregious example of this non-compliance is the incident involving three transgender women who faced harassment and invasive medical examinations by police officers while attempting to visit the Sabarimala temple. This incident occurred despite the clear prohibition of such actions under the amended conduct rules. The police officers involved blatantly disregarded the legislative mandate, demonstrating a lack of respect for the rule of law and the rights of the LGBTQIA+ community.

Unfulfilled promises and nowhere to go

The Indian legal landscape regarding transgender rights paints a concerning picture. The judiciary, through landmark judgments like NALSA, has established a progressive framework. However, this progress is tragically stalled by the sluggishness of the legislature and the ineffectiveness of executive implementation. This discord between the three pillars of government creates a frustrating labyrinth for the transgender community seeking to have their rights recognized and protected.

The NALSA judgment’s mandate for reservations remains largely unfulfilled. States like Kerala, despite boasting progressive policies, fail to address the rampant police harassment faced by the transgender community. The recent Madras High Court judgment quashing the transgender reservation under MBC category highlights the lack of clear legislative direction. This inconsistency creates confusion and leaves the transgender community in a precarious position, unsure of where to turn for recourse.

The current situation necessitates a multi-pronged approach. The judiciary needs to remain vigilant, issuing clear directives and holding the legislature and executive accountable. The legislature must translate judicial pronouncements into concrete and enforceable laws. These laws should not only address reservations but also encompass wider social inclusion initiatives like anti-discrimination measures and sensitization programs.

A call for harmony

The discord between the legislature, judiciary, and executive creates a significant roadblock for achieving true equality for the transgender community. Bridging this gap requires a concerted effort from all stakeholders. Ultimately, true progress will be achieved only when the three pillars of government function in harmony, working towards the shared goal of an inclusive and equitable society for all.

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

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

Telangana: Transgender individual brutally lynched by mob in Nizamabad

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

The post Transgender rights in India: stalled progress and a frustrated community appeared first on SabrangIndia.

Telangana: Transgender individual brutally lynched by mob in Nizamabad

sabrang — Wed, 14 Feb 2024 11:43:12 +0000

In Telangana’s Nizamabad district, a transgender person was killed in what is reported to be a mob lynching. The incident took place on February 13, 2024. The victim, Raju, a 50-year-old trans person was subjected to a brutal mob assault after rumours of child kidnapping spread. Raju was not a stranger to the village and was familiar to the villagers, they were reportedly trying to make a livelihood as a cattle herder and beggar. The authorities cleared their name, asserting that they were not involved in any case of child kidnapping, however, it was too late. Raju was rushed to the hospital, but soon succumbed to their injuries.

The police soon filed a complaint by registering a murder case against the five people who are suspected to be party to the attack. The police also sought to clarify that Raju was not involved in child kidnapping and that the recent kidnappings in the area were isolated incidents with no connections to organised gangs. Furthermore, the authorities confirmed that the children, earlier missing, were now reunited with their families. The Commissioner of Police of Nizamabad also made a public appeal and urged residents to not take the law into their own hands and stressed the need for people to maintain calm and patience in such times.

As per a report in Behanbox, data from the Trans Murder Monitoring (TMM) reveals that India documented 102 registered murders of transgender people between 2008 and 2021. Additionally, the National Crime Records Bureau for the year 2021 also reports that only 236 cases involving crimes against transgender persons have been officially recorded in India. The article points that these numbers are not indicative of actual figures due to the lack of complaints filed in these cases. It has been observed that trans people are extremely vulnerable to violence, in public and in private. A case from Telangana from last year when a wife hired contract killers and paid them to murder her estranged transgender spouse, is just one such example.

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

The post Telangana: Transgender individual brutally lynched by mob in Nizamabad appeared first on SabrangIndia.

Can pride be apolitical? Queer and trans* voices and politics

sabrang — Mon, 12 Feb 2024 04:48:12 +0000

The recent pride parade in Mumbai on February 3, organised by the ‘Mumbai Queer Pride’ collective, saw attempts to de-align those participating in voicing dissent on the current political environment of India, limiting banners, placards, slogans, songs, etc. to only be about the ‘queer cause’ and nothing else. The guidelines issued by the MQP prior to the parade stressed this. The requirement of “persons, groups, or entities working on intersectional issues need to ensure that their messages are aligned with our cause” stated the guidelines. Many among the community, called these guidelines repressive and an abdication, choosing to skip the parade altogether.

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.

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.

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

sabrang — Thu, 08 Feb 2024 07:57:19 +0000

A queer individual, namely Jebin, has sought judicial intervention of the Kerala High Court to be able to access and get released the dead body of their deceased partner, namely Manu. According to reports, Manu’s family has refused to accept their body, which has been lying in the hospital for the past two days. Since queer couples are not recognised by the state and there exist no legal rights for them in the eyes of the law, Manu’s partner Jebin has approached the court in the matter. Dealing with the loss of their partner, Jebin now faces the challenge of arranging for their funeral and final services, however, unfortunately, due to existing laws not recognising their relationship, Jebin cannot claim their body and thus has to approach the courts.

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.

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.

Marriage Equality Judgment not on constitutional morality disappointing: PUCL

sabrang — Fri, 20 Oct 2023 12:55:41 +0000

The People’s Union for Civil Liberties (PUCL) one of the older civil liberties platforms in the country, expresses its deep disappointment over the verdict of the Supreme Court (SC) in `Supriyo v Union of India’ denying the right to marry to the LGBTQI community.

While there were four opinions among the five judges, it is unfortunate that the bench was unanimous in declaring that there is no fundamental right to marriage, states the statement. This is disturbing as the foundation of the claim for equal right to marriage is based on an understanding that the right to marry is a fundamental right.

The Supreme Court, states PUCL, seems to have ignored that the founding document of international human law, the Universal Declaration of Human Rights recognizes the right to marry and found a family. While the Supreme Court has on numerous occasions read provisions of international human rights law including the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) into Article 21, its surprising that it balked when it came to the question of marriage equality.

SC Consensus that Special Marriage Act (SMA) cannot be interpreted in a gender-neutral manner

It is also disappointing that the Court unanimously rejected the petitioner’s plea to interpret the Special Marriage Act in a gender-neutral manner so as to include the right of same sex couples to marry, states the PUCL. The Court cited the fear of tampering with this legislation because it was connected to a ‘spider-web’ of laws the complexity of which required a legislative intervention rather than a judicial fiat.

The majority opinion of Justices Ravindra Bhatt, Hima Kohli and PS Narasimha clearly stating that this was a legislative domain into which they would not intrude as it was the responsibility and domain of the state which ‘can undertake wide scale public consultation, consensus building’ and then enact a law that reflects the ‘will of the people’.

Consensus on Heterosexual transgender marriages

All five judges agreed with the proposition that a ‘transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws, states the PUCL in its press statement. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry. Intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry.

Any other interpretation of the laws governing marriage would be contrary to Section 3 of the Transgender Persons Act and Article 15 of the Constitution’. While this is to be welcomed, it has to be noted that the transgender community occupies a spectrum and not everyone transitions from one gender to another with many choosing to identify as non-binary and others choosing to express their gender without necessarily going in for a transition. Nonetheless, this is a step forward and will be of great assistance to a section of the transgender community in the time going ahead.

Minority judgement shows the way forward

Minority opinion: The right to `intimate association’ a part of the `right to association’ in Article 19(1) (c), Article 21 and Article 25*. If there is a sign of hope it was in the minority opinions of Justices Chandrachud and Kaul when they read the right to `intimate association’ into the `right to association’ in Article 19(1) (c) as well as into Articles 21 and 25. They laid down that that the state was duty bound to grant rights to those in such intimate associations including labour law benefits, insurance benefits and other such ancillaries of a union or an intimate association.

Minority opinion: No prohibition to unmarried couples from adopting children

Further the two justices made the case that CARA guidelines which prohibited unmarried couples from adopting must be read down and the right of unmarried couples to adopt should be recognized.

Directives by the Minority judgement: No discrimination and police harassment because of gender identity or sexual orientation’

The PUCL also states that it is also disappointing that the minority judgment’s laying down of numerous directives did not persuade the majority. The minority directed, inter alia, that the ‘Union Government, State Governments, and Governments of Union Territories’ to ‘ensure that the queer community is not discriminated against because of their gender identity or sexual orientation’.

They also directed, inter-alia, the police machinery to ensure that ‘There shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation’.

Judgement creates no new rights, but not homophobic or stigmatising towards the LGBTQIE+ community

Even as we rue the passing of this missed opportunity to take forward the rights of the LGBTQI community, we are heartened by how much the ground has shifted from the open homophobia of yesteryears. This judgment unlike the re-criminalisation judgment in 2013 is at pains to avoid describing the community in stigmatising terms.

Even the judges who denied the right to intimate association go to great lengths to clarify, that the rights recognized under ‘Nalsa v Union of India’ (2014) and ‘Navtej Singh Johar v Union of India’ (2018) in here in LGBTQI persons. As Justice Narasimha puts, it, ‘I am not oblivious to the concerns of the LBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples…I am of the firm belief that a review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited and tasked to undertake’.

Fight back important to assert Constitutional Morality over social morality

Undoubtedly the community will take forward the battle for marriage equality using legislative and parliamentary fora, streets as well as the courts. This fight back is important as this judgment is a setback to the wider human rights movement as well. There is a setback to the liberalization of social mores as well as a return to a more patriarchal social morality. The judgment is an implicit victory for conservative forces which privilege social morality over constitutional morality. The justice of this cause, rooted as it is in the deepest constitutional morality, can’t be denied.

Nobody expressed the hope of a new dawn better than a black American gay poet, Langston Hughes in his poem,

‘A dream deferred

What happens to a dream deferred?

Does it dry up Like a raisin in the sun?

Or fester like a sore– And then run?

Does it stink like rotten meat?

Or crust and sugar over– like a syrupy sweet?

Maybe it just sags like a heavy load. Or does it explode?’

The PUCL states through its president, Kavita Srivastava and general secretary, V Suresh that “they are confident that the dream of marriage equality will be realised soon.”

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 Marriage Equality Judgment not on constitutional morality disappointing: PUCL appeared first on SabrangIndia.

Marriage Equality Case: No right to marry, form civil unions or adopt says SC

sabrang — Tue, 17 Oct 2023 13:26:03 +0000

On October 17, the Supreme Court of India 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 declined to allow recognition to same-sex marriages in India and left the issue for the Parliament to decide upon.

The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, had reserved the judgment in the said case on May 11, 2023. The verdict pronouncement lasted for almost two hours and was delivered through four judgments that had “a degree of agreement and a degree of disagreement,” as per CJI Chandrachud. While three of the judges, forming the majority, agreed that the court cannot form an obligation on the state to create a legal status for queer couples, the minority judgments of CJI Chandrachud and Justice Kaul had deemed it necessary to recognise civil unions of queer couples.

The judgments:

CJI Chandrachud

CJI Chandrachud, who is known for his liberal views on and knowledge of gender, dedicated one section of his judgement to the issue of queerness not being an urban or an elitist concept that is restricted to the upper classes of the society. As stated by him, “Queerness can be regardless of one’s caste or class or socio-economic status.” It is essential to highlight here that the aforementioned remark was a response to the argument raised by the Union of India that the issue of same-sex marriage is an issue of the urban elite.

In his judgement, the CJI dealt with the issue of judicial review and separation of powers. CJI Chandrachud highlighted that one of the major arguments put forth by the Union of India was that the court was violating the doctrine of separation of power by entering this arena and that it should be left to the Parliament to legislate on the issue of same sex marriage. CJI Chandrachud then stated that the institution of marriage has been static and changing, with the move from the practice of Sati to allowing remarriage to prohibition of child marriage, and these reforms have been brought in through act of the legislature. And thus, he held that the intimate activities within the private spaces that individuals occupy cannot be deemed to be out of State’s scrutiny.

CJI Chandrachud also left it to Parliament to decide whether there should be a change in the Section 4 of the Special Marriage Act which the petitioners had alleged to be discriminatory towards and exclusive of same-sex couples. As per Livelaw, CJI stated that “The court is not equipped to undertake such an exercise of reading meaning into the statute. Whether a change in the regime of the Special Marriage Act (SMA) is for the Parliament to decide.”

On the issue of adoption laws being exclusionary towards queer couples, CJI held that the respondents had failed to provide the necessary evidence to show that only married heterosexual couples can make for good parents. With regards to this, CJI Chandrachud held that the Central Adoption Resource Authority Regulation 5(3), which bar unmarried couples from adopting, to be read down as it indirectly discriminated against atypical unions. Notably, as per the laws in place, a queer person can adopt only in an individual capacity. The CJI held the said regulation to have an effect of reinforcing the discrimination against queer community, and stated that “The CARA circular (which excludes queer couples from adoption) is violative of Article 15 of the Constitution.”

Through his judgement, CJI Chandrachud re-iterated the fundamental rights that the Constitution of India that include the right to enter into a union and the right to recognition of that union under Article 19 as well as right to choose one’s partner under Article 21. Through this, CJI Chandrachud held that the fundamental rights of queer couples that already exist cannot be denied and doing so will amount to discrimination.

In conclusion, CJI Chandrachud, however, did not grant any concrete steps to extend the marital rights to the queer community, creating a separate space for them or making any changes to the SMA. Instead, he held that queer unions, along with the material benefits flowing from the same, should be recognised under the existing fundamental rights. He also added that if queer associations are not recognised under Part 3 of the Constitution, it could thwart freedoms and will be discriminatory in nature.

Without providing any set deadline, CJI DY Chandrachud left it to the Union Government that had vehemently opposed the Supreme Court on considering the issue of equitable marital rights to form a committee to decide the rights and entitlements of persons in queer unions. The committee, he said, shall consider including queer couples as family in ration cards, enabling queer couples to name each other as nominees in bank accounts, etc.

Justice S.K. Kaul

Justice Kaul’s judgment was in agreement with the judgment of CJI Chandrachud. In his judgment, Justice Kaul held that constitutional courts have to uphold the rights of individuals through the guidance of constitutional morality and not social morality. And thus, according to him, it was essential that queer unions are recognised as a union of partnership and love. He further added that the path to marriage equality is through legal recognition of non-heterosexual unions.

While pronouncing his judgement, Justice Kaul had stated that “Non-heterosexual unions and heterosexual unions must be seen as both sides of the same coin. This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.”

Justice Kaul too, however, much like CJI Chandrachud, held back from issuing any concrete directions to extend the rights of marriage under the SMA to queer couples. Even after holding the SMA to be violative of Article 14, he left it up to the parliament to read down or change the exclusionary provisions of the said Act keeping in mind the “cascading effect” that it can have.

Justices Ravindra Bhat and Hima Kohli

The judgement pronounced by Justice Bhat had been signed by him and Justice Kohli. Through the judgement, Justice Bhat had disagreed with the judgment of CJI Chandrachud on certain aspects. He had stated “We do not particularly subscribe to the views of CJI on democratising intimate spaces.”

According to Justice Bhat, reforms to the institution of marriage can only be brought through the legislative acts introduced by the state and the interference by the Courts have been limited to protecting the queer individuals from facing violence.

In his judgement, Justice Bhat held it wrong to obligate the state to create a legal status for queer couples by holding the institution of marriage to be separate from the state. Justice Bhat held, “This court has recognised that marriage is a social institution. Marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external.”

Based on the aforementioned rationale, of marriage being a social institution, Justice Bhat stated that while the right to relationship, choice and intimacy fall under the ambit of Article 21, the court cannot obligate changes to a social institution. He further stated that the right of two consenting adults can only be extended to the right to dignity, to live together, be intimate, and be protected from violence. “There are difficulties in creating through a judicial diktat a right to civil union,” Justice Bhat had said.

In conclusion, Justice Bhat held that in addition to the court not being able to create a legislation for recognition of queer couples, the court also refused to obligate the state to recognise queer unions and the bouquet of rights flowing from it.

With regards to the SMA, Justice Bhat stated that the said Act cannot be read in a gender-neutral manner and had been passed solely with the purpose of allowing inter-faith and inter-caste heterosexual relationships. Notably, both CJI Chandrachud and Justice Kaul had disagreed with this contention.

In addition to this, Justice Bhat also disagreed with CJI Chandrachud on granting the right of adoption to queer couples. As per Justice Bhat, the said right of adoption could only be enacted through law. In this regard, he said, “the state as ‘parens patriae’ has to explore all areas and to ensure all benefits reach the children at large in need of stable homes”.

Justice P.S Narsimha

Through his judgment, Justice Narsimha agreed with the judgement of Justice Bhat and Justice Kohli. According to him, the constitutional challenged raised by the petitioners against the SMA and the Foreign Marriage Act fails based upon the reasons provided by Justice Bhat in his judgment. He too concluded the judgment by stating that the extension of marriage rights to queer couples is an activity that needs a deliberate exercise which can only be conducted by the legislature.

Where does this leave us?

With this, the constitutional bench of the Supreme Court unanimously held that no legal recognition will be granted to queer marriages. With a ratio of 3:2, no constitutional or fundamental right of civil unions of queer couples could be granted by the court. Additionally, the majority three judgments also withheld the extension of right to adoption to queer couples. Lastly, the constitutional bench unanimously stated that the issue of recognition of marital rights of queer couples will be examined by the High-Powered committee, to be set by the Union of India.

One step forward, 5 steps back:

Today, the queer community stands at the same juncture that it stood five years ago when the Supreme Court had unanimously read down Section 377 of the Indian Penal Code that had criminalised consensual sex between homosexuals. On that fateful day of 2018, Justice Indu Malhotra had written in her judgement that “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”

The four separate judgements pronounced by five judges of India’s Supreme Court today clearly signal disappointment for the queer community. The court not only refused to recognise queer marriages, they did not grant any recognition to civil unions or any incidental rights of queer couples. Through this judgement, by opting for judicial restraint instead of judicial activism, has the Court missed an opportunity to alleviate discrimination that the queer community faces? Arguably, instead of building upon its own precedents in the case of Navtej Singh Johar v. Union of India (2018), today’s verdict has further delayed the accrual of all rights to the queer community holds in India.

The cautious approach adopted by the judiciary has once again prolonged the struggle of the queer community for basic and equal rights.

Unravelling India’s Legal Evolution: LGBTQIA+ Rights and the Supreme Court Handbook

Courts take forward steps for India’s LGBTQIA+ community

Long way to go before promises are kept to India’s LGBTQIA+ communities

The post Marriage Equality Case: No right to marry, form civil unions or adopt says SC appeared first on SabrangIndia.

Courts take forward steps for India’s LGBTQIA+ community

sabrang — Thu, 06 Jul 2023 09:31:03 +0000

India, with its diverse and rich cultural legacy, is at a pivotal point in its efforts to advance equality and inclusion for the LGBTQIA+ population.

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:

Educating parents on gender nonconformity and the LGBTQIA+ community will help to guarantee that families are accepting.
Ensuring that the restrooms are gender neutral for the transgender pupils.
People who identify as transgender should have the ability to modify their name and gender on their academic records.
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.
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:

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.
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.
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-

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.
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.
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-

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]

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]

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]

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]

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.
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

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

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

The post Courts take forward steps for India’s LGBTQIA+ community appeared first on SabrangIndia.