Madras High Court: A Triumph For Lgbtqia+ Rights And Protections
Judgement Given On : 29/03/2021
Introduction
The Madras High Court, under the leadership of Justice N. Anand Venkatesh, issued a landmark judgment that has far-reaching implications for LGBTQIA+ rights and protections in India. This case involved a lesbian couple facing opposition from their families, who fled to Chennai to seek refuge from potential separation and harassment. Their parents filed missing person complaints, prompting police interrogation. The couple sought relief from the High Court to halt police harassment and secure protection from their families.
At the heart of the matter was whether the police should be instructed to cease their harassment of the petitioners and provide them with necessary protection. However, the petitioners’ counsel urged the court to establish broader guidelines for similar cases, which the Government Advocate for the police accepted.
Fundamental Rights Upheld
The Madras High Court affirmed the LGBTQIA+ community’s right to equality under Article 14 of the Constitution. Building upon precedents set by the NALSA vs. Union of India and Naz Foundation vs. Government of NCT of Delhi judgments, the court expanded the scope of Article 15(1) by recognizing that discrimination extends beyond the listed characteristics to include ‘gender identity’ and ‘sexual orientation.’ It emphasized that these grounds serve as instruments to eliminate discrimination, emphasizing their vital role as a means to this end.
Furthermore, the court invoked Article 21 to safeguard the rights of liberty, dignity, autonomy, and privacy, including the right to sexual autonomy.
Addressing the Gap: Court-Issued Guidelines
Acknowledging the absence of legislative provisions, the court underscored that the LGBTQIA+ community should not be left in a ‘vulnerable atmosphere.’ Consequently, the court assumed the responsibility of issuing comprehensive guidelines to protect the rights and dignity of LGBTQIA+ individuals until legislative action is taken.
Key guidelines:
- Police Closure of Missing Persons Complaints: Complaints should be closed once it is established that the individuals are in a consensual relationship.
- Support Networks: The Ministry of Social Justice and Empowerment was tasked with identifying and publicizing NGOs capable of assisting LGBTQIA+ individuals, while also providing shelter in government short-stay homes when necessary.
- Sensitization Programs: The court mandated sensitization programs aimed at ensuring constitutional rights and the provisions of the Transgender Persons (Protection of Rights) Act, 2019 are upheld. Stakeholders included the police, legal services authorities, the lower judiciary, health professionals, educational institutions, workplaces (public and private), and parents of LGBTQIA+ individuals.
- Other Notable Guidelines: These encompassed the prohibition of attempts to medically ‘cure’ sexual orientation or gender identity, LGBTQIA+ inclusive curricula in educational institutions, inclusive hiring policies, extension of work benefits to LGBTQIA+ community members, and the right to free legal aid.
Conclusion:
The Madras High Court’s judgment reaffirms the constitutional guarantees of freedom of sexual orientation and gender identity and translates them into practical application. It empowers the LGBTQIA+ community by enforcing essential measures they have long advocated for, including the ban on conversion therapy, LGBTQIA+ inclusive education, and sensitization programs. Furthermore, it reiterates these measures as the State’s duty under the Transgender Persons (Protection of Rights) Act.
The judgment also establishes clear procedures for police handling of missing persons’ complaints related to consensual relationships, safeguarding individuals’ freedom to choose their partners. However, it is essential to note that the judgment specifically addresses medical conversion therapy, leaving therapies in alternative medicine or religious contexts beyond its scope.