Madras High Court bans medical attempts to “cure” sexual orientation, issues guidelines for LGBTQIA+ community safety

In a significant judgment upholding LGBTQIA+ rights, the Madras High Court on Monday has banned any medical attempts to “cure” or change the sexual orientation of a person and issued directives to sensitize society and various branches of the state, including police and judiciary, to remove prejudices against them.

Justice N. Anand Venkatesh, who had undergone an educational session with a psychologist to understand same-sex relationships, passed the order. Hearing the writ petition filed by a lesbian couple seeking protection from police harassment on their parents’ instance, Justice Venkatesh said, “Ignorance is no justification for normalizing any form of discrimination. The actual problem is not the fact that the law does not recognize a relationship but that the sanction that is accorded by the society is not available.”

The judge further said, “It is only for this reason, I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships.”

Dictating his order, Justice Venkatesh suggested interim guidelines till the legislature comes up with a law, he said, “The LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their  protection and safety.” 

In addition, the court directed several reforms in educational institutions including holding Parents Teacher Association (PTA) meetings to sensitize parents on the issues of the LGBTQ community and gender-nonconforming students as well as changes in the school curriculum. The court also ordered strict action against those found to be indulging in attempts to cure or change their sexual orientation.

Following are the interim directions issued by the Court in order to ensure safety and protection to LGBTQIA+ community:

A. The police should close any complaint if it is regarding girl/woman/man missing cases found to be consenting adults belonging to the LGBTQIA+ community and upon receipt of their statements without subjecting them to any harassment.

B. The Ministry of Social Justice & Empowerment (MSJE) should enlist NGOs including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided should be published and revised periodically on the official website. Such details should be published within eight weeks from the date of receipt of copy of this order.

C. Any person who faces an issue if they belong to the LGBTQIA+ community may approach any of the enlisted NGOs for safeguarding and protecting their rights.

D. The concerned NGO in consultation with the MSJE, shall maintain confidential records of such persons who approach the enlisted NGOs and the aggregate data shall be provided to the concerned Ministry bi-annually.

E. Such problems should be addressed with the best-suited method depending on the facts and circumstances of each case be it counseling, monetary support, legal assistance with the support of District Legal Services Authority, or to coordination with law enforcement agencies about offenses committed against any persons belonging to the LGBTQIA+ community.

F. With specificity of issue of accommodation, suitable changes are to be made in existing short stay homes, Anganwadi shelters, and “garima greh” (a shelter home for transgender persons, the purpose of which is to provide shelter to transgender persons, with basic amenities like shelter, food, medical care and recreational facilities. Besides, it will provide support for capacity building/skill development of persons in the community, which will enable them to lead a life of dignity and respect) to accommodate any and every member of the LGBTQIA+ community, who require shelters and/or homes. The MSJE should make adequate infrastructural arrangements in this regard, within a period of 12 weeks from the date of receipt of copy of this order.

G. Such other measures that are needed for eliminating prejudices against the LGBTQIA+ community, and channelizing them back into the mainstream should also be taken up. The Union and State Governments respectively, in consultation with such other Ministries and/or Departments shall endeavour to device such measures and policies

Further, the court also suggested reforms in educational institutes to create awareness on the issue of the LGBTQ community. The Court directed that Parent Teachers Association (PTA) meetings should be used to sensitize parents on issues of LGBTQIA+ community and gender nonconforming students so as to ensure supportive families.

Further, it said that necessary amendment should be made to policies and resources to include students belonging to LGBTQIA+ community in all spheres of school and college life. In this regard, the following suggestions were issued:

1.Ensure availability of gender-neutral restrooms for the gender-nonconforming student.

2.Change of name and gender on academic records for transgender persons.

3. Inclusion of ‘transgender’ in addition to M and F gender columns in application forms for admission, competitive entrance exams, etc.

4. Appointment of counselors who are LGBTQIA+ inclusive, for the staffs and students to address grievances, if any, and to provide effective solutions for the same.

– In addition to the above, the appropriate government shall take effective steps to implement measures in relation to transgender persons as stipulated by Chapter VI of The Transgender Persons (Protection of Rights) Act 2019 and Rule 10 of the Transgender Persons (Protection of Rights) Rules, 2020.

For judiciary, the court suggested to conduct awareness programmes for Judicial Officers at all levels in coordination with the enlisted NGOs and community support and to provide suggestions/ recommendations to ensure non-discrimination of persons belonging to the LGBTQIA+ community.

For Police and Prison authorities, programs should be held at regular intervals on steps to be taken for protection from and prevention of offences against the LGBTQIA+ community, the court said. The sensitization about legal rights of LGBTQIA+ community should be conducted  at regular intervals.

These sensitization programs are to be conducted for police personnel creating awareness about the Offences and Penalties as stipulated under Chapter VIII of The Transgender Persons (Protection of Rights) Act, 2019 and compliance of Rule 11 of the Transgender Persons (Protection of Rights) Rules, 2020, the court said.

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Outreach programs should be conducted by the NGOs with community support to put forth first-hand problems faced in the hands of law enforcement agencies, and to train them in providing effective assistance. Ensure that transgender and gender-nonconforming prisoners are housed separately from cis-men prisoners to eliminate chances of sexual assault by the latter on the former.

Mental health camps and awareness programs should be conducted to understand gender, sexuality, sexual orientation and promote acceptance of diversity, the court added.