New Delhi: From outlawing conversion therapy and banning police harassment of the LGBTQIA+ community to revamping medical education — over the past year, Justice N. Anand Venkatesh has singlehandedly managed to make Tamil Nadu a more LGBTQIA+ friendly place.
The opportunity presented itself before Venkatesh when he heard a petition filed in March last year by a 22-year-old BSc Mathematics graduate and a 20-year-old BA Tamil student for police protection. The two women had known each other for two years at the time and told the court they wanted to be together but were facing resistance and pressure from their respective families.
While he enabled communication between the women and their families, he also went on to expand the scope of the petition and issued guidelines in June last year, “for proper recognition of the rights of the LGBTQIA+ community and to ensure their safety and security to lead a life chosen by them”. This order also, for the first time, addressed the petitioners as a “lesbian couple”.
Justice Venkatesh has made headlines often since he started hearing the protection petition. In an order passed on 29 March last year, he admitted that he is also trying to break his “own preconceived notions about this issue” and is “in the process of evolving”. He proceeded to say that he is “trying to develop this case brick by brick”.
Since June last year, the Madras HC judge has issued a plethora of directions to several state government as well as Central authorities, including the National Medical Commission (NMC), NCERT (National Council of Educational Research and Training), the Social Welfare and Women Empowerment Department, the Ministry of Social Justice and Empowerment, Tamil Nadu State Judicial Academy, and State Director General of Prisons and Correctional Services.
These orders have resulted in conversion therapy being categorised as a professional misconduct, and has brought in the first ever legal rule in the country which mentions the LGBTQIA+ community, prohibiting police officers from indulging in “any act of harassment of any person belonging to the LGBTQIA+ (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual) + community”.
The case has also led to an overhaul of the medical curriculum, creation of a training module on gender sensitivity for school teachers, and sensitisation programmes for police and prison authorities.
No ‘cure’ for gender identity
Since June, 2021, the court has kept track of the steps taken on its directions by various government authorities. The case of the same-sex couple seeking protection has come up before the court at least 10 times after the guidelines were issued.
For instance, one of the most significant directions that the court had issued was to the NMC to take action against professionals indulging in any form or method of conversion therapy. On 31 August last year, the court took note of a prescription issued to a man who was gay. The doctor had prescribed him an antidepressant, an erectile dysfunction drug, and also referred him to a psychotherapist for cognitive behavioral therapy for “M2M behaviour (sic)”, referring to a category of sexual behaviour defined as “men who have sex with men”.
The court noted that this exhibited “ignorance on the part of the doctor who is not even aware that there is no ‘cure’ for gender identity”. He asserted that these are ways adopted by professionals “under the guise of conversion therapy”.
A year later, on 25 August 2022, the Ethics and Medical Registration Board of the National Medical Commission issued a landmark communication to the State Medical Councils, saying that “conversion therapy will constitute a professional misconduct under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002”. The communication, in essence, empowered the state medical councils to notify conversion therapy as a professional misconduct.
‘A milestone’
Another significant development on this front was when the court’s prodding led to a new rule being inserted in the Tamil Nadu Subordinate Police Officers’ Conduct Rules, 1964. The new ‘Rule 24C’ says, “No Police officer shall indulge in any act of harassment of any person belonging to the LGBTQIA (Lesbian, Bisexual, Transgender, Queer, Intersex, Asexual) + Community and persons working for the welfare of the community.”
The issue first came up on 31 August last year, when the court directed that a specific clause should be added in the Police Conduct Rules, saying that any police harassment towards persons belonging to the LGBTQIA+ community and to activists and NGO workers will be treated as misconduct and will entail a punishment for such misconduct. During the next hearing, on 4 October, 2021, the court was told that the DGP had already sent a proposal for such an amendment to the government.
While the government kept the court in loop over the next few hearings on the stage of finalisation of the Rule, on 18 February this year, the court was informed the rule had been inserted.
The court asserted that this government order “should be considered a milestone”. It acknowledged that this is the first time in India that the state government has addressed all people belonging to the LGBTQIA+ community officially.
Revamp of medical education
Another area of focus for the court was an overhaul of the MBBS curriculum. The need for such a revamp was highlighted in a report submitted by a doctor, a trans woman, who pointed out “vast amounts of transphobic and homophobic literature in medical textbooks”.
Pursuant to court orders, NMC’s Undergraduate Medical Education Board constituted an expert committee on 24 September last year, to address the issues and concerns in the MBBS course curriculum.
The NMC also issued an advisory on 13 October, 2021, directing all medical institutions to ensure that while teaching UG and PG students, they shouldn’t teach anything that “becomes/perceived in any way derogatory/discriminatory/ insulting to LGBTQIA+ community”. All authors of medical textbooks were also ordered to amend their information on virginity, LGBTQIA+ community and homosexuals in their textbooks, according to the available scientific literature, guidelines issued by the government, and directions passed by the court.
The expert committee also held meetings on 13 January and 19 January this year, and submitted the modified competencies to be included in the CBME curriculum. On 22 August, the court noted that as far as the modified competency for the Undergraduate Medical Education is concerned, “the recommendation given by the Expert Committee for making modifications in the Medical Education curriculum has already been sent to all the Medical Colleges / Medical Institutions in India and also to the Registrar and Director of all Medical Universities and Medical Education Boards”.
The court was told that the “recommendation of the Expert Committee on the modified competency pertaining to Forensic Medicine and Psychiatry will be implemented at the undergraduate level”.
On 2 September, the court was also told that the “revised Postgraduate Psychiatry curriculum has been directed to be followed by all universities and colleges effective from the beginning of the academic year 2022 onwards”.
Along with this, the court was also overlooking the creation of an action plan by the NCERT to sensitise school teachers, making them aware and preparing them to accept and handle gender non-confirming children. Since December last year, the NCERT kept the court abreast of the step-by-step review process being undertaken for the plan.
On 2 September, the court was informed that the training module titled “Training Module on Integrating Transgender Concerns in Schooling Process” has been prepared, and will be shared with all states, Central Board of Secondary Education (CBSE), Kendriya Vidyalaya Sangathan (KVS) and Navodaya Vidyalaya Samiti (NVS) for their comments and suggestions in September 2022.
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A ‘dignified and inclusive’ glossary
In addition to this, during the hearings, the Madras HC expressed the need for a standardised guide/prescriptive glossary containing the words and expressions to be used by the press and media while addressing persons belonging to the LQBTQIA+ community. During a hearing in February this year, the court noted that the Social Welfare and Women Empowerment Department had submitted such a glossary.
However, after the order was dictated in open court, representatives from the community took exception to some of the terms and definitions used in the glossary submitted by the Department. They, then, submitted an alternative glossary and requested the court to consider it. The court went through this alternative glossary and found this to be “more dignified and inclusive”. The court, therefore, directed the press and media to use the words in the alternate glossary while addressing people belonging to the LGBTQIA+ community.
On 22 August, the court was told that the suggested glossary had been published in the Tamil Nadu Government Gazette on 20 August, becoming the first state to do so.
Union ministry pulled up
During these hearings, while the court appreciated the authorities who were cooperative and proactive, it also regularly pulled up government authorities that did not deliver the desired results. One such authority was the Union Ministry of Social Justice and Empowerment (MSJE).
In its order passed in June last year, the court had directed the MSJE to list details of NGOs which have sufficient expertise in handling the issues faced by the LGBTQIA+ community on its website. On 4 October, 2021, the ministry told the court about the initiatives taken by it for the transgender community, but submitted that the Ministry of Home Affairs handles issues related to the rest of the LGBTQIA+ community apart from transgenders.
However, on 6 December, the court was informed by the central government’s lawyer that MHA does not deal with the LGBTQIA+ community. The court, therefore, noted that it was, in fact, the MSJE that needed to file a status report on the directions issued by it. A subsequent status report filed by the Ministry once again spoke only of initiatives undertaken for the transgender community.
On 23 December, the court pulled up the Union ministry for not having made any progress on enlisting NGOs. It gave the ministry a final opportunity to comply and warned them that if it doesn’t happen before the next date of hearing, the undersecretary to the Department of Social Justice and Empowerment should be present before the court.
On 8 April this year, the court once again pulled up the MSJE for not taking “any positive step to devise a mechanism for inviting applications from concerned NGOs who are taking care of the LGBTQ+ issues, to scrutinise them and to enlist them.” So, it directed the ministry to make a public announcement calling for applications for such NGOs.
However, on 22 August this year, the court noted that the ministry had once again gone back to its original position that its allocation of business rules do not say that it works for the LGBTQIA+ community. The court asserted that the ministry needs to give its rules “purposive meaning and understanding” and comply with the directions.
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‘Sidelined for too long’
The Madras HC has also been getting regular updates on the Draft Transgender Persons (Protection of Rights) Rules, and the Transgender Persons Policy. On 22 August this year, the court rapped the government for asking for six months for finalising the Transgender Policy and rules, saying that it is “totally unacceptable and that only shows that priority is not being given for this issue”.
“The Government must bear in mind that persons belonging to LGBTQIA+ community have been sidelined from the main stream of the society for too long and it is high time that top priority is given to implement the policy and rules,” it asserted.
On 2 September, 2022, the court granted 12 weeks to the government to notify the rules as well as the transgender policy.
Apart from this, the Tamil Nadu State Judicial Academy has also been periodically informing the court about the sensitisation programmes conducted by it for district and high court judges. In 2021, it also conducted a sensitisation programme for the civil judges and the newly appointed Assistant Public Prosecutors.
In December last year, the Director General of Prisons and Correctional Services, Tami Nadu, also filed a compliance report, listing down nine sensitisation programmes conducted for prison personnel while handling LGBTQIA+ community. These programmes were conducted with the help of members of the LGBTQIA+ community.
‘Not fully woke’
Justice Venkatesh has made news several times since he began hearing the protection case. The court began by referring the women as well as their parents to a counselor who specialises in working with LGBTQI+ individuals.
The families of the petitioners had also filed missing persons complaints against the two women. The court was assured by the government that these complaints would be “immediately closed”.
In April last year, the judge had made news once again when he said he was “not fully woke on this aspect”, and decided that he would undergo a ‘psycho-education’ to understand same-sex relationships better. He even sought an appointment with a psychologist.
After settling the case between the girls and their families, the court expanded the scope of the protection petition and went on to issue several directions for the welfare of the LGBTQIA+ community.
In June last year, the court directed the MSJE to make infrastructural arrangements for shelter homes for the community, and ordered various government authorities to organise sensitisation programmes.
It also gave instructions to the police to close missing person complaints if these cases are found to involve consenting adults from the LGBTQIA+ community.
(Edited by Zinnia Ray Chaudhuri)
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