Full order W.P.No.7284 of 2021     ANAND VENKATESH, J.                              The matter was posted for hearing today to take note of developments that have taken place pursuant to the orders passed by this Court on 07.06.2021. —18.The Orders passed and Guidelines issued by this Court on 07.06.2021, have created a lot of awareness among the LGBTQIA+ community and the society at large. It is therefore necessary to carry on with this momentum and create a congenial atmosphere for the persons belonging to the LGBTQIA+ Community by accepting them as they are. This Court expects the State and the Central Government to give more priority to this issue and come up with some positive actions on their part..

W.P.No.7284 of 2021

 

 

1. ANAND VENKATESH, J.

 

 

                         The matter was posted for hearing today to take note of developments that have taken place pursuant to the orders passed by this Court on 07.06.2021.

 

2.The learned State Public Prosecutor appearing on behalf of the 1st and  2nd Respondents submitted a compliance report filed by the Director General of Police, Tamil Nadu. The Compliance Report has specifically dealt with the directions “A” and “H” issued by this Court. It has been stated that these two directions have been circulated to all the Commissioners of Police in cities and the Superintendent of Police in Districts through two circular memorandums dated 09.06.2021 and 23.06.2021 and a direction has been given to strictly comply with the same. The relevant circular memorandums were also filed along with the compliance report. For proper appreciation, paragraphs 6 and 7 of the Compliance Report are extracted hereunder.

“ 6. It is most respectfully submitted that there is no discrimination and abuse in the process of incarceration of transgender and intersex persons at Prison in the State of Tamil Nadu. As far as Transgender prisoners are concerned, as per the gender category mentioned in the warrant of the prisoner received from the Judicial Magistrate concerned they are being lodged in the respective prisons viz., Central Prison of Special Prisons for Women. The Trans – women Prisoners are lodged in Special prisons for Women and Trans – Men Prisoners are lodged in the central prisons and at present, no long them convict prisoners belong to this category are admitted in prisons, only few remand prisoners being to transgender category are admitted in prisons.

 

7. It is submitted that in this connection, the Director General of Police, Tamil Nadu Police Academy at Chennai has sent a reply letter in C.No.T1/3661/TNPA/2021 dated 17.08.2021 to the Director General of Police /Head of the Police Force, Tamil Nadu stating as follows :

• As per the direction of the High Court on Online / Offline Training programme for Police Personnel to create awareness about the offences and penalties as stipulated under Chapter VIII of the Transgender persons (Protection of Rights) Act, 2019 and compliance of Rules 11 of the Transgender persons (Protection of Rights) Rule Act 2020 conducted at Tamil Nadu Police Academy with the assistance of Assistant Public Prosecutor and our officers. The offline training was conducted for 42 Deputy Superintendent of Police (Trainees) and for 25 TNPA staffs. The online training programme for Women Inspectors who are serving in the field was conducted by the Deputy Director of Tamil Nadu Police Academy.
• Outreach programs will be conducted by the NGOs with community support to put forth first, handing problem faced in the hand of law enforcement agencies.
• It is further requested that the ISTCs in all districts may be requested to conduct the training in further as TNPA will be imparting basic institutional training from 969 Sis and the photos of Training programme conducted at Tamil Nadu Police Academy for Police personnel is herewith attached.”

 

3.It has been brought to the notice of this Court, by NGO workers who help and aid the community members that the police officers at various police stations refused to provide protection and even in certain cases harassed not only the community members but also NGOs and field workers who were helping them. This Court is appalled upon learning that these instances have taken place even subsequent to the Order passed by this Court and the consequent guidelines issued on 07.06.2021. One of the excuses given by the police authorities while shunning these persons is the lack of an internal circular and/or notification issued by the higher authorities of the Department in this regard.  Evidently, the larger excuse seems to be the sheer lack of awareness and the apathy towards arming themselves enough to fight for a community of public belonging to the citizenry of this nation, to whom they swore to be servants. This Court in its earlier Order already observed that ‘lack of awareness can be no excuse to any form of discrimination’, and the absence of internal communication and hierarchical orders is no excuse to deny protection to the community that is vulnerable, susceptible to threat and harassment. What has been built by the State as a source of protection to the public cannot become the end from which they need protection.

4.When the above instances were brought to the notice of the State Public Prosecutor, it was submitted that the concern raised by this Court will be immediately informed to the DGP of Police and steps will be taken to create awareness to the Police about the circular memorandums issued by the DGP of Police and it will be ensured that direction “A” given by this Court will be strictly complied with.

 

5.In order to ensure further clarity on this issue, the following directions are issued.

1. Police department to refrain from harassing activists and people belonging to NGOs, not just the people who belong to the LGBTQIA+ community.

b.A specific clause is to be added in the Police Conduct Rules specifically providing that  any harassment by the police, to the persons belonging to the LGBTQIA+ community and/or to the activists and NGO workers, will be treated as misconduct and will entail a punishment for such misconduct.  and;

1. While conducting sensitization programs for the Police, it must be conducted through the persons belonging to the community and/or the activists and NGO workers who are involved in this cause.

 

6.The Learned Advocate General appearing on behalf of the Respondents 7, 8, 9, 17 & 18 submitted that some more time is required to file a compliance report with regard to the directions issued by this Court in clauses “G” & “H”, in its order dated 07.06.2021.

 

7.This court impressed upon the learned Advocate General to instruct the authorities to be more proactive in this issue. It was also brought to the notice of the learned Advocate General that the State of Tamil Nadu is always known for introducing reforms in the interest of persons belonging to the marginalized communities and sects and therefore, this State must be a role model to create a favorable atmosphere to persons belonging to the LGBTQIA+ Community. This Court is confident that the State Government will work towards the recognition and development of persons belonging to the community and they will be brought within the mainstream of the society. The expectation of this Court must be kept in mind by the State Government while filing the compliance/status report before this Court.

8.Certain incidents of misreporting and insensitivity demonstrated by the media in publishing “news” about persons belonging to the community was brought to the notice of this Court. Insensitive remarks such as “Mz; nghy ntlkpl;Lf;bfhz;L jdJ njhHpa[ld; fztd; nghy thH;e;Jte;j epiyapy;. mth;fisg; gyfl;;l Kah;rpfSf;Fg; gpwF nghyP!hh; kPl;Ls;sdh;” (a woman disguised as a male and pretended to be in a marriage with her female friend, both of whom were rescued by the police after repeated efforts) and “bgz;zhf ,Ue;J jdf;fhf Mzhf khwpa fhjy; fztUld; bry;y tpWg;gk; bjhptpj;jhh;” (she expressed her willingness to be united with her husband who, originally being a female, converted herself into a male for the sake of her partner).

 

9.Media’s insensitive commentary and ridiculing with dramatic words, music on “reporting” though not new to our society, cannot be normalised. The reportage of the most intimate and personal aspects of an individual’s identity by the contemporary vernacular media is deeply problematic and it not just reflects the pre-existing harmful stigmatization of the community, but also perpetuates it. Stigmatising, inaccurate and inherently unscientific phrases such as “Mzhf khwpa bgz;. bgz;zhf khwpa Mz;” are rooted in queerphobia and cannot be tolerated or entertained any further. It is high time journalists stick to sensitive and inclusive terms on the gender spectrum.

 

10.This court always believes that in so far as press and media are concerned, it is always better to request them to exercise self- restraint. This court doesn’t want to give any positive directions at this point of time which may unwittingly trench upon the freedom of press. The press will have to play a major role in spreading awareness through sensitive reporting of cases. The choice of words ultimately should not demean the persons belonging to the Community. This Court reposes confidence on the press and expects the press to show more sensitivity while reporting cases and maintain the confidentiality of the identity of the persons involved in a news item.

 

11.The learned Additional Solicitor General appearing on behalf of the Respondents 10,11,12,13,14,15, 16, 19, 20, 21, 22 and 23 submitted that some more time is required to file a compliance/status report in so far as the directions issued by this court in clauses “B” ,“F”, ”G” & “H” in its order dated 07.06.2021.

 

12.The attention of the Additional Solicitor General was drawn to the need for the revamping of the curriculum in the MBBS course.

 

13.The report submitted by Dr. Trinetra Haldar Gummaraju which was extracted in toto in the earlier Order passed on 07.06.2021 was also brought to the notice of the Additional Solicitor General. The relevant portion of the said report is extracted hereunder for better appreciation.

‘Psychological counselling can be a great tool to help an individual and their family come to terms with queer identity, but it is extremely unfortunate that psychiatry and psychology too as fields have been complicit in perpetuating queerphobia. I began to find vast amounts of transphobic and homophobic literature in medical textbooks – a haunting realisation that our medical textbooks are just as draconian as our legislations. In India, after the erstwhile Medical Council oIndia (MCI) decided to review the country’s medical curriculum after more than two decades, it created the ‘Competency Based Undergraduate Curriculum for the Indian Medical Graduate’ in 2018. It was expected that this curriculum would incorporate modern scientific beliefs and would not pathologize as it once did. But the MCI failed expectations – currently, for undergraduate students studying Forensic Medicine in their MBBS, the medical curriculum describes “sodomy”, “lesbianism” and oral sex as sexual offences, and “transvestism” (cross-dressing) as a “sexual perversion”.’

14.The above reflects how queerphobia is being reaffirmed as legitimate throughout the education of a doctor who might go on to become a psychiatrist or any physician who might be approached by a person from the community. As important as it is for an advocate or a  judge to take up a client’s case  or to decide the case, as the case may be without being personally judgemental about them, it is equally or even more important for a professional from the medical and mental health professionals’ fraternity to be non-judgemental and free of moral or personal prejudices about their patient’s or client’s identity on the gender spectrum or their sexuality.  Knowledge about a patient’s gender identity and sexuality may be of interest to a doctor, physician and a mental health professional if it is pertinent  in cracking the course of treatment, but the course of treatment cannot be one which aims to “cure” their gender identity or sexuality itself.

 

15. In this regard, the notice of this court was drawn to one of the prescription that was given by a psychiatrist to a Gay man. The Doctor had prescribed two medicines namely Stimuli Capsule and Fluoxet capsule for 15 days. That apart, this Doctor had also referred the concerned person to a psychotherapist for Cognitive Behavioral Therapy for M2M behavior. This sample case clearly exhibits the ignorance on the part of the Doctor who is not even aware that there is no “cure” for gender identity. These are ways and means adopted by professionals under the guise of conversion therapy. Prescribing anti-depressants and erectile dysfunction drugs to a person and referring them into cognitive behavioural therapy as “remedy” to their gender identity and sexuality is nothing but conversion “therapy”, camouflaged as medical and mental health support. This lack of knowledge on the part of the concerned psychiatrist is directly attributable to the course that was undergone by him and which is yet to be revamped and brought up to date.

 

16.The learned Additional Solicitor General shall bring this to the notice of  the National Medical Commission and Indian Psychiatric Society and direct them also to file a report as to how they are going to handle this issue in future by carrying out necessary changes in the curriculum.

 

17.The learned counsel  appearing on behalf of the Tamil Nadu State Legal Services Authority filed a report along with annexures. It is seen from the report that legal literacy and legal awareness camps were conducted by 28 District Legal services Authorities across the State. It is also stated that a seminar on the “issue relating to transgender” will be organized along with the social welfare department across the State.

 

18.The Orders passed and Guidelines issued by this Court on 07.06.2021, have created a lot of awareness among the LGBTQIA+ community and the society at large. It is therefore necessary to carry on with this momentum and create a congenial atmosphere for the persons belonging to the LGBTQIA+ Community by accepting them as they are. This Court expects the State and the Central Government to give more priority to this issue and come up with some positive actions on their part.

 

19.Post this case on 04.10.2021 at 02:15 PM. In the meantime, the report shall be filed in the registry and the same shall be put up in the bundle.

 

20.Registry is directed to print the name of Ms. Shabnam, learned Government Counsel appearing for respondents 7, 9, 17 and 18,                               Mr.V Chandrasekhar, learned Central Government Standing Counsel for Respondents 10, 11, 13, 14, 15, 16, 18, 20, 21, 22 & 23, Ms.Subharanjani, learned counsel  for Respondent 12  and  Mr.C.K.Chandrasekhar, learned counsel appearing on behalf of  respondent 8.

 

31.08.2021

 

 

 

Internet: yes

Index: yes/No

KP

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1. ANAND VENKATESH, J.

 

KP

 

 

 

 

 

 

 

 

 

 

W.P.No.7284 of 2021

 

 

 

 

 

 

 

 

 

 

 

31.08.2021

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