Judge Ananth venkadesh recent full order. Of LGBTQIA+ community. Case

W.J.No.7284 of 2021

N.ANAND VENKATESH.,J.

The learned State Public Prosecutor submitted that the process of amending the Police Conduct Rules is pending before the Government, and at the earliest point of time, necessary changes will be made in the Conduct Rules.

2.The 10th respondent viz., the Ministry of Social Justice and Empowerment has filed a Status Report. The relevant portions from the Status Report are extracted hereunder:
“1. I state that with regards to the averments made in para 12 and 13, it issubmitted that earlier Ministry had filed a Status Report w.r.t Hon’bleCourt’s Order dated 06.12.2021. In this regard, it is further submitted thatMinistry is providing support to set up and maintenance of Garima Grehproject on pilot basis in order to ensure that the destitute and homeless. Transgender persons get a secure living space and care. Ministry hasgives 100% financial assistance for setting up and maintenance of 12 Garima Grehs: Shelter Home for Transgender Persons. Ministry has already released first grant to these Pilot Garima Grehs and currently proposals are being processed for release of second grant.

2. These shelter homes are setup in the states of Delhi, Tamil Nadu, Bihar, Gujarat, Odisha, Maharashtra, Chattisgarh, West Bengal and Rajasthan and are maintained by Transgender Community BasedOrganizations (CBOs). In these shelter homes, the resident Transgender persons are provided with basic requirements like safe shelter, food,counseling services, basic medical facilities and other amenities. Skill development trainings are also provided in these shelter homes in order to equip the resident Transgender persons to take up subsequent economic activities.

3. With regards to “Support for Marginalised Individuals for Livelihoodand Enterprise (SMILE) scheme, it is submitted that after receiving comments of Department of Expenditure, scheme has been revised Revised Standing Finance Committee Memorandum was circulated tovarious Ministries/ Department including Department of Expenditure and NITI Aayog for their comments. The Standing Finance Committee (SFC) met on 30th November, 2021 under the Chairmanship of Secretary, D/oSJ&E to appraise and review the Central Sector scheme of “Support forMarginalized Individuals for Livelihood and Enterprise (SMILE)” for theperiod from 2021-22 to 2025-26. This scheme includes a sub-scheme of Comprehensive Rehabilitation for the Welfare of Transgender Persons.The components of the sub-scheme are Scholarships (Pre &Post-Matric),Skill Development & Livelihood, Composite Medical Health, Transgender Protection Cell, E- Services (National Portal, Helpline and advertisement) including Garima Greh (Shelter Homes)

4.Under the scheme, it is envisaged that at least one Garima Greh willbe setup in each States/UTs for destitute Transgender Persons. Theproposal of ‘Garima Greh’ will be called online through our e-Anudaanportal (developed by NIC for seeking. processing and approval of online proposal).
5.As per standard procedure, after approval of SFC, scheme guidelines are under formulation. Once finalized, guidelines will be put up in public domain. All the measures will be undertaken under the scheme, after its finalization of guidelines which are under process.

6.With regard to list of NGOs/CBOs, it is submitted that a list of NGOs/CBOs working with the Ministry, to whom funds have been releasedfor setting up and maintenance of “Garima Greh’ have been provided with name and other details of the contact person and their e-mail ID on theNational Portal for Transgender Persons (https:/transgender.dosje.gov.in/).Further, this Ministry has only the mandate of dealing with TransgenderPersons only. During the lock-down period, a helpline was setup to providepsychological support through trained Psychologists to Transgender Persons in distress during both Wave 1 and Wave 2.

3.The Senior Panel Counsel appearing on behalf of the 10th respondent submitted that the 10th respondent is actively working towards setting up atleast one Garima Greh in every State/Union Territory for destitute transgender persons. That apart, the proposal of Garima Greh will also be called on-line through the e-anudaan portal. The Senior Panel Counsel clarified that the scheme covers only those persons who fall under the category of “transgender persons”.

4. In the considered view of this Court, transgender persons are only a fraction of the entire LGBTQIA Aaaa+ community. The benefit under the scheme has to be extended to the entire LGBTQIA+ community and must not be confined only to transgender persons. The Ministry of Social Justice and Empowerment shall take this into consideration and enlarge the scope of this scheme to all persons from the LGBTQIA+ community. Only then can it be considered as a wholesome and non-discriminative welfare scheme benefitting persons who otherwise are being marginalised in the society. The Ministry has to bear in mind that persons from the LGBTQIA+ community, as such do not have any support from their family or from the society at large. Therefore, the welfare schemes provided by the Government are their only ray of hope. In view of the same, this Court expects the Ministry of Social Justice and Empowerment to extend the Garima Greh scheme to all persons from the LGBTQIA+ community.

5.Regarding the directions pertaining to the listing of NGOs, when the matter was taken up for hearing on 04.10.2021, the Ministry of Social Justice and Empowerment had filed a status report and informed this Court that they are in the process of enlisting the NGOs along with their address, contact details and services provided, and informed this Court that the said process is underway. However, the status report that has been filed today by the Ministry of Social Justice and Empowerment does not address this issue. It is crucial to properly enlist the NGOs that work for the welfare of the LGBTQIA+ community. Unless this process is undertaken, LGBTQIA+persons run the risk of abuse and threat amidst other hardships. Therefore, this Court expects the Ministry of Social Justice and Empowerment to complete the process of enlisting the NGOs with all details and upload the same on their website before the next date of hearing.

6.When the earlier order was passed by this Court on 06.12.2021, this Court had expressed concern over the manner in which the training material for teaching staff uploaded on NCERT’s website was taken down without any valid reason. This Court directed NCERT to come up with a status report regarding the same. When the matter was taken up for hearing today, the learned Senior Panel Counsel for Union of India submitted the status report filed by NCERT. This status report has been submitted by the Deputy Secretary of NCERT. The relevant portions from the status report are extracted hereunder:
“3. Keeping the above in view, the Department of Gender Studies, NCERT proposed a programme tiled Development of Training Material for Teacher and Teacher Educators on Transgender Concerns in School Education’ for the year 2020-2021, whichwas approved by the Councils’ Academic and ProgrammeAdvisory Committees. The training material was thus developed (as a draft) by July, 2021., As an academic exercise, every material developed by the NCERT undergoes various stages before being finalized and put in Public domain. The material is tried out with the target groups, reviewed by different stakeholders, inviting comments and suggestions on draft being put to public viewing etc. and after the feedback, suggestions and comments are received, and then they are finalized. This process was to be followed in this case as well.The training material titled “Inclusion of Transgender Childrenin School Education: Concerns and Roadmap” which wasuploaded on 6th September, 2021 on the NCERT website wasonly a Draft Training Material and was yet to be reviewed, finalised and duly approved by the Competent Authority, NCERT and when it was found that the uploaded “Training Programme” was yet be reviewed, finalized and duly approved by Competent Authority, the same was removed by NCERT on 01.11.2021. from the NCERT’s website, after 56 days. The Training Module was removed because ofthe aforesaid reasons rather than under any pressure but only in order to review and finalize it after involving all the Stakeholders in the process as indicated herein.

4. The training material is a rescarch document with a lot of reference materials and compiled contents but it has to be in the format of a training module/manual to conduct training session/s. Since this is a training material for teachers and teacher educators for sensitization on such an important societal concern, it needs to be in a desired format, to be tried out through consultation with schools, teachers and teacher educators to take feedback before finalizing it. Thus, this requires to be designed and customized in the format of atraining module. Though the Training material has been removed from the NCERT Website but NCERT has already started the process of its internal and external review of the Training Programme in the manner as indicated above.

5. The plan of Action initiated by the NCERT:-
(A) The process of developing the new National Curriculum Frameworks (NCF) of Education has been initiated, where one of the 25 themes to focus upon is Gender Education as a cross cutting theme to pave the path for implementation. There willbe recommendations by the Focus Group during the NCF consultations and they will also be considered for the training manual.

(B)A meeting of internal experts comprising of three Deans, Head and faculty member of the Department of Gender Studies was held on 17th November, 2021. They reviewed the training material and found that the training material has many gaps in its content and structure and it needs to becustomized as a training module to sensitize teachers, teacher educator and school administrators for the benefit of the entireschool education system in the country. During the above meeting, it was also felt that the training material requires a thorough review by external experts as well as different stakeholders of school education system before making it apublic document.
C)The Competent Authority is in process and will constitutea committee for the review of the training material. The reviewwill be done in three stages. In the first stage:

1. In First Stage – Review by different stakeholders including parent of a transgender student, School Administrator, school counselor, experts from University Departments ofGender Studies, Schools teachers, school head, nominated members from National Council of Transgender Persons, National Commission for Protection of Child Rights (NCPCR) and National Human Rights Commission will review the existing training material in a Planning Group meeting to prepare the frame work of the module and they will identify the experts who will contribute in preparing the module.

2. In the second stage – experts identified with the planning group will prepare the module in the workshop mode and in the:-

3. Third stage – vetting of the training module will be done by the Planning Group to finalize it.

6. As soon as the steps mentioned above will be accomplished, the well-designed and customized training modules will be disseminated among all the stakeholders and the same will be uploaded on the website of NCERT/ Ministry of Education etcafter due approves of the Competent Authority NCERT.

7. Since NCERT endeavors to implement this at the earliest it ismaking all endeavors so that the training module can be rolled out for the next academic session. After the module is finalized, and approved by the Competent Authority, NCERT will share the Training Module with all States/UTs etc. and also conduct training programmes for teachers, teacher educators and school head.

7.The learned Senior Panel Counsel submitted that the training material will be reviewed in three stages and all efforts are being made by NCERT to roll-out the training module by the next academic session.

8.The stand taken by NCERT is recorded and this Court expects the NCERT to finalise the training module and positively implement it during the next academic session. In any case, since the training material is going to be reviewed in stages, the status report to be filed before this Court during the next date of hearing must explain the ongoing stage of the said review at that point of time.

9.This Court while passing orders on 06.12.2021, took into consideration the advisory issued by the National Medical Commission (“NMC”), dated 13.10.2021. While taking note of this advisory, this Court pointed out certain vital changes that are required in the CBME curriculum. It has been dealt with in detail at paragraph 11 of the Order.

10.The learned Standing Counsel appearing on behalf of the NMC submitted that an Expert Committee has been constituted by NMC to specifically look into the concerns raised by this Court and pointed out at paragraph 11 of the Order and assured this Court that it will be informed of the progress made on the next date of hearing through a status report. This Court expects that the NMC will come up with a finalised version and recommend the changes to be made to the competencies of the CBME-curriculum. It can be made operational atleast from the next academic year. These small steps taken by the statutory bodies will repose a lot of confidence to persons belonging to the LGBTQIA+ community. Hence, the NMC shall file a status report in this regard during the next date of hearing.

11.When the earlier order was passed by this Court on 06.12.2021, this Court directed the learned Additional Advocate General appearing on behalf of respondents 7, 8, 9, 17 and 18 to take instructions and to file a report before this Court.

12.When the matter was taken up for hearing, the learned Additional Advocate General filed a written note. The learned Additional Advocate General submitted that a new Board consisting of 11 official members and 13 non official members has been formed on 11.10.2021, vide G.O.Ms.No.64, dated 11.10.2021. It was further submitted that 12 members are from the transgender community and there is one non official member, who is a queer-friendly/inclusive clinical psychiatrist. The learned Additional Advocate General further submitted that the Social Welfare and Women Empowerment Department will actively implement the following schemes for the welfare of Transgender persons:
1) No. Of Trans Gender as per survey by the Department : 11449
2) Additional numbers Identified in October 2021 : 667
Total 12116

3) Benefits given :-
1. No. Of Identity Card issued : 9277
2. No. Of Sewing Machines : 141
3. No. Of Housing Allotment through Slum Clearance Board : 515
4. No. Of Education Assistance : 9 (Rs. 2,35,030)
5. No. Of Ration Card issued : 2762
6. No. Of House Pattas : 1743
7. No. Of Health Imsurance Card : 1489

13.It was further submitted that thirunangaigal (transwomen) who are unable to earn their livelihood are given a monthly financial aid of Rs.1000/- and a budget of Rs.1.50/- crores has been allocated for this scheme. The learned Additional Advocate General further submitted that the Tamil Nadu Government had come up with various welfare schemes during the pandemic and a helping hand was extended throughout this period. It was further submitted that skill training programs were also offered to transgender persons in the following manner:
1) As per Hon’ble Governor’s announcement the proposal for various training for 655 Tirunangaigal has been sent to Tamilnadu skill development Corporation.

2) In continuation 20 transgender were given training on personal skills on 09.12.2021 and 10.12.2021 in Anna Administrative Staff College.
3) Fashion designing training for 68 days, for 15 Thirunangaigal at Namakkal District has been started in coordination with Tamilnadu skill development Corporation on 18.12.2021.
4) Creation of separate Mobile App would help the Trans Genders to enroll themselves with their personal data without any inhibition. The online registration of Trans Gender will ease the lengthy process of obtaining Medical certificates after proper screening test by the concerned committee for identification as Trans Gender.

14.The learned Additional Advocate General also brought to the notice of this Court, G.O.Ms.No.52, dated 26/08/2021, wherein, the State of Tamil Nadu has coined the term “thirunangaigal’ in Tamil and the English term “transgender” is used wherever required. The relevant portions from the Government order are extracted hereunder:
5.nk;wTwpatw;iw jPtpu ghprPyid bra;jjd; mog;gilapy;. MuR gpd;tUkhW Mizfs; btspapLfpwJ :-
1) K:d;whk; ghypdh; vd;W gad;gLj;jg;gLk; brhy;Yf;F K:d;whk; ghypdh;/ khw;Wg;ghypdj;jtjjh;. jpUe’;iffs;. jpUek;gpfs; cs;spl;nlhiuf; Fwpf;Fj; tifapy; ‘jpUe’;if’ vd;W jkpHpYk; ‘Transgender’ vd;W M’;fpyj;jpYk; bgah; khw;wk; bra;ag;gLfpwJ/

2) K:d;whk; ghypdh; ey thhpak; vd;w bgaiu gad;gLj;jg;gLk; thhpaj;jpw;F. K:d;whk; ghypdh;. khw;Wg;ghypdj;jth;. jpUe’;iffs;. jpUek;gpfs; cs;spl;nlhh; gad;bgWk; tifapy; ‘jpUe’;iffs; ey thhpak;’ vd;W jkpHpYk; ‘Transgender Welfare Board’ vd;W M’;fpyj;JYk; bgah; khw;wk; bra;ag;gLfpwJ/

15.The learned Additional Advocate General submitted that the Government of Tamil Nadu is in the process of formulating the Rules under the Transgender Persons (Protection of Rights) Act, 2019 (“Transgender Act”) and it shall cover all welfare measures inclusive of their education, employment, security, livelihood and rehabilitation. The learned Additional Advocate General concluded his submissions by stating that the Government of Tamil Nadu will be a forerunner in addressing the welfare of the LGBTQIA+ community, and the progress made will be informed to this Court by filing status report during every hearing date.

16.During the last hearing, this Court had directed the Legal Services Authority to coordinate with the Director of the Tamil Nadu State Judicial Academy and file a status report on the plan of action to be taken. Today, at the time of hearing, the Member Secretary was present and a report was filed. The relevant portions in the report are extracted hereunder:
1.Legal Services Institutions across the State of Tamil Nadu conductsvarious Awareness, Legal Aid Programmes, Literacy classes etc., based the” Calendar of activities” for every year (April to March). This Authority has decided to amend the “Calendar of activities” suggesting 6SpecialProgrammes a year i.e., Oncein Two months, touching the subject of Transgenders, LGBTQIA Community. All the 32 DLSAs will conduct a Sensitation Programme/Awareness Programmes targeting the general public,School Students, Colleges, Government Officials and other State holders.

2. For the purpose of conducting regular awareness/sensitation programmes, this Authority is planning to organize Trainers of Trainee Programme bytraining 3 Panel Advocates for each Districts as Resource Persons. In this regard, I have had discussion with Hon’ble Director; Tamil Nadu State Judicial Academy and it is proposed to organize a training programme for the prospective Resource Panel Advocates in the month of January, 2022. The persons trained will be the Resource persons for the respective Districts forconducting the Programmes as scheduled in the “Calendar of Acitivities”.

Legal Services offered to Transgenders:
3. I submit that, this Authority is running 5 Special Clinics for Transgenders in co-ordination with NGO’s in 5 places and the list below shows the places and NGO’s coordinating with this Authority.
S.No. Name of District Name of Clinics
1. Namakkal Legal Aid Clinic for transgenders at Senthamangalam
2. Tiruvallur Vidivelli Transgender Welfare Association, Tiruvallur
3. Tirunelveli Peace Trust, Palayamkottai – Clinic for Transgender
4. Madurai Legal Aid Clinic for Transgenders at Social Welfare Development Society, Ellis Nagar (SWDS)
5. Thanjavur Legal Services Clinic for Transgender at Annai Theresa Social Service Home, Thanjavur

4.I. submit that, this Authority has also empanelled three (3) Transgenders as Para Legal Volunteers in Thanjavur, Tiruvallur and Vellore Districts. The PLVs are regularly co-ordinating with the District Legal Services Authorities to reach out the Transgender Communities.

5.I submit that, as a part of PAN India Campaign, while celebrating 75th year of Independence and 25th year of inception of NALSA, this Authority has reached out 16,969 villages in phased manner as prescribed by the NALSA.

1st Phase: 2nd to 15th October 2021
2nd Phase: 16th to 29th October 2021
3rd Phase: 30th October to 7th November 2021
4th Phase: 8th November to 14th November 2021

During this period, this Authority has met 9,191 transgenders across the State and various benefits have been distributed to 90 persons. The DLSAs of Thoothukudi, Tiruppur, Theni and Ariyalur have conducted Legal Awareness Programmes in the period of October and December, 2021 and the reports of the respective Districts submitted as Annexure A.

17.The learned Standing Counsel appearing on behalf of the State Legal Services Authority submitted that the Legal Services Authority will play a major role in raising awareness, and regular programs will be conducted and status report will be filed as and when there is any progress.

18.The learned counsel for the petitioner who is assisting this Court right from the inception, circulated a short note which focuses on the standardised guide/prescriptive glossary containing the words and expressions to be used by the press and media while addressing persons belonging to the LGBTQIA+ community. In order to provide assistance, the words and expressions that can be used in Tamil by the press and media has been collated at paragraph No.5 of the note and for proper appreciation, the same is extracted here under:
S.No. Tamil Words
(With explanation) English Words
(With explanation)
1. ghy;

,J gpwg;gpy; njhd;Wk; clw;TW rhh;e;j ntWghL. Cly; cWg;g[fs;. jirfs; kw;Wk; ghy; Fnuhnkhnrhk;fs; ,it midj;Jk;
xU thpd; clw;Tiw eph;zapf;fpd;wd/ bgUk;ghYk; fhzg;gLtJ Mz;ghy; my;yJ bgz; ghy;. RpyUf;F ,uz;L ghy; rk;ke;jg;gl;l cWg[f;fSk; gpwg;gpnyna miktJz;L/ ,th;fis “,d;lh;brf;!;“ vd;W miHf;fpnwhk;/
Sex
Sex refers to the biological make-up of a person. Most people are either male or female , and a few have biological features of both sexes. Those are referred to as intersex ( formerly known as hermaphrodite: which is now a derogatory term). The biological make-up is assessed from ester a,body parts, sex chromosomes and/or tissues and organs.
2. ghypdk;;

Md;; jd;ik my;yJ bgz; jd;ik/ ghypdk; vd;gJ xUth; jd;id milahsk; fhz cgnahfpf;Fk; brhy;/ cjhuzk; : rK:fk; ‘typik’, ‘tPuk;’ nghd;wtw;iw Mz;jd;iknahL ,izf;fpwJ/ ‘bkd;ik’ ‘espdk;’ nghd;wtw;iw bgz;jd;iknahL ,izf;fpwJ/ xUtuJ ghypdk; mtuJ ghnyhL bghUe;jp ,Uf;f ntz;Lk; vd;gJ gyhpd; vjph;ghh;g;g[/ cjhuzj;jpw;F xU Mz;. Mz;ika[ld; ele;J bfhs;s ntz;Lk;. Miz nghd;W njhd;w ntz;Lk; vd;gJ gyhpd; vjph;ghh;g;g[. mDkhdk;. Mz;ikapd; btspg;ghL gy fyhr;rhu’;fspYk;. fhy’;fspYk; ntWgl;lhYk;. Rpy Fzhjpra’;fs; vd;Wk; ,Ue;J tUgit/ ,J nghd;w vjph;ghh;g[fSf;Fs; ml’;fhj. bghUe;jhj Mz;fs; my;yJ bgz;fSf;bfd;W ,Uf;Fk; vjph;ghh;g[fSf;Fs; ml’;fhj. bghUe;jhj bgz;fs;. Gpwuhy; jhH;e;jth;fs;. Fiwe;jth;fs; vd;Wk; fUjg;gLfpwhh;fs;/ mg;gog;gl;lth;fis nfyp. fpz;ly; bra;tJk;. Jd;g[Wj;JtJk; eilKiw/ Gender
Gender: This refers to the social categories of manand woman, and to thebehaviors that we consider to be masculine andfeminine. Gender isexpected to conform to biological sex. Hence,someone whose sex ismale, is expected to looklike a man and behave in a masculine manner. Whatc onstitutes “masculine behaviour” or “manly appearance” may vary culturally, and may varya cross history, but some features are constant. Males who do not conformto the expectations society has of men, and females who do not conform to theexpectations society has ofwomen, are consideredinferior or inadequate, and can be subjected to ridicule and harassment. Such ridicule and harassment isespecially severe for those whose are transgender, i.e.those whose gender is atodds with their sex.

S.No. Tamil Words
(With explanation) English Words
(With explanation)

3. ghyPh;g;g[

,J ghypay; hPjpahf Vw;gLk;

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