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Synopsis

The Madras High Court on Monday observed that the members of the LGBTQIA+ community have been sidelined from mainstream society for far too long, and it is high time the government prioritizes implementing policies and rules for their upliftment.

The bench of Justice Anand Venkatesh remarked that the State government’s request for six months to finalize the Transgender Policy and rules was totally unacceptable and demonstrated that priority was not being given to the issue.

Court further added, "This process has been ongoing for over a year, and it is unclear why six months are being sought to implement the Transgender Policy and the rules outlined in the 2019 Act".

Additional Advocate General (AAG) informed the court that the glossary was published in the Official Gazette and the terms used to address the LGBTQIA+ community are now backed by statutes, and whenever the LGBTQIA+ community is addressed by any forum, they must use the terms that are published in the gazette.

AAG added that by doing so, an attempt is being made to address members of the LGBTQIA+ community with greater dignity and respect.

Concerning the Transgender Persons (Protection of Rights) Rules, AAG submitted that the draft rules have been received from the Director of Social Welfare and require scrutiny and compliance with the Central Act, 2019, as well as the approval of the Law Department before being circulated to the Chief Minister to obtain orders and to notify the same. Accordingly, AAG sought six month time for finalizing the rules and notifying the same.

Further, on Transgender Policy, AAG submitted that the instructions have been issued to the Principal Secretary of the Transgender Welfare Board to prepare an exclusive policy for transgender persons in consultation with concerned stakeholders, including State Planning Commission officials, and the completion of the final policy would take six-month time.

The Standing Counsel for the National Medical Commission (NMC) filed a status report, wherein the terms of the modified competency for Undergraduate Medical Education, the Expert Committee's recommendation for making changes to the Medical Education curriculum had already been sent to all Medical Colleges / Medical Institutions in India, as well as the Registrar and Director of all Medical Universities and Medical Education Boards.

The court, thus, directed all concerned including the press to take note of the notification published in the gazette on August 20, 2022, and address persons belonging to the LGBTQIA+ community by using only the notified terms.

On the six-month time sought by AAG, the Court directed the concerned Secretary to file a status report during each hearing so that the bench could ascertain the progress.

Court further directed the counsel for NMC to take specific instructions from the National Medical Commission as to whether any subsequent draft regulations incorporating conversion therapy as professional misconduct had been uploaded to the website.

Furthermore, the court was informed that the Ministry of Social Justice and Empowerment provides financial assistance to CBOs that work with transgender people and monitor their performance on various parameters and that they have no prior experience with the NGOs working to improve the lives of the LGBTQIA+ community.

The court was also informed that even if the Ministry enlists NGOs, accessing their credentials, it will be unable to track their activities and may have adversely affected the cause.

“The 10th Respondent appears to be under the mistaken impression that the welfare of transgender people does not extend to the LGBTQIA+ community and the members of this community are marginalized and require societal empowerment. The 10th respondent should give the business rules a purposeful meaning and understanding, and it is entirely within its jurisdiction to enlist NGOs working for the welfare of members of the LGBTQIA+ community”, the court observed.

Accordingly, Court directed the 10th respondent to take the issue seriously as NGOs working for the upliftment of the LGBTQIA+ community must be properly accredited and come under their control.

Furthermore, Court directed the Counsel to file a status report on the next date of hearing i.e. September 2, 2022, on the steps taken to ensure compliance with the High Court’s orders.

Recently, the High Court directed the State government to develop guidelines, within four weeks, to protect the rights of LGBTQIA+ people in Tamil Nadu.

Case Title: W.P.No. 7284 of 2021