Sri Ganganagar (Rajasthan): In a significant ruling for the queer community in India, the Madras High Court on 8 June directed the Union and state governments to take steps to prohibit conversion therapy, a cruel, pseudoscientific practice that ranges from counselling and hormone injections to electro-convulsive therapy designed to “cure” or change the gender identity of LGBTQ+ people. 

Justice Anand Venkatesh of the Madras High Court who was hearing a writ petition filed by two queer women seeking protection from police harassment at the instance of their parents, also issued guidelines for the sensitisation of judiciary, police and educational institutions on queer issues. 

Justice Venkatesh sought interactions with psychologists and community members to overcome his own prejudices while adjudicating this case. His judgement was followed by a discussion on social media on the need for more inclusive judges who follow constitutional provisions meant to protect all citizens and enforce their fundamental rights. It also revived the debate on just how representative the legal profession really is.  

The question of queer (lesbian, gay, bisexual, transgender, and intersex people, among others) inclusion has been hanging fire since the controversy around the appointment of senior advocate Saurabh Kirpal as a judge of the Delhi High Court. In March 2021, the Supreme Court deferred its decision on his elevation for the fourth time since his name was first recommended in 2017. When, and if, he’s elevated to the Bench, Kirpal will be India’s first openly gay judge in the higher judiciary.

“The reason for the delay in my appointment is indirectly linked to my sexual orientation,” Kirpal told Article 14. Issues flagged regarding the foreign nationality of his partner and his marital status are also linked to his sexuality, he added. 

In September 2018, the Supreme Court ruled to read down a provision of section 377 of the Indian Penal Code that criminalised sex “against the order of nature”. Yet, Kirpal’s case may suggest how the legal institution and profession continues to disfavour the queer community based on their gender and sexual identity. 

Like the society it operates in, the legal institution follows a dominant heteronormative binary culture that believes there are only two genders, male and female, and an intimate relationship is valid when it operates between members of opposite genders. This understanding, with few exceptions -- Navtej Singh Johar and others vs Union of India, for instance, informs how laws have been written and interpreted. In the Navtej Johar judgment, the Supreme Court observed that “members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.”

Case For Representation

The issue of representation within the judiciary is evident when you look at the composition of judges in the Supreme Court and the high courts of the country.

Only 80 of 1,113 judges in the high courts and the Supreme Court were women as of December 2020. In the Supreme Court, Justice Indira Banerjee is at present the sole woman judge and Justice B.R. Gavai, the only scheduled caste judge. In the 71 years since it was founded, India’s apex court has only had one judge from the scheduled tribes (ST).

There is no policy of reservation, and “no caste or class-wise data relating to High Court judges is maintained”, minister of state for law and justice and corporate affairs, PP Chaudhary said in reply to an unstarred question in Parliament in 2018.

The question of queer representation is not isolated as many queer people belong to other communities, such as Scheduled Castes and Tribe.

The judiciary should reflect the diversity of the country, wrote Uday Shankar and Srichetha Chowdhury in their article, Representative Judiciary in India. “A diverse judiciary not only highlights the equal representative character of the justice delivery mechanism but also can lead to creative solutions to problems by utilizing the diverse human resources,” they noted. 

Representation can lead to a shift in perspective and how certain issues are addressed. The Transgender Women’s Grievance Cell in Manipur, was set up on 9 April this year to address the many problems trans women in the state face, including online harassment and trolling, said Santa Khurai who belongs to the indigenous Manipuri Nupi Maanbi community and is also the community coordinator of the grievance cell. She takes such cases to the Manipur State Commission for Women, which then refers it to the relevant authority, like the cybercrime unit.

In Assam, Swati Bidhan Baruah, who practices at the Gauhati High Court, has been focusing on issues that affect the transgender community in the state. She filed an intervention application in 2019 in the Supreme Court for some 2,000 members of the transgender community who had been left out of the National Register of Citizens (NRC). And has challenged the validity of the Transgender Persons (Protection of Rights) Act, 2019, among various other petitions for promoting the rights of transgender people.

Khurai believes that India needs more queer participation in law, especially as advocates, as they understand the language and complexity of issues faced by the community.

“Somebody [else] representing us is like they are speaking on our behalf. They have their own perspective, their own preconceived thoughts, how they see the queer peoples in their point of view [and] will try to reflect that,” she said.

Delhi-based advocate Mihir Samson who takes up cases of queer people seeking protection from families or enforcing their rights to live with their partners, said that the culture in courts tends to be quite heteronormative. “In my experience, what I can make out from doing cases for queer people is often judges have not met queer people or been exposed to the diversity of queer relationships, even of the forms queer bodies take,” he said.

The direct participation of community members can provide avenues to interact and correspond with law functionaries without fear of harassment and violence. According to a 2016 study on the Social Support System of Hijras and Other Trans Women Populations in 17 states by the Institute of Epidemiology: “The police officials and law enforcing authorities were reported to be the perpetrators of physical violence in most of the 17 states.”

Hurdles And Discriminatory Policies

Reimagining the legal regime is important for the inclusion of queer people, suggests the research Queering the Law authored by Akshat Agarwal, Diksha Sanyal and Namrata Mukherjee of the independent think-tank for legal research Vidhi Centre for Legal Policy. “The first step in this process involves carrying out an identification exercise wherein laws which continue to operate on the binary of male and female, and laws which are patently discriminatory towards LGBT+ persons are identified,” it said.

The binary of male and female also governs the dress code followed by advocates. The Bar Council of India rules under Section 49 (I) (gg) of the Advocates Act stipulates forms of dresses or robes for “advocates” and “lady advocates”.

The Union government through its controversial Transgender Persons (Protection of Rights) Act 2019 has made it difficult for transgender and non-binary people to get identity documentation that aligns with their gender identity. The recognition of their identity can only be approved by a district magistrate as per the provisions of the Act. A critique by Rachana Mudraboyina, Sammera Jagirdar, and Philip C. Philip says that it enforces the need for “a Sex Reassignment Surgery (SRS) in order to change their gender identity to their preferred gender of either male or female.”

Many queer people also do not have the resources to access and become a part of the close-knit circles in the legal arena.

Samson says that there are many informal circles where work is controlled. For queer persons challenging this dominant culture, it can be difficult to get work.

Many of these practices are evident in law schools. Elite moot court competitions and debates tend to be dominated by a certain background of people, who are also mostly upper caste and upper class, said Rohin Bhatt, who is graduating from the Gujarat National Law University (GNLU) this year. He has been a witness to the casual homophobia of his professors.

“I have heard professors refer to it as a mental variance, I have heard them saying this is a cause of AIDS,” shared Bhatt.

Last year, around 150 alumni members of the National Law University Jodhpur wrote a letter to the administration after a professor of sociology shared outright homophobic material with the sixth-semester students without context. They asked for disciplinary action against the faculty member and a review of the curriculum.

In an interview with The Leaflet, Kanmani Ray, a student of law at the Delhi University, mentioned: “Once you are seen in a gender non-conforming manner, then they start passing transphobic slurs. Across class differences, professions, whether it is students, teachers, and non-teaching staff, everyone stares or mocks.”

Add to this, hostels in colleges and universities are demarcated based on sex assigned at birth, as is the case at the GNLU, said Bhatt.

“When I go to court, cis [cis refers to people whose sense of personal identity and gender is the same as their birth sex] colleagues keep on staring at me, they keep on seeing me like that, like an alien,” said Baruah. She does not pay attention to it and focuses on her work to get good orders, she added.

But, “The discrimination comes from the colleagues, the discrimination comes from some of the designated seniors,” she said.

Policies like the grievance cell in Manipur provide much-needed support, but they sometimes remain a token statement. While Khurai had made a proposal for the long term, the state has enforced it only for a short term.

“There is no proper mechanism, there is no time frame, there is no budget for the proposal,” Khurai said.

In the inclusion process for transgender people, Khurai mentioned that only a few of them are taken and that too for the lowest positions. “It is like giving a piecemeal democracy just to shut our mouths,” she said.

Baruah, who is a member of the Transgender Welfare Board in Assam, said it is not functioning because the rules are not yet formulated.

Changes To Promote Inclusion

Efforts need to be made to counter all forms of discrimination. The Centre for Law Policy & Research drafted the Equality Bill (Prohibition of Discrimination) 2021 to envisage what that may look like. It addresses “discrimination experienced by people on the basis of caste, gender, religion, transgender and intersex identity, disability and other grounds.”

“The government has to have accountability, but actually, it's not there. For example, they can give us a horizontal reservation, but the reservation is not there. How can you implement an inclusive project without reservation?” questioned Khurai.

The landmark NALSA judgement, which recognised the constitutional rights of the third gender and provided for the right to self-identification of gender, also directed the Union and the state governments to “extend all kinds of reservation [to transgender persons] in cases of admission in educational institutions and for public appointments.”

As for law schools, Rohin said that they needed to hire more queer professors. “We need to start making sure that our syllabi in law schools are more inclusive. We have to ensure a strict anti-discrimination policy,” he said.

The sensitisation of judges, lawyers and other law and justice functionaries, as suggested by the recent Madras High Court judgement, is another step toward making the profession more inclusive and corresponds to how the legal institution needs to open up to different identities and create a non-discriminatory and non-judgemental space for everyone.

As for the issue of queer representation, Khurai expanded the idea further: “The word representation might be appropriate in 2014 or 2015, but now is the time to bring out leaders from the community.”

(Anmol Arora is a freelance writer and journalist from Rajasthan)

Previously on Article 14: 

The Higher Judiciary’s Gender Representation Problem