S Sushma v. Commissioner of Police

'S Sushma & Anr. versus Commissioner of Police & Ors. (2021)' is a landmark decision of the Madras High Court that prohibited practice of "conversion therapy" by medical professionals in India. The court directed comprehensive measures to sensitize the society and various branches of the Union and State governments to remove prejudices against the queer community.

Background
The petitioners, a lesbian couple whose parents opposed their relationship, sought refuge in Chennai after leaving their respective homes in Madurai. With the assistance of Non-Governmental Organization (NGO) and members of the queer community, they were able to secure accommodation and protection, while also searching for employment to sustain themselves financially. In the meantime, their parents separately filed missing person complaints with the local police, resulting in the registration of two First Information Reports (FIRs). Due to police interrogation conducted at their homes and fearing for their safety, the couple approached the court seeking a directive to the police to refrain from harassing them and to ensure protection against any threats or dangers posed by their parents.

Proceedings
The court mandated that both the petitioners and their parents undergo counseling with psychologist Ms. Vidya Dinakaran.

Following the initial counseling session, the psychologist submitted a report on 28 April 2021. The report indicated that the petitioners possessed a clear understanding of their relationship and exhibited no doubts or confusion. It further stated that the petitioners expressed their desire to pursue education, work, and maintain communication with their parents. However, they expressed concerns that their parents might currently pressure them to separate, but they were willing to wait for their parents to comprehend their relationship.

Regarding the parents, the psychologist's report revealed their primary concerns about societal stigma attached to the relationship and the potential consequences for their family. The report also highlighted the parents' anxieties about their daughters' safety and security. According to the report, the parents preferred their daughters to live celibate lives, viewing it as a more dignified option compared to being in a same-sex partnership. Additionally, the parents expressed confusion regarding matters such as lineage, adoption, and other typical aspects associated with heterosexual relationships, and how those would apply in the context of a same-sex relationship.

The petitioners' counsel appealed to the court to establish guidelines for cases of a similar nature. In an unprecedented step, in response to this request, Justice N Anand Venkatesh made the decision to undergo psycho-education before delivering a judgment on same-sex relationships. Justice approached psychologist Ms Vidya Dinakaran, seeking an appointment to gain a better understanding of these relationships and facilitate his personal growth in this regard.

Law Enforcement Agencies
NGO workers providing assistance to the queer community reported instances where police officers at different police stations refused to offer protection and, in some cases, even harassed both the queer individuals and the NGO workers supporting them. They highlighted that these actions occurred despite the interim order issued by the court on 7 June 2021. One excuse given by the police authorities for disregarding these individuals is the absence of an internal circular or notification issued by higher authorities within the Department.

Complaints regarding Missing Queer Adults
On 7 June 2021, the court directed the police that in cases where a complaint is received regarding a missing person, and subsequent investigation reveals that it involves consenting adults from the queer community, the police should promptly close the complaint after obtaining their statements, ensuring that no harassment is inflicted upon them.

Segregation in Prisons
On 7 June 2021, the court directed prison authorities to ensure the segregation of transgender and gender nonconforming prisoners from cis-men prisoners to prevent instances of sexual assault.

Police Conduct Rules
On 31 August 2021, the court directed the State Government of Tamil Nadu to introduce a specific clause in the Police Conduct Rules. This clause specifically targets instances of harassment committed by police officers against individuals from the queer community, as well as activists and NGO workers supporting them. The court stressed that such behavior should be considered misconduct, and officials found responsible for such misconduct must face appropriate punishment.

Awareness and Sensitization
On 7 June 2021, the court issued directives to the Police and Prison authorities regarding the protection and prevention of offences against the queer community. The court instructed the concerned authorities to regularly organize programs focused on safeguarding and preventing offences targeting the queer community. These programs should include sensitization sessions on the legal rights of the queer community, with an emphasis on raising awareness among police personnel about the offences and penalties defined in the Transgender Persons (Protection of Rights) Act of 2019, as well as compliance with the Transgender Persons (Protection of Rights) Rules of 2020. The court recommended that outreach programs be conducted by NGOs with community support, prioritizing the identification of challenges faced by the community in their interactions with law enforcement agencies and providing effective assistance and guidance.

Interim Directions
On 7 June 2021, the court directed the concerned authorities to conduct awareness programs for Judicial Officers at all levels in coordination with the enlisted NGOs and community support and to provide recommendations to ensure non-discrimination of persons belonging to the queer community. On 4 October 2021, the court issued a directive to the Tamil Nadu State Judicial Academy, instructing the academy to organize sensitization programs for judges within the District Judiciary and the Madras High Court.

Support Networks and NGOs
On 7 June 2021, the court directed the Ministry of Social Justice & Empowerment to compile a list of NGOs, including community-based groups, with expertise in addressing the challenges faced by the queer community. This list, along with their addresses, contact details, and services provided, should be published on the official website and periodically updated. The Ministry is required to publish the list within eight weeks of receiving the order. The designated NGOs are responsible for maintaining confidential records of individuals seeking assistance and must provide the Ministry with aggregate data bi-annually.

Additionally, the court recommended that individuals belonging to the queer community who encounter issues should seek assistance from any of the listed NGOs to protect their rights. These organizations should employ appropriate methods, such as counseling, financial support, legal aid through collaboration with the District Legal Services Authority, or cooperation with law enforcement agencies in cases of offenses committed against queer individuals.

Short-stay and Shelter Homes
On 7 June 2021, the court issued a directive instructing Garima Greh to provide shelter and housing to any member of the queer community in need. Garima Greh, a shelter home specifically designed for transgender people, offers essential amenities like shelter, food, medical care, and recreational facilities and focuses on capacity building and skill development to empower transgender individuals.

Physical and Mental Health
The petitioners' counsel presented a report by Dr. Trinetra Haldar Gummaraju, which highlights the potential benefits of psychological counseling for individuals and families dealing with queer identity acceptance. However, the report also reveals a concerning aspect, indicating that both psychiatry and psychology have played a role in perpetuating queerphobia. Medical textbooks, unfortunately, contain significant amounts of transphobic and homophobic content, reflecting outdated beliefs. Despite the revision of the medical curriculum by the Medical Council of India in 2018, it still falls short in modernizing and continues to pathologize queer identities. Specifically, the current curriculum for undergraduate students studying Forensic Medicine in their MBBS labels activities such as sodomy, lesbianism, oral sex, and transvestism (cross-dressing) as sexual offenses and perversions.

Furthermore, the petitioners' counsel presented a prescription given by a psychiatrist to an individual who identifies as gay. The doctor prescribed two medicines, including anti-depressants and erectile dysfunction drugs. Additionally, the doctor recommended the person to a psychotherapist for Cognitive Behavioral Therapy to address their concerns related to same-sex behavior.

Following the Public Advisory by the National Medical Commission on 9 June 2023, which urged medical textbook authors to rectify content about virginity and the queer community and advised Medical Education Institutions to align with credible literature, government guidelines, and court rulings before endorsing textbooks, the counsel for the petitioners presented a table revealing offensive and unscientific terms related to the queer community within the CBME-Curriculum's existing competencies. The petitioners' counsel contended that if the National Medical Commission revises the mentioned competencies outlined in their handbook, it would consequently compel medical textbook authors to adjust their publications correspondingly. Furthermore, the petitioners' counsel submitted recommendations for the alteration of these competencies. These suggestions were formulated after consulting a group of doctors and professionals within the field of medicine.

Medical Education
On 31 August 2021, the court acknowledged that queerphobia was being perpetuated as acceptable in the education of future doctors, including potential psychiatrists and physicians who might interact with individuals from the queer community. In response, the court directed the National Medical Commission and Indian Psychiatric Society to submit a report detailing their proposed measures for addressing this concern through essential revisions in the curriculum.

On 6 December 2021, the court has issued a directive to the National Medical Commission, urging them to seriously contemplate revising the current competencies within the CBME-Curriculum, which presently incorporates offensive and unscientific terminology concerning the queer community. The basis for this revision stems from the recommendations provided by the petitioners' counsel, which were developed after extensive consultation with a panel of medical doctors and professionals specializing in the field of medicine. The objective of this directive is to compel medical textbook authors to appropriately modify their publications.

Conversion Therapy
On 7 June 2021, the court declared that any attempts to medically "cure" or change the sexual orientation of queer people to heterosexual or the gender identity of transgender people to cisgender should be prohibited. The court directed the National Medical Commission to take action against professionals involved in any form or method of "conversion therapy," including the withdrawal of their license to practice.

Awareness and Sensitization
On 7 June 2021, the court directed the Union and State governments to conduct mental health camps and awareness programs to enhance understanding of gender, sexuality, sexual orientation, and promote acceptance of diversity.

Education Policies and Resources
On 7 June 2021, the court directed the educational institutes to make necessary amendment to policies and resources to include queer students in all spheres of school and college life.

Awareness and Sensitization
On 7 June 2021, the court directed educational institutes to use the Parent Teachers Association (PTA) meetings to sensitize parents on issues of queer students to ensure supportive families.

Action Plan to Sensitize School Teachers
On 6 December 2021,the Court observed that the National Council of Educational Research and Training (NCERT) had developed an Action Plan to sensitize school teachers regarding gender non-conforming children. The Court recognized the pivotal role of teachers as crucial intermediaries between parents and students. It emphasized that this sensitization should be initiated both within schools and homes, as the backing of families is indispensable for the support of these children. The NCERT's comprehensive educational material, meticulously curated through committee research, was designed to provide guidance to teachers on this matter. Regrettably, the material was unexpectedly removed from the NCERT's official website shortly after publication, allegedly due to external pressures.

The Court expressed its puzzlement over the expeditious removal of the material. It posited that grievances should ideally be addressed through proper consultation, rather than resorting to coercive measures against a state-run institution. This incident underscores the continued necessity for ongoing efforts to reform the education system. The Court expressed its optimism that the NCERT comprehends the concerns raised and anticipates a response based on the committee's report. The Court emphasized that dismissing the findings of an expert body solely due to opposition undermines democratic principles, and policy shifts driven by external pressures jeopardize the foundational fabric of the nation.The Court concluded by stating its expectation of receiving a status update from the NCERT on this matter during the next hearing.

Language
The petitioners' counsel highlighted incidents of media misreporting and insensitivity in their coverage of the queer community. Examples included the publication of news articles describing incidents such as:

Media Responsibility and Sensitivity
On 31 August 2021, the court observed that media's thoughtless commentary, coupled with dramatic embellishments and music, when "reporting" – though a familiar occurrence in our society – should not become a norm. This coverage not only reflects existing harmful stigmatization of queer community, but also perpetuates it. Phrases like "a woman who became a man" and "a man who became a woman," which are stigmatizing, inaccurate, and unscientific, rooted in queerphobia, must not be tolerated or entertained any further. It's imperative for journalists to adopt sensitive and inclusive language along the gender spectrum.

Given the court's consistent stance to promote self-restraint in matters concerning the press and media, it refrained from issuing directives that could inadvertently encroach upon press freedom. Nevertheless, the court noted the press's substantial responsibility in fostering awareness by delicately reporting on cases. The choice of words must never demean individuals from the queer community. The court has entrusted the press with this responsibility, expecting heightened sensitivity in case reporting, while also ensuring the protection of individuals' identities featured in news articles.

Opinion of the Court
On 7 June 2021, the court issued a directive to the Union Government of India and State Government of Tamil Nadu, instructing them to collaborate with other Ministries and Departments in formulating measures and policies aimed at eradicating prejudices against the queer community and facilitating their integration into mainstream society. The court recommended comprehensive actions to sensitize society, as well as the different branches of the Union and State governments, including the police and judiciary, with the objective of eliminating biases against the queer community. The court further proposed revising school and university curricula to ensure that students gain a better understanding of the queer community.

"Ignorance is no justification for normalizing any form of discrimination."

Justice N Anand Venkatesh emphasized the positive impact of psycho-educative counseling in addressing his personal ignorance and prejudices concerning queer issues. In the judgment, he explicitly stated that the responsibility for change, the burden of unlearning stigma, and the task of understanding the lived experiences of the queer community rests with society rather than solely with queer individuals.

"It was I [us], who has to set off on a journey of understanding them and accepting them and shed our notions, and not they who have to turn themselves inside out to suit our notions of social morality and tradition."

The court acknowledged the lack of a specific law safeguarding the rights of queer individuals and recognized that it is the duty of the constitutional courts to address this gap by providing appropriate directives. These directions are essential to ensure the protection of queer couples from harassment stemming from stigma and prejudices.

"Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety."On 6 December 2021, following sudden removal of the Action Plan devised by the National Council of Educational Research and Training (NCERT) for the purpose of sensitizing school teachers to matters concerning gender non-conforming children, the court underscored the importance of expert opinions and research. The court staunchly advocated democratic principles, highlighting the pivotal role played by open discussions and well-informed consultations in the formulation of policies.The court cautioned against succumbing to pressure tactics that could erode the foundation of sound policy-making. It accentuated the potential harm that such practices could inflict upon the nation's integrity. "The report of an expert body after a detailed study cannot be dumped just because a handful of persons are opposed to this very idea of recognising persons belonging to the [Queer] Community. In a democratic country like India, discussions and consultations must form the basis for any policy and pressure tactics cannot be allowed to shut down any policy, and if such an attitude is encouraged, it poses a greater danger to the fabric of this nation."

Police Conduct Rules
On 29 January 2022, the State Government of Tamil Nadu introduced an amendment to the Tamil Nadu Subordinate Police Officers' Conduct Rules of 1964 by incorporating Rule 24-C.

"No police officer shall indulge in any act of harassment of any person belonging to the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual) + Community and the persons working for the welfare of the said community."

The revised conduct rules were officially published in the gazette on 17 February 2022. The accompanying order clarifies that "harassment," as referred to in this rule, excludes the right of the police to conduct inquiries in accordance with established legal procedures. This landmark amendment makes Tamil Nadu the first state in India to hold law enforcement accountable for harassing the queer community.

Medical Education
On 24 September 2021, the Undergraduate Medical Education Board of the National Medical Commission established an Expert Committee to tackle matters concerning the queer community within the MBBS course curriculum, as well as the subject of Virginity Tests in Forensic Medicine.

On 13 October 2021, National Medical Commission issued an advisory acknowledging that several medical education textbooks, primarily in Forensic Medicine, Toxicology, and Psychiatry, contain unscientific information about virginity and also feature derogatory remarks against the queer community. Subsequently, the National Medical Commission urged all Medical Education Institutions to revise their teaching methodologies for both undergraduate and postgraduate students, ensuring that when addressing gender-related topics, clinical history, symptoms, and examination findings are presented devoid of any potential for derogatory, discriminatory, or offensive implications towards the queer community. Moreover, authors of medical textbooks have been directed to amend content related to virginity and the queer community, ensuring alignment with scientifically credible literature, government guidelines, and court rulings. Additionally, Medical Education Institutions are advised against endorsing books as recommended textbooks if they contain unscientific, derogatory, or discriminatory content concerning virginity and the queer community.

Conversion Therapy
On 2 September 2022, National Medical Commission declared provision of conversion therapy as an act of professional misconduct. It empowered the State Medical Councils to take disciplinary action against medical professionals if they provide "conversion therapy".

Awareness and Sensitization
On 6 September 2021, the National Council of Educational Research and Training (NCERT) released a teacher-training manual titled "Inclusion of Transgender Children in School Education: Concerns and Roadmap," delving into various concepts, including gender identity and fluidity, to foster an inclusive classroom environment where children from diverse gender backgrounds find both a place and acceptance.

After the release of the manual, an article about it was published by the Firstpost, leading to a mixed response of both appreciation and criticism on Twitter. In response to critique voiced on social media and a complaint lodged with the National Commission for Protection of Child Rights (NCPCR), the NCPCR sought clarification from the NCERT and urged them to take action to address perceived anomalies in the manual. However, the specific nature of these alleged "anomalies" remains uncertain, and prior to verifying the legitimacy of the complainant's concerns, the NCERT decided to remove the manual from its website due to the public outcry.

Media Responsibility and Sensitivity
On 4 October 2021, the Additional Advocate General for State Government of Tamil Nadu highlighted that a prominent newspaper has taken progressive steps regarding media's role. They organized a seminar, resulting in a commitment to cultivate a queer-friendly environment. Efforts are underway to create style guide for language usage when discussing or reporting on queer community. This initiative extends to training editors and reporters in handling queer stories. The finalized style guide is anticipated to benefit all involved in news reporting, ensuring respectful treatment of queer community without derogatory language.

On 9 June 2023, the South Indian news platform "The News Minute" and the independent publishing house "Queer Chennai Chronicles" collaboratively launched a style guide, endorsed by the Google News Initiative, titled "Inqlusive Newsrooms LGBTQIA+ Media Reference Guide." This comprehensive style guide is currently undergoing translation into Tamil, Kannada, Telugu, Hindi, and Marathi languages.

XYZ v. State of Maharashtra
A division bench of the Bombay High Court, consisting of Justices Revati Mohite-Dere and Gauri Godse, presided over a plea filed by a lesbian couple.The couple sought directives from the authorities to secure suitable protection for one of them, while also requesting that no coercive measures be taken against the petitioner. During the proceedings, the bench referred to the guidelines established in the case of S Sushma v. Commissioner of Police, aimed at protecting same-sex couples from police harassment, and the directives within the same case for the State Government of Tamil Nadu to implement sensitization programs across different departments in the State.