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Marriage equality proponents make case to India Supreme Court

Hearing to resume on Tuesday

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India Supreme Court (Photo by TK Kurikawa via Bigstock)

The Indian Supreme Court on April 18 started hearing a case on whether to extend marriage rights to same-sex couples in the country. 

Chief Justice Dhananjay Yeshwant Chandrachud is heading a panel of five judges to decide if the time is now to extend marriage rights to same-sex couples in the country where being LGBTQ is not a crime, but a same sex couple cannot marry. 

The marriage equality case on the first day of the hearing started with a heated exchange between Solicitor General Tushar Mehta, the country’s second highest legal official, and Chandrachud. The solicitor general argued which forum should be the only constitutional forum that could adjudicate the marriage equality law. Chandrachud wanted to hear the merits of the case first. Mehta insisted on hearing the issue first.

“I am in charge. I will decide. We will hear the petitioners first,” said Chandrachud.” “I will not allow anyone to dictate how proceedings will happen in this court.”

Judges felt a little shocked when Mehta said that if that is the case, let him then take time to see if the government should participate in the hearing. Justice Sanjay Kishan Kaul, one of the five judges who is currently hearing the validity of marriage equality in India, asked Mehta if he meant that the government would not participate in the hearing.

“None of us know what a farmer in south India thinks or a businessman thinks in North India,” said Mehta.

Chandrachud argued that the court would consider any request other than adjournment. After the heated argument in the court, senior lawyer Mukul Rohtagi opened the case for petitioners.

“We are persons of the same sex, and we have the same rights as like the heterosexual groups of the society this has been held so, and we need not reinvent the wheel and only stumbling block was Section 377, and our actions were subject to criminality, and now it is gone,” said Rohtagi, who represents the plaintiffs. “If our rights are identical and then we should enjoy full array of rights as under Articles 14, 15 and 21.”

Article 14 of the Indian constitution deals with equality before the law. 

The article says that the state shall not deny to any person equality before the law or the equal protection of the laws within Indian territory based on grounds of religion, race, caste, sex or place of birth. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 says no person shall be deprived of his life or personal liberty except according to a procedure established by law.

Rohtagi argued that the court should not wait for legislative action when fundamental rights are involved.

“Our lives are getting passed,” said Rohtagi. “We are getting old, and we need to be respected as in a marriage. Call them queer, call them gay. People look at them differently, and that is a violation of Article 21. A violation of right to life with dignity and also violation of Article 15 when there can be no discrimination based on caste, sex.”

While arguing, Rohtagi brought up the Respect for Marriage Act in the U.S. to support his argument about the validity of marriage equality. When the court was hearing the validity of the marriage equality case, Chandrachud made a note to restrict the discussion on the gender-neutral interpretation and evolve a civil union concept.

Menaka Guruswamy, a senior lawyer, while arguing for the plaintiffs, said she could not designate her life partner for life insurance and that people like her would keep coming to the court to redress individual grievances.

The Washington Blade last November reported that the Life Insurance Corporation of India, a public sector insurance company under Indiaā€™s Finance Ministry, had said that there is no legal bar for anyone to make their same sex partner a beneficiary in insurance policies in the name of that person.

Mehta during the middle of the hearing said that the question is not granting a socio-legal sanction. It has been clearly saying no one shall discriminate against the trans person, including unfair treatment and denial of employment, and here trans includes LGBTQ and intersex and not what is understood in the conventional sense. He also said that Hindus and Muslims will be affected, and that is why states should be heard.

Chandrachud said that the notion of biological man and biological woman is absolute. The chief justice also said that it is not a question of genitals because the Special Marriage Act’s definition of man and woman is not restricted to genitals.

The Special Marriage Act is an Indian marriage law enacted in 1954 that provides a legal framework for the marriage of people belonging to different religions or castes.

Mehta argued other laws will be redundant if the marriage equality law takes effect. He also requested the Supreme Court consult all states in India for their response as marriage laws are listed in the concurrent list of the constitution that states union governments and state governments can make laws on the subjects enlisted under the concurrent list. Marriage falls under the concurrent list of the Indian constitution.

Kapil Sibal, a senior lawyer for Jamiat Ulema-I-Hind, a leading Islamic scholar organization in India, told the Supreme Court he believes in the autonomy of an individual and that everyone needs to celebrate the union of two people. But Sibal also argued that if same-sex marriage is allowed who will take care of the child? Who will be the father? Who will be the mother? Sibal said that in international examples countries reform all other laws to accommodate these things.

“I am all for same sex marriage but not in this fashion,” said Sibal. “If this is not done as a whole then let it not be done at all.”

Rohatgi said before the bench that the LGBTQ and intersex community has a fundamental right to get married and have it registered like heterogenous brethren of the society.

“I was amazed to hear that we are not equals and we need to be equal to stigmatized lot, and that is why court should step in, and that is why even after 377 judgment we are here,” said Rohatgi. “That is why state is telling us here that we are not equals.”

While highlighting equality and justice for everyone, Chandrachud, said that justice is to each of us, liberty to each of us, equality to each of us, and fraternity for all of us.

On April 19, the second day of the hearing, the central government filed a fresh application and urged the judges to take into account the state governments’ views since “marriage” is on the concurrent list. The central government in its application said that the Department of Legal Affairs has also written to all chief secretaries of state to submit their views on same-sex marriage in case notice is not issued to them. The central government also said that states should submit their views in 10 days so that center can present the case before the Supreme Court.

Rohatgi said that the LGBTQ and intersex community suffers under the majority. He said it is not the law, but a mindset that is bothering LGBTQ and intersex people in their daily life. Rohatgi also said that society accepts what the law is and highlighted to the judges that the LGBTQ and intersex community has no representation in the Parliament and that’s why the community has approached the court. Rohatgi also argued that constitutional morality would become a habit for the people when the same is upheld by the Supreme Court.

“State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control,” said Chandrachud. “When you see it is innate characteristics, then it counter urban elitist concept. Urban perhaps because more people are coming out of the closet. Government does not have any data also to show that same sex marriage is an urban elitist concept.”

On the third day of hearing, senior lawyer K.V. Vishwanathan appeared for the plaintiffs and argued that if one can be a son, daughter, sister, father-in-law, uncle, aunt and partner, then what holds the court to give marital status to the same-sex couples.

“It is only the sexual orientation which is beyond my control and it is not in conformity with heterosexual norms and thus will not accord you protection like the normal married couples,” said Vishwanathan. “Procreation is a valid defense to negate the right to marriage.”

Vishwanathan also argued that marriage is the coming together of two souls and to be told that it is to be looked at from procreation purpose is fallacious.

“What happens when there is a heterosexual couple when there is domestic violence. What kind of impact on children? So much for being heterosexual,” noted Chandrachud. “What about father coming back home drunk thrashing up the mother and asking money for alcohol? there is nothing absolute at the cost of being trolled. Answers to what we say in court is in trolls and not in court.”

The Supreme Court of the land also noted that the government does not have the data to prove that same-sex marriage is an urban elitist concept. 

“People come out of closet,” noted the Supreme Court.

The central government, in its application, had highlighted that the concept of marriage equality is an ‘urban elitist’ notion.

The hearing on LGBTQ and intersex marriage rights has attracted reactions from across the nation. 

Ranvir Shorey, a Bollywood actor, reacted to Supreme Court’s hearing and said that there is no fixed way to be a man or a woman.

“Better to think of it in terms of polarity, or scale. Those who fuss over binaries ought to remember there is an infinity between the two too,” said Shorey in a tweet. “Jurisprudence is derived from human understanding of natureā€™s principles. Laws exist so a society can function as a collective, while trying to preserve the rights of the individual. The more our laws move away from nature, the more at conflict we will be with ourselves.”

The Vishwa Hindu Parishad has opposed the marriage equality rights petition and said the “haste” with which the Supreme Court is hearing the petitions for legal recognition of same-sex marriage is not appropriate. The organization also said that the court should have asked for the opinion of religious leaders and experts from diverse fields.

The Bar Council of India, a statutory body that regulates legal practices and education in the country, on Sunday held a joint meeting with all the state Bar Councils in the country and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court to leave the issue of marriage equality for legislative consideration.

“India is one of the most socio-religiously diverse countries in the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has a far-reaching impact on our socio-cultural and religious beliefs should necessarily come through the legislative process only, the meeting unanimously opined. Any decision by the Apex Court in such a sensitive matter may prove very harmful for the future generation of our country.” the release stated.

The Bar Council of India also said that more than 99.9 percent of people in the country are opposed to the idea of marriage equality. The Supreme Court will start hearing the government’s arguments on Tuesday.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion

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India

India broadcast authority asks TV station to delete video deemed offensive to LGBTQ community

Activist Indrajeet Ghorpad filed complaint

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(YouTube screenshot)

India’s News Broadcasting and Digital Standards Authority on Feb. 28 asked a television stationĀ to delete a video that contained objectionable remarks against the LGBTQ community.Ā 

TheĀ India TodayĀ video report’s headline was “Nudity sparks outrage at USA Pride parades: How India’s LGBTQ+ lead responsibly.”Ā The clip reportedly contained factual inaccuracies, spread fear and demonized the LGBTQ community.

NBDSA has asked India Today to remove all hyperlinks to the video from every one of its platforms.Ā The regulatory agency has issuedĀ guidelinesĀ for broadcasters about the LGBTQ community and asked to circulate it among all its editors and members. The broadcasting authority announced the directives after hearing a complaint thatĀ Indrajeet Ghorpad, an LGBTQ rights activist, filed.

Ghorpad said the program did not comply with the principles of “accuracy, neutrality, objectivity, good taste, decency and others.”Ā Ghorpad also said it portrayed Pride parades in the U.S. in a negative light and unfavorably compared them with India’s LGBTQ community.

The NBDSA had received several complaints on the community’s portrayal. It issued five guidelines to sensitize and bring objectivity when covering the LGBTQ community in India, apart from the existing code of ethics and broadcasting standards.

The NBDSA on March 1 issued guidelines on how to report on issues faced by the LGBTQ community with accuracy, objectivity and sensitivity, and further said that non-sensitive and inaccurate reporting regarding the community has serious social repercussions.

The guidelines say “reporting should not sensationalize or create panic, distress or undue fear among viewers.” They also state broadcasters must avoid broadcasting any news that sensationalizes the issues related to the LGBTQ community, perpetuates stereotypes or creates fear in respect of the community.

The recommendations say broadcasters should refrain from using any expression or slur that may be construed as “hate speech” against the LGBTQ community. They also note broadcasters while covering any issue concerning the LGBTQ community must ensure their reporting does not promote homophobia or transphobia, or negative stereotypes about the LGBTQ community.

The guidelines say broadcasters must respect the privacy of LGBTQ people and not disclose personal information, including gender identity or sexual orientation of a person without their consent. The guidelines further state broadcasters should use inclusive and gender-neutral language, and respect the individuals’ preferred pronouns and names. Broadcasters, according to the guidelines, must strive for diverse representation in their coverage of the LGBTQ community and ensure voices from different segments of the LGBTQ community are provided a platform to express their views.

The incident is not a first Indian media. 

TV9 Telugu, a Telugu language television station, in 2011 did a sting operation on LGBTQ members of a gay dating site, over which the news channel faced the community’s wrath in Mumbai, India’s financial capital. The channel at that time broadcasted the operation all over the country and released profiles and pictures of the site’s users. 

The LGBTQ community protested outside the channel’s office in Mumbai by wearing condoms on their middle fingers.

NBDSA in April 2022 sanctioned TV9 Telugu,Ā andĀ Sakshi TV, another Telugu-language 24-hour news channel, for sensationalizing a police raid in Hyderabad after neighbors complained of loud noise. The two channels broadcasted visuals of the party and individuals attending it, violating privacy and highlighting their sexual orientation without their consent.

Negha Shahin, a transgender Indian actress, told the Washington Blade that social media today has become an unsafe, toxic and hate-spreading tool with regards to trans and queer people.

“Mocking LGBTQIA+ folks is becoming a new trend. Content creators are creating content against queer folks, dangerous things are getting attention and triggering homophobia and transphobia,” said Shahin. “Meanwhile TV media like India Today is playing major part and considered as responsible news network. If they did not follow the guidelines then how will the society will follow? Journalists, politicians, actors, police, lawyers whoever addressing issues related to (the) minorityĀ communityĀ in India, should mind the glossary. They cannot be transphobic or homophobic. They cannot oppress, misgender, following stereotypes and creating false statement or news in the media.”

Shahin said news channels in India that do not following the guidelines are showing their hatred against the LGBTQ community. She said these incidents remind everyone that uprooting stereotypes and homophobia from society in every form is important.

Harish Iyer, a prominent equal rights activist in India, told the Blade that accepting different sexuality is not a Western or Indian concept, but rather a scientific one that cuts across geographies and sex.

“If channels are broadcasting this, they are not doing against gender or sexuality but against science and humanity,” said Iyer. “More than expunging and deleting the video, the corrective actions like watchdogs will ensure corrective actions are required. The guidelines are in sync with what the Supreme Court of India and the Constitution of India stand for. With a name like India Today, they stand against the very tenet of Indianism which is enshrined in the constitution that provides equal opportunity and equal protection of the law against any discrimination regardless of gender and sexuality, so I think, India Today, should not have the India in their name because that goes against the tenet of Indian constitution and the Supreme Court’s verdict as well. There should be something mandatory for the news channels, and not just the guidelines.”

India Today did not respond to the Blade’s multiple requests for comment.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

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India court allows transgender woman to participate in Armed Forces’ youth wing

Feb. 29 ruling in Kerala state upheld other judge’s decision

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(Photo by Rahul Sapra via Bigstock)

A Kerala High Court judge on Feb. 29 upheld another magistrate’s ruling that allowed a transgender woman to participate in the Indian Armed Forces’ youth wing as a female.

The High Court set aside a part of the order that directed the central government to amend the NCC Act to allow trans people to enroll based on their gender identity.

“When the petitioner has been given the identity of a female, she is certainly entitled to be enrolled in the NCC under section 6(2) of the NCC Act,” said Justice Anu Sivaraman. “In the light of the aforesaid provisions of the Transgenders Act and also in the light of the dictum laid down by the Apex Court in National Legal Service Authority (NALSA).” 

The judge said that the court cannot direct the government to amend the law, but expressed hope that the Indian government would amend the NCC Act to expressly allow the entry of trans candidates to the NCC.

The Kerala High Court said that the fact that the National Cadet Corps Act does not recognize the third gender cannot be a reasonable justification to deny entry to a trans person.

Hina Haneefa had filed a petition with the High Court that challenged a section of the NCC Act that only allowed males and females under Section 6 of the law to enroll in the Cadet Corps.

“In view of the specific provisions of the 2019 act, a transgender person has the right to be recognized not only as a transgender but also a right to self-perceived gender, i.e. the female gender,” said Sivaraman. “The denial of enrollment is unsustainable. The petitioner will be entitled to participate in the selection process on the basis of her application. If she is successful, the petitioner will be enrolled in the NCC Unit.”

Haneefa is a trans woman who applied to enroll in the NCC after undergoing gender-affirming procedures and getting her identity card. The NCC denied her application. 

Parliament in 2019 passed Transgender Persons (Protection of Rights) Act of 2019, which extended rights to trans people.  

While talking with the Washington Blade, Kalki Subramaniam, an Indian trans activist, queer artist, entrepreneur and actor, said trans people in the country have to fight for the inclusion of trans people in all sectors.

“We have to go to the court, we have to fight with the system, then the high court directs the state and the central government to take inclusive steps. Again and again, repetitive,” said Subramaniam. “Why should trans people should struggle for everything? I am sure, the central government is working towards equality and inclusion because they recently published Equal Opportunity Policy for Transgender Persons. The government will consider this to include trans people in NCC. What I am looking for is the inclusion of transgender people in the Indian military. That could be a long term plan, but it is possible and ultimately rests in the government’s hands.”

Subramaniam expressed her firm belief that all Indian citizens, including members of the trans community, deserve the opportunity to serve the country. She emphasized the potential of trans individuals to contribute to national defense and public service, highlighting both the military and civil services as avenues for their inclusion. Subramaniam voiced her confidence in the central government of India’s willingness to address this issue and expressed hope for future action.

Souvik Saha, an LGBTQ activist and founder of People for Change, one of India’s premier advocacy groups, said he supports the Kerala High Court ruling.

“This decision is a significant step towards inclusivity and recognizing the rights of transgender individuals to participate fully in all aspects of society,” said Saha. “The NCC Act currently only allows for the enrollment of male and female cadets, which is discriminatory against transgender individuals and reinforces harmful binary gender norms. By ordering the central government to amend the NCC Act to accommodate transgender individuals, the Kerala High Court is acknowledging the need for legal protections and equal opportunities for all genders.”

Saha said the decision will set a positive precedent for other institutions and organizations to follow suit in recognizing and accommodating trans people. Souvik added it sends a clear message that discrimination based on gender identity is not acceptable and that trans people have the right to equal opportunities and access to resources.

“Moreover, allowing transgender individuals to enroll in the NCC provides them with valuable opportunities for personal development, leadership training, and civic engagement,” he said. “By participating in programs like the NCC, transgender individuals can gain skill, confidence, and a sense of belonging, which are essential for their overall well-being and success.”

“Overall, the Kerala High Court’s decision to allow a transgender woman to enroll in the NCC is a significant victory for LGBTQ rights and a crucial step towards creating a more inclusive and equitable society,” he added. “It is imperative that the central government swiftly amends the NCC Act to ensure that transgender individuals are not excluded or discriminated against based on their gender identity.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

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Indian government announces equal opportunity policy for transgender people

Privacy among regulation’s key tenants

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(Photo by Rahul Sapra via Bigstock)

The Indian government has announced a first of its kind equal opportunity policy for transgender people.

The policy will prohibit the disclosure of a trans person’s gender identity without their consent as the Transgender Persons (Protection of Rights) Rules 2020 requires. The Social Justice and Empowerment Ministry says the Equal Opportunity Policy for Transgender Persons will encourage the fair treatment of trans people and create workplaces free from discrimination, harassment and bias. 

The policy seeks to ensure a trans employee’s the right to choose a pronoun, gender and a chosen name ā€” every business, non-governmental organization and other employers in India will be required address the trans individual with the chosen names in all workplace communications. The Indian government, led by Prime Minister Narendra Modi, has circulated the notice to all the states and chief secretaries and asked them to ensure the swift implementation of the policy.

The notified policy highlights the importance of maintaining confidentiality of gender identity. 

“Information related to gender identity will be treated with utmost confidentiality,” it reads. “Employees are expected to respect the privacy of their colleagues and refrain from disclosing any such information without explicit consent.”

The policy also states a business’ HR department will launch an inquiry that could lead to sanctions if the policy is violated. The policy also prohibits bullying against trans people in the workplace.

“Harassment or bullying based on gender identity is strictly prohibited,” it reads. “Any reported incident will be promptly and thoroughly investigated, and appropriate corrective actions will be taken.”

Every organization will have a grievance redress system in order to address policy violations. Workplaces will also be required to have infrastructure facilities for trans employees ā€” unisex bathrooms and amenities that include hygiene products, for example ā€” for trans people to effectively discharge their duties.

Sudhanshu Latad, an advocacy manager atĀ Humsafar Trust, an organization that promotes LGBTQ rights in India, told the Washington Blade he supports the initiative, while adding a person’s identity does play a role in their experiences.

“The care and support, let’s say in this case a trans person requires will be very different than support a cis woman will require,” said Latad. “They need different short of bases to be covered to be able to perform to the same expectations that a cis man like me would require to perform in a situation or a role.” 

“It is important to give everyone an equitable platform, this is a welcome step because it discloses that the government is keen on working with various communities,” he added. “This formal acknowledgement or expression of interest in including gender minorities at workplace by the central government is a welcome move.”

Latad nevertheless told the Blade the policy alone “would not be enough” to address discrimination based on gender identity.

“There needs to be enough focus dissemination of this policy within the existing workforce,” he said. “Until and unless a senior manager from the government understands the use and need of pronouns in the communities … the implementation of this amazing policy will not happen on the ground.”

Latad told the Blade that sensitization, roundtables and equal dialogue will help unlearn and then learn which is the way forward for providing equal rights to the community. He said the use of chosen pronouns does seem like a small effort, but it does take a lot of effort and it is important. Latad added everyone, not just employers, needs to be taught equality.

Doctor Yoga S. Nambiar, founder and director of Global Rights Foundation and the first trans person in India to hold a PhD in mental health, said the new policy is good. They noted the government has announced many policies since the Supreme Court issued its National Legal Services Authority (NALSA) vs. the Union of India ruling, but they’re only on paper.

“Till the time the government does not take the initiative to take care of the policies, nothing is going to work,” said Yoga. “Government promised housing for trans people, government promised transgender cell in police stations, nothing has came in force as of now. So, if things workout, it’s good, if not, we are struggling anyways. We are fighting for our rights.”

The Supreme Court in the NALSA case in 2014 ruled in favor of the trans community, saying state and central governments must fully recognize trans people under the law in order for them to receive an education and health care without discrimination. The Supreme Court also said trans people will be considered a “third gender.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

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