The latest glossary (henceforth official glossary) is a marked improvement over the previous version drafted by the government. It largely adopts the community-preferred glossary  developed by Queer Chennai Chronicles, Orinam and The News Minute, building on the work done by QCC-TNM media reference guide and Orinam’s terminology, and included by  Justice Anand Venkatesh in one of the interim orders of the Sushma (2021) case.

A key difference is in the official glossary’s replacement of ‘Thirunar’, an umbrella term for transgender persons, with ‘maruviya paalinar/ maariya paalinar’. We invite reader comments and feedback on other changes: please reach us at orinam.net@gmail.com.

The following statement was released at the Press Meet held on Dec 3, 2019, at the Press Club, Chepauk, Chennai. The press meet was held concurrently with a postcard writing campaign addressed to the President of India, asking him not to give his assent to the Bill in its current form.

Click here for Tamil version of the Press Release.

Dec 3, 2019, Chennai:

We transgender community members, allies, and members of the Tamil Nadu Rainbow Coalition, a network of LGBTIQA+ groups, collectives and individuals in the state, express our profound dismay at the passing of the Transgender Rights Bill in the Rajya Sabha. The Bill, that was passed by the Rajya Sabha on Nov 26, 2019, is in gross violation of the Supreme Court of India’s NALSA verdict of 2014, and Articles of the constitution such as Article 21 (Right to Life and Liberty), Article 19(1a) (Right to freedom of speech and expression)

1. The primary violation of NALSA seen in the Transgender Bill 2019 is the principle of self-determination. Although the Transgender Bill 2019 does away with the Screening Committee, granting of transgender identity is based on approval of the District Magistrate who has discretionary powers to deny the application. Additionally, for a transgender person to identify as male or female, proof of surgery is required, which contradicts NALSA.

2. We take strong exception to the provision that the primary caregiver for transgender persons – even adults – should be the biological family, and the only alternative is government-provided rehabilitation facilities. There are two issues with this. One, the biological family is often the primary site of violence against transgender children, and trust in the biological family as primary caregiver is misplaced. Second, the Bill completely ignores alternative family structures within which transgender persons have the constitutional right to stay. An example is the traditional jamaat system that has provided shelter and support to transgender women for centuries. Other examples could be intimate partners, friends, etc.

3. The Bill does not contain any mention of reservations in education and employment for transgender persons. This is also in gross violation of the NALSA verdict.

4. Punishment for assault and other egregious offences against transgender persons is limited to a maximum of two years. This treats transgender persons as inferior citizens in comparison to cis women and children, crimes against whom merit more severe punishement. Additionally, clear operational definitions of stigma and discrimination are needed, to ensure that transgender persons are protected against these, and action is taken against offenders. We, additionally, needed an Act for Prevention of Atrocities against Transgender and Intersex Persons, on the lines of the SC/ST Atrocities Act.

5. The Bill confuses transgender and intersex. The Hindi translation of the Bill uses the term “Ubhayalingi” which means Intersex. While we ask that provisions for intersex persons be included in the Bill, we ask that transgender not be used interchangably with intersex. Most transgender persons do not have differences in sexual development (DSD).

6. Transgender identity cards that recognize the rights of individuals to identify within or outside the binary should be issued in all states, as is the practice in Kerala. These identity cards to encompass transmen, transwomen and third-gender individuals.

7. Transgender women should be brought within the ambit of ‘women’ in the Protection of Women from Domestic VIolence Act (2005), as has been recorgnised by the Oct 2019 ruling of a Delhi magisterial court.

8. Free gender-affirmation surgeries and hormone therapies should be made available across the country for trans men and trans women who need them.

Unless these changes are incorporated, we ask that the Transgender Rights Bill (2019) not be given Presidential assent.

The arc of the moral universe is long, but it bends towards justice.

Dr. Martin Luther King (cited by Justice D.Y.Chandrachud).

On the 6^th of September, 2018, a 5 judge bench of the Indian Supreme Court unanimously found that S. 377 of the penal code violates Articles 14, 19, and 21 of the Constitution of India[1]. This means that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. Bestiality, sex with minors, and non-consensual sexual activity between LGBT persons continue to be criminal. The decision was unanimous in the sense that all judges reached the conclusion mentioned above. However, the judgment was plural in the sense that they offered different reasons for reaching those conclusions. While this judgment is rich in many philosophical strains, this blog will study those reasons.

1. 377 of the Indian Penal Code

Section 377 of the Indian Penal Code, 1860 (“377”) criminalized carnal intercourse against the order of nature which was punished by an imprisonment term extending up to 10 years:

377. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. [Emphasis mine].

Agitation against the section began in the late 1980s after the outbreak of AIDS in India and the section was challenged for the first time in the Delhi High Court in 1994. This challenge was quickly dismissed. Since then, this section has been challenged multiple times. The longest running legal challenge to this section was initiated by Naz Foundation, a NGO working in the field of HIV/AIDS. This action started in 2001 in the Delhi High Court (Naz Foundation case) and in 2013, the matter reached the highest court of the land, which found it constitutional (Koushal decision). That decision was awaiting a curative admission hearing when the Navtej Writ was filed in 2016 alleging that 377 violated the right to, sexuality, sexual autonomy, and sexual partner, rights that the petitioners argued, were protected under the fundamental right to life (Article 21). By this decision, the court resolved the 377 matter and overruled Koushal. In other words, this decision concludes the 377 question and there will be no admission hearing on the curative petition filed in the Koushal case. For more on curative petitions, see here. Before delving into the specific rights, I mention below, 3 notable philosophical strains that frame the decision:

1. Transformative constitutionalism: it is the idea that the constitution is created for the progressive realization of more and more rights. It is accompanied by the concept of non-retrogression which states that the march of rights must be forward and not backward.
2. Constitutional morality: it is the idea that the constitution embeds commitment to certain values, which must be upheld even if they are not overtly mentioned in an Article. All judges had different conclusions as to what these values were.
3. Fundamental rights apply regardless of number: fundamental rights are not meant for the protection of the majority. These are guarantees that each and every person/citizen enjoys. These rights cannot be denied to a community just because they are a small community. That said, the court accepted the research that 8-10% of the population is LGBT. The court uses the term LGBT so I use it here. However, it is a shorthand for all non-heterosexual sexual desire regardless of labels.

Right to Equality

Article 14

Article 14 of the Indian Constitution guarantees the fundamental right to equality, to all persons:

“14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

While “equality before the law” has been understood as a command to the State to treat all persons equally, “equal protection of the laws” has been understood as a command to the State to create conditions of equality between different members of the society (for example through affirmative action measures). Suppose A alleges that a particular law treats them unequally compared to B. The test applied to check a violation of equality is to ask: 1. Whether there is any intelligible differentia separating A from B or is this an arbitrary division?; and 2. Whether there is a reasonable nexus between this differential treatment of A and B and the proposed legitimate State goal, or is the connection tenuous?

Difference Between Natural and Unnatural?: A majority of the court[2] found that there is no intelligible way to differentiate natural forms of having sex from unnatural forms of the same activity, especially because sex is no longer associated just with procreation even in legal discourse. On the contrary, they said that natural sex is whatever kind of sex 2 consenting adults decide to participate in. Mental health studies worldwide have found that being LGBT is not a mental disorder or a psychological problem. 1500 species occurring in nature display homosexual orientation and it is a natural variation of sexuality. 377 criminalized sexual acts based only on the fact of sexual orientation, a naturally occurring trait. Justice Chandrachud went so far as to deconstruct the meaning of the word “natural” itself and made 2 notable points: 1. “natural” was a social construct that has historically been used to create a hierarchical society. He cited miscegenation laws which segregated between black and white populations as an example. 2. Not all “naturally” occurring things were desirable (e.g. death) and not all “unnatural” things were undesirable (e.g. heart transplant). In fact, all justices found that this law disproportionately targeted LGBT persons such that the real distinction created by this law was not between natural and unnatural, but between LGBT and non-LGBT persons.

Objective of the Law: 2 judges found that the objective of 377 was to protect women and children subjected to unwilling carnal intercourse. On the other hand 2 other judges found that the objective of the law was to impose Victorian mores of sex on the Indian society – i.e. sex only for procreation.[3] One justice did not overtly identify any State objective behind the law. Whichever objective they identified, they all agreed that 377 does not meet it. If the objective was to protect women and children then the new rape law and POCSO met it[4]. In fact by virtue of the new rape provision all kinds of non-consensual sexual acts by men against women were rape[5]. Therefore, the justices reasoned, all consensual acts, being not rape, were natural and out of the purview of 377. However, all sex acts of LGBT persons was per se “unnatural.” Therefore LGBT persons were subjected to a criminal law just by virtue of being LGBT. The judges found this distinction based on a naturally occurring trait and supported only by prejudice[6], a constitutionally unjustifiable reason. If the objective was to impose Victorian mores of procreative sex then of course 377 only unevenly met it because all forms of sex, whether or not procreative, were allowed between heterosexual couples.[7]

Article 15

While Article 14 provides a general equality guarantee, Article 15 specifically prohibits discrimination on the basis of sex:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth:

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

While traditionally this Article has been used to strike down discriminatory laws against women, 2 judges of this court endorsed a growing trend to understand Article 15 to include a freedom from sexual orientation discrimination as well. They reasoned that the constitution prohibited sex based discrimination because sex was the site at which gender roles became fixed and freedom and capacities became pre-determined. Article 15 intended to strike at these presumptions which included the presumption that men desire only woman and woman desire only men. Consequently, as 377 furthered this sex based stereotype, it violated Article 15 of the constitution. Other judges did not engage with this thread.

Right to Freedom of Expression

Article 19 of the constitution guarantees to every citizen, freedom of expression, among other things. This freedom can be reasonably restricted in the interest of decency and morality.[8] Not all justices dwelled on this Article but a majority[9] of the court found that freedom of expression includes the freedom to express oneself sexually, with a consenting partner of any sex. Justices Misra and Khanwilkar specifically pointed out such expression does not violate decency or morality, because these concepts are not majoritarian in character. Therefore, societal disgust with this population is not a constitutionally permissible reason to restrict the freedom of expression of LGBT persons.

Right to Life and the Scope of Privacy

Article 21 of the constitution guarantees to every person, life and liberty:

“21. No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Previously, another bench of the same court had found that a fundamental right to privacy was implicit in this guarantee.[10] That court had found autonomy of choice and dignity i.e. respect for the choice, to be the building blocks of privacy. That court had also found the right to sexual orientation to be intrinsically protected by privacy. A majority of this court endorsed that reasoning and extended it further to say that an autonomy based conception of privacy recognizes the freedom of persons to a sexual partner of their choosing and to make other intimate decisions.[11] A majority of the court also noted that sexual expression of LGBT persons needn’t be confined to spatially private places. In other words, LGBT persons can sexually express themselves even in public subject to other laws that regulate public displays of affection.[12] In fact, Justice D.Y.Chandrachud went so far as to deconstruct the word “private” by pointing out that many a times, homes are also not private places because they are the epicentre of heteronormativity.

Ratio of the Case

Although, it is doubtful that this judgment will ever be read in a narrow technical way, if we must, we can zero in on a ratio decidendi of the case–i.e. the reasons for the decision. A ratio decidendi will emerge when: 1. 3 or more judges find that the same legal provisions have been violated; 2. For the same reasons. As such, the following ratio emerges from this case.

1. 1. Although the distinction between natural and unnatural sex is indeterminate, 377 classed all consensual non-heterosexual sexual activities as “unnatural” whereas all consensual heterosexual activities were “natural.” This distinction was based only the sexual orientation of persons involved and does not further any legitimate State objective being rooted only in prejudice against LGBT persons. Therefore, it violated Article 14 of the constitution. All forms of consensual sex between adults is natural.
   2. 377 violated Article 19 because the freedom of expression includes freedom to express oneself sexually with a consenting partner regardless of sexual orientation.
   3. 377 violated Article 21 because the right to life includes the right to sexual partner of choice. They can exercise this right in public and private, subject to the same laws which apply to non-LGBT persons.
2. On MarriageThis case was concerned expressly with 377 and the marriage question was not addressed by any judge directly, except J. Chandrachud, who stated that all persons should be eligible for this institutional recognition of their love regardless of sex and gender. Justices Misra and Khanwilkar also opined that Article 21 protects a person’s right to a union. However, they immediately mentioned that this case was not about marriage. As such it would be incorrect to say that this case has provided marriage rights to LGBT persons. However, it has certainly laid the philosophical foundation for marriage, and many other rights—anti-discrimination, parenting etc., just to name a few. Law will incrementally advance to provide all these rights to LGBT persons. The future is equal.[1] Constitution of India, 1950.[2] Justices Dipak Misra, A.M. Khanwilkar, Indu Malhotra and Justice D.Y.Chandrachud. Justice Nariman did not address this strain.[3] Justices Rohinton Nariman and D.Y.Chandrachud.[4] Except marital rape. Protection of Children from Sexual Offences Act, 2012.[5] Except marital rape.[6] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

   [7] Justices Rohinton Nariman and D.Y.Chandrachud.

   [8] (1) All citizens shall have the right

   (a) to freedom of speech and expression;

   (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

   [9] Justices Dipka Misra, A.M.Khanwilkar, and Indu Malhotra.

   [10] Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1.

   [11] Justices Dipka Misra, A.M.Khanwilkar, Rohinton Nariman, D.Y.Chandrachud, and Indu Malhotra.

   [12] Justices Dipka Misra, A.M.Khanwilkar, and D.Y.Chandrachud.

Note: Orinam thanks Surabhi Shukla for consent to republish this analysis from her blog post on lawandsexuality.com,

IIT students and alumni petition in SC against Section 377 of IPC

This petition is being filed by 20 of us – current and past students of the Indian Institutes of Technology on behalf of 350+ LGBT alumni, students, staff and faculty from the IITs who are a part of an informal pan-IIT LGBT group – Pravritti, which has been a safe space for us to interact, connect and network. We are ordinary citizens of this country, and most of us have never been involved in activism. We come together today to file this writ petition in front of the Supreme Court of India challenging the constitutionality of Section 377 of the Indian Penal Code on several grounds. We are extremely proud of all our petitioners who have come out to take this stand and tell our country and the court – how this regressive law has violated their fundamental rights, prevented them from living a life of dignity and how it has had first, second and nth order effects in the lives of LGBT individuals. In all humility, despite having worked and studied with the best minds of this country and studying in arguably the best scientific institutions of this country the law has had a very deep impact in our lives; one can only imagine the amount of suffering and pain that S377 has caused and continues to cause in the lives of LGBT individuals across the country.

We, the petitioners, come from diverse backgrounds in terms of religion, age, sex, gender identity. We belong to different parts of India – from Kakinada in Andhra Pradesh to Sambalpur in Odisha to Korba in Chhattisgarh and across the metropolitan cities of Mumbai, Delhi, Bangalore to name a few. We are scientists, entrepreneurs, teachers, researchers, business owners and employees in companies. We are children of farmers, teachers, homemakers and government servants. Our youngest petitioner is 19 years old, 90% of us petitioners are below the age group of 30; most of us are recent alumni from various IITs. There are 2 female petitioners and one trans woman.

Section 377 legitimizes the stigma associated to the sexual orientation and its expression – something which is essential, fundamental, intrinsic and innate to an individual. The existence of this law which relegates some of us to second-class citizenship has subjected many of us to mental trauma and illnesses such as clinical depression, anxiety to name a few. The stigma, silence and violence that S377 brings in its wake has led to some of us dealing with suicidal tendencies; one of the petitioners has attempted suicide in the past. The silence thus of our legislative wing and its ineffectiveness to even consider debating the need for the existence of this law is shameful to say the least. S377 has also further contributed to the brain drain of several LGBT individuals including some of the petitioners from the IITs across industries. Within India, LGBT alumni including some amongst the petitioners have chosen sectors or companies with progressive policies over those that might have provided better career trajectories or in STEM fields which are instrumental in building a modern and strong India. One of the petitioners was very keen on becoming an IAS officer and never pursued it due to the fear of being discriminated against as a civil servant and the fear of losing the job due to the criminalization of a core part of their identity.

THIS PETITION

The Petitioners have approached this Hon’ble Court by way of this writ petition under Article 32 of the Constitution, inter alia seeking:

a declaration of their right to equality before the law and non-discrimination on account of their sexual orientation, and

for a declaration that Section 377 of the IPC violates Articles 14, 15, 16, 19 and 21 of the Constitution of India.

The Petitioners’ life experiences have demonstrated the impact of Section 377 on their lives, and the infringement of their fundamental rights, as follows:

The criminalisation of the sexual orientation and very identity of the Petitioners has resulted in a sense of shame, loss of self-esteem and self-worth, and stigma being associated with their very identities as LGBT persons. As a result, several of the Petitioners have had to grapple with depression, self-harm, and other mental health issues, including even suicidal thoughts and attempts, all of which have had a very deleterious effect on their academic and career prospects.

Lack of access to information on various sexual identities in their formative years, and the culture of taboo and shame built around discussions of LGBT identities, in large part because of Section 377, deprived several of the Petitioners of timely knowledge, resulting in a lack of awareness and their questioning of their own self-worth and rejection of their innate identity.

Unlike heterosexual persons, the Petitioners have been deprived of opportunities to freely seek love and companionship with partners of their choice, thereby denying them an essential and immutable aspect of their right to life.

The Petitioners have also been denied equal access to the State machinery in instances where they have been victims of crime.

Several of the Petitioners have had to forego better paying employment prospects, including employment under the State, and to instead choose employers who would be more accepting and accommodating of their identities.

Many of the Petitioners are contemplating settling abroad or have done so, leaving behind their residence of choice at home, only because of the sense of vulnerability and inability to lead a free existence, solely on account of their identity as LGBT.

We are extremely thankful to Naz Foundation, Voices against 377, Navtej Singh Johar & ors., Akkai Padmasali, Keshav Suri, Arif Jafar, Ashok Row Kavi & ors., and all the other NGOs and individuals who have come forward and have been fighting for the repeal of 377. We, by the way of this petition, would like to submit that this is our humble contribution to the community and building of a progressive, strong and tolerant India. We are hopeful that the court would consider the unbearable wrongness of Koushal and thereby reaffirm all the rights conferred to every individual of our country.

Email: pravrittiagainst377@gmail.com

Please email if you want to reach out for comments from our spokespersons.

Lawyers: Dr. Menaka Guruswamy, Pritha Srikumar and Arundhati Katju.

Media flash https://www.youtube.com/watch?v=nam0m8SsUpI

* Other events being planned, such as Sahodaran’s events around sensitizing educators, will be announced later.

The following action items were deliberated upon:

1. Guidelines and protocols during the Pride march, and action to be taken against violators

• Guidelines on FAQ (Chennaipride.net/faq/) expanded from only for-profit companies to also non-profit organisations, due to previous events with non-profits publicizing their brand through banners and posters
• Wearing company/org t-shirts and carry placards supporting LGBTIQA+rights is okay. But no to both for-profit and non-profits using the forum to advertise products whether through ads, banners, pamphlets or leaflets, or handing out freebies (including rainbow flags, t-shirts, keychains, stationery items, etc., with branding of the organization)
• Action: An email from TNRC to the organisations concerned, if protocols violated and/or TNRC board members (3-6 of them) organise a conference call with org in question to make them understand that they have violated protocols and have gone against the spirit of Chennai Rainbow Pride.
• Regarding emergence of alternate websites, it was discussed that content from the chennaipride.net (i.e. Orinam.net/Chennaipride[1]) may be posted anywhere as long as the source is acknowledged and that items are not selectively added or deleted from the list posted elsewhere and that non-coalition events are not misrepresented as part of the official Pride calendar.

2. Inclusion of new/emerging or ally groups into the rainbow coalition was discussed. It was suggested that groups participating consistently over a time period and being involved in coalition events could be considered. “postpone this issue as they will automatically be included in the future with consistent show of support”, “will need to ask more senior members regarding process of applying/joining the coalition”

3. Ideas for press meet: parents, house owners, doctors (esp docs from the LGBTIQA+ community), allies of all kinds and community members to be on the panels. Five panelists w/ them inviting other people to speak a few words. Two innovations: 1. Allies in panel who have personal attachment/connection w/ the community and 2. Media sensitisation combined with press meet. A handout could given out (in English and Tamil). Equal weightage should be given to the terminology part and the voices of speakers speaking about events and issues. Volunteers for media sensitisation to be discussed (Brindaa interested).

4. Promo video: Malani’s proposal (approx. 5k estimate), by end of April she expects to finish it and will keep us updated. Details to be finalised once she will be back from Pune and Bangalore.

5. Disability inclusion: provisions for people w/ disability like eg. Blore pride march wherein taxi service helped passengers with wheelchairs traverse for the march route. Volunteers for persons with visual impairment. Sign language interpreters. Disclosure: if needed they can contact and needed arrangements can be made; to be placed before any event; advanced notification + mention in press meet + put into events web page. Even in planning events, Sahodaran has facilities to shift meeting downstairs if upper room not accessible.

6. Invites for people from other districts: funds for accommodation and travel; is budget estimation present?; Volunteer system like in Blore pride. Need to ask church or other venues if dormitory accessible during the day, to accommodateSahodaran available for stay and shower. Difficulty with overnight stays since many working class lgbt individuals would like to stay for the Vannangal but might not have funds.

7. Vannangal: Srijith proposed that the orgs/collectives organizing Vannangal consider it making a full-day event.

• One idea: evening session will stay as it is, and morning session will be opened up to different groups, individuals and organisations. However, two constraints, one is that people might be busy organising for the pride march. Srijith said would take responsibility for organising morning session and the audience. Second constraint could be lack of funds for an entire day’s program. Solution could be to invite organisations/groups and ask them to cover such costs, due to it also being the 10th year.
• Timings to be discussed and spread out during the day due to concerns of it being too packed.
• Organisers of Vannangal need to convene and discuss

8. Sports: person who proposed event is not present in current meeting; put on hold till representatives bring back the subject.

9. Permissions for venue of March: letter to commissioner and ask for a wheelchair accessible route.

10. Fundraising options:

• Pamphlet, brochure, email – a polite ask to entities for donations;
• People can mobilise funds based on individual orgs but not using the banner of tnrc.
• Mailer – to send out or print as a pamphlet
• Drop box in companies? Needs discussion.
• Colleges – queer group fundraising – collecting it by mobilising w/i college spaces
• Designer support + payment gateway – help needed w/ programming
• Transfers – intl’ – sahodaran; domestic – nirangal
• PayTM – digital payments – more trusted by ppl; not as fussy as bank transfers; easier for student communities; but can be only used w/i india
• By next meeting, research to be done

11. Bazaar/fund raising event- selling handicrafts, sarees, paintings

12. Sahodaran’s student sensitisation program during the weekdays in June – dates to be finalised

13. Pride in Coimbatore – TBA, tentatively August

14. Next planning meet – Chennai SIAAP at April 21st Morning

Minutes by Anussha

[1] The website chennaipride.net, hosted by Orinam, contains the press release,event reports, and media coverage, FAQ, and official calendar of eventsorganized by the Tamil Nadu Rainbow Coalition and/or co-organized by its member organizations and collectives during Pride month. Archives dating back to 2010 may be accessed via the Wayback machine on archive.org.

Delfina: Nirangal, Orinam
Valan : Volunteer
Sivakumar : SIAAP
Janet Begum : Sudaroli/Vadamalar
Roselyn : Sudaroli/Vadamalar
Anish : Kattiyakkari
Srijith : Kattiyakkari
Sudha : Thozhi
Alex : Orinam
Vidhya : Orinam
Deepthi : CQC (Prev RIOV)/Orinam
Janani : CQC (Prev RIOV)/Orinam
Sebastian : Periferry
Brindaa : CQC/Orinam
Jaya : Sahodaran
Kareena
Priyanka
Shivapriya TG : Orinam, Nirangal
Namithaa
Martin J : Nirangal, TN-LGBTIQ Movement
B. Graham

Discussion:

We need to include everyone in the Pride planning, events, and march itself. Specifically, we agreed we need to take special efforts to include women: gender and sexual minority women from all backgrounds, women in sex work and women from other marginalized backgrounds.

Disability inclusion: Brandon suggested we learn from other movements worldwide, like for example, Thailand Pride marches. Srijith mentioned that sign language was used very well in Bengaluru. SIAAP Siva suggested we should involve people with disabilities right from the planning. We decided that we will try to reach out to Ayshwarya who is working on disability. We also would like to reach out to Madhumitha from Bengaluru and organize a meeting for disability inclusion in Chennai, Bengaluru, or by video conference. Jaya suggested we do Garagattam during the Pride march.

We need videos or promotional material for 10th Pride celebrations. Srijith suggested this should also include outsider perspectives about the Pride. Malini said they can coordinate preparing promotional video. The expenses are estimated at Rs. 5000. However, the cost can be reduced if camera and other equipments are arranged. Sebastin from Periferry offered to help with camera. Deepthi and Jananai offered to help with translation work and with finances.

We should involve people from all districts in the Chennai Pride. We could also help organize Pride in other cities.

Malini and Brindaa suggested we should do media sensitization event. We could also do workshops for community on how to present to media. Delfina offered to help individually and as Nirangal, but also emphasized the need for continued work. Srijith suggested that we should make family members and supports speak in the press meet.

Radiant Sports and Periferry proposed a sports program for transgender people. They spoke about the success story of taking sports to marginalized community in Kerala and asked for community opinions about how to take it forward here in Chennai. Srijith said that it would be best to do it as an LGBT inclusion program. He also suggested that Shanti Soundarajan can be made the face of this program if possible.
Decisions:

As announced at the last meet, Pride March will happen on Sunday June 24, 2018. Vannagal will be on Saturday June 23, 2018.

SIAAP Siva will try to reach out to women’s networks to help facilitate their participation in Pride.

Periferry and others who can will help Malini with producing Pride promotional video.

We will all try to involve people from other cities and towns in the Pride effort.

Malini, Nirangal, and others interested will try to coordinate workshops for media persons.

Radiant Sports and Periferry proposed a sports program for transgender people. We will disccuss how to proceed with this in a future meeting.

Proposed Agenda for next meet (a more specific agenda wilt specific priorities will be shared by Orinam, coordinators of the next meeting):
1. Action against those violated protocols.
2. Plan for media sensitization.
3. Promo video.
4. Ideas for innovative press meet.
5. Disability inclusion
6. Including people from the other districts.
7. Consider making Vannagal one-day event.
8. Discussion about use of sports in Pride events.
Next Pride Planning meeting will be on Saturday 7 April 2018 3-5 pm at Sahodaran.

1. The first planning meeting for 2018, the tenth year of Pride, was held on Saturday March 3, 2018, at the Sahodaran office in Aminjikarai, Chennai. The meeting was proposed by Kattiyakari and organized in partnership with Sahodaran. 35 participants including members/volunteers of 10 groups and collectives and those attending in individual capacities attended.
2. Anish began by noting the significance of diverse groups coming together to organize the Pride march and associated events continuously for the past nine years, despite all challenges faced.
3. An inspiring visual (Powerpoint) presentation with photographs of events across the years made by Sarah and Anushka of Sahodaran, Anish and others was shared.

4. Next, key points made by the (formerly Chennai, later Tamil Nadu) Rainbow Coalition in Pride month press releases over the years were discussed. These had been highlighted in advance and were read out by attendees in English and Tamil. These included (partial list):

• 2010: Affordable and accessible Medical and mental health facilities for all persons. Attempts to change sexuality through medicines, shock therapy and other conversion therapies are unscientific and unethical and must be condemned.
• 2010: A set of meeting minutes in which the process of organizing Pride was well documented (Police permission, Venue, What to tell media, Notice, Banner, Mobilization, Handling opponents and protestors, Masks, Emergency medical aid, Materials, Funds_
• 2011: Points around workplace equality
• 2012: Reviving Aravani Welfare Board and broadening its scope to include all sexual minorities – gender identity/expression and/or sexual orientation
• 2013: Educational institutions should formulate policies to end bullying ragging based on sexual orientation and gender identity.
• 2014: Welcoming NALSA and its statement against both sexual orientation and gender identity being unconstitutional
• 2015: NALSA not implemented after 1 year. Five schemes announced by Ministry of Social Justice and Empowerment not implemented. Aravani Board needs to be revived. Physical examination for transgender identity must be removed as it is unethical and against the NALSA verdict
• 2016: Statement against honour killings, Zero tolerance caste-class honour killings
• 2017: Reservations for transgender persons in education. School counselors LGBTIQA+

5. Several attendees (partial list: Jaya, Siva, Deepan, Sudha, Samantha, Martin, Srijith, Sebastian, Namitha, Shambhavi, Valan, Sharan, Bessimon, Felix, Delfina, Ramki) shared their experiences of Pride march over the years, including suggestions for the future. These are summarized in succeeding points.

6. Good points: Increasing efforts at inclusion of various groups and issues over the years, not becoming corporate led event. One participant spoke about sex worker visibility in 2017: another pointed out that sex workers have been part of the march since 2009 but were more visible this past year because of red umbrellas.

7. Suggestions for CRP 2010 and future prides:

• Increase representation of people from other TN districts. It used to be higher in the early years and then dipped. Needs to strategize for how to increase, and what arrangements need to be made host people coming from outside Chennai (in- and out- state)
• Accessibility of Pride route to persons with orthopedic disability who may be using wheelchairs: can this point be used for asking for a road with more access (point communicated by disability rights activist and advocate Amba Salelkar via Valan).
• Enhance visibility through lorries, music bands
• Need for advance fundraising
• More effective social media-based promotion.
• Individual agendas should not rule.
• At least one Pride month event on LGBTIQA+ inclusive education, health and employment.
• Ensuring TNRC members (both organizations and individuals acting in personal capacities) strive to avoid organizing events at overlapping times. Announcing tentative events well in advance can help in reducing overlap

8. Pride march date: Sunday June 24, 2017 (last Sunday of June)
9. Spaces has been booked for Vannangal Sunday June 23, 2018 [Addendum May 7, 2018: A different venue will be selected. Stay tuned for updates]

9. Fundraising: there was a detailed discussion on needs for and modes of fund-raising, including crowd-funding. Several participants mentioned the need to avoid corporate sponsorship and institutional banners (other than TNRC) for TNRC-organised events such as the press meets and Pride marches. Events organized by individuals/organisations that are part of the coalition may choose to fund-raise in their own ways.

10. Berry contributed Rs. 1000/- for the pride planning to Srijith. A few others contributed money for Pride march and associated events.

11. The next meeting will be on March 17, 2018, 11 am, at Sahodaran.

PARTICIPANTS (PARTIAL LIST) 

1. Berry
2. Sivakumar
3. Kamaldaasan
4. Alex M.
5. Brindaa
6. Karthik Umapathy
7. Sankari
8. Deepan Kannan
9. Shambhavi
10. Srijith Sundaram
11. Anish Anto
12. Magdalene Regin
13. Martin Philips J.
14. Sebastian Joseph
15. Kanaga
16. Ramakrishnan
17. Felix
18. Bessimon Thankaraj
19. Anju Vish
20. TD Sivakumar
21. Anthony Arul Valan
22. Samantha
23. Shalini
24. Preetham
25. Delfina
26. Sudha
27. Sharan
28. Gowtham
29. Andria
30. Nazriya
31. Heena Mary
32. Soundarya Gobi
33. Sadhana
34. Bhavana
35. Namitha

Although the decision was unanimous, there were six separate concurring judgments. A common thread runs across the findings given in all judgments that while the right to privacy is rooted in the right to life and liberty under Article 21, it is also enshrined in all other fundamental rights, including the right to equality and the fundamental freedoms under Article 19 of the constitution. It unanimously overruled the right judge decision in MP Sharma v. Satish Chandra to the extent that it holds that it indicates that there is no right to privacy and also overruled Kharak Singh v. State of UP to the extent that it did not give a positive finding on the right to privacy.

I would like to focus this piece on the manner in which the right to dignity has been the focus for the Court for the development of the right to privacy. This argument has special significance for the guarantee and protection of the rights of the transgender community. That the right to live with dignity includes the right to autonomy, to make decisions about one’s life choices was eloquently affirmed by Justice Dhananjay Chandrachud where he holds, “ …The best decisions on how life should be lived are entrusted to the individual. ……The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” He went on to hold that dignity permeates the core of the rights guaranteed to the individual under Part III of the constitution and privacy assures dignity to the individual.

Privacy ensures that a human being can lead a life of dignity by securing a person from unwanted intrusion. In the context of dignity, specific references to the protection of one’s sexuality, sexual orientation and gender identity were made as being part of one’s intimate life choices that need to be protected under the rubric of privacy. Justice Chandrachud went as far as to hold that the reasoning of the Supreme Court in Suresh Koushal vs. Naz Foundation and Others that only a miniscule minority was affected was flawed and held “That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights, which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.”

The Court went on to hold that sexual orientation is an essential attribute of privacy and that the right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. This settles the rights for the setting aside of Section 377 of the Indian Penal Code. Sexual orientation rights, sexual orientation is not limited to the gay, lesbian and bisexual groups but inextricably linked to transgender and intersex persons as well. Not limiting the recognition of the right to sexual orientation, the Court went on to hold that “The rights of the lesbian, gay, bisexual and transgender population are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity.” It held that “Equal protection demands protection of the identity of every individual without discrimination.” This would most certainly include the right to one’s self-identified gender identity as upheld as an integral part of the right to life in NALSA v. Union of India.

The Court also held that the prosecutions under Section 377 while they may be only in a few cases, such acts of hostile discrimination are constitutionally impermissible because of the chilling effect which they have on the exercise of the fundamental rights and held that merely because there may have been a low number of prosecutions cannot mean that there was no violation of rights. The chilling effect of criminal law that violates the rights of the trans community is particularly relevant not only in the context of Section 377 but in the context of other criminal laws as well. Section 36A of the Karnataka Police Act, which has now been amended, and the Telangana Eunuchs Act are examples of criminal laws which have been targeting the trans community. While there may not be many prosecutions under such laws, they are used as threats by the police to permeate fear and violence among the community. For the first time this chilling effect faced by sexual minorities has been recognized. What is fascinating is the manner in which not only Justice Chandrachud’s main judgement, but many of the separate judgements referred to the right to gender identity and other rights relating to one’s intimate life in an very outspoken manner. J. Bobde held that the right to privacy is confined not only to intimate spaces such as the bedroom or the washroom but goes with a person wherever he or she is. It is interesting that these issues have been addressed by the courts because washrooms and toilets are the sites were current battles for recognition of the rights of the trans communities are being fought and could pave the way for the future.

How is Privacy defined?
Privacy has been defined quite simply as the right to be let alone. An elaboration of privacy has been defined by the Court as the autonomy of the individual to make his or her personal life choices. It held that the notion of privacy enables the individual to assert his / her / their personality. Justice Nariman gives three parts to the this right – (i) the aspect of privacy that relates to the physical body, such as interference with a person’s right to move freely, surveillance of a person’s movements etc., (ii) informational privacy relating a person’s private information and materials and (iii) the privacy of choice which includes the rights and freedom to make choices of one’s most intimate and personal choices. This third prong of privacy would relate to the intersection between one’s mental and bodily integrity and entitles the individual to freedom of thought, belief and self-determination and includes the right to determine one’s gender identity. Family, marriage, procreation and sexual orientation are all integral to the dignity of the individual and the fundamental freedoms under Article 19 entitled an individual to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to make choices on all aspects of life including what to eat, how to dress, or what faith to follow. What I found most relevant and moving was the observation of Justice Nariman that the guarantee of privacy as a fundamental right was important as it would protect it, despite the shifting sands of the majority government in power. It would protect non-majoritarian views, diversity and plurality which is so crucial to our country, especially in present times where we are witnessing such intolerance of differences.

Interestingly, it was also held that privacy has both positive and negative content. Not only does the right to privacy restrain the state from committing an intrusion upon the life and personal liberty of a citizen, it also imposes a positive obligation on the state to take all necessary measures to protect the privacy of the individual.

The Horizontal application of the Right to Privacy:
Justice Kaul is the only judge who refers to the protection of the right against non-state actors. He held that there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors in addition to the need for protection of such information from the State. Privacy is a fundamental right, which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices. This is particularly an important issue facing the trans community as they face a serious amount of violence at the hands of private actors – family members, employers, neighbours and the society that discriminates against them on the basis of their gender identity. This is a huge step and the development of the right to privacy against private persons needs to be developed judicially.

Conclusion and Learnings:
While we should celebrate and savour the gains of at this far-reaching judgement, what the learnings? To this women’s rights and transgender rights activist and lawyer, this judgement points out the need for the gender rights movements to align with other social movements and the interconnectedness of rights. The privacy rights battle in the context of Aadhaar was a battle that the LGBT movement and the women’s rights movement had not engaged with. We are incredibly fortunate that we had a Court that rose unanimously in favour of declaring proudly the rights to sexual orientation and gender identity but this should only strengthen our resolve to work for the protection of rights across movements, of class, gender, caste, disability and religion if we want to strive to protect diversity and difference.

The stakes involved in this simple point are difficult to overstate. The Central Government and other BJP ruled states argued there was no constitutional right to privacy. Instead they stated that the right to privacy was a common law right or a statutory right, meaning that they could take away that right merely by passing a legislation – a legislation like s. 377 of the IPC. But in holding that the right to privacy was a constitutional right, the government now has to meet a higher standard in order to legitimately restrict the exercise of that right. Had the government’s view prevailed, there would be no space or choice that would be free from government intrustion. With a mere majority vote, the government could legitimately take away the right to privacy of citizens. Thankfully because of this judgment, this is not the case.

While the history of this case has roots in democratic opposition to the imposition of surveillance technologies such as Aadhar, this case has a direct impact on the 377 case currently pending before the Supreme Court.

The most obvious interlink between the two cases is Justice Chandrachud’s judgment in the Right to Privacy case, where he criticizes the Supreme Court’s reasoning in the Naz Foundation case. In the Naz Foundation case, Justice Singhvi (who authored the judgment) proceeded on the footing that there existed a fundamental right to privacy, but that the constitutional protection was not extendable to LGBT people. He reasoned that LGBT people constituted a “miniscule fraction” of India’s population and that in the 150 years of its existence, 377 has only been officially used less than 200 times against adults. In other words, Justice Singhvi argued that the Constitution could not be concerned with the small population of LGBT people and that the prosecutions under s. 377 were too scanty to merit any serious constitutional considerations.

Justice Chandrachud’s leading judgment pilloried the logic of Justice Singhvi’s argument. First, that of fundamental rights in a democracy are meant to protect minorities from majorities. It makes no sense to say that some populations are too small or too reviled to have fundamental rights. Fundamental rights are not some a popularity contest. They inhere in all persons regardless of who they are. Secondly, Chandrachud pointed out that the fact that there were only about 200 prosecutions under s. 377 was of little consequence. He argued that a violation of a fundamental right does not become tolerable because only a few people’s rights were affected. Chandrachud argues that to test the constitutionality of s. 377 one does not have to look at its direct application (i.e. prosecutions) but rather its “chilling effect on the exercise of fundamental rights.”

In the pages where he discusses the Supreme Court’s Naz Foundation judgment (which he brackets along with the court’s infamous ADM Jabalpur judgment, which upheld the suspension of Fundamental Rights during the Emergency), Chandrachud echoes the language used by the Delhi High Court in its Naz Foundation judgment. He holds that “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.” As Justices Shah and Muralidhar did in the Delhi High Court, Chandrachud here places sexuality and rights in a common framework, thus laying down the foundation for overruling the Supreme Court’s Naz Foundation judgment.

More generally, the Supreme Court’s right to privacy judgment, reaffirms the principles of privacy that Naz Foundation and Voices against 377 invoked before the High Court and the Supreme Court – that privacy was about people not places. Meaning, that while the right to privacy may have spatial dimensions, it was centrally about preventing one from interfering in the daily life choices of another. As Justice Chamleshwar stated in this case “I do not think that anybody would like to be told by the State as to what to eat or how they should dress or whom they should be associated with in their personal, social or political life…”

The claim to the right to privacy is not just essential to claiming a space away from the public eye. In order to live and flourish in a democratic society, people need to be able to go about their daily lives without interference from state or society. As invoked in the Naz Foundation case, the right to privacy was not just about protecting the bedroom from the state. It was fundamentally about the ability to participate in public life without interference from any person or any institution.

According to Anjali Gopalan (the director of Naz Foundation) and Justice Shah, yesterday’s Right to Privacy judgment severely undermines the Supreme Court’s Naz Foundation judgment, and it would seem like the next logical step would be to overturn the SC’s Naz Foundation decision. I would agree, but would include the following caveats.

Firstly, the Supreme Court is a Janus-faced institution. Justice Chandrachud who yesterday waxed eloquent about the autonomy of the individual and the right to privacy, is the same Justice Chandrachud who gave the order in what has become known as the ‘love jihad’ case. In annulling the interfaith marriage and endorsing a pernicious piece of right-wing propaganda, Justice Chandrachud denied the autonomy and privacy of an adult woman and returned her to the custody of her parents. So notwithstanding the idea of precedent, the Supreme Court can say one thing today, and another tomorrow.

Secondly – and more legally – all fundamental rights, including the right to privacy are subject to reasonable restrictions. The Court could still find that the reasons offered by the government in the 377 case – protection of public health, or public morality – as legitimate reasons to infringe the right to privacy.

That said, the Supreme Court has in this judgment has affirmed a constitutionally protected right to privacy. The right to privacy is imagined not just as a negative right over certain spaces, but as the right to move freely in society, and as a right to participate in everyday life. The establishment of this fundamental principle, is a victory not just for LGBT people in India, but for all people who choose to act or think differently. It is a huge victory for the shrinking democratic spaces in this country.

The Right to Privacy judgment [PDF link here] earlier today in no way changes the status quo in relation to Section 377. That provision continues to criminalise homosexual sex, and this will not change until the Supreme Court overturns its own judgment of 2013 (Koushal), or if Parliament acts to remove the section from the Indian Penal Code.

Yet, today’s judgment makes some critical observations, which could help in the removal of Section 377. The court recognises its own error, describing the Koushal judgment and some of its reasoning as “flawed”, “misplaced” and the sort that “cannot be accepted”. It further states that the Koushal judgment is a “discordant note which directly bears upon the evolution” of understandings on the right to privacy by the Supreme Court over the years.

What this signals is that the four judges who affirmed these statements (the other 5 judges agreed but with different reasoning and wrote separate individual supportive statements) believe that Koushal and the validity of 377 need to be seriously reconsidered.

On 377 the judgment also says that, “Consequently, we disagree with the manner in which Koushal has dealt with the privacy–dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.”

Most significantly, in the concluding portion of this main section of the judgment the Supreme Court lays down the law on privacy, stating that, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”