Why a Madras High Court judgement on LGBT+ rights is interesting in New Zealand
Recently, the Madras High Court—the highest Court in Tamil Nadu state in India—issued a ruling that rightly garnered a lot of press attention. It pertained to a case involving young LGBT+ people seeking relief from state and familial pressure.
Unusually, the judge embarked on a journey of discovery and overcoming bias in the process, to eventually find in favour of the LGBT+ petitioners, and then issue a wide-ranging ruling that promoted LGBT+ rights in government and society. For that alone, it is a worthwhile case to study.
But the media interpretation of the case has co-opted the narrative in a more sensational direction. And this requires us to be cautious in understanding what has actually happened with the ruling, and what lessons we can draw from overseas.
As one example, The Independent (UK) ran this headline:
For context, banning conversion therapy is a contentious matter in the UK, as LGBT+ advocates and allies have been demanding a ban (apparently relying on criminalisation, the racist police, courts, prisons, and deportation—systems that have typically hurt rather than helped queer and trans people of colour). Meanwhile, transphobes, conservatives, and bigots, have been resisting the law change on their usual spurious grounds. Prominently, the Conservative government has been delaying and seemingly backing away from its promise to enact a ban. So it is understandable, then, that a new ruling in a former colony that appears to address conversion therapy in a way sympathetic to LGBT+ people, should be re-cast by the British press in terms of the high drama of a proposed ban in British terms.
In a parallel but connected political world, the New Zealand government has promised to introduce a ban on conversion therapy. At the time of writing, no government bill has been published, but there are clues about the nature of the bill to come. A Member's bill (in the name of Marja Lubeck MP—a backbench member of the governing party) proposed a racist, homophobic and transphobic criminalisation regime that also offers nothing for victim support, that helped to shift Labour party policy in the 2020 election, to endorse making conversion therapy “a crime”, in their manifesto. More recently, the Minister of Justice suggested that the government will introduce criminal “and/or” civil offences to that effect. The opposition to this Thatcherite tough on crime solution to a real social problem, has so far only come from predictably bad-faith local actors such as homophobes, transphobes, and bigots, arguing on the same debunked spurious grounds as their counterparts around the world.
In this New Zealand milieu, the sensational story of yet another jurisdiction purportedly ruling to ban conversion therapy seems tempting:
Yet we should not be so hasty in picking up headlines from the British press on LGBT+ topics, because they are prone to sensationalism, skipping facts, and fuelling outright bigotry. So what are the facts in this case? Did Tamil Nadu opt to ban conversion therapy? What did the High Court judge actually rule? Does the Madras High Court's position endorse our local policy-making to ban conversion therapy—particularly by involving police in a carceral, criminal regime? The ruling by the Madras High Court is published online in English. I strongly recommend reading the original words, if you can. If not, the rest of this article will walk through some of the key elements of the ruling, but it is best to consult the source. If you are a reader familiar with common law, and the legal systems of New Zealand or the UK, Indian courts and jurisprudence will be familiar too.
Tamil Nadu is set to become the first Indian state to ban ‘conversion therapy’ following an unprecedented and progressive judgment by the Madras High Court on Monday, aimed at making society more inclusive towards the LGBT+ community. pic.twitter.com/XQvX8OMog6— Shaneel Lal (They/Them) (@shaneellall) June 13, 2021
The rulingIf you did read the ruling, the first thing you might notice is that it is about much more than conversion therapy. The alleged "ban" is only a small part of a wider treatment of social and legal issues affecting LGBT+ people. What stands out is the sympathetic angle that the judge has taken, to overcome personal prejudice and serve social justice:
Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice.
Nevertheless, it is fair for the press to hone in on a single detail like conversion therapy. We will return to the broader ruling later. But for now, let us see what the Court said about conversion therapy. Let us drill down the headings and items:
43. This Court proceeds to issue the following interim guidelines/directions:
So the Court is introducing guidelines and/or directions. These are not, on the face of it, necessarily binding (at least, in the case of guidelines that might be clearly not directions).
[43.] H. For the sake of creating awareness, this Court is suggesting the following sensitization programs to be conducted by the concerned Ministry of the Union/State Government(s). This list is only indicative and not exhaustive.
Here we see item 'H' which is clearly described by the Court as “suggesting”, “[f]or the sake of creating awareness”. Items A to G prior to this seemed more clearly to be orders or directions. Item B, for instance, is self-described as an “order”.
So it is clear, then, that the suggestions in item H are not, on the face of it, binding orders, but rather interesting ideas that, if voluntarily adopted by the stakeholders named subsequently, might provide relief to LGBT+ people. In the Court's words:
This Court expects the respective departments/authorities and institutions to implement these guidelines in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society.
While it is progressive, the expectation set out above is arguably on the verge of what might be considered the proper realm of the legislature and not the judiciary (under implicit separation of powers). The Court gives deference to the legislature:
I sincerely hope that the legislature also starts evincing more interest on this very important issue. This is more so since people, especially the present generation have started talking more about it and they are desperately wanting to find a solution at least to the extent that persons of the LGBTQIA+ community are left to live peacefully. 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. This gap is now sought to be filled in by way of issuing guidelines till law takes over and guarantees safety and protection.
Therefore it appears the item H which explicitly introduces suggestions for the sake of creating awareness, under the heading of “guidelines”, cannot be understood as binding. Measures suggested by the Court tackling conversion therapy under item H, neither makes for a legal ban, nor a binding judicial order that would amount to a ban.
What guidelines, then, are given by item H?
There are sensitisation programmes suggested for stakeholders like the Police and Prison Authorities, awareness programmes for District and State Legal Service Authorities and the Judiciary, or altered curricula in Educational Institutions, etc.
In the context of these apparently voluntary sensitisation trainings, education, and reforms, there is also a suggestion that “Physical and Mental Health Professionals” should ensure the following (quoted out of order for convenience):
- Assistance to LGBTQIA+ community and their environment, by affording Physical and Mental health support who are facing stigma and discrimination from society.
- Mental health camps and awareness programs to understand gender, sexuality, sexual orientation and promote acceptance of diversity.
- Sensitization programs as provided by Rule 10(7)(b) of Transgender Persons (Protection of Rights) Rules, 2020 shall be in addition to the above said.
- Prohibit any attempts to medically “cure” or change the sexual orientation of LGBTIQA+ people to heterosexual or the gender identity of transgender people to cisgender.
- To take action against the concerned professional involving themselves in any form or method of conversion “therapy”, including withdrawal of license to practice.
The final two points listed above are the only references to conversion therapy in what is an otherwise broad-based outline of policies to attack LGBT+ discrimination from many angles.
One interesting feature of the Court's approach to conversion therapy is that it is effectively aiming for the status quo of New Zealand. That is, the Court is suggesting (not binding) professional bodies to self-regulate by prohibiting conversion therapy among their own ranks, and to revoke the licence of any conversion therapy practitioner. In New Zealand, this is more or less the present situation, even before enacting any kind of legal ban. To quote a submission by Shaneel Lal for the Conversion Therapy Action Group:
The New Zealand Psychological Society, NZ College of Clinical Psychologists and the New Zealand Psychologists Board all have adopted a code of ethics that prioritise the well-being of patients and nondiscrimination as core tenants to ethical practice. Under these guidelines, conversion therapy does not constitute ethical practice, according to clinical psychologist Rita Csako. Counselling on the basis that LGBTQIA+ identities are unnatural is discriminatory and does not demonstrate respect for the patient and engaging in a practice that has a mostly negative impact on mental health means a practitioner is not prioritising the patient’s well-being. However, this code is not legally binding, and does not apply to the many non-professionals who practice conversion therapy either.
In New Zealand, conversion therapy has been condemned by key stakeholders including: the Human Rights Commission; Royal Australian and New Zealand College Psychiatrists; New Zealand College of Clinical Psychologists; New Zealand Association of Counsellors; Aoteroa New Zealand Association of Social Workers; and Rainbow Youth.
The Madras High Court cannot legislate a ban, so it can only go so far as to suggest that professional bodies volunteer to regulate themselves, like similar bodies do in New Zealand. The suggestion is far from the kind of statutory provisions sought in New Zealand or the UK.
This fact alone undermines the headline by The Independent. The body of the article by The Independent appears to make a factual error in its characterisation of the non-binding suggestion of the Court's (emphasis mine):
With the court order banning any “attempts to medically cure or change the sexual orientation of LGBTQIA+ people to heterosexual or the gender identity of transgender people to cisgender,” Tamil Nadu in south India is set to be the first state to ban conversion therapy.
It would be better written, “With the court's suggestion for professional bodies to self-regulate, short of a ban …”.
A more accurate headline: maybe, “Indian state judiciary first to recognise shortcomings in law and society that discriminate against LGBT+ people”.
Lessons for New Zealand
Despite the narrower nature of the Court's ruling, than what The Independent tells us, it is still a very interesting case to scrutinise for places like New Zealand.
The two main features are in procedure, and in policy (even though the Court cannot legislate).
First, in terms of procedure, the novelty in this case was the heart-warming and humane approach the judge took to recognising his own prejudices, and working to overcome them through consultative processes (with a psychologist who was LGBT+-affirming, as well as community members). Also interesting is the basis for the Court's endeavour, which it justified in terms of “social justice”, that may or may not constitute precedent in Tamil Nadu.
Second, in terms of policy, while the Court stopped short of making fully binding orders on a wide range of relevant matters, it nevertheless did issue several directions and guidelines across many areas.
Setting aside the details of each direction or guideline for a moment, it is most interesting to remark on the breadth of matters that the Court took into consideration: discrimination in policing, courts, healthcare, education, employment, families, as well as, empowerment through state services, and the provision of rights in the law. The Court reasoned:
I strongly feel that the change must take place at a societal level and when it is complemented by a law there will be a remarkable change in the outlook of the society by recognising same-sex relationships. For a proper understanding we can recall how persons with differential abilities and mental illnesses were treated by this society some time back, and how the awakening in the society complemented with enactment of appropriate laws have brought in a huge change in recognising the rights of such differently abled persons, and the attempts made to bring these persons also within the level playing field.
The issue on hand is very important and requires awakening in the society, and law, by itself, may not be able to achieve the desired result. A law cannot be effective without it being acknowledged by the society and such an awakening in the society is not going to happen overnight. It requires regular deliberation and it has to necessarily fall out very strongly from the constitutional institutions and I believe that the judiciary and particularly the constitutional courts have a major role to play in spreading this awareness and awakening the society.
Given the need for such a fundamental shift in society, it is not surprising that, “[t]his gap is now sought to be filled in by way of issuing guidelines till law takes over”—guidelines which are broad in impact, cutting across many governmental portfolios.
This is especially relevant in New Zealand because no such broad-based strategy is being pursued to address LGBT+ discrimination (including the real problem of conversion therapy which must be ended). Instead, New Zealand has become lately hyperfocused on proposed law changes like a racist Births, Deaths, Marriages, and Relationships Registration bill, or a carceral conversion therapy ban involving police, courts, prisons, and deportation.
New Zealand is different in many ways to a place like Tamil Nadu, but the nature of the “gap” is similar at least in that LGBT+ people face discrimination across many aspects of their lives (or portfolios of government). In a previous post about allyship, I linked to a sample policy that takes exactly the kind of broad-spectrum approach to ending LGBT+ discrimination that the Madras High Court did, but in the New Zealand context. (Note: that example proposal sought to overcome racial inequities faced particularly by tauiwi migrants and refugees, as seen from my individual perspective alone, but did not involve broad community consultation or specifically any focus on Indigenous concerns, although there are common interests. You can imagine an even more comprehensive policy that actually accounted for all those needs and rights, if Government would develop such a policy programme with grassroots consultation.)
Instead, Government has distracted us with hyperfocused legislation like a carceral, criminal conversion therapy ban, and the racist, exclusionary BDMRR bill. And, as was reported shortly after this year's Budget, Government has exploited the situation, cashing in by cutting or stalling funds for rainbow communities (in an environment where intersectional needs such as for tauiwi migrant and refugee queer and trans people of colour have never been funded at all).
If anything, the overarching lesson from the Madras High Court judgement, for New Zealand, is to refocus on overcoming LGBT+ discrimination on all fronts, demanding that Government takes a multi-pronged approach in all its portfolios, rather than de-funding us in exchange for cheaper, symbolic gestures. The keys to ending conversion therapy are racial equity in resources, community reform, and victim and survivor support.
What of the police?
Another key detail in the Madras High Court ruling is an order requiring police to back off from harassing LGBT+ people. There is a particular history to the problem of Indian families filing missing-person claims with the police when their relative has escaped (or eloped), and the police enforcing conservative cultural norms when they locate the allegedly missing person (and their partner). The Court recognised the role of the police in upholding these norms, which especially hurt LGBT+ people, as in this case. The Court ordered:
A. The police, on receipt of any complaint regarding girl/woman/man missing cases which upon enquiry/investigation is found to involve consenting adults belonging to the LGBTQIA+ community, shall upon receipt of their statements, close the complaint without subjecting them to any harassment.
B. The Ministry of Social Justice & Empowerment (MSJE), has to enlist Non-Governmental Organizations (NGOs) including community-based groups which have sufficient expertise in handling the issues faced by the LGBTQIA+ community. The list of such NGOs along with the address, contact details, and services provided shall be published and revised periodically on the official website. Such details shall be published within 8 weeks from the date of receipt of copy of this order.
The novel finding here is that the police are harmful to LGBT+ people. And that community peer support is a more suitable structure for LGBT+ relief.
Is that so different in New Zealand? Here we know the police are racist, threatening brown youth by photographing them invasively in public. We know the police are unwelcome at the Pride march in uniform, because they are racist, homophobic, and transphobic. We know that specialist police training is required to handle sensitive sexual cases (of similar complexity to, say, conversion therapy victimisation), and the police do not have enough staff, and probably will not have enough in future.
Although the specific cultural behaviours in question may be different in Tamil Nadu and New Zealand, the broader common pattern that police forces around the world remain opposed to the interests of marginalised people—indeed, they historically seem to aid in enforcing that marginalisation.
The Madras High Court was unavoidably moved to recognise this fact, at least in the narrow terms of its case, but its response appears premised on the irredeemable nature of the police, because it wholly rejects their continued participation in LGBT+ people's lives when such missing-person complaints are raised. The Court ordered the police out.
Again, this contrasts starkly with New Zealand's approach to conversion therapy, as, for example, in Marja Lubeck MP's Prohibition of Conversion Therapy Bill. Where someone is being victimised by conversion therapy—more likely to be a person of colour, if New Zealand is like the UK—then New Zealand would have the police intervene and become entangled in the case. That entanglement would put vulnerable, marginalised, racialised communities through all the traditional oppressions of police over-exposure—invasive search and surveillance, uncovering incidental offences, victim blaming, racial profiling, police brutality, etc.
So we see the Madras High Court reasonably distrusting the police and seeking to restrain them, in the name of LGBT+ rights and empowerment, whilst suggesting wide-ranging policies to benefit LGBT+ communities. Yet we see New Zealand seeking to empower the police with more charges to bring against disproportionately racialised communities, whilst cutting budgets for rainbow communities.
One hopes these differences and the wider context contrasting the reported “conversion therapy ban” (in UK or NZ terms) and the Madras High Court's actual judgement, can yield interesting lessons for us to reconsider how we choose to deploy the force and power of the state to actually enable LGBT+ lives.
We cannot presume that New Zealand has solved LGBT+ discrimination in so many ways that the next best thing to do is to send in the police to end conversion therapy. In fact, like Tamil Nadu, ending harmful practices like conversion therapy, will require that, “change must take place at a societal level”, as well as the legislature to start, “evincing more interest”. And the path to that change in the legislature, must involve a broad range of portfolios and material resources. Those resources must be allocated in a racially-equitable way, not merely to benefit Pākehā-coded LGBT+ people, but also Indigenous people, and tauiwi migrants and refugees and asylum seekers of colour, without over-relying on punitive, carceral, or criminal regimes.