Foreign LegislationLegislation Updates

The UK Government has set out proposals to ban the practice of LGBT conversion therapy vide press release dated October 29, 2021. Key highlights of the proposal are:

  • Government launches consultation on how to make coercive conversion therapies illegal.
  • Ensuring physical conversion therapy acts are sentenced appropriately and introducing a new offence for so-called talking conversion therapies
  • Ensuring those found guilty of conversion therapy offences have any profit they obtained from those crimes removed, and strengthening the case for individuals to be disqualified from holding a senior role in a charity where they are convicted of a conversion therapy offence
  • Introducing Conversion Therapy Protection Orders to protect potential victims from undergoing the practice, including abroad – this could include removing passports of potential victims, who are at risk of being taken overseas for conversion therapy
  • Exploring further measures to prevent the promotion of conversion therapy
  • Proposed new laws will protect LGBT people, and especially under 18s, ensuring individuals cannot promote or profit from this harmful practice.
  • Government to fund support for victims of conversion therapy, including helpline.

It is a 6-week consultation which will allow people to express their opinions on these proposals so as to work with the government to develop an effective ban.

Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Supreme Court of The United States: While looking into the question that whether the city of Philadelphia violated the First Amendment by discontinuing to refer deprived children to the Catholic Social Services (hereinafter CSS) on account of its refusal to certify same-sex cou­ples to be foster parents due to its religious beliefs about marriage; the Court held that, the refusal of Philadelphia to contract with CSS for the provision of foster care services unless they agree to certify same-sex couples as foster parents, violates the Free Exercise Clause of the First Amend­ment. The decision of the Court was unanimous and was delivered by John Roberts, C.J., in which he was joined by Stephen Breyer, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ.

Background: CSS is a Philadelphia based foster care agency involved in taking care of Philadelphia’s disadvantaged children ever since its establishment in the early 20th century. The Philadelphia foster care system depends on coopera­tion between the City and private foster agencies like CSS. When children cannot remain in their homes, the City’s Department of Human Services assumes custody of them. The Department enters standard annual contracts with pri­vate foster agencies to place some of those children with foster families. The placement process begins with review of prospective foster families. Pennsylvania law gives the authority to cer­tify foster families to state-licensed foster agencies like CSS. Before certifying a fam­ily, an agency must conduct a home study during which it considers statutory criteria including the family’s “ability to provide care, nurturing and supervision to children. When the Department seeks to place a child with a foster family, it sends the contracted agencies a request. The agencies report whether any of their certi­fied families are available, and the Department places the child with what it regards as the most suitable family. The agency continues to support the family throughout the placement.

Facts: The religious views of CSS are one of the core aspects of its work in this system. For over 50 years, CSS successfully contracted with the City to provide foster care services while holding to these beliefs. CSS believes that “marriage is a sacred bond between a man and a woman”. Since the agency understands the certification of prospective foster families to be an endorsement of their relationships, it does not certify un­married couples (regardless of their sexual orientation) or same-sex married couples. The Court pointed out that CSS does not object to certifying gay or lesbian individuals as single foster parents or to plac­ing gay and lesbian children. No same-sex couple has ever sought certification from CSS. If one did, then they directed the couple to other agencies in the City, all of which currently certify same-sex couples.

However in 2018, after receiving a complaint about a different agency, a newspaper ran a story in which a spokesman for the Archdiocese of Philadelphia stated that CSS would not be able to consider prospective foster par­ents in same-sex marriages. The Philadelphia Commission on Human Relations launched an inquiry. The Department informed CSS that it would no longer refer children to the agency. The City explained that the refusal of CSS to certify same-sex couples violated a non-discrimination provision in its contract with the City as well as the non-discrimination requirements of the citywide Fair Practices Ordinance. The City stated that it would not enter a full foster care contract with CSS in the future unless the agency agreed to certify same-sex couples.

CSS alleged that the referral freeze violated the Free Exercise and Free Speech Clauses of the First Amend­ment.

Observations: It was observed that the Free Exercise Clause of the First Amendment, applicable to the States under the Fourteenth Amendment, pro­vides that “Congress shall make no law- prohibiting the free exercise” of religion and a plain reading of the provision reveals that Philadelphia’s actions have burdened CSS’s religious exer­cise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.

The Court noted that Section 3.21 of Philadelphia’s standard fos­ter care contract is not generally applicable as the con­tract requires an agency to provide services defined in the contract to prospective foster parents without regard to their sexual orientation; but it also permits exceptions to this requirement at the “sole discretion” of the Commissioner. The Judges further observed that Philadelphia’s Fair Practices Ordinance, which for­bids interfering with the public accommodations opportunities of an individual based on sexual orientation, does not apply to CSS’s actions. The Ordinance defines a public accommodation to include a provider “whose goods, services, facilities, privileges, ad­vantages or accommodations are extended, offered, sold, or otherwise made available to the public.”. “Certifica­tion is not “made available to the public” in the usual sense of the words. Certification as a foster parent is not readily accessible to the public; the process involves a customized and selective assessment which cannot be compared to stating in a hotel or riding a bus”.

Finally, the Court observed that a government policy can survive strict scrutiny only if it advances compelling inter­ests and is narrowly tailored to achieve those interests. Philadelphia does not have a compelling interest in refusing to contract with CSS. CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless the agency agrees to certify same-sex couples as foster parents cannot survive strict scrutiny and violates the Free Exercise Clause of the First Amendment.  [Fulton v. City of Philadelphia, 2021 SCC OnLine US SC 37, decided on 17-06-2021]

Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

US Supreme Court: In a crucial verdict for the LGBT Community, the US Supreme Court has, in a 6-3 verdict, held that

“An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.”

Title VII of the Civil Rights Act, 1964 makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”

The batch of cases before the Court, the employers had allegedly fired a long-time employee simply for being homosexual or transgender.

Opinion of the Court

Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. He wrote,

“When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.”

In the case at hand, the employers did not dispute that they fired their employees for being homosexual or transgender. Rather, they contended that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. They argued that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically.

On this the Court said,

“But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule.”

Stating that the limits of the drafters’ imagination supply no reason to ignore the law’s demand, the Court said, Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them.

“Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries— virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along.”

Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. The Court, hence, recognised a necessary consequence of that legislative choice:

“An employer who fires an individual merely for being gay or transgender defies the law.”

Dissenting Opinion

Alito, J., filed a dissenting opinion, in which Thomas, J., joined. Kavanaugh, J., filed a dissenting opinion.

Alito, J, in his opinion, wrote:

“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.”

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” Neither “sexual orientation” nor “gender identity” appears on that list.

“Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties.”

[BOSTOCK v. CLAYTON COUNTY, GEORGIA, 2020 SCC OnLine US SC 2 , Decided on 15.06.2020]

Case BriefsSupreme Court

  What nature gives is natural. That is called the nature within.

                                                                       C.J. Dipak Misra and A.M. Khanwilkar, J.

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. The Bench which delivered three opinions along with the leading judgment, reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation,(2014) 1 SCC 1  which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. The Delhi High Court in Naz Foundation had declared Section 377 violative of Articles 14, 15 and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private.

 I am what I am, so take me as I am.

                                                          –Johann Wolfgang von Goethe

The present judgment can be said to be a watershed moment in India’s journey to gender equality and social justice. The judgment not only emancipates the LGBTQ community from the shackles of gender inequality; it not only gives them the freedom of individuality, Right to privacy, life and liberty, freedom of choice; but also the Right to freedom of self-expression. The decision can fairly be looked upon as a classic example of how the Indian Judiciary time and again rises to the injustice suffered by the discriminated strata of the society. The judgment more than anything gives identity.

The Court considered the validity of the section by analysing it in juxtaposition to Section 375 which defines rape. Drawing an analogy, the Court held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail. It abridges both human dignity and fundamental right of privacy and choice of the citizenry, however small. Right to privacy takes within its sweep the right to every individual including that of the LGBT to express their choices in terms of sexual inclination. The section does not survive the trinity test of Articles 14, 19 and 21. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception. To understand the scope of the judicial pronouncement by the sentinel of the qui vive – as our Judiciary has stood always — it is pertinent to delineate the observations made by the Hon’ble Judges in their opinions.

CJ Dipak Misra (for himself and A.M. Khanwilkar, JJ.)

                                                   One defines oneself. That is the glorious form of individuality

  •  It is only where each individual is liberated from the shackles of bondage of social exclusion, identity, seclusion and isolation from the mainstream, that we can call ourselves a truly free society.
  • Through its dynamic purposive interpretive approach, the judiciary must strive to breathe life into the Constitution and not render the document of collection of mere dead letters.
  • Ours is a transformative Constitution. It will become a dead testament without dynamic; vibrant and pragmatic interpretation.
  • Constitutional morality embraces within itself virtues of ushering a pluralistic and inclusive society.
  • Expression of choice is a facet of human dignity and is essential component of liberty.
  • To compel a person having a certain sexual expression to proselytize to another is like asking a body part to perform a function it was never meant to perform.

R.F. Nariman, J.

  • The present definition of mental illness in Mental Healthcare Act, 2017 makes it clear that homosexuality is not considered a mental illness.
  • Viewed in light of the principles contained in Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender of Identity, Section 377 will have to be declared unconstitutional.
  • When it is found that privacy interests came in and the State has no compelling reason to continue an existing law which penalises same-sex couples who cause no harm to others, it is transgression of Articles 14, 15, 19 and 21.
  • LGBTQ are entitled to protection of equal laws and we are entitled to be treated in the society as human beings.

Dr D.Y. Chandrachud, J.

It is difficult to right the wrongs of history. But we can certainly set the course for the Future.

  • The case involves much more than mere decriminalising certain conduct. The case is about aspiration to realise constitutional rights.
  • Section 377 is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. Constitutional values of dignity and liberty can accept nothing less.
  • LGBT have a constitutional right to citizenship in all its manifestations.
  • It is difficult to locate any intelligible differentia between indeterminate terms such as natural and unnatural. It is even more problematic to say that the classification between individuals who engage in natural intercourse and those engaging in carnal intercourse against the order of nature can be legally valid.
  • Constitution protects fluidities of sexual experience and leaves it to the consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and infinite ways of love and longing.
  • By application of Section 377, MSM and transgender persons are excluded from access to health care due to social stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by sexual minority cannot stand the test of constitutional validity.

Indu Malhotra, J.

  • Homosexuality is not an aberration but a variation of sexuality.
  • Sexual orientation is not a choice. It manifests in early adolescence.
  • Sexual expression and intimacy of consensual nature, between adults in private, cannot be treated as carnal intercourse against the order of nature.
  • LGBT is a sexual minority and is equally entitled to protection afforded by Article 15.
  • LGBT are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21.
  • Section 377 compels LGBT persons to live in a closet. They are seriously disadvantaged and prejudiced when it comes to access to healthcare facilities.
  • The Section cannot be justified as reasonable restriction under Article 19(2) on basis of public or societal morality as it is inherently subjective.

The Judgment that was delivered, joins the plethora of authorities – including, inter alia, National Legal Services Authority v. Union of India, (2014) 5 SCC 438; K.S Puttaswamy v. Union of India, (2017) 10 SCC 1; Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755; etc.- that were referred to be the Bench in the case herein. The petitions were disposed of observing and holding all that is mentioned hereinabove. [Navtej Singh Johar v. Union of India, 2018 10 SCC 1, decided on 06-09-2018]    

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. without any delay resumed the proceedings on Section 377 IPC, 1860 today.

ASG Tushar Mehta placed the Government’s side by stating that he won’t contest the provision concerning consensual sex between adults but would want clarity on bestiality by leaving the decision of decriminalization on the wisdom of court.

Chandrachud J., giving his stance in the midst of the proceedings stated that “We don’t want a situation in which the police arrest the homosexuals enjoying a walk on Marine Drive and charge them under Section 377.”

Learned advocate Saurav Kripal appearing for one of the petitioners stated that “Sexual orientation is part of individual rights.”

Advocate Maneka Guruswamy representing IIT students and alumni commenced by saying that Section 377 violates the fundamental rights of the citizens including Articles 14 (equality), 15 (discrimination on sex) and 19 (liberty). By placing her focus primarily on Article 15, she placed reliance on Justice J S Verma Committee recommendations on sexual orientation.

“It was the Victorian morality that people should have sex only with opposite gender since sex is only for procreation.”

Further, Guruswamy referred to the Indian Psychiatric Society of India’s notification of July 2 stating that homosexuality is not a disorder. By making a plea for her clients, Guruswamy stated that “These young people need to be unafraid to love and be loved, and they should be protected by this Court.” One of the contentions placed was that it violates the right to seek employment including State employment and constitutional offices as well.

How strongly must you love knowing you are unconvicted felons under Section 377 IPC?” : Maneka Guruswamy

Chandrachud, J. said that law should be ahead of society and particularly in this kind of relationship.

CJ Dipak Misra stated that “A declaration that this relationship is constitutional will remove the ancillary disqualification for people joining services, contesting elections. It will no longer be seen as moral turpitude.”

Guruswamy contended that Section 377 violates the sexual minorities’ rights to form social, political or any other form of association and concludes by stating that they need “recognition”.

Advocate Anand Grover representing Arif Jafar who was caught by police for promoting condoms amongst men commenced his arguments by stating that Section 377 has a very wide scope, which can’t be understood by anybody. He further stated that in 172nd Law Commission Report, repeal of Section 377 had been suggested.

“If the object isn’t fair, statute isn’t sustainable.”

Grover also contended that “carnal intercourse” in Section 377 is wider than “sexual intercourse” in Section 375. He concluded his arguments by saying that “Some community including LGBT didn’t get independence. They are being oppressed even after independence of India.”

CJ Dipak Misra stated that “A consensual relationship cannot materialise without the exercise of free choice.”

Further, Senior Advocate Shyam Divan representing “Voices against 377” stated that Section 377 criminalises certain acts only but in its application, it is not used against consenting sexual acts between heterosexual adults but is used against LGBT.

The hearing concluded for 11-07-2018 and to resume tomorrow i.e. 12-07-2018. [Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 11-07-2018]

[Source: The Hindu]

Op EdsOP. ED.

 “If we just hold privacy is a fundamental right, Naz judgment may become vulnerable”, Dr. D.Y. Chandrachud, J while hearing the issue of ‘right to privacy’.

On 18.07.2017, the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge Constitution bench as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right.

Chandrachud, J was a part of this 9-judge bench when he said that holding that ‘right to privacy’ is a fundamental might right will mean that the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where it was held that Section 377 IPC does not violate a person’s right to privacy, will no more be a good law.

This one remark by Chandrachud, J on the first day of hearing is a silver lining for the LGBT community. If ‘right to privacy’ is declared to be a fundamental right, the decision will be binding on the bench hearing the curative petition in the Naz Foundation case.