LGBTQIA+ Individuals Experience Familial Rejection, Crucial To Recognize Family As 'Sites Of Violence' And Grant Protection: Kerala High Court

The Division Bench comprising Justice Raja Vijayaraghavan V and Justice P M Manoj made the observation while dealing with the plea filed by parents of a 23-year-old woman stating that their daughter was illegally detained and living in a 'toxic' relationship with a person of the same gender.

The Court interacted with the petitioner's daughter who submitted that she has consciously chosen her partner but, her parents had compelled her to undergo counselling to "overcome" her sexual identity and orientation by labelling it as psychiatric issues.

In this backdrop, the Court directed the concerned SHO to protect the petitioner's daughter from threats and violence of her family members and upheld her right to lead a life on her own terms and choices. It said,

“For many LGBTIQA+ individuals, especially in India, expressing their gender identity or sexuality, is an act of defiance in a society that continues to set rigid cultural norms for gender identity and expression. From an early age, LGBTIQA+ individuals face stigma, violence, and discrimination on the basis of their identity. This stigma is often rooted in inaccurate beliefs and cultural norms that repress gender non-conforming behaviour and expressions. The economic, social and political discrimination against them can have long-term impacts on their mental health, employability, access to education, housing and shelter, especially if such individuals experience familial rejection and isolation from social support systems.

Many LGBTIQA+ youth face familial rejection, often from an early age. This rejection can take a devastating toll on individuals and isolate them from physical, emotional and economic resources that are essential to their well-being. In such cases, it is important to recognise the family as a site of violence and control for many queer women, who they need protection from rather than any “guardianship”.”

The parents submitted before the Court that certain persons of LGBTQIA+ community "lured" their daughter to join an online social media group by name 'Mazhavillu'. They submitted that they had to seek counselling for their daughter from a psychologist since she was suffering from psychological and behavioral issues and that we she was referred to the psychiatry department after counselling.

The Court stated that the petitioner's daughter was intelligent and capable of making her own choices. The Court slammed the counselling report issued by the psychologist for calling her relationship 'toxic'. It said,

“We are of the view that the report proceeds on a fundamentally flawed premise and is liable to be ignored. The Psychologist appears to have operated under the erroneous presumption that expression of gender identity or sexual preferences by Ms.X is an act of defiance and if treated, her identity and sexual orientation could be altered. Such assumptions are baseless and inappropriate, and the report cannot be used to override the autonomous choices that Ms. X has made.”

The Court relied upon the Apex Court decision in Devu G. Nair. State of Kerala and stated that family was not limited to natal family but also "chosen family". The Court stated that LGBTQIA+ when faced with violence, humiliation and indignity from their family find solace in their partners and friends who become their chosen family.

The Court stated that Article 21 of the Constitution protects life and liberty if every individual irrespective of their identity or sexual orientation. It stated that the right to sexual orientation is an innate part of the identity of LGBTQIA+ persons and protected under the right to privacy.

The Court further stated that the right to privacy now includes ideas of spatial privacy, and decisional privacy or privacy of choice. “Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy”, added the Court.

Thus, the Court stated that the petitioner's daughter has the right to live her life on her own terms and upheld her right to choose to live with her partner. The Court also directed the petitioners to hand over the identity cards and certificates to their daughter to seek a livelihood. 

The Court further expressed its hope that the petitioners would accept their daughter's sexual orientation and preferences with understanding and compassion.

Counsel for Petitioner: Advocate A Sanil Kumar

Counsel for Respondents: Advocates Rebin Vincent Gralan,

Mahima, Government Pleader P M Shameer

Citation: 2024 LiveLaw (Ker) 383

Case Title: S v State of Kerala

Case Number: WP(CRL.) NO. 592 OF 2024

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