1. INTRODUCTION

The Tamil Nadu Social Welfare and Women Empowerment Department released a glossary of terms relating to the LGBTQIA+ community via a notification dated August 20, 2022 ("Notification")1 . The Notification can be found here and was released in compliance with the directions issued by the Madras High Court ("High Court") in the writ petition S. Sushma & ors. v. Director General of Police & ors.2 , on December 06, 2021. For further details on the facts of the case and its significance, please refer to our earlier  update.

Justice Anand Venkatesh, in addition to granting the relief sought by the petitioners, also directed Government ministries and their departments to take measures necessary to eliminate prejudices against the LGBTQIA+ community. Specifically, the Department of Social Welfare and Women Empowerment was directed to prepare a standardized guide/prescriptive glossary containing the words and expressions to be used by the media while addressing persons belonging to the community. Complying with the directions of the High Court, a draft version of the glossary was first shared on February 18, 2022. Justice Anand Venkatesh subsequently, through his order dated August 22, 2022, directed all concerned parties to only use the terms notified in the glossary while addressing persons from the LGBTQIA+ community.

2. HIGHLIGHTS

The key highlights of the Notification are as follows:

  1. The Notification has clearly explained the difference between the terms 'sex' and 'gender'. 'Sex' is defined biological characteristics (internal or external parts of their bodies, sex chromosomes etc.) of a person whereas 'gender' is defined as a societal construct that is based on prevailing expectations of how individuals with a particular 'sex' assigned at birth are expected to behave.
  2. 'Sex characteristics' is defined under the Notification as an individual's physical, sexual or reproductive features that are formed on the basis of their 'sex'. Individuals who have 'sex characteristics' that do not conform to medical and social norms for male and female bodies are defined as 'intersex' persons.
  3. The Notification provides insight into the distinction between 'intersex' and 'transgender' persons. A common misconception is that all 'intersex' persons are transgender, whereas in reality, 'intersex' persons have a diverse range of choices when it comes to their 'gender identity', sexuality, and sexual orientation. 'Intersex' people are those that have innate sex characteristics that do not fit medical and social norms for male or female bodies, while 'transgender persons' are those persons whose gender identity does not match with the sex they were assigned at birth. The Notification further clarifies that the word 'transgender' with regards to 'gender identity' is an adjective and not a noun. The following are examples of appropriate use of the term: 'transgender person', 'trans person', 'transgender man/woman', 'trans man/woman' etc. Whereas using 'transgender' or 'transgenders' is incorrect. It is pertinent to note that the Notification has taken cognizance of the Supreme Court of India's ruling in the case of National Legal Services Authority v. Union of India3 and has clarified that a person is transgender regardless of whether or not such person has undergone gender affirmation procedures like hormone therapy or surgery.
  4. Gender Identity' refers to an individual's definition of their own gender and 'gender expression' refers to how an individual expresses or presents their 'gender'. Common examples of gender expression are a person's chosen name and preferred pronouns.
  5. The Notification further elaborates on the concept of 'gender non-conforming person' i.e., individuals who do not identify as either binary gender definitions of male or female and includes those whose 'gender expression' differs from standard gender norms.
  6. Under the Notification, a corollary of 'non-binary' is provided in the definition of the term 'gender fluidity/gender fluid person'. This refers to a person who does not have a 'fixed gender' and may identify with all genders, multiple genders or with two genders.
  7. The Notification further explains various terms relating to 'sexuality', which is defined as a person's behaviours, desires, identity, and attitudes related to sex and physical intimacy with others. In addition to 'heterosexuality', 'homosexuality' and 'bisexuality', it defines lesser-known terms such as 'pansexuality' (attraction towards persons of multiple/all genders), 'asexuality' (a person who does not feel sexual attraction to anyone), and 'aromantic' (a person who does not feel emotional/romantic attraction towards anyone).
  8. Finally, the Notification provides insight into the meaning of several umbrella terms such as – (i) Queer (a term which was used pejoratively but has now been reclaimed by the community to refer to diverse sex characteristics, genders, sexualities that are neither cisgender nor heterosexual); (ii) LGBTQIA+/LGBTIQA+ (an abbreviation used to refer to, inter alia, gay, lesbian, bisexual, transgender, intersex and asexual people. The plus indicates inclusion of various other non-cisgender and non-heterosexual categories of persons); (iii) Coming Out (the process of disclosing one's LGBTQIA+ identity to others. It is pertinent to note that coming out is a continuous process as queer persons often have to disclose their identity to various individuals at different times in their lives); (iv) Ally (an individual or organization that supports the rights of LGBTQIA+ persons); (v) Conversion Therapy (practices that aim to change or convert people from queer to heterosexual or from transgender to cisgender etc. These practices have been banned by law in Tamil Nadu).

3. INDUSLAW VIEW

The Notification has been hailed across the board as a step towards ensuring dignity and respect to members of the LGBTQIA+ community. The Notification clarifies the meaning and usage of key terms relating to the LGBTQIA+ community and can very well be used as a guide by employers seeking to incorporate more inclusive terminology in their organizational policies. Employers can also include the terms and their usage as a facet of their sensitization programs/workshops to increase employee awareness with regards to persons from the LGBTQIA+ community. These measures could not only ensure that an organization's D&I matrix caters to its diverse workforce but with appropriate awareness, this could also mitigate instances of harassment that are borne out of commonly held misconceptions/stereotypes.

Footnotes

1. A copy of the Notification is available at https://www.paalputhumai.com/wp-content/uploads/2022/08/Glossary-for-adressingLGBTQIA-Community-2022-by-TN-SW-Dept.pdf.

2. W.P. No. 7284 of 2021.

3. AIR 2014 SC 1863

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.