The Author, K. Jayapriya, is an Advocate in Chennai, Tamil Nadu. She completed BA LLB from Dr.Ambedkar Government Law College. She is currently interning with Latest Laws.

Introduction:

LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer) people are members of a social minority group who identify themselves with distinctive sexual and gender orientation and diverged from the dominant heterosexual people. They are still fighting for social recognition in the society. The laws of approximately eighty countries consider homosexuals as criminals and are subject to draconian punishments[1]. They are exposed to social, economic, and cultural injustice in society. Social practices and personal rights of such minorities in a country are the most debatable topic in the present era. The LGBTQ Community is widely deprived of fundamental human rights such as the right to live with dignity, freedom from discrimination, and the right to privacy[2]. However, it is an accepted fact that some countries are reforming as there is a scope of positive changes, and the rights of the LGBTQ community are increasingly being recognized. Nevertheless, the genuine recognition of such a group in all their walks of life without discrimination is the long road to travel.

When there is no legal recourse to the protection of the basic rights of the LGBTQ community the Alternate Dispute Resolution Mechanisms outside the purview of the court are their only reliable platform. For the issues encountered by the LGBTQ community such as discrimination, harassment in the workplace, the threat to violence due to their sexual orientation, and intolerance, the LGBTQ people desperately depend on ADR Mechanisms.

We all are well aware that amidst the tedious time-consuming court procedures, the Alternate Dispute Resolution Mechanisms are the boon to the fast-moving world including LGBTQ people. Speedy and disputant-friendly methods are the most significant advantages of the ADR mechanism. The main goal of the ADR Mechanism is to resolve the disputes between parties amicably without straining the relationship between the parties with the help of an unbiased third party. There are various kinds of Alternate Dispute Resolution Mechanisms such as Arbitration, Mediation, settlement conferences, neutral evaluation, Lok Adalat, etc. One such frequently adopted dispute resolution method is Mediation. Mediation ensures confidentiality between the parties and the mediator (impartial third party). The mediator communicates using specialized communication techniques to the disputant and helps them to resolve the issue. “Mediation talks about what is right whereas the judicial system talks about who is right,” rightly pointed out by Hon’ble Justice A.K. Sikri as the mediation addresses the grievances of the parties amicably [3].

Scope of ADR Mechanisms in LGBTQ issues - National Perspective:

Bigotry is the legacy given to Indians by the British colonial rule. Indian society practices bigotry against the LGBTQ community and also against every other group based on each other’s beliefs, opinions, and factions[4]. The sexual orientation of LGBTQ people is widely considered unnatural in the Indian society and therefore the LGBTQ group is subjected to bigotry in all possible ways. They treat transgenders as untouchables and drive them out of their own family. People in India believed that recognizing the LGBTQ community is against social morality. The Supreme Court of India played a vital role in initiating the social reformation in terms of considering the fundamental rights of the LGBTQ community through two landmark judgments viz. NALSA case and Navtej Singh case. In the National Legal Services Authority v. Union of India [5], the Supreme Court had duly recognized the status of transgender people as the third gender. Later, in Navtej Singh Johar v. Union of India, Ministry of law [6], the Court had gone a step forward and decriminalized homosexuality by declaring the draconian Section 377 of the Indian Penal Code as unconstitutional.

The decriminalization of homosexuality has catalyzed the recognition of marriages among the LGBTQ community. However, they fight for the rights attached to their sexual orientation viz. the right to marry, the right to claim a formal identity through a passport and ration card, the right to adopt a child as homosexual parents, right to own property etc. is still on even now. The lacuna of the Indian Legal system is reducing in terms of recognizing all the above rights of the LGBTQ community. Only when a society comes forward to consider the LGBTQ community as a peer group, the reformation shall begin at the foundation of society. One such example of the transformation of society is the Sushma Agarwal Case. In Sushma Agarwal v. Commissioner of Police, Chennai [7], the Madras High Court had laid down a profusion of interim guidelines to accommodate the LGBTQ community considering their vulnerable situation until the legislature takes up the issue.

But when the statutory law doesn’t allow the transformation of the society, the gap between the statutory law and the natural law must necessarily be bridged by a reliable tools such as the Alternate Dispute Resolution mechanism. Indians embrace several ADR Mechanisms based on the terms of their agreements and circumstances of the issues wherein mediation is the constant method.

The key advantages in adopting mediation in LGBTQ issues are:

Mediation ensures the relationship between the parties is not strained.
It safeguards the privacy of the content of the mediation.
It guarantees that both parties to the dispute are heard unanimously by the impartial third party.
Resolution of the issues is wholly based on the subject matter of the grievance and not on the parties to the dispute.

“Mediation can effectively resolve disputes governing the LGBTQ community; it ensures relationships are preserved, privacy is guarded & parties are heard,” Justice Anand Venkatesh, High Court of Madras said in a Lexidem Webinar organized by KD Lex Chambers and Indian Dispute Resolution Centre (IDRC), duly acknowledging the advantage of mediation in the LGBTQ issues. In the said webinar, Justice Anand Venkatesh shared his experience of writing the judgment of the Sushma Agarwal case. He also recommended the members of the queer community should be included as mediators, and also the other mediators should be sensitized to understand the issues of the LGBTQ community [8].

One of the speakers in the panel of the said webinar, Ms. Chithra Narayan, Mediator and Founder-Trustee, FCDR, has also put forth the concept of transformative mediation [9]. The transformative approach to mediation, as enumerated by Ms. Chithra Narayan, strives for the empowerment and mutual recognition of the parties involved. Transformative mediation helps the parties to define their issue and arrive at a solution on their own when the mediator guides the parties to have clarity and maintain control of the transformation process and the substance of the discussions [10].
Now that LGBTQ people are courageous enough to come out and reveal their identity to the world, but they are becoming more prone to harassment and discrimination at their workplace, home, living place, etc. at the same time. Therefore, Alternate Dispute Resolution Mechanism is the most pertinent way to safeguard the interest of the LGBTQ people unless and until the Indian legislation articulates the rigid laws to their rescue.

Scope of ADR Mechanisms in LGBTQ issues - International Perspective:

The social acceptance of the LGBTQ community is growing globally in recent times. As per the survey report on the updates to the LGBT (lesbian, gay, bisexual, and transgender) Global Acceptance Index (GAI) from 1981 to 2017, the number of Countries that accepted the LGBTQ community is increased from 123 to 174[11]. The United Nations Human Rights Office has initiated the United Nations Free and Equal Campaign against Homophobia and transphobia. This resolution of the United Nations Human Rights Council that called on members states to protect against barbarity and prejudice based on sexual identity and orientation, formulated on June 30, 2016, has gained universal recognition [12] [13]. This campaign led several countries to recognize the LGBTQ community and their rights. Even though countries like Canada, Spain, the Netherlands, Norway, and Iceland are top countries that accept the LGBTQ community [11], queer people still have an increased amount of risk of hatred, discrimination, violence, and exclusion of LGBTQ people.

The social neglection of the LGBTQ community in countries worldwide forced them to live poor. The positive side of the view is that most of the Western countries have established Alternate Dispute Resolution Mechanisms to deal with the everyday problems of the LGBTQ community. The primary advantage of western mediation is cost-effectiveness, privacy, and the mediators are unbiased and unprejudiced. In an article, “Access to justice and dispute resolution across cultures”, Scholar Sukhsimranjit Singh writes that the improved efficiency, cost-effectiveness, and promotion of culture evolved from dialogue and compromise are the purpose of ADR [14].

Conclusion

Social acceptance of LGBTQ people shall be derived only when civil rights are approved by the statute of a country. However, access to justice can be furnished only by employing a legitimate mediation for LGBTQ issues. Further, the complexity of legal marital status to LGBTQ persons poses a challenge in the court system. Creating an environment through which the LGBTQ persons communicate and share their story and resolve the disputes between them is essential to derive true justice to the LGBTQ people. Transformative mediation remains one of the exemplary methods to understand the issues of LGBTQ people. The scope of alternate dispute resolution mechanisms is broader in terms of the speedy, private, presence of a sensitized mediator, and cost-effective and therefore it is more accessible and reliable for the LGBTQ community.

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