The Supreme Court’s collegium has finally approved the recommendation of Saurabh Kirpal as Delhi high court judge, which if passed by the Union Ministry of Law and Justice, will make him India’s first openly gay judge
India has come a long way when it comes to the rights and acceptance of the LGBTQ+ community and the Supreme Court’s decision to approve the proposal of appointing Saurabh Kirpal as a Delhi High Court judge reflects this change.
He could be India’s first gay judge, but isn’t the first in the world and joins an illustrious list, which also reflects how the judiciary across the world is changing its view and being inclusionary and representative of the world at large.
Here’s a look at how the various judiciaries across the world is accepting LGBTQ+ community.
Saurabh Kirpal — India
Advocate Saurabh Kirpal’s likely elevation to high court judge emerged on Monday.
A graduate in physics from St Stephens, Delhi, Judge Kirpal studied law at Oxford University and has a masters in law from Cambridge University. Image Courtesy: Saurabh Kirpal/Twitter
If appointed by the Centre, Kirpal will be the first openly gay judge of a constitutional court in India.
It was reported that the Supreme Court collegium, led by Chief Justice of India NV Ramana, took the decision of elevating Kirpal, on 11 November.
The decision came after the collegium had deferred on his elevation four times.
Kirpal studied physics at St Stephen’s College in Delhi and then did his masters in law at the University of Cambridge.
He has practised law for over two decades and comes from a family of law — his father, BN Kirpal, was the Chief Justice of India for six months in 2002.
Kirpal has fought several high-profile cases but is best known for the Navtej Johar case, which led to the Supreme Court decriminalising homosexuality in 2018.
In previous interviews, Kirpal has been open about his sexuality and in fact, has stated that it may be one of the reasons why his elevation to judge had been deferred in the past.
Speaking to Hindustan Times in 2020, he had said, “My professional competence was known to the high court and the Supreme Court collegium and my case for elevation was presumably not deferred for that reason. Media reports seemed to indicate the issue might have been the nationality of my partner who is Swiss. Had I been a straight man with a foreign spouse, this would not have been an issue; former Supreme Court judges have had foreign spouses. But it became an issue only because I am not.”
When asked why he wanted to be a judge, Kirpal had told the Quint, “I would have potentially been a role model for the queer community. For young lawyers, young students, to look up and say, ‘If this person can make it, maybe, so can I’.”
Beth Robinson — United States of America
On 3 November, the United States Senate confirmed Beth Robinson, a Vermont Supreme Court judge, to the 2nd US Circuit Court of Appeals, making her the first out lesbian to serve on any federal circuit court.
Beth Robinson, who previously served as an associate justice on the Vermont Supreme Court, is now a US appeals court judge. AP
Robinson is the first out LGBTQ+ woman to serve on a federal appeals court, following the appointment of Judge Todd Michael Hughes in 2013 — the first LGBTQ+ person to hold such a position.
According to Lambda Legal, a leading LGBTQ civil rights group, of the 870 federal judges on the bench, only 13 are openly gay or lesbian. There are also no known bisexual or transgender jurists on the federal level.
Explaining why LGBT representation in the country’s judiciary was important, Sharon McGowan, Lambda Legal’s chief strategy officer and legal director, had said, “LGBT representation in the courts is critical because judges that more accurately reflect the diversity of our nation give legitimacy to these important institutions, which have such a profound impact on the lives of so many. Judge Robinson’s lived and professional experiences will be assets in her work to fulfill our nation’s promise of justice.”
Sir Terence Etherton — Britain
Sir Terence Etherton in September 2008 shattered the ‘pink glass ceiling’ when he became the first openly gay judge to be sworn in as Lord Justice of Appeal.
For those who don’t know, it means that Etherton was promoted to Britain’s second-highest court.
In 2016, he was then appointed as master of the rolls, making him head of the civil judiciary in England and Wales.
Judiciary out of the closet
Apart from the appointment of people belonging to the LGBTQ+ community, courts across the world, including India, have passed legislation, protecting and according to the community.
Apart from the Section 377 verdict in 2018, the courts of India have taken up various legislations in favour of the community.
For those who have forgotten, in September 2018, the Supreme Court of India ruled that gay sex is no longer a criminal offence.
Reading out the judgment, the then Chief Justice Dipak Misra said: “Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional.”
Another judge, Indu Malhotra, said she believed “history owes an apology” to LGBT people for ostracising them.
Justice DY Chandrachud said the state had no right to control the private lives of LGBT community members and that the denial of the right to sexual orientation was the same as denying the right to privacy.
In 2019, the Madurai Bench of the Madras High Court upheld the marriage between a trans woman and a cis man and affirmed it to be valid under the Hindu Marriage Act, 195.
More recently, in June 2021, the Madras High Court in a petition filed by a lesbian couple seeking protection from harassment by police and family, said “the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there isn’t any guarantee for their safety and protection”.
In June 2020, the US Supreme Court had made it illegal for employers to discriminate because of a person’s sex.
Gay rights advocates celebrated the ruling, saying that it was even more important than the fight to get the right to marry, because nearly every LGBTQ adult has or needs a job.
While the world and India celebrates how far it has come, there’s much more that needs to be done for the LGBTQ+ community across the world because in many countries, being gay is still considered a crime.
With inputs from agencies