Kerala HC reaffirmed the Right to live as ‘Transgender Person’

Kerala High Court

Kerala High Court: The Division Bench comprising of V. Chitambaresh & K.P. Jyothindranath, JJ., held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep, the right of a person to live as a transgender as was also previously held by Hon’ble Apex Court in National Legal Services Authority v. Union of India (2014) 5 SCC 438.

The mother (petitioner) of the person (detenu) had in this habeas Corpus petition alleged that her son was not a Transgender mentally or psychologically and a group of transgender persons has illegally detained him. She had claimed that he had “mental aberration of mood disorder” and lamented his sight in the robes of a woman and his being rechristened as ‘Arundhathi’ by the group.

In the medical examination ordered by the Court, it was revealed that the person suffered from no mental disorder. The Transgender person, who later referred himself as a female also appeared before the Court and told the Court that she was living as per her wishes and had identified herself as a woman from the age of 11. Based on the medical report, the Court noted that though the alleged detenu has normal male genitalia, she fits the label ‘transgender’ on external examination as per the Diagnostic and Statistical Manual 5th Edition (2013).

The Court quoted from William Shakespeare’s play Othello the oft quoted words of Iago the villain in the Shakespeare’s play: ‘I am not what I am.’ Lastly, Court held that the detenu has undoubtedly the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home. The Court, therefore, proceeded to dismiss the petition. [Tessy James v. Director General of Police, 2018 SCC OnLine Ker 2140, order dated 12-06-2018]

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