[Plight of Transgender Community] Ker HC | To avoid difficulties & translate rights into reality, members of transgender community or NGOs need to identify problems and approach officers concerned

Kerala High Court:  Division Bench of S. Manikumar, CJ and Saji P. Chaly, J., while addressing a matter wherein plight of transgender community was placed, Court held that,

“…in order to translate the rights into a reality, and to avoid practical difficulties, Court is of the firm opinion that it is for the members of the community, or NGOs and others who are working with the transgender community to identify the problems faced by the members of the community and point out the same to the officers.”

Present Public Interest Litigation was filed by a transgender person.

Issues

Respondents have not undertaken to ensure the distribution of ration, medicines, access to medical treatment etc. to the transgender community in Kerala.

Transgender persons have been discriminated in the matter of relief measures during lockdown.

Petitioners’ case

Petitioner states that she was recognised a transgender person in the State of Kerala and it was issued an identity card by the Social Justice Department.

Petitioner has also sought benefits as laid down in the Supreme Court decision of National Legal Services Authority v. Union of India, (2014) 5 SCC 438,

all transgender persons have a right to self-determine their gender identity as male, female or transgender and non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.

Transgender policy was evolved for the transgender persons in Kerala during the year 2015.

Petitioner states that, apart from the above mentioned issues, transgender community is being subjected to threats with regard to eviction as they are unable to pay rent.

Authorities have not been extending any financial benefits to the transgender community.

Respondents Contentions

Director of Social Justice contended while refuting the claims of the petitioner that earnest efforts were being made by the State Government to provide the necessary facilities to the public at large including the transgender community.

So far as the general allegations with respect to the failure on the part of the Government to take necessary steps for supplying ration kits and other articles to the members of the community are concerned, it is stated that earnest efforts were made for the supply of the ration, ration kits and other articles, and also for providing shelter for those persons who were in crisis during the period of lock down.

Necessary medicines were provided to all transgender persons who had undergone hormone therapy and arrangements were made through the Transgender Justice Committee and other NGOs.

Civil Supplies Department had provided the facility for transgender community to mark their gender as ‘T’ in the ration card, so that they could also avail the facility to buy ration articles through their ration cards.

It is prominently submitted that the Social Justice Department, the State as well as the District Authority functioning for the transgender community have not received any complaint with respect to non-access to food supply, medicines and threat of eviction. 

Decision of the Bench

Petitioner has not specified ay of the instances whereby the ration articles, ration kit and the ration card was denied to the transgender persons on them approaching appropriate statutory authority.

Wirth regard to rights of the transgender community, Court stated that,

“…when the State Government has taken enough and more steps to provide various facilities and the authorities are appointed for addressing their issues, it is for members of that community or the NGOs or the members representing the transgender community to approach the said authorities and put forth the rights, they are entitled to.”

Court added to its observation that, identification of the transgender community is an issue involving privacy and therefore, unless and until such persons approach the authorities and their identity is so revealed and recognised, the authorities cannot take action for supplying medicines, ration, ration cards and identity cards and that too after thorough medical examination.

“…there are no reasons for denying any basic human right to a member of the transgender community.”

Yet, the Court issued the following directions:

  • Whenever any member of the transgender community approached the statutory authority concerned with medical prescription of the doctor, medicine should be supplied free of cost.
  • When any member of the transgender community approaches the District Authority or Nodal Officer appointed for the purpose of issuing gender identity card and the ration card, necessary steps shall be taken at the earliest to address the issues
  • Any other issues raised by the transgenders in writing shall also be addressed appropriately
  • 5 persons whose names have been mentioned in the statement filed, if approach the District Authority concerned, their issues should be addressed.

With the above observations, Court dismissed the petition.[Kabeer v. State of Kerala, WP(C) No. 9890 of 2020(S), decided on 08-06-2020]

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