Kerala High Court: In a writ for setting a transwoman at liberty from the illegal detention by her family, the Division Bench of Raja Vijayaraghavan V* and P.M. Manoj, JJ., allowed the writ petition while holding that the choice and desire expressed by X needed to be respected and that she should be permitted to live her life on her own terms.
Background
The present petition was filed by a close associate of X, a transwoman, alleging that had been subjected to familial violence when she disclosed her gender identity to her family. The respondents 2, 3 and 4 are the mother, father and sister, respectively of X. Petitioner submitted that X even had sought assistance from Disha, an organization dedicated to safeguarding the rights of individuals like herself and sought for intervention.
It was asserted by the petitioner that X was admitted to the hospital and was also coerced into signing a consent form under duress, hence, seeking urgent help, X lodged complaints with the police as well as the Social Welfare Department. It was also alleged that X was threatened with being labeled as mentally ill if she insisted on being discharged from the hospital. The petitioner was aggrieved as no action had been taken for her complaints.
It was further submitted by the petitioner that sexual orientation and gender identity was integral to the personality of X, and the respondents had been attempting to portray her self-defined sexual orientation and gender identity as a form of sexual perversion and a mental disorder that needed psychiatric treatment.
By order dated 27-06-2024, the Court interacted with X and her parents and sister privately in the chambers. Upon such interaction it was stated by X that she was a 19-year-old adult who was assigned male sex at birth but now identified as a transwoman. She submitted that she was subjected to therapy aimed at altering her gender identity and was also administered medication without her consent. X also informed the Court that she had no desire to return to her family as being forced to change her gender identity violated her personal autonomy, right to self-determination, and freedom of choice.
On the contrary, the parents and sister of X stated before the Court that they had no objection to however X chose to express herself, further emphasizing that their primary concern was her safety, and they did not object to financially support her education. They further stated that X suffered from gender dysphoria and that they only sought treatment for her when X displayed aggression towards them.
Decision and Analysis
Upon hearing the parties and examining the material on records, the Court noted that X was a 19-year-old individual, who had faced hostility from her parents, was being forced to undergo treatment to alter her identity and had decided to live separately from them owing to such hostility.
The Court referred to the decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein it was held that each person’s self-defined sexual orientation and gender identity was integral to their personality and was one of the most basic aspects of self-determination, dignity, and freedom. The Court also referred to Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 where the rights of LGBT persons were discussed and was held that LGBT persons, like other heterosexual persons, were entitled to their privacy, and the right to lead a dignified existence, without fear of persecution. The right to life and liberty would encompass the right to sexual autonomy, and freedom of expression.
The Court noted that X being an adult had the right to choose how she chose to live and held that she should be allowed to live her life on her own terms. However, the Court observed, based on the submissions made by the parents of X, that since X suffered from gender dysphoria, her parents would finance any treatment that she chose, as she was unemployed and on her own.
The Court, therefore, allowed the petition, setting X at liberty.
[Adithya Kiron v. State of Kerala, 2024 SCC OnLine Ker 3522, decided on 01-07-2024]
*Judgment authored by Justice Raja Vijayaraghavan V.
Advocates who appeared in this case :
Advocates for the Petitioner: Dhanuja M.S., Advocate
Advocates for the Respondents: P M Shameer, GP
