Transgender Persons (Protection of Rights) Act

Case BriefsSupreme Court

   

Supreme Court: In a writ petition filed by a transgender woman seeking direction to the respondents to consider her candidature for the post of cabin crew in Air India, the division bench of Dhananjaya Y Chandrachud and Hima Kohli, JJ. has directed the Central Government to consult the National Council, to devise a policy framework in terms of which reasonable accommodation can be provided for transgender persons in seeking recourse to avenues of employment in establishments covered by the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’). Further, it directed the Central Government to implement the provisions of the said Act in letter and spirit by formulating appropriate policies and to provide clear guidance and enforceable standards to all other entities, including, those of the Union Government, State Governments and establishments governed by the 2019 Act.

In the case at hand, a transgender woman, had sought employment as a member of the cabin crew in Air India, pursuant to an advertisement in the ‘female category’ as no special category for transgender persons was provided. After clearing the preliminary medical examination tests, the petitioner appeared for the group dynamic (‘GD’) and personality assessment test (‘PAT’) which evaluates the candidates on subjective parameters, including overall personality, self-confidence, service aptitude, and sociability. The respondent contended that the petitioner was not selected for the said post due to her inability to score the minimum qualifying marks in the GD and PAT.

The Court took note of National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the Court recognized the fundamental rights of the transgender population, including the right to self-determination of one’s gender as an extension of Article 21 of the Constitution, and held that incidental to their fundamental right to live with dignity under Article 21, is the right of equal access to all facilities to achieve full potential as human beings, including proper education, social assimilation, access to public spaces and employment opportunities.

Further, the Court referred to relevant Sections of the 2019 Act and observed that Section 3(b) stipulates that no person or establishment shall discriminate against a transgender person, inter alia, by giving unfair treatment in, or in relation to, employment or an occupation. Further, Section 9 prohibits discrimination in employment and provides that, no establishment shall discriminate against any transgender person in any manner relating to employment including recruitment, promotion and other related issues.

The Court said that though the immediate contours of the case relate to the civil aviation industry, the issues raised cover a broader spectrum regarding to the formulation of appropriate policies by the government, and the implementation of the provisions of the 2019 Act by all establishments to give effect to the guarantee of non-discrimination embodied in Sections 3 and 9.

The Court also said that transgender persons routinely face multiple forms of oppression, social exclusion and discrimination, especially in the field of healthcare, employment and education. Further, gender stereotypes in the workplace disproportionately impact transgender persons for not subscribing to societal norms about appropriate ‘feminine’ and ‘masculine’ appearances and mannerisms.

Thus, the Court has directed the Union Government to adopt suitable measures after collaborating with the National Council and place a policy on the record before the next date of listing.

The matter will next be taken up on 6-12-2022

[Shanavi Ponnusamy v. Ministry of Civil Aviation, 2022 SCC OnLine SC 1581, decided on 08-09-2022]

Advocates who appeared in this case :

R. Prabhakaran Advocate-On-Record G. Sivabalamurugan, Advocate Selvaraj Mahendran, Advocate C. Adhikesavan, Advocates, for the Petitioner(s);

Sanjay Jain, Advocate Arkaj Kumar, Advocate Akshay Amritanshu, Advocate Tanya Aggarwal, Advocate Yuvraj Sharma, Advocate Kanu Agrawal, Advocate Padmesh Mishra, Advocate Pranay Ranjan, Advocate-On-Record Arvind Kumar Sharma, Advocate-On-Record Amrish Kumar, Senior Advocate K.V. Viswanathan. Advocate Neetca Sharma, Advocate Fauzia Shakil, Additional Solicitor General, for the Respondent(s).

*Apoorva Goel, Editorial Assistant has reported this brief.

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In a writ petition filed for calling the records of the prospectus issued for the Post Basic (Nursing) Course and Post Basic Diploma in Psychiatry Nursing Course for the academic year 2022-2023, and to quash the same as illegal for not categorising transgenders under special category, and further to direct the respondent to admit the petitioner in the said Course under special category as transgender, R. Suresh Kumar, J. has directed the respondent to treat the petitioner as the third gender/transgender and accordingly, place her in a special category for the purpose of admission to the said course for which the merit list has been issued.

The Court referred to the decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein the Court has given a set of directions to both Centre and State Governments that, what action shall be taken to treat the third gender viz., transgender as a special category for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. Further, direction was given that, the Centre and State Governments must take steps to treat transgenders as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Therefore, the Parliament has enacted a law called ‘the Transgender Persons (Protection of Rights) Act, 2019 (‘2019 Act’).

The Court noted that Section 4 of the 2019 Act recognises that a transgender person shall have a right to be recognised as such, in accordance with the provisions of the Act, and the obligations of the Government have been mentioned under Section 8 of the Act and the obligation of educational institutions to provide inclusive education to transgender persons has been mentioned under Section 13. It was observed that though the said Act came into effect from 10.01.2020, however, orders have been passed by the Supreme Court, where direction has been given that reservation shall be given in cases of admission in educational institutions and for public appointments, but the prospectus in the present case, issued by the State Government, has no such reservation for third gender candidates.

The Court viewed that even though there were minimal transgender living in the State, at least a provisional note could have been provided, stating that, even though special reservation has not been made horizontally for transgender candidates, if there is any eligible transgender candidate who makes application, will be considered on merits and that candidate would be treated as a special candidate under the special category of transgender, and would be considered for admission, but such special note was missing in the said notification/prospectus.

Further, it was observed that, followed by the judgment of the Supreme Court, in the very case of the petitioner itself for 2018-19 admission, some directions have been given by this Court to reserve one seat in the transgender category as a special reservation and in that seat, the petitioner had been admitted and she completed the course, thus, the non-inclusion of the petitioner in the special category meant for transgender for admission to the course of B.Sc. (Nursing), for which the present notification was issued, is not a mere omission and it is against the judgments given by the Supreme Court as well as this Court and against the provisions of the 2019 Act.

[S. Tamilselvi v. Secretary to Government, 2022 SCC OnLine Mad 4879, decided on 11.10.2022]

Advocates who appeared in this case:

For Petitioner: Advocate Reshmi Christy

For Respondents: Government Pleader U.M. Ravichandran

Advocate M. Sneha

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: In a historic judgment Anu Sivaraman, J., had broken the norm by allowing trans women to appear for enrolment in the National Cadet Corps female wing. The Bench remarked,

“Petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”

In the instant case, the petitioner, a trans women had approached the Court after being aggrieved by denial to be considered for enrolment in NCC by the respondents. The petitioner had urged the Court to declare Section 6 of the NCC Act, 1948 as illegal and ultra vires of Articles 14, 15 and 21 of the Constitution to the extent it excludes transgender community from enrolment with the NCC and to direct the respondent to amend the enrolment criteria to include Transgender community as well. Also, to direct the respondents to take necessary steps for enrolment of the petitioner in the NCC.

The petitioner was assigned male gender at the time of her birth and later on, at the age of 21, a sex re-assignment surgery was performed. It was stated that further surgery was performed on 27-05-2019 and the petitioner’s name had also been changed as Hina Haneefa. A transgender identity card was also issued to the petitioner showing her gender as female. The grievance of the petitioner was that she was declined admission to the NCC unit by an Associate NCC officer on the ground that there was no provision for enrolment of transgender students.

Reliance was placed by the petitioner on the decision of Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, as also on the provisions of the Transgender Persons (Protection of Rights) Act, 2019 to contend that the petitioner was entitled and eligible for enrolment on the basis of the certificates produced by her. The petitioner submitted that, after the authoritative pronouncement by the Supreme Court with regard to rights of transgender persons to a life with human dignity, and that,

“The continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India.”

Stand Taken by the State

The claims of the petitioner were vehemently opposed by respondents, it had been argued that the curriculum and training module in Armed Forces is gender-specific and also, in organizations like Armed Forces or NCC close physical contact, confined stay under field conditions, sharing of basic facilities like accommodation, toilets, bathing, sleeping facilities etc. are routine rather than exception, hence, it was argued that there is a need for gender-specific regulations.

“…hypothetically a biological male, who is either Transvestite (Cross-Dresser), Bigender, Demigender or Transsexual not undergone any medical procedure but assumes the gender identity of a female in spite of his sexual orientation as bisexual or heterosexual, is eligible to get enrolled in to a girls NCC unit. …Presence of such a person in common bathroom, sleeping area and in close contact physical training activities etc. will be a violation of privacy and dignity of a girl cadet.”

Section 6 of the NCC Act, 1948 read as:

  1. Enrolment.-(1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.

(2) Any student of the female sex of any university or school may offer herself for enrolment as a cadet in the Girls Division.”

Hence, the stand of the respondent was that there is requirement for more detailed categorization of transgender based on their biological features and sexual orientation to assign them which is the prerogative of the Central Government. The respondent also contended that primary aim of NCC is to groom the cadets for a future with the Army Forces whereas there is no provision existing for entry of transgender (Female/Male) in the Indian Armed Forces. It had been further submitted that, 

“NCC Act recognizes only persons belonging to the male or female gender and since the petitioner is admittedly a transgender, she cannot be enrolled in the NCC”.

Analysis and Decision

Considering the above mentioned; the Bench opined that the right of a human being to choose sex or gender identity is integral to his or her personality and is one of the most basic aspects of self-determination, dignity and freedom. Criticizing the stand taken by the respondent the Bench remarked,

“We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021. The situation has to be viewed in the light of the 2019 Act which recognises the right of transgender persons to a life with dignity and prohibits discrimination against them.”

Regarding the argument that the NCC Act did not recognize the third gender or that detailed guidelines were required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps, the Court stated the same could not be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her.

“The petitioner who had opted for the female gender and had undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrolment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender.”

Hence, it had been held that the petitioner was entitled to enrolment in the NCC senior girls’ division and the rejection of the request of the petitioner for such enrolment was completely unsustainable. Consequently, the petition was disposed of with the directions to the respondents to do the needful shall with regard to the application of the petitioner within a period of one month. Further, the state was directed to amend the enrolment criteria prescribed under Section 6 of the NCC Act, 1948 to include the transgender community and to provide guidelines for enrolling transgender persons also in the NCC.[Hina Haneefa v. State of Kerala, WP(C). No. 23404 of 2020, decided on 15-03-2021]

Kamini Sharma, Editorial Assistant reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. C.R. Sudheesh, Adv. Raghul Sudheesh, Adv. J. Lakshmi, Adv. K. J. Glaxon and Adv. Sanish Sasi Raj

For the Respondents: SC. Thomas Abraham, Adv. N. S. Daya Sindhu Shree Hari and Adv. K. Arjun Venugopal