Hot Off The PressNews

The National Human Rights Commission, India has issued a notice to the Delhi Metro Rail Corporation, DMRC, after taking cognizance of a complaint requesting removal of misleading signages on its 347 new toilets for Transgender Persons.

Allegedly, the name ‘Ubhayalingi’ with a symbolic photo of ‘half-male and half-female’ outside the new 347 Transgender friendly toilets, constructed by the DMRC at metro stations, is not the acceptable term for Transgender persons.

The signage fails to provide a safe space and prevent gender discrimination that the DMRC intended.

The Commission has called for an action taken report from the Director (Works) and the Director (Projects), DRMC, on the grievances raised by the complainant within six weeks.

The complainant has requested the Commission for directions to the DMRC to remove all bilingual signage that mention ‘Ubhayalingi’ immediately and make the following changes:

1. The transliteration of the term ‘Transgender Person’ in Hindi should be used in all signages;

2. The symbol for transgender persons should be ‘T’ instead of the ‘half male-half female symbol;

3. A fresh press release be issued after the change wherein the signage and the statement use ‘Transgender Persons’ instead of Transgender;

4. hat the above changes be followed in all future actions of the DMRC including separate public toilet facilities for Transgender Persons at its upcoming stations in Phase-IV;

5. DMRC should notify a complaint officer for notifying violations of provisions of the Transgender Persons Act.


National Human Rights Commission

[Press Release dt. 17-09-2021]

Hot Off The PressNews

Karnataka Government on Wednesday decided in favour of 1% horizontal reservations to be given to the transgender community in government jobs, after it did not receive any objections to the draft notification in so far as the amendment to Rule 9 is concerned within the stipulated time.

The State of Karnataka issued a notification with Draft rules namely Karnataka Civil Services (General Recruitment) Rules, 1977 on May 13 proposing to amend Rule 9 by inserting Sub Rule 1 D providing 1 % vacancies to be filled in any post or service by the state government from among the transgender candidates in each category of general, Scheduled Castes, Scheduled Tribes and in each of the categories among the Other Backward Classes.

In the case of Sangama v. State, WP No. 8511 of 2020, Division bench of Abhay Shreeniwas Oka, CJ and Suraj Govindaraj, J. was informed by the State that Department of Personnel and Administrative Reforms State has taken steps to amend the Karnataka Civil Services (General Recruitment) Rules, 1977 and subsequently, on July 6 amended it by inserting sub-rule (1D) to the Rules which reads as follows:

 “Notwithstanding anything contained in the rules of recruitment specially made in respect of any service or post, in all direct recruitment one percentage of vacancies set apart for that method in each of the categories of General Merit, Scheduled Castes, Scheduled Tribes and in each of the categories among Other Backward Classes shall, subject to any general instructions that may be issued by the Government regarding the manner of appointment, be filled from among transgender candidates:

Provided that, every Appointing Authority shall provide a separate column of “Others” along with male gender and female gender in the application for recruitment to any category of Group-A, B, C or D posts for the convenience of transgender persons. The Recruitment Authority or the Appointing Authority shall not discriminate a transgender person while making selection of appointment to any category of post.

Provided further that, if sufficient number of eligible transgender persons are not available, to the extent of one per cent, the unfilled vacancies shall be filled by male or female candidates, as the case may be, belonging to the same category.

Explanation: For the purpose of this sub-rule a Transgender Person shall have the same meaning as defined in Clause (k) of Section 2 of the Transgender Persons (Protection of Rights) Act, 2019 (Central Act 40 of 2019)”.


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: The bench of Sanjib Banerjee, CJ and Senthilkumar Ramamoorthy, J has issued notice to the Tamil Nadu Government in a plea seeking direction to extend Covid 19 assistance of Rs. 4000 to all transgenders, irrespective of whether they hold a ration card or not.

Prayers before the Court:

(i) to issue a Corrigendum to the G.O.(Ms) 37 dated 7.5.2021 of the Department of Cooperation, Food and Consumer Protection to extend Covid-19 cash relief Rs.4000/- to transgender persons in Tamil Nadu who do not possess Ration Cards;

(ii) direct that the first installment of Rs.2000/- of cash relief to be paid in the month of May 2021 under the G.O.(Ms) 37 dated 07.05.2021 is also paid to transgender persons who do not have ration cards, either on the basis of their transgender identity cards or any other government ID;

(iii) to conduct awareness programmes for Transgender Persons in the State of Tamil Nadu regarding Covid-19 Vaccination, especially to clarify and assure them on the safety of vaccines for those who are undergoing hormone therapy and other treatment; and

(iv) to conduct special vaccination drivers for transgender persons in Tamil Nadu by assisting them to register online and get special vaccination slots in local community health centres.

[Grace Bano v. Chief Secretary Government of Tamil Nadu, W.P.No.12035 of 2021, order dated 20.05.2021]

For Petitioner : Ms.Jayna Kothari, S.C. For Mr.C.Prabhu

For Respondents : Mr.R.Shanmughasundaram Advocate General, Assisted by Mrs. A.Srijayanthi, Spl.G.P.

Case BriefsHigh Courts

Bombay High Court: A Vacation Bench of Ravindra V. Ghuge, J., allowed the petitioner, a transgender person, to contest the panchayat elections from a seat reserved for women candidate.

Backdrop

The petitioner was aggrieved by the rejection of her nomination form by the Returning Officer. She had decided to choose the female gender, and hence had tendered her nomination form for contesting the election from the ward reserved for women-general category. The reason for rejecting the nomination form was that the petitioner is a transgender. It was stated that there is no reservation for the transgender category in the instant village panchayat elections.

Submissions

A.P. Bhandari, Advocate for the petitioner, on instructions, made a categoric statement before the High Court that this was the first occasion wherein the petitioner had opted for a right to a self-perceived gender identity and had selected the female gender for all purposes during her lifetime. He submitted that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

S.B. Pulkundwar, AGP, and A.B. Kadethankar, Advocate for the Election Commission, submitted that they would not argue beyond the provisions of law and would not make submissions contrary to the law laid down by the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. It was stated that the Returning Officer was likely to be unaware of the law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner.

Analysis & Decision

The High Court relied heavily on and followed the law laid down in the “NALSA case” [National Legal Services Authority v. Union of India, (2014) 5 SCC 438] wherein the Supreme Court has comprehensively dealt with the issue of the rights of transgender people. The Court noted that the Government of India has introduced the Transgender Persons (Protection of Rights) Act, 2019 and has permitted a transgender person to have a right to be recognised and such transgender is permitted to have a right to self-perceived gender identity.

In the present case, the petitioner had opted for the female gender as her self-perceived gender identity and made a solemn statement, which was recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.

It was observed by the Court:

“It is quite apparent that the Returning Officer was handicapped insofar as the knowledge of law was concerned while deciding the fate of the nomination form of the petitioner. No other contesting candidate has taken any objection against the petitioner. It is the Returning Officer, who was circumspect about the nomination form of the petitioner and hence, opted to reject the form believing that the petitioner can neither be a male nor a female and the ward has been reserved for women general category. There is no ward reserved for the transgender.”

In view of the above, this writ petition filed by the petitioner was allowed. The impugned order passed by the Returning Officer was quashed and set aside. Since the nomination form of the petitioner was otherwise complete in all respects, the same stood accepted and she was permitted to contest the election from the ward and category which she had opted for in her nomination form. [Anjali Guru Sanjana Jaan v. State of Maharashtra, 2021 SCC OnLine Bom 11, decided on 2-1-2021]

Case BriefsHigh Courts

Karnataka High Court: John Michael Cunha J., while allowing the present writ petition moved by a transgender against the declaration of her self identified gender in official documents, reiterated the observations made in National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and clarified upon the applicability of Rules 6 and 7, Transgender Persons (Protection of Rights) Rules, 2020.

 Brief Facts

Facts of the case are enlisted objectively hereunder;

  1. That the petitioner claims to be a transgender; whose gender does not match with the gender assigned to her biologically by birth.
  2. That the birth certificate of the petitioner declares her as a male and names her as ‘Clafid Claudy Lobo’
  3. That at a very young age, the petitioner identified herself as a female and lately underwent a gender reassignment surgery on 26-07-2018, at Namaha Hospital, under the medical supervision of Dr Umang Kothari.
  4. That the petitioner thereafter changed her name from ‘Clafid Claudy Lobo’ to ‘Christina Lobo’ by executing an affidavit dated 31-10-2019.
  5. That the petitioner holds an AADHAAR card and a passport with the aforementioned name and gender female.
  6. That the respondent authorities have denied acknowledging the gender identity of the petitioner and further rejected the claim of changing the personal details over the university and pre-university certificates.
  7. That the petitioner has sought for a writ in the nature of mandamus directing respondents 2 and 3; the Department of Pre-University Education and the Karnataka Secondary Education Examination Board, Bengaluru to issue a revised certificate in addition to the setting aside of order passed by respondent 4; Central Board of Secondary Education, Chennai and issue revised CBSE mark sheet showing her name as ‘Christina Lobo’. Further, the petitioner prays to issue a writ of mandamus against respondent 6 and 7; Rajiv Gandhi University of Health Sciences and Father Muller Medical College, Mangalore to change her name and gender in the MBBS mark sheet and thereby grant revised educational records.

 Contentions

It was argued by the counsel for respondent 3, N.K. Ramesh, that the Transgender Persons (Protection of Rights) Act, 2019 has been promulgated by the Parliament on 05-12-2019 and as per the provisions of the said Act, a Transgender is required to make an application to the District Magistrate for issuance of a certificate of identity as a transgender person. Further, there is no provision in ‘Examination Bye-laws’ of the Board to effect change in gender and name of the students and therefore, the order passed by respondent 3 cannot be faulted with.

The counsel for the petitioner placing reliance on NALSA v. Union of India, (2014) 5 SCC 438, emphasized transgender person rights decide their self identified gender as recognized by the Supreme Court and the direction issued to the Central and State Governments granting legal recognition to the same, without fail. As per the facts of the present case, the petitioner has identified herself as a female and also undergone psychological evaluation/gender reassessment surgery. There seems no reason for denial to the petitioner’s claim as the legal position stands clear in the light of the aforementioned judgment. It was further submitted that under Article 21 of the Constitution, such denial shall be arbitrary and in violation of the Fundamental Rights enshrined under the Constitution.

 Observation

The Court, pursuant to its decision, cited the following cases;

  • National Legal Services Authority v. Union of India, (2014) 5 SCC 438, “The recognition of one’s gender identity lies at the heart of the fundamental right to dignity.Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”
  • Anuj Garg v. Hotel Assn,  of  India, (2008) 3 SCC 1, “(…) Self- determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed  under Article 21 of the Constitution of ”

With respect to the legal recognition of third gender/transgender, the Court remarked;

  • The self-identified gender can be either male or female or third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example, Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a ‘third gender’, apart from male and female.”
  • Moreover, the Court, answering contention of the respondent related to application for certificate of identity, cited, sub-rule (3) of the Transgender Persons(Protection of Rights) Rules, 2020 which provides for application for issue of a certificate of identity under Rules 6 and 7. It reads as under-

 (3) “Transgender persons who have officially recorded their change in gender, whether as male, female or transgender, prior to the coming into force of the Act shall not be required to submit an application for certificate of identity under these rules: Provided that such persons shall enjoy all rights and entitlements conferred on transgender persons under the Act”.

  •  Since the identity of the petitioner is officially recorded in the AADHAAR card issued by Unique Identification Authority of India (UIDAI) and the passport issued by the Central Government, in view of Rule 3 of Transgender Persons(Protection of Rights) Rules, 2020, the petitioner is not required to make an application for certificate of her identity.

Decision

While allowing the present writ petition, the Court reiterated the Constitutional safeguards accorded to the third gender and issued requisite order to the respondent authorities.[Christina Lobo v. State of Karnataka, 2020 SCC OnLine Kar 1634, decided on 1-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Legislation UpdatesNotifications

In exercise of the powers conferred by Section 16 of the Transgender Persons (Protection of Rights) Act, 2019 (40 of 2019), the Central Government has constituted a National Council for Transgender Persons vide notification dated 21-08-2020. The Union Minister of Social Justice & Empowerment will be Chairperson (ex-officio) and Union Minister of State for Social Justice & Empowerment will be Vice-Chairperson (ex-officio).

The National Council shall perform the following functions, namely:—

(a) to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons;

(b) to monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons;

(c) to review and coordinate the activities of all the departments of Government and other Governmental and non-Governmental Organisations which are dealing with matters relating to transgender persons;

(d) to redress the grievances of transgender persons; and

(e) to perform such other functions as may be prescribed by the Central Government.

The other members of the Council include representatives of various Ministries/Departments, five representatives of the transgender community, representatives of NHRC and NCW, representatives of State Governments and UTs and experts representing NGOs.

A Member of National Council, other than ex officio member, shall hold office for a term of three years from the date of his nomination.

Click here for detailed notification.


Ministry of Social Justice & Empowerment

[Notification dt. 24-08-2020]

Legislation UpdatesNotifications

The following issue was raised in Rajya Sabha on 26-06-2019 in respect to the “Reservation of Eunuchs”.

Will the Minister of Social Justice and Empowerment be pleased to state:-

a) whether Government is aware that an estimated 5-6 million eunuchs live in the country, who are deprived, alienated and encounters hostilities since early childhood which are so deep and extreme that, at some point, finding no other social space, they exclude themselves;
(b) whether Government has directed or taken measures such as to provide reservation to help bring eunuchs into the mainstream; and
(c) if so, the details thereof?

Response by Minister of State for Social Justice and Empowerment Shri Rattan Lal Kataria:

The Registrar General of India (RGI), during Enumeration of Census 2011, for the first time provided three codes i.e. Male-1, Female –2 and others -3 for enumeration. This was at the discretion of the respondent. In case the respondent wished to record neither ‘1’ nor ‘2’, then enumerator was instructed to record sex as ‘other’ and give code ‘3’. It is important to note that the Census of India does not collect any data specifically on ‘transgender’. Thus, the category of ‘other’ would not only include ‘transgender’ but also any person who desires to record sex under the category of ‘other’. It is also possible that some transgenders would have returned themselves either male or female depending upon their choice. The population of ‘other’ as per Census 2011 is 4,87,803.

An Expert Committee was constituted in the Ministry to make an in-depth study of the problems being faced by the Transgender Community and suggest suitable measures to ameliorate their conditions. The Committee submitted its report on 27th January 2014.  The Committee in its report has observed that the transgender community is a highly marginalized and vulnerable one and is seriously lagging behind on human development indices mainly in the area of education and employment.

The Hon’ble Supreme Court in its Judgment dated 15.04.2014 in WP(C) 400/2012 (NLSA Vs. UOI) directed, inter-alia, the Centre and State Governments to 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.

In order to provide for the protection of rights of transgender persons and their welfare, the Ministry introduced a Bill titled “The Transgender Persons (Protection of Rights) Bill, 2016” in the Lok Sabha on 2.8.2016, the Bill was passed by the Lok Sabha on 17.12.2018.


[Press Release dt. 26-06-2019]

[Source: PIB & RajyaSabha.nic.in]

Case BriefsHigh Courts

Uttarakhand High Court: Ravindra Maithani, J. has asked the State of Uttarakhand whether an Investigating Officer, by conducting DNA tests, has the right to determine the gender or sex of a transgender person who underwent a gender reassignment surgery.

The petitioner, in this case, had filed an FIR alleging she was raped, but the FIR was registered by the police under Section 377 (unnatural offences) of the Penal Code, 1860. She had identified herself as a female and also claimed that she had undergone gender reassignment surgery and had obtained a certificate declaring that she may be addressed as a “she”. She approached the High Court, contending that she had been harassed by the investigating officers by lodging the FIR as an unnatural offence instead of rape and addressing her as a male.

The Court took into consideration the matter being one of social importance and hence it needs to be observed strictly as it is not only touching the petitioner alone but many others who have faced such an issue. The Court reiterated what has been laid down in the landmark case National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the petitioner’s “right to self-identification of gender” was denied and the Supreme Court rejected the age-old principle laid down in Corbett v. Corbett, (1970) 2 All ER 33 that an individual’s sexual constitution is fixed at birth and cannot be changed. The Hon’ble Supreme Court went on to prefer the “psychological test” instead of “biological test”. It stated “When we examine the rights of transsexual persons, who have undergone SRS, the test to be applied is not the “biological test”, but the “psychological test”, because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person. Seldom people realize the discomfort, distress and psychological trauma, they undergo and many of them undergo “gender dysphoria” which may lead to mental disorder. Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role.”

The Court questioned the acts of Investigating officers and the public servants and stated they have not taken into consideration the Supreme Court judgment. It asked the Home Secretary of the State of Uttarakhand to file an affidavit answering various questions as to how the Investigating Officer had the right to determine the sex or gender of the petitioner how could the Investigating Officer apply the “biological test” instead of the “psychological test” in light of the Supreme Court judgment.[Shilpi Lawrence Elenjikal v. State of Uttarakhand, Writ Petition (Criminal) No. 28 of 2019, decided on 29-04-2019]

Hot Off The PressNews

According to media reports, “Transgender” will no longer be categorised as a “mental disorder” by the World Health Organization (WHO) after major amendments in its health guidelines.

“United Nations’ health agency approved a resolution to remove “gender identity disorder” from its global manual of diagnoses. According to the newly-revised version of the International Classification of Diseases (known as ICD-11), published by the WHO, “gender identity disorders” have been reframed as “gender incongruence.” Gender nonconformity is now included in a chapter on sexual health, rather than being listed with “mental disorders”.

“In several countries around the world, the process of medically transitioning gender is based on the now-outdated ICD framework, which classifies being transgender as a “gender identity disorder” under the category of “mental disorders.”


[Source: TIME]

Case BriefsHigh Courts

Madras High Court: In a landmark Judgment, G.R. Swaminathan, J. has held that a marriage solemnized between a male and a transwoman, both professing Hindu Religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. While holding so, said the Court, “this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”

Facts

Arunkumar and Srija got married to each other in October, 2018 at a temple in Tuticorin as per Hindu rites and customs. It may be noted that Srija is a transgender. The marriage was certified by the Village Administrative Officer. The temple authorities where the marriage was performed, declined to vouch for it. When Arun and Srija went to register their marriage, the Joint Registrar refused the registration which was confirmed by the District Registrar. Challenging the refusal to register their marriage, Arunkumar and Srija filed the present petition.

Who is a “bride”

It was contended on behalf of the authorities that as per Section 5 of the Hindu Marriage Act, 1955, the “bride” must have completed that age of 18 years, and further that the term “bride” can only refer to a “woman on her day of wedding”. Srija, it was contended, is not a woman, but a transgender.

The Court did not agree with such a contention. It relied on the path-breaking judgment of National Legal Services Authority v. Union of India, (2014) 5 SCC 438 wherein the Supreme Court has upheld the transgender persons’ right to decide their self-identified gender. That decision has been cited with approval in K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. In the present case, the Court observed that: “the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 cannot have a static or immutable meaning.” It was observed that a statute must be interpreted in the light of the legal system as it exists today. It was also noted that in Shafin Jahan v. Asikan K.M., (2018) 16 SCC 368the right to marry a person of one’s choice was held to be integral to Article 21 of the Constitution.

For too long the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream.”

The Court held: “Seen in the light of the march of law, the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The duty consideration is how the person  perceives herself.”

Ban on sex reassignment surgeries on children

The Supreme Court in the NALSA case categorically stated that no one shall be forced to undergo medical procedures, including SRS, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity. The High Court, however, noticed that the mandate in NALSA Case was not being honoured. The Court directed the Government of T.N. to issue a Government Order so as to effectively ban sex reassignment surgeries on infants and children. The Secretary to Government, Health and Family Welfare Department was directed to file a compliance report within 8 weeks.

“Any intersex child is entitled to and must stay within the folds of its family. The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream.”

Financial incentive for inter-caste marriage 

The Court noted Arunkumar is a Hindu Kuravan and Srija belongs to Saiva Vellar community. The Government of India has introduced “Dr Ambedkar Scheme for Social Integration through Inter-Caste Marriages” to encourage inter-caste marriages. Arunkumar and Srija were held to be clearly entitled to get a financial incentive as set out in the said scheme. They were permitted to submit an application to the Director, Ambedkar Foundation, who shall on being satisfied about their eligibility, disburse the incentive amount.

Decision

Holding that Srija’s fundamental rights guaranteed under Articles 14, 19(1)(a), 21 and 25 have been infringed, the Court quashed the impugned orders and directed the Joint Registrar to register Arunkumar and Srija’s marriage. With the directions as noted above, the present petition was disposed of. [Arunkumar v. Inspector General of Registration, WP(MD) No. 4125 of 2019, dated 22-04-2019]