Op EdsOP. ED.

Transgender is an umbrella term for persons whose gender identity is different from the sex identities assigned at the time of birth. The meaning of the prefix “trans” is across or beyond2 and the gender of a person is culturally and socially constructed.3 From the aforementioned meaning of the two terms, it can be construed that the term transgender is beyond the assigned sex identity at the time of birth. To be more specific, it is the opposite of standard forms of sex i.e. male and female. Sex is in conformity with chromosomes, hormone prevalence, and external and internal anatomy. Gender relates to socially assigned roles of men and women that are set up in the society. People who identify themselves as neither men nor women are in contrast to the socially set up roles of gender. They are considered different by the people who identify themselves as straight men and women. And this is the reason that they are called “transgender”.

Transgender people have existed since ancient times. There are various traces of the trans people found in different books, pictures, arts, crafts, works, mythological stories, epics, culture, songs, poems and various other identified and unidentified sources. These sources from the past make it clear that transgender people have a historical background in various countries all over the world and have existed since ages. The phenomenon is not new but is highlighted in all the ages including today. Archaeological and historical studies are continuously making efforts to understand the literature from the remains of past. These studies assist the present researches grow better and reasonable. The surveys conducted by the archaeologists are making the transgender studies objective, concrete and empirical. The contribution of historical background cannot be ignored to understand the problems and issues that exist in the society at present. If the issues concerning the origin, problems and behavioural patterns of the trans community are studied from the past, it will help the new researches to be analytical, free of prejudices, scientific, fact-based, observational, logical, data oriented and statistically examined. This will help in removal of socially constructed patriarchies. History binds, shapes, creates and helps in understanding the issues of society. The gender identity related to trans people can be studied through previous researches and interpretations of people in books, mythologies, epics, incidents and various other forms of art and literature. For instance, Professor Stephen Whittle has outlined a brief history of transgender issues and highlighted the origin of several terms of transgender vocabulary in an article for The Guardian. As per the above-mentioned article of Professor Whittle, German Sexologist Magnus Hirschfeld has used the word “transvestite” in the year 1910. Magnus later developed the Berlin Institute where the very first “sex change” operations took place. The term “transsexual” was not coined until 1949, “transgender” not until 1971 and “trans” (a very British term) not until 1996.4

If we look deep into the transgender community and their position in India, this community existed in India even in the Hindu epics of Ramayana and Mahabharata. Trans people have also played an important role during the medieval era. Muslim rulers of the Mughal Empire in the 15th to 19th centuries were considered patrons of third gender Indians. They were employed to take care of the harems and queens.

Inspite of the presence of the trans people in human history, the community faces challenges at different levels in the society. These people have to undergo discrimination in all facets of life. Starting from their homes to the place of work, they only manage to survive with a number of pressing difficulties; the community has to face discrimination at large. Trans people are not treated as normal human beings. They too have basic life processes, including respiration, digestion, urination and excretion, similar to the set categories of sex i.e. male and female. But unlike the straight people, this community has not been accepted by the regressive society, they are ill-treated and are economically backward.

They are alienated from the mainstream of the society which is violative of Articles 145, 156, 197 and 218 of the Indian Constitution9. The fact that they have a right to life is not recognised even after several revolutionary judgments by the Supreme Court of India. Trans people are treated as socially unfit and are deprived of the basic fundamental rights. However, these rights should not be only limited to male and female; and should be made accessible for everyone including the trans persons also. The approach of the society towards the trans community is regressive and breaking the constitutional values of equality, liberty and justice. The society should make efforts to protect the rights of dispossessed class of society including the trans people. But, the biased thinking of the so-called straight people is breaking the basic soul of constitutional values by treating them as different people, making them feel discriminated, restricting their freedom and infringing their right to life and personal liberty. Fundamental rights are basic to an individual; they are needed for survival and to lead a normal life. When these basic rights are denied either by legislation or by any social group, nothing can be worse than that.

In spite of making the basic structure of the Constitution of India as a supreme power, societal biases towards the trans community have caused a tremendous breakdown of the democratic structure. Besides, these prejudice to not give recognition to the word “Republic” as given in the Preamble of the Constitution of India. Republic means a State where the supreme authority is in the hands of people and their representatives.

This segregation of the trans people, though a product of patriarchally hegemonistic social structure, has been normalised. This normalisation of the alienation of the transgender persons has been perpetrated by the ideological institutions of society such as family, marriage, university, film, literature, etc. Through these propagandist tools, straight people have been regarded as the standard, while the trans population has been scoffed at, ridiculed, and relegated to the peripheral subaltern positions. This otherisation of the trans has encompassed every point of the human society. It has been culturally transmitted to the succeeding generations and it is almost impossible to shatter this canonised hierarchy of heterosexual binary of males and females. Anything that goes against the fixed notion of sex binaries has been sidelined as something irreligious and blasphemous.

Despite this coerced normalisation of the transgender persons segregation some bright light is entering the dark chambers of the stratified social structure. French legal system has maintained humanitarian aids to trans people upto some extent. It can be noted that adoption by a single individual is permitted in France. Civil rights are basic for any democracy, and opening up the possibility of adoption by a single homosexual can be called a revolutionary step. The European Court of Human Rights opined that it will not be reasonable to advance the treatment regarding the applicant’s sexual orientation as it would amount to discriminatory practices.10

Under the laws of United Kingdom, lesbian, gay, bi and trans people are protected from discrimination. The Equality Act, 2010 provides provisions that an adoption agency must assess the trans person fairly using the same criteria as is designed for the straight male and female community. The authorities could not turn down an application for adoption based on their sexuality.11

Not only this, marital rights to trans community also exist in some countries. The case of Corbett v. Corbett12 is the genesis of all transgender marriages since 1970. In MT v. JT13, MT, a male had a vagina and was able to function sexually as a female. Thereby, she was legally recognised as a female for the purpose of marriage. Considering the judicial pronouncements by Australian courts, marriage between a female to male transgender individual and his wife, a biological female was affirmed valid in Attorney General (Cth) v. Kevin and Jennifer.14 It is for the reason that Court was of the view that for the purposes of marriage, a person’s sex should be determined by considering a number of factors, but these should not be limited to biological and physical characteristics at birth; the person’s life experiences, including the sex in which he or she is brought up and the person’s attitude to it; the person’s self-perception as a man or woman; the extent to which the person has functioned in society as a man or a woman; any hormonal, surgical or other medical sex reassignment treatments the person has undergone, and the consequences of such treatment; and the person’s biological, psychological and physical characteristics at the time of the marriage. Hence, the case considers the marriage between female to male transgender individual and his wife, a biological female was affirmed valid.

In the backdrop of the marital and adoption rights given to the trans population internationally, the Indian courts and judicial system are also democratising the phenomenon more specifically. It is providing humanitarian aids to trans people. The Preamble of our Constitution talks of “liberty”, “equality”, “justice”, “fraternity” to all the people living in the India, “a sovereign, socialist, secular, democratic, republic”. The same principles have been taken into consideration by Part III of the Constitution of India i.e. fundamental rights including right to equality, prohibition against discrimination, right to life and personal dignity and the right to freedom, etc. These fundamental rights exist but the legislations and various norms of societies are not in consonance with the same. There are issues for which there is no legislation even today. Laws are made to govern the society and regulate it. They give power to the weaker and voiceless sections of society. Any kind of absence in the legal provisions may result in the patriarchal systems of our society and this may lead to power centric rule of the authoritarian male dominance. For the sake of same, the Indian Parliament has passed the Transgender Persons (Protection of Rights) Act, 2019.15 The Act was introduced with the objective of eliminating marginalisation from the society. The background behind this legislation goes back to the judgment of National Legal Services Authority v. Union of India16 by K.S. Radhakrishnan, J.where the foundation for establishment of transgender persons as “third gender” was made. The view behind this judicial pronouncement was to curb the discriminatory practices by laying down several measures. This landmark judgment recommended providing reservation in government jobs and educational institutions. It also declared the right to self-perceived gender identity without undergoing sex reassignment surgery. In the year 2016, a Bill was drafted and referred to the Standing Committee of Parliament for further suggestions. Keeping in view the suggestions made by the Standing Committee, a new Bill was introduced in Parliament in the year 2018. This Bill was introduced again in Parliament in the year 2019 which was later passed by both the houses and the assent of President was also granted. The basic aim of this legislation is to curb the discrimination against trans community and provide them equal status in the society by breaking the stigma against them. The subaltern trans groups of people must be given a voice so that they are represented in this patriarchal society. Parochialisation of the transgender people leads to their deprivation from the society and the people. The Act of 201917 was made with a view to follow constitutional and humanitarian values for the segregated trans people.

Despite providing the basic human rights to the trans community, the Act may have some more features for removing the social biases against the community. The Act, though a landmark piece of legislation, requires further scrutinised amendment for raising the voices of the trans people.

No piece of legislation is ever final and absolute. Lawmaking is a continuously evolving kinetic process and newer lights are thrown on the key points through debates, arguments and counter-arguments. The system of dialogue and debates has been existing in human society since ages including India. The Upanishadic debates and Socratic inquisitions show that no human truth is final. There is always scope for further enquiry.

Certain points, as far as this revolutionary Act is concerned, need to be further elaborated upon, debated, argued and discussed to reach a more logical and scientific conclusion. The first question that needs further elaboration is how transgender groups were consulted prior to making of this legislation. Legislation making is a consultative process where the opinion of the maximum number of stakeholders should be taken care of. For further amendments to the Act, the point of views of the trans people should be taken. The Act must further reflect the aspirations of the trans community.

In general, if a family is not welcoming a transgender child, they go to live with their community. Unlike the straight community, they are not given humanitarian behaviour by their family. But as per the provisions of the said Act, if a family does not welcome a transgender child to their own family, the court will decide further the residence and send that child to the rehabilitation centre. Basically, rehabilitation centers are for getting someone’s life to normalcy, if a person has become abnormal due to any kid of disease, accident or situation. Now the question that arises here is: Are transgender people abnormal? The idea against the argument is that the day they are considered as abnormal species, they are included in the category of abnormal human beings and so they are discriminated by the society. They breathe like normal human beings; their basic life processes are similar to the straight community. They eat, breathe and lead their lives. The legislation is showing that they are abnormal beings and thus creating differences among the human beings.

The Act provides that the people who belong to transgender community will have to go through a screening process which will determine their sexuality. This will include a certification by a District Screening Committee. The certificate will acknowledge them as transgender. However, those transgender persons who wish to identify themselves as a man or woman will need to go through a gender affirmation surgery (popularly known as sex reassignment surgery, or SRS). This provision of the Act violates the Supreme Court’s judgment of National Legal Services Authority v. Union of India18 which states that the only thing needed to identify a person is their word for it. It seems like the Act was made keeping in mind the fact that all transgender people either want or have the ability to go through surgical methods. Is this method even feasible for them economically? Isn’t the Act indirectly pushing them to go for surgical methods? The system of the screening process and the need for medical certificate, which will help in determining the sexuality, will actually restrict the equality before law. Now as per the Rules of 202019, they do not have to go through medical examination, but will have to submit an affidavit of their sexuality. After this, an identity card will be issued which will determine their sexuality. This will end their right to self-declaration of sex, which males and females are entitled to. Are the males and females of this society asked to go through such a screening process? Are there separate identity card, for males and females? The classification made is not reasonable and may create alienation of the trans people in the society. This will increase red-tapism forcing the members of trans community to go through bureaucratic procedures.

Next, the punishment of imprisonment against sexual abuse is just two years in case of transgender persons. However, as per the Penal Code, 1860, the punishment for rape against women is seven years.20 This is in clear violation of their equal treatment and status in the society and may be violative of their equality and dignity.

The affirmative action of providing reservations in government jobs and educational institutions is for uplifting the marginalised sections of society. Those who are maltreated, unprivileged and who suffered or are suffering social and economic backwardness are generally given this opportunity so that they may be able to match the mainstream sections of the society. There is no such mention of reservation for trans community under the Act.

The civil rights of transpeople are obstructed by the all power centric patterns in society. In general, males and females are entitled to the right to marry, divorce and adopt. But the transgender community is deprived of such rights. Even after continuous judicial pronouncements, the life and dignity of transgender community is endangered. The case of K.S. Puttaswamy v. Union of India21 lays down the principles of individual liberty and the right to a dignified life. And in Navtej Singh v. Union of India22, the Court referred to a Canadian case wherein it was stated that human dignity is harmed when unfair treatment is meted out based on personal traits or circumstances which do not relate to individual needs, capacities, or merits. It was held that the LGBT community has the same individual needs as the straight community. They too require the same human, fundamental and constitutional rights as other citizens. The community should not be given step-motherly treatment on the pretext of social morality. The disentitlement of adoption by LGBT couples harms the dignity of the people. It is based on their sexual orientation which does not relate to the capacity or merit as prospective parent.

The concept of the National Council for Transgender Community23 for trans community is actually a paper tiger. First of allout of thirty members, only five members will be from the transgender community. So again majority will be of the dominating class of the society and the transgender community will be ignored at the Council. As a result of this, the straight community will have a hold over the transgender community. The voices of trans people may be suppressed if the majority lies in the hands of powerful and dominating class of the society. The ratio of the number of members in the Council may create a disparity. The Council lacks independence in carrying out functions.

The provisions relating to begging have been decriminalised by the Act of 2019 and the word ‘begging’ in Section 19under Chapter VIII (Offences and Penalties)of the Bill of 201624 (Section 18 of the 2019 Act) has been removed. The High Court of Delhi in Harsh Mander v. Union of India25 had also marked the Bombay Prevention of Begging Act, 195926 as unconstitutional holding that it violates Articles 14 and 21. The Court opined that there is a class of society who has no other means of sustenance but to seek alms for it. Criminalisation of begging is clear violation of the basic rights that are needed for the community. The people who are suffering from poor economic conditions also need to fill their stomachs. Hunger, housing and clothing are the basics for any individual or species. The one who is living in the outskirts of economic valuation has to beg as the last resort. They do not have any other choice left. The judgment defends the right to life of poor persons who sustain and lead their lives through begging. The Court order challenges the middleclass resentment towards “illegitimate denizens”.27 But the above argument of the Court and the Act of 2019 can also be seen as not mitigating the problem of unemployment among the trans community. To weed out the extreme conditions of object poverty and deprivations, along with the decriminalisation of beggary, employment resources must be generated for the transgender people. The Act has made commendable provisions by decriminalising begging. But to uplift the economic conditions of the transgender people, job opportunities and startups should be opened for them. It is to be noted that the Act and such judicial pronouncements are pushing these people to beggary and not towards jobs and services. These people must be provided with an adequate means of survival and not the act of beggary. This will embark their dignity and social status in the society. Transgender persons must also be given such rights for their proper and dignified survival.

From the above-mentioned arguments it can be clearly stated that the trans communities are not treated fairly. They are subject to continuous discrimination by the society, set norms and even the legislations. They are not provided with the basic human rights. To empower them, basic constitutional rights must be taken care of. This will break the hierarchy and the deprived trans people will live their lives with dignity. Also, there is a need for revolutionary steps to be taken. All the provisions of the Transgender Act must be implemented properly and necessary amendments to the same may be introduced. This will help to provide liberty, equality and fraternity. Trans people must not be segregated, they should be a part of this society. Legislations should be made inclusive and so that the marginalised and weaker sections of this society will be provided with basic rights. Thereby, the transgender persons must be provided with human, civil and constitutional rights. This will embark a change in the patriarchal social normative theories of the people. And the trans community will be able to lead their lives with dignity and freedom.


† BBA LLB 4th year (FYIC) student at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan. Author can be reached at <bhavyaagarwal9989@gmail.com>.

2. Oxford Advanced Learner’s Dictionary, Oxford University Press, 8th Edn., 2010, p. 1644.

3. Nicholas Abercrombi, Stephen Hill and Bryan S. Turner, The Penguin Dictionary of Sociology, Penguin, 2006, p. 163.

4. Prof. Stephen Whittle, “A brief history of transgender issues”, The Guardian, <https://www.theguardian.com/lifeandstyle/2010/jun/02/brief-history-transgender-issues>(accessed on 20-2-2022).

5. Constitution of India, Art. 14.

6. Constitution of India, Art. 15.

7. Constitution of India, Art. 19.

8. Constitution of India, Art. 21.

9. Constitution of India.

10. E.B. v. France, [2008] ECHR 55: (2008) 47 EHRR 21.

11. <https://www.stonewall.org.uk/help-advice/parenting-rights/adoption-and-fostering>(accessed on 20-03-2022).

12. (1970) 2 WLR 1306 : (1970) 2 All ER 33.

13. 6 Cap UL Rev 403 (1976-1977):(1976) 355 A 2d 204.

14. (2003) 77 (7) LIJ, the decision was affirmed on appeal by the Full Court of the Family Court of Australia [Attorney General (Cth) v. Kevin and Jennifer], 2003.

15. Transgender Persons (Protection of Rights) Act, 2019.

16. (2014) 5 SCC 438.

17. Transgender Persons (Protection of Rights) Act, 2019.

18. (2014) 5 SCC 438.

19. The Transgender Persons (Protection of Rights) Rules, 2020.

20. Penal Code, 1860.

21. (2017) 10 SCC 1.

22. (2018) 10 SCC 1.

23. Ministry of Social Justice and Empowerment, Noti. No. S.O. 2849(E), dt. 21-8-2020.

24. The Transgender Persons (Protection of Rights)Bill, 2016.

25. 2018 SCC OnLine Del 10427.

26. Bombay Prevention of Begging Act, 1959.

27. Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427 and Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

Case BriefsHigh Courts

Andhra Pradesh High Court: In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denies to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

 

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

 

Factual Matrix

In the instant case, one Matam Gangabhavani, a transgender approached the Court seeking to declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated 01-11-2018 as illegal, arbitrary and violative of Articles 14, 15, 19 and 21 of the Constitution as it did not make any provision for reservation of appointment of transgender persons contrary to the decision of the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The petitioner also urged for a direction to the respondents-Police Recruitment Board to make appropriate provision for transgender persons and further direct the respondents to appoint the petitioner on the post of Stipendiary Cadet Trainee Sub-Inspector of Police on the vacant post, kept apart for the petitioner in terms of High Court order dated 13-02-2018.

 

The petitioner, a male by birth, underwent Sexual Reassignment Surgery in the year 2003. The case of the petitioner was that pursuant to the recruitment notification, the petitioner applied for the post of Stipendiary Cadet Trainee, however since there were only two categories provided for disclosure of gender namely, “Male” and “Female” the petitioner was forced to mention identity as female while registering for the examination.

 

Though, the petitioner appeared for the first round of recruitment process i.e Preliminary Written Test, could not obtain minimum required marks. Therefore, the petitioner claimed benefit of reservation by relying on the decision of NALSA v. Union of India (2014) 5 SCC 438 by contending that there is reservation for various categories of castes, yet no reservation is provided for transgenders category; despite the transgenders being the most disadvantaged class who cannot compete with male or female genders. Finally, it was contended that, when the petitioner was the sole transgender appeared for the examination, though identifying as female, the petitioner must be selected by providing reservation in the light of Transgender Persons (Protection of Rights) Act, 2019.

 

Case before Central Administrative Tribunal

The petitioner filed O.A.No.23 of 2019 before Andhra Pradesh Administrative Tribunal challenging the impugned Notification, however the same was dismissed on the following grounds:

“a) That the recruitment as per the notification is being proceeded with respect to men and women vacancies only;

b) The notification is not a general notification for applications from all gender and that the notification is gender specific;

c) When the notification for recruitment is gender specific, a transgender person is not entitled to compete for the said post along with men and women.

d) The reliefs claimed in O.A.No.23 of 2019 relate to decisions to be taken by the Government concerned in the Constitution of India as well as specific laws relating to recruitment and appointment to public post.”

 

Observations and Opinion

Observing that concept of “proportional equality” expects the States to take affirmative action in favour of disadvantaged sections of the society within the legal framework of liberal democracy, the Bench stated that the petitioner being a transgender was entitled for proportional equality as the State is expected to take affirmative action in favour of disadvantaged section of the society, and the transgenders are cursed by everyone; living in distressed condition and are being put to harassment in different ways, both physically, mentally and sexually by different persons. The Bench added,

“More so, their number is minimum in the State, but they are not being provided proportional equality in the employment and are totally neglected by the State without providing even a column in the application form for gender identity of transgender, thereby, it amounts to denial of an opportunity in employment treating them unequals with men and women.”

 

Therefore, the Bench held that such discrimination of transgender from men and women could be said to be arbitrariness, being opposed to reasonableness, and antithesis to law. Hence, the Bench stated, failure to provide sufficient opportunity in the employment by providing a specific column for identity of third gender in all employment notifications, treating them as equals with men and women and failure to provide employment to them, though they are eligible is nothing but arbitrariness in the State’s action.

“Though, transgender is a person recognized in the epics, the lawmakers, including the Constitutional framers did not take note of their existence and treatment of transgenders on par with others.”

 

Whether the Notification was Illegal and Arbitrary?

Since the impugned Notification was issued based on the subsisting rules of reservation in the State, strictly adhering to the subsisting rules, the Bench held that the notification could not be declared as illegal and arbitrary. Even to construe that the respondent violated the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438, the direction was only to take steps for providing reservation to transgenders based on their social and educational backwardness, it was only a positive obligation on the State and in the absence of any steps taken by the State, failure of its instrumentalities to provide reservation to transgenders did not make the notification impugned in this writ petition invalid. At best, such failure may attract contempt being filed before the competent court.

Hence, the Bench held that there was no ground to declare the impugned notification as illegal or arbitrary.

 

Analysis and Findings

In NALSA v. Union of India (2014) 5 SCC 438., the Supreme Court had directed the Centre and State Governments to take steps to provide reservations to transgenders in employment and to take steps to treat the 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. Hence, the direction issued by the Supreme Court was only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens, but not for creating reserving particular percentage of posts to transgenders.

 

Though a clarification was issued by the Principal Secretary to Government, Home (Legal.II) Department vide Memo.No.830231/Legal.II/A1/2020 dated 29-09-2020, for appointment of meritorious, eligible transgender person either against a woman vacancy or man vacancy, based on merit, since there are no reservations for transgenders, the Bench held that the aforementioned Memo would not extend any such benefit to the transgender persons in terms of the judgment in NALSA v. Union of India (2014) 5 SCC 438.

 

Differentiating the case of K. Pritika Yashini v. Tamil Nadu Uniformed Services Recruitment Board, 2015 SCC OnLine Mad 11830, wherein a minor relaxation was given to the transgender woman who had qualified in all the tests, the Bench stated that the same had no application to the case of the petitioner for the reason that the petitioner did not qualify herself even in the preliminary examination, having secured 28% in Paper-I and 21% in Paper-II. Opining that if, for any reason, the petitioner secured marks and got through the preliminary examination and if there is any variation in the physical tests, the principle laid down in the above judgments could be applied, the Bench stated,

“The intellectual levels of men, women and transgender may vary to a little extent. But the Rules did not permit appointment of transgender without securing minimum qualifying mark.”

 

Further, even the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020 are silent regarding provision for reservation in public employment or any government establishments to transgender persons. Therefore, the Bench held that the Court could not issue any direction to provide reservation to the petitioner based on sex or social status, more so, when a direction was issued by the Supreme Court to extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

 

Verdict

Considering that the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438 is suffice to provide reservation in cases of admission in educational institutions and for public appointments, the Bench refused to issue any direction to the State to provide reservations to transgender. However, the directions were made to the State to study the representation of transgenders for public employment, their number in the State, benefits extended to them without discriminating from men and women and provide necessary reservations if they are not represented adequately in the public employment.

Further, since the minimum marks were not fixed based on gender, but based on social status, more particularly, their backwardness and inadequacy of their representation in the public employment, the Bench denied to issue direction to the respondents for selection of the petitioner as Stipendiary Cadet Trainee Sub-Inspector. Consequently, the petition was dismissed. [Matam Gangabhavani v. State of Andhra Pradesh, 2022 SCC OnLine AP 200, decided on 21-01-2022]

Appearance by:

For the Petitioner: M Solomon Raju, Advocate

For the State: Additional Advocate General II


Kamini Sharma, Editorial Assistant has out this report together

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]

Uttarakhand High Court
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]