Transgender community in India: How the courts intervened to uphold their rights

"Merely because the petitioner belongs to the third gender, he or she cannot be made to run from pillar to post on the ground that there are no rules available permitting such changes."

Written by Sonakshi Awasthi | New Delhi | Updated: July 5, 2017 2:20 pm
transgender, transgender rights, transgender rights india, transgenders laws, lgbt, lgbt rights, indian express (Source: Reuters)

“Gender identity… lies at the core of one’s personal identity, gender expression and presentation and therefore, it will have to be protected under Article 19(1)(a) of the Constitution. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.”

Identifying transgenders as a third gender, the Supreme Court passed this unique judgment in April 2014 stating one’s sexual orientation as the integral part of personality, dignity and freedom. In the National Legal Services Authority (NLSA) vs. Union of India case, the apex court in 2014 declared Hijras and Eunuchs as third gender, providing them a legal identity along with seven other directions.

In September 2014, the Centre expressed doubts whether gays, lesbians and bisexuals too were included under the definition of a transgender. Citing its previous judgment, the apex court ruled out the wide use of the definition under which a transgender was earlier defined. Observing how the transgenders “assumed a distinct and separate class/category” in India, the court detailed the various categories under which they are classified into. Defining each category of transgenders, the court recognized the kind of work they are forced to do and provided with such a restrictive meaning.

In the following year, the Kerala government announced a Transgender Policy, along with the Department of Social Justice, covering all transgender categories without limiting itself to woman to man or man to woman sex conversions. The policy aimed to address the discrimination faced by the transgenders, spread awareness, and sensitise and counsel parents raising them. The policy suggested various measures like constitution of a State and District Transgender Board, a 24*7 helpline, setting up educational institutions, counselling centres, and providing employment opportunities, grants and housing schemes.

Post the NLSA judgment, various courts passed favourable orders for the transgender community.

Citing the NLSA ruling, K Prathika Yashini, a transgender, was allowed by the Madras High Court to appear for a police recruitment examination in 2015.

In 2015, the Delhi High Court allowed an Indian student to return to the US and lead a “normal girl’s life”, after her parents forcibly restrained her and seized her passport and green card.

In a landmark judgment, the Allahabad High Court on April 15, 2015 ruled that the application forms for the issuance of ration cards should “necessarily” include a transgender category along with other genders. The judgment also stated that transgender can also be included in Section 13 of the National Food Security Act, 2013 as head of the household.

Post Prathika ruling, on February 2016 the Madurai Bench of the Madras High Court directed the Dindigul Municipality to accept the application of a transgender who had applied for the post of a midday meal organizer. Monal was deprived of the opportunity to interview for the role as she had applied as a ‘woman’ in the gender section.

In 2016 the Indian Railways and Indian Railway Catering and Tourism Corporation (IRCTC) added ‘transgender/third gender’ to the gender category along with the other categories.

mumbai, mumbai transgender, transgender community, transgender in mumbai, india express transgender, indian express mumbai Members of the transgender community at the recently held Trans Empowerment Mela organised by Anam Prem. Express Photo

Recently the Madras High Court passed another judgment which allowed a transgender — post-sex reassignment surgery — to change her name in school and college records on June 1, 2017. “Merely because the petitioner belongs to the third gender, he or she cannot be made to run from pillar to post on the ground that there are no rules available permitting such changes,” observed the court.

Based on the NLSA judgment, the Rajya Sabha passed the Rights of Transgender Bill, 2014 but not without watering down the bill. The government then passed another Bill, Rights for Transgenders Persons Bill, 2015, modifying on the 2014 bill by removing the provisions relating to Transgender Rights Court as well as the National and State Commissions. The 2015 Bill underwent further changes and another bill was introduced in the Lok Sabha in 2016 — the Transgender Persons (Protection of Rights Bill), which invited criticism from the transgenders and activists.

In 2016, the Madras High Court ruled in favour of a transgender plea directing the Tamil Nadu government to create a separate class for transgenders and provide them with three per cent reservation in employment and education. Recently the parliamentary panel too mooted the idea of extending reservations for the third gender community in places of employment and education. The 2016 Bill is likely to be passed by the end of this year.

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