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Thursday, April 15, 2021

Gender no bar

Kerala HC ensures NCC can no longer shut its doors to trans-persons. It’s a significant step towards gender equality

By: Editorial |
Updated: March 18, 2021 9:19:50 am
The extent of the labour market scarring during this period has been enormous.

The Kerala High Court order allowing the enrolment of trans-persons in the National Cadet Corps (NCC) is a significant step towards gender inclusion and equality. The court was responding to a petition filed last year by a transwoman, Hina Haneefa, who was refused admission to the NCC unit in a Thiruvananthapuram college on the grounds that the NCC Act, 1948 only allows “members of the male sex and the female sex” to be enrolled as cadets. “We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021,” Justice Anu Sivaraman said while upholding the petitioner’s contention that such an entry bar was discriminatory, and violated the rights of equality and personal liberty, among others, guaranteed to citizens by the Constitution. The court pointed out that while admission to the NCC was once a male preserve, the law had been modified later to include women — and so, it must now shed provisions that exclude trans-people. The judge based her reasoning on the landmark 2014 Nalsa v Union of India judgment that not only recognises the rights of transgender people, but, more radically, gives primacy to the freedom of an individual to decide their gender identity for themselves.

In its arguments against the petition, the Centre reasoned that the NCC aimed to provide young people an environment that prepared them for a career in the armed forces, where roles and training are “sometimes gender-specific due to the difference in physical, biological and psychological aspects”. It also took recourse to the argument, made famous by British author J K Rowling and condemned by many as transphobic, that admission of “transwomen”, especially when they have not undergone gender reassignment surgeries, in common spaces such as toilets and “sleeping area”, would risk the safety and privacy of women cadets. It is significant that the arguments did not cut ice with the court, which underlined that the NCC Act cannot undermine either the Nalsa judgment or the provisions of the Transgender (Protection of Rights) Act, 2019. It also directed the government to amend the law and to provide guidelines for enrolling transpersons in the NCC.

The trans-rights movement is not only about expanding public spaces and institutions to include a much-stigmatised minority, but it is also vital to a redefinition of patriarchal ideas about gender and sexuality. In recognising the government responsibility to “provide full and effective participation of transgender persons” in institutions like the NCC, the HC lives up to the progressive spirit of the Nalsa judgment.

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