Kerala HC verdict on transgender identity begs question: Why has State failed to formulate NALSA judgment into law?
We may celebrate the Kerala HC judgment on transgender identity, by saying that it is a victory for the LGBTQI community. But in reality, it is not.
Last week, the Kerala High Court refused to allow a habeas corpus petition filed by the mother of a transperson, stating that all trans people have the "the right to wander about or associate with like-minded people, and cannot be compelled to be at his (sic) parental home". The bench, comprising Justices V Chitambaresh and KP Jyothindranath, asserted that the Constitution of India contains a very specific provision – Article 19 (1) (a) – that protects the freedom of speech and expression, and this subsumes "the right of a person to live as a transgender".
The judgment also reiterates that the values that are essential to one's being – privacy, self-identity, autonomy and personal integrity — are guaranteed to all trans people and are protected by the Constitution.
At the heart of this judgment, are principles from the National Legal Services Authority versus Union of India (2014), that the right to gender identity is at the core of one's personal identity, and that this right must be protected from the State's prohibitions, restrictions and interferences.
Parts of the judgment are, however, disturbing. The petitioner – mother of the trans person, Arundhati – requested for an immediate medical/psychological evaluation, and such an invasive evaluation seemed to have taken place; thereby, violating the rights of the transperson in question.
Moreover, the bench seems completely reluctant to examine or review the historical injustice that the trans community has been through, often citing the medical report of this evaluation that refers to gender dysphoria. Reports suggest that Arundhati was subjected to four days of psychological and medical testing and that she was devastated that self-identification was not sufficient for the bench.
Arundhati questioned the high court's decision because the NALSA principles provide for the right to self-identification: "I had declared my gender earlier. But the court was not convinced. It took my mother’s petition seriously and ignored my statement that I was a trans woman."
The intolerance of the State, whether it be the legislature or the judiciary, continues in the form of blatant discrimination. In spite of the NALSA judgment, there hasn't been a lot of change in the environment – the environment has not been made conducive for the realisation and enjoyment of the rights of trans people.
Despite a flurry of landmark decisions that cite and borrow the NALSA principles, there is not really a clear trajectory to codifying the rights of the trans community. What the NALSA judgment did is that it gave the community formal legal recognition – they were the third gender, thereby, breaking down the heteronormative, binary gender constructs of 'man' and 'woman' that are deeply ingrained in Indian law, and affirmed that the constitutional rights and freedoms of the transgender community are absolute.
In doing so, the judiciary, in 2014, pulled open the Overton Window for the legislature to take the next steps – it had already done its bit by stretching the legal landscape to be more inclusive.
The legislature, however, grappled with two Bills – the Rights of Transgender Persons Bill, 2014 passed by a unanimous voice vote in the Rajya Sabha, and the Transgender Persons (Protection Rights) Bill, 2016 passed by the central government, a diluted version of the Rajya Sabha's Bill.
What happened to the Bills is out of the scope of this opinion piece, but it is important to note that there is just utter silence on the part of the government on the codification of the rights of the community. And as the community grapples to understand how they have fundamental rights if they cannot marry, adopt, stay free from violence, invoke redressal mechanisms, and exercise their right to self-identify, the issue of a law seems to be wedged between the legislature and the judiciary.
Several cases made use of the NALSA principles and incorporated them in order to address the historical abuse and injustice that the community has faced. The Madras High Court's decision in the case of Jakuline Mary versus Superintendent of Police, Karur expanded the NALSA perspectives and scope to include female-to-male transpersons and intersex persons.
In the decision, the judge wrote that "she is a female in the legal parlance and thus she is eligible for appointment as a woman police constable" and hence, upheld her right to self-identify. In Shivani Bhat versus State of NCT of Delhi, the Delhi High Court identified the historical disadvantage of the community and recognised the rights of a 19-year-old transman who was illegally detained and harassed by his family.
In K Prithika Yashini versus The Chairman, Prithika, a transwoman, became the first transgender person to become sub-inspector of police in Dharmapuri in Tamil Nadu, after a long legal struggle. In this verdict, the court ordered that transpersons have an inherent human right to decide their self-identified gender and "the Centre and state governments were directed to grant legal recognition of their gender identity such as male, female or as the third gender". In Ganga Kumari versus State & Ors, the Court recognised the fundamental right of the trans community to be protected against inequality or discrimination.
What is then holding the State back from legislating on the issues of the trans community? What is holding back the State from aligning other legislation with the NALSA principles? Even after four years, why haven't we been able to create a pathway for the community to self-identify without discrimination or violation?
Is it because we missed the opportune moment around the NALSA judgment, and even two years later, when the Bills were being discussed and debated? By waiting incessantly to make a move on this matter, the State is, by its own hand, undoing and disregarding the years of activism and by extension, the NALSA principles.
We may celebrate the Kerala High Court judgment, by saying that it is a victory for the LGBTQI community. But in reality, it is not. The trans-community will not benefit from isolated judgments like Arundhati's or Prithika's or Shivani's – these are individual narratives that have reached the judiciary, and the courts, still unequipped by the lack of legislation, fail to weave a rights-discourse in these cases.
What the community needs now is a framework, borrowed from the NALSA principles of course, that stitches together the promise of fundamental human rights and dignity, equality and inclusion, and affirmative action in the form of social welfare. Without this framework, the judiciary will continue to overreach into the lives of individuals, as it did in Arundhati's case, and violate more rights than it upholds.
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