On the 5th of July, 2016, a division bench of the Madras High Court disallowed the appeal of a police aspirant. She was disqualified from a selection round for failing to meet the minimum threshold. The selection round involved a 100 metre sprint in a stipulated time period. She prayed before the court that she be allowed to move on to the next stage despite this. She pointed to a previous case[1] in which a transgender aspirant was so allowed despite failing to complete the sprint in the stipulated time. Thereafter, she argued that a similar relaxation of rule be made for her. She placed special emphasis on the fact that the transgender population has a physical advantage over cisgender women candidates. Arguably, here she was referring to a transwoman. This blog will first summarize the case and then concentrate on two streams of thought: 1. Do transgender women candidates have a physical advantage over cisgender women candidates? 2. Is it a good strategy to pit the interests of cis-women against transgender persons?
FACTS
The appellant, Ms. Annapoornam, had applied for the post of Sub-Inspector of Police in the State of Tamil Nadu. There were 3 stages in selection: 1. Written examination; 2. Physical standard and physical endurance test; 3. Viva. The appellant cleared the 1st stage and also cleared part of stage 2—the physical standard test. The second part of stage 2 was a physical endurance examination, tested through: 1. Long jump; 2. Shot-up; and 3. A 100 metre sprint. Ms. Annapoornam cleared the long jump and shot-put stages with ease. In fact, she performed quite well in these tests and was awarded a “two-star” remark for her performance. A two star performer is one who surpasses the minimum standards required in the physical tests. The last 100 metre sprint remained. The test required that the sprint be completed in 17.50 seconds but Ms. Annapoornam completed it in 18.09 seconds. She fell 19 micro-seconds behind the requirement. Consequently, she did not move on to the viva stage of the selections. She challenged her exclusion on several grounds in a writ petition she filed before a single judge of the Madras High Court at Madurai. However, the judge dismissed the writ on 26.10.2015 reasoning that, “when the petitioner herself has admitted that she was unable to pass the 100 meters run within the specified time limit viz., 17.50 seconds, this Court may not be in a position to interfere with the impugned [disqualification] slip.”[2] Accordingly, she approached division bench of the High Court on appeal, once again challenging her disqualification.
GROUNDS OF APPEAL
The appellant, contended that she: 1. Had a better academic record than most of the candidates that had moved on to stage 3 (she held an English MA degree); 2. She had secured 2, 2 star performances in her physical endurance test, in long jump and shot put, respectively. Therefore, she argued, it is unjust to fail her in the physical endurance test; and 3. She argued that a different bench of the Madras High Court had allowed a transgender candidate, who fell short of the sprint requirement by 1.1 seconds, to proceed to the next stage of selection. She prayed that a similar allowance be made in her case as well especially because, she argued, transgender persons (it appears from the context of the case that she was referring to a transwoman) have more physical power.
DECISION
Summarily, the court decided that the physical tests were relevant to the role of the sub-inspector and accordingly the requirement to pass those tests were not arbitrary. Consequently, they dismissed the writ petition. On the contention of having made a discretionary allowance for a transgender candidate, the court noted that following the Supreme Court decision in the NALSA case, the State governments were supposed to take steps to protect the interests of the transgender community, but no such steps have been taken by the State government. Accordingly, the court, taking note of the discrimination and lack of parental support faced by transgender persons, prescribed a different standard in the 100 metre sprint. However, the court declined to make any observations about whether cisgender women should deserve more consideration than transgender persons. Arguably, the court took recourse to the fact that as per the Supreme Court’s direction, the State government was anyway required to institute various measures for transgender persons; the court’s direction in the Prithika Yashini case being a step taken because of the government’s failure to do so.
DO TRANSWOMEN HAVE A PHYSICAL ADVANTAGE OVER CISGENDER WOMEN?
There are two things that this case throws up that need some consideration and though they have not become an issue in this case, they may in the future. 1. Do transwomen have more physical power than cisgender women? In this situation particularly, we are concerned with their ability to run a 100 metre sprint and the question is whether their physical make up gives them any kind of advantage. The manner of framing the contention in this case assumes a person assigned male at birth having all the strength and speed advantage deemed to be associated with that sex; she later transitions. However, recently, the science related to sports and sex has come into intense focus with the Duttee Chand case before the Court of Arbitration for Sports (CAS). The case concerned the exclusion of an Indian athlete, Duttee Chand from the 100 metre national team because her testosterone levels were found to be higher than those permitted for athletes in the female category. The exclusion was based on an assumption that higher testosterone contributes to better athletic performance. The Court of Arbitration for Sports ultimately found (page 71) that higher testosterone in males contributes a 10-12% athletic advantage over females. However, the competitive advantage for women with increased testosterone renders a negligible advantage over other female athletes of about 1-3% which would not justify placing Duttee Chand in the male category for competitions. It also noted that many other factors such as genetic and biological variation, coaching, nutrition, etc. also contribute to competitive advantage. Without more, it is difficult to argue that these findings are directly applicable in comparing competitive advantages of trans and cis women. This difficulty becomes especially apparent when considering a trans persons who underwent hormonal therapy to align their bodies to their true gender. Therefore it might be best to treat it as an open question until the science behind question be tested and weighed in light of environmental, biological and social factors.
PITTING INTERESTS OF WOMEN AGAINST TRANSGENDER PERSONS
Second, this case pitches the interests of cisgender women against transgender women. Here, the court was not in the difficult position to pick one over the other, but the conceptual stage has been set. This is a dangerous sign. Both the movement for women’s rights and for transgender rights have fought long and hard battles for equality and dignity, and freedom. Both these movements fight for freedom from patriarchal rules of society. It is not a good strategy to use one against the other to move ahead. Instead, other strategies could be considered. For example, in this case, the appellant could have argued, that her academic grades are more than the requisite threshold, that she is well educated and that she has 2 star performances in 2 out 3 physical tests. The appellant could have asked the court to use their discretion in light of all her records, and see if she can be allowed to move on to the next stage despite falling short by 19 micro-seconds.
[1] K. Prithika Yashini v. The Chairman, Tamil Nadu Uniformed Services Recruitment Board W.P. No. 15046 of 2015.
[2] K. Annapoornam v. The Secretary to the Government and Ors. W.P. (MD) No. 19170 of 2015.
[3] International Association of Athletic Federations.
[4] The materials submitted are not available publicly.