TREND IN GENDER IDENTITY CLAIMS POST NALSA

Gender identity claims are the most common kinds of claims concerning transgender persons’ rights post NALSA. In this blog, I will demonstrate a trend that has arisen in these cases. We will recall that NALSA allows transgender persons to identify as male, female or third gender and does not require SRS or psychological evaluation to be made in this regard. In other words, it allows a gender identity claim based on the fundamental right to self-determination of gender. However, this principle of self-determination has been replaced by a principle of societal perception. Societal perception in turn is determined by the sex assigned at birth. 11 Supreme Court and High Court cases have been reported in SCC Online and Manupatra since the NALSA decision. Of these, 4 cases concern persons with intersex conditions who have been mis-classified as transgender[1], 3 deal with gender identity claims of trans-masculine persons (FTM)[2], and 4 deal with gender identity claims of trans-feminine persons (MTF)[3]. These gender identity cases can be divided in two categories: 1. Gender identity claims which are consistent with societal perception (first 4), and 2. Gender identity claims which are inconsistent with societal perception (last 7). The trend that has emerged is that so long as a gender identity claim is consistent with societal perception, courts do not require a SRS or a psychological evaluation to grant the gender claim. However, as soon as the gender claim is inconsistent with such perception, a court requires a SRS certificate and in one case a psychological evaluation before granting the relief.

GENDER IDENTITY CLAIMS CONSISTENT WITH SOCIETAL PERCEPTION

The first kinds of gender identity claims occur in cases in which a person is diagnosed with an intersex condition and labelled as transgender. In all these cases, the person has never identified as transgender and wishes to continue to identify in the gender that they have hitherto occupied. All their documents also point to that gender and they have been brought up as members of that gender. In these cases, the courts grant them the right to continue to identify in their gender. They do not rely on SRS or psychological examination before granting this remedy. The courts’ reasoning is based on the fact that society perceives them to belong to their claimed gender, and all their documents also confirm that fact. Consider this quotation from one such case which is typical of cases which fall in this category:

In all the records in the Schools, College and the University, she [the petitioner] was recorded as a female. She was known and fully recognized by the society as a female. Her gait, get-up, gesture and demeanour were all that of a female. The society did not doubt her sex at all. She actively participated in sports activities for women…irrespective of the opinion of the medical, psychological, genetic and other scientific communities, these medically declared transsexuals are to be treated by the legal community only by the sexual identity given to them by birth and recognized by the society.[Paras 2 and 34 of Nangai; emphasis mine].

Note that the reasoning of the court is not based on the self-identity of the claimant but on societal perception. Had the decision been based on self-identity, the court would have noted the gender recorded in all the official documents but found that factor irrelevant in granting the gender claim of the applicant. The gender claim would have been simply been granted on the fact that the claimants considered themselves to belong to a particular gender. The tendency of the courts to maintain status quo in gender claims is confirmed by the fact that in these cases, the courts usually conclude by saying that should the claimant want to identify in another gender, a medical declaration will be needed to that effect. Note the quotation below which is typical of cases in this category.

The petitioner has the liberty to choose a different sexual/gender identity as a third gender in future based on a medical declaration. [Para 41 of Nangai].

Once again, had the gender claim truly been based on self-identity, this concluding statement would not have been made by the court.

GENDER IDENTITY CLAIMS WHICH ARE INCONSISTENT WITH SOCIETAL PERCEPTION

The second kinds of cases concern those persons who want to identify in a gender different from what society perceives them to be. In all but 2[4] of these cases the courts have required proof of SRS certificate and in one instance, a psychological exam. Note the quotation below which is typical of cases in this category.

…when a transgender undergoes a sex reassignment surgery and makes an application for changing of name and sex in the relevant records on the basis of the various documents including documents issued by the medical officer, the educational authorities or the concerned authorities are expected to verify the records and make consequential changes in the concerned records…in light of the above facts, this court is of the opinion that the petitioner should be granted  relief sought for and he is entitled to the name mentioned in the certificates to be changed by mentioning the present name, which is on account of sex reassignment surgery.[Para 3 of K. Gowtham; emphasis mine].

This tendency of the courts is confirmed by Santosh Shivam Dewangan, analysed here, in which the court refused to admit that the prosecutrix who charged the defendant with rape was indeed a woman because her vagina was not fully formed.

…her sex had not changed in tune with gender characteristics from male to female even after SRS surgery…[from the doctor’s report]…patient is a transgender has undergone sex change surgery 3 years back around 2013 at Dr.Kalda Clinic. Second sexual character on developing stage, has not started menses. Axillary hair, vagina is incompletely formed. Further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under S. 375(a) of the Indian Penal Code…this court is of the view that it is a fit case to release the applicant on bail. [Para 13 of Santosh Shivam Dewangan].

In Shivani Bhat and Tessy James, the court did not require SRS but these cases were not concerned with changing gender on official documents. It is unclear what the court would have stated had that been required. Additionally, in Tessy James, analysed here, the court ordered a psychiatric evaluation before allowing the claim of transgender gender identity.

Read in conjunction with this blog.

 


[1] Nangai (also called the I. Jackuline Mary case), Ganga Kumari, T. Thanusu and G. Nagalaskhmi.

[2] S. Swapna, Prithika Yashini, Santosh Shivam Dewangan and Tessy James.

[3] Shivani Bhat, Chanchal Bhattacharyya and K. Gowtham.

[4] Shivani Bhatand Tessy James.

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