On the 31st of May, 2019, a single judge bench of the Uttarakhand High Court decided whether a trans-woman’s allegation of rape should be recorded under Section 375 or Section 377 of the Indian Penal Code, 1860 (‘IPC’)? In deciding that the trans-woman had a right to self-determine her gender, ‘without further confirmation from any authority’, this case is a rare example of the correct application of the NALSA decision. It breaks from the trend observed in the Indian courts posts NALSA that when a person seeks to identify in a gender different from what the society has perceived her to be, the courts rely on a sex re-assignment surgery (and in one case, a psychological exam) to grant that right.
FACTS OF THE CASE
The facts of the case were that the petitioner, a transgender woman, filed the first information report (‘FIR’) in an alleged crime which was recorded by the police under Ss. 377 and 385 of the Indian Penal Code, 1860 (IPC). Section 377 as enacted criminalized instances of sexual intercourse, ‘against the order of nature.’ Though over the years there had not been much clarity about what sexual intercourse against the order of nature was, hegemonic legal and popular discourse seemed to be in agreement that non-heterosexual sexual intercourse was certainly one instance of it. The 2013 Indian Supreme Court decision in the case of Suresh Kumar Koushal v. Naz Foundation seemingly crystallized this belief though I have argued that this may be a misunderstanding the Supreme Court verdict (here). However, now with the Navtej Johar judgment it is amply clear, though for different reasons, that Section 377 is unconstitutional to the extent that it criminalizes adult consensual sexual intercourse regardless of the gender of the parties participating. This judgment modified the scope of Section 377 so that sexual intercourse, ‘against the order of nature’ now meant non-consensual sexual intercourse. Therefore, post Navtej Johar, the renewed scope of Section 377 is that it criminalizes instances of non-consensual sexual intercourse regardless of gender. Since Section 375 criminalizes instances of non-consensual sexual intercourse between a man and a woman, Section 377 would arguably cover all other instances of non-consensual sexual intercourse. Section 385 criminalizes extortion or attempts to commit extortion.
SECTIONS 375 AND 377 PROVIDE DIFFERENT REMEDIES WHICH DEPEND ON THE GENDER IDENTITY OF THE COMPLAINANT
Arguably, this petition is in the nature of a writ of mandamus praying that the State Government be directed to treat her as a woman in the ongoing criminal case registered by her. From the scattering of facts available in the present judgment, it seems that she had wanted to file a FIR under Section 375 but her complaint was registered under Section 377. The two key differences between Sections 375 and 377 are: 1. That the scope of Section 375 is wider than that of Section 377. Whereas Section 377 requires penetration, Section 375 does not require it; and 2. Section 375 envisages a larger punishment than Section 377. Whereas Section 375 envisages a minimum imprisonment of 10 years leading to life (apart from fine), Section 377 envisages a maximum imprisonment of 10 years (apart from fine). Perhaps these were the reasons, though they have not been articulated in the judgment, that the petitioner wanted her complaint to be registered under Section 375 and not 377 of the IPC. However, her complaint had been registered under Section 377 because she was perceived as a man though she self-identified as a woman. Therefore this writ petition, directing the Government to treat her as a woman so that her criminal case can proceed under Section 375 and not Section 377.
ARGUMENTS OF THE PETITIONER
The petitioner staked her claim to be identified as a woman on a hosts of reasons which included the fact that she identified as a woman, and as a transgender person, the Supreme Court had affirmed her fundamental right to so identify. She also argued that she had undergone a sex reassignment surgery and obtained a certificate from her doctor stating that she may be addressed as a female. She also relied on the fact that the civil service department of the Government was in support of her claim to identify herself as a woman, and that she has received a similar confirmation of her right to do so via a letter of the Ministry of Social Justice and Empowerment, Union of India. Accordingly, she argued that she should be treated as female.
ARGUMENTS OF THE STATE
Interestingly, this case presented an instance of contradictory opinions being held by two department of the same branch of the government—the executive. Whereas the Joint Secretary to the Government and the Home Secretary of the Government (the civil service department) submitted affidavits that the petitioner was within her rights to self-determine her gender, the investigating officer in the case (the police department), relied on a DNA report of the petitioner to assert that she was in fact, male and should be treated as such for the purposes of the ongoing criminal case. Accordingly, a charge-sheet under Section 377 and not Section 375 was filed in the case.
In defence of its decision, the State Government argued that unless the Parliament enacted a law codifying the right of a person to determine their own gender, they could not do so as it would cause, ‘havoc in the society.’ Curiously though the State Government accepted that a person would be allowed to identify in a gender different from that suggested by biological sex as long as a competent authority certified to that effect, it negated the right of a doctor to do so. Arguably, the reference to competent authority in the State’s argued is a reference to the District Screening Committees which have been proposed as the body which will issue transgender certificates to persons. These committees have been proposed under the Transgender Persons (Protection of Rights) Bill, 2018. To understand how these committees turn the right of self-determined gender into a privilege, see here.
DECISION OF THE COURT
The court rejected the argument of the State that the right of transgender persons to determine their gender had to wait for a legislation to come into operation. They stated until the Parliament enacts legislation on the topic, the law declared by the Supreme Court is the law of the land. In order to arrive at its decision, the court perused the Supreme Court verdict in NALSA which upheld the right of transgender persons to identify in their self-determined gender. While the NALSA directions had themselves clearly outlawed any requirement of a sex re-assignment surgery before gender identity could be claimed, over the years the legality of a psychological diagnosis in order to claim a transgender identity has been uncertain.
This judgment made some important observations in that regard and that is its biggest contribution. It noted that the emphasis of the NALSA decision was on psychological identification of gender, and not a biological one. However, the court did not take this to mean that a transgender person should pass some kind of psychological evaluation before they can self-identify their gender. As argued before, the usage of the phrase, ‘psychological test’ in the NALSA judgment refers to an deeply felt internal belief of a person, a belief in the realm of the psyche, that they do not belong to the gender that has been assigned them at birth. The NALSA judgment did not in its spirit direct a psychological evaluation nor is any role identified in that judgment for a psychologist or psychiatrist. It is this fact which was clearly understood by the present judgment. To quote from the judgment how the judge understood the term “psychological test”:
If a person psychologically feels different than what his “biological sex” is and determines himself as per his psyche, his sex would be determined accordingly, in view of the judgment in the NALSA’s case [Para 11, Manupatra copy].
Accordingly, it ruled, in recognition of India’s international obligations undertaken in various convention, the Yogyakarta Principles, fundamental rights of life, liberty, dignity, privacy, the march of the law, and most importantly to put to full effect the Supreme Court’s verdict in NALSA which was the law of the land, that the:
petitioner’s right to determine her sex and gender has to be respected and honored. The petitioner has identified herself as a female’, therefore, ‘she’ has to be treated as a female for all the purposes, whatsoever without any further confirmation from any authority. [Para 17, Manupatra Copy].
Thus, the court directed that the petitioner, the trans-woman in the present case, be treated as female solely upon her self-determination, and in doing so marked a break from the trend of post-NALSA cases which rely on SRS certificates and in one instance (Tessy James), a psychological examination before permitting a person to identify in a gender different from societal perception.
 Here, it should be clarified that it is open to argument whether Section 377 operates in addition to Section 375 or to the exclusion of Section 375. Additionally, it is also open to debate whether instances of non-consensual sexual intercourse between women would be covered by Section 377 since it is uncertain whether the original Section itself applied to sexual intercourse between woman. Of course, it could be argued that it is not the original intention of the Section but the reasonable interpretation of the words of the Section as they stand presently which should determine the debate. However, this is a query for another time.