On the 15th of March, 2021, a single bench of the Kerala High Court issued a writ of mandamus to the National Cadet Corps to permit the applicant, a transgender woman, to apply as a candidate under the female category. This case provided an opportunity for the interpretation of Transgender Persons (Protection of Rights)Act, 2019 (2019 Act). Specifically, this case was crucial in holding that there were two rights granted under the 2019 Act: gender recognition and gender identity. They were distinct and came into operation at different times. In this blog, I will summarize the facts of the case, the arguments of the parties, and the decision of the court.
The petitioner, a transgender woman, had undergone gender affirmation surgery and had changed her legal documents accordingly. She had chosen the name Hina Haneefa for herself. The surgery was performed on the 27th of May, 2019. She had been issued a transgneder identity card from the Department of Social Justice of the State, identifying her as a female. The facts of the case suggest that the petitioner had been a cadet at the National Cadet Corps (NCC), a national level organization with the purpose of grooming cadets to join the Indian Armed Forces, since 2013. However, she was now refused enrollment into the NCC batallion on the grounds that there was no provision for admitting transgender persons in the NCC as per the National Cadet Corps Act of 1948 (NCC Act) which regulated enrollment conditions among other things. As per Section 6 of this Act, the NCC could admit only persons of male and female sex. Accordingly, her application for enrollment could not be considered.
The petitioner argued that NALSA had established the right of transgender persons to live a life of dignity, free of discrimination because of their gender identity. The NCC by refusing to consider her application was violating her fundamental rights against discrimination, expression, and dignity; Articles 14, 15, 19, and 21, respectively. She also contended that the NCC refusal also defeated the purpose of the 2019 Act which was to mete out injustice and establish dignity for transgender persons. Further, she argued that the absence of any provisions in the NCC Act had to be considered in light of the NALSA pronouncement and the 2019 Act.
The main argument of the NCC relevant to this case was the petitioner was registered under the transgender category in her university. At the time of taking admission in the university, the petitioner had enrolled herself as “transgender (female).” The NCC argued that she could now claim that she was a female for the purposes of enrollment in the NCC battalion. They argued that the petitioner had exhausted her right to self-determined gender when she claimed that she was “transgender (female).” Since NCC enrollment was only open to males and females, and not transgender females, the petitioner was ineligible.
HOLDING OF THE COURT:
Two Rights: Gender Recognition and Gender Identity
The court reasoned that with respect to gender recognition, the 2019 Act creates two rights and a two-step self-determination process. As per Section 4(1) of the 2019 Act, a transgender person has a right to be recognized as such as per the provision of the Act. Further, as per Section 4(2) of the Act, a recognized transgender person has the right to self-perceived gender identity. In effect, two rights have been created; a right to be recognized as a transgender person, and a right to self-identified gender. Further, a two step process has been created to be identified in a self-perceived gender.
Two Step-Process for Gender Identity
The first step requires an umbrella recognition as a transgender person. Only then can one, in the second step avail of the self-perceived gender identity upon fulfilling certain further, what may appear to be, “conditions.” These further “conditions” entail surgery and provide the transgender person with the choice only to claim the male and female gender identity. In an earlier post I have raised the question of whether surgery really needs to be undertaken if a transgender persons seeks to assert a male/female gender identity. I have also argued previously that the effect of the 2019 Act is to severely restrict the choice of gender self-determination of transgender persons by allowing them only three choices (transgender, male, and female). There are myriad gender identities by which a transgender person may want to refer to themselves; hijra, kinnar, gender queer, non-binary, etc, but these options have not been provided by the 2019 Act. Further, I have also demonstrated that a surgical per-requirement for claiming a male/female gender identity violates the NALSA holding and defeats the principles of self-determination, which is at the core of NALSA and the struggle of transgender rights.
Returning to the facts at hand, the court held that since the 2019 Act allows a transgender persons both rights, a right to recognition as a transgender person and a right to a self-identified gender, the petitioner could state both, that she was transgender and a female, especially, and this was perhaps an important consideration for the court, she had undergone the surgery and therefore met the “conditions.” In other words, the fact that she had enrolled in a university under the transgender (female) category does not exhaust her self-perception rights as provided in the 2019 Act. The court allowed the petitioner to submit her application and be considered for selection in the female wing of the NCC. The court also directed the respondents to amend the NCC selection criteria and make provision for transgender persons within six months.
RETROSPECTIVE APPLICATION OF THE 2019 ACT
Before concluding this case, a small but important point needs to be noted. The general rule is that the substantive issues in a case are to be decided according to the law at the time of the cause of action. The facts of the case arose before the 2019 Act came into being and therefore, should have been decided according to the NALSA ruling. However, the case was decided according to the 2019 Act, especially Sections 4 and 7 of the Act. It is curious that this was done given that the 2019 Act does not operate retrospectively. This observation yields especially interesting results in Kerala, where this case is from, because Kerala had rolled out a transgender identity card in late 2018 which acknowledged both, the transgender status of the applicant and their self-identified gender (male, female, transgender) in one card. In fact, the petitioner had such a card. Yet, no attention was paid to this rule of retrospective application or to the meaning of this card and how it could foreclose the NCC argument.
 Surabhi Shukla, “Transgender Persons in Indian Courtrooms” in Z. Davy, A. C. Santos, C. Bertone, R. Thoreson & S. Wieringa (Eds.) The SAGE Handbook of Global Sexualities 705 (SAGE 2020)