This entry concerns the application of the self-identity principle of gender determination in a pension matter. This simple looking judgment of May 2022 not only sees transgender women as women but also by the correct application of the NALSA judgment and the Transgender Act 2019[1], confers financial rewards on the correct constituents.
The case was brought by the daughter of Balaji Kondagari, a government servant working in the rural development department. Upon Balaji’s death, his wife received his pension, and once she passed away, the pension was to devolve upon the survivors. The Kondagaris were survived by two daughters, one of whom was a transgender woman. The question that arose therefore was, whether under the existent pension rules[2] the transgender daughter would count as a daughter eligible to receive pension? The pension rules provided that in the case of daughters, they were eligible to their parent’s pension even after they attained the age of 25 if they were unmarried, widowed, or divorced, and their monthly income did not exceed Rs 4440. The transgender daughter accordingly filed a petition for pension.
At the departmental level, the petitioner was found to be eligible for the pension. However, the government, the State of Odisha in this case, refused to disburse the pension. This refusal was challenged as being in violation of the pension rules and the Transgender Act. Not only did the petitioner have a transgender (woman) certificate but also had the right to full citizenship under the constitution which entitled her to be treated in a non-discriminatory manner (NALSA).
In coming to the conclusion that the petitioner was in fact a daughter under the pension rules, the High Court of Orissa relied on the NALSA judgment, and India’s obligations under international law, such as the UDHR, ICCPR, and the UN Convention against torture, all of which India was a signatory to, and all of which reiterated a person’s right to, equality, dignity, and to be treated in a manner free from discrimination. Specifically, the judgment reiterated NALSA’s holding with respect to transgender persons entitlement to equality under the constitution (Art. 14), its acknowledgment of the systematic discrimination they had faced in contravention of Articles 15 and 16 of the constitution, and its unequivocal declaration of the law that transgender persons had a right to decide their self-identified gender and that the State had an obligation to grant legal recognition to such gender identification.
Accordingly, the court ordered that the pension amount should be disbursed to the petitioner as soon as practicable. While prima facie, this might seem like a straightforward case of application of the laws to the facts, and in that way it is, by seeing the petitioner as a woman, this case has shown the radical potential of the NALSA judgment and demonstrated that there are both moral and material reasons why the right to self-identity needs to be taken seriously.
[1] Transgender Persons (Protection of Rights) Act, 2019
[2] 56(1) Odisha Civil Services (Pension) Rules, 1992.