On the 12th of July, 2019, a division bench of the Delhi High Court decided whether a habeas corpus petition filed by a transgender man (Monu) to set his romantic partner at liberty from her family members, could be allowed. The petition was filed against the State to ensure that if the detenue was indeed found to be detained against her will, she be at once set at liberty. Summarily, the court rejected the petition.
The practical limits of the gender determination aspect of the NALSA decision were tested on the 4th of October, 2019 when a single judge bench of the Madhya Pradesh High Court ordered a gender determination test in a matrimonial dispute. In this blog, I will summarize the facts and the decision, and demonstrate that: 1. There is still confusion about the definition of transgender, and intersex persons are considered to be transgender; and 2. That this decision provides a legal limitation to the fundamental right to self-determined gender identity.
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.