Category Archives: Fundamental Rights

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K. Gowtham Subramaniyam v. Controller of Examination Anna University W.P. No. 7536/2017

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Reading Time: 5 minutes

On the 1st of June, 2017, a single judge bench of the Madras High Court directed Anna University to change the name and sex in the records of the petitioner, a transgender man. In this post, I will summarize the case with a focus on the different medical processes “on account of” which the court passed this direction. Additionally, I will seek to demonstrate that:

  1. In the reported cases post NALSA which require a determination of gender identity for the allocation of rights, courts have usually relied on sex re-assignment surgery (SRS)[1] and anatomical approximation post SRS, but not on psychological tests.
  2. Government departments in different states do not follow any uniform procedure though it is not unlikely that the department may ask for a SRS certificate.
  3. The Transgender (Protection of Rights) Bill, 2016 [“2016 Bill”] has the potential to turn the NALSA self- determination principle on its head by empowering a District Magistrate and a screening committee to certify whether a person is transgender.
  1. MEDICAL PROCEDURES UNDERTAKEN IN THE PRESENT CASE

The petitioner, assigned gender female at birth, “always felt and lived like a man”, as the High Court put it. He underwent the following gender affirmative procedures:

  1. A gender identity disorder diagnosis
  2. Hormone replacement therapy
  3. Psychological testing and certification declaring petitioner fit for surgery
  4. SRS

He received a certificate from the doctors after the surgery attesting to the fact that the petitioner was transgender and had undergone SRS. After these procedures, the petitioner changed his name to K. Gowtham and issued a public notice to the effect by a publication in the in the Tamil Nadu Gazette. He also obtained an Aadhar card in his male name. Thereafter, he made a written representation to Anna University to change his name. The University, citing lack of provision or precedent to effect the change, required that the petitioner present a transgender certificate from the District Magistrate, per the proposed 2016 Bill.

The High Court found that “on account” of the SRS and the subsequent doctor certificates, the petitioner, “has become a complete male.” [para 2]. Accordingly, the High Court directed the university to change the name and sex on the records and certificates of the petitioner.

  1. THE COURT’S RELIANCE ON MEDICAL PROCEDURES IS IN VIOLATION OF THE LAW

Not only does the High Court rely on the SRS and medical certificates, it also presumably relies on the anatomical correctness of the post-surgery sex organs when it declares that, “the petitioner has become a complete male.” This judgment doubly violates NALSA by: 1. Granting the prayer arguably only on terms ruled illegal by NALSA (the SRS); and 2. Going a step further to presumably see how successful the surgeries had been in replicating the male anatomy.

  1. THE COURT’S RELIANCE ON THE ANATOMICAL SUCCESS OF THE OPERATION IS INCORRECT IN LAW

Arguably, the court’s declaration that the petitioner had become a “complete man” per medical certificates weighed on its decision to declare that the petitioner’s records be changed. I have argued above that such reliance is illegal as per NALSA.

However, this decision needs to be seen in the light of another development as well. The procedure laid down by the 2016 Bill for the recognition of a person as transgender has the potential to become heavily medicalized, in contravention of the NALSA ruling. Whereas the thrust of the NALSA judgment was on self- determination, the proposed Bill empowers the District Magistrate (DM) to certify whether a person is transgender (Ss.4-8). Though the full procedure of how this shall be done has not been laid out in the Bill, the composition of the District Screening Committee on whose recommendations the DM will certify, may give us some indications. The committee shall comprise:

  1. A Chief Medical Officer;
  2. Social welfare officer;
  3. Psychologist or psychiatrist;
  4. Representative of transgender community;
  5. A government officer.

The requirement of doctors, both medical and psychological, is without any basis in the NALSA judgment. NALSA relies on self- determination rendering a medical or psychological opinion on whether a person really is transgender, unnecessary. While NALSA’s reliance on the phrase “psychological test” may lead some to believe that transgender persons can be made to undergo a psychological exam to corroborate the fact of their gender identity, the judgment, if read in full, arguably uses the phrase “psychological test” to refer to the internal self belief of a person, a belief in the realm of the psyche, and not an actual psychological test understood in clinical terms. Justice Radhakrishnan’s mention of a psychological test must be read in light of his explicit statement that, “Determination of gender to which a person belongs is to be decided by the person concerned.” [Page 84]. Moreover, the judgment never identifies the role of a psychologist or psychiatrist while upholding the right to self- determined gender. The only instance of the usage of the word psychiatrist in the judgment is by Justice Sikri when he is describing what SRS entails. He also arguably does not identify the role of a psychiatrist or a psychologist in gender identity because he bases his judgment on the fundamental principle of an individual’s “right to choose” [page 91]. Finally, the Supreme Court’s direction 2 clearly states that a transgender person’s right to self identified gender is upheld, placing the obligation on the government to provide legal recognition in accordance. A psychological or psychiatrist exam would militate against very spirit of a self identified gender identity. The reported judgments post NALSA seem to have understood this requirement correctly. Either deliberately or inadvertently, they have not required the results of a psychological exam before upholding the rights of a petitioner to self identity as transgender, even as they have required proof of SRS, and a “successful” SRS to grant these rights [See table 1].

TABLE 1

POST NALSA CASES IN WHICH THE DETERMINATION OF GENDER IDENTITY IS IN ISSUE

In this table, I have excluded cases in which the court incorrectly equated intersex with transgender and intersex claimants did not seek to identify in a gender different from that assigned at birth.  Additionally, I have excluded cases in which the determination of the transgender identity of the parties is not a legal issue.

 

Case Reliance on SRS Reliance on Anatomical Resemblance Reliance on Psychological Exam
Shivani Bhat

 

(Delhi HC)

 No No No
Shivam Santosh Dewagan

 

(Chhattisgarh HC)

 Yes Yes No
K. Gowtham

 

(Mad. HC)

 Yes Yes No
Prithika Yashini

(Mad. HC)

 Yes Arguably No but details of medical certificates examined are not reproduced in judgment. No
S. Swapna

(Mad. HC)

 Yes Id. No

Additionally, it is not uncommon for government departments to ask for SRS, as reported online or shared on listservs. See table in this Doc. This table also demonstrates that it is unclear what additional documents transgender applicants need to produce in addition to the published procedure.

In the present case, the court did not pay heed to the university’s demand for a DM certificate because the 2016 Bill has not yet become law. However, the section, if passed, may cause the right of a transgender person to self identify to change hands and become the right of the DM to identify a transgender person. This section has faced stiff opposition from activists, lawyers and scholars working in the field. See, for example, this collection of critiques of the 2016 Bill. If the 2016 Bill passes in its current form, it is very likely that the principle of self-determination of gender identity will have little or no meaning; doctors of the body and mind will make these decisions in scenes that will remind us of Foucault’s Birth of the Clinic.

 

[1] A recent study has suggested that the term Gender Affirmative Surgery better signifies how transgender persons experience this surgery. However, for the present blog, I use the term SRS for reading consistency between court rulings and my critiques because the courts have been using SRS.

I am grateful to Dr. L. Ramakrishnan (Ramki) for extensive discussions around this blog and for pointing me to the collection of critiques of the 2016 Bill. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.

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Justice Puttaswamy (Retd.) and Anr. v. Union of India and Ors. Writ Petition (Civil) No. 494/2012

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Reading Time: 5 minutes
Note: Part 2 of Kirankumar has been postponed 
to October 2017 in light of the privacy decision.

1. THE PRIVACY DECISION[1]

On the 24th of August, 2017, a nine judge bench of the Supreme Court of India decided whether there is a fundamental right to privacy. Summarily and without tracing it’s constitutional genealogy, the court decided that there exists, in the Indian constitutional scheme, an inalienable, fundamental right to privacy drawing life blood primarily from Article 21 of the Constitution of India, 1950 (“constitution”). However, this right was found not to be absolute and different judges on the bench stated different reasons and tests for State interference with it. In this blog, I will discuss implications of the judgment on the 377[2] case and rights related to sexual orientation and gender identity (SOGI), generally.

Before doing that, we need to be clear that there is no clear majority opinion, in the ordinary sense of the word, in this case. It is a nine judge bench and therefore, an opinion endorsed by five or more judges would count as a majority opinion. However, here, there is one opinion endorsed by 4 judges (Chandrachud opinion) and 5 individual opinions, all of which find a fundamental right to privacy but are different in particulars. Such a situation is called a plurality and to find a majority on any one point, 5 or more judges should have the same opinion on that point.

2. IMPLICATIONS FOR THE 377 CASE

a. 377 Matter is Still Undecided

To be sure, the court did not decide the 377[3] issue. In fact, 5 judges of the court categorically stated that the 377 matter is pending before another bench and so they leave its validity be decided by the appropriate proceeding:

“Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” [para 128] (Chandrachud opinion)

“It is not necessary to delve into this issue further, other than in the context of privacy as that would be an issue to be debated before the appropriate Bench, the matter having been referred to a larger Bench.” [para 81, Kaul J., upon finding that the fundamental right to privacy extended to LGBT persons regardless of how minuscule they were in numbers.]

b. Sexual Orientation Recognized as a Fundamental Right

5 Judges of the court clearly found that sexual orientation is “undoubtedly”[4] an essential attribute of privacy.[5] If privacy is a fundamental right and sexual orientation is an essential attribute of privacy then the right to sexual orientation is a fundamental right as well. The Supreme Court in National Legal Services Authority v. Union of India [“NALSA”] had noted that self defined sexual orientation is, “integral to … personality and is one of the most basic aspects of self-determination, dignity and freedom” [NALSA, para 20], and had in Suresh Kumar Koushal[6] noted that S. 377 does not criminalize any particular sexual orientation.[7] However, neither of the judgments had gone so far as to expressly declare the right to sexual orientation as a fundamental right.

The reader will recall that the Supreme Court has already noted in NALSA that the right to self determined gender identity is a fundamental right.[8] Therefore, the sum total of all these cases is that now there is an expressly declared fundamental right to sexual orientation in addition to gender identity.

c. Two Arguments for Personal Intimacies to be Essential Entitlements under Privacy

The recognition of sexual orientation as a fundamental right should by itself lead the court to find S.377 unconstitutional as the section stands in the way of the fulfilment of a core aspect of sexual orientation—sex, with a person of choice, and in a manner of choice. 2 other opinions in the judgment should be highly persuasive of this point. The first is the 4 judge Chandrachud opinion finding that “personal intimacies” are an entitlement under the right to privacy [Conclusion P]. As per the Oxford English Dictionary, the word “intimacy” means familiarity, friendship, but also sexual intercourse.[9] If the right to privacy is an inalienable fundamental right and it includes personal intimacies then S.377 which criminalizes the personal intimacies of LGBT persons[10] cannot stand constitutional scrutiny because it will violate the fundamental right to privacy. This conclusion is doubly solidified in light of the court’s restatement of a crucial constitutional law principle: to withstand constitutional scrutiny, an impugned section should survive the scrutiny of all fundamental rights. The second is the Justice Nariman opinion which finds that the fundamental right to privacy will protect “fundamental personal choices.”[11] Although he does not explain what that phrase means, his judgment illustrates “personal choices” as including “rights of same sex couples—including the right to marry…”[12] This provides grounds for arguing that Nariman J. too, finds that personal intimacies of all persons, regardless of SOGI, is protected by the fundamental right to privacy.[13]

3. APPLICATIONS OF THE JUDGMENT MAY OPEN UP MARRIAGE AND PARENTHOOD TO LGBT PERSONS

Finally, the 4 judge Chandrachud opinion has recognized the following list of non- exhaustive entitlements under privacy: decisions about personal intimacies, family life, procreation, home and sexual orientation [Conclusion (3)(F)]. Privacy itself has been housed primarily under Article 21. Article 21 guarantees life and liberty to all persons, regardless of sexual orientation and gender identity. Accordingly, the aforementioned entitlements also extend to all persons, regardless of SOGI. This means that this opinion has affirmed that even LGBT persons have a fundamental privacy right to home, procreation, family life etc. This coupled with Justice Nariman’s finding that personal choices protected by privacy include, “rights of same sex couples—including the right to marry…”[14] provides extremely persuasive grounds for arguing that 5 judges have stated that all persons have a right to marry, regardless of SOGI.  Additionally, the logic of the 4 judge Chandrachud opinion may also open up avenues for LGBT persons to argue for procreation related rights like surrogacy etc.

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[1] My thanks to Mariyam Kamil, DPhil (law) student at the University of Oxford for hearing out and confirming my various legal conclusions re. SOGI from this decision. Mariyam researches on the constitutional right to privacy in India.

[2] S.377, Indian Penal Code, 1860.

[3] All references to 377 in this blog mean the issue of the constitutional validity of S. 377, Indian Penal Code, 1860 which criminalizes “carnal intercourse against the order of nature”, and which is pending in the Indian Supreme Court.

[4] Kaul J. Opinion; para 80.

[5] For example, paragraph 126 and Conclusion (3)(F) of the Chandrachud opinion.

[6] Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013).

[7] Suresh Kumar Koushal and Anr. v. Naz Foundation and Others (Civil Appeal No. 10972 of 2013) para 38.

[8] “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.” [para 69, NALSA].

[9] https://en.oxforddictionaries.com/definition/intimacy.

[10] S.377 criminalizes the sexual lives of all those persons, whether or not LGBT, who have non-peno-vaginal sex. However, in keeping with the scope of the website, I have referred only to LGBT persons in the main text.

[11] Nariman J.; Para 81.

[12] Nariman J.; Para 46.

[13] Additionally, Chamaleshwar J. suggests that “intimate decision” is an aspect of privacy and it includes most personal life choices [Para 36]. He does not elaborate on what personal life choices are and for this reason, I have left it out of the above reasoning.  Similarly, Bobde J. states that privacy has “deep affinity” with intimacy, among other things. In its literal sense, the word affinity means closeness, liking, similarity as per the Oxford English Dictionary and therefore its unclear whether Bobde J. has counted intimacy as an aspect of privacy. For this reason, I have left it out of the reasoning. In this blog, I have tried to present the strongest arguments from the judgment for personal intimacies to be counted as a privacy entitlement.

[14] Nariman J.; Para 46.