On the 2nd of February 2021, a single judge of the Calcutta High Court, through a writ of mandamus, directed the administrators of the Joint CSIR-UGC NET examination to institute certain affirmative action measures for transgender candidates. The examination is a means to determine eligibility for Junior Research Fellowships and Lectureships/Assistant Professorships at Indian Universities.Continue reading
On the 1st of October, a single judge bench of the Karnataka High Court ruled that a transgender person does not have to get a District Magistrate’s certificate to request a name and gender change on their documents, even if they make the request after the coming into effect of the Transgender Persons (Protection of Rights) Act, 2019, so long as they have their identity recorded prior to the Act becoming operational.Continue reading
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.
On the 28th of September, 2018, a division bench of the Uttarakhand High Court ordered the State government to implement the NALSA directions. In addition to the NALSA directions, the court also gave certain additional directions to the State government with respect to the transgender population. The court granted a six month period for the implementation of these directions (i.e. by the 15th of March, 2019) The writ petitions filed in this case were filed by transgender persons and specifically contended that some private persons were interfering in the area of operation. The petition did not clarify the nature or scope of the interference. The judgment reiterated the ruling in NALSA and took judicial notice of the fact that the directions passed by the Supreme Court in NALSA had not been implemented by the State government. The NALSA directions, in full were as follows:
The Transgender Persons (Protection of Rights) Bill, 2018 was passed by the Lower House of Parliament (the Lok Sabha) in December, 2018. In this blog, we will look at how the principle of self-determination of gender identity has been reduced to a privilege by the wordings of the Bill.
The 2018 Bill deals a severe blow to the principle of self determination as enunciated by the Supreme Court. As opposed to the Supreme Court ruling, transgender persons do not have a right to self-identity, but a privilege; if they are able to persuade a District Screening Committee of their gender identity. It is not unusual for a right granting provision to lay out some conditions for accessing the right. However, the conditions must be procedural and not cumbersome so as to transform the character of a right into a privilege. However, this is what the 2018 Bill does.
It provides that persons may obtain a certificate recording their identity as “transgender” by making an application to the District Screening Committee. The list of these documents is not provided in the Bill. They will be set by Rules following the Bill, should the Bill become an Act. It is usually the prerogative of the executive, i.e. the government of the day to formulate these Rules. The application shall be screened by the District Screening Committee which shall comprise 1. A medical officer; 2. Social welfare officer; 3. a psychologist or psychiatrist; 4. A representative of the transgender community; 5. A government nominated officer. The Bill does not state on what grounds the application will be assessed and what the process will be for making a decision. In other words, will it be a majority decision? How much importance will be given to the opinion of the sole transgender person on the panel? Such things will be clarified by the Rules. However, the power division on the screening committee seems quite asymmetrical at the outset. Medical and mental health officers are not required on such a panel expect to make a determination of the sound medical condition of the application claiming a different gender identity. Based on the “recommendations” of the committee, the applicant will receive a certificate which will record their gender identity as “transgender.” As per the Supreme Court, the self-identity principle of gender meant that a person should be able to identify in their true gender without being assessed by a committee. At best, the committee can be a formal requirement. If the committee starts to make substantive assessment on whether a person actually belongs to their true gender then the directions of the Supreme Court are being turned on their head. The right of self identity will be transformed into a privilege and will be only available to those who can persuade the District Committee.
This is a crucial part of the Bill to correct because many derivative rights are associated with the certificate. The Bill itself mentions that it is the certificate that entitles the transgender persons to various rights associated with the Bill. As per the Bill, only those who have obtained the certificate can change their name and gender in their birth certificate and other official documents. As of now, advocates are still able to sometimes argue that their clients are eligible for change of name and gender on the basis of a self-attested affidavit but this will change once the certificate comes into effect. Apart from wrestling the power of self-determination from transgender persons and vesting it in the hands of a screening committee, the Bill also narrows the scope of self-identity in other important ways. Let us look at them below.
First of all, a
transgender person can only identify as either 1. Transgender; 2. Male; or 3.
This means an automatic reduction in scope of the Supreme Court decision. The
Supreme Court had ordered that a transgender person can identity either as 1.
Male; 2. Female; or 3. Third gender.
The category of “third gender” included, as per the court, Hijras and eunuchs.
Although as per the 2018 Bill, Hijras and eunuchs are included in the
definition of transgender, this still results in a loss of identity because
these two classes of people cannot identify as third gender. This becomes
especially important for the Hijra community because members of this community
may not identity either as male or female or transgender. We will not go into
the implications of for eunuchs because that itself is a derogatory term and
misplaced in the whole transgender debate. Eunuchs are castrated males. It is
unclear how they fit into the definition of transgender. One possibility is
that the Supreme Court included this group of people into this debate to refer
to those intersex children who are born with ambiguous genitalia and are given
over to the Hijra community. In popular imagination these persons are classed
as eunuchs, and it is possible that the Supreme Court order was meant to
provide an option to such persons. However, this can be easily rectified
through drafting if the Bill is amended to provide that transgender persons can
identity either as male, female or third gender. Such a drafting correction
will be in compliance with directions 1 and 2 of the Supreme Court.
Secondly, the 2018
Bill overlooks the many categories of persons who do not identity either as
transgender, or as male or female. This is an issue where the Supreme Court
decision itself is in default. Although the Supreme Court was right to
understand that transgender includes the vast gamut of people who do not
identify in the gender that they were assigned at birth,
its directions were narrower than this pronouncement. In its final directions,
it allowed transgender persons to identity only as 1. Male; 2. Female or; 3.
Third gender. These directions did not allow among others, gender queer
persons, or gender fluid persons, for example, to identify as gender queer or
gender fluid, respectively. While it is understandable that the Bill may
require persons to have one identifying category (transgender, for example) to
identify the class for whom its various provisions are triggered, it is
possible for it to provide for people to identify outside of the categories of
male, female or third gender. This can be accomplished by providing a space for
people to record their true identity alongside that of “transgender” in the
 S. 8.
 Direction 2, NALSA.
 Para 11.
On the 22nd of May, 2018, a division bench of the Gauhati High Court ordered the Government of Assam to implement the directions of the NALSA case within 6 months (i.e. by 22nd November, 2018). A transgender person who was the founder of the All Assam Transgender Association had filed a public interest litigation in the Gauhati High Court praying that the NALSA directions be implemented by the Assam Government. In the NALSA case, the Supreme Court of India had recognized that all fundamental rights apply to transgender persons. Accordingly, they had passed directions to the Union and State government with respect to the transgender population. Summarily, the directions had ordered the following: 1. It had recognized the fundamental right of self- identification to transgender persons, 2. It had directed the State to provide reservations to that population in educational institutions and public appointments, 3. To operate separate HIV sero-surveillance centres for them, 4. To take step to address the mental and emotional stressors faced by this population and also educate the public about them, 5. To provide separate public toilets, 6. To provide them proper medical care in hospitals, and 7. That the recommendations of the expert committee studying the problems of the transgender population be implemented within 6 months. The directions, in full are as follows:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.
However, the Assam State government had taken no steps to implement the directions of the Supreme Court. The High Court noted that it was only after receiving notice from the court in this matter that the government had constituted a committee to study the problems faced by the transgender community. The High Court directed the committee to submit its recommendations to the government within 3 months of the order and the government to implement the recommendations within 6 months. Separate from the case, a recent study published in June, 2018, sent right to information applications (RTI) to various departments of the central and state governments to inquire into their progress with the implementation of the NALSA directions. Responses received until April 2017 were analyzed. The analysis with respect to Assam has shown the following:
- Assam provides employment and issues identity cards, to transgender persons, as peer educators (PE) under a targeted intervention scheme. The scheme is aimed at reducing the vulnerabilities of the transgender population to HIV/AIDS and covers up to 240 transgender persons.
- Assam replied that it has set up a screening committee to issue transgender certificates. Criteria to issue these certificates were not mentioned.
- Assam stated that it did not require a medical certificate to grant an identity card as PE to a transgender person.
- Assam stated that its government hospitals provide health care to transgender persons, just like to everyone else.
- Assam stated that social welfare schemes are at their stage of inception in accordance with the National AIDS Control Organization prescription. It is unclear what ‘inception’ means in this context.
- Assam stated that it conducts counselling programmes for the transgender population.
- Assam stated that it holds meetings to spread awareness about the transgender community.
- Assam stated that it had set up a transgender and intersex persons NGO crisis committee.
 National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012. Dipika Jain, Gauri Pillai, Surabhi Shukla and Justin Jos, “Bureaucratization of Transgender Rights: Perspective from the Ground 14 SOCIO-LEGAL REVIEW (2018) 98 [“RTI Article”].
 RTI Article, 111.
 RTI Article, 114.
 RTI Article, 124.
 RTI Article, 128.
 RTI Article, 133.
 RTI Article, 135.
 RTI Article, 137.