Category Archives: NALSA

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TREND IN GENDER IDENTITY CLAIMS POST NALSA

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Reading Time: 4 minutes

Gender identity claims are the most common kinds of claims concerning transgender persons’ rights post NALSA. In this blog, I will demonstrate a trend that has arisen in these cases. We will recall that NALSA allows transgender persons to identify as male, female or third gender and does not require SRS or psychological evaluation to be made in this regard. In other words, it allows a gender identity claim based on the fundamental right of self-determination of gender. However, this principle of self-determination has been replaced by a principle of societal perception. Societal perception in turn is determined by the sex assigned at birth. 11 Supreme Court and High Court cases have been reported in SCC Online and Manupatra since the NALSA decision. Of these, 4 cases concern persons with intersex conditions who have been mis-classified as transgender[1], 3 deal with gender identity claims of trans-masculine persons (FTM)[2], and 4 deal with gender identity claims of trans-feminine persons (MTF)[3]. These gender identity cases can be divided in two categories: 1. Gender identity claims which are consistent with societal perception (first 4), and 2. Gender identity claims which are inconsistent with societal perception (last 7). The trend that has emerged is that so long as a gender identity claim is consistent with societal perception, courts do not require a SRS or a psychological evaluation to grant the gender claim. However, as soon as the gender claim is inconsistent with such perception, a court requires a SRS certificate and in one case a psychological evaluation before granting the relief.

GENDER IDENTITY CLAIMS CONSISTENT WITH SOCIETAL PERCEPTION

The first kinds of gender identity claims occur in cases in which a person is diagnosed with an intersex condition and labelled as transgender. In all these cases, the person has never identified as transgender and wishes to continue to identify in the gender that they have hitherto occupied. All their documents also point to that gender and they have been brought up as members of that gender. In these cases, the courts grant them the right to continue to identify in their gender. They do not rely on SRS or psychological examination before granting this remedy. The courts’ reasoning is based on the fact that society perceives them to belong to their claimed gender, and all their documents also confirm that fact. Consider this quotation from one such case which is typical of cases which fall in this category:

In all the records in the Schools, College and the University, she [the petitioner] was recorded as a female. She was known and fully recognized by the society as a female. Her gait, get-up, gesture and demeanour were all that of a female. The society did not doubt her sex at all. She actively participated in sports activities for women…irrespective of the opinion of the medical, psychological, genetic and other scientific communities, these medically declared transsexuals are to be treated by the legal community only by the sexual identity given to them by birth and recognized by the society.[Paras 2 and 34 of Nangai].

Note that the reasoning of the court is not based on the self-identity of the claimant but on societal perception. Had the decision been based on self-identity, the court would have noted the gender recorded in all the official documents but found that factor irrelevant in granting the gender claim of the applicant. The gender claim would have been simply been granted on the fact that the claimants considered themselves to belong to a particular gender. The tendency of the courts to maintain status quo in gender claims is confirmed by the fact that in these cases, the courts usually conclude by saying that should the claimant want to identify in another gender, a medical declaration will be needed to that effect. Note the quotation below which is typical of cases in this category.

The petitioner has the liberty to choose a different sexual/gender identity as a third gender in future based on a medical declaration. [Para 41 of Nangai].

Once again, had the gender claim truly been based on self-identity, this concluding statement would not have been made by the court.

GENDER IDENTITY CLAIMS WHICH ARE INCONSISTENT WITH SOCIETAL PERCEPTION

The second kinds of cases concern those persons who want to identify in a gender different from what society perceives them to be. In all but 2[4] of these cases the courts have required proof of SRS certificate and in one instance, a psychological exam. Note the quotation below which is typical of cases in this category.

…when a transgender undergoes a sex reassignment surgery and makes an application for changing of name and sex in the relevant records on the basis of the various documents including documents issued by the medical officer, the educational authorities or the concerned authorities are expected to verify the records and make consequential changes in the concerned records…in light of the above facts, this court is of the opinion that the petitioner should be granted  relief sought for and he is entitled to the name mentioned in the certificates to be changed by mentioning the present name, which is on account of sex reassignment surgery.[Para 3 of K. Gowtham; emphasis mine].

This tendency of the courts is confirmed by Santosh Shivam Dewangan, analysed here, in which the court refused to admit that the prosecutrix who charged the defendant with rape was indeed a woman because her vagina was not fully formed.

…her sex had not changed in tune with gender characteristics from male to female even after SRS surgery…[from the doctor’s report]…patient is a transgender has undergone sex change surgery 3 years back around 2013 at Dr.Kalda Clinic. Second sexual character on developing stage, has not started menses. Axillary hair, vagina is incompletely formed. Further considering the fact that her vagina is not fully developed and the secondary sexual characters are on developing stage, as case of the prosecutrix is falling under S. 375(a) of the Indian Penal Code…this court is of the view that it is a fit case to release the applicant on bail. [Para 13 of Santosh Shivam Dewangan].

In Shivani Bhat and Tessy James, the court did not require SRS but these cases were not concerned with changing gender on official documents. It is unclear what the court would have stated had that been required. Additionally, in Tessy James, analysed here, the court ordered a psychiatric evaluation before allowing the claim of transgender gender identity.

Read in conjunction with this blog and this blog

My thanks to Satya of the Sampoorna Working Group who helped me locate some of the cases concerning trans-masculine persons. The group is a network of Trans* and Intersex Indians Across the Globe. More here: https://sampoornaindiablog.wordpress.com/ 

[1] Nangai (also called the I. Jackuline Mary case), Ganga Kumari, T. Thanusu and G. Nagalaskhmi.

[2] S. Swapna, Prithika Yashini, Santosh Shivam Dewangan and Tessy James.

[3] Shivani Bhat, Chanchal Bhattacharyya and K. Gowtham.

[4] Shivani Bhatand Tessy James.

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TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2018

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Reading Time: 4 minutes

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.[1] 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. Female.[2] 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.[3] 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[4], 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 transgender certificate. 

[1] 7(3).

[2] S. 8.

[3] Direction 2, NALSA.

[4] Para 11.

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Swati Bidhan Baruah v. The State of Assam PIL 15/2017

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Reading Time: 3 minutes

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[1] 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.[2] Responses received until April 2017 were analyzed. The analysis with respect to Assam has shown the following:

  1. 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.
  2. Assam replied that it has set up a screening committee to issue transgender certificates.[3] Criteria to issue these certificates were not mentioned.
  3. Assam stated that it did not require a medical certificate to grant an identity card as PE to a transgender person.[4]
  4. Assam stated that its government hospitals provide health care to transgender persons, just like to everyone else.[5]
  5. 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.[6]
  6. Assam stated that it conducts counselling programmes for the transgender population.[7]
  7. Assam stated that it holds meetings to spread awareness about the transgender community.[8]
  8. Assam stated that it had set up a transgender and intersex persons NGO crisis committee.[9]

[1] National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012.[2] 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”].

[3] RTI Article, 111.

[4]  RTI Article, 114.

[5] RTI Article, 124.

[6] RTI Article, 128.

[7] RTI Article, 133.

[8] RTI Article, 135.

[9] RTI Article, 137.