Does a public appointment advertisement that fails to include transgender persons violate the constitution and offend the NALSA reservation direction? A single judge of the Andhra Pradesh High Court was faced with this particular question in this instance. Summarily, he found that though such advertisement offends equality, it does not violate the NALSA reservation direction because of certain context specific reasons. In this blog, I will deal with the equality analysis and the reservation analysis of the court.Continue reading
This blog is based on a talk that Dr Daniela Alaattinoğlu and I delivered recently at the University of Oxford. As we delivered the talk together, we have also authored this text together. As its title suggests, the main finding of the talk was that the medical field exercises immense control over the legal gender recognition of trans persons. Even when the law is based only on self-identification, and no role has been carved out for medical professionals, they seem to exercise a great influence in the desire and ability of a trans person to get legal gender recognition. Let us look closer at the Nordic countries and India.
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 26th of March, 2019, a single bench of the Karnataka High Court directed the Department of Education of Karnataka State to issue circulars to educational institutions requiring them to implement the directions issued by the Supreme Court in NALSA. Additionally, it also directed the Department to expeditiously consider a representation made by a trans-masculine person for name and gender change in his school and pre-university educational records. In this blog, I will primarily argue that even if a petitioner submits sex re-assignment (SRS) certificate and psychological evaluation certificate in support of his name and gender change application, as per NALSA, the court should not consider them in making their ruling. Name and gender change applications can be made on the basis of self-determination alone. The right to a self-determined gender identity has been found to a fundamental right under Article 19(1)(a) and under the the personal autonomy guarantee of Article 21. However, the trend of the Indian courts has been to rely on SRS certificates when a person tries to change their gender and name contrary to their societal perception. I will also mention an interesting argument made in the petition regarding privacy under Article 21. This argument was made in addition to the other constitutional violations alleged in the case but I am not detailing with those arguments as they are quite standard.
1. FACTS OF THE CASE
Since the petition filed in court was publicly available, I have relied on it to draw out the facts. The petitioner was an 18 year old male whereas the respondents were the State Pre-University Education Department (PU Department) and the State Higher Secondary Education Department (SSLC).The petitioner had been assigned gender female at birth which was recorded in his birth certificate but had identified as male from a very young age. He also passed his SSLC and PU examinations with gender recorded on those pass certificates as “girl.” In line with his intention to change his name and gender to that of a male, he executed an affidavit and issued public notice in the form of newspaper advertisements in a regional daily and in a local newspaper. These procedures were in line with the general procedures specified by the Gazette of India to record a change of name. Incidentally, the Department of Publication of the Government of India has now uploaded a new performa on their website which can be used for name and gender change. The performa does not require the applicant to have undergone SRS or psychological evaluation for the same.
In addition to the Gazette process, the petitioner also underwent psychiatric assessment. The psychiatrist diagnosed the petitioner with gender identity disorder, and certified that he did not have any psychological constraints holding him back from a SRS. In India, a diagnosis of gender identity disorder is a pre-requisite for a SRS. He underwent some medical procedures to align his body with his true gender identity. On the basis of this operation and the affidavit, he obtained an Aadhar card in his true gender with a male name. The facts state that the petitioner then sent a representation to the respondents to change his name and sex in his educational records. Neither in the petition nor in the judgment do the facts reveal the contents of this representation. In order words, it is unclear whether the petitioner sent the certificate of psychiatric evaluation and the SRS certificate in the representation package. However, arguably he did, especially because the petition highlights that the respondents’ refusal to change his certificates causes grave inconvenience to the petitioner “who has undergone sex re-assignment surgery and changed his name and gender from that assigned at birth.” [writ petitioner page 8-9 and 11].
While the Pre-University Department did not reply, the Higher Secondary Education department replied to the representation stating that it would need a court order to proceed with this request. Accordingly, the petitioner filed a writ of mandamus praying that the court direct the PU Department and the SSLC department to issue new educational certificates to the petition reflecting his true gender and name.
2. ARGUMENTS OF THE PARTIES
The petitioner alleged that the respondents’ refusal to change his name and gender to male violated his right to life, equality, gender identity, dignity, and privacy under Article 14, 15, 19(1)(a) and 21. The State did not oppose the petition but stated that the representation of the petitioner will be decided on the basis of the law, after considering the requisite documents and supporting evidence accompanying of the request.
3. HOLDING OF THE COURT
The court directed the Education Department to issue circulars to educational institutions regarding the directions issued in the NALSA decision and take necessary steps to have them implemented “in an expedite manner” [para 9 of the judgment].
4. RIGHT TO PRIVACY ARGUMENT
The petitioner argued that the inaction of the respondents was a violation of the right to privacy of the petitioner because he had to constantly keep revealing his previous gender as a female until the change is made [writ petition, page 10]
5. SRS AND PSYCHOLOGICAL EXAM
It is evident from the petition that the petitioner had sent his SRS certificate and psychological evaluation certificate along with other materials in support of his representation for name and gender change. As per NALSA, the petitioner need not have sent these documents. It is unclear on what basis the court directs the Department of Education to review the representation made by the petition, but even if the petitioner sends in such documents, the courts must not rely on them because:
- The insistence on SRS has been ruled illegal and unethical in NALSA. Therefore, even if a petitioner has undergone SRS of his own volition and submitted those documents, the courts must categorically refuse to rely on that certificate to grant the relief. The relief must be granted on the fact that in NALSA, the Supreme Court had stated that self-determined gender identity is a fundamental right under Articles 19(1)(a) and 21, and that the court did not require anyone to undergo SRS to claim this right.
- The need for psychological examinations has also arguably been negatived in NALSA because:
- the Supreme Court stated that the right to a self-determined gender is a fundamental right with which the State cannot interfere, and a psychological exam would count as interference. (NALSA, page 78). Additionally, the court stated that the gender identity claim was based not on medical or surgical procedure, but on self-determination, and a psychological process would count as medical process. In fact, this finding of the court was based on Principle 3 of the Yogyakarta principles which in full state that, “no person may be forced to undergo any form of medical or psychological treatment, procedure or testing…based on gender identity.” [NALSA, pages 18-19, 85]
- Within the personal autonomy protection of Article 21 is included a positive right to a self-determined gender and a negative right to resist interference by others, and a psychological exam would count as interference (NALSA, page 80-81).
- In NALSA, the Supreme Court has stated that “determination of gender to which a person belongs is to be decided by the person concerned.” [NALSA, page 84].
- The court does not identify a role for a psychologist/psychiatrist in the entire NALSA judgment.
My thanks to Upasana Garnaik for telling me about this case.
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.
On the 12th of June, 2018, a division bench of the Kerala High Court upheld the fundamental right of a transgender person to speech and expression, and free movement. However, arguably, it did so after psychologically evaluating whether the transgender person was really transgender. In this blog, I will argue that: 1. The NALSA judgment provided for the self-identification of gender identity regardless of sex-reassignment surgery and psychological evaluation, and 2. This judgment’s reliance on psychological tests for the accepting the gender identity of the transgender person violated NALSA, and consequently, the law of the land on this subject.
FACTS OF THE CASE
The writ was filed by the mother of Abby James (who now identified as Arundhati) alleging that Arundhati was being held by some transgender persons. The writ prayed that she be set at liberty. According to her mother, Arundhati had previously been diagnosed with mood disorder and psychotic features and had received treatment at a hospital. The present fact situation that brought her before the court was that Arundhati had left the parental home on the 9th of May, 2018 and had not returned. She also showed no indication of returning. She had begun to dress as a woman and kept company with some transgender persons. Her mother was concerned about her physical safety as she feared Arundhati was exposing herself to the risk of “physical abuse and organ transplant.” Additionally, she also could not bear the sight of her son dressed “in the robes of a woman.” Arundhati appeared before the High Court and asserted her gender identity as transgender and also stated that she was not mentally unfit. However, given her past psychiatric history, her mother prayed that the court order a medical evaluation of her mental condition. The court so ordered and the medical report found that Arundhati was mentally competent and had no mood disorder or hallucinations etc. Accordingly, the court ordered that Arundhati was free to identify as transgender and keep what company she wanted. The pleas of the mother to have her returned to the parental home away from the transgender community were trumped by Arundhati’s fundamental right to “live as a transgender.” [para 6].
- THE NALSA CASE AND PSYCHOLOGICAL EXAM
The NALSA case found that all fundamental rights guaranteed under the Indian constitution extend to transgender persons as well. It was clear from the directions passed by the Supreme Court in this case that sex re-assignment surgery cannot be made a pre-requisite for identifying as transgender. The court stated, “any insistence for SRS for declaring one’s gender is immoral and illegal.” [Direction 5, NALSA].
However, the scope of psychological exam for declaring one’s gender identity is purportedly uncertain in this judgment. I have argued before that NALSA does not require such an exam. The whole thrust of the judgment is on self-identification and any mention of psychology in it is in reference to the psyche of the person, or the internal, deeply felt gender identity which does not require a doctor’s agreement. In the interest of fullness, I produce that argument below. It first featured in the K. Gowtham Subramaniyam blogpost in December, 2017.
The requirement of doctors, both medical and psychological, is without 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. See especially, Justice Radhakrishnan’s explicit statement that, “[d]etermination of gender to which a person belongs is to be decided by the person concerned.” [Page 84]. His mention of the psychological test must be read in light of this statement. 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 sex re-assignment surgery 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.
Before proceeding to the next segment, we might remind ourselves that as per Article 141 of the Indian constitution, “the law declared by the Supreme Court shall be binding on all courts within the territory of India.” This means that the Kerala High Court was bound to follow the Supreme Court’s finding that a psychological exam was not a pre-requisite to identifying with a particular gender.
- THE PRESENT CASE AND THE PSYCHOLOGICAL EVALUATION
In the present case, the High Court ordered a psychiatric evaluation of Arundhati. However, the circumstances in which this evaluation was ordered are vital here. Arundhati had previously been treated for mental illness. The court ruminated on the prayer by the mother to order a psychiatric evaluation. It considered whether it would be overreach for it to do so and whether its Parens Patriae jurisdiction [loosely, “in the place of a parent”] empowered it to do so. Relying on a recent exposition of this jurisdiction by the Supreme Court, the court found that Parens Patriae can be invoked in cases where a person suffers from mental incompetency. Finding that Arundhati had had a history of mental illness for which she had also received treatment, it felt empowered to order a psychiatric and psychological medical examination of her mental health. The court was cognizant of the fact that ordering such an exam may violate Arundhati’s right to live with dignity but went ahead and did that “only because it was alleged that he is a psychiatric patient.” [para 4].
Now, one may take a pause here. Up to this point, arguably, the court has not violated NALSA. It has ordered a mental health exam but for reasons different from assessing the truth of Arundhati’s claim. However, what follows next arguably reverses this course. It appears that the court had ordered a medical exam not only regarding the mental fitness of Arundhati but regarding her claim that she is transgender. This can be gathered from the fact that the medical exam not only finds that Arundhati suffers from no mental infirmity; it also concludes that she, in the words of the court, “fits the label ‘transgender’ as per the Diagnostic and Statistical Manual 5th Edition (2013).” Moreover, the medical report diagnoses her for gender dysphoria and the court places reliance on this medical finding. Any doubt in this matter is dispelled by the following statement of the High Court”
“The self identification of the detenu as a transgender is clearly expressed by speech, mannerism, clothing etc. which we noticed during our interaction and [is] fortified by the medical report.” [para 6].
This statement strongly suggests that the court was relying not on the self-identification of Arundhati as transgender alone but also on medical report which found that she “fit” the criteria of transgender. In ordering that the scope of the mental evaluation exceed a finding of fitness and encapsulate a test as to whether Arundhati is actually transgender, the Kerala High Court violated NALSA which is the law of the land. It also reversed the trend of cases on self-identification of transgender persons by ordering a psychiatric evaluation. In the cases on gender identification which have come up after NALSA, courts have hitherto never ordered such a psychiatric evaluation. See the K. Gowtham Subramaniyam blogpost for a table of cases in which gender identity of transgender persons was the main issue, post NALSA. It could very well be that the reasons for not ordering such a test were circumstantial rather than conscious in those cases as in all but one instance, the claimant had undergone sex re-assignment surgery and had a certificate from the doctor declaring transgender status. Notwithstanding, this judgment may have made some illegal and undesirable inroads into the hard won rights of the transgender population.
 The Constitution of India, 1950. See, specifically, Articles 19(1)(a) and 19(1)(d).
 National Legal Services Authority v. Union of India and Ors. W.P. (Civil) No. 400/2012.
 This fundamental right was recognized under Article 19(1)(a) of the constitution.
 Para 5.
 Shivani Bhat v. NCT of Delhi and Ors. W.P. (Crl.) No. 2133/2015. In this case, the judgment does not mention a sex re-assignment surgery or any transgender certificate.
On the 5th of July, 2016, a division bench of the Madras High Court disallowed the appeal of a police aspirant. She was disqualified from a selection round for failing to meet the minimum threshold. The selection round involved a 100 metre sprint in a stipulated time period. She prayed before the court that she be allowed to move on to the next stage despite this. She pointed to a previous case in which a transgender aspirant was so allowed despite failing to complete the sprint in the stipulated time. Thereafter, she argued that a similar relaxation of rule be made for her. She placed special emphasis on the fact that the transgender population has a physical advantage over cisgender women candidates. Arguably, here she was referring to a transwoman. This blog will first summarize the case and then concentrate on two streams of thought: 1. Do transgender women candidates have a physical advantage over cisgender women candidates? 2. Is it a good strategy to pit the interests of cis-women against transgender persons?
The appellant, Ms. Annapoornam, had applied for the post of Sub-Inspector of Police in the State of Tamil Nadu. There were 3 stages in selection: 1. Written examination; 2. Physical standard and physical endurance test; 3. Viva. The appellant cleared the 1st stage and also cleared part of stage 2—the physical standard test. The second part of stage 2 was a physical endurance examination, tested through: 1. Long jump; 2. Shot-up; and 3. A 100 metre sprint. Ms. Annapoornam cleared the long jump and shot-put stages with ease. In fact, she performed quite well in these tests and was awarded a “two-star” remark for her performance. A two star performer is one who surpasses the minimum standards required in the physical tests. The last 100 metre sprint remained. The test required that the sprint be completed in 17.50 seconds but Ms. Annapoornam completed it in 18.09 seconds. She fell 19 micro-seconds behind the requirement. Consequently, she did not move on to the viva stage of the selections. She challenged her exclusion on several grounds in a writ petition she filed before a single judge of the Madras High Court at Madurai. However, the judge dismissed the writ on 26.10.2015 reasoning that, “when the petitioner herself has admitted that she was unable to pass the 100 meters run within the specified time limit viz., 17.50 seconds, this Court may not be in a position to interfere with the impugned [disqualification] slip.” Accordingly, she approached division bench of the High Court on appeal, once again challenging her disqualification.
GROUNDS OF APPEAL
The appellant, contended that she: 1. Had a better academic record than most of the candidates that had moved on to stage 3 (she held an English MA degree); 2. She had secured 2, 2 star performances in her physical endurance test, in long jump and shot put, respectively. Therefore, she argued, it is unjust to fail her in the physical endurance test; and 3. She argued that a different bench of the Madras High Court had allowed a transgender candidate, who fell short of the sprint requirement by 1.1 seconds, to proceed to the next stage of selection. She prayed that a similar allowance be made in her case as well especially because, she argued, transgender persons (it appears from the context of the case that she was referring to a transwoman) have more physical power.
Summarily, the court decided that the physical tests were relevant to the role of the sub-inspector and accordingly the requirement to pass those tests were not arbitrary. Consequently, they dismissed the writ petition. On the contention of having made a discretionary allowance for a transgender candidate, the court noted that following the Supreme Court decision in the NALSA case, the State governments were supposed to take steps to protect the interests of the transgender community, but no such steps have been taken by the State government. Accordingly, the court, taking note of the discrimination and lack of parental support faced by transgender persons, prescribed a different standard in the 100 metre sprint. However, the court declined to make any observations about whether cisgender women should deserve more consideration than transgender persons. Arguably, the court took recourse to the fact that as per the Supreme Court’s direction, the State government was anyway required to institute various measures for transgender persons; the court’s direction in the Prithika Yashini case being a step taken because of the government’s failure to do so.
DO TRANSWOMEN HAVE A PHYSICAL ADVANTAGE OVER CISGENDER WOMEN?
There are two things that this case throws up that need some consideration and though they have not become an issue in this case, they may in the future. 1. Do transwomen have more physical power than cisgender women? In this situation particularly, we are concerned with their ability to run a 100 metre sprint and the question is whether their physical make up gives them any kind of advantage. The manner of framing the contention in this case assumes a person assigned male at birth having all the strength and speed advantage deemed to be associated with that sex; she later transitions. However, recently, the science related to sports and sex has come into intense focus with the Duttee Chand case before the Court of Arbitration for Sports (CAS). The case concerned the exclusion of an Indian athlete, Duttee Chand from the 100 metre national team because her testosterone levels were found to be higher than those permitted for athletes in the female category. The exclusion was based on an assumption that higher testosterone contributes to better athletic performance. The Court of Arbitration for Sports ultimately found (page 71) that higher testosterone in males contributes a 10-12% athletic advantage over females. However, the competitive advantage for women with increased testosterone renders a negligible advantage over other female athletes of about 1-3% which would not justify placing Duttee Chand in the male category for competitions. It also noted that many other factors such as genetic and biological variation, coaching, nutrition, etc. also contribute to competitive advantage. Without more, it is difficult to argue that these findings are directly applicable in comparing competitive advantages of trans and cis women. This difficulty becomes especially apparent when considering a trans persons who underwent hormonal therapy to align their bodies to their true gender. Therefore it might be best to treat it as an open question until the science behind question be tested and weighed in light of environmental, biological and social factors.
PITTING INTERESTS OF WOMEN AGAINST TRANSGENDER PERSONS
Second, this case pitches the interests of cisgender women against transgender women. Here, the court was not in the difficult position to pick one over the other, but the conceptual stage has been set. This is a dangerous sign. Both the movement for women’s rights and for transgender rights have fought long and hard battles for equality and dignity, and freedom. Both these movements fight for freedom from patriarchal rules of society. It is not a good strategy to use one against the other to move ahead. Instead, other strategies could be considered. For example, in this case, the appellant could have argued, that her academic grades are more than the requisite threshold, that she is well educated and that she has 2 star performances in 2 out 3 physical tests. The appellant could have asked the court to use their discretion in light of all her records, and see if she can be allowed to move on to the next stage despite falling short by 19 micro-seconds.
 K. Prithika Yashini v. The Chairman, Tamil Nadu Uniformed Services Recruitment Board W.P. No. 15046 of 2015.
 K. Annapoornam v. The Secretary to the Government and Ors. W.P. (MD) No. 19170 of 2015.
 International Association of Athletic Federations.
 The materials submitted are not available publicly.