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TREND IN GENDER IDENTITY CLAIMS POST NALSA

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 However, this principle of self-determination has been replaced by a principle of societal perception.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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Kirankumar Rameshbhai Devmani v. State of Gujarat [(2014) 71 VST 555 (Guj)]- Part 2

In Part 1 of this post, I summarized the arguments of the parties and the decision of the court. In this part, I will deal with the three remarkable features of the case I had mentioned before: 1. the court’s attempt to give meaning to the morality of the constitution[1], and to apply this meaning in this case; 2. legal incompetence at official levels, and how it can delay and frustrate day to day affairs of people; and 3. the place occupied by same sex sexual relations in the case. To refresh the memory of readers, the present case involved a film about a boy who discovers that he is gay. The film, through the boy, depicts various difficulties faced by gay people in society. The film was refused tax exemption given to all Gujarati colour films and the petitioner who is the producer and director of the film challenges this refusal. See full factual scenario in Part 1.

  1. CONSTITUTIONAL MORALITY

In Part 1, I had explained how the court found the withholding of tax exemption as illegal and subsequently that such withholding would amount to a violation of the free speech and expression right under Article 19(1)(a) of the constitution. To more fully explain how diverse points of view can co-exist in democratic constitutional schemes, it delved into the morality of the constitution. It found that the peaceful co-existence of a “plurality of ideologies” was not only one of the aims but also one of the guiding principles of our constitutional scheme [para 31]. In the words of the court:

In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different viewpoints are accepted and respected. In a topic as one on hand, there are bound to be as many view points as are colours in a rainbow. No single view point may be fully correct or fully incorrect and yet all of them can peacefully co-exist.” [para 31].

It further went on to state that this plurality of ideologies allowed different viewpoints to stand so long as they did not violate the constitution. Such reasoning goes a long way to re-establish the constitutional values on which the Indian constitution has been drafted and to re-position the judge as a dispassionate protector of those values. This is especially important to motivate State actors (eg. government employees, judges etc.) to set clear boundaries between their personal beliefs and the beliefs of the constitution and to remind them that when they are acting in the capacity of their office, the only set of values that they can legitimately chase are those enshrined in the constitution. Contrast this with the Suresh Kumar Koushal case in which the court called the LGBT population a “miniscule fraction” [para 43] arguing for “so called rights” [para 52] betraying a sense of antipathy and revulsion for the community. For further reading on the kind of language used by the Supreme Court in the Suresh Kumar Koushal case see, Danish Sheikh, “The Quality of Mercy Strained: Compassion, Empathy and Other Irrelevant Considerations in Koushal v. Naz” (2013) 6 NUJS L Rev 585.

Apart from reminding institutional actors of their duties, the court has also re-assured them that their upholding a particular right would not mean their personal sympathy for the right, as long as the right is merited by the constitution. Such logic would attempt to persuade judges personally unsympathetic certain claims, to apply constitutional standards and abjure their personal opinions when in the business of adjudication.

“Endorsing one’s right of expression does not imply endorsement of his view point. In any vibrant modern democratic society, divergent viewpoints is not only inevitable but is considered as a healthy sign. Diverse and antagonistic viewpoints can coexist and survive side by side peacefully in a modern cultured society.” [para 50].

This re-assertion of constitutional values and not personal viewpoints on which a case ought to be decided is reminiscent of the reasoning of the Delhi High Court in the Naz case. There, the Delhi High Court expressly stated that regardless of popular opinion on the topic of homosexuality, S. 377 should be held to be unconstitutional if it did not pass the threshold of fundamental rights:

Popular morality, as distinct from constitutional morality derived from constitutional values, is based on shifting and subjecting [sic] notions of wrong and right. If there is any type of morality that can pass the pass the test of compelling state interest, it must be constitutional morality and not public morality” [para 79].

 

  1. OFFICAL INEPTITUDE

The second remarkable thing about this case is how clearly it demonstrates official ineptitude and delaying tactics used by authority figures. In this case, there was a clear policy highlighted for refusing tax exemptions. As per para 4 of the policy, the only films that could not receive the exemption were films that depicted “evil customs, blind faith, sati, dowry, and such social evils and those which are against national unity.”  There were no other reasons to refuse the exemption and there was no discretion in this matter. Yet, the Commissioner of Entertainment Tax (“Commissioner”) refused the exemption to the film on grounds that it had been given an A certificate by the Censor Board, a reason beyond the scope of the policy. In order that the he may make a representation against this wholly illegal reason, the producer approached the Commissioner either in person or through letters on the 24th of April, 2013, 26th of April, 2013, 29th of April, 2013 and the 16th of May, 2013 before he could hear back from him. He even penned a letter to the Chief Minister complaining about the non-consideration of his requests for representation. Therefore, 5 letters had to be written only to get attention to an application which had been refused on grounds not even present in the policy. These dates are taken on record by the court in the case.

After multiple letters were sent to him, the Commissioner ultimately replied asking the producer to delete certain dialogues and mute certain words, and to submit a signed affidavit to that effect before his film could be tax exempt. The Commissioner was not empowered to do so and acted beyond the scope of his powers. When the producer refused to comply, the Commissioner once again rejected the exemption application. Even when the Ministry of Information and Broadcasting directed the Commissioner to identify a “basis” for his refusal, the Commissioner failed to fathom a policy reason for refusing tax exemption. Instead he content himself with reasons such as the film did not have a useful message, it could create friction between members of society, it was controversial, it promoted homosexual ideology, and other reasons highlighted in Part 1.

The law on paper may provide limited reasons for refusing tax exemption but a private actor is caught in a frustrating legal web when authority figures act clearly outside the scope of those powers and assume for themselves grounds for refusal which do not exist as per government policy. For this producer, this meant a long drawn legal battle and the delay of the release/tax exempt status of the film. It is unknown whether there was any departmental action taken against the Commissioner for acting outside his scope. However, the court did acknowledge that the commissioner’s objections were, “wholly misguided based on fallacious premises” [para 53]. The Commissioner’s refusal was not just a misapplication of a rule of law, it was the complete avoidance of it. Such avoidance delayed a simple application by nearly a year. What a weapon (accidental/deliberate) legal incompetence can be.

  1. SPACE OCCUPIED BY SAME SEX RELATIONS

The final important legal manoeuvre of note in this case is the manner in which the court put the Suresh Kumar Koushal case in perspective. One would imagine that with that decision coming out in December, 2013 and finding that same sex sexual relations were a kind of criminal unnatural sex, a High Court ruling in February, 2014 may find difficulty in allowing tax exemption to a film about homosexuality. However, this court was quick to find that the Suresh Kumar Koushal case had no application to the present query. That case concerned itself with some forms of sex which had been criminalized and not with the criminality of a certain sexual orientation. Although it is important to understand that S.377, Indian Penal Code, 1860 (“S.377”) has a disproportionate impact on the LGBT community, it is also important to understand that it does not criminalize homosexuality, and it’s continued existence cannot be used as reason to deny any conversation about the LGBT community, or to deny other rights of the community. The legal clarity displayed by the court is laudable. Till the time that this section occupies a place in the law books,  reasoning of this kind can lead the way for other State authorities/private persons that may have otherwise been persuaded by the existence of S. 377 to deny claims with a LGBT association.

 

 

[1] All references to the constitution in this post refer to the Constitution of India, 1950.