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Jeeva M. v. State of Karnataka WP No. 12113/2019(EDN-RES)

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:

  1. 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.
  2. The need for psychological examinations has also arguably been negatived in NALSA because:
    1. 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]
    2. 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).
    3. 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].
    4. 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. 

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Shampa Singha v. The State of West Bengal & Ors. WP 23120(W)of 2018

On the 29th of January, 2019, a division bench of the Calcutta High Court applied the Navtej Johar decision to a lesbian couple, holding that consensual co-habitation and intercourse between adults of the same sex does not fall within the ambit of S.377. As in the Sreeja case, the sexual relationship between the two women involved was openly mentioned in the court. The facts of the case are not entirely clear but it is evident that the writ is filed by one of the partners. Presumably, one of the partners, had returned to her mother and the petitioner partner had filed a writ alleging that the mother was holding her partner captive. The other partner, who had hitherto been residing with her is now inclined to stay with her own mother. There are three facets which are interesting to note about this case:

  1. Article 21

Following Navtej Johar, this case also finds that the right to life under Article 21 includes an inherent right to determine, by oneself, one’s sexual orientation and sexual partner. This choice is inherent under Article 21 even if the choice is not made for procreation. Additionally, the court notes that not only is this right inherent under Article 21, it is also essential for the enjoyment of the life and liberty guaranteed under Article 21.

  1. Constitutional Morality

The court also notes that our scheme of constitutional morality does not permit objections of religion or personal morality to whittle down this inherent right (of orientation and choice of partner). It is unclear why the court specifically mentions religion as an impermissible restriction on the abovementioned right. One can conjecture that perhaps in the argumentation stage before the court, one’s religious beliefs were pleaded as a ground to deny cohabitation of the two women involved.

  1. Psychological Test

Finally, the court notes that the partner of the petitioner, whom the court calls a “victim” for unexplained reasons, has been assessed for psychological soundness. It is unclear why the court mentions it. It is also unclear whether the court ordered this test or whether this test has been performed due to extant facts of the case. Since the judgment does not summarize the facts or the arguments, it is hard to determine the appropriateness of this psychological test. However, at the outset, it can be said that a psychological test does prima facie seem out of place in this kind of case which involves two majors who want to exercise their right of whether or not to live together arguably, though not explicitly, protected under Article 21 in this case. The Navtej judgment has clearly stated that adults have a right to consensual sexual intercourse with a person of their choice regardless of sex. To avail this right, that judgment has not forwarded a requirement of psychological testing.

I am grateful to Dr. L. Ramakrishnan (Ramki) for telling me about this case. 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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Tessy James v. The Director General of Police, Thiruvananthapuram and Ors. W.P. Crl. No. 215/2018

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.[1] 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[2] 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[3] to “live as a transgender.” [para 6].

  1. 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.

  1. 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).”[4] 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[5] 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.

[1] The Constitution of India, 1950. See, specifically, Articles 19(1)(a) and 19(1)(d).

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

[3] This fundamental right was recognized under Article 19(1)(a) of the constitution.

[4] Para 5.

[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.

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

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.