A single bench of the Kerala High Court has recently declared that a trans-woman is entitled to be admitted to the girls’ wing of the NCC, which has no separate division for transgender persons. Justice Anu Sivaraman of Kerala High Court passed the judgment in a case where a trans-woman who had undergone sex reassignment surgery approached the High Court challenging the refusal by the NCC to admit her. The trans-woman had challenged Section 6 of the National Cadet Corps Act, 1948, which envisages only two divisions, one for boys and the other for girls with further compartmentalization based on age. Without deciding on the challenge to the provision, the Court simply directed the NCC to induct the trans-woman into the girls’ wing.

The petitioner in the case relied on the Transgender Persons (Protection of Rights) Act, 2019 to contend that the refusal by the NCC to induct her amounts to discrimination and violation of the statute. The NCC contended that it functions on gender-based classifications and that the policy decision to induct transgender persons, which will require alterations in the basic structure and curriculum of the NCC, is to be taken by the NCC and not by the judiciary.

There is no doubt that a transgender student cannot be denied an opportunity that is available to cis-gendered students only on the ground of his or her gender identity. The question is whether that student is entitled to avail the opportunity as a member of his or her preferred gender or as a member of the third gender.

Transgender Persons (Protection of Rights) Act, 2019

In the NALSA case of 2014, the Supreme Court declared that gender identity is part of freedom of expression under Article 19(1)(a) and Article 21 of the Constitution, and discrimination against transgender persons will be violation of Articles 14 and 15. The judgment concluded that treating transgender persons as a ‘third gender’ will safeguard their rights guaranteed under the constitution. The Court directed state and central governments to grant legal recognition to the gender identity of transgender persons.

Four years after the said judgment, the parliament passed the Transgender Persons (Protection of Rights) Act, 2019 (Transgender Act). The Transgender Act defines “transgender person” as an umbrella term to include all persons whose gender does not match the gender assigned at birth, whether or not those persons have undergone sex reassignment therapy or any other medical intervention. Section 4(1) of the Act states that a transgender person shall have a right to be recognized as such, in accordance with the provisions of the Act. Section 4(2) states that a person recognized as a transgender shall have a right to self-perceived gender identity. Under Sections 6, transgender persons are entitled to get a certificate of identity as a ‘transgender’, upon making an application to the District Magistrate. As per the Transgender  Persons  (Protection of Rights) Rules, 2020, that was notified in September 2020,  a person desirous of getting a ‘transgender’ certificate under Section 6 needs to make the application along with an affidavit declaring himself or herself as a transgender person. The District Magistrate is expressly prohibited by the rules from seeking any medical or physical examination before issuing the certificate. A person holding a ‘transgender’ certificate, after he or she undergoes ‘medical intervention’ can apply for a certificate under Section 7 indicating the change in gender as ‘male’ or ‘female’ instead of ‘transgender’. As per the rules, such an applicant has to produce before the District Magistrate a certificate issued by the Medical Superintendent or Chief Medical Officer of the medical institution in which he or she has undergone the medical intervention. The medical institution can be a private institution also, and the District Magistrate is prohibited from making any physical examination before issuing the certificate. Interestingly, ‘medical intervention’ has been defined to include just counseling. The Section 7 certificate will entitle the holder to change the gender from male to female or vice versa in all official documents.

Does the law treat trans-women as women and trans-men as men?

The Transgender Act does not treat trans-women as women or trans-men as men. Section 4(1) is clear in stating that transgender persons will only be recognized as such i.e. as belonging to ‘transgender’ and not as belonging to the binary gender of self perception or choice. As per the definition of the term ‘transgender person’, even a person who has undergone Sex Reassignment Surgery or Hormone Therapy is a transgender person. Moreover, Section 7(3) states that issuance of a revised certificate under Section 7 will not affect rights or entitlements under the Act. The right referred to in Section 7(3) will include the one conferred under Section 4(1), i.e. right to be treated as belonging to ‘transgender’.

Kerala was the first state to publish its own transgender policy in the year 2015. The said policy is based on the recommendations of an expert committee constituted by the state, which recommended that transgender be treated as a third gender. The policy contains a specific requirement for educational institutions to include in all forms the option for transgender along with male and female.

The 2014 NALSA judgment of the Supreme Court also does not indicate that transgender persons have a right to be treated as belonging to their self-perceived gender. On the contrary, it states that treating transgender persons as belonging to a third gender will serve the purpose of safeguarding and enforcing their rights under the Constitution.

It is clear that the legislature in India has not recognized any right of a man to be treated as a woman or a woman as a man, with or without undergoing any medical procedure. On the contrary, the Transgender Act declares that transgender persons will be treated only belonging to a third gender.

How did Kerala High Court arrive at the decision?

Justice Anu Sivaraman of Kerala High Court

The trans-woman before the Kerala High Court did not have a case that she is entitled to be treated as a woman and to be admitted into the girls’ wing of the NCC. If she had such a case, she could have sought a direction simpliciter to induct her into the girls’ wing, instead of challenging the provision in the NCC Act which permits only girls and boys to apply. However, the Judge wrongly construed the “right to self-perceived gender identity” granted under Section 4(2) of the Transgender Act as a right to be treated as belonging to the self-perceived gender. The right to self-perceived gender identity is merely a right to identify oneself as belonging to the gender of one’s choice. Even that right is granted only to persons holding a section 7 certificate, i.e. to those who have undergone medical intervention, since the certificate under Section 6 will only mention ‘transgender’ and not ‘male’ or ‘female’. In other words, the Transgender Act protects the dignity of transgender persons to the extent that it exempts them from identifying themselves as belonging to the gender assigned at birth in the case of persons who have not undergone medical intervention (by issuing a Section 6 certificate recognizing as transgender), and by permitting them to identify themselves as belonging to the gender of their choice (by issuing a Section 7 certificate recognizing as male or female). The legislature has consciously not granted transgender persons the rights, or imposed the liabilities, attached to the gender of their choice. There are laws in other countries that expressly do so. For example, the Gender Recognition Act, 2004 enacted by the United Kingdom is a good example of a legislation that treats transgender persons as persons belonging to their preferred gender, upon being granted a ‘gender recognition certificate’. Section 9 onwards of the statute deals with the “consequences of issue of gender recognition certificate”. Section 9(1) states:- “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)”. The statute also deals with specific areas which are governed by gender-specific law like marriage, succession, parenthood, social security benefits, peerages and even gender-specific offences. Indian legislature has clearly not provided for any such consequences while enacting the Transgender Act.

The Judge of Kerala High Court has thus imported the transgender theory of the west, which prescribes that gender, like name or religion, can be changed as per one’s choice and that the state and the society are bound to recognize the choice and determine rights and liabilities of individuals based on their choice. This has been the demand of certain transgender activist groups in India also. They have already challenged the Transgender Act on the very same ground that it treats transgender persons only as a transgender and not as male or female, as the case may be. The Supreme Court has issued notice on that challenge and such cases are pending before the Supreme Court.

The Judge of Kerala High Court did not consider any of these aspects, though they were highlighted before it by a boy cadet of NCC who intervened in the case to support the NCC.

View of other High Courts on the subject

A single bench of Madras High Court passed a judgment in April, 2019 directing registration of the marriage of a man with a trans-woman. Justice G. R. Swaminathan held that the petitioner in that case, the trans-woman, had expressed her gender identity as a female and that it fell within her personal autonomy, which cannot be questioned by the marriage registering authority. The bench held that the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 will include within its meaning not only a woman but also a trans-woman. The government had argued that the petitioner is a transgender person and not a woman. Hence the court, instead of recognizing the trans-woman (who was, in fact, an inter-sex person assigned male gender at birth but described as a male in school records) as a woman, interpreted the word ‘bride’ to include even a trans-woman. Therefore, the course of action adopted by the Judge does not have any repercussion outside of the Hindu Marriage Act, 1955. Moreover, the judgment was passed before the enactment of the Transgender Act, which happened only in December, 2019.

Curiously, in September 2019, Justice G. R. Swaminathan spoke at the 3rd edition of the International Conference on Transgender Rights and the Law about his “commitment to the cause of the transgenders”. The judge said that as a lawyer, he had successfully conducted a case seeking issuance of voter ID cards for transgender persons. He referred to his above mentioned judgment in the trans-woman’s marriage case and said that “probably thinking of my commitment, probably the response (respondents) they didn’t want to disagree with me”. The respondents in that case were the state and central government authorities, who did not appeal against the judgment. The Judge also said that after the reading down of Section 377 of IPC (anti-sodomy law) by the Supreme Court in the Navtej Singh Johar case, legalization of same-sex marriage will follow, “if only you choose the right bench, in the sense a judge having an appropriate liberal inclination”. (watch video)  

Justice G.R. Swaminathan of Madras High Court

Thereafter, in October, 2020 Justice G. R. Swaminathan passed an order upholding invocation of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002, which penalizes harassment of women, for alleged harassment of a trans-woman. The Judge referred to his previous Judgment and stated that “it is entirely for the transgender person to self-identify her gender and that this self determination cannot be questioned by others.” Without any further reasoning and by relying upon his Judgment which was passed before the enactment of the Transgender Act, the Judge effectively recognized a trans-woman as a woman. The Transgender Act which was enacted in the meanwhile was not considered.

In January, 2021 Justice Ravindra V. Ghuge of the Bombay High Court held that a trans-woman is entitled to contest election in a seat reserved for women. The Election Commission did not oppose the petition filed challenging the decision of returning officer to reject the nomination of the trans-woman petitioner to a seat reserved for women. The lawyer of the Election Commission submitted before the court in reference to the Transgender Act that, “the Returning Officer is likely to be unaware of this law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner”. The bench allowed the petition without much reasoning, while recording the statement of the petitioner that, “her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender, in future, save and except if there is a reservation provided for transgender in public life.” Even though the provisions of the Transgender Act are referred to by the bench, they were not properly analyzed, probably because the election commission did not oppose the petition.

Judicial overreach

Granting transgender persons the rights and privileges available to the gender of their choice will have wide ramifications in the society. It is a matter of policy to be decided by the legislature. The legislature has consciously decided not to confer any such rights in the Transgender Act and the validity of the Act is pending consideration of the Supreme Court. While so, courts have no option of ruling against the express provisions of the statute by overlooking or misconstruing the provisions. Doing so in the name of being a “liberal” or “conservative” is nothing but judicial overreach, violating the fundamental constitutional principle of separation of powers.

Implications of the judicial overreach

As per the Transgender Act and its rules, a sexually potent, straight, masculine man merely has to make an application along with an affidavit stating that he identifies himself as a female, to be recognized as a transgender without being asked any questions. Going by the view taken by the High Courts, that man can walk into a women’s toilet, use a women’s changing room, stay in a women’s hostel, get services from a women’s spa or beauty parlor, avail governmental benefits granted for women and even compete with women in sports, as a matter of right. This is because the prohibition on discrimination against transgender persons applies equally to private entities as government entities.

The Transgender Theory has exploded in the west and nobody is able to tell where to draw the line. A debate is raging in the United States about permitting trans-men to participate in women’s sports, with liberal and conservative states taking opposite views. Yet another raging debate is about permitting transgender persons to use bathrooms of their preferred gender. President Trump revoked President Obama’s directive to schools to permit transgender students to use bathrooms corresponding to their preferred gender. President Biden appears to be in a process of going back to Obama’s policy on the issue. There was a case of a Canadian trans-woman who sued a Brazilian waxing centre for women for refusing to wax her male genitals. The employees of the waxing centre, including a Sikh woman, had refused to wax the male genitals of the trans-woman. In the United States, there have been instances where biological male rapists are housed in women’s prisons based on their self-perceived gender, only to commit rapes and sexual assaults on biological female inmates.

The NCC as well as the intervener boy cadet of the NCC have filed separate appeals before the Division Bench of the Kerala High Court against the Judgment of the single bench. The intervener has highlighted the implications the judgment will have outside of the NCC. It has been contended that the Judgment will even affect the rights of citizens under Article 25 of the Constitution to practice their religion, because every religion prescribes certain privileges and disabilities based on gender, all of which will now be washed out.

Hence, the result of the appeals pending before the Kerala High Court as well as the cases involving challenge to the provisions of the Transgender Act pending before the Supreme Court will have a serious bearing on how we function as a society. However, the larger question which needs to be addressed first is whether it is for the judiciary to decide how we function as a society. Hopefully, the central government which is expected to defend the law made by the parliament will tell the courts to remain within their constitutional limits, to keep our democracy meaningful.

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