On September 14th the Centre for Law and Policy Research (CLPR) organised a National Consultation on the Draft publication “Transforming Courts: Courts Decisions on Transgender Rights in India”. The Consultation was held at Bangalore International Centre and brought together leading transgender rights activists, academics, and lawyers to gather their feedback and inputs on the first draft of the book.
This Resource Book aims to compile the most important and relevant High Court and Supreme Court judgments on transgender rights in India and is part of a series of publications, each focusing on court decisions related to the rights of marginalized caste groups, transgender persons, persons with disabilities, and women. These publications are being developed by CLPR with the support of the German Embassy. The Resource Book is intended to serve as a legal literacy tool for community groups and organizations, legal practitioners, academics, and laypersons by ensuring they have access to important judgments.
The participants included Anubhuti Banerjee, Adv. Rohin Bhatt, Daniella Mendonca, Adv. Kanmani Ray, Vyjayanti Vasanta Mogli, Anindya Hajra, Sahitya Gupta, Dr. Aqsa Shaikh, Ritwik Dutta, Adv. Sitamsini Cherukumalli, Sayantan Datta, Laishram Sopin, Disha Pinky Sheikh, Swetha Shri, Adv. Padma Lakshmi, Dr. Akkai Padmashali, Uma, Kunal Ambasta, Arvind Narrain, Sampreetha, Maula, Chandrashekhar, Manjunath, Vijaykumari, and, Poojitha BP.
The Consultation began with Jayna Kothari (Executive Director of CLPR and Senior Advocate) giving the introductory remarks and outlining the development and objectives of the Resource Book. This was followed by 6 thematic sessions. The first session focussed on Constitutional Cases on Transgender Rights including the Supreme Court’s decisions in NALSA, Navtej Singh Johar, and K.S. Puttaswamy and the decision of the High Court of Telangana where it held the Telangana Eunuchs Act to be unconstitutional. Disha Chaudhari (Senior Research Associate, CLPR) gave a brief presentation on each of these cases and the rationale behind including them under one thematic category in the Resource Book. This was followed by comments from Vyjayanti Vasanta Mogli (Co-Founder, Hijra Intersex Transgender Samiti) who was the Discussant for this session and highlighted the importance of interim orders and standing orders in pending matters, which often lay the groundwork for the future realization of substantial rights. The floor was then open for comments and participants noted the judiciary’s inconsistent use of terminology related to gender identity and sexual orientation despite the positive strides enacted by the institution, indicating a need for greater sensitization.
In the second session on the Right to Marriage & Family, Disha took the participants through significant cases dealing with police protection for transgender individuals facing family violence and succession-related concerns. Further highlighting the right to marry and enter relationships with a partner of one’s choice is a key facet of the right to privacy. Such rights confer individual autonomy and freedom over matters that concern their intimate and personal lives and their nature in the context of transgender persons. Cases discussed included S. Sushma and Ors v. Commissioner of Police and the recently decided case of Supriyo v. Union of India. Dr. Aqsa Shaikh (Professor, Hamdard Institute of Medical Science and Research), the Discussant for this session emphasized the need to contextualize judgments, include cases where rights were denied, and provide a glossary of legal terms for non-lawyer readers. The open discussion provided inputs including information on adoption rights, property rights, and violence against transgender individuals within relationships.
The third session focused on the Right to Employment & Reservation, was facilitated by Jayna Kothari where she highlighted key judgments on equal opportunity in public employment and affirmative action measures, such as Shanavi Ponnusamy v. Ministry of Civil Aviation and Another, The Chairman v. Aradhana and, Ganga Kumari v. State of Rajasthan. Discussants, Vyjayanti Vasanta Mogli (Co-Founder, Hijra Intersex Transgender Samiti) and Uma (Founder & Executive Director, Jeeva), highlighted the court’s reluctance to use the term ‘horizontal reservation’ while employing the concept in practice. Other issues deliberated upon in the open discussion forum included concessions in physical examination, age limits, and the need for separate categorization in applications and medical examinations. The session also explored rights during and post-employment. Participants also suggested organizing cases thematically based on types of reservations, concessions, and post-employment rights.
The fourth session on the Right to Self-determination (Name & Gender Change) presented by Jayna Kothari focused on cases for change of name and gender in documents for transgender persons. The key cases included Vihaan Peetambar v. Manipal University and Mulla Faizal v. State of Gujarat. Discussant, Kanmani Ray (Transgender Rights Activist & Lawyer), highlighted ongoing barriers faced by transgender persons in accessing bureaucratic systems and the challenges to legal recognition of their name and gender identity in various government documents.
The fifth session for the day was dedicated to discussing the Rights of Transgender Persons: Applicability of Criminal Laws. Disha drew attention to cases highlighting the issues arising from the application of gender-specific criminal laws to transgender persons. Key cases included Pinki Pramanik v. State of West Bengal and Jayalakshmi v. State of Tamil Nadu. Discussant, Kunal Ambasta (Assistant Professor of Law, NLSIU), emphasized the need for gender-neutral language in criminal laws and making note of the policies and schemes that have been introduced to address the rights of incarcerated transgender persons.
In the final session, Naibedya Dash (Research Associate, CLPR) presented cases on Political Participation & Right to Education. He highlighted the case of Anjali Guru Sanjana Jaan v. State of Maharashtra to discuss the right to contest elections and reservation for transgender persons and, S. Tharika Banu v. Health & Family Welfare Department to discuss the reservation within educational institutions and the role of courts in the face of government inaction. Discussant, Disha Pinky Shaikh (Transgender Rights activist & Spokesperson, Vanchit Bahujan Aghadi), noted the need for horizontal reservations in political participation and highlighted issues in educational settings such as binary gender-based hostels and uniforms.
The consultation was an opportunity for participants to provide valuable feedback on improving the Resource Book’s accessibility and comprehensiveness. Suggestions included adding a glossary of legal terms, providing more context for each section, including relevant government orders and policies, and organizing cases thematically or chronologically. The National Consultation provided CLPR with crucial insights to refine and enhance the Resource Book on Transgender Rights, ensuring it will be an effective tool for advocacy, education, and advancing the rights of transgender persons in India. The final Resource Book is due to be published later this year.
