Five Years Since NALSA: How Have the High Courts Fared?

June 25, 2019 | Saumya Dadoo

In 2014, transgender rights in India were bolstered by the landmark judgement in NALSA v. Union of India. The apex court laid down guidelines for states to protect and promote transgender rights. Significantly, it upheld every citizen’s right to self-identify their gender as male, female, or third gender. The judgement clarified that gender identity did not refer to biological characteristics but rather to “an innate perception of one’s gender”.

 

Five years after the NALSA judgement, how have courts and government bodies fared in complying with the right to self-identify? This piece presents an analysis of cases in the High Courts which have dealt with self-identification of gender in employment, inclusion in the police force, and identification changes in educational certificates.

 

The first case addressing the inclusion of transgender persons in the police force came before the Madras High Court shortly after the NALSA judgement: Nangai vs. Superintendent of Police. In this case Nangai (name changed), a transgender woman, was recruited for the post of a woman police constable. Nangai underwent a medical test as part of the recruitment process which stated she was transgender. Subsequently, the Superintendent of Police terminated her appointment on the ground that she had “hid” her gender identity. The court upheld NALSA, recognising Nangai’s right to self-identify and held that the medical test itself was a violation of Nangai’s right to life and personal liberty under Article 21. Thus, Nangai was eligible for the post of a woman constable. The Madras High Court came to similar decisions in Nangai-II v. Director of Police (name of petitioner changed) and T. Thanasu v. The Secretary to the Government of Tamil Nadu. Similarly in the case of Ganga Kumari vs. The State of Rajasthan, a transgender woman’s right to self-identify was upheld by the High Court of Judicature, allowing her to become Rajasthan’s first transgender woman police constable.

 

High Courts have also addressed cases of modifying educational certificates to reflect changes in name and gender. The Calcutta High Court applied the right to self-identify as per NALSA in the case of Chanchal Bhattacharya (Tamal) v. State of West Bengal. In this case, the Council of Higher Education had rejected Tamal’s application for new education certificates which reflected his change in name and gender, claiming it was not mandated to issue new certificates. The Court cited the NALSA decision to reject the Council’s order and mandate that it issue new certificates within four weeks. In Poojitha B.P. vs. Karnataka Secondary Education Examination Board the High Court of Karnataka required the education board to comply with Poojitha’s request for name and gender change in educational documents.

 

The High Court of Judicature at Patna upheld a transgender woman’s right to contest municipal elections under the “female unreserved” seat in Sangeeta Hijra vs. State of Bihar. In this case, the court made clear that the right to self-identification also makes one eligible for the relevant benefits.

 

An exception to these cases is Sumita Kumari v. State of West Bengal. In this case, a transgender woman had applied to be an ASHA Karmee social worker. The judgement stated that petitioner was “a member of the transgender community of human species” and noted her inability to specify as “male” or “female”. The Calcutta High Court referred to a memo which stated that only females who were married, divorced, or widowed were eligible to be ASHA Karmee workers. Thus, the Court stated that Sumita Kumari was not eligible. Further, in response to Sumita Kumari’s charge of discrimination, it stated: “it would have been discriminatory if two out of the three genders of the human species were considered eligible to apply for engagement in respect of the posts-in-question to the exclusion of the transgender community members”. The judgement thus failed to recognise a transgender woman as a woman. This decision points to the limitation of categorising transgender persons as an exclusive category of “third gender” persons who must lie outside of the male-female gender binary.

 

Overall, High Courts have been consistent in maintaining the right to self-identify in accordance with the NALSA judgement. Nevertheless, these cases also demonstrate that transgender persons continue to face bureaucratic hurdles and routine discrimination. Notably, the judicial enforcement of NALSA also cannot represent the experiences of many transgender persons who do not have access to affordable and competent legal services.

 

Therefore, judicial interventions which address bureaucratic policies and go beyond the case at hand can be invaluable in enabling rapid change. The Karnataka High Court has taken this step in its recent judgement in Jeeva M. v. State of Karnataka, by passing an order directing all authorities to carry out the change of name and gender in educational certificates of transgender persons as per their self-identified gender. If more High Courts follow suit in broadening their ambit of applying NALSA, they can serve as proactive measures that improve access to rights and social inclusion for transgender persons.

Saumya Dadoo

Research Associate

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