NALSA Judgement of 2014 Was 'Pathbreaking'. But Has It Really Made India More Trans-inclusive?

This is part one of a three-part series analyzing the effects of the NALSA judgment on the inclusion of the transgender community. It attempts to trace cases of note, decided by various High Courts in India, pursuant to the passing of exhaustive guidelines by the Apex Court in the NALSA judgment. The series focusses on aspects that affect the transgender community, i.e. (i) state policy, (ii) personal liberty and (iii) statutory rights. In today’s installment, the author examines the effect of the NALSA judgment on state policy, in particular its non-implementation in state policy, on individuals and their livelihood. Of particular interest to readers will be the instances where courts have upheld the right to livelihood and liberty, despite and in spite, of State attempts to ignore NALSA norms before the transgender person law was enacted.

For a very long time, as far as one can remember, the transgender community in our country has led a fringe existence. They have been abused, harassed, tortured even, and marginalized for no fault of theirs.

We, as a society have repeatedly punished transgender persons for being who they are, whilst completely forgetting that a person’s sexual identity is not only an intensely personal aspect of their life but also, involuntary. No transgender would have chosen to belong to a third gender either biologically or psychologically, just as a male or a female person did not choose their gender. It is hard to believe that anyone could come up with a logical reason to dislike someone just because are “transgender” and yet, they are hated, and how. We have failed them, so have the lawmakers in our country.

The battle against discrimination of transgender persons has been fought long and hard by many non-governmental organizations, activists. These activists have included but have not been limited to transgender persons and their families, who have fought this battle on behalf of, and for, the entire transgender community. It is this struggle that culminated in the passing of the landmark judgment of National Legal Services Authority v. Union of India[1]in 2014.

Several years later, a case decided by the Rajasthan High Court, rightly stated that the Apex Court’s decision in National Legal Services Authority v. Union of India “is a pathfinder, if not a path breaker”[2]. Whilst the NALSA judgment was passed in 2014, and typically ought to have resulted in the expulsion, or at the very least, a reduction in the bias against the transgender community, but none of that has actually happened.

A law enacted by the executive which ostensibly sought to incorporate the recommendations of the NALSA judgment only came 6 years later, meanwhile, the transgender community continued to languish. This happened because in the absence of a central law, local authorities at the central and state level found it convenient to disregard the NALSA judgment, in its entirety. Further, the lackadaisical approach in enacting a law also delayed the removal of deep-seated prejudices against the transgender community.

This is because, to bring about a change in the mindset of the people, a change in the law of the land is a pre-requisite.

The Undisguised Reluctance to Displace Existing Systems

The absence of any affirmative action by the government at the central and state level has led to a failure of any kind of assimilation of the transgender community, in mainstream society. When one looks at case history one finds particular ideas that have demonstrated the reluctance of the State to displace existing systems. One such is;

The displaced importance given to “gender” in police services

The very first case decided after the NALSA judgment was I. Jackuline Mary v. Superintendent of Police, Karur and others[3] before the High Court of Madras. This petition had been filed by a person, who was born female and identified with the female gender all her life. Her identification documents including birth registration certificate also identified her as a female. Therefore, it was clear that she had chosen her gender identity to be “female”. Eventually, she attended a police training school at Vellore, wherein during a medical check-up, the medical officer remarked in her report, that she is was actually transgender. The petitioner was forced to undergo a medical examination to prove her gender, despite NALSA norms clearly specifying that this sort of testing was not alright.

After receiving the “transgender” remark, she was terminated from the police service in the police service on grounds of “non-disclosure” that she was a transgender by birth, and was not entitled to admission in the woman’s quota. The Court, after analyzing various laws in the country, came to the conclusion, that it is no requirement for a person to prove their gender by undergoing any examination.

Whilst the authorities, in this case, had not followed the guidelines laid down by the NALSA judgment (and couldn’t have, as the NALSA judgment had been passed two days before this judgment), yet the High Court of Madras followed the NALSA judgment, recognized the Petitioner’s right to choose the gender that they identify with, and set aside her termination from police services.

Factually similar cases were decided identically by the High Court of Madras in the matters of Nangai v. Superintendent of Police[4],T. Thamusu v. Secretary to Government of Tamil Nadu[5], and G. Nagalakshmi v. Director General of Police[6] where although it was still too early for the State Government to make laws in pursuance of the guidelines laid down by the NALSA judgment, the Court nonetheless followed them and passed judgments accordingly.

Another such idea that runs as a common thread across NALSA implementation is the state placing the blame on a non-existent law.

Whilst courts have been pro-active in giving legal form and sanctity to NALSA judgment norms, authorities under the central and state governments have matched the judiciary’s enthusiasm with a proportionate amount of reticence.

What this disconnect between the judiciary and the executive has repeatedly led to, is the sheer harassment caused to the already harassed.

An example of this is a case that came up in the court of Justice Dinesh Mehta[7] of the High Court of Rajasthan. Despite precedent from the High Court of Madras, a “female” (assigned gender) who had applied for the post of a constable was later found to be a “hermaphrodite” ( the biological term for a transgender/transsexual) during a medical test).

In this case, the authorities did not even do her the courtesy of rejecting her application, which would have given her immediate “cause” for legal action. Instead, they pushed the application into dormancy. When the petitioner approached court aggrieved by the lack of any movement on her application, the state government took the stand that since the Transgender Persons (Protection of Rights) Bill 2016 (as on 2016) was pending, it had rightly abstained from taking any action on the petitioner’s application.

The court, once again, had to step in and admonish the state and reiterated that the stand taken by the state was absurd, and the harassment caused to the petitioner was immeasurable. Whilst the state’s inaction was criticized, what also happened was that an interpretation of the NALSA judgment was placed on record by the Judge.

The judge recorded that unless a job so requires, an employer cannot ask about the sex of a person, and in place thereof, the requisite column in Hindi should be “purush/mahila” instead of “ling”. The judge attempted to bring out a distinction between the sex of a person as opposed to their gender, and this, was positively progressive. However, whether these observations have actually translated into actions by authorities is yet to be seen.

In another case, before the High Court of Uttarakhand, a similar stand was taken by the state (later retracted) that till the Transgender Persons (Protection of Rights) Bill 2016 (as on 2016), the state would not act. The Court clarified that until the bill is enacted (that is, till it becomes law), the NALSA judgment will have an equal force of law.[8]

What Can We Learn From This

Whilst the courts have always aligned their decisions with the norms of NALSA v. UOI, what actually happens in spite and despite law is disheartening. Whether this is lethargy, apathy or outright bias, it is the transgender community that (despite not having the resources) has to time and again approach courts for enforcement of fundamental freedoms.

The author and Ungender Legal Advisory are joint owners of copyright of this article, and any reproduction of this article shall be in accordance with the provisions of the Copyright Act, 1957 only. This article has been shared with NW18 as part of an Ungender-NW18 collaboration.