Indian High Court’s Recognition of a Person’s Right to Live as Transgender – A Bitter-Sweet Pill | Oxford Human Rights Hub

Op-Eds by Public Law · July 25, 2018
Author(s): Akshat Agarwal

In a recent judgment by the Kerala High Court, the court refused to issue a writ of habeas corpus and dismissed a mother’s plea to compel her daughter, referred to here as ‘X’, to return home. In rejecting the plea, the court affirmed the rights of transgender people to individual liberty and freedom of expression. Unfortunately, the court made a dangerous precedent in subjecting X to a psychiatric medical examination to affirm her state of mind in deciding to identify as a woman and leave home, revealing the court’s prejudice

Writs of habeas corpus are issued by High Courts in India under Article 226 of the Indian Constitution to release and produce a person before the Court who has been otherwise illegally detained. The mother claimed that X, a 25-year-old, who had been self-identifying as a trans woman, had a history of psychiatric illnesses which led her to leave her parental home and live amongst the members of the transgender community. In India, members of the transgender community traditionally live together in groups.

The High Court followed the Supreme Court of India’s celebrated decision in NALSA v. Union of India that recognised gender identity as forming part of the core of one’s personal identity thereby according the protection of the freedom of speech and expression under Article 19(1)(a) of the Indian Constitution to all forms of gender expression and representation. Thus, the High Court held that a transgender person’s expression of personality was constitutionally protected and could not be interfered with by the State.

While the judgement should be appreciated for its focus on individual liberty, especially because the same High Court in another case had recently issued the writ of habeas corpus in clear violation of an adult’s autonomy, as discussed on this blog, the High Court followed a flawed legal procedure in reaching its conclusion.

During the proceedings, X appeared before the High Court and unequivocally asserted that she self-identified as a transgender woman and did not suffer from any mental disabilities. Ideally, at this juncture, the proceedings should have been dismissed since there was no illegal detention as X had voluntarily left her parental home. However, the High Court instead ordered a medical examination based on the petitioner’s contention that psychiatric treatment had been extended to X in the past. Such an order, disregarding X’s clear assertion regarding her identity and subjecting her to a further verification process, was in violation of another aspect of the Supreme Court’s judgement in NALSA, where it observed that, “Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.” Self-identification of gender identity was thus considered as part of personal liberty guaranteed under Article 21 of the Indian Constitution. Though the psychological evaluation conducted on X concluded that she did not suffer from any mental disabilities, her statements to the news media are indicative of the mental agony and humiliation she had to go through.

Certain statements of the judges in the judgement such as terming X’s situation as an “identity crisis” and quoting Iago’s words “I am not what I am” from Shakespeare’s Othello (used in the context of likening Iago to the devil) to describe her state, are indicative of the High Court’s own discomfiture. Further, while recognizing that X could not be compelled to return to her parental home, the High Court’s sympathies were clear when it observed that this was against the wishes of the mother who was before them, as the petitioner, “with folded hands and tearful eyes”. This is reflective of the need for greater sensitivity from members of the Indian higher judiciary in such cases.

The Kerala High Court’s judgement appears to be an instance where the Court, bound by the weight of precedent, grudgingly reaches a certain conclusion when it would have much preferred otherwise. Thus, while the decision should be welcomed for its application of NALSA in recognising the right of a person to live as transgender, it also points to the urgent need to sensitise members of the higher judiciary in India to prevent prejudice influencing legal processes and outcomes.

Originally Published: http://ohrh.law.ox.ac.uk/indian-high-courts-recognition-of-a-persons-right-to-live-as-transgender-a-bitter-sweet-pill/


About Akshat Agarwal:

Akshat is a Research Fellow at Vidhi and currently works with the Vidhi Aid initiative. At Vidhi, he has advised on projects relating to the regulation of the digital economy, privacy and federalism. Currently, he is working on research projects relating to LGBT+ rights, withdrawal of care from terminally ill patients and public health. His research interests include public law, human rights, family law and gender and sexuality. Akshat is an alumnus of the National Law School of India University, Bangalore and was previously an Associate at the leading Indian law firm Khaitan & Co., where he worked with their disputes and regulatory practices. He has been published in peer reviewed journals as well as media outlets such as The Wire, LiveMint etc., and has also contributed to international blogs such as the Oxford Human Rights Hub and the IACL-AIDC blog. He served as the Chief Editor of the National Law School of India Review and was also on the editorial board of the Indian Journal of International Economic Law. Link to full bio