On why Transgender Persons must be recognised on principle of self-identification, Jayna Kothari argues in Madras HCSeptember 16 2019
The Madras High Court on Monday asked about the possible measures that could be introduced to ensure that there is no misuse of benefits meant for the transgender community, if the same were allowed on the basis of persons self-identifying themselves as transgender. The Court raised concern that persons may pretend to be transgendered, if self-identification was the sole basis for state-recognition as a transgender person.
This concern was posed by a Bench of Justices M Sathyanarayanan and N Seshasayee while hearing a PIL filed by activist, Grace Bhanu, calling for for horizontal reservation for transgender persons in public employment and educational institutions. Notably, her plea also prays for the issuance of government identification cards to transgender and intersex persons in accordance with the principle of self-identification.
Appearing for Grace, Senior Advocate Jayna Kothari submitted that all Government Orders passed by the Tamil Nadu government indicate that a person would only be recognised as a transgender person after a medical screening. Kothari argued that this was completely against the principles laid down by the Supreme Court in the NALSA case. Kothari made the submission while urging the Court to rule in favour of allowing transgender persons to identify themselves based on the principle of self-identification.
On why Transgender persons must be accorded State recognition on the principle of self-identification
Kothari asserted that the gender identity of a person is also based on one's own mental perception and (not on whether the person opts for a Sex Reassignment Surgery/SRS). While this is the case, Kothari pointed out that Tamil Nadu has set up district and state level screening committees, which conduct medical screening tests before according recognition to transgender persons.
"[It is] my [a transgender person's] right [to self-identify their gender identity], there is no need to have a screening committee", Kothari submitted.
Inter alia, Kothari cited the following observation of the Supreme Court in the NALSA case:
"Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity."
Kothari further submitted that medical SRS is extremely expensive and that a lot of people may not have access to the same. While this is the case, Kothari also pointed out that even if the person has undergone SRS, the medical screening involved for being recognised as a transgender person under the prevailing system in Tamil Nadu is humiliating. She informed the Bench that there is a general exam and a medical exam involved. During the process, the applicant is stripped naked before a board and every part of the body is examined, she further submitted.
"This is not what the Constitution or NALSA [judgment] provides", Kothari contended.
On measures to ensure that there is no misuse of reservations earmarked for the benefit of transgender persons
While the Bench was receptive to the issues raised, it also raised concern over the possible misuse of reservation for transgender persons if the applicants themselves were allowed to identify as such.
Emphasising that its intent is not to insult the community, the Court queried how it would be possible to guard against potential misuse if a person pretends to be transgender to receive reservation or other benefits. The Bench posed queries to this effect, while also clarifying that it was not against such reservation for the transgender community as such. While also referring to DMK member Tiruchi Siva's 2015 Bill for reservations in education and government jobs for transgender persons, the Bench orally remarked,
"We hope and trust that it may come in the future."
In response, Kothari highlighted that such misuse is note likely, particularly given the stigma and societal discrimination that transgender persons face when they disclose their transgender identity.
"When someone declares themselves to be transgender by a self-declaration affidavit... [there is]..so much stigma and discrimination...It's not every second person who does it," Kothari pointed out.
Inter alia, Kothari also alluded to the need to appoint transgender persons in official capacities to the the Transgender Welfare Board constituted by the Government. The Court was informed that while there were transgender persons who were associated with the said board, they were so associated in a non-official capacity.
Kothari proceeded to submit that it is not anyone's position that the benefits meant for transgender persons should be misused, while arguing that there has to be a balance. She further noted that the focus must be on ensuring that there will be reasonable checks to prevent misuse.
Appearing for the State of Tamil Nadu today, Additional Government Pleader E Manoharan apprised the Court that the State had filed a status report of the steps taken by the Government for the welfare of transgender persons. While making his submissions, Manoharan noted that a middle-ground may be arrived at. The Court also made an allied observation as today's hearing drew to a close, noting that the matter at hand did not appear to be an adversarial one and that it should be resolved without offending the Constitutional rights of transgender persons.
The Court proceeded to post the case to be taken up next on September 30, while also orally directing Kothari to make submissions on how to prevent possible misuse of transgender welfare laws.
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