Revision as of 12:01, 18 April 2014

Transgenders are a third gender: SC

Supreme Court recognizes transgenders as 'third gender'

Dhananjay Mahapatra,TNN | Apr 15, 2014

The Times of India

NEW DELHI: In a landmark judgment, the Supreme Court on Tuesday created the "third gender" status for hijras or transgenders. Earlier, they were forced to write male or female against their gender.

The SC asked the Centre to treat transgender as socially and economically backward.

The apex court said that transgenders will be allowed admission in educational institutions and given employment on the basis that they belonged to the third gender category.

The SC said absence of law recognizing hijras as third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.

This is for the first time that the third gender has got a formal recognition. The third gender people will be considered as OBCs, the SC said.

The SC said they will be given educational and employment reservation as OBCs.

The apex court also said states and the Centre will devise social welfare schemes for third gender community and run a public awareness campaign to erase social stigma.

The SC said the states must construct special public toilets and departments to look into their special medical issues.

The SC also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and can not be discriminated.

The apex court expressed concern over transgenders being harasssed and discriminated in the society and passed a slew of directions for their social welfare.

The apex court said that trangenders were respected earlier in the society but situation has changed and they now face discrimination and harassment.

It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.

The bench clarified that its verdict pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are also considered under the umbrella term 'transgender'.

The bench said they are part and parcel of the society and the government must take steps to bring them in the main stream of society.

The apex court passed the order on a PIL filed by National Legal Services Authority (NALSA) urging the court to give separate identity to transgenders by recognising them as third category of gender.

Forcible medical examination of gender a gross violation of the right to privacy: HC

Cops find cop a transgender, court asks reinstatement as woman

A Subramani,TNN | Apr 18, 2014 The Times of India

CHENNAI: A couple of days after the Supreme Court accorded legal status to members of third sex as 'transgenders,' the Madras high court on Thursday asked the Tamil Nadu government to let a person dubbed as a transgender after medical examination continue in service as a woman police constable.

The judge said compelling an individual to undergo medical examination and medically declare her/him as a 'transgender' is a grave violation of fundamental rights. "By compelling an individual, who has been recognised all through as a female, to undergo medical examination so as to declare her as a transsexual will be a gross violation of the right to privacy," Justice S Nagamuthu said.

Beneficiary of the high court order would be a woman, whom the court preferred to identify as 'Nangai', who was selected as a woman constable, only to be thrown out of the force after being subjected to several rounds of medical examination and being branded as a 'transgender'. Thanks to the judgment, Nangai shall now be absorbed back in the force as woman police constable with continuity of service from January 2011.

Nangai was born a girl in 1989, studied in a girls' school, competed as a girl and was selected as woman police constable in January 2011. But in March 2011 she was asked to undergo medical check-up where she was classified as a transgender. She was made to go through several more endocrinological and chromosomal studies for biological sex evaluation, before being branded 'transgender.'

She was then removed from service for having failed to disclose that she was a 'transgender' and for having availed herself of the reservation benefits meant only for women. Her absence from training owing to the continuous medical tests too was cited as reasons for her removal.

Justice Nagamuthu, slamming the authorities for having undertaken a roving probe into her sexuality, said: "Treating Nangai as not a female on the basis of medical declaration that she is a transsexual and forcing her to accept the said sexual identity will surely be an infringement of the rights guaranteed in the Constitution."

Pointing out that Nangai had always maintained that she was a woman, the judge said: "Nangai has declared her gender identity only as 'female' notwithstanding the declaration made by the medical community that she is a transgender. Her sexual identity as female by birth, and recognised by society and her own self-identity as female, should be recognised by the government."

Justice Nagamuthu then declared that Nangai should be treated as a female for all purposes such as employment and property rights, and said, "unless laws are made recognising this female-to-male (FTM) as third genders providing certain special rights, such identification by the individual as third gender will not be beneficial to her."

Mere medical declaration of a person as a transgender cannot keep an individual out of the binary classification of sex, the judge said, adding that in the absence of adequate legislation to protect their interests, the legal community would treat such people only by the sexual identity given to them by birth and recognised by the society, irrespective of the medical, psychological, genetic and other scientific communities.

If Nangai's sexuality is to be determined only on the basis of medical examination, then the same yardstick should be applied on everyone for entry of sex details in birth register, for employment and election, Justice Nagamuthu said. Cautioning that such a practice would create chaos in society, he said: "No court, to my knowledge, had ever sent any individual for medical examination to determine the sex of the said individual."

The judge had requisitioned the services of senior advocate K M Vijayan, and additional solicitor-general of India and senior advocate P Wilson to act as amicus curiae and assist the court.