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FAIZAN SIDDIQUI VS. SASHASTRA SEEMA BAL

Read the full judgement here
citation:

2011 (124) DRJ 542

court:

High Court of Delhi

judges:

Justice Gita Mittal, Justice R. Midha

KEY FACTS: 

Faizan Siddiqui, the petitioner, was diagnosed with a congenital anomaly named Androgen Insensitivity Syndrome and a Disorder of Sexual Differentiation (DSD). This meant that despite being born male, her body was not responsive to male hormones. Hence, she identified as female. She underwent surgery at a young age to remove her testes, followed by vaginoplasty and consumed female hormone pills. Her medical certificate stated that barring natural pregnancy, she could lead a life akin to any other woman. She could also choose any career she wished.

Faizan applied for the post of a female constable with the Sashastra Seema Bal (SSB). She qualified and passed all the selection criteria. However, on a medical examination, SSB found her medically unfit and rejected her candidature. The Medical Board diagnosed her with “congenital anomaly and pseudohermaphroditism”. Faizan was not found to be a “healthy fit fighting female candidate” on the basis of her lifelong dependence on the female hormone pills.

ISSUES & DECISION: 

The Court considered whether SSB consulted relevant experts and evidence in rejecting Faizan’s application. It deliberated upon the reason for SSB’s actions and discussed whether SSB followed a reasonable procedure in rejecting Faizan’s candidature.

Was Faizan medically unfit?

The court relied on the medical certificates Faizan produced. They declare her to be fit enough to undertake any career as any other woman. It negated SSB’s stand that her medication would cause an “adverse reaction in due course of time” as the SSB failed to produce any medical or scientific evidence to support such a statement.

The court considered whether SSB rejected Faizan’s application because her congenital anomaly could impede her service. The court noted that SSB personnel had to be fit enough to endure the rigours of the service. As there was no Indian protocol on dealing with persons with DSD, the court relied on international guidelines such as the Consensus Statement on Intersex Disorders, formulated at the International Intersex Consensus Conference. It states that persons born with a similar chromosomal pattern as Faizan identify as female. SSB did not dispute this. The Court observed that Faizan never suffered from any “psychological discomforts, including transgender”. The court also studied the International Olympic Committee’s Stockholm Consensus Statement which states that persons diagnosed with androgen insensitivity disorder may compete as females.

Next, the court examined the functions expected of female SSB personnel. The Court found no relation between Faizan’s medical condition and the job description. On SSB’s fears that her inability to bear children naturally might lead to “adjustment problems in later life”, the court held that SSB had not listed infertility as a grounds for medical unfitness. Hence, this was not a valid reason to reject Faizan on the grounds of medical unfitness.

Did appropriate experts examine Faizan?

The Court also looked into whether SSB evaluated Faizan’s application with the requisite expertise. It relied on the International Association of Athletic Federation (IAAF) Policy on Gender Verification, IAAF and Anti-Doping Commission, 2006 which recommends that a gynaecologist, endocrinologist, psychologist, internal medicine specialist, and an expert on gender/transgender issues must make decisions on DSD. The court observed that the doctors on the SSB medical board who evaluated Faizan’s application possessed only MBBS degrees. Hence, it held that their decision to dismiss her candidature was arbitrary.

Further, the court held SSB’s apprehension that it may be difficult to fulfil Faizan’s medical requirements of pills and check-ups to be presumptive and based on no objective consideration.

Therefore, the Court directed SSB to re-evaluate Faizan’s physical standards and physical efficiency. If Faizan cleared the tests, she would be entitled to be recruited into the SSB.

SIGNIFICANCE: 

Faizan’s congenital anomaly was unrelated to her proposed responsibilities and SSB’s medical board which evaluated her did not comprise of experts. However, the court relied on various international guidelines and protocols on Faizan’s particular medical condition to arrive at its finding that she was unfairly discriminated against.