KEY FACTS:
Ganga Kumari had applied for the post of a woman police constable. She was qualified and successfully cleared the written examination, physical efficiency tests and also underwent a medical examination. Despite being selected for the post, she was denied an appointment letter because the medical report termed her a “hermaphrodite”. After repeated unanswered attempts and requests to the recruitment board, Ganga Kumari filed a petition before the High Court of Rajasthan seeking directions to confirm her appointment as an OBC Female or as a transgender person.
ISSUES & DECISION:
The Court had to ascertain whether the recruitment board had discriminated against the petitioner by not appointing her the post of a police constable. The Court held that in the light of the Supreme Court verdict in NALSA v Union of India the petitioner could not be denied her fundamental rights merely because of sex or gender identity. The Court emphasised that the right to life, equality and non-discrimination was applicable to all persons, regardless of their gender identity. It upheld the right of all persons under Article 19(1)(a) to freely express their gender identity and the protection of trans persons’ full range of constitutional rights upheld by NALSA.
Thus, the court held that the petitioner has the right to self-identify her gender. She has claimed herself to be female and directed the respondents to issue an order of appointment to the petitioner. In addition to the order on the appointment, the court observed that the determination of sex through medical examination after asking candidates to disclose it in the application amounted to a violation of the right to privacy under Article 21. It held that unless the job requires information on the ‘sex’ of a person, the relevant column in forms should be titled ‘gender’.
SIGNIFICANCE:
The judgment delved into the concept of privacy as guaranteed under Article 21 of the Constitution. It questioned the necessity of a medical examination to determine the gender of the petitioner and stated that an enquiry about ‘sex’ of a person and then its determination by way of medical examination intrudes the person’s right of privacy. It also discussed the difference between “sex” and “gender identity”. The Court upheld the NALSA judgement in protecting transgender persons’ constitutional rights. Ganga Kumari became the first transgender constable in the Rajasthan police force.