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HINA HANEEFA V. STATE OF KERALA

Read the full judgement here
citation:

WRIT PETITION (CIVIL) 23404/2020

court:

KERALA HIGH COURT

judges:

JUSTICE ANU SIVARAMAN

KEY FACTS:

The Petitioner, Hina Haneefa, is a trans woman. She had undergone a reassignment surgery and got a transgender identity card showing her gender identity as female. She had applied to be a part of the National Cadets Corps’ (NCC) but was refused admission to the Girls Divisions as she was a transgender person. She challenged this rejection of admission before the Kerala High Court as it violated her fundamental rights.

ISSUE AND DECISION:

The issue before the Court was whether Section 6 of the National Cadet Corps Act, 1948 (‘NCC Act’) barred transgender women from being admitted to the NCC Girls Unit. Under the NCC Act, Section 5 divides the Corps into three divisions: the Senior Division, the Junior Division and the Girls Division. Section 6 states that the recruitment to the Girls Division was to be made from female students of any university or school.

The respondents had argued that ‘gender specific’ organisations like the Armed Forces and NCC has special circumstances with ‘wider adverse consequences’ if transgender people were included. The Court refused this and held that the Petitioner should be permitted to join the Girls Division.

The Court ruled that specific provisions of the Transgender Persons (Protection of Rights) Act, 2019 (‘Trans Act’) trump Section 6 of the NCC Act. It was a 1948 legislation that has to be viewed in light of the new Trans Act which prohibits discrimination against transgender persons.  It noted that the Trans Act was enacted to realise the constitutional guarantees under Articles 14, 15, 19 and 21 of the Constitution of India, 1950. The Court held that that the Trans Act not only recognises the right of a person to be recognised as transgender but also the right to self-perceived gender identity.  It held that the petitioner had undergone Sex Reassignment Surgery, ‘aiding’ her self-perception as female and hence she is entitled to enrolment in the NCC Girls Division. The Court also directed the respondents to amend the enrolment criteria in section 6 of the NCC Act to include transgender persons and to prescribe guidelines for their enrolment within 6 months.

SIGNIFICANCE:

This is one of the first judgements on the Trans Act 2019. It gives an important interpretation to the provisions of the Trans Act to state that the Act not only recognises the right of a person to be recognised as transgender but also to one’s self-determined gender identity. It holds that the Trans Act was enacted to give effect to constitutional rights. Other legislations which do not recognise the rights of self-determination of gender identity of transgender persons and discriminates against them on this ground would not be upheld and such discriminatory legislation should be amended.

On a slightly negative note, the court while upholding the right of the Petitioner to be admitted to the NCC Girls Division held that she had also undergone sex-reassignment surgery which ‘aided’ her self-perception as female. This undermines what the Supreme Court in NALSA v. Union of India and others have held categorically that the right to self-determination of one’s gender identity as male, female or transgender is irrespective of medical reassignment.