KEY FACTS:
The state police force recruited Jackuline Mary for the post of a ‘woman police constable’. During the initial medical examination after selection, the medical officer recorder her gender as “transgender”. The subsequent medical reports also noted that “she is transgender by birth“. Consequently, the State terminated her appointment on the ground that she concealed her gender and took unauthorised leave.
ISSUES:
There were two issues before the Court. First, the Court was to consider Jackuline’s gender identity and appointment appointed as a woman police constable. Second, if the termination of her services was sustainable.
Jackuline argued that the State had infringed her fundamental rights under Articles 14, 15, 16 and 21. The State argued that Jackuline had deliberately hidden her gender identity during the application process. Therefore, she was not eligible for appointment as a “Woman Police Constable”.
The Court noted the discrimination faced by transgender persons in its judgement. It drew attention to the fact that the State and society have not secured transgender rights by referring to the cases of Pinki Pramanik and Shanti Soundararajan.
The Court observed that no statute, including the Registration of Births and Deaths Act, 1969, laid down a medical procedure to identify the sex of an infant at birth. The entry made in the register is based entirely on physical characteristics. Thus, there was no reason for the State to subject Jackuline to a medical test to determine her sex/gender. If such a test was used for the purposes of recruitment, then entries in the birth register, elections etc would also require such tests. The Court stated that this would create chaos.
Furthermore, the Court observed that the Supreme Court’s decision in NALSA v. Union of India did not provide a clear definition of the term ‘transgender’. It noted that the judgement was limited to male-to-female transgender persons. It did not include other non-binary gender identities, such as female-to-male (FTM) transgender persons.
Nevertheless, the Court referred to the NALSA judgement to affirm all persons fundamental right to self-identify their gender under Article 19(1)(a). Thus, the Court held that since Jackuline had declared her gender identity as female, the State ought to treat her as female for all purposes until it enacts a law recognising FTM persons as ‘transgender’.
DECISION
The Court held that subjecting Jackuline to a medical examination was a violation of her right to life and personal liberty under Article 21. It further stated that treating Jackuline as not female on the basis of medical examinations amounts to constraining her gender identity, which would be a violation of Articles 14, 15, 16, 19(1)(a) and 21.
The Court held that Jackuline is female. Thus, she is eligible for the post of woman police constable. It noted that her absence from training can be condoned and the termination was not sustainable.
SIGNIFICANCE:
The Court affirmed Jackuline’s self-identification as a woman. It recognised her right to self-identify her gender. It also noted that she had the liberty to identify as male, once the State explicitly recognised FTM persons.
The Court directed state authorities to ensure that they take steps to provide requisite separate facilities for FTM and intersex (“medically declared transgender”) persons.