The Petitioner is a trans person who identified as female. She was repeatedly raped and blackmailed by the accused. She lodged an FIR against the accused under Section 376 of the Indian Penal Code, 1860 (IPC), which criminalises the rape of a woman. During the investigation, she made it clear that she identified as a female and must be treated like a female. She also said that she had undergone gender reassignment surgery, and after the procedure had obtained a certificate from the doctor which said that she may be addressed as a female.
Despite this, the investigating officer submitted the charge sheet under Section 377 IPC, which criminalises ‘unnatural’ intercourse. The State argued that the Petitioner was not female, but a male based on her biological sex: the investigating officer had read some reports on the Petitioner’s DNA and declared on her own that the Petitioner was a male. The officer also said that a doctor’s certificate could not make the Petitioner a female, a ‘competent authority’ had to determine the Petitioner’s gender.
Aggrieved, the Petitioner sought to enforce her right to self-identify her gender. The petition was filed to direct the State government to treat the Petitioner as a female in accordance with the law.
ISSUE AND DECISION:
The Court had to decide whether the Petitioner could self-identify her gender for the purposes of criminal laws dealing with sexual violence, and whether the test to determine gender should be ‘biological’ or ‘psychological’.
The Court relied on the ruling in the NALSA v. Union of India judgment, in which the Supreme Court had upheld the “psychological test” instead of the “biological test”. The Court held that this meant gender and sex, including for the purposes of laws such as the Indian Penal Code, 1860, had to be based on the ‘psyche’ of the person and how they felt, rather than any biological factor.
The Court came down heavily on the State, the Senior Public Servant, and the Investigating Officer for ignoring the decision of the Supreme Court and resorting to the “biological test” (from the Corbett v. Corbett case) that the SC had categorically rejected.
The Court took note of the argument that the Transgender Persons (Protection of Rights) Bill, 2018 was still pending in the Parliament, and that there was no statute regarding this question. However, it held that till the time any legislation is made, the law laid down by the Supreme Court is the law of the land, and therefore, NALSA would be followed. The Petitioner would be treated as female for all purposes.
The judgment affirmed NALSA and stated that a denial of the right to self-identify one’s gender would deny the right to life and liberty. It is especially significant since it is one of the first cases that affirmed the right to self-determination based on the ‘psyche’ of the individual even in the context of the criminal law.
Criminal laws are usually interpreted narrowly and with specificity, and provisions on sexual violence are gender specific. The Court did not allow this to become a bar in interpreting the provision in light of the recognition of transgender persons in NALSA. It has set aside the “medical” or “biological” tests for determining gender.
However, the order only says “she has to be treated as female for all the purposes”. It has stopped short of explicitly ordering that the investigation be done under s. 376, since the Petitioner is recognised as female. This is only implicit.
At the time, the Transgender Persons (Protection of Rights) Act, 2019 had not been passed. The Act has now put in place a procedure for ‘recognising’ a transgender person’s change of gender. It has also made the sexual abuse of transgender persons a specific offence, which will complement the provisions under the IPC.