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NANGAI VS. SUPERINTENDENT OF POLICE

Read the full judgement here
citation:

(2014) 4 MLJ 12

court:

MADRAS HIGH COURT

judges:

Justice S. Nagamuthu

KEY FACTS:

Nangai (name changed) had applied for the post of a woman police constable. The Tamil Nadu Uniformed Services Recruitment Board, Chennai (“the board”) conducted application tests. Nangai’s application was successful. She received an order of appointment from the Superintendent of Police at Karur district.

During the course of her training at the Police Recruit School in Vellore, she underwent a medical examination. The examination declared that she was “transgender” on the basis of chromosomal pattern and genitalia. This contradicted her birth certificate, medical records, and educational certificates.

The medical tests also required Nangai to be on leave for a total of 121 days. On this basis, the Board contended that she had failed to participate in the training. The Superintendent considered the medical results and asked Nangai why she had applied under the women’s quota, if she was transgender. They also asked her to explain her unauthorised absence and reasons for missing the final recruitment exam.

The Superintendent was not content with Nangai’s answers and ordered her termination from the post of woman constable. Nangai challenged this order in the High Court.

ISSUES:

The Court considered two issues: whether Nangai was eligible to be appointed as a woman police constable and whether her dismissal was sustainable.

The Superintendent and the Board contended that Nangai was dismissed from service because she had not disclosed her gender identity and was not eligible to be appointed as a woman police constable. They also argued that she had taken unauthorised leave.

The Court noted the absence of any laws to define or determine the sex of a child or to protect the rights of third gender persons. This necessitated their classification within the binary gender of male and female. It noted that sex determination had relied on physical characteristics of an infant and the societal recognition of the child’s sex.

The Court noted that Nangai had never identified as a transgender person. She was assigned female at birth and recognised as a woman by society. Thus, it would not have been relevant for her to have disclosed this during her appointment.

The Court condoned her unauthorized leave of absence during her period of turmoil.

DECISION:

The Court discussed the medical bases for sex determination. It opined that everyone would have to undergo medical tests to determine their sex for purposes of employment, election and inheritance. This would lead to unnecessary chaos and confusion.

Further, it held that not treating Nangai as a female would be a violation of the right to equality, non-discrimination, freedom of speech and expression, life, and personal liberty guaranteed in the Constitution of India (Articles 14, 15, 16, 19(1)(a), 21).

The Court also recognised that all persons are guaranteed human rights under the Universal Declaration of Human Rights (UDHR). However, it further noted that these are worded using the language of binary gender, of male and female, and do not discuss non-binary identities.

Finally, the Court held that Nangai was a woman and eligible for the post of a woman police constable. In addition, it accorded Nangai the freedom to self-identify her gender identity, including third gender identity. It set aside the order terminating Nangai’s service and directed the Superintendent to reinstate her as a woman police constable.

SIGNIFICANCE: 

The Court recognized that compelling a person to undergo a medical examination of gender itself, violated Article 21. It upheld a person’s right to self-identify their own gender. It disregarded medical proof of gender and noted the consistent emphasis on binary gender identities in Indian and international documents.