ISSUE
First, whether Nangai, a woman with variations in sexual characteristics, is eligible for appointment as “Woman Police Constable”? Second, whether the termination of her services for having such variations in sexual characteristics is wrong in law?
KEY FACTS
Nangai (name changed) was assigned and registered as female at birth. Nangai’s documents, including her birth certificate, medical records, and educational records at the girls’ school and women’s college she attended, all identify her as female.
In 2009, she was selected for the post of Grade II Police Constable (Women). During her training in Vellore, she underwent a medical examination where the Medial Officer declared her as ‘transgender’. Consequently, the Police forced Nangai to undergo a series of medical examinations. She was found to have variation in her sexual characteristics such as chromosomes, genitals and hormones. This resulted in her missing a total of 121 days of her training.
The Police ordered her termination since she had missed her training and ‘falsely’ applied for women constable posts. Nangai challenged this order of termination in the High Court.
DECISION & REASONING
The court recognized that while Indian law made classifications between male and female, it did not adequately define these or accommodate any fluidity in sex. Under the Registration of Births & Deaths Act of 1969 and other legislation, sex is largely determined at birth based on physical characteristics and by societal recognition. In no situation (such as employment, election, and inheritance, etc.) does a person have to undergo a medical examination to prove they are female or male. So, forcing Nangai to do so is unreasonable.
The court also applied the rights to equality, non-discrimination, expression and life with dignity (Articles 14, 15, 16, 19(1)(a), 21) guaranteed in the Constitution as interpreted in NALSA v. Union of India (2014). The only applicable test for gender, is self-identification, and Nangai has always identified as a woman. Therefore, the court held that Nangai was eligible for the post of a woman police constable. She had not misled the board and her non-attendance because of the medical examinations was condoned. In fact, the court held the invasive examinations were a violation of her right to privacy. The Court set aside the order terminating Nangai’s service and directed that she continue in her post as woman police constable.
SIGNIFICANCE
The Court recognized that compelling a person to undergo a medical examination of sex or gender violated Article 21. It also upheld a person’s right to self-identify their own gender, rather than rely on medical proof. Although Nangai was assigned and identifies as a woman, the court uses the terms ‘transsexual’ and ‘transgender’ in this judgment. This may cause confusion between persons with variations in sexual characteristics (intersex persons) and persons whose gender identity is different from the one assigned to them at birth (transgender persons).