KEY FACTS:
Nangai (name changed) was assigned and registered as female at birth. Nangai’s documents, including her birth certificate, medical records, family card and census data to the records at the all-girls’ school and women’s college she attended, all identify her as female.
In 2009, she appeared for the selection process of Grade II Police Constable (Women) conducted by then The Tamil Nadu Uniformed Services Recruitment Board, Chennai (“the board”). Upon clearing the selection, she was given a recruitment order and sent for training to the Police Recruit School in Vellore. As part of her training, she underwent a medical examination where the Medial Officer declared her as “transgender” and directed further medical examination. Consequently, Nangai was forced to undergo a series of medical examinations intermittently totalling to 121 days of medical leaves that interrupted her Police training. The Board declared that since she had missed her training, ‘falsely’ applied under the Women’s quota, and failed to appear in the final exams, her order of recruitment as woman constable stands terminated. Nangai challenged this order of termination in the High Court.
ISSUES:
The issues considered by the Court in this case were firstly, whether the petitioner is a “female” who is eligible for appointment as “Woman Police Constable”. Secondly, whether the termination of services for being transgender is sustainable.
DECISION:
The Court recognized that the gender fluidity of transsexual persons is not accommodated for in Indian laws. Consequently, under the Registration of Births & Deaths Act of 1969 and other legislations, sex is determined at birth based on physical characteristics and by society at large. In no situation (such as employment, election, and inheritance, etc.) has a person been made to undergo a medical examination to prove they are female and forcing the petitioner to do so, in this case, is unreasonable.
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) as upheld in NALSA v Union of India. 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. Noting that Nangai had not misled the Board with regard to her gender and acknowledging the turmoil that the forced medical examinations had caused her, the Court 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 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.