Kerala HC Recognizes Right of Transgenders to Live with Dignity


June 14, 2018

In this remarkable case, which recognizes an individual’s right to live including a transgender, the Division Bench has passed a noteworthy judgment by holding that a transgender has the liberty to be associated with like minded people and cannot be compelled to be at his parental home.

In the case, while pronouncing their verdict, the Court referred to a quote of Chaz Salvatore Bono who himself was a transgender, advocate, writer, musician and actor:

“There’s a gender in your brain and a gender in your body. For 99 percent of people, those things are in alignment. For transgender people, they’re mismatched. That’s all it is. It’s not complicated, it’s not a neurosis. It’s a mix-up. It’s a birth defect, like a cleft palate.”

In the case at hand, the Petitioner who is the mother of detenu, sought a direction to produce her son by name Aby James who was allegedly detained by some transgenders. The petitioner’s grievance was that her son had started behaving abnormally and used to dress like women and has also rechristened his name as ‘Arundhathi’.

Bench’s Verdict

In view of facts, circumstances and medical examination of detenu, the Court was of the view that the detenu was undergoing an identity crisis. The High Court stated that the medical report further confirmed that the detenu though has normal male genitalia on external examination fits the label ‘transgender’ as per the Diagnostic and Statistical Manual 5th Edition (2013).

The High Court further noted that the self-identification of the detenu as a transgender is clearly expressed by speech, mannerism, clothing etc. which we noticed during our interaction and fortified by the medical report.

While referring to Supreme Court’s judgment in the case of National Legal Services Authority v. Union of India[1], the High Court remarked that the transgenders are neither male nor female who however fall within the expression ‘person’ entitled to all rights recognized by law. The freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep the right of a person to live as a transgender.

The High Court thus, held that the detenu has undoubtedly the right to wander about or associate with like minded people and cannot be compelled to be at his parental home as wished by the petitioner.

 

[1] [(2014) 5 SCC 438]

About the Author

Shilpi Sharan

- Shilpi Sharan is the Editor at Vakilno1.com - an Advocate with extensive knowledge in myriad fields of Law. She has a flair of writing and has legal publications in national and international law magazines to her credit. She focuses on legal research and aims at raising public awareness of laws in India.