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Context: The Kerala High Court order allowing the enrolment of trans-persons in the National Cadet Corps (NCC) is a significant step towards gender inclusion and equality.
Background:
- The court was responding to a petition filed last year by a transwoman, Hina Haneefa, who was refused admission to the NCC unit in a Thiruvananthapuram college.
- NCC Act, 1948 only allows members of the male sex and the female sex to be enrolled as cadets.
Centre’s Stand:
- The Centre reasoned that the NCC aimed to provide young people an environment that prepared them for a career in the armed forces, where roles and training are sometimes gender-specific due to the difference in physical, biological and psychological aspects.
- It also took recourse to the argument that admission of transwomen, especially when they have not undergone gender reassignment surgeries, in common spaces such as toilets and sleeping areas would risk the safety and privacy of women cadets.
Kerala High Court’s Stand:
- We cannot take recourse to the outdated provisions of a 1948 enactment to deal with the realities of life in the year 2021.
- It upheld the petitioner’s contention that such an entry bar was discriminatory, and violated the rights of equality and personal liberty, among others, guaranteed to citizens by the Constitution.
- The court pointed out that while admission to the NCC was once a male preserve, the law had been modified later to include women.
- It must now shed provisions that exclude trans-people.
- The judge based her reasoning on the landmark 2014 Nalsa v Union of India judgment that not only recognises the rights of transgender people, but, more radically, gives primacy to the freedom of an individual to decide their gender identity for themselves.
- It also directed the government to amend the law and to provide guidelines for enrolling trans persons in the NCC.
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National Legal Services Authority v. Union of India:
The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender:
Legal Recognition for Third Gender: The Court recognized that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc. is discriminatory to the transgender.
Legal Recognition for Persons transitioning within male/female binary: The Court merely states that they prefer to follow the psyche of the person and use the "Psychological Test' as opposed to the 'Biological Test.' They also declare that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one's gender is illegal.
Public Health and Sanitation: Centre and State Governments have been directed to take proper measures to provide medical care to transgenders in hospitals and provide them separate public toilets and other facilities.
Socio-Economic Rights: Centre and State Governments have been asked to provide the community various social welfare schemes and to treat the community as socially and economically backward classes.
Stigma and Public Awareness: These are the broadest directions Centre and State Governments were asked to take steps to create public awareness to better help incorporate transgenders into society and end treatment as untouchables; take measures to regain their respect and place in society; and seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma. |
Conclusion:
- The trans-rights movement is not only about expanding public spaces and institutions to include a much-stigmatised minority, but it is also vital to a redefinition of patriarchal ideas about gender and sexuality.
- In recognising the government responsibility to provide full and effective participation of transgender persons in institutions like the NCC, the HC lives up to the progressive spirit of the Nalsa judgment.
https://indianexpress.com/article/opinion/editorials/kerala-transpersons-ncc-enrolment-7233167/
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