Findings Dissolve Classifications In NCC Based On Gender: Intervenor Appeals Against Kerala High Court NCC Ruling Allowing Enrolment To Transpersons

On Friday, the Kerala High Court on Friday took up a writ appeal filed before it against the judgment of a single judge allowing a transwoman to enrol with the National Cadet Corps (NCC) in accordance with her self-perceived gender identity. A Division Bench of Justices CT Ravikumar and Murali Purushothaman took up for hearing an appeal moved by an intervenor in the original proceedings, one Sreerag S. In his appeal, the appellant primarily assails the Single Judge's direction that Hina Haneefa be allowed to apply for enrolment in the girls' wing of the NCC. Sreerag, through his counsel Advocate K Arjun Venugopal asserts in his appeal that Haneefa should be admitted only under the category of "transgender" or "third gender." To allow the entry of the petitioner to the corps on par with "biological girls" would be grossly unfair, the appellant contended. In Court today, the Division Bench questioned the appellant's interest in the matter and pointed out that the NCC was yet to file an appeal in the case. At this, the counsel for NCC, Central Government Counsel NS Daya Sindhu Shree Hari informed the Court that the NCC would also be filing an appeal. Taking note of this submission, the Court proceeded to defer hearing the case, declaring instead that it would take the intervenor's appeal along with the NCC's to prevent any prejudice being caused to the NCC's prospective appeal. The NCC's counsel submitted in Court that the appeal against the Single Judge judgement would be filed during the vacation. The Single Judge in her judgment had observed, "I am of the opinion that the petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrollment in the NCC unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender. The fact that the provisions of the NCC Act do not recognize the third gender or that detailed guidelines are required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps cannot, according to me, be a justification for denying admission to the petitioner..". "A transgender person is not recognised by law as belonging to his or her self-perceived gender" In his appeal, Sreerag has contended, "a transgender person is not recognised by law as belonging to his or her self-perceived gender". Referring the NALSA ruling, he states that Hijras, Eunuchs, apart from binary gender, are treated as 'third gender' for the purpose of safeguarding their rights under Part III of our Constitution and laws made by the Parliament and the State Legislature." Additionally, the State Policy for Transgenders in Kerala, 2015 also treats transgender persons as the third gender, rather than as belonging to the either of the gender binaries. He goes on to state, "The learned Single Judge failed to appreciate that even if a transwoman is treated as belonging to the third gender and permitted to participating in the NCC, the purpose of the NCC for training/education will be served. A trans-girl has no right to insist that she wants to participate in the NCC as a girl along with biological girls and not as a trans girl. Hence there was no necessity to declare the 1st Respondent is entitled to enrolment into the Girls' Wing of the NCC" The appeal petition goes on to argue that any recognition of transpersons by their self-perceived gender identities will be "grossly unfair to biological women", will lead to "chaos in society". If the right to self-perceived gender identity is considered as a legal recognition of a person being self-perceived gender, persons can be treated as belonging to a gender of their choice even without medical intervention, the appellant states, referring to Section 6 of the Transgender Persons (Protection of Rights) Act, 2019."If the interpretation of the learned Single Judge is adopted, such a biological man will have to be treated as a female based on his self-perceived identity. Such a biological man will have a right to enter places where only women are permitted...Such a biological man will also then be entitled to all protetion and benefits that the law confers on biological women", the appeal reads. In the context of the NCC Act, the Sreerag's appeal posits that the NCC Act contemplates gender-specific modes of training and education. Without the basic structure of the legislation being questioned, and no case that enrolment into the NCC should be made gender neutral, the judgment has "the effect of dissolving the classifications in the NCC based on gender", the appeal petition states. Any amendment to the NCC enrolment would have to done through an amendment by Parliament, it is stated. "The said direction in the impugned judgment amounts to directing...

Findings Dissolve Classifications In NCC Based On Gender: Intervenor Appeals Against Kerala High Court NCC Ruling Allowing Enrolment To Transpersons

Lydia Suzanne Thomas

"A trans-girl has no right to insist that she wants to participate in the NCC as a girl along with biological girls and not as a trans girl. Hence there was no necessity to declare the 1st Respondent is entitled to enrolment into the Girls' Wing of the NCC"

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