With the Supreme Court conferring legal status to members of third sex as 'transgenders,' the Madras High Court asked the Tamil Nadu government to let a person called as a transgender after medical examination continue in service as a woman police constable. Justice S Nagamuthu stated that it was a serious violation of fundamental rights if an individual was forced to undergo medical examination and medically declare her/him, as a ‘transgender’. He stated that if an individual who has been recognized all through as a female were forced to undergo medical examination so as to declare her as a transsexual, it would be a gross violation of the right to privacy.The Judge had requested the services of senior advocate K M Vijayan, and additional solicitor-general of India and senior advocate P Wilson to act as amicus curiae and help the court.
Last year a woman, who was terminated from the Tamil Nadu police service after a medical examination report declared her a ‘transsexual,’ is set to get the job back after Madras High Court passed the order. The Court who allowed the petition challenging the termination, declared the Petitioner as a female for all purposes and said has right to preserve such sexual/gender identity. Justice S. Nagamuthu, while aside the termination order, directed the police that within six weeks the consequential order be issued andallowed her to join duty as a Grade II Police Constable (woman) with continuity of service. He held that the Petitioner was a female in the legal parlance and thus she was eligible for appointment as a woman police constable, considering that the Petitioner was born as a female, recognized by the society as a female, she chose to identity herself as a female for all purposes. The Court opined that the Petitioner was free to choose a different sexual/gender identity as a third gender in future based on the medical declaration, if a law was put in place recognizing female to males (FTMs) as a third gender.
Mr. Justice Nagamuthu said neither there was any law prescribing the mode to determine the sex, nor was any classification in any law as third sex (transsexuals.). While applying the laws if these transsexuals were not treated either as males or females, they would be reduced to animals. He said even for animals there was a Wildlife Protection Act. According to the Judge the Supreme Court’s judgment in NALSA case on April 15 did not deal with other categories of transsexuals such as FTMs and it was concerned only with transgenders who were males to females (MTFs). Even after the Supreme Court judgment, FTMs were to be classified as male or female so that they enjoyed the fundamental rights.
On January 18, 2011, the Petitioner was appointed as a Grade II constable in Karur district. When all the selected woman constables were sent for a medical check-up, the medical officer made a remark in the Petitioner’s outpatient slip as ‘Transgender.’ According to the chromosome test, the Petitioner was a “transgender by birth.” She was terminated from service on April 8 last year. Failure to reveal that she was a 'transgender' and availing herself of the reservation benefits meant only for women, led to her termination from service. Also cited as reasons for her removal was her absence from training owing to the continuous medical tests.
Criticizing the authorities for having undertaken an investigation into her sexuality, Justice Nagamuthu said treating the Petitioner as not a female on the basis of medical declaration that she was a transsexual and compelling her to accept the said sexual identity would surely be aviolation of the rights guaranteed in the Constitution. The Judge pointed out that the Petitioner had declared her gender identity only as 'female' excluding the declaration made by the medical community that she was a transgender. He stated that the government should recognize her sexual identity as female by birth, and recognized by society and her own self-identity as female.
Justice Nagamuthu then declared that the Petitioner should be treated as a female for all purposes such as employment and property rights, and said such identification by the individual as third gender will not be favorable to her unless laws were made recognizing this female-to-male (FTM) as third genders providing certain special rights. The judge stated that in the absence of suitable legislation to protect their interests, such people would be treated by the legal community only by the sexual identity given to them by birth and recognized by the society, regardless of the medical, psychological, genetic and other scientific communities.Justice Nagamuthu further stated that the same standard should be applied on everyone for entry of sex details in birth register, for employment and election if the Petitioner’s sexuality was to be decided only on the basis of medical examination. He stated that no Court in his knowledge had ever sent any individual for medical examination to decide the sex of the said individual.