Source: Madras High Court

Why in News?

The Madras High Court in matter of R Anushri v. The Secretary TNPSC and Others directed the Tamil Nadu government to establish separate criteria for transgender individuals in employment and education, criticizing the state's continued confusion in categorizing transgender individuals.

• The court ruled in favor of a transwoman who was denied certificate verification despite qualifying, emphasizing the need to recognize transgender individuals as a special category and provide them with equitable opportunities.
• This decision highlights the ongoing struggle for inclusion and recognition of transgender rights in India.

What was the Background of R Anushri v. The Secretary TNPSC and Others?

• R Anushri (Petitioner) a transwoman, completed SSLC in 2005-2006, higher secondary in 2007-2008, and Engineering in Computer Science in 2012.
• The Tamil Nadu Public Service Commission (TNPSC) issued Notification No. 10/2017 on 27/4/2017 for the Combined Civil Service Examination for the year 2017-2018, inviting applications for non-interview Post group -II A services.
• The petitioner appeared for the written examination and scored 121.5 marks, exceeding the qualifying cut-off of 90 marks for all categories, but was placed at 69325th rank under communal ranking.
• Despite scoring above the cut-off, the petitioner was not considered for certificate verification. Others with lower scores were allowed to proceed.
• The petitioner approached the court seeking a Certiorarified Mandamus (Article 226 of Constitution of India, 1950) to review her exclusion and demand inclusion for certificate verification.
• TNPSC (Respondent) argued that they followed government rules and guidelines, treating the petitioner as part of the Scheduled Caste category since she identified as a transgender under that category.
  • Since she didn't meet the cut-off for that category, she was excluded from verification.

What were the Court’s Observations?

• The Madras High Court, led by Justice Bhavani Subbaroyan, directed the state government to establish specific criteria for the employment and education of transgender individuals.
• Transgender persons should be treated as a distinct special category, separate from the male or female categorization, and entitled to the same considerations as other specially recognized groups.
• Despite previous notifications from the government, confusion persists regarding the placement of transgender individuals, who are often categorized under existing gender norms.
• In response to a case where a transwoman sought inclusion in the Combined Civil Service Examination, the court criticized the failure to acknowledge transgender individuals as a separate category in notifications, emphasizing the necessity of extending equal opportunities to them.
• The court referenced the NALSA v. UOI, 2014 judgment, highlighting that while transgender individuals are entitled to benefits similar to socially and educationally backward classes, they should not be assigned to such categories, as it contradicts the directives of the Apex Court.
• The Tamil Nadu Public Service Commission (TNPSC) was mandated by the court to allow the petitioner to proceed with document uploading for certificate verification, underscoring the importance of providing transgender individuals with equitable opportunities for societal integration and well-being.

What is Transgender Community?

• The transgender community is a diverse group of individuals whose gender identity differs from the sex they were assigned at birth.
• Gender identity refers to a person's internal sense of their own gender, which may be male, female, a combination of both, or neither (non-binary).
• It's important to recognize that transgender people are a diverse group with varied experiences, identities, and backgrounds.
• They face unique challenges related to societal stigma, discrimination, and access to healthcare, among other issues.

What is Section 377 of Indian Penal Code 1860 (IPC)?

• Section 377 of the Indian Penal Code 1860, a relic of British India, states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”.
• This included private consensual sex between adults of same sex.
• After the recent SC judgment, provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.

Which Act Govern Transgender Persons?

• Transgender Persons Act, 2019:
  • The Act defines a transgender person as one whose gender does not match the gender assigned at birth. It includes transmen and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.

What are the Rulings for safeguarding LGBTQIA+ Rights?

• Naz Foundation & Ors., v. Government of NCT of Delhi (2009)
  • The Naz Foundation is a trust which filed a case questioning the validity of Section 377 of the Indian Penal Code, 1860 (IPC).
  • The Delhi High Court in the year 2009 stated that consensual sexual intercourse between two adults is valid in the eyes of the law.
    • Any punishment for such act would be violative Article 21 of the Constitution of India and Article 14.
• Suresh Kumar Kaushal v. Union of India (2013)
  • The court in 2013 reversed the judgment in the Naz Foundation case.
  • The bench opined that the court cannot decriminalize homosexuality, Parliament by law has the power to do so.
• National Legal Services Authority v. Union of India (2014)
  • The Apex Court recognized the right to self-identification and legal recognition of gender identity for LGBTQ+.
• Navtej Singh Johar v. Union of India (2018)
  • On 6^th September 2018, a five-judge bench of Chief Justice of India (CJI) Dipak Misra, Justices Rohington Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra partially decriminalized Section 377 of the IPC.
    • Section 377 of IPC criminalizes Unnatural Offences.
  • The provision was decriminalized to the extent it was criminalizing homosexual relations.
  • The bench found it violative of freedom of expression under Article 19(1)(a) and right to life and personal liberty under Article 21 of the Constitution of India, 1950.
• Shafin Jahan v. K.M. Asokan (2018)
  • The Apex Court in this case held that the validity of the marriage cannot be decided by the court of law in the case of major individuals.
  • The right to marry is not expressly mentioned under the Constitution of India but its interpretation can be guided by Article 21 which provides for the right to life and personal liberty.