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2014 Supreme(Mad) 888
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. Nagamuthu, J.
Nangai
Versus
Superintendent of Police, Karur District, Karur and Others
W.P. No. 587 of 2014 and M.P. Nos. 1 and 2 of 2014
Decided On : 17 April 2014
Ms. Kiruba Munusamy, for Petitioner P.H. Arvind Pandian, Additional Advocate General, Assisted by R. Rajeswaran, Special Government Pleader, for Respondents K.M. Vijayan, Senior Counsel, P. Wilson, Senior Counsel/Addl. Solicitor General of India, for Amicus Curiae
The legal framework applied by the court recognized the petitioner's female identity and eligibility for appointment as a Woman Police Constable, based on the absence of a legal definition for the terms 'male' and 'female' in various enactments and the recent judgment by the Hon’ble Supreme Court in National Legal Services Authority v. Union of India and Others.
Headnote:
Sex and Gender - Transsexual - The Registration of Births and Deaths Act, 1969 - The Hindu Minority and Guardianship Act, 1956 - The Pre-Conception and Pre-Natal Diagnostics Techniques Act, 1994 - The Prohibition of Child Marriage Act, 2006 - The Right of Children to Free and Compulsory Education Act, 2009 - The Hindu Succession Act, 1956 - The Indian Penal Code 1860 - General Clauses Act, 1897 - National Legal Services Authority v. Union of India and Others - [Article 14, 15, 16, 19, 21] - The court discussed the legal status of the petitioner's sex, the absence of a legal definition for the terms 'male' and 'female' in various enactments, and the recognition of transsexuals as a third gender. The court highlighted the recent judgment by the Hon’ble Supreme Court in National Legal Services Authority v. Union of India and Others, which declared the rights of transgenders under Articles 14, 15, 16, 19(1)(a), and 21 of the Constitution of India. The court held that the petitioner, born and recognized as a female, should be treated as a female for all purposes and is eligible for appointment as a Woman Police Constable. The court also set aside the impugned order of termination from service and directed the respondents to issue a consequential order permitting the petitioner to join duty as Grade II Police Constable (Woman) with continuity of service.
Fact of the Case:
The petitioner, born and recognized as a female, was terminated from service by the police department after being declared a transsexual by medical examination. The petitioner challenged the termination, asserting her female identity and seeking reinstatement.
Finding of the Court:
The court found that the petitioner, born and recognized as a female, should be treated as a female for all purposes and is eligible for appointment as a Woman Police Constable. The court set aside the impugned order of termination from service and directed the respondents to issue a consequential order permitting the petitioner to join duty as Grade II Police Constable (Woman) with continuity of service.
Issues: The core questions considered by the court were whether the petitioner is a 'female' and eligible for appointment as a 'Woman Police Constable', and whether the termination of the petitioner from service on the ground that she is a transsexual is sustainable.
Ratio Decidendi: The court held that the absence of a legal definition for the terms 'male' and 'female' in various enactments, and the recent judgment by the Hon’ble Supreme Court in National Legal Services Authority v. Union of India and Others, which declared the rights of transgenders under Articles 14, 15, 16, 19(1)(a), and 21 of the Constitution of India, supported the recognition of the petitioner as a female and her eligibility for appointment as a Woman Police Constable.
Final Decision: The writ petition was allowed, and the impugned order of termination from service was set aside. The respondents were directed to issue a consequential order permitting the petitioner to join duty as Grade II Police Constable (Woman) with continuity of service.
1. What is ‘Sex’ and ‘Gender’? In the Indian context, “who is a ‘male’ and who is a ‘female’?” Is it a sin to be born as a ‘Transsexual’?” “Would it not be violative of Articles 14 , 15 , 16 , 19 and 21 of the Constitution of India to deny employment to a transsexual?” The petitioner herein identifies herself as a female. But, the police department has terminated her from service by labelling her as a “Transgender”.
2. Before proceeding further, let me caution myself that anything said in this order should not have, even remotely, a semblance of tendency to hurt the feelings and sentiments of the transsexuals. I make it clear that every observation made and every conclusion arrived at in this order is only for the limited purpose of deciding the issues involved in this writ petition. This is neither a research paper nor a thesis concerning all the issues of the transsexuals. This order is confined only to the legal status of the petitioner’s sex.
3. None, at the time of the birth of the petitioner as a female child, would have anticipated that after 24 years she would be discarded and humiliated by labelling her of a different sex. She was born on 26.08.1989 in a private Hospital in Ariyalur District. In the contemporaneous medical records, it was recorded that she was a female child. In the Birth Register, her birth was registered on 29.08.1989 as a female under the provisions of “The Registration of Births and Deaths Act, 1969”. She was named after a female. She was recorded as a female in the family card, census record and in all the other Government records. She joined a Girl’s Elementary School, then in a Girl’s Higher Secondary School and lastly in a Women’s College. In all the records in the Schools, College and the University, she was recorded as a female. She was known and fully recognized by the society as a female. Her gait, get-up, gesture and demeanour were all that of a female. The society did not doubt her sex at all. She actively participated in sports activities for women. She won a number of medals and prizes in various sports events as detailed below:
Sl. No. Name of the Sport(s) Event Level/Sports event held at Organised by/Represented Place/position secured
1 Volley Ball Inter - University, All India South Zone Volley Ball Tournament, 2007 at Vijayawada Represented Bharathidasan University Participated
2 Shot Put 22nd Tamil Nadu Junior State Athletic Championship 2008 held at Ariyalur Organised by Perambalur District Athletic Association First
3 Net Ball (Women) All India Inter-University Tournament held at Punjabi University, Patiala Association of Indian Universities Third
4 Volley Ball South West Zone Tournament held at Kannur Represented Bharathidasan University Participated
5 Athletics All India Tournament held at Kottayam Represented Bharathidasan University Participated
6 Shot Put Kings 24th Tamil Nadu Junior Inter District Athletic Championship 2009 Thanjavur District Athletic Association Second
7 Javelin Throw Dual Athletic Meet 2009 held at Chennai Chennai District Athletic Association and Sri Lanka Athletic Association First
8 Javelin Throw Athletic Meet 2009 held at University of Madras Association of Indian Universities Second
9 Athletics -- Sports Development Authority of Tamil Nadu [SDAT] Best Sports Person [District Level] for the year 2010 Award
10 Athletics XXXV National Sports Festival for Women Group III, held at Chennai - Represented State of Tamil Nadu Sports Development Authority of Tamil Nadu Participated
11 Shot Put 83rd Tamil Nadu State Senior Athletic Championship held at Chennai Tamil Nadu Athletic Association Second
12 Javelin Throw 83rd Tamil Nadu State Senior Athletic Championship held at Chennai Tamil Nadu Athletic Association Second
13 Shot Put Inter Collegiate Athelitic Meet, 2010-2011 held at Dr.Sivanthi Aditanar College of Physical Education Tamil Nadu Physical Education and Sports University, Chennai First
4. In the year 2010, she came out of the College with flying colours as a Gr
