Kerala High Court
Kabeer C vs State Of Kerala on 17 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 17th day of November 2021 / 26th Karthika, 1943
WP(C) NO. 29247 OF 2019(S)
PETITIONER
KABEER C., AGED 33 YEARS,
S/O. SRAJU C., CHORAMPADATH HOUSE,
PAVUKKONAM POST, VANIYAMKULAM VIA,
PALAKKAD-679 522.
RESPONDENTS
1. STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF SOCIAL JUSTICE,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. DIRECTOR, DEPARTMENT OF SOCIAL JUSTICE,
THIRUVANANTHAPURAM-695 001.
3. SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
Writ Petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be pleased
to call for records from the respondents the action taken subsequent to the
Transgender Policy, 2015 for implementation of the policy objectives.
This petition again coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and this court's order dated
13/01/2020 and upon hearing the arguments of M/S KALEESWARAM RAJ, THULASI
K.RAJ, MAITREYI S.HEGDE & VARUN C.VIJAY, Advocates for the petitioner, STATE
ATTORNEY FOR R1 TO R3 and of SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER,
the court passed the following:
P.T.O.
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
-----------------------------------------------
W.P(C). No. 13930 of 2015 (S)
and
W.P(C). No. 29247 of 2019 (S)
----------------------------------------------
Dated this the 17th day of November, 2021
ORDER
S. Manikumar, CJ.
On 13.1.2020, considering the material on record and
statutory provisions of Section 2(a) of the Transgender Persons
(Protection of Rights) Act, 2019, we passed the following order:
"Writ petition No.13930 of 2015 has been filed with the following prayers:
"i) direct the first respondent to come forward with positive
steps to ameliorate the agony, fate and plight of
transgenders (third gender) in Kerala in accordance with
Ext.P2 judgment of the Hon'ble Supreme Court of India;
ii) direct the 2nd respondent to take urgent steps to take
census and collect details of transgenders (third genders) in
Kerala;
iii) direct the 3rd respondent to grant adequate financial aid
to State of Kerala to take steps to ameliorate the agony, fate
and plight of transgenders in Kerala;
iv) direct the first respondent to sanction as allowance an
amount of Rs.10,000/- each per month to every
transgenders (third genders) in Kerala;
v) direct the 2nd respondent to provide free education, food,
shelter, clothing and monetary allowance to the needy
W.P(C).13930/2015 & 29247/ 2019
transgenders (third genders) in Kerala;
vi) direct the 1st respondent to take further steps to
reserve seats in education institutions and public
employments to transgenders as directed by the Hon'ble
Supreme Court of India in Ext.P2 judgment."
2. Writ petition No.29247 of 2019 has been filed with the
following prayers:
"i) to declare that the petitioner and the transgenders in
general are entitled to reservation under the state for
employment under the state as well as to admission to
government educational institutions based on articles 14,
19 and 21 of the Constitution of India;
ii) to issue a writ of mandamus directing the respondents
to frame and implement a reservation policy in favour of
transgenders in both public employment and in
government educational institutions in the state of
Kerala."
3. Inviting attention of this court to the Transgender
Persons (Protection of Rights) Act, 2019 enacted by the Parliament,
Mr.K.V.Sohan, learned State Attorney submitted that steps are
being taken to prepare a database of transgenders in the State. It
is also submitted that after online registration, identity cards have
been issued to transgenders. Though sufficient steps have been
taken to create public awareness, only 600 transgenders are willing
to take identity cards.
4. Referring to the prayers sought for in W.P.
(C)13930/2015, Mr.Surin George Ipe, learned Senior Government
Pleader submitted that a policy decision has been taken and
supporting documents have been filed in W.P.(C)29247 of 2019.
He further submitted that prayer sought for has been addressed.
Therefore, sought for closure of the said writ petition.
5. Sri.Harish Vasudevan, learned Amicus Curiae has
W.P(C).13930/2015 & 29247/ 2019
submitted that Transgenders Welfare Board has been constituted.
He needs time to get details from the members of the Board as to
the modalities of implementation of welfare measures to
transgenders.
6. Referring to the judgment of the Supreme Court in
National Legal Services Authority v. Union of India and others
reported in (2014) 5 SCC 438, learned counsel for the petitioner in
W.P.(C)No.29247 of 2019 submitted that the Honourable Supreme
Court has directed that reservation should also be given to
transgenders. Learned State Attorney submitted that reservation is
being granted based on population of the particular community
and for this purpose, census is required to be taken.
7. As per Section 2(a) of the Transgender Persons
(Protection of Rights) Act, 2019, "appropriate Government" is
defined as hereunder:
(a) "appropriate Government" means, -
(i) in relation to the Central Government or any
establishment, wholly or substantially financed by that
Government, the Central Government;
(ii) in relation to a State Government or any
establishment, wholly or substantially financed by that
Government, or any local authority, the State
Government;
8. Both the State Government as well as the Central
Government are directed to submit the time line for formulation of
the rules for the protection of rights of transgender persons. It is
also directed to produce the details of the welfare measures
proposed and the proceedings issued, if any, by various
Departments in the matter of education, health, employment and in
W.P(C).13930/2015 & 29247/ 2019
any other area for the welfare of the transgenders.
9. State Government is directed to issue public notice
informing the transgenders about the process of online registration
so as to enable them to obtain the identity card. It is also directed
to take steps to conduct awareness camps about the welfare
measures available to the transgenders. Kerala State Legal Services
Authority is also directed to take steps to create public awareness
regarding the above online registration.
Post after two weeks."
2. Mr. Harish Vasudevan, learned Amicus Curiae has filed a
report explaining the need to implement the provisions of T ransgender
Persons (Protection of Rights) Act, 2019, in letter and spirit.
3. Report of the learned Amicus Curiae dated 5.12.2021 is reproduced:
"REPORT FILED BY THE AMICUS CURIAE APPOINTED BY THIS
HON'BLE COURT VIDE ORDER DATED 19.09.2019
1. The above-mentioned public interest litigation is filed by Late Adv
Basil Attippety with prayers interalia seeking directions to the 1 st
respondent to come forward with positive steps to ameliorate the
agony, fate and plight of transgenders (third gender) in Kerala in
accordance with Exhibit P2 judgment of the Hon'ble Supreme Court
of India. In this background, the following report is submitted.
Introduction
2. In India, the transgender community is incredibly diverse. In the
Indian subcontinent , the transgender community prefers to call
themselves Kinnar or Kinner, referring to the mythological beings
that excel at music and dance. Many transgenders live in well-
defined and organised transgender communities. These
communities have existed over generations of those who are in
W.P(C).13930/2015 & 29247/ 2019
abject poverty, rejected by, or flee, their family of origin. Many of
them work as sex workers for survival.
What challenges do transgender people face?
3. While the visibility of transgender people is increasing in popular
culture and daily life, they still face severe discrimination, stigma
and systemic inequality. Some of the specific issues facing the
transgender community are:
Lack of legal protection- After the dictum laid down by the
Hon'ble Apex Court in National Legal Services Authority Vs Union of
India & Ors reported in AIR 2014 SC 1863 steps have been taken by
various State Governments to include transgender people under
existing non-discrimination protections, however, there is still no
comprehensive non-discrimination law that includes gender identity.
Poverty- In too many cases, this lack of legal protection translates
into unemployment for transgender people. As anyone who has
experienced poverty or unemployment understands, being unable to
afford basic living necessities can result in homelessness or lead
people to engage in underground economies like drug sales or survival
sex work, which can put people at increased risk for violence and
arrest.
Harassment and stigma- The transgender community still faces
considerable stigma based on over a century of being characterized as
mentally ill, socially deviant and sexually predatory. While these
flawed views have faded in recent years for lesbians and gay men,
transgender people are still often met with ridicule from a society that
does not understand us. This stigma plays out in a variety of contexts -
W.P(C).13930/2015 & 29247/ 2019
leaving transgender community vulnerable to lawmakers who attempt
to leverage anti-transgender stigma to score cheap political points; to
family, friends or co-workers who reject transgender people upon
learning about our transgender identities; and to people who harass,
bully and commit serious violence against transgender people.
Barriers to healthcare-Beyond facing barriers to obtaining
medically-necessary health services and encountering medical
professionals who lacked transgender health care competency.
Identity Documents - The widespread lack of accurate identity
documents among transgender people can have an impact on every
area of their lives, including access to emergency housing or other
public services. To be clear, without identification, one cannot travel,
register for school or access many services that are essential to
function in society.
Judicial Interventions:
4. The Honorable Supreme Court in the matter of National Legal Service
Authority V. Union of India & Others reported in AIR 2014 SC 1863 laid
down a landmark decision and declared and laid down the following
dictums:
Hijara's, Eunuch apart from binary gender, to be treated as "third
gender" for the Part III of the Constitution and other laws. Direction
given to the Centre and State Governments to protect rights of people
coming under third gender.
Article 14 does not restrict the word person only to male or female.
Transgender persons also fall within the expression of 'person' and
W.P(C).13930/2015 & 29247/ 2019
hence, entitled to legal protection and equal civil and Citizenship
rights as enjoyed by any other citizen of the country.
International conventions not inconsistent with fundamental rights
and in harmony with its spirit must be read into those provisions, e.g.,
Art.14, Art.15, Art.19 and Art.21 to enlarge the meaning and content
thereof and to promote the object of constitutional guarantee --
Principles and International Conventions on transgender, which are
not inconsistent with various fundamental rights guaranteed under
Constitution, must be recognised and followed
Parliament has the power to make any law for implementing any
treaty, agreement or convention -- Hence, legislation is required for
implementing international conventions
There is no impediment in giving due recognition to gender identity
based on re assign sex after undergoing surgery -- A person has a
constitutional right to get recognition as male or female after SRS
(Sex Re Assignment Surgery)
Discrimination on the ground of 'sex' includes discrimination on the
ground of gender identity -- Expression 'sex' used in Art.15 and Art.16
is not limited to biological sex of male or female, but also includes
people who is neither male nor female.
Restriction cannot be put on one's personal appearance or choice of
dressing except as per restrictions contained in Art.19(2) of the
Constitution -- Gender identity will have to be protected under
Art.19(1)(a).
Self determination of gender is an integral part of personal autonomy
and self expression and falls under the category of personal liberty
W.P(C).13930/2015 & 29247/ 2019
guaranteed under Art.21 -- Hence, Hijras / Eunuchs have to be
considered as third gender under the Constitution and laws.
Expressions 'person', 'citizen' and 'sex' used in fundamental rights are
held to be "gender neutral" indicating human beings, which include
transgenders as well -- No citizen (including transgenders) can be
discriminated on the ground of gender identity.
5. The Division Bench of Honourable Kerala High Court in 2018 (3)
KHC 302 ; Tessy James V. Director General of Police and others laid
down that "Transgenders fall within the expression 'Person' and are
entitled to all rights recognized by law. Right to wander with like people,
cannot be compelled to be in parental home."
6. The Division Bench of Honorable Hon'ble Allahabad High Court (D.Y
Chandrachud, C.J, Narayan Shukla J) 2015 KHC 2765; Ashish Kumar
Mishra V. Bharath Sarkar laid down held about Transgenders right to
seek food security and to avail status of head of a household and laid
down that under National Food Security Act, 2013. . The Hon'ble Court
was pleased to hold that:
• "The Honorable Court laid down that Food security means no less
to a transgender than to other segments of society. Impoverishment
and marginalization have been endemic to the transgender
population. Preventing discrimination in all walks of life is one
facet of the right of transgenders to live in dignity, with the
confidence that they can lead their lives on their own terms in
realisation of gender identity. But the law needs to travel beyond
non discrimination, by recognising an affirmative obligation of the
State to provide access to social security. Food security lies at the
foundation of it. Transgenders must have both. The form which has
W.P(C).13930/2015 & 29247/ 2019
been prescribed by the State Government for submitting
applications under the Act contains an enumeration of several
items on which a disclosure of information has been sought from
the applicant. One of them requires a disclosure of the name of the
woman who is the head of the household. That however cannot be
read as an exclusion of a transgender to apply for the issuance of a
ration card and must be read in the context of serial number twelve
of the application form. Serial number twelve refers to the gender
of the applicant. In parathesis, the reference to gender is construed
to mean 'female / male / other'. The expression 'other' would
necessarily include a transgender. S.13 of the Act, may not have
specifically incorporated a provision that would be inclusive of a
head of a household as a transgender to apply for the issuance of a
ration card. The object and purpose of S.13 of the Act was to bring
about a sense of empowerment for women. The purpose of enacting
S.13 of the Act was to recognize the status of a woman in every
household and it was in that context that the statute has enacted
that the head of the household would be deemed to be eldest
woman member who is above the age of eighteen. The recognition
of the eldest woman as the head of the household is in
contradistinction to a male member since as we have already noted
above, sub-section (2) of S.13 of the Act enables a male member of
the household to be recognized as the head of the household onlyin
the absence of a woman or if the sole woman is below the age of
eighteen, until she attains the age of majority. The object and
purpose of S.13 of the Act in other words was not to exclude
transgenders though in view of the judgment of the Supreme Court
in National Legal Services Authority (supra) Parliament may, if we
W.P(C).13930/2015 & 29247/ 2019
may respectfully so say, consider the appropriateness of a suitable
provision to meet the situation. This is entirely within the purview
of the legislating body and a matter which lies in the province of
the enacting authority. The salutary public purpose, underlying the
enactment of S.13 of the Act can be furthered by incorporating a
situation where a transgender can be recognized as a head of an
eligible household."
STATE OF KERALA GOVERNMENT'S INITIATIVE
Transgender Policy 2015
7. In the year 2015, the Government of Kerala, Social Justice Department
has enacted a Transgender Policy. The said policy was enacted for the
proper implementation of the directions of the Honorable Supreme
Court in the National Legal Service Authorities case. The transgender
people face injustice at every turn: in their families and homes, school
systems that promise to shelter and educate, in harsh and exclusionary
workplaces, at the markets and shops, the hotel front desk, emergency
rooms, and at the hands of landlords, police officers, health care
workers and other service providers. 1 The state government has
formulated the transgender policy after conducting detailed survey.2
8. The Government of Kerala has formulated the Transgender Policy, 2015
to enforce the constitutional rights of the transgender, taking into
account the Supreme Court judgment in National Legal Service
Authorities case (2014) and findings of the Kerala State transgender
1 Transgender Policy, 2015
2 Transgender Survey 2014-2015.
W.P(C).13930/2015 & 29247/ 2019
survey. The policy covers all the categories of the transgenders,
including but not limited to Female to Male transgenders and Inter sex
people. This policy emphasizes the rights of the transgenders to self
identity as man, woman or transgenders as stated in the judgment.
9. GOALS AND OBJECTIVES OF THE TRANSGENDER POLICY
The transgender policy supports the attainment of :-
A just society where men, women and transgenders have equal rights
to access development opportunities, resources, and benefits;
The right to live with dignity and enjoy a life free from all forms of
violation;
The right to freedom of expression in all matters that affects them;
and
Right to equal voice and participation in key development decisions
that shape their lives, communities, and the state.
10.GOVERNMENT ORDERS PASSED FOR THE IMPLEMENTATION OF
THE TRANSGENDER POLICY
G.O(Rt) No 493/2015 (SJD) dated 03.08.2015
This Government Order aims for providing financial
assistance to those transgender students who have under
gone the Sex-Re Assignment Surgery. The government has
consolidated Rs.62,50,000/- for the same.
G.O (Rt) 396/2017 (SJD) dated 21.06.2017
W.P(C).13930/2015 & 29247/ 2019
This Government Order aims for providing driving training by
selecting five transgenders in each district for the better self-
employment opportunities. The government has consolidated
Rs.5,95,000/- for the same.
G.O (Rt) 596/2017 (SJD) dated 14.09.2017
This Government Order aims for providing training for the
employment skill development. The government has
consolidated Rs. 70 lakhs for the sustenance of the
transgenders who are facing great issues in the daily life.
G.O(Rt) No 25/2018 (S.J.D) dated 21.01.2018
This Government Order aims for including representatives of
transgenders community in the District Transgender Justice
Board.
G.O(Rt) No 86/2018(S.J.D) dated 20.02.2018
This Government Order aims for the formation of
Transgender Cell under the Directorate of Social Justice and
the government has consolidated Rs. 17,71,800 for the
same.G.O(Rt) No 145/2018 (S.J.D) dated 20.03.2018
This Government Order aims for providing educational
programme in tune with Samanwaya Continuing education
programme of the Kerala State Literacy Mission. The
government has consolidated Rs. 35,00,000/- for providing
scholarship to transgenders in 4 th std, 7th Std, 10th std, Higher
Secondary, providing shelter homes during the educational
period, training for employment.
W.P(C).13930/2015 & 29247/ 2019
G.O (Rt) 605/2018(SJD) dated 25.10.2018
This Government Order aims for providing financial
assistance for the legally married transgenders. The
government has consolidated Rs 30,000 each for ten
transgenders.
G.O(Rt) 652/2018(SJD) dated 14.11.2018
This Government Order aims for providing financial aid and
further treatment for the transgenders who have done Sex
Re-Assignment surgery. The government has consolidated
Rs.18,00,000/- for the same for a period of one year.
G.O(Rt) 658/2018(SJD) dated 15.11.2018
This Government Order aims for providing financial
assistance for self-employment of the transgenders and
consolidated Rs. 3,00,000/- for the same.
G.O(Rt) 388/2019(SJD) dated 28.06.2019
This Government Order aims for using the term
"Transgender" in the registry for addressing the transgender
community.
Recent Developments
ENACTMENT OF THE TRANSGENDER PERSON'S (PROTECTION OF
RIGHTS) ACT 2019
11.On 05.12.2019, the President of India gave assent and now the
Transgender Person's (Protection of Rights) Act, 2019 has come into
W.P(C).13930/2015 & 29247/ 2019
force. The Act aims to provide for protection of rights of transgender
persons and their welfare and for matters connected therewith and
incidental thereto.
12.As per Section 3 of the Transgender Person's (Protection of Rights) Act,
2019:
No person or establishment shall discriminate against a transgender
person on any of the following grounds, namely :-
(a) the denial, or discontinuation of, or unfair treatment in,
educational establishments and services thereof;
(b) the unfair treatment in, or in relation to, employment or
occupation;
(c) the denial of, or termination from, employment or occupation;
(d) the denial or discontinuation of, or unfair treatment in, healthcare
services;
(e) the denial or discontinuation of, or unfair treatment with regard
to, access to, or provision or enjoyment or use of any goods,
accommodation, service, facility, benefit, privilege or opportunity
dedicated to the use of the general public or customarily available to
the public;
(f) the denial or discontinuation of, or unfair treatment with regard
to the right of movement;
(g) the denial or discontinuation of, or unfair treatment with regard
to the right to reside, purchase, rent, or otherwise occupy any
property;
(h) the denial or discontinuation of, or unfair treatment in, the
opportunity to
W.P(C).13930/2015 & 29247/ 2019
stand for or hold public or private office; and
(i) the denial of access to, removal from, or unfair treatment in,
Government or private establishment in whose care or custody a
transgender person may be.3
RECOGNITION OF IDENTITY OF TRANSGENDER PERSONS
13.The Act aims to a mechanism for social, economic and educational
empowerment of transgender. Chapter III of the Act lays down about
Recognition of identity of transgender persons. The Transgender
Persons shall have the right to be recognized as such, in accordance with
the provisions of the Act and shall have a right to self-perceived gender
identity.4
14.The act lays down that transgender person may make an application to
the District Magistrate for issuing a certificate of identity as a
transgender person, in such form and manner, and accompanied with
such documents, as may be prescribed. In case of a minor child, such
application shall be made by a parent or guardian of such child and after
that the District Magistrate shall issue certificate of identity to the
applicant.5 Then the gender of transgender person shall be recorded in
all official documents and the certificate of identity issued by the District
Magistrate shall confer rights and be a proof of recognition of his
identity as a transgender person.
15.As per Section 7 of the Transgender Person's (Protection of Rights) Act,
2019, If a transgender person undergoes surgery to change gender
either as a male or female, such person may make an application, along
3 Section 3; Transgender Person's (Protection of Rights) Act, 2019
4 Section 4; Transgender Person's ( Protection of Rights) Act, 2019
5 Section 5; Transgender Person's (Protection of Rights) Act, 2019
W.P(C).13930/2015 & 29247/ 2019
with a certificate issued to that effect by the Medical Superintendent or
Chief Medical Officer of the medical institution in which that person has
undergone surgery, to the District Magistrate for revised certificate, in
such form and manner as may be prescribed. Then the District
Magistrate shall on receipt of an application along with the certificate
issued by the Medical Superintendent or Chief Medical Officer, and on
being satisfied with the correctness of such certificate, issue a certificate
indicating change in gender in such form and manner and within such
time, as may be prescribed.6 The change in gender and the issue of
revised certificate shall not affect the rights and entitlements of such
person.
WELFARE MEASURES TO BE ADOPTED BY THE GOVERNMENT
16. The Act lays down that the appropriate governments shall take steps to
secure full and effective participation of transgender persons and their
inclusion in society, protect the rights and interests of transgender
persons, and facilitate their access to welfare schemes framed by that
Government. The government is to take steps for the rescue, protection
and rehabilitation of transgender persons to address the needs of such
persons. The appropriate Government shall take appropriate measures
to promote and protect the right of transgender persons to participate
in cultural and recreational activities.
OBLIGATION OF ESTABLISHMENTS AND OTHER PERSONS
17.Section 9 of the Transgender Person's (Protection of Rights) Act, 2019
lays down that no establishment shall discriminate against any
transgender person in any matter relating to employment including, but
6 Section 7(2) Transgender Person's (Protection of Rights) Act, 2019
W.P(C).13930/2015 & 29247/ 2019
not limited to, recruitment, promotion and other related issues. Every
establishment shall designate a person to be a complaint officer to deal
with the complaints relating to violation of the provisions of the
Transgender Person's (Protection of Rights) Act, 2019. Moreover the act
lays down that no child shall be separated from parents or immediate
family on the ground of being a transgender, except on an order of a
competent court, in the interest of such child. Every transgender person
shall have a right to reside in the household where parent or immediate
family members reside; a right not to be excluded from such household
or any part thereof; and a right to enjoy and use the facilities of such
household in a non-discriminatory manner. 7 Where any parent or a
member of his immediate family is unable to take care of a transgender,
the competent court shall by an order direct such person to be placed in
rehabilitation centre.8
EDUCATION, SOCIAL SECURITY AND HEALTH OF TRANSGENDER
PERSONS
18.The act provides for the education, social security and health of the
transgender persons. Every educational institution funded or
recognised by the appropriate government shall provide inclusive
education and opportunities for sports, recreation and leisure activities
to transgender persons without discrimination on an equal basis with
others. It is the obligation of the educational institutions to provide
inclusive education to transgender persons.
19.As per Section 15 of the Act, The appropriate Government shall take the
7 Section 12; Transgender Person's ( Protection of Rights) Act, 2019
8 supra
W.P(C).13930/2015 & 29247/ 2019
following measures in relation to transgender persons, namely :-
(a) to set up separate human immunodeficiency virus Sero-
surveillance Centres to conduct sero-surveillance for such persons in
accordance with the guidelines issued by the National AIDS Control
Organisation in this behalf;
(b) to provide for medical care facility including sex reassignment
surgery and hormonal therapy;
(c) before and after sex reassignment surgery and hormonal therapy
counselling;
(d) bring out a Health Manual related to sex reassignment surgery in
accordance with the World Profession Association for Transgender
Health guidelines;
(e) review of medical curriculum and research for doctors to address
their specific health issues;
(f) to facilitate access to transgender persons in hospitals and other
healthcare
institutions and centres;
(g) provision for coverage of medical expenses by a comprehensive
insurance
scheme for Sex Reassignment Surgery, hormonal therapy, laser
therapy or any other health issues of transgender persons.
To the best of my knowledge, the objectives mentioned in Section 15 of the
Act are yet to be implemented by the State of Kerala.
NATIONAL COUNCIL FOR TRANSGENDER PERSONS
W.P(C).13930/2015 & 29247/ 2019
20.Chapter VII of the act deals with National Council for Transgender
Persons. The Central Government shall by notification constitute a
National Council for Transgender Persons to exercise the powers
conferred on, and to perform the functions assigned to it. As per Section
16 of the Transgender Person's (Protection of Rights) Act, 2019.
The National Council shall consist of
(a) the Union Minister in-charge of the Ministry of Social Justice and
Empowerment, Chairperson, ex officio;
(b) the Minister of State, in-charge of the Ministry of Social Justice and
Empowerment in the Government, Vice-Chairperson, ex officio;
(c) Secretary to the Government of India in-charge of the Ministry of
Social
Justice and Empowerment, Member, ex officio;
(d) one representative each from the Ministries of Health and Family
Welfare, Home Affairs, Housing and Urban Affairs, Minority Affairs,
Human Resources Development, Rural Development, Labour and
Employment and Departments of Legal Affairs, Pensions and
Pensioners Welfare and National Institute for Transforming India
Aayog, not below the rank of Joint Secretaries to the Government of
India, Members, ex officio;
(e) one representative each from the National Human Rights
Commission and National Commission for Women, not below the rank
of Joint Secretaries to the Government of India, Members, ex officio;
(f) representatives of the State Governments and Union territories by
rotation, one each from the North, South, East, West and North-East
regions, to be nominated by the Central Government, Members, ex
officio;
(g) five representatives of transgender community, by rotation, from
W.P(C).13930/2015 & 29247/ 2019
the State Governments and Union territories, one each from the North,
South, East, West and North-East regions, to be nominated by the
Central Government, Members;
(h) five experts, to represent non-governmental organisations or
associations, working for the welfare of transgender persons, to be
nominated by the Central Government, Members; and
(i) Joint Secretary to the Government of India in the Ministry of Social
Justice and Empowerment dealing with the welfare of the transgender
persons, Member Secretary, ex officio.
FUNCTIONS OF THE NATIONAL COUNCIL FOR TRANSGENDER
PERSONS
The Act enlists various functions of the National Council for Transgender
Persons. They are
(a) to advise the Central Government on the formulation of policies,
programmes,
legislation and projects with respect to transgender persons;
(b) to monitor and evaluate the impact of policies and programmes designed
for
achieving equality and full participation of transgender persons;
(c) to review and coordinate the activities of all the departments of
Government and other Governmental and non-Governmental Organizations
which are dealing with matters relating to transgender persons;
(d) to redress the grievances of transgender persons; and
(e) to perform such other functions as may be prescribed by the Central
Government.
OFFENCES AND PENALTIES
The act lays down various penalties for the offences against the
transgender persons. Whoever,--
W.P(C).13930/2015 & 29247/ 2019
(a) compels or entices a transgender person to indulge in the act of forced
or
bonded labour other than any compulsory service for public purposes
imposed by
Government;
(b) denies a transgender person the right of passage to a public place or
obstructs
such person from using or having access to a public place to which other
members
have access to or a right to use;
(c) forces or causes a transgender person to leave household, village or
other
place of residence; and
(d) harms or injures or endangers the life, safety, health or well-being,
whether mental or physical, of a transgender person or tends to do acts
including causing physical abuse, sexual abuse, verbal and emotional abuse
and economic abuse, shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to two years
and with fine.9
GRANTS BY CENTRAL GOVERNMENT AND RULE MAKING POWER
The Central Government shall, from time to time, after due appropriation
made by Parliament by law in this behalf, credit such sums to the National
Council as may be necessary for carrying out the purposes of this Act. The
appropriate Government may, subject to the condition of previous
publication, by notification, make rules for carrying out the provisions of
this Act.10
9 Section 18, The Transgender Person'(Protection of Rights Act) 2019
10 Section 22, The Transgender Person's (Protection of Rights Act) 2019.
W.P(C).13930/2015 & 29247/ 2019
Factual Scenario on discussion with transgenders
21. Upon my preliminary enquiry with members of District Transgender
Justice Boards and State Board, it is found that the welfare schemes
provided by the State are not adequate to meet the demands. According to
the Board Members, sufficient budgetary allocation is not made to provide
financial assistance to transgenders through various welfare schemes
already declared. The meeting of the District Boards and State Board is
also not being conducted regularly to meet the purpose of the same. It is
learned that, in the year 2020, no single meeting is conducted by the State
Transgender Justice Board. No proper publicity is given by the State
regarding the rights of the transgenders and the process of obtaining
identity cards, in compliance with the Interim Order dated 13.01.2020 of
this Hon'ble Court. Basic sanitation facilities are not provided in public
spaces or institutions.
Preliminary Suggestions:
22. The following suggestions are put to the consideration of this
Hon'ble Court
Proper census of transgenders has to be completed within a
stipulated time frame.
Identity Card shall be issued to all transgenders through
proper online registration by giving enough public awareness
for the said process.
Proper gender awareness shall be conducted in the grass root
level to avoid gender inequality from the public.
Proper empowerment and capacity building mechanism has
W.P(C).13930/2015 & 29247/ 2019
to be provided in the District level for the effective upliftment
of transgenders.
The fair, effective functioning of Rehabilitation Centre at
District level shall be continuously monitored by each District
Collectors.
Separate sanitation facilities shall be provided in all public
institutions to meet their requirement.
Regular meetings of District Transgender Justice Boards and
State Board shall be conducted so as to meet the purpose of
such boards.
Sufficient fund allocation for the proper implementation of
the provisions of Transgender Person's (Protection of Rights)
Act 2019 shall be made in the budget."
4. That apart, Under Secretary, Social Justice (B) Department,
Government Secretariat, Thiruvananthapuram, representing respondent
No.1 has filed a counter affidavit setting out the steps taken.
5. On behalf of Secretary to Government of India, Department of
Social Justice and Empowerment/3rd respondent, the learned Central
Government Counsel has filed a statement, which reads thus:
2. It is respectfully submitted that Ext P2 judgment of the
Apex Court of the land directs that Hijaras, Eunuchs, apart
from binary gender, be treated as "third gender" for the
purpose of safe guarding their rights under Part IIl of our
constitution and the laws made by the Parliament and the
State Legislature as contained in Paragraphs 135.1 to 135.9
thereto .
W.P(C).13930/2015 & 29247/ 2019
3. Further in the paragraphs 136 of Ext P2 the apex court
directs that the Expert Committee, which has already been
constituted, to make an in depth study of the problems faced
by Hijaras and Eunuchs within six months. Accordingly the
orders of the Honourable Supreme Court were to be
implemented by the 14th October, 2014.
4. However, the 3rd respondent has filed a petition in the
said Writ Petition on 8.9.2014 seeking further clarifications in
Ext P2 judgment with regard to definition of transgender and
their inclusion in OBC category. This matter is presently
subjudice.
5. In this regard it is also informed that an Expert Committee
was constituted under the chairmanship of Additional
Secretary (SJE) to make an in-depth study of the problems
being faced by the Transgender Community. The Committee
submitted its report on 27th January 2014.
6 The Government has accepted the definition given by
Expert Committee that "the transgender persons are those
persons whose own sense of gender does not match with the
gender assigned to to them at birth. They will include trans-
women trans-men and (whether or not they have undergone
sex reassienment Surgery or hormonal treatment or laser
therapy, etc.), gender queers and a numbeer of socio cultural
identities, such as kinnars, Hijaras, aravanis, jogtas etc."
Accordingly in view of the 3 respondent. Lesbian, Gay and
Bisexual persons may not be included in the included in the
category of transgender persons.
7. The key recommendations of the report of the Expert
Committee are as follows:
i. Transgender should be declared as the third gender, and a
transgender person should have the option to choose either
W.P(C).13930/2015 & 29247/ 2019
'man', 'woman' or 'transgender as well have the right to
choose any of the options independent of surgery/ hormones.
Only the nomenclature "transgender' should be used and
nomenclatures like 'other or 'others' should not be used.
ii. An Umbrella Scheme for transgender persons may be
formulated for empowermentof this community.
iii. To cope up with trauma and violence crisis counselling
services could be set on the model of Rape and Crisis
Intervention Centres.
iv. Criminal and disciplinary action against delinquent
police officials in cases of violation of human rights of
transgender persons
v. Government should provide scholarships/entitlements,
fee waiver, free textbooks, free hostel accommodation and
other facilities at subsidized rates for students belonging to
this group.
vi. Generate more data/information to identify and
understand the problems related to various aspects to their
life and help frame policies through research and academic
program.
vii. A National Council for Transgender persons may be
considered on similar lines as that of the National Councils for
Senior Citizens.
vii. To carry out survey for ascertaining their population in
the country.
8. The Central Ministries concerned and the State/Union Territory
the Governnments are being consulted for their views on the
recommendations made by the Expert Committee. An Inter-
Ministerial Committee has also been formulated to co-ordinate
W.P(C).13930/2015 & 29247/ 2019
between the Central Ministries about the progress of activities
pertaining to transgender persons. As of 26.05.2015, four Inter
Ministerial Committee meetings have been held in the matter.
9. The third respondent is in the process of formulation of an
Umbrella Scheme for welfare of the transgender persons. The
Scheme would be comprehensive and focus on socio-economic
and educational empowerment of transgender persons. The
Scheme would be launched after clarification is received from the
Supreme Court in the application filed by this ministry on
8.9.2014"
6. Added further, the learned Amicus Curiae submitted that
though the Government, in their counter affidavit has stated that
adequate steps have been taken for implementation of the Transgender
Persons (Protection of Rights) Act, 2019, according to him, the same
are only in paper and that provisions of the Act, as well as the judgment
of the Supreme Court in National Legal Services Authority v. Union of
India and others reported in [(2014) 5 SCC 438] have not been
implemented in letter and spirit. It is the further contention of learned
Amicus Curiae that though State Board and District Boards have been
constituted, there is no meeting of the said Boards.
7. Mr. K.R. Ranjith, learned Government Pleader appearing for
respondents 1 and 2 submitted that the District Collectors have been
empowered to register transgenders by online process.
W.P(C).13930/2015 & 29247/ 2019
8. As the matter was listed way back in January, 2020, he
requested time to get suitable instructions from respondents 1 and 2 as
regards online registration and also the steps taken to conduct
awareness camps for the welfare measures available to transgenders.
9. In the order dated 13.1.2020, we have already directed the
Legal Services Authority to take steps to create public awareness
regarding online registration and in order to have effective adjudication
of the issues. Therefore, we deem it fit to suo motu implead the
Member Secretary, Kerala State Legal Services Authority,
Niyamasahaya Bhavan, High Court Complex, Ernakulam, as additional
respondent No.4 in W.P(C).No.13930 of 2015. Registry is directed to
make necessary amendments wherever required. Registry is also
directed to serve the entire papers on the Member Secretary, Kerala
State Legal Sevices Authority.
10. Member Secretary, Kerala State Legal Services Authority is
directed to submit details of the steps taken for the welfare of
transgenders, as well as implementation of the decision of Hon'ble
Supreme Court in National Legal Services Authority v. Union of India
and others (supra).
11. Learned Senior Government Pleader is directed to file a
detailed consolidated statement on all issues raised, as well as the
W.P(C).13930/2015 & 29247/ 2019
stage of online registration.
Post the matter on 29.11.2021.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
17-11-2021 /True Copy/ Assistant Registrar
