This article is written by R Sai Gayatri from Post Graduate College of Law, Osmania University. This article gives a detailed analysis of the Hina Haneefa case along with the plight of the transgender community in India. 

Introduction 

In ancient Indian times, there was no social stigma practised against transgenders. The epics such as Ramayan and Mahabharat provide various instances of ‘third-gender’ persons who carried out significant roles and were given due respect in the society just like cis-gendered persons. This proves that during ancient and medieval times transgenders were treated normally just like the other people in society. The advent of Britishers in India drastically affected the normalcy of transgenders as they were starting to get labelled as “criminals” under the Criminal Tribes Act, 1871. As a result, the term transgender was established as a taboo in society and transgenders have been subjected to abuses of various kinds ever since. They have to struggle to claim their rights even in the present day. One such case where a transgender woman has been denied an opportunity based on her gender is the Hina Haneefa case. In this article, we will discuss in detail the said case. 

‘Transgender’ – a brief understanding 

In the most basic sense, transgenders are those individuals who identify themselves as ‘third-gender’ not adhering to the stereotypically established genders i.e, male or female. They can be of any sex and age where their behaviour, characteristics, etc are not the same as per the norms of the society. The transgender community includes hijras, eunuchs, aravanis, shiv-shaktis, etc. 

In the present day, it is considered taboo to even utter the word ‘transgender’ in Indian society. However, the history of India shows that the transgender community is not something new, it has been recognized as an equal part of society since ancient times. On that note, India is a country where even talking about menstruation raises eyebrows and silent frowns. When it comes to taboos, the concept of “ignorance is bliss” is established quite well in Indian society. 

Transgenders and the Indian Constitution

The Indian Constitution envisages various rights for the welfare of the transgender community in India. The following are the rights ensured under the Indian Constitution:

• Article 14 – Right to equality.
• Article 15 – Right against discrimination based on reasons such as sex, race, place of birth, caste and religion.
• Article 21 – Right to personal life and liberty (also covers the right to privacy).
• Article 23 – Prohibition of trafficking in human beings as ‘begar’ and other similar kinds of forced labour. 

The Preamble to the Indian Constitution makes it imperative to have equal social, economic and political status. It can be said that the Constitution facilitates equality among all and restricts any kind of discrimination on the grounds of gender. The Indian Constitution does not label persons according to their gender identity and so its rights and prohibitions are available and applied to all citizens and in some cases even the non-citizens of India. Therefore, the rights of the transgender community are upheld by the Indian Constitution irrespective of their gender preference or identity.

Problems faced by transgenders in India

The issues faced by transgenders primarily revolve around discrimination, homelessness, no education, unemployment, marriage, lack of medical infrastructure, etc. but are not limited to these. These are the most basic societal requirements that are provided with no hindrance to the male and female genders, however, when it comes to transgenders, they are denied or shunned away for claiming them. Where every little step for the development of the third gender has been manipulated into a huge issue by societal norms, it seems difficult to view India as a safe country for transgenders. People find it very convenient to mock and tease others by using terms such as hijra, eunuch, transgender and so on. 

In most cases, if a person identifies themselves as the third gender then they are subjected to various kinds of criticism and discrimination. They are considered a disgrace to the family for not adhering to the established stereotypical gender norms. As a result, most transgenders are cut off from the family forcefully and are even thrown out of the house. This creates a problem for the inheritance of property as transgenders are no longer considered a part of the family they were born in and the parents are reluctant to hand over their property to such individuals.

India is a country where unemployment is rampant. One needs to satisfy certain requirements to be employed and the most important being educational qualification. Even in these modern times most of the rural community (which constitutes the major part of the Indian population) considers it useless to educate the girl child. This represents how insignificant it must be for the same Indian society to provide transgenders with a good education. If there is no education there will certainly be unemployment. Being unemployed and having no proper medium to feed and look after themselves, transgenders are forced to enter prostitution for their survival. This does not just pose a threat to their health but also ridicules their identity even more in society. 

Going through so much oppression, ridicule, discrimination and criticism just for being oneself is not an easy task, thus resulting in mental health problems such as depression, suicidal thoughts or other violence-based stress. The transgender community faces discrimination in simple situations such as entering public places. Also, there are no proper gender-neutral toilets for them to access in public places. Accruing the right and consistent documents for identification purposes has always been a herculean task for the transgender community. Transgenders are also often subjected to gender-related violence such as sexual abuse, exploitation and rape. 

National Legal Services Authority v. Union of India (2014)

Facts of the case

Under the Legal Services Authority Act of 1987, a statutory body by the name National Legal Services Authority was constituted. The said authority is commonly known as NALSA. This case goes back to the year 2012 when a writ petition was brought before the Supreme Court to provide legal recognition and representation to the transgender community of India. This was further followed by two more writ petitions from an NGO by the name Poojya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan Tripathi who recognized themselves as a ‘hijra’. It was stated that the fundamental rights guaranteed by the Indian Constitution under Article 14 and Article 21 were being denied to the transgender community. As a result, the apex court decided to hear the matter.

Issues before the court 

The series of writ petitions filed by the above-mentioned parties had two common points i.e, gender identity and the need to safeguard the rights of transgenders through legal measures. However, the questions put forward by the petitioners were as follows:

• Whether a person, who is born male but has a female orientation has the right to be identified as a female or vice-versa?
• Whether an individual who undergoes a sex reassignment surgery shall have the right to be identified by their desired gender?
• Whether an individual who does not identify either as a male or a female has the right to be categorized as the third gender?

Judgment of the case 

A two-judge bench composed of Justice K.S. Radhakrishnan and Justice A.K. Sikri stated that the freedom to identify oneself as the third gender is an intrinsic part of freedom of expression guaranteed by the Indian Constitution under Article 19. The Apex Court further directed the Central and State governments to provide legal recognition to the third gender, so that they may identify themselves as male, female or third gender. The Court requested the government to take the necessary actions for providing equal legal protection and health safety programmes to the third gender community. It also urged the government to make efforts for eradicating the taboo revolving around the concept of the third gender.

Based on the ideology of the Indian Constitution that everyone is equal before the law, the Supreme Court stated that the third gender shall also have equal legal recognition. The court allowed the self-recognition of one’s gender. It further held that complete recognition must be given to the third gender even in the absence of a statutory basis. The NALSA judgement was more like a weapon that gave the third gender community the power to stop the discrimination and social injustice caused to them for many decades. 

Transgender Persons Bill, 2016

The Transgender Persons Bill of 2016 marked as a landmark bill to improve the condition of transgenders in India by providing them with the protection of the law.

The features of the said bill are as follows –

1. As per the judgement of the apex court in the preceding case, the above-mentioned bill provides recognition to the ‘third gender’ as per the law.
2. The bill further recognizes a transgender as a person who is neither fully female nor fully male or a combination of both binary genders or neither of them. Also, the said person’s gender must not be the same as the gender assigned to them at birth. The third gender includes transmen, transwomen, gender-queers and individuals with intersex variations.
3. As per the bill, the individuals belonging to the third gender must procure identity proof provided by the District Magistrate as per the recommendations of a screening committee comprising of one transgender, medical experts and government officials.
4. The said bill prohibits all kinds of discrimination faced by transgenders. This is in sync with the provisions of the Indian Constitution prohibiting discrimination on grounds of gender. Further, the said bill states that any discrimination, subjected towards a transgender, either in public or private shall attract a strict penalty.
5. To safeguard the interests of transgenders, the bill proposed the establishment of a National Council. As per the said bill, the government must take the responsibility to provide basic and essential support such as self-employment, rehabilitation and healthcare to the transgender community. 

The Transgender Persons Bill, 2016 was passed with twenty-seven amendments after considering the recommendations of the Parliamentary Standing Committee by Lok Sabha in the year 2018. 

Transgender Persons (Protection of Rights) Bill, 2019

The Rajya Sabha on 25th November 2019 passed the Transgender Persons (Protection of Rights) Bill, 2019 even after being seriously criticized by the transgender community. Some of the reasons for such criticism and backlash are discussed below:

The said Bill states that an individual’s identity as the third gender will be valid irrespective of whether they have undergone sex reassignment surgery or not. However, the same Bill requires a transgender person to approach a District Magistrate to get a certificate that recognizes them as transgender. After procuring the said certificate, a transgender will be allowed to change their gender to either female or male on identification cards provided by the government. The Bill cannot force a transgender to undergo surgery for the sake of identification cards. The NALSA judgement of 2014 provided the transgenders with an opportunity to self-identify themselves and did not force the transgenders to undergo surgery. However, the Bill of 2019 totally contradicts the said judgement.

The said Bill does not consist of any provisions to punish those persons who bully, harass and discriminate against transgenders at educational institutions, workplaces and other such areas. Sexual abuse against a transgender has been made a punishable offence under the Bill, however, it does not clearly explain what exactly constitutes sexual abuse against a transgender. For example, the rapist of a cisgender woman undergoes a punishment of seven years extending to a life sentence. However, the rapist of a transgender undergoes a punishment of six months extending to two years. This irrational approach of Bill 2019 towards the safety of the transgender community has faced severe backlash.  

The Bill denies the provision of reservation to transgenders. It is a known fact that transgenders face loads of criticism in society which also tries to oppress them from flourishing in professional areas. Transgenders must be entitled to reservations as they would at least ensure the educational and job qualification for survival. The said Bill does not mention property rights, adoption rights, marriage rights, pension or protection from society. Subsequently, the Bill that was supposed to help the transgender community of India actually ended up being termed regressive by the transgenders. 

Hina Haneefa @ Muhammed Ashif Ali N v. State of Kerala 

Facts of the case 

The above case talks about Hina Haneefa, a transgender activist. Haneefa was born as a male person in Malappuram, Kerala. Being a child who adored the National Cadet Corps (NCC) she soon joined the male cadet wing of NCC. She was awarded an ‘A’ grade certificate (which is generally given to the promising cadets) in her X grade. Haneefa came out as a transgender to her orthodox Muslim family when she was 19 years old. As a result, she was forced to shift to Bengaluru, Karnataka.

After moving to Bengaluru, Haneefa faced several financial issues, however, she collected over one lakh rupees to proceed with a sex reassignment surgery at Coimbatore, Tamil Nadu. She has undergone sex reassignment surgery twice and procured an identity card under the Kerala Transgender Scheme. Later, Haneefa decided to get herself enrolled in the University College of Thiruvananthapuram, Kerala. She secured admission to the said university through one of the two seats reserved for transgender students. After joining the university, she wanted to be enrolled in the university’s National Cadet Corps Unit ranks. However, her attempt to get enrolled in NCC resulted in futility.

The Associate Officer of the National Cadet Corps at the university refused to enrol Haneefa stating that the National Cadet Corps Act of 1948 only allows those cadets to be admitted who belong to one of the binary gender i.e, a cadet must either be male or female. As a result of such rejection based on her gender identity, Haneefa appealed to the National Cadet Corps unit of the university and the Commanding Officer of the National Cadet Corps, Thiruvananthapuram, Kerala in 2019. However, her pleas did not fetch any response from the National Cadet Corps which made her approach the Kerala High Court through a writ petition in November 2019.

Issue before the Court 

Section 6 of the National Cadet Corps Act of 1948 was challenged by Haneefa before the High Court of Kerala. The said section only approves the enrollment of cadets based upon two genders i.e, male and female. The Ministry of Defence that governs the National Cadet Corps contended that it cannot enrol a transgender person because the said National Cadet Corps Act of 1948 does not allow it to do so.

Judgment of the case

After listening to both the parties to the case, the High Court of Kerala on 15th March 2021 stated that Hina Haneefa, a transgender woman aged 21 years can, by all means, be enrolled in the National Cadet Corps (NCC). The judgement was passed in favour of Haneefa, who had challenged the decision of the National Cadet Corps excluding her from its women’s wing.

The verdict stated that the right to dignity laid down in the National Legal Services Authority case and the Transgender Act, 2019 overpower the argument put forward by the National Cadet Corps stating that it does not encompass any rules about enrolling transgender persons.

The judgement elucidates that a transgender person is entitled to be enrolled in the National Cadet Corps as per their self-perceived gender identity. Thus, Hina Haneefa who identifies herself as a woman can, by all means, be enrolled in the women wing of the National Cadet Corps.

Justice Anu Sivaraman passed this landmark judgement by stating that a transgender person has the right to be recognized as per their self-perceived identity and the National Cadet Corps cannot deny enrollment just based on the identity card procured by Haneefa in this case. Thus, Haneefa was allowed to enrol in the NCC Senior Girls Division and the denial request of the National Cadet Corps was held unsustainable. The verdict of the High Court of Kerala, in this case, can be viewed as a ticket for transgender persons to enter into the military and paramilitary services. 

Conclusion

Transgender is a person who identifies themselves as ‘third gender’ which does not fall under the category of the stereotypically established male and female genders. The transgender community is not a new concept in India. In ancient India, transgenders were regarded with the same status as that of binary genders. It was only after the advent of British rule in India that transgenders were starting to be recognized as ‘criminals’ as per the Criminal Tribes Act of 1871. Transgenders are regarded as a disgrace in society which does not just hinder healthy societal growth but also goes against basic human rights. While the NALSA judgement came off as a ray of hope to the transgender community of India, the Transgender Persons (Protection of Rights) Bill 2019 has been termed regressive by the same. It is high time that the transgender community must be provided with equal opportunities in education, employment, marriage, adoption, etc.

Proper laws must be passed by the Government to empower and legally support the transgender community. Hina Haneefa’s case is a way forward towards the development of transgenders in India. The approach of the Indian courts towards the upliftment of minorities such as the transgender community, in this case, is highly appreciable. As the Indian Constitution states, no one should be denied equality, even if it is based on a person’s gender. 

References

• https://feminisminindia.com/2021/03/18/kerala-high-court-judgment-ncc-act-transgender-persons-right/ 
• https://www.thequint.com/news/india/kerala-high-court-permits-transgender-woman-to-enroll-in-ncc#read-more 
• https://indiankanoon.org/doc/94273519/