The court asserted that the person had ‘the right to wander about or associate with like-minded people and cannot be compelled to be at his parental home’.
Quoting the iconic words of the character ‘Iago’ from Shakespeare’s play ‘Othello’, “I am not what I am”, the bench comprising Justice V. Chitambaresh and Justice K.P. Jyothindranath of the Kerala High Court upheld the right of an individual to live life as a transgender by dismissing the habeas corpus plea filed by a mother last week.
In what can be viewed as a landmark judgement in the favour of the LGBTQ community, the Court rejected the mother’s petition, which claimed that a group of transgenders had detained her ‘son’. The court asserted that the person had ‘the right to wander about or associate with like-minded people and cannot be compelled to be at his parental home’.
As reported by LiveLaw.in, the mother’s petition claimed that her son suffered from a ‘mood disorder with psychotic features’ and had also changed his name to Arundhathi and was roaming in the company of other transgenders, while exposing himself to the risk of physical abuse and forced organ transplant.
However, Arundhathi appeared before the court dressed as a woman and accepted that she was transgender by birth and did not suffer from any mental abnormality.
She also informed the Court that she had been subjected to psychiatric treatment and requested immediate medical/psychological evaluation to confirm the same.
Because the request wasn’t out of judicial reach, an evaluation was motioned by the Court, following which the medical report found that she didn’t suffer from any form of mental aberration and in turn, established that the individual suffered from an identity crisis.
The bench also observed that the person before it didn’t just self-identify as a transgender, which was evident by her speech, mannerism and clothing, but that even the medical report alluded to the fact that she fit the definition of ‘transgender’ as per the Diagnostic and Statistical Manual 5th Edition (2013).
They even referred to National Legal Services Authority vs. Union of India, (2014) 5 SCC 438, where the Apex Court had directed Centre and State Governments to recognise transgender individuals as a third gender and provide them with benefits equivalent to that of socially and economically backward classes.
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“Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.
Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that the values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights,” the High Court quoted the aforementioned passages from the Supreme Court judgment.
With this, the Court refused to accept the mother’s plea for a writ of habeas corpus of her son, while upholding the latter’s right to individuality and acknowledging her identity.
You can read the entire judgement here.
(Edited By Vinayak Hegde)
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