The petitioner in this case was a transwoman. She underwent a Gender Reassignment Surgery and was given a transgender identity card mentioning her gender as ‘female’. She wished to apply for National Cadet Corps (NCC) but could not apply for the same because she was transgender. Her application was rejected on the ground that she was a transgender female and could not be under the female division. This was one of first cases related to the Transgender Persons (Protection of Rights) Act, 2019.
Section 6 of the National Cadet Corps Act, 1948 (‘NCC Act’) restricted transgender females from being admitted to the NCC Girls Unit. Under the NCC Act, Section 5 divides the Corps into three divisions: the Senior Division, the Junior Division, and the Girls Division. Section 6 states that the recruitment to the Girls Division was to be made from female students of any university or school.
The Court opined that the Transgender Persons (Protection of Rights) Act, 2019 has a wider application in comparison to the NCC Act. “…with regard to the rights of transgender persons to a life with human dignity, the continued actions on the part of the respondents in perpetuating discrimination against persons like the petitioner only for the reason that she was born with the characteristic of a gender which did not match her self-perceived gender identity amounts to violation of the petitioner’s valuable rights guaranteed under Article 14, 15, 19 and 21 of the Constitution of India”.
As regards with gender reassignment surgery, the court was of the view that, “when the person has undergone surgical procedures for change of physical gender attributes, the Apex Court held that the right of a human being to choose his sex or gender identity is integral to his or her personality and is one of the most basic aspects of self determination, dignity and freedom”.
The Court observed that, “The fact that the provisions of the NCC Act do not recognize the third gender or that detailed guidelines are required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps cannot, according to me, be a justification for denying admission to the petitioner to the NCC unit based on the Identity Card obtained by her”
The Court went a step ahead and stated that the NCC Act should be amended under the Transgender Persons (Protection of Rights) Act, 2019 and appropriate steps are to be taken in 6 months from the date of receipt of a copy of the judgment.
Written by Vaishali Jain & Hamda Arfeen