International Statistical Classification of Diseases and Related Health Problems 10th Revision (ICD-10) – WHO Version for 2016 (“ICD-10 Version: 2016”), under Chapter V ‘Mental and behavioural disorders (F00-F99)’ and ‘Disorders of adult personality and behaviour (F60-F69)’ laid down a category called ‘Gender identity disorders’. Till early 2019, Transsexualism featured under this category (F64.0) as a disorder and was defined as “A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomic sex, and a wish to have surgery and hormonal treatment to make one’s body as congruent as possible with one’s preferred sex.” Similarly, Dual-role transvestism (F64.1) i.e. “The wearing of clothes of the opposite sex for part of the individual’s existence in order to enjoy the temporary experience of membership of the opposite sex, but without any desire for a more permanent sex change or associated surgical reassignment, and without sexual excitement accompanying the cross-dressing” and Gender identity disorder of childhood (F64.2) which was defined as “A disorder, usually first manifest during early childhood (and always well before puberty), characterized by a persistent and intense distress about assigned sex, together with a desire to be (or insistence that one is) of the other sex. There is a persistent preoccupation with the dress and activities of the opposite sex and repudiation of the individual’s own sex. The diagnosis requires a profound disturbance of the normal gender identity; mere tomboyishness in girls or girlish behaviour in boys is not sufficient” also featured in the list of disorders but were removed from this category in 2019 after feedback and deliberations (For example, as reported, Denmark no longer defined being transgender as a mental illness and the Government officials said classifying transgender people as mentally ill was “stigmatising” and they had “run out of patience” with the World Health Organisation’s (“WHO”) work on the definition).

According to WHO’s website, the ICD is the foundation for the identification of health trends and statistics globally. It is the international standard for defining and reporting diseases and health conditions. It allows the world to compare and share health information using a common language. About 70% of the world’s health expenditures (USD $ 3.5 billion) are allocated using ICD for reimbursement and resource allocation. The first international classification edition, known as the International List of Causes of Death, was adopted by the International Statistical Institute in 1893. ICD-10 was endorsed in May 1990 by the Forty-third World Health Assembly. It is cited in more than 20,000 scientific articles and used by more than 100 countries around the world (117).

ICD-11 (Version: 04 / 2019), removed the entire category of ‘Gender identity disorders’. Since the 2019 version, it is now considered as ‘Gender incongruence’ (also known as gender dysphoria) and a ‘Condition related to sexual health.’ Gender incongruence has been defined here as “characterized by a marked and persistent incongruence between an individual’s experienced gender and the assigned sex. Gender variant behaviour and preferences alone are not a basis for assigning the diagnoses in this group.” There is also a ‘Gender incongruence of adolescence or adulthood’ (HA60) which “is characterized by a marked and persistent incongruence between an individual´s experienced gender and the assigned sex, which often leads to a desire to ‘transition’, in order to live and be accepted as a person of the experienced gender, through hormonal treatment, surgery or other health care services to make the individual´s body align, as much as desired and to the extent possible, with the experienced gender. The diagnosis cannot be assigned prior the onset of puberty. Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis” and ‘Gender incongruence of childhood’ (HA61) which “is characterized by a marked incongruence between an individual’s experienced/expressed gender and the assigned sex in pre-pubertal children. It includes a strong desire to be a different gender than the assigned sex; a strong dislike on the child’s part of his or her sexual anatomy or anticipated secondary sex characteristics and/or a strong desire for the primary and/or anticipated secondary sex characteristics that match the experienced gender; and make-believe or fantasy play, toys, games, or activities and playmates that are typical of the experienced gender rather than the assigned sex. The incongruence must have persisted for about 2 years. Gender variant behaviour and preferences alone are not a basis for assigning the diagnosis.”

The Diagnostic and Statistical Manual of Mental Disorders (DSM-V) was also revised by the American Psychiatric Association in 2012 to remove the term “gender identity disorder” and add the term “gender dysphoria.” As far as India is concerned, when BuzzFeedNews conducted a survey in 2016, it found that majority of respondents said they think transgender people “have a form of mental illness”. They also found that majority believed transgender people “have a form of physical disability.”

However, the Supreme Court of India, in the case of National Legal Services Authority vs. Union of India and others, Writ Petition (Civil) No. 400 of 2012 on 15^th April, 2014 (“NALSA Judgment”) had held that “Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India” and therefore, “Self-identified gender can be either male or female or a third gender.” They did not consider it as a mental disorder. Further the recently passed Transgender Persons (Protection of Rights) Act, 2019, also under Section 4 states that a person recognised as transgender “shall have a right to self-perceived gender identity”.

In Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors., W. P. (Crl.) No. 76 of 2016, decided by the Supreme Court of India on 6th September 2018, the Supreme Court held that “gay persons and transgenders are not persons suffering from mental disorder…” It also referred to the Mental Healthcare Act, 2017 and stated that this law “throws a great deal of light on recent parliamentary legislative understanding and acceptance of constitutional values…” It referred to Section 2(s) of the Act which defines mental illness as “a substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, but does not include mental retardation which is a condition of arrested or incomplete development of mind of a person, specially characterised by subnormality of intelligence;” and stated that “This definition throws to the winds all earlier misconceptions of mental illness including the fact that same-sex couples who indulge in anal sex are persons with mental illness.”

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Inclusion at Work