Stating that gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom of individuals, Delhi High Court says that in its understanding of the law everyone has a fundamental right to be recognized in their chosen gender
By Nazariya- Queer Feminist Resource Group
In the wake of a controversial case of illegal confinement of an adult transperson and withholding of his travel and identity documents by his family, Justice Siddarth Mridul of the Delhi High Court has passed an important judgement upholding the rights of Shivy as a transgender on October 5, 2015.
19-year-old transgender person Shivy, a citizen of India but a resident of the United States of America was illegally confined in his grandparents’ home in Agra when he came with his parents to visit his grandparents last summer. While he was a victim of domestic abuse by his family even in his California home, on this visit to India his passport and green card were confiscated by his family and was forced to remain in Agra under their control. Even under this duress, Shivy managed to contact Delhi based queer feminist resource group Nazariya and other queer rights activists and sought their help to come to a safe space in New Delhi.
Despite leaving a note informing his family that he was leaving of his own free will, his parents filed a missing person’s complaint with UP Police. The activists who helped Shivy were put under surveillance, harassed and threatened by the Police. Subsequently lawyers Menaka Guruswamy and Arundhati Katju, Shivy and the LGBT activists approached the Delhi High Court on September 22, 2015 seeking protection for Shivy, his friends and well wishers from harassment, intimidation and coercion, and to ask for the return of his passport and green card from his family.
Transgenders have long lived on the fringes of society, often in poverty, ostracized severely, because of their gender identity
In an outstanding judgment on the case dated 5th October, 2015, Justice Siddarth Mridul stated that “The present petition highlights and brings to the fore the socio-economic marginalization and exclusion of those whose behavior is considered “inappropriate” by society. It clearly demonstrates that those who do not conform render themselves vulnerable to harassment and violence not just by the Police but also by society that ridicules them. Transgenders have long lived on the fringes of society, often in poverty, ostracized severely, because of their gender identity. They have for too long had to endure public ridicule and humiliation; have been socially marginalized and excluded from society, their basic human rights have been severely denuded.
The judgement reads, “Despite the decision of the Hon’ble Supreme course in National Legal Services Authority v. Union of India and Ors: (2014) 5 SCC 438, the trauma, agony and pain, which members of the transgender community have to undergo continues unabated.
It further says, “Every human being has certain inalienable rights. This is a doctrine that is firmly enshrined in our constitution. Gender identity and Sexual orientation are fundamental to the right of self-determination, dignity and freedom of individuals. A transgender’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right to be recognized in their chosen gender. This view is buttressed by the landmark decision of the Supreme Court in National Legal Services Authority (supra)”
Upholding the rights of transgender persons, the judgement also says, “There is, thus, no gainsaying the fact that transgenders enjoy basic human rights including protection from violence and discrimination. They have the right to dignity and self-determination.”
The judgement also mentioned the false FIR lodged against Unknown persons supporting and helping Shivy in the time of help. Mr. Avi Singh, Additional Standing Counsel (Crl.) assured the court that Delhi Police does not intend to take coercive steps either against Shivani or against those who offered to support her.
Despite being served notice, there was no representative from respondent No. 2 the State of Uttar Pradesh but the court has issued a direction to respondent No. 2 not to harass or illegally confine anybody from within the territorial jurisdiction of this court except in accordance with the procedure established by law.