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The Kerala High Court has reasserted the right of persons to live as transgender.
In a judgment delivered by Justice V Chitambaresh and KP Jyothindranath, the Court held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep, the right of a person to live as a transgender.
The judgment was delivered in a Habeas Corpus petition filed by the mother of the transgender person seeking custody of her son alleging that he was being illegally detained by a group of transgender persons.
As reported by Bar & Bench on June 8, the mother of the person had claimed that her son was not a Transgender mentally or psychologically. She had claimed that he had “mental aberration of mood disorder” and a Transgender group took advantage of the same and detained him. It was her contention that her son even changed his name to Arundhathi “in conspiracy with the interested Transgender gang”.
She had, therefore, prayed for issuance of Habeas Corpus to get the custody of the person from the Transgender group.
The Transgender person had, however, told the court that she was living as per her wishes and had identified herself as a woman from the age of 11.
Therefore, the High Court had on June 4, ordered medical/psychological examination of the person to determine whether she suffered from any mood disorder as claimed by the petitioner mother.
Subsequently, the medical report was submitted before the Court which attested that the person suffered from no mental disorder. Adverting to the same, the Court had made it clear on June 8 that it will not interfere in the matter and the person was free to live as per her wishes.
It had, however, stated that it would deliver a detailed judgment later.
The judgment was delivered today.
In its judgment, the Court placed reliance on the medical report submitted by Kusumagiri Mental Health Centre before proceeding to quote from William Shakespeare’s play Othello.
“It is abundantly clear therefore that the detenu is undergoing an identity crisis which reminds us of the oft quoted words of Iago the villain in the Shakespeare’s play ‘Othello’:
‘I am not what I am.’”
Based on the medical report, the Court noted that the though the alleged detenu has normal male genitalia, she fits the label ‘transgender’ on external examination as per the Diagnostic and Statistical Manual 5th Edition (2013).
It observed that self-identification of the person as a transgender was clearly expressed by speech, mannerism, clothing etc. which the Court noticed during its interaction with the person and was also fortified by the medical report.
Quoting from the Supreme Court judgment in National Legal Services Authority v. Union of India, the Court categorically held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep the right of a person to live as a transgender.
“The detenu has undoubtedly the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home as wished by the petitioner who is before us with folded hands and tearful eyes.”
The Court, therefore, proceeded to dismiss the petition.
Advocate Siji Antony appeared for the petitioner. Advocate AK Maya Krishnan appeared for the transgender. Senior Government Pleader KB Ramanand represented the State.
Read the judgment below.