[Breaking] "What were you doing for last 6 years?" Kerala High Court unimpressed by appeal against judgment allowing entry of transwoman to NCC

The Kerala High Court on Friday made some strong remarks in the writ appeal filed before it against a single-judge verdict allowing the entry of a transwoman into the National Cadet Corps (NCC) in accordance with her self-perceived gender identity..The single-judge's direction for the amendment of the enrolment criteria under the NCC Act, 1948 to allow the admission of transgender persons to the corps was challenged by the appellant, Sreerag S, who was an intervenor in the writ petition moved by the transwoman before the single-judge. .[BREAKING] Kerala High Court allows admission of transgender person to National Cadet Corps on the basis of self-perceived gender identity.The appellant's primary grievance stemmed from the single judge's direction that Hina Haneefa, the transwoman who petitioned the High Court, should be given enrolment in the girls’ wing of the NCC. .The appellant argued that if at all Haneefa is to be allowed entry to the NCC, she should be admitted only under the category of "transgender" or "third gender." To allow the entry of the petitioner to the corps on par with "biological girls" would be grossly unfair, the appellant contended..A Bench of Justices CT Ravikumar and Murali Purushothaman besides questioning the locus and intention of the appellant also observed that the court was forced to give directions to admit the transwoman in the girl's category since no separate category was created by the Central government for transgender persons even after 6 years of the Supreme Court verdict in NALSA case. ."How are you aggrieved? You cannot hide behind your (oral) arguments. Your pleadings show that you are opposing her entry (in toto)," the Court said. The counsel for the appellant said that he was only against granting admission to transwoman in the girls' category. "Do you know why that was done," the Bench demanded before proceeding to highlight how the government had not made provisions for transgender persons till date. .The Court also questioned the appellant's locus pointing out how even NCC had not filed an appeal in the matter. The counsel for NCC who was also present at the hearing, said that NCC would also be filing an appeal. The Court then proceeded to defer the hearing in the case stating that it will hear the matter along with the appeal filed by NCC. .Advocate Arjun Venugopal appeared for the appellant-intervenor while advocate Daya Sindhu Sreehari represented the NCC. Advocates CR Sudheesh, Raghul Sudheesh, KJ Glaxon, J Lakshmi, Sanish Sasi Raj and Amal Jees Alex represented Hina Haneefa. .The appellant submitted that he was impleaded in the matter as he was interested in the well being and smooth functioning of the NCC. The single judge's judgment is in contravention of Constitutional principles and the provisions of the NCC Act, 1948 and the Transgender Persons (Protection of Rights) Act, 2019 (2019 Act), the appellant has argued..“The learned Single Judge failed to appreciate that even if a transwoman is treated as belonging to the third gender and permitted to participating in the NCC, the purpose of the NCC for training/education will be served. A trans-girl has no right to insist that she wants to participate in the NCC as a girl along with biological girls and not as a trans girl. Hence there was no necessity to declare the 1st Respondent is entitled to enrolment into the Girls’ Wing of the NCC", the appellant's plea said..In his appeal challenging the single judge's decision to allow Haneefa's petition, the following, among other, contentions have been made. ."A transgender person is not recognised by law as belonging to his or her self-perceived gender".The appellant has submitted:Even the petitioner/1st respondent did not have a case that she is entitled to be enrolled in the girls’ wing. She had only complained that there is no column for transgender students in the NCC unit. If the petitioner had a case that she is entitled to be treated as a girl, there was no requirement to challenge Section 6 of the NCC Act or to seek a direction to amend the enrolment criteria to include transgender community in the National Cadet Corps. She could have sought for a writ of mandamus to induct her into the girls’ wing. The relief granted is against her own case in the writ petitionAs per the 2019 Act, a transgender person is “recognised only as a transgender, which is a ‘third gender’". A transgender person is not recognised by law as belonging to his or her self-perceived gender. This is in line with the Supreme Court's NALSA ruling, wherein it is stated “(1) Hijras, Eunuchs, apart from binary gender, be treated as ‘third gender’ for the purpose of safeguards their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature."The State Policy for Transgenders in Kerala, 2015 also treats transgender persons as the third gender. The policy does not treat trans women or trans men as belonging to the binary gender. The policy prescribes that in order to ensure equal access to education services, institutions must include an option for “transgender” along with male and female, in all forms.Recognition of a transgender person’s “right to self-perceived gender identity” does not give that person a right to be treated as belonging to any one of the binary genders of that person’s choice. A person can be treated as belonging to the “third gender” while recognising his or her right to be self-perceived gender identity. A law granting a trans woman a right to identify herself as female is distinct from a law recognising and treating and her as female. The 2019 Act, though recognises a transgender person's right to self-perceived identity, treats transgender persons as belonging to a distinct, third gender.It is also noted that a challenge to provisions of the 2019 Act on the ground that it does not recognise transgender persons as male or female based on self-perception is pending before the top Court after notice was issued in June 2020..Will be "grossly unfair to biological women", will lead to "chaos in society" if transwomen are treated as women instead of a third gender.The appellant has submitted that if the right to self-perceived gender identity is considered akin to recognition as belonging to that self-perceived gender, persons can be treated as belonging to a gender of their choice even without medical intervention. In this regard, Section 6 of the 2019 Act is highlighted, which "does not require any medical intervention (surgery or drug therapy), not even a psychological evaluation" for a person to be certified as transgender. The appellant goes on to contend:If the Single Judge’s interpretation is adopted, a biological man will have to be treated as a female based on his self-perceived identity. Such a biological man will then have a right to enter places where only women are permitted like women’s toilets, changing rooms, bathing areas and all such areas with gender restrictions. Such a biological man will also then be entitled to all protection and benefits that the law confers on a biological woman, including government schemes meant only for biological women. "There is no mechanism to ensure that a charlatan does not take away the benefits due to the intended beneficiary."Such a biological man will also be able to participate in women’s sports and compete with biological women. An average biological woman will stand no chance against a biological man in sports requiring physical strength and endurance. Such a chaotic situation is not what the legislature has envisaged while enacting the 2019 act.A biological man can get a certification under Section 7 of the 2019 Act without surgically altering any features, and only with counselling or hormonal therapy. To treat such a biological man as a woman and to confer upon that biological man the privileges of a biological woman will lead to chaos and anarchy in the societyIt will be grossly unfair to biological women if transwomen are treated as women instead of a third gender. Apart from the obvious adverse consequences on their right to safety, right to privacy and right to dignity, as set out in detail earlier by the NCC in its counter affidavit, biological women will find it difficult to compete and win against biological men in sports and other activities requiring physical strength and endurance. The implementation of the single-Judge Judgment will result in violation of the rights of biological girl cadets of the NCC under Article 14 (right to equality) of the Constitution..NCC Act contemplates gender-specific training and education.The appellant has further submitted that the NCC Act contemplates gender-specific mode of training and education. "It is not a regular institution where the gender of the students is irrelevant or inconsequential. The NCC counter spells out the difficulties that biological women cadets face if transwomen are inducted into a girls’ wing", reads the appellant's plea further. In this backdrop, it is contended that the petitioner/1st respondent did not challenge the basic structure of the NCC which contains classifications based on gender. The rationale behind the gender-based bifurcations in the NCC was not questioned and no case was made that enrolment into the NCC should be made gender neutral or that gender is irrelevant in its functioning, the appellant has stated. "Yet, the findings and directions in the impugned judgment have the effect of dissolving the classifications in the NCC based on gender", the petition has stated. .High Court direction to amend NCC enrolment criteria futile.The appellant goes on to submit that none of the respondents to the petition filed by Hina Haneefa were competent to amend the NCC Act. It is argued that any amendment of the NCC Act can only be done by Parliament. Therefore, the single judge's direction to amend the NCC enrolment criteria within 6 months cannot be implemented, it is submitted. The appellant has added that this direction is without jurisdiction since the Courts cannot direct the legislature to enact laws in a certain manner. “The said direction in the impugned judgment amounts to directing the legislature to legislate. The said direction is against the basic structure of the Constitution of India viz. the separation of powers. Moreover, the direction may be unimplementable and futile since none of the Respondents can ensure that the Parliament will amend the stature as directed within the time frame fixed in the impugned Judgment", the appeal further said. The appellant has also claimed that High Court had given contrary directions in ordering the enrolment of the petitioner within a month's time on the one hand, while directing the amendment of NCC enrolment criteria within 6 months on the other hand. It is not possible to enrol Haneefa to the corps without the enrolment criteria being amended, the appellant has submitted. .Single Judge's findings have wide ramifications on other Laws.The appellant has also contended that the single judge's findings will have wide ramifications that will affect all laws that contain a classification based on gender. In this regard, the following has been contended:The Indian penal code contains offences that can only be committed by a man against a woman. Laws meant for the special protection of women will become meaningless since the term “woman” has been modified by the impugned judgment through an interpretive process. This may also affect private businesses like beauty parlours, gyms, spas, hospital wards etc. which exclusively serve female customers. They may be shut down citing discrimination, which would affect Article 19 (1) (g). It would affect religious places which impose gender based restrictions or segregation. Such religious customs and practices will effectively come to an end..On these grounds, the appellant has urged the High Court to strike down the single-Judge decision.