HINA HANEEFA Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition is filed with the following prayers:-

(2.) Heard the learned counsel for the petitioner, learned standing counsel appearing for the 2nd respondent, the learned ASGI as well as the learned Government Pleader.

(3.) Petitioner, who is a student of the University College, Thiruvananthapuram, states that she is a transgender (transwoman). It is stated that she was assigned male gender at the time of birth and that at the age of 21, a sex re-assignment surgery was performed as is evident from Exhibit P1. It is stated that further surgery was performed on 27.5.2019 and the petitioner's name has also been changed as Hina Haneefa. Exhibit P3 transgender identity card was also issued to the petitioner showing her gender as female. When the petitioner was declined admission to the NCC unit by the 5th respondent on the ground that there is no provision for enrollment of transgender students, she had submitted Exhibit P4 representation seeking enrollment, taking note of the certificates issued to her. Further representations were submitted before the 5th respondent, but to no avail. It is submitted that the petitioner was an NCC cadet as would be evident from Exhibit P7 and that there is absolutely no justification on the part of the respondents in refusing to enroll the petitioner in the NCC battalion. The petitioner places reliance on the decision of the Apex Court in National Legal Services Authority v. Union of India and others, 2014 5 SCC 438 as also the provisions of the Transgender Persons (Protection of Rights) Act, 2019 (hereinafter referred to as the 2019 Act) to contend that the petitioner is entitled and eligible for enrollment on the basis of the certificates produced by her. It is submitted that after the authoritative pronouncement by the Apex Court 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. It is stated that the provisions of the Transgender Persons (Protection of Rights) Act, 2019 are also manifestly violated by the actions of the respondents. It is submitted that any provisions of the National Cadet Crops Act, 1948, or the absence of such provisions in so far as enrollment of transgenders are concerned, would have to be considered in the light of the authoritative pronouncement by the Apex Court and the provisions of the 2019 Act, since the enactment is clearly intended to do away with the social injustice meted out to persons like the petitioner and to ensure a life with human dignity to them. It is, therefore, contended that the respondents are duty bound to grant enrollment to the petitioner, taking note of Ext.P3 identity cared issued to her in accordance with her eligibility.