The Kerala High Court observed that ‘a person cannot be a denied legitimate right only because she is a transgender person’, while hearing a plea filed by trans woman Hina Haneefa who was denied entry into her college NCC (National Cadet Corps) unit due to her gender.
The plea challenges section 6 of the National Cadet Corps Act, 1948, as illegal and ultra vires of Article 14 (equality before law), Article 15 (no citizen of India shall be discriminated on the basis of religion, race, caste, sex, sexual orientation, gender or gender identity and/or place of birth) and Article 21 (protection of life and personal liberty) of the Indian Constitution. Section 6 of the NCC Act limits enrolment to only male and female candidates and does not mention transgender candidates.
On Thursday’s hearing, the Central Government Standing Counsel (CGSC) appearing on behalf of the NCC submitted to the court that the NCC had only units for ‘male’ and ‘female’ and that the transwoman’s application could not be accepted as she did not fall in either of these categories. The CGSC further added that this was not discrimination, but reasonable classification as per Article 14 of the Constitution, reported Livelaw.
Judge Devan Ramachandran then passed an interim order, stating that it could not accept the CGSC’s policy and that the transgender policy in Kerala applied to all stautes, adding that a person could not be denied a legitimate right only because she is transgender.
"Dayasindhu Shreehari, the Central Government Counsel seeks further time to file a statement on record. He, however, submits that the petitioner cannot be included in the enrollment process for NCC unit of the University College, Thiruvananthapuram because she is a trans-gender, though assigning herself the identity of the women. Prima facie, I cannot accede to the afore submission of the learned Central Government Counsel without further enquiry into the matter since, going by the trans-gender policy, as also the applicable Statutes, a person cannot be denied legitimate rights merely because he/she is a trans-gender, particularly when such person has assigned to himself/herself a particular gender," the judge said.
The court also asked the NCC unit of the University College in Thiruvananthapuram, where the student studies, to keep the seat vacant, as the last day for enrolment was drawing closer.
The petitioner’s counsel informed the bench that the last date for enrolment was November 15. Meanwhile, justice Devan Ramachandran who was hearing the petition asked the NCC to file a written statement.