Upholding the constitutional and fundamental human rights of all transgender persons, a Delhi court on Monday, passed judgment highlighting "the socio-economic marginalisation and exclusion of those whose behaviour is considered "inappropriate" by society".
Hearing the petition filed by Shivy, a 19-year-old trans male, who was tricked by his parents into coming to Agra from his home in California, locked up at home, had his passport and green card snatched away by the family, Justice Siddharth Mridul said in his judgment that "Every human beings have 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."
He went on to add crucially, "transgenders enjoy basic human rights including protection from violence and discrimination. They have the right to dignity and self-determination."
Shivy's case, as described by him and the queer rights NGO, Nazariya, that is helping him, was one of severe domestic abuses, where he was beaten and verbally humiliated by his mother for not conforming to a female identity. The abuse started in July, when the University of California, DAvis, student wanted to cut his hair and his mother lost her temper, confiscated his phone and discovered he was transgender. He was deceptively brought to India, on the pretext of visiting ailing grandparents, confined to the house in Agra, admitted to a local college. when he found out that he was going to be married to a man his family would chose, he somehow got in touch with civil society groups and escaped. When his parents filed a kidnapping case against the activists who helped, subjecting them to police harassment, Shivy filed a writ petition in a Delhi court, asking his documents be returned, asserting his identity as a major in the eyes of the law and his choice to leave his parents.
The judgment touched on this false FIR and, according to Nazariya, "the additional standing counsel assured the court that Delhi Police does not intend to take coercive steps either against Shivani or against those who offered to support her."
"This is a perfectly legal judgement for the case," said senior advocate Rebecca John, " but Justice Mridul has opened the space for talking about the rights of marginalised communities, of the oppression of transgender communities." She added, "When in everyday life, our constitutional rights and protections are being thrown out of the window, this judgment upholds and celebrates the Constitution. It has used this opportunity to talk about larger oppression, and said that people cannot be compelled into conforming to gender identities."
John also stressed the importance of the judgment in the context of the pending curative petition, that challenges the Supreme Court order upholding Section 377 of the IPC, that criminalises "unnatural sex" and is used to target the LGBT communities.
"Law is not fixed, it evolves. We may have lost one round to that judgment, but a day will come when Section 377 will be struck down," said John.
Those familiar with the case have, however, expressed some caution, saying that having a liberal mind such as Justice Mridul pass the judgment was the luck of the draw, majority of judges in India would not have done the same.
While Shivy looks forward to picking up his life and studies as an honours student in the States, activists from Nazariya are elated too, hoping this will take their fight for transgender and queer rights further.
