Monday, May 20, 2024

Identity Crisis

A transgender couple has pleaded before the Kerala High Court that their child’s birth certificate should refer to them as “parents” and not as “father” and “mother”. Will the Court oblige?

A petition was filed in the Kerala High Court by India’s first transgender parents seeking a direction to the Kozhikode Corporation to issue a new birth certificate for their child, born in February. They urged that the certificate should refer to them as “parents” instead of “father” and “mother”. The petition was filed by Zahhad, a transman, and Ziya Paval, a transwoman. Interestingly, Padmalakshmi, an advocate of the petitioner, was also the first transgender woman to become an advocate in Kerala.

India’s queer community has often struggled to get basic rights and approached courts. The Supreme Court has begun hearing petitions on marriage equality from many petitioners, including those within the transgender community.

The petition said that the Kozhikode Corporation issued a birth certificate under Section 12 of the Kerala Registration of

Birth and Death Rules, 1999 recording the name of the father as Ziya Paval (Transgender) and that of the mother as Zahhad (Transgender). The couple approached the Corporation to change the details to indicate both as just “parent”. However, their plea was turned down, forcing them to approach the High Court.

The petition stated that the couple made such a request to the Corporation because the biological mother of the child had identified herself as male years ago. As scientifically there was a contradiction in a male giving birth to a child, the petitioners requested the authorities to simply write “Parent” to avoid embarrassment to the child later during school admission and registration for an Aadhaar card, PAN card, passport and other documents. 

The petition further stated that the denial of such a certificate was a denial of their and their child’s fundamental rights. It also contended that such a denial went against the dictum laid down by the Supreme Court in the landmark NALSA case. The petition said that other countries had allowed couples, especially same sex couples, to choose their title in their child’s birth certificate either as mother, father or parent.

The journey of Ziya and Zahhad in embracing their true identities may be similar to many in the transgender community, but as a trans woman and a trans man embarking on a journey of parenthood, it is like no other. Right from their decision to have a baby together a year and a half ago to not revealing the child’s gender soon after its birth on February 8, their story has been unconventional.

Inconvenience is not new to Zahhad and Ziya. In a world that lives and believes in binaries, they have been living with an inconvenient truth—their identity. Zahhad was recorded as a female at birth, but identifies as male, and Ziya was recorded as a male at birth and identifies as female. Zahhad was born in a Christian family in Thiruvananthapuram and Ziya was born in an orthodox Muslim family in Kondotty of Malappuram district.

Ziya’s mother died when she was in plus one and her family stopped sending her to school. Within a year, Ziya officially came out as a transgender woman and went to a shelter home for transgender individuals in Kozhikode.

The world came to know about Ziya and Zahhad’s story when their pregnancy photo shoot went viral on social media. The photos were uploaded on January 31. A week later, the baby was born. The baby’s name—Zabiya—and her sex were revealed exactly a month after her birth (March 8).

National Legal Services Authority vs Union of India (2014) was a landmark judgment of the Supreme Court, which declared transgender people as the third gender, affirmed that the fundamental rights granted under the Constitution would be equally applicable to them and gave them the right to self-identification of their gender as male, female or third gender. This judgment was seen as a major step towards gender equality in India. Moreover, the Court held that because transgender people were treated as socially and economically backward classes, they would be granted reservations in admissions to educational institutions and jobs.

The National Legal Services Authority of India (NALSA) was the primary petitioner in this case. It was constituted with the primary objective of providing free legal aid services to the disadvantaged sections of Indian society. The other petitioners were Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathy, a renowned hijra activist. The case was heard before a two-judge bench of the Supreme Court of Justice KS Panicker Radhakrishnan and Justice Arjan Kumar Sikri.

The Court had to decide whether persons who fall outside the male/female gender binary can be legally recognised as “third gender” persons. It deliberated on whether disregarding non-binary gender identities was a breach of the fundamental rights guaranteed by the Constitution. It referred to an “Expert Committee on Issues Relating to Transgender” constituted under the Ministry of Social Justice and Empowerment to develop its judgment.

This landmark decision recognised that third gender persons were entitled to fundamental rights under the Constitution and international law. Further, it directed state governments to develop mechanisms to realise the rights of “third gender”/transgender persons. The Court upheld the right of all persons to self-identify their gender. Further, it declared that hijras and eunuchs can legally be identified as “third gender”.

The Court clarified that gender identity did not refer to biological characteristics, but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy. The Court interpreted “dignity” under Article 21 of the Constitution to include diversity in self-expression, which allowed a person to lead a dignified life. It placed gender identity within the framework of the fundamental right to dignity under Article 21.

The Court held that public awareness programmes were required to tackle the stigma against the transgender community. It also directed the central and state governments to take steps for the advancement of the transgender community, including:

  • Making provisions for legal recognition of “third gender” in all documents.
  • Recognising third gender persons as a “socially and educationally backward class of citizens”, entitled to reservations in educational institutions and public employment.
  • Taking steps to frame social welfare schemes for the community.

Various countries have given recognition to the gender identity of such persons, and mostly in cases where transsexual persons have started asserting their rights after undergoing sex reassignment surgery (SRS). One case abroad was when the High Court of Kuala Lumpur in JG vs Pengarah Jabatan Pendaftaran Negara (2006) considered whether an application to amend or correct gender status stated in National Registration Identity Card could be allowed after a person has undergone SRS. Here the plaintiff was born a male, but felt more inclined to be a woman. In 1996 at Hospital Siroros, she underwent a gender reassignment surgery for changing her sex from male to female. She applied to authorities to change her name and also for a declaration of her gender as female, but her request was not favourably considered, and she was still treated as a male. She sought a declaration from the Court that she be declared a female and that the Registration Department be directed to change the last digit of her identity card to a digit that reflected a female gender.

The Malaysian Court granted her request after noticing that the medical men had said that the plaintiff was a female and they had considered her sex change as well as her “psychological aspect”. The Court noticed that she felt like a woman, lived and behaved like one and that her physical body and psychological thinking was that of a woman. 

—By Adarsh Kumar and India Legal Bureau



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