The Kerala High Court is yet again in the middle of a controversy in a case involving question of gender rights. On Monday, the court ordered that a trans woman be subjected to psychological test to determine if indeed she was a trans woman, after her mother moved the court with a habeas corpus petition alleging illegal detention by the transgender community of Ernakulam.

The order directing a psychological examination raises serious questions of judicial overreach. Not only is the order violating the agency of a trans woman to live with the people she wants to, it has also violated the basic principles of habeas corpus petition and the 2014 Supreme Court order that categorically asserted that the power to declare a person a transgender lies only with the individual and that no medical examination is necessary to establish this fact.

Man to trans woman

According to the petition filed by the mother, her 25-year-old son had been suffering from “mood disorder” for which he was treated in March. He left the house in early April, returned after a week and then left the house again to live with the transgender community.

In April, the 25-year-old appeared before a magistrate and asserted that she was not under illegal detention. During the appearance, she was also dressed in woman’s clothes and reiterated that she was a woman and not a man and does not want to live with her parents.

The mother then moved the Kerala High Court with a habeas corpus petition. Under Article 226 of the Constitution, a High Court has the power to summon the presence of any individual claimed to be illegally detained and set them free according to law.

Having heard the mother, the Kerala High Court ordered a medical examination of the 25-year-old, which will take place on Thursday.

NALSA judgement

The Kerala High Court’s decision to order a medical examination on the person runs contradictory to the landmark judgement passed by the Supreme Court in 2014, which upheld the rights of the transgender community and recognised them as a distinct gender.

In NALSA vs Union of India, the court clearly stated that self-identification is an integral part of autonomy and dignity guaranteed along with the right to life under Article 21 of the Constitution.

Therefore, it is for the individual to determine his or her gender. The court said:

“ Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.

Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.” 

Limits of habeas corpus

The Article 226 of the Constitution provides High Courts to issue different kinds of writs. The powers under this Article is sweeping, in the sense that the court could pass any orders to achieve the “ends of justice”.

However, courts in the past have been cautious in using habeas corpus and it has been limited to a specific purpose: quashing illegal detention.

Usually, when the person alleged to be in illegal detention appears before the court and says there was no illegal detention, the court closes the habeas corpus petition.

In this case, the 25-year-old had already appeared before a magistrate and had claimed that she was a free person living with the people she wanted on her own volition.

However, what seems to have changed the view of the court is the claim in the mother’s petition that days after the proceedings before the magistrate was completed, the 25-year-old met her and said she was being threatened by the members of the transgender community.

Former Additional Solicitor General P Wilson said that the court could have closed the case by interacting with the 25-year-old and determining her position. “If the person says she left the house on her own volition, the court could end the proceedings,” he added.

However, the lawyer said orders under Article 226 are a matter of convenience, in the sense that it would be difficult to argue that the court has no powers to order medical examination. Whether such an order is desirable or not is a different issue. “Article 226 provides sweeping powers to the court. In this case, the court may have decided to check if the person is capable of giving consent giving the psychological problems being alleged.”

Attempts by to reach out to the trans woman and her mother failed. The mother’s lawyer Siji Antony said that the family was at a retreat centre in Kochi.