In a landmark ruling, the Kerala High Court on Monday observed that transgender persons can join the National Cadet Corps on the basis of their “self-perceived gender identity”, Bar and Bench reported.
A bench of Justice Anu Sivaraman noted that the Transgender Persons (Protection of Rights) Act, 2019, recognises their right to a life of dignity, and prohibits discrimination. The provisions of the National Cadet Corps Act, therefore, cannot preclude the operation of the Transgender Rights Act, 2019, it said.
The High Court was hearing a plea filed by a transgender woman, Hina Haneefa, who had challenged Section 6 of the National Cadet Corps Act, 1948, which allows only males or females to enrol as cadets. A student at the University College in Thiruvananthapuram, Haneefa argued that the exclusion was arbitrary.
“In view of the specific provisions of the 2019 Act, a transgender person has the right to be recognised not only as a transgender but also a right to self-perceived gender identity,” Justice Sivaraman said, according to Live Law. “The fact that the NCC Act does not recognise the third gender or that detailed guidelines are required to be drawn up for integration of persons of the third gender into the armed forces or the NCC, cannot, according to me, be a justification to deny entry to the petitioner into NCC.”
The judge directed the youth wing of the corps to amend the enrolment criteria to include transgender persons so that every individual has the right to become an NCC cadet. The High Court directed the respondents, the Centre and the NCC, to make such changes within six months.
The petitioner had called upon the intervention of the court to direct the NCC to suitably amend their enrolment criteria to allow transgender persons to join the force. Haneefa’s plea stated that the inclusion of sexual minorities such as transgender persons was necessary to address the rampant marginalisation and discrimination faced by them.
Haneefa said that she should be admitted to NCC either as a third gender, or as female, which was the self-perceived gender identity. Further, she also urged the Kerala High Court’s intervention to allow her to be part of the enrollment process this year as interim relief.
The NCC and the Centre had opposed the plea, stating that the Act empowers an advisory committee to deliberate and decide on any changes to NCC. “We are not saying that transgender persons will not be included at any time,” they said. “We say that only after due deliberations we can include them.”
The NCC, in its affidavit before High Court, further submitted that it was the prerogative of central government to constitute a new division for the third gender and that as of now, only male and female genders are allowed entry to National Cadet Corps and Armed Forces.
But the High Court on Monday rejected these submissions, saying that the denial of enrolment to Haneefa was unsustainable.
“I am of the opinion the petition who has opted for female gender and has undergone two SRS [Sex change surgery] surgeries for aiding her self perception as a member of the said gender will definitely be entitled to enrolment in the NCC Unit reckoning her as a transgender and further as a member of her self-perceived gender, that is, female gender,” Justice Sivaraman said. “The petitioner will be entitled to participate in the selection process on the basis of her application. If she is successful, the petitioner will be enrolled in NCC unit.”