In a progressive verdict by the Kerala High Court, Transgender persons are now entitled to be admitted to National Cadet Corps (NCC) in accordance with their self-perceived gender identity, reported Bar & Bench.
Justice Anu Sivaraman delivered this verdict on a plea filed by a transwoman, Hina Haneefa who challenged section 6 of the National Cadet Corps Act, 1948 that effectively allowed only ‘males’ and ‘females’ to enrol as cadets with NCC. Haneefa had reportedly applied for entry on the basis of her self-perceived gender, i.e., to the female category, since the NCC did not have provision for a third gender.
Section 6 reads:
Enrolment. (1) Any student of the male sex of any university may offer himself for enrolment as a cadet in the Senior Division, and any student of the male sex of any school may offer himself for enrolment as a cadet in the Junior Division if he is of the prescribed age or over.
(2) Any student of the female sex of any University or school may offer herself for enrolment as a cadet in the Girls Division:
Provided that in the latter case she is of the prescribed age or over.
Bar & Bench quoted Justice Sivaraman saying, “I am of the opinion that the petitioner who had opted for female gender and has undergone sex-reassignment surgery for aiding her self-perception would definitely be entitled to enrolment in NCC unit reckoning her as a transgender and further as a member of her self-perceived gender, i.e., female gender.”
As per a LiveLaw report, the court noted that the Transgender Persons (Protection of Rights) Act 2019, recognises the right of transgender persons to a life of dignity and that the provisions of the NCC Act cannot preclude the operation of the Transgender Rights Act, 2019.
The judgment pronounced by Justice Anu Sivaraman held, “The enactment was one intended to give effect to the rights guaranteed to such persons under Articles 14, 15, 19, and 21 of the Constitution, has to be borne in mind when considering cases of this nature. 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”, reported LiveLaw.
The court also strictly remarked, “The fact that 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. I’m of the opinion, the petitioner is entitled to enrol in the NCC Senior Girls Division. The denial of enrolment is unsustainable. 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.”
As reported by some media sources, the petitioner Haneefa, had challenged her exclusion from the NCC as arbitrary when she emphasised that the inclusion of sexual minorities such as transgender persons is necessary to address the rampant marginalisation and discrimination faced by them.
Haneefa was assigned male gender at birth after which she underwent two sex-reassignment surgeries. Eventually she obtained a transgender identity card under the Kerala government’s Transgender Policy, 2015. The petitioner, who identifies herself as a woman, claimed that she should be admitted to NCC either as third gender (transgender) or as female which was her self-perceived gender identity, reported Bar & Bench.
Her counsel Advocate Raghul Sudheesh had asserted before the Kerala High Court that she should be allowed in NCC as a female without new arrangements being made for her, especially in light of Supreme Court’s NALSA judgment that recognises self-perceived gender identity.
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