The court, on the basis of the trans woman’s mother’s complaint, has ordered a ‘medical test’; never mind that the 25-year-old has said she doesn’t want to live with the parents.

Dear Kerala HC ordering a medical test on a transgender person is a sham
Voices Opinion Tuesday, June 05, 2018 - 18:27

Once again, the Kerala High court has given a problematic judgment in a conflict between an adult person and their parents. After they infamously ‘nullified’ the wedding of Hadiya and her husband Shafin Jahan at the behest of her father, and gave similarly problematic judgments in other cases, the court has now ordered a ‘medical test’ on a 25-year-old transgender woman who left her parents’ home to live with members of the transgender community.

The mother in question filed a habeas corpus petition, after the trans woman left the house. In her petition, the mother claimed that her ‘son’ was mentally ill, was not ‘physically or psychologically’ a transgender person, and was being coerced by the transgender community for their ‘ill and lusty motives’.

When the transgender woman was produced in court, the 25-year-old adult said that she is a transgender woman, and that she wants to live with the community and not with her parents.

But the rights of an adult to choose how she wants to live her life be damned. Never mind the Supreme Court’s 2014 NALSA judgement that says transgender people can self identify their gender without need for any medical examination. All these laws and ethics don’t apply to the Kerala High Court it seems. The court just went right ahead and ordered a medical and psychological examination of the trans woman anyway.

Let me say this in the simplest way possible: A ‘medical test’ to ascertain whether or not someone is transgender is a sham.

A transgender woman is someone who has been assigned ‘male’ at birth and grows up to identify as a woman. A transgender man is someone who has been assigned ‘female’ at birth and grows up to identify as a man. There is no ‘test’ to ‘prove’ a person’s gender. Even our understanding of biological sex has moved legions away from your 8th standard textbook’s ‘xx’ and ‘xy’ categorisation.

The only way to ‘know’ if someone is transgender or not is to ask that person. And to believe them when they say, hey, this is my identity.

You don’t need gender theory for this. It’s a simple thing called respecting an adult.

But of course, dismissing the rights of adults is something the Kerala High Court is gaining a reputation for. Consider the Hadiya case: Here was an adult woman who converted to Islam of her own free will. She chose to marry a man, and just because she did not tell her parents about the wedding, the court decided to ‘nullify’ the marriage. It further ordered Hadiya to stay in her parents’ house against her every wish.

Did the court believe it’s their job to enforce parents’ will on their adult daughter?

This wasn’t the only case. In April last year, the court ‘entrusted custody’ of Thushara – a 19-year-old woman – to her parents, because the parents objected to her relationship with a 20-year-old man. The parents’ contention was that Nandakumar had not attained the legal age to marry, and the court ruled in their favour. They did not even consider for a second that the two adults could choose to live together, whether or not the man had attained ‘marriageable age’.

The High Court’s order had to be overturned by the Supreme Court last month.

There was a glimpse of hope when the High Court gave a progressive judgment last month, and allowed an adult teen couple to live together despite their parents’ objections. The parents of the young woman had filed a habeas corpus petition in the High Court alleging she was being illegally detained by the young man – much like in the case of the trans woman whose mother filed a habeas corpus petition. However, in the case of the teen couple, the court acknowledged their right, as adults, to live together.

However, in the case of the transgender woman, the court decided to pathologize a human identity, instead of upholding the 25-year-old’s rights.

Kerala is supposed to one of the most progressive states in India. It’s one of the first states in the country to formulate a comprehensive transgender policy; but as members of the community have been asking, what use is a policy on paper if, on the ground, trans people continue to face violence in a hundred ways from a thousand sides?

Courts must rise above everyday social biases. Courts must fight transphobia, not reinforce it. They must stand against sexism, not support patriarchy. They must endeavour never to disregard the choices that adults make – no matter what their gender, no matter what their choice.  

Maybe it’s time our judges re-read the Constitution, and perhaps enroll themselves in some refresher course on the meaning of the word, ‘adult.’

*Views expressed are the author's own.

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