In freeing Shivy, Delhi HC made observations which are a major boost for LGBT rights in India

"Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom."
In freeing Shivy, Delhi HC made observations which are a major boost for LGBT rights in India
In freeing Shivy, Delhi HC made observations which are a major boost for LGBT rights in India
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In what is being hailed as a progressive move by both activists and members of the LGBT community, the Delhi High Court on Monday observed that "gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom."

The court was hearing a petition in which Shivani Bhat, a US-based NRI transgender person had alleged that his parents had brought him forcibly to India to reform him and to teach him to be a "proper girl".

19-year-old Shivani, who identifies himself as a man and prefers to be addressed as Shivy, also alleged that he was illegally confined in his grandparents' home in Agra when he came to visit them earlier this year. Shivy managed to contact Nazariya, a queer feminist resource group and got their help in moving to Delhi.

Stating that "everyone has a fundamental right to be recognized in their chosen gender", Justice Siddharth Mridul of the Delhi HC observed that "These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender's sense or experience of gender is integral to their core personality and sense of being."

He noted that transgender persons not only "enjoy basic human rights including protection from violence and discrimination," but they also have the right to dignity and self-determination."

The 2014 Supreme Court judgement in the National Legal Services Authority (NLSA) v. Union of India and Ors is considered a landmark one on several counts. The apex court had held that Hijras, Eunuchs, apart from binary gender, be treated as “third gender” and it also upheld that transgender persons have the right to self-identify their gender as male, female or as third gender.

Dr L Ramakrishnan from the health and human rights NGO SAATHII said that the Delhi HC ruling was significant as it reinforced the Supreme Court's 2014 ruling upholding the rights of transgender people.

"While granting relief to a transgender man, the ruling served to reinforce the fact that the transgender community is diverse and may include people identifying as third gender as well as those identifying within the gender binary - and that all are covered by the judgement," he says.

Justice Mridul's order is also being seen as a stern message to parents of transgender youth- that their children have the right to determine their own gender identity, Dr Ramakrishnan adds.

Pointing out the role of the police in the case, Lesley Esteves, an LGBT activist who was part of Shivy's support network, states that not only was Shivy wrongfully confined by his family, his parents also "unleashed the force of the UP Police on him".

What the Delhi HC did, he continues, was it upheld the rights of the transgender persons as already mentioned in the Constitution. "Such is the basic situation of transgender people in the country that when a court upholds an already existing law, we think of it as a landmark judgement," he rues.

Vyjayanthi Vasanta Mogli, a transgender person who works with a corporate organisation in Hyderabad, feels that the HC's order is a "shot of encouragement" for LGBT activists.

"This can be used in the future to give leverage to similar such cases in court," says Vyjayanthi.

However, she is skeptical whether this order will be able to usher in significant changes in the mindsets of people.

No stranger to discrimination, just last month Vyjayanthi, along with her friends, was denied entry into GVK One, a plush mall in Hyderabad. "I was yelled at, and publicly humiliated for near half hour. One staff member even told me 'tum jaise log andar nahi aa sakte' (People like you cannot come inside the mall)."

The impact of the order however, she feels, is limited unless measures are taken to help those in the lower rungs of the community. "Will the government pass the transgenders rights bill? Will it implement the NLSA ruling? There are many organisations which claim to be LGBT-friendly, but do they have employees from these communities? Can an organisation say they are women-friendly and not hire a single woman employee?" she asks.

"The judgement importantly talks about family pressure from the angle of custodial violence, an issue which is mostly seen in the context of the police," says Rituparna Borah, an activist, adding that "the ruling will give hope to many. People will feel they too have a chance."

Shivy flew back to the States on Saturday, soon after the court gave its order. He says he is happy that he can continue with his life and studies in the US now.

Justice Mridul aptly quoted Rabindranath Tagore in his order, "Go not to the temple to light candles before the altar of God, First remove the darkness of sin, pride and ego, From your heart....."

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