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Gender Incongruence


I. Introduction


According to American Psychiatric Association, Gender dysphoria is a conflict between a person’s physical or assigned gender and the gender with which he/she identify. People with gender dysphoria may be very uncomfortable with the gender they were assigned, sometimes described as being uncomfortable with their body or being uncomfortable with the expected roles of their assigned gender.[1]People with gender dysphoria may often experience significant distress or problems functioning associated with this conflict between the way they feel and think of themselves and their physical or assigned gender.[2] The first thing here is to understand the difference between gender and sex. ‘Gender’ denotes the public (and usually legally recognized) lived role as boy or girl, man or woman. Whereas on the other hand, ‘Sex’ refers to properties that distinguishes organisms on the basis of their reproductive roles.


The gender conflict affects people in different ways, it can change the way a person wants to express their gender and can influence behaviour, dress and self image. Some people may cross-dress, some may want to socially transition with sex change surgery or hormone treatment. People with gender dysphoria may allow themselves to express their true selves and may openly want to be affirmed in their gender identity. They can do this by using cloths and hairstyles and may adopt a new name of their experienced gender. While some children express feelings and behaviours relating to gender dysphoria at four or five years old or younger, many children may not express their feelings and behaviours until puberty or much later.

It is considered that people with gender dysphoria are transgendered people i.e. many transgendered people/ individuals describe this phenomenon as feeling trapped in the wrong body. They feel discomfort with their assigned gender and often adopt the dress and mannerisms of the gender they wish to belong. The incongruence in the gender they are assigned at birth and the one with which they identify can cause mental distress.


II. Judicial Pronouncements

In case of National Legal Services Authority v. Union of India[3], a division bench of Justice KS Radhakrishnan and Justice AK Sikri granted recognition to transgenders as third category of sex and said that they have equal rights to social acceptability. The apex court conveyed trepidation over discrimination and harassment of transgenders in the country and asked the government to take remedial measures. Terming the transgenders as socially backward community, the apex court directed Central and State governments to provide medical and education facilities and introduce welfare schemes for the transgenders. The Supreme court bench also stated that the transgenders are citizens of the country and have equal rights to education, employment and social acceptability.[4] The important paragraphs are reproduced here:


Para 83: Medical science has leaped forward to such an extent that even physiology appearance of a person can be changed through surgical procedures, from male to female and vice-versa. In this way, such persons are able to acquire the body which is in conformity with the perception of their gender/gender characteristics. In order to ensure that law also keeps pace with the aforesaid progress in medical science, various countries have come out with Legislation conferring rights on such persons to recognize their gender identity based on reassigned sex after undergoing Sex Re-Assignment Surgery (SRS).

The genesis of this recognition lies in the acknowledgment of another fundamental and universal principal viz. “right of choice” given to an individual which is the inseparable part of human rights. It is a matter of historical significance that the 20th Century is often described as “the age of rights”.

A person must first undergo hormone therapy and, if possible, live as a member of the desired sex for a while. To be eligible for hormone therapy, the person needs at least two psychiatrists to certify that he or she is mentally sound, and schizophrenia, depression and transvestism have to be ruled out first.

Para 105: If a person has changed his/her sex in tune with his/her gender characteristics and perception ,which has become possible because of the advancement in medical science, and when that is permitted by in medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS.


III. Recognitions


Aadhar: The recognition of transgender people is seen in new identity documents such as Unique Identification Number with the gender category including male, female and transgender. It is estimated that over 19,000 transgender people across the country have been issued Aadhar cards that recognize them as a third gender.[5]

Harassment:In Jayalakshmi v. The State of Tamil Nadu and Ors[6], the Madras High Court was confronted with a case where a male to female transgender person was harassed by the police to the extent that the person self-immolated (offers sacrifice by killing or by giving up to destruction) and died. The court held that the state had to pay compensation for the harassment by its police force and also directed the institution of disciplinary proceedings against the officers. [7]

SRS: In case of Bidhan Baruah, May 2012, a division bench of justices SJ Vazifdar and AR Joshi of Mumbai High Court, India observed that there is no legal bar to an adult man having a sex change operation.[8]The court also observed "there is no law which prohibits sex change operation." Also, The petitioner is 21 years old and hence a major and can take decisions for himself. The bench also assured Mr. Bidhan that if he felt any threat from his parents, he should go to the police.


This is a positive step towards the rights of transsexuals. The court while observing that an adult can decide to undergo sex change operation has in a way acknowledged the fact that the parental consent is not required prior to this operation.


IV. Problems

In India, there is no law, bill or guidelines that authorizes or bans a sex change operation nor any legal precedent so far has been developed, but there are instances of sex change operations, which are increasing day by day in India. Such sex change operation gives rise to many legal issues, which are required to be adequately dealt with. One of the most heart breaking part is the abstruse legal position of the sex reassignment surgery (SRS) itself and its legitimacy of the post-operation certificate offered by the health care providers about the existing sex of the transgender person[9]since, there is absolutely no precise policy or legal recommendations on the same from the government.

It is a key barrier that often prevent them in exercising their rights related to marriage with a person of their desired gender, child adoption, inheritance, wills and trusts, employment, and access to public and private health services, and access to and use of social welfare and health insurance schemes.


[1]Sawant, N (2017). Trangender: Status in India. Retrieved January 21, 2019

[2]ibid

[3]National Legal Services Authority v. Union of India ,WP (Civil) No 604 of 2013

[4]http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

[5]See Demographic Data Standards and Verification procedure (DDSVP) Committee Report, Unique Identification Authority of India, December 2009

[6]MANU/TN/8598/2007

[7]Marie Mcgregor, (2013). Transsexual People in the Workplace: Zero Tolerance for Discrimination, Retrieved January 21, 2019

[8]http://www.bbc.com/news/world-asia-india-17980387, last visited on 8 June, 2015.

[9]Venkatesan Chakrapani. (Forthcoming). Sex Change Operation and Feminizing Procedures for Transgender women in India: Current Scenario and Way Forward. In Arvind Narrain and Vinay Chandran (Eds.). Medicalisation of Sexual Orientation and Gender Identity: A Human Rights Resource Book. New Delhi: Yoda Press.

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