By Madhavi Gopalakrishnan*
In August this year, proceedings were initiated to discharge Sabi Giri, a sailor with the Indian Navy, on grounds that she had undergone sex reassignment surgery in the previous year. Sabi, who had joined the Navy as an 18-year-old, had felt uncomfortable with her gender identity for some time; in October 2016, she took the decision to fully transition into and present as a female, paying for her surgery out of her own pocket while on leave. When Sabi returned to work twenty-two days later, she contracted a urinary tract infection, forcing her to visit a Navy doctor and to reveal her gender identity.
News reports stated that while her infection was soon cured, her status as a transgender woman quickly became common knowledge. Sabi noticed a marked change in how she was treated; ignored by her former friends, her only contact with other officers was marred by propositions for sex. Once higher authorities got wind of her transition, Sabi’s situation took a turn for the worse: she was placed in a male psychiatric ward for six months. When she was finally released in April this year, authorities continued to dither over what to do, only taking the decision to discharge her in August.
In a statement released by the Press Information Bureau of the Defence Ministry, Sabi’s transgender status became public, and she was continuously misgendered and referred to by her former name. The statement claimed that Sabi “wilfully altered his gender identity from the one he was recruited for at the time of his induction”. The statement offensively concludes that the termination of employment is due to Sabi’s “altered gender status [and] medical condition”, seemingly referring to her involuntary confinement in the psychiatric ward.
Protections for Transgender Persons in India
The judgment in NALSA v. UOI held that the failure of the State to recognize the gender identity of transgender persons would violate Articles 14 and 21 of the Constitution. In rendering its judgment, the Supreme Court observed that members of transgender communities face discrimination in access to housing, education, healthcare, and employment, and therefore the State was “bound to take affirmative action to give them due representation in public services”. In furtherance of this observation, the Court additionally held that Article 16, which prohibits discrimination on the basis of sex in public employment, would apply to the transgender community.
A Private Member’s Bill to give effect to the NALSA judgment was passed by the Rajya Sabha in 2015, and then introduced before the Lok Sabha in August last year. However, the Transgender Persons (Protection of Rights) Bill has been pending ever since, opposed by people across the ideological spectrum. The transgender community itself has objected to several provisions in the bill, which uses offensive and inaccurate language to describe transgender persons, and is widely seen as inadequate to address the unique socio-economic status of transgenders in India.
International Law and Policy on Transgender Rights
Possibly foreseeing that Parliament would put such a Bill on the backburner, the Court in NALSA had further held that, in absence of “suitable legislation protecting the rights of the members of the transgender community…[and without] a contrary legislation, municipal courts in India would respect the rules of international law”. The most comprehensive formulation of the protections available to LGBTQ persons under international law are the Yogyakarta Principles, which explicitly set out the right of such persons to access education, security of person, healthcare, and any such rights usually available to citizens of a nation. The United Nations Human Rights Council (UNHRC) has, in essence, ruled on several occasions that LGBTQ rights are human rights, and that the State cannot discriminate in their treatment of such persons versus other citizens.
NALSA draws from these principles, stating that discrimination against a person on the basis of their gender identity and expression is akin to discrimination on the basis of sex. At present, the rights available to transgender persons even in the international realm are not ‘special’, nor do they prescribe affirmative action programs, but they merely affirm that transgender persons must be treated on par with every other human. The Indian State fails even at this basic requirement of providing constitutionally-available rights to an oppressed minority community.
What about the Navy?
Article 21 states that no person can be deprived of their life and personal liberty, except through procedure established by law. In the instant case, there is no existing law that permits the Navy to confine its employees to a psychiatric ward without any reason, nor is there any reason to believe that such a law would be valid. Moreover, since Sabi has transitioned and identifies as a woman, placing her in the male psychiatric ward violates her right to have her gender identity recognized and validated by the State and is also violative of her right to privacy. While Sabi has not revealed whether she was referred to a military psychiatrist, which is standard protocol for confinement, it is shocking that the response to her transition was to brand her as mentally ill. The recent Mental Healthcare Act defines mental illness as a “substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behaviour, capacity to recognise reality or ability to meet the ordinary demands of life”. A transgender person is not mentally ill simply because of their transgender identity. Additionally, the Act has specifically stated that persons confined to psychiatric wards or mental hospitals have the right to information and confidentiality about their illness and treatment, both of which were breached in Sabi’s case.
The Navy Act specifically prohibits women from being employed in service of the Indian Navy, except in non-combatant roles, such as a legal officer or as naval architect. In fact, until recently, women were only permitted to be employed in the Short Service Commission (SSC), which would allow them to only serve for 14 years; it was only in 2011 that the Ministry of Defence permitted women to join the Permanent Commission, which allowed them to serve for a lifetime, and to avail benefits such as pension. However, this meant that the Permanent Commission was still only available to women in the branches of law, naval architecture, and education. However, a bench of the Delhi High Court accepted the contentions of several female officers belonging to the Navy, who were seeking equal rights with their counterparts in the Army and the Air Force, which allow women to serve as both SSC and Permanent Commission; the matter has been appealed and is pending before the Supreme Court.
Sabi herself has pointed out the irony of her situation: while recruited as a young man, she was deemed fit for service, despite not having any prior training. Seven years later, she has a considerable amount of experience in the Navy, but is deemed ineligible solely due to her gender. While the Navy has announced that they plan to formulate a policy for women to serve on warships, they are yet to explicitly engage with the transgender population of the country. However, it is clear that the Navy is open to changing its policy on women serving as active combatants, and hence its decision to discharge Sabi, without making arrangements for her to serve in another capacity, is disheartening. The armed forces have a lot of catching-up to do; their policies do not even recognize the existence of transgender persons, let alone being transgender-friendly.
The Way Forward
Sabi Giri wants to challenge her discharge, and is willing to take the fight for her rights to the Supreme Court. She must be encouraged to challenge the Navy’s treatment of her after her transition, especially her illegal confinement in the psychiatric ward. She should also challenge her discharge as violative of her basic right to equality and gender identity under Article 14. Transgender persons have been continuously recognized as one of the most stigmatized and marginalized communities, internationally and in India. The State must endeavour to promote, rather than restrict employment of this community, and its failure to do so violates the law set down by the Supreme Court of India. The collective number of personnel employed in the Indian armed forces is one of the largest in the world; the armed forces must institute policies that recognize, protect, and encourage transgender people to be part of them.
While we support Sabi in her endeavour for justice, it is also essential to remember that the fight is not over. Parliament continues to ignore the Bill to protect the rights of transgender persons, despite it being introduced more than two years ago. Transgender people continue to be ostracized, harassed, and violated simply for realizing their right to express their gender identity. The Transgender Persons Bill must be amended to include an accurate and sensitive definition of transgender persons, but it is equally important for the State to create a reservation for transgender candidates in the public sphere, as well as offering incentives to private actors who employ and train transgender persons. Finally, it is illogical and discriminatory for the Navy to continue to permit women to only serve in a limited capacity, and it is hoped that this case changes the narrative, and encourage the Navy to get rid of all its discriminatory policies and become a force for equality.
*Madhavi Gopalakrishnan is a remote intern with the Asian Human Rights Commission. She is a final year law student at the Jindal Global Law School, Sonipat.