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Kalamassery:

Picture of First trans solidarity rally and march, Washington, DC USA (Image Credit: Wikimedia)

The Kerala High Court has ruled in favour of Arundhathi, a transperson on whom her mother filed a habeas corpus, alleging she was a mental patient who has been abducted by trans community.

The Court asserted that the transgender had “the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home” as demanded by her mother. The Bench comprising Justice V. Chitambaresh and Justice K.P. Jyothindranath has held that the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India takes within its sweep the right of a person to live as a transgender

Arundhati, a 25-year-old transgender woman in Kerala, was incarcerated by her own family and was continuously abused for the past year due to her identity. She was also put in a mental asylum for months as the family wanted to ‘cure’ her.

Following the year-long imprisonment in her own house and hospital, she finally escaped from the home in order to live her own life. According to Maya Krishnan, Arundhati’s lawyer, the unrelenting family filed a man missing case in Kalamassery Police station.

Arundhati was initially taken to a mental hospital to cure her of her ‘transgenderness’ for 4 months and when they observed no change, her family planned to put her in the hospital again which prompted her to leave them for good. She went out once to return after a week and thereafter has permanently left the parental home on 9.5.2018 and has not returned so far.

But as they filed the man missing case, she went to the police station to explain her conditions. She talked to her parents inside the Circle Inspector’s room. The officers made it clear that it was not their job to force a transgender person to go home. The case was dismissed and Arundhati was let go.

Even when it was made clear to her family that she is her own person and have the right to choose her gender and to live as she pleases, the family filed a complaint with the City Police Commissioner. The Commissioner transferred the case to the Elamakkara police station.

Later, Arundhati was presented at Kalamassheri Magistrate Court. She explained everything and asserted her transgender identity.

Unfortunately, her problems didn’t come to an end. Her mother filed a Habeas Corpus in High Court. They have alleged that their son was missing and abducted. She was called to appear in court  June 4th, Monday. She had contacted the Sub-inspector and told him that she was ready to come to the station and appear before the court.

On Sunday, her advocate Maya Krishnan was contacted by the SI and he threatened her to present Arundhati as he couldn’t contact her. Maya Krishnan said that no threat could make her bail on transgender issues and Arundhati will appear before the court on Monday.

On Monday, in the High Court, Arundhathi’s mother alleged that her son was detained by some transgenders in Kochi and she demanded that her son should be freed. Mother’s petition stated that he son had started behaving abnormally and was violent at times necessitating, admission in Stella Maris Hospital, Padupuram.

She argued that Arundhati was diagnosed as having a mood disorder with psychotic features and was treated as an inpatient that helped her to gain insight temporarily. Her mother stated that Arundhati has shown no inclination to return home and was wandering with transgenders exposing herself to the risk of physical abuse and organ transplant.

Arundhati appeared before the Court, dressed as a female and asserted that she is a transgender by birth and does not suffer from any sort of mental aberration as alleged by her mother. But her mother brought about the past history of psychiatric treatment being extended to Arundhati and wanted an immediate medical/psychological evaluation.

The Court directed medical/psychological evaluation of Arundhati by the Kusumagiri Mental Health Centre, Kakkanad, Ernakulam which was necessitated because it was alleged that she is a psychiatric patient. A team of doctors comprising of the Chief Psychiatrist, Psychiatrist & Medical Superintendent and Clinical Psychologist evaluated her for about two days. It was found that the orientation of her was normal and she has no thought disorder or hallucinations or inappropriate mood indicative of no mental incompetency.

Mental Health Centre After-Evaluation Report of Arundhati reads as follows:

“Aby James aka; Arundhati informed that he used to dress like girls from childhood. He used to keep company with girls during school life. He has aversion to males and avoids their company. In his words “I have the mind of a woman and the features of a man which does not suit me”. He said he realised there are people like him only when he saw the Malayalam movie “Chandupottu”. He asserts that unless he is allowed to live like a woman, he will commit suicide. Also expresses the desire to undergo corrective surgery to change the sex.”

The medical report further confirmed that though Arundhati has normal male genitalia on external examination fits the label ‘transgender’ as per the Diagnostic and Statistical Manual 5th Edition (2013).

Live law reports that the Court went on to note that the self-identification of the person before it as a transgender was evident by Arundhati’s speech, mannerism and clothing, which the Court claimed to have noticed during its interaction with her.

The Court further referred to the decision in the case of National Legal Services Authority vs. Union of India, (2014) 5 SCC 438, wherein the Apex Court had directed Centre and the State Governments to recognize transgender as the third gender and also to provide them with the benefits of socially and economically backward class.

The excerpt from National Legal Services Authority v. Union of India [(2014) 5 SCC 438] which the court site is as follows:

“71. Principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied usage and means by way of expression, speech, mannerism, clothing etc. 

Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behaviour and presentation. The state cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that the values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.”

The Court then allowed Arundhati to live as per her will and refused to issue Habeas Corpus.

Arundhati’s Advocate Ms.Maya Krishnan said that the case has opened up a whole lot of discussions about the transpersons and the transphobic behavior they face from their own homes. Many have been imprisoned in their homes and a lot of them were subjected to mental abuse. “I am thinking of addressing the issue of the hospital who treated her and tried to cure her transgenderness”,said Advocate Maya while speaking to TWJ.

The transphobia faced by transpersons from their families and the society continues to threaten the safety of transgenders in Kerala.

 

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