SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

With reference to transgender rights, the judgment of the Nepal Supreme Court discussed in
Chapter 1 on Non-discrimination in the case of Sunil Babu Pant v. Government of Nepal
remains the main legal development.
In India, one of the earliest developments in relation to transgender rights occurred through
the issuance of a Government Order by the state of Tamil Nadu in 2006, which
acknowledged basic citizenship rights for transgendered persons. 299 Based on the findings of
a committee to examine the status of transgender persons in the state, directives were issued
which included several positive aspects: the Health Department together with recognized and
qualified counselors were ordered to undertake a programme of counseling and sensitization
on transgender issues throughout the state; family counseling by teachers and those sensitized
on this issue were made mandatory so that children with gender identity issues were not
disowned by their families; transgender persons were prohibited from being banned from
educational establishments and if there was such denial of admission suitable disciplinary
action was to be taken by the concerned authorities; a survey of transgender persons was to
be undertaken throughout the state in order to identify their issues of concern and provide
appropriate assistance; the Health Ministry was asked to consider a decision to legalize sex
reassignment surgery in government hospitals; special vocational and skills development
training was to be provided and small loans to assist transgender persons in taking up
vocations were to be provided; and district collectors were to provide opportunities for
grievance redressal on a quarterly basis exclusively for transgender persons when their
concerns on access to identity cards and social welfare benefits would be taken up.
While Indian jurisprudence in relation to discrimination based on gender identity has not yet
evolved, courts have begun to respect transgender individuals as persons deserving of
fundamental protection. For instance, in Jayalakshmi v The State of Tamil Nadu & Ors., 300
the Madras High Court was confronted with a case where a transgender man was harassed by
the police to the extent that he immolated himself 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.
Yet, archaic criminal law continues to provide sanctions against “emasculation” 301 and
transgender persons are highly exposed to broad public nuisance laws 302 , which can be used
freely by police to extort and harass.
4.3 Medical/health services (including insurance coverage)
Amongst the research countries, Thailand is the only one which is officially providing and
regulating sex reassignment surgeries. Thailand provides several treatment options for sex
reassignment surgeries although there is a lack of clarity on rules or guidelines for the same.
The Medical Council in 2009, empowered by the Medical Profession Act, issued the
Regulations of the Medical Council Concerning Ethics in the Medical Profession Rules for
Treatment in Sex Change Operations, 2009. Clause 4 of these regulations provides that
“treatment for a sex change procedure” means treatment of an illness or an abnormal state of
mind by undergoing an operation to change (the physical characteristics) from a male to a
299 Available at: http://www.tn.gov.in/gorders/social/sw_e_199_2006.htm
300 (2007) 4 MLJ 849
301 Section 320, Indian Penal Code (Grievous Hurt)
302 Section 268, Indian Penal Code (Public Nuisance), Section 110, Bombay Police Act, 1951 (Indecent
Behaviour in Public), Section 111, Bombay Police Act, 1951 (Annoying Passengers in the Street)
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