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    High Court orders proper implementation of the directions laid down by the Supreme Court in National Legal Services Authority v. Union of India

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    Image used for representational purposes only.
    Date : 28/09/2015

    Satyabhama Rath Vrs. State of Orissa & Others W.P.C (PIL) No. 15601 of 2015, In the High Court of Orissa, Cuttack

    The petitioner is research scholar and also works in the field of human rights and health sector of her locality. That the petitioner submitted a representation to the Chief Secretary, Government of Odisha, secretary to Govt. of Odisha, Department of Health & Family Welfare and to the Commissioner cum Secretary, Women & Child Development Department to establish and provide minimum level of medical & healthcare infrastructure, equipments and free medicines to all the transgender and to treat the transgender as SEBC category and extending all kinds of reservation in case of admission in educational institutions public appointments and further prayed for this Hon’ble High Court direction to be issued to the Opp. Parties for proper implementation of the direction issued by the Hon’ble Apex. However, the opposite parties are sitting over the matter without taking any decision.

    Facts:-
    That despite the SC directions in NALSA Judgement, the transgender community continues to suffer discrimination, social and economic exclusion on account of being transgender, and have not been afforded proper protections or provided with necessary services of facilities.
    That the petitioner seeks the provision of appropriate healthcare facilities for transgender persons, including separate, gender-neutral hospital beds and wards, the proper sensitization of medical staff to transgender issues, the provision of free contraception and the provision of state-funded Sex Reassignment Surgery (SRS) with accompanying counseling and state guidelines.
    That since the transgender community is residing in deserted and unhygienic places far away from cleanliness, education, employment and does not have a shelter to reside and also does not have the capacity to take a square meal per day. Therefore the state should take appropriate action to provide and cover transgender persons under government housing schemes such as Rajiv Awas Yojana and Mo Kudia Yojana and that the respondents shall take steps to ensure that any person who refuses to sell or rent land or property to an individual on account of them being transgender shall be strictly reprimand.
    That the transgenders are not in a position to use the toilets meant for male or female and seek the provision of separate, gender-neutral public toilet facilities in public places and also seek the proper provision of identification cards to all transgender persons in the state, indicating their gender as the third gender, and that the respondents co-operate fully in assisting all transgender persons to formally change their names and status in official documents.
    That the petitioner further invites the kind indulgence of this Hon’ble Court in providing the transgender who are old to be covered under pension schemes as is done in case of male and female and further seeks a direction to the opposite parties. And furthermore seeks a direction to the respondents to take effective steps to raise awareness on transgender issues amongst the general public and public service providers, including the introduction of sensitization and training programmes and the inclusion of transgender issues in the state education curriculum.
    That in recognizing the legal status of transgender persons, the Supreme court held that “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity, and freedom…”. As such the court held that the right to self-determination and personal autonomy contained in Article 21 of the Indian constitution is guaranteed to all transgender persons.

    That the Indian constitution guarantees the fundamental rights of every Indian citizen, irrespective of race, place of birth, religion, caste or gender. Part III of the Constitution identifies a ‘person’ or ‘citizen’ as a rights-holder without reference to sex or gender. Thus, by virtue of the fact that a transgender person is a human being,all constitutional rights guaranteed by the constitution must necessarily flow to a transgender person; these include equality before, low, freedom of speech and expression and the right to constitutional remedies. This was confirmed in the NALSA judgment, where the SC held that “discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing quality by the constitutional rights of the members of the TG community.”

    Grounds: –

    a) Because the fundamental rights of the petitioners have been violated and continue to be so, including their constitutional rights to life, including health and dignity (Article 21), equality (Article-14) and non-discrimination (Article 15) and a number of international human rights laws.
    b) Because the state if Odisha has filed on all accounts to implement the direction of the Supreme Court in NALSA Vrs. Union of India (2014) 5 SC 438
    c) Because the petitioners and transgender community as a whole in Odisha continue to face discrimination, stigma and social exclusion
    d) because the petitioners and transgender community as a whole community to face barriers to education and employment and have no access to social welfare schemes, prolonging their economic exclusion and forcing them to work in dangerous, degrading professions
    e) Because the petitioners and transgender community as a whole have no access to transgender-specific healthcare services, including HIV services, SRS, contraception and separate hospital beds/words
    f) Because the petitioners and transgender community as a whole do not have access to gender-neutral public toilets
    g) Because the petitioners and transgender community as a whole have no assistance in gaining proper housing.

    Prayer:- In this Writ petition, the petitioner challenging the inaction of the state authorities in not treating the transgender as SEBC category and extending all kinds of reservation in case of admission in educational institutions public appointments and further prayed for this Hon’ble High Court direction
    to be issued to the Opp.parties for proper implementation of the direction issued by the Hon’ble Apex Court in case of National Legal Services Authority Vs Union of India (2014) 5 SCC 438.
    To pass an order for the provision of appropriate healthcare facilities for transgender persons, including separate, gender-neutral hospital beds and wards, the proper sensitization of medical staff to transgender issues, the provision of free contraception, and the provision of state-funded sex reassignment surgery (SRS) with accompanying counseling and state guidelines.
    To pass an order for e the provision of transgender-specific HIV services, including the introduction of transgender-specific HIV serosurveillance centers, as well as the guarantee of the entitlements of transgender persons living with HIV under Madhu Babu Pension Yojana Scheme.
    Pass an order for the provision of assistance in accessing higher education, including special reservations in admissions to state educational institutions and assistance with paying fees.
    Pass and order for the provision of assistance in obtaining meaningful employment, including the provision of livelihood support and social welfare schemes, employment programmes, skill development training and special reservations or public posts or appointments
    Pass an order to guarantee that transgender persons are included in government housing schemes such as Rajiv Yojana and Mo Kudia Yojana and that the respondents shall take steps to ensure that any person who refuses to sell or rent land or property to an individual on account of them being transgender shall be strictly reprimanded.
    To pass and order that for the provision of separate, gender-neutral public toilet facilities.
    To pass an order for the proper provision of identification cards to all transgender persons in the state, indicating their gender as the third gender, and ordering that the respondents co-operate fully in assisting all transgender persons to formally change their names and status in official documents.
    To pass an order for the guarantee of a state-funded pension for elderly transgender persons over 60 years of age under the National Social Assistance Programme or similar
    To pass an order that the respondents take steps to raise awareness of transgender issues amongst the general public and public services providers, including the introduction of sensitization and training programmes and the inclusion of transgender issues in the state education curriculum.
    To pass an order or order, as this Hon’ble Court deems fit and proper in this case.

    Status (In court): The aforesaid PIL is disposed of on 28.09.2015 in following observation:-
    “The petitioner has appeared as a party in person and step appears to have been taken by the opposite parties to implement the directions issued by the Hon’ble Apex Court in judgment and order dated 15.04.2014 in Writ Petition (Civil) No. 400 of 2012 (National Legal services Authority Vs. Union of India and Others)
    The petitioner claim to be Research Scholar working in the field of Human Rights and Health Sector of her locality, even as no data about the number of whereabouts of the transgender for whose benefit the petition is supposed to have been filed is submitted. It was clear from the reading of the judgment of the Hon’ble Apex Court that certain declarations, directions, and recommendations are issued by the Hon’ble Apex court in the aforesaid judgment. That being the law of the land, the authorities concerned of the state Govt. are required to implement the directions and consider the recommendations in framing and implementing its policies. Therefore, the petition is disposed of with the observation that the opposite party No. 2,3 and 4 shall take into account the directions and recommendations issued by the Hon’ble Supreme court in Judgement dated 15.04.2014 in Writ Petition (Civil) No. 400 of 2012 with Writ Petition (Civil No. 604 of 2013. The petitioner shall serve a copy of this order along with copy of paragraph-129 of the aforesaid judgement of the Hon’ble Apex Court upon opposite party No. 2, 3 & 4.”
    The petition stands disposed of accordingly.

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