The Delhi high court on Monday asked the Centre to consider giving an alternate job to a transgender sailor who was removed from service after sex change, terming it an "out of the box situation".
"You can punish her for indiscipline, but at the same time you can accommodate her," a bench of Justices G S Sistani and V K Rao suggested to Additional Solicitor General Sanjay Jain, who appeared for the Centre and Navy.
Calling for a change in mindset, the bench said the instant case was probably the only one of its kind in the armed forces and asked the Navy to consider the transgender for some other job.
"Here is an opportunity to look at it from a different perspective. It is an out of the box situation. It maybe a first of its kind situation.
"Here is a person struggling with gender identity. Had she suppressed the condition and continued, it would have been dangerous. It could have been fatal. Think about it and come back," the bench said and listed the matter for further hearing on November 23.
The court said that while the person deserved to be punished for indiscipline for being absent without leave, but where there was a medical condition of this sort, it may be seen from a different perspective.
During the course of the hearing, the bench said, "the mindset should change. In today's situation, a medical condition like this cannot be suppressed."
The court was of the view that the petitioner, who was posted onboard INS Eksila at Visakhapatnam, can give up claim for the job of sailor and may accept a clerical position so that the family, comprising aged parents, the individual's wife and child, need not suffer.
ASG Jain and central government standing counsel Anil Soni, who also appeared for the Navy, told the court that the individual in question "had a chequered history of indiscipline" for being absent without leave several times.
However, they agreed to take instructions on whether the instant matter can be taken up as a special case.
They also told the bench that the individual had got badly infected after undergoing sex reassignment surgery and it was the Navy which treated her humanely and provided treatment and counselling to her.
The lawyers said that one seat in another branch or department of the force cannot be blocked for such an individual who also suffered from psychiatric and gender identity problems.
They further argued that since the petitioner was a female now, she cannot be employed as a sailor in the Navy as that position is not open for women.
The ASG said the simple question before the bench was whether a woman, and not a transgender, can be appointed as a sailor on a ship as the petitioner was now a female.
The petitioner had challenged the October 6 order of the Navy removing her from service.
She had claimed that she was suffering from gender identity issues since 2011 and when she told her parents, they forced her to marry a woman.
She further claimed that she was absent from service without leave several times as she suffered bouts of depression, owing to her gender identity issues.
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'T' for transgender in railway tickets soon
Transgenders will now have the option of identifying themselves as the third gender with the railway board modifying reservation forms to provide the option 'T', besides 'M' (Male) and 'F' (Female).
The railway board in a letter to all zonal railways has said that ticket booking and cancellation forms will be modified from the current option of 'Transgender (Male/Female)' to just 'T'.
According to the letter, the social justice and empowerment ministry is at present dealing with various issues of transgenders and a proposed legislation on this -- The Transgender Persons (Protection of Rights) Bill, 2016, is being reviewed by a parliamentary standing committee.
"The matter has been reviewed and it has been decided that till such time the detailed modalities on this account are finalised by the ministry of social justice, a provision may be made in the system to capture the gender of transgender as 'T' instead of 'T(M/F)' as advised earlier," according to the October 17 letter.
In a landmark judgement in 2014, the Supreme Court created the 'third gender' status for hijras or transgenders. Earlier, they had to write male or female in gender column.
Following the order, many government documents such as passport, ration card, bank forms and voter identity cards have started providing 'TG' (third gender), 'Other' or 'T' (transgender) as options.
The railways introduced the option as 'T(M/F)' through an order in 2016 which, activists said, still forced them to choose between the binary genders -- male or female.
The railway board said in its review it had also taken into consideration directions of the Kolkata high court which had asked State Bank of India to allow the choice of third gender in its application forms for recruiting new employees.
This case pertains to a case filed by Atri Kar, the first transgender from West Bengal to appear for the civil services exam, who sought the court's intervention to enforce her right to participate in the selection process of SBI as a transgender.
The railway board also said that the Centre for Railway Information Systems, an autonomous organisation under the ministry of railways, will make necessary changes in the software for giving the option of transgender (T) alongside the option of M/F in the passenger railway system under intimation to all zonal railways, the letter said.
