V. CHITAMBARESH & K.P. JYOTHINDRANATH, JJ.
Tessy James Vs. Director General Of Police
said Chaz Salvatore Bono who himself was a transgender, advocate, writer, musician and actor.
“45. Thus, the Constitutional Courts may also act as Parens Patriae so as to meet the ends of justice. But the said exercise of power is not without limitation. The courts cannot in every and any case invoke the Parens Patriae doctrine. The said doctrine has to be invoked only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/legal guardian or have an abusive or negligent parent/legal guardian.”
4. We directed medical/psychological evaluation of the detenu by the Kusumagiri Mental Health Centre, Kakkanad, Ernakulam which was necessitated only because it was alleged that he is a psychiatric patient. A team of doctors comprising of the Chief Psychiatrist, Psychiatrist & Medical Superintendent and Clinical Psychologist evaluated the detenu for about two days. It was found that the orientation of the detenu was normal and he has no thought disorder or hallucinations or inappropriate mood indicative of no mental incompetency. The following extract from the medical report dated 6.6.2018 furnished by the Kusumagiri Mental Health Centre after evaluation throws light on the mental state of the detenu:
“Aby James informed that he used to dress himself like girls from childhood. He used to keep company with girls during school life. He has aversion to males and avoid 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.”
It is abundantly clear therefore that the detenu is undergoing an identity crisis which reminds us of the oft quoted words of Iago the villain in the Shakespeare's play 'Othello':
'I am not what I am.'
5. The medical report refers to the criteria for diagnosis as per Gender Dysphoria in Adolescents and Adults Code 302.85 International Classification of Diseases Code F 64.1 which are as follows:
“A) A marked incongruence between one's experienced/expressed gender and assigned gender, of at least 6 months' duration, as manifested by at least two of the following:
1. A marked incongruence between one's experienced/expressed gender and primary and/or secondary sex characteristics (or in young adolescents, the anticipated secondary sex characteristics).
The medical report further confirms that the detenu though has normal male genitalia on external examination fits the label 'transgender' as per the Diagnostic and Statistical Manual 5th Edition (2013).
“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.
The detenu has undoubtedly the right to wander about or associate with likeminded people and cannot be compelled to be at his parental home as wished by the petitioner who is before us with folded hands and tearful eyes.