Identity Crisis of Transsexuals [Corbett and Psychology Test]

In the global scenario, the Universal Declaration of Human Rights was the first internationally recognized document that laid down the rights of people.In the Indian Context, the Indian Constitution that came into force in the year 1950, had a set of rights enshrined within it, that were ’gender neutral’. The scope of Article 21 of the Indian Constitution, i.e., the Right to Life and Personal Liberty had been widened by the Apex Court to Right to Lead a Dignified Life. 

The absence of proper recognition to the transsexuals has resulted in a blatant violation of Article 21. The issue that arises herein is that what gender should be a transsexual person be referred to by? Should the person be identified by the biological gender the person was born with or should the person be identified by the gender the person wants himself to be perceived with. 

To deal with this issue, there arise two concepts. The first being the ‘Corbett Principle’ and the second being the ‘Psychology test’.

The Corbett Principle was laid down by the courts in the United Kingdom in 1970 in the case of Corbett^[1] wherein it stated that the biological sexual constitution of an individual is fixed at birth, and cannot be changed either by the natural development of organs of the opposite sex or by medical or surgical means. 

Thereby meaning that, it is the biological factor that should be taken into consideration while deciding the person’s gender.

The Psychology test has been proposed by courts of various countries like, Australia, New Zealand, Kuala Lampur and also India through their respective Judgements. In India, the Apex Court in the NALSA Judgement^[2] stated that “Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.”

Therefore, on clear analysis of the above two cases it can be said that the first principle for Gender Identity was the Corbett principle by the U.K. Court. Thereafter, the Supreme Court of India in the NALSA Judgement in the year 2014 by adopting the ‘psychology test’ principle for gender identity in a manner implicitly ruled down the Corbett Principle.

Thus, it can be said that the Law of the Land as of today’s date in regard to gender identity of Transsexuals is that the ‘psychology test’ has to be applied.

Also, another point to be noted is that the gender identity of a transsexual is neither confined to civil nor to criminal matters, instead, this concept is one which flows across all the laws of the land owing to the fact that it derives its authority from the Indian Constitution and therefore is supreme in nature. 

[1] Corbett v. Corbett, [1970] 2 All E.R. 33

[2] National Legal Services Authority v. Union of India, AIR 2014 SC 1863