ISSUE: WHETHER STANDARD OPERATIVE PROCEDURE

PROMULGATED BY MINISTRY OF YOUTH AFFAIRS & SPORTS

AND POLICY ADOPTED BY SPORTS AUTHORITY OF INDIANA
AND ATHLETICS FEDERATION OF INDIANA IS ULTRA VIRES
TO THE CONSTITUTION

SUB ISSUE: WHETHER THE SOP AND POLICY VIOLATE

ARTICLE 15 AND ARTICLE 19(1)(g) , [RIGHT TO ANY
PROFESSION] OF THE CONSTITUTION

violation of Article 15, and 19(1)(g)of the constitution.

The policy implemented by the Govt. Of Indiana is found to be in
violation of the basic fundamental rights under article 15 and 19(1)
(g) of the constitution.

GENDER DISCRIMINATION

The High Court in Naz Foundation 1 recognised the

importance of this principle in our constitutional scheme and held
that personal autonomy is inherent in the grounds mentioned in
Article 15. In doing so, the Court was merely following the
precedent set in the Anuj Garg Case 2, where the Supreme Court held

1 Naz Foundation v. Govt of NCT of Delhi, 160 Delhi Law Times 277

2 Anuj Garg v. Hotel Association of India, 3 SCC 1,(2008)

the value that underpins article 15, prohibition on sex discrimination
to be the right to autonomy and self-determination. Amongst the
grounds mentioned therein, race, caste, sex and place of birth are
grounds over which most of us do not have any effective control.
Discrimination on the basis of the unspecified analogous grounds has
been challenged under Article 14, often successfully.

It relies primarily upon two judgments of the Supreme

Court: NALSA v Union of India3 and Puttaswamy (I) v Union of
India4 .In NALSA, the Supreme Court held that the right to gender
identity was protected under Articles 19 and 21 of the Constitution.

Puttaswamy held that the right to privacy protected the

freedom to take intimate decisions regarding personhood and
autonomy, decisions that brooked minimum interference from the
State. The Hon'ble Supreme Court in NLSA case categorically stated
that no one shall be forced to undergo medical procedures,
including SRS, sterilisation or hormonal therapy, as a requirement
for legal recognition of their gender identity.

Self-determination of gender is an integral part of personal

autonomy and self-expression and falls within the realm of personal
liberty guaranteed Under Article 21 of the Constitution of India.
Petitioner herein has chosen to express her gender identity
as that of a woman. This falls within the domain of her personal
autonomy and involves her right to privacy and dignity. It is not for
the State authorities to question this self determination of the second
petitioner herein.

The petitioner has got every right to have her own sexual
identity that has been recognized by the society, which itself is
another fundamental right falling under Article 19(1)(a) of the
Constitution of India.

3 National Legal Service Authority v. Union of India (UOI) and Ors(15.04.2014)

4 K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors(24.08.2017)

Compelling an individual to expose to medical examination to
declare medically his/her sex identity itself is violative of Article 21
of the Constitution of India.

Process of asking hyper androgenic females to compete in

male category violates both rulings. It also violates the
proportionality standard laid down in Puttasawamy, by being neither
suitable, nor necessary, for giving effect to the principle of self-
identification.

RESTRICTION ON RIGHT TO FREEDOM OF PROFESSION

The Constitution of India, therefore taking into

consideration the need and the importance of work, enshrines and
has guaranteed a fundamental right under article 19(1) (g) to
practice any profession, or to carry on any occupation, trade or
business, to all the citizens residing with the jurisdiction of the
country. This right aims at the welfare and well-being of the citizens
as well as the nation as a whole. There must be a nexus between
the restriction and the object which is sought to be attained and
also it should not be objectionable to the whole spirit of the
Constitution. The Standard Operative Procedure created rules and
procedures governing the investigation, diagnosis and eligibility to
compete of hyperandrogenic female athletes, which subsequently
disqualifies their participation in National and International events
are against the fundamental right to practice a profession.

The Standard Operative Procedure and Policy followed by

the Ministry, SAI, AFI is arbitrary, illogical, illegal, done
capriciously in an unreasonable manner without adequately
determining principle cause and remedy. The proposed policy is in
violation of Fundamental rights under Article 14, 15, 19(1)(g), and
21 of the Constitution of Indiana. Since it directly affects the
fundamental rights, the scheme is held to be unconstitutional.