Author: Pooja Ratnani, Nena Mishra & Ishita Sharma

The world takes down its eyes and decline a discussion over the recognisation of basic human rights to the transgender community and it is regretful to see that such discrimination existed even in this era of rights and liberty. The Court finally removed this stain by pronouncing the milestone judgement in the favour of transgender community. National Legal Services Authority v. Union of India & Ors[1] is a widely hailed and landmark judgement by Supreme Court which gave the legal recognition to the rights of transgender people, who were facing a lot of hardships, abuses regarding their gender, treated as untouchables and lacked their identity before this judgement. Pre-existing Indian Law only recognised the binary genders of male and female, and lacked provisions with regard to the rights of transgender people. Apex Court, acknowledging all the grievances of the transgender people, upheld that self identification of one’s gender is Fundamental Right of a person and declared Hijra, Eunuch, Kothis, Jogappas, Shiv-Shakti, etc. as ‘Third Gender’. It was prayed before the Court that non-recognition of their gender identity violates not only their Fundamental Right enshrined under Constitution[2] but also Human Rights recognised by United Nation instruments, various International Covenants and Yogyakarta Principles. Eventually, Hon’ble Supreme Court directed the Centre and State Government to take required steps in this regard.

FACTS

The people of transgender community who were neither treated as male or female nor given the status of third gender, were deprived of many socio-cultural privileges and rights including deprivation from access to education, health and public places. For the legal recognition and protection of the rights of transgender community, two writ petitions were filed before the Hon’ble Supreme Court of India. National Legal Services Authority (Hereinafter referred as NALSA) filed a writ petition in 2012 and submitted that every person of the community has legal right to decide their sexual orientation and determine their gender identity by putting forward the traumatic experiences of the members of transgender community. After that, Poojaya Mataji Nasib Kaur Ji Women Welfare Society also filed writ petition in 2013 and sought similar reliefs for Transgender community.

ISSUES RAISED

  1. Whether Transgender have right to be identified and categorized as ‘Third Gender’?
  2. Whether Transgender have the right to self identification of their gender?
  3. Whether non-recognition of their gender identity is a violation of their Fundamental Rights as well as Human Rights?

FINDINGS AND REASONING

In the present judgement Hon’ble Supreme Court has considered various international and regional conventions, reports while adjudicating the matter on the rights of transgender community. The Court has also referred various articles curbed in the Universal Declaration of Human Rights, 1948, International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social and Cultural Rights, 1966 and Yogyakarta Principles (endorsed by UN Bodies, Regional Human Rights Bodies, National Courts, Government Commissions and Commissions for Human Rights etc.).[3]

            Supreme Court quoted that “The United Nation has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender people.”[4] Further Hon’ble Court referred Article 6 of UDHR[5], Article 16 and 17 of ICCPR[6] and quoted Article 2 mentioned in the report of United Nations Committee on Economic, Social and Cultural Rights, 2009. Thus, it can be inferred that any type of discrimination with person having sexual minorities violate their internationally recognized Human Rights.

Supreme Court admitted the fact that transgender, as a whole, faces multiple forms of hardships and oppressions in India which violates their various Fundamental Rights in some or other ways. These Fundamental Rights majorly includes –

Article 14: State shall not deny “any person” equality before law or equal protection of the laws within the territory of India. Thus, it can be derived that, the word ‘any person’ is not just restricted to male and female but also includes transgender in its ambit. Therefore, transgender community is also entitled to legal protection of laws in all areas of State activity including employment, healthcare, education, equal civil and citizenship rights. Non- recognition of Transgender community as third gender results in discrimination. Discrimination based on sexual orientation or gender identity therefore impairs equality before the law and equal protection of law thereby violates Article 14 of the Constitution.[7]

Article 15 and 16: These articles seek to prohibit discrimination on the basis of “sex”, both of the articles prohibit all forms of gender bias and gender based discrimination. Here, the meaning of word ‘sex’ is not just limited to biological sex as male and female but is intended to include people who consider themselves neither male nor female.[8] Discrimination on the basis of sex under these articles, therefore, includes discrimination on the basis of gender identity.

Article 19: Article 19(1)(a) declares that all citizens have right to freedom of speech and expression which includes right to expression of one’s self identity.[9] In addition to this, the court, referring to some international judgements including City of Chicago v. Wilson et al.[10], Doe v. Yunits et al.[11], stated that no restrictions can be placed on one’s personal appearance or choice of dressing, subject to the restriction contained in Article 19(2). Therefore, the Court held that values of privacy, self identity, autonomy and personal integrity are Fundamental Rights guaranteed to members of transgender community.

Article 21: This Article has been titled as heart and soul of Indian Constitution.[12] It specifically protects the dignity of human life, one’s personal autonomy and one’s right to privacy. Recognition of one’s gender identity lies at the heart of Fundamental Right to dignity.[13] Personal autonomy includes both negative and positive right of individuals to make decision about their life.[14] Self determination of gender and self expression is an integral part of personal autonomy. Legal recognition of gender identity is therefore part of right to dignity under our Constitution.                   

PRONOUNCEMENT

Hon’ble Supreme Court held that transgender be treated as “Third Gender” for the purpose of safeguarding their rights and upheld the right to decide their self identified gender. Along with this, Apex Court issued few directions in this regard for Centre and State Government to-

  1. Grant legal recognition to “Third Gender”.
  2. Take necessary steps for their socio-educational development.
  3. Operate HIV Sero- surviellance Centres separately for them.
  4. Address the problems commonly faced by them.
  5. Address the insistence of SRS[15] as immoral and illegal.
  6. Provide proper sanitation and medical care facilities.
  7. Create public awareness so as to regain their respect and place in the society.

Hence, Writ Petition was allowed.

COMMENT OF AUTHORS

A petition on behalf of the country’s transgender community was allowed by the Supreme Court of India and the transgender community got the status of ‘Third Gender’. Further, it directed the Central and State government to give legal recognition to the third gender, so as to enable the individuals to identify themselves as male, female or third gender. The government was ordered to proceed with requisite steps in order to promote health programs that are transgender-specific, remove the social stigma and grant them equal legal protection. Although the judgement has been delivered in the favour of transgender community and they got legal recognition in the society but it was behindhand. Even after 67 years of independence, Indian Judiciary failed miserably to take cognizance of legal recognition and rights of LGBTQI Community who has been the part of society from time immemorial. Non recognition of the said community has rendered them to mere animal existence. Self recognition of Gender identity of a person is a basic Human Right. The Court should have taken suo moto action acknowledging that right to self recognition of one’s gender is not only an inherent Fundamental Right guaranteed by Constitution of India to every citizen but also a human right. Abstainment of the same resulted in delayed justice. Furthermore, when any judgement is pronounced, it is generally expected that it will cover all the associated spheres of the subject-matter. But the aforesaid judgement was entirely centred to the transgender community leaving behind LGBI. This is because recent judgement has solely expressed its concern over the mental trauma faced by the transgender community.

Supreme Court has explicitly mentioned about the examination of the recommendations made by the Expert Committee on the basis of its legal declaration in this judgement and has allotted the time of six months for the implementation. Ignoring the fact, what the recommendations were and the order issued by the Hon’ble Court to the Government, without taking into consideration about how much time could be taken for the implementation of the recommendations and the orders issued by the Court to the Government, Supreme Court has erred in declaring the time period i.e. 6 months. The above-mentioned period might not be sufficient for strict implementation which is the sole objective of this landmark judgement.

Supreme Court has categorically categorized transgender community as a backward class, here; it is worthwhile to mention that it is the power delegated to National Commission for Backward Classes and hence Hon’ble Supreme Court erred by interfering in the same.

The term ‘Eunuch’ is a man who has been castrated, especially one employed to guard the women’s living areas at an oriental court i.e. bedroom-guard (According to Oxford Dictionary). Eunuch is neither equivalent of transgender nor a form of it, even though the restrictive approach has been followed in determining the meaning of ‘transgender’ but still it has been included by the Hon’ble Court in its judgement, which rendered things unanswered on the part of lesbian, bisexual, and intersex community. Therefore, it is not justified to include ‘Eunuch’ in the transgender community and to exclude lesbian, bisexual, intersex while interpreting the term ‘transgender’ in a narrower sense or broader sense respectively.

Besides all these loopholes in the judgement, the decision is one of its kinds in the history of international judgements and it has the ability to influence lives of the transgender community who were yearning for the recognition of their gender identity since years. It is noteworthy that the aforesaid decision stood in sharp contradiction to the decision made by Indian Supreme Court in Naz Foundation v. Govt. of NCT of Delhi, which criminalized homosexuality. However it directly or indirectly paved the way to struck down section 377 of Indian Penal Code, 1860.


1. Writ Petition No. 400 of 2012, (2014).

2. Constitution of India, 1950.

3. National Legal Services Authority v. Union of India, WP No. 400 of 2012, (2014).

4. supra note 3 at ¶ 21.

5. Universal Declaration of Human Rights, art. 6- “Everyone has the right to recognition everywhere as a person before the law” (1948).

6. International Covenant on Civil and Political Rights, art. 16- “Everyone shall have the right to recognition everywhere as a person before the law”; art. 17- “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks” (1966).

7. supra note 3 at ¶ 55.

8. supra note 3 at ¶ 59.

9. supra note 3 at ¶ 62.

10. 75 III.2d 525 (1978).

11. 2000 WL 33162199.

12. supra note 3 at ¶ 67.

13. supra note 3 at ¶ 68.

14. Anuj Garg v. Hotel Association of India, AIR 2008 SC 663 (2007).

15. Sex Re-assignment Surgery

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