Author: Eniya N

“There is neither Jew nor Greek, neither slave nor free, there is no male nor female, for you all one is Christ Jesus” [1].

“We the people of India……secure to ‘all its citizens’….justice…., liberty…..equality…assuring the dignity of individual…”[2]

Religion and law had been used as instruments to regulate human behavior. Both of them has ensured and advocated equality and liberty to all individuals without any discrimination. But  the 1.2million third gender community had to face a herculean battle to combat the centuries of oppression and shame inflicted against their existence. A man/woman who is unable to associate them with the gender recognized by birth is termed transgender. However, it also includes abroad spectrum of those people whose gender expression or conduct does not relate to the biological gender. Due to this non alignment, they are often shamed, insulted, shunned from the inclusive society. From being excluded from the family to not able to educate or work at higher levels, they are subjected to discrimination and insults at all levels in their life. This social stigma forces them to be identified in prostitution and begging for managing their livelihood.  The constitution that guarantees the fundamental rights mentions the term “persons” encompassing the third genders also in its ambit. But the discrimination on basis of their gender had denied them equal status and opportunity before the law and the social shaming deprived them of a dignified life.

Even after six decades of the evolution of largestdemocratic constitution, it was only in the year 2014 a Writ Petition was filed by the National Legal Services Authority in the Supreme Court The Landmark Judgment was given by the division bench comprising Justice Radhakrishnan and Justice Sikri A.K. The bench decided the pleas filed by

  • NLSA in W.P No. 400 of 2012 seeking legal declaration of a gender identity than the one assigned at birth as non recognition of the gender identity of their choice has violated Article 14 and 21 of the constitution.
  • Pooja Jaya Mata Nasib Kaur Ji Woman Welfare Society in W.P No. 604of 2013 seeking reliefs of same kind for Kinnar Community.
  • LakshmiNarayan Tripathy impleaded through I.A No. 2 of 2013 for grant of legal status to hijra community as ‘thirdgender’ citing violations of Articles 14 and21 of Indian Constitution.

In administering issues of gender justice, the Court formulated two core issues from these petitions which are as follows:

1. Whether a person who is born as a male with predominantly female orientation (or vice-versa), has a right to get himself to be recognized as a female as per his choice more so, when such a person after having undergone operational procedure, changes his/her sex as well  Affirmative Right to choice is a fundamental right under Article 19 and 21 of the Indian constitution. The Gender identity should be based on a psychological test and not on any biological test.
2.Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a “third gender”?  Affirmative As per fundamental rights under Article 15, 16, 19, 21 of the Constitution. The term third gender also includes hijras, enunch, lesbians, gays, bisexuals.

Judicial Decision:

The 130 page Judgment has been penned by incorporating the historical legacy of the transgender community in several religious texts[3] and the criminalization of the very same legacy since the colonial era.

The Court not just relied on historical data, but also the other socio economic and legal facets both domestically and internationally to affirm both the issues. As Article 14,15,16, 19, 21 of the constitution uses the term ‘person’ without specifying any gender, the ambitof the constitution henceforth applies to the TGs to protectthem against any form of discrimination or abuse.The  essence  of the fundamental rights with specific reference to TGs as highlighted in the case is as follows:

  • Article 14- equality before law and opportunity to be available to all persons.
  • Article 15- to prohibit any unnecessary discrimination based on gender. 
  • Article 19(1)(a)- freedom of expressing one’s gender belief i.e., self identification of one’s own gender
  • Article21 – To a live a life with liberty, dignity and primacy to be given to individual in leading one’s life.

On analyzing the plethora of rights, the Court also held that gender identity and sexual orientation should not be based on any biological or scientific test, but only based on individual experience which is a psychological test that gives liberty to self identification.

Also, having granted psychological test as a basis for gender identity, the Court also affords protection against the psychological stress and pressure from anyone to take up a sexual reassignment surgery to associate with any one of the gender.

On account of the plight of the hijra community who neither associate with either men or women in reproductive capacityand high prevalence of HIV aids on them enabled the Court to order for enhanced HIV Surveillance mechanisms among the TGs.

Among all, directions have been given the Central Government to take steps to ensure awareness of the third gender rights in the society which will be the only solution to elevate the shunned community back into the inclusive forum.

Human Rights Jurisprudence:

As stated earlier the entire Judgment had its genesis by relying on several International Conventions, Case laws and Yogyakarta principles. Article 6 of Universal Declaration of Human Rights and Article 16 of International Covenant on Civil and PoliticalRights,1966  recognize and guarantee the right to live. Article 17of ICCPR also point out that no one even law could interfere in the individual exercise of one’s own human rights that also includes gender identity. Reference was also made to Convention against Torture specifically to address the case of police harassment and custodial violence against the TGs.  Above all in 2006, the International commissionof Jurists has with the help of legal experts also formulated the state obligations in protections of Human rights at Yogyakarta, Indonesia that is also called as Yogyakarta principles. One of the important principle is that it calls for repealing criminal and other provisions that prohibit consensual sexual activity between same sex. In doing so, the rightto recognition, life, treatment with humanity when in detention etc are also of relevance in dealing this transgender issue as a potential human rights case.

International Jurisdictions:

1.GermanyUnder Article 22, section3 of their constitution, the Parents are allowed to register their Children as not especified  n event of being born as transgender.
2.ArgentinaGender Identity Law passed in 2012 has enabled the right to be recognized as a third gender to every citizen. It also included the right to develop one’s own personality.
3.South AfricaThe Alteration of sex Description and Sex Status Act, 2003allows a person to change their sex registered in the population registry.
4.AustraliaThe Sex Discrimination Act , 1984 with its Amendments in 2013prohibits any discrimination on grounds of sexual orientation, gender identity etc.,A Sex Discrimination Commissioner is a special officer appointed for dealing with the breach of the law.

On analyzing the International position, the Court holding that the 20th Century being the age of rights, the TGs cannot remain victims to the social exclusion and discrimination. This Renaissance approach unveiled a new era to the third gender community by recognizing their legal status under the constitution. But at the same time, the Court also had not focused on certain nuances of the issue.

Critical Analysis:

 The enactment ofSection 377 of the Indian penal Code in1860 that has always been used as an instrument of harassment against the TGs penalizes unnatural sexual offences irrespective of the question of consent. It applies to both homosexuals and heterosexuals, but is often cited as a sanction to prosecute the TGs even after independence and the formulation of constitution. The Criminal Tribes Act, 1871 (repealed) was also cited to narrate the inhumane treatment inflicted to the TGs. According to the Act, any person identified as a transgender is presumed to be a criminal where they were brutally arrested and custodial violence was committed against those who identified with the opposite sex.

However, since the enforcement of constitution that guarantees the rights under Part II to all its ‘citizens’ and ‘persons’(non-citizens),the TGs continued  to be deprived of the basic human rights like education ,livelihood, social inclusion etc,. This Judgment was passed soon after the Supreme Court Judgment in Suresh Kumar Koushal v. Union of Naz Foundation[4]that upheld the constitutionality of Section 377 of the Indian Penal Code. However, the entire judgment by the SC deal only with the aspect of sexual orientation and gender identity of transgender and not its relation with Section 377 of IPC.Thus this creates a conflict as to the prevailing position of being criminalized under section 377 despite being legally recognized as a third gender through this Judgment.As a welcoming judicial emedy, the Supreme Court has also struck down section 377 of the Indian penal Code in a historic decision in Navtej Singh Johar v. Union of India[5]This also further creates a barricade in the institution of marriage and its related rights under the personal law for the TGs. Therefore with the judicial recognition of third gender, there is also growing need to amend the personal laws and other amendments to statutes t ensure the  enforcement of rights of the TGs.

Also, as per data a large number of transgender community belong to the scheduled communities. The Judgment by granting them the benefits of socially and educationally backward classes has deprived them the protection and reservation privileges of the scheduled communities. This is one of the major regressive effect of the direction in the Judgment which is yet to be addressed by both the legislature and executive.

Finally, the case only dealt primarily on the male to female transmission as framed in the first issue, but failed to analyze the female to male transmission which is also prevalent in many parts across the globe. This Issue in fact was raised in a Madras High Court Judgment[6] that headed by Justice Nagamuthu in a case that involved a lady constable named nangai was removed from service when the medical examination authorities reported her to be a transgender. However, the Court held that though the Supreme Court’s Judgment has not dealt with the female to  male transmission and their legal status, the Court grants remedy in favor of the constable for reinstatement on the ground that compulsory medical examination to examine gender is violative of Article 21 of the constitution.

Though the jurisprudence of third gender rights in India has been developed to the stage of an exclusive Bill by the Parliament, the seed for the wide spread awareness and acceptability of the pride movement of the third gender had its inception with the 2014 Judgment.  Human being born in the earth has to live his life. And in battling such survival, laws has its own obligation to acts only as a catalyst in enabling an individual to live the life with liberty without any stigma or oppression from other members of the community. And the Supreme Court has rendered judgments of renaissance that will be marks of milestones in the future legal developments in case of Individual Liberty and the Gender Justice.

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