National Legal Services Authority v Union of India and others

Estimated Reading Time: 13 minutes

Writ Petition Civil no. 604 OF 2013

Introduction

The phrase “transgender” is a blanket term for people whose gender identity does not conform to the gender assigned to us. For some people, gender evolves differently and does not fit into the obdurate traditional notion of male-female paradigm. The transgender Community has been side-lined by the Community and have been tormented and discriminated in every aspect of life since time immemorial. They are subject to violence and abuse just because they don’t come under the universally recognized genders. They are tortured and deprived of freedom and rights enjoyed by the citizens. The National Transgender Discrimination Survey revealed that 26% of trans people lost a job due to bias, 50% were harassed on the job, 20% were evicted or denied housing, and 78% of trans students were harassed or assaulted. Though these people’s rights are protected by a range of international and regional mechanisms, the castigating laws and practices targeting transgender people, rob them of their rights and limit access to justice, which results in gross violations of their human rights. 

Ultimately, a petition was filed by the National Legal Services, which provides free legal aid to the disadvantaged and unprivileged sections of the society and resorts to solving their grievances Authority, who in this case was the primary Petitioner, along with Poojaya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan Tripathy, a renowned Hijra activist.

The petitions were filed on the grounds of non-recognition of the transgender community as a separate sexual, and gender identity is a violation of many Fundamental and Human Rights protected by the Indian Constitution and other International Human Rights documents. Fundamental rights, including Article 14 and Article 21 Transgender’s have the right to enjoy the same rights and freedoms which the binary genders male and females enjoy.

Facts

National Legal Services Authority was formed on 9th November 1995 under the Legal Services Authorities Act, 1987, to provide free services to the eligible candidate and organize Lok Adalat for a speedy resolution of cases fast justice cases and reducing the burden of the judiciary. The present case was filed by the National Legal Services Authority of India (NALSA) to legally recognize persons who fall outside the male/female gender paradigm, including persons who identify as “third gender”. These people are deprived of medical facilities, educational facilities, etc. and are exploited and mistreated by individuals which amount to gross violation of the fundamental rights of our country and several International Human rights. 

Issues

Whether non-recognition of gender identity of Transgender is a violation of their fundamental rights?

Do Transgenders have the freedom to choose their gender?

Whether the state should make such legislations to protect the rights of transgender people?

Petitioner’s Argument

  • The Petitioner claimed that every transgender person should have an option to choose their sex and determine their identity. Counsel has submitted that since the Transgender people are neither treated as male or female nor given the status of the third gender, and they are deprived of many of the rights and privileges that other people enjoy as citizens of this country. They are deprived of all social and cultural participation and hence restricted access to education, health care and public places, depriving them of the constitutional guarantee of equality before the law and equal protection of laws.
  • They also highlighted that the state could not discriminate them on the ground of gender, which would violate Articles 14, 16 and 21 of the Constitution of India. That non-recognition of gender identity to this Community violates the Fundamental Rights guaranteed to them.
  • Further, it was submitted that the Transgender community should be declared as a socially and educationally backward classes of citizens and must be provided with all the benefits available.
  • Petitioner also submitted that she faced considerable prejudice. The society and even state have treated them as criminals; hence, it is the state’s duty to make such legislation to protect their rights.

Summary of Court decision and Judgement 

The judgment was pronounced by the divisional bench comprising of Justice K.S. Radhakrishnan and Justice A.K Sikri. The decision relied on many foreign countries’ courts, including Malaysia, Pakistan, New Zealand, Australia, and English courts.  Justice Radhakrishnan delivered the majority opinion of the Supreme Court of India.

After discussing a historical background of transgender people in India, the Supreme Court affirmably recognized that gender identity and sexual orientation include transgender people. Besides, the Court discussed in detail progressive jurisprudence of other countries, such as United Kingdom, Australia, New Zealand, and the United States towards recognizing the fundamental rights of transsexual persons. It found it necessary for India to follow international human rights conventions and non-binding principles as the country lacks “suitable legislation protecting the rights of the members of the transgender community.” The Court then proceeded in interpreting the Constitution of India in light of human rights conventions and principles. 

Firstly, the Court emphasized psychological sex instead of biological sex. The Court talks about the Corbett v. Corbett with its absolute focus on biological sex. It also talks about Attorney-General v. Otahuhu Family Court which talks about New Zealand’s standard requiring surgical and medical procedures to effect a transformation in. The Court says no to gender recognition based on biological way and gives full importance to recognition by psychological tests.

it was also held that all principles concerning the transgender people and international conventions, including Yogyakarta principles, that are in congruence with the fundamental rights envisaged under India’s Constitution must be recognized and obeyed. Transgender Community is suppressed and face discrimination in various aspects of life, including health, employment, etc. The Court refers to Part 21 of the United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment which states the obligation of the state to protect all persons regardless of their sexual orientation or transgender identity, acknowledging that legislation is absent in the country. It was, therefore, imperative to follow International Conventions. 

The Court concluded that Transgender’s falls within the realm of the Indian Constitution and therefore are entitled to enjoy all the rights guaranteed by the Constitution. These rights, including Article 14, which guarantees equality, is a right enjoyed by “any person” and appertains uniformly to all men, women, and transgender people. Discrimination on account of sexualborientation and gender identity is violative of Article 14.

Referring to Article 15, which prescribes the enhancement of socially and educationally disadvantaged groups, the Court remarked that the transgender people were withheld from enjoying the provisions under Article 15(4) to advance socially and educationally backwards. constituting the group as mentioned above, the state is bound to take some proper action to remedy the injustice done to them for centuries.   The Court stated that a person’s right to show or express gender identity through words, dress, action or behaviour is included in Article 19 (right to freedom of expression). 

It also held that the Transgender community has the right to right to live a dignified life and enjoy personal liberty as envisaged under Article 21 of the Indian Constitution and declared that the Centre and State governments must grant recognition of gender identity as male, female or third gender. By virtue of this judgment, all government documents such as ration card, passports, etc. would recognize the third gender. The Court held that the Transgender’s as citizens of India who are equally entitled to get the benefit of all schemes and programs launched by the Government irrespective of their population. 

Judgment

Referring to the various judicial pronouncements and legislation on the international arena to highlight the fact that the recognition of “Sex identity gender” of persons and “guarantee to equality and no-discrimination” on the ground of gender identity and expression is increasing and gaining acceptance in international law and, therefore, be applied in India as well.

They were concerned with the grievances of the members of TG’s Community who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayers is that non-recognition of their gender identity violates Article 14 and 21 of the Constitution of India. The Hon’ble Court found that the Applicant faced various severe discrimination throughout her life because of her gender identity.

Hence it was declared,

1. Hijras, Eunuchs, apart from binary gender, were to be treated as “Third gender” to safeguard their rights under Part III of the Constitution and the Parliament and the State Legislature laws.

2. Transgender persons’ right to declare their self-identified gender is also upheld. The Centre and State Governments were directed to grant legal recognition of their gender identity such as male, female or as the third gender.

3. Centre and the State Government were directed to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in educational institutions and public appointments.

4. Center and State have been directed to establish special HIV cells for Transgenders.

5. Center and State Government to take proper measures to provide medical care to TG’s in the hospital and provide them with separate public toilets and other facilities.

6. Centre and State Government should take proper measures to provide medical care to TG’s in the hospitals and provide them with separate public toilets and other facilities.

7. Center and State to take steps for framing various social welfare schemes for their betterment.

8. Center and State to take steps to create public awareness so that TG’s will feel that they are also part and parcel of the social life and be not treated as untouchables.

Analysis

Supreme Court’s declaration of identifying transgender individuals as “Third Gender” under the legal framework of the constitution and its legalization has remarkably promoted acceptance and rights and privileges for transgender individuals but that’s all what can be said. What needs to analysed here is that there is no clear understanding of the term TRANSGENDER and who all are identify as male, female or third gender and what is inclusive or exclusive from the term transgender.

TG may also take in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female. Hijras are not men by virtue of anatomy appearance, and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional “third gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites). TG also includes persons who intend to undergo Sex Reassignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of opposite gender, i.e transvestites. Resultantly, the term “transgender”, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female” 

Hostile speculations and generalizations, for example, the one where it is mentioned that all hijras are third sex and don’t recognize as women on account of a “lack” of reproductive organs and feminine menstruation cycle, that they are “emasculated men” are clearly visible in the judgement. It additionally incorporates transvestite who probably won’t have a sexual orientation character other than the one assigned to them by birth. 

Therefore, such call outs to the female trans society as phantasmagorical humans, who are neither man nor woman , and judging primarily on the basis of their sexual orientation by the existence and non existence of capacity to reproduce fuels and add on to prevailing transphobic outraging and stereotypical beliefs.

“A person’s sex is usually assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of both male and female physiology. At times, genital anatomy problems may arise in certain persons, their innate perception of themselves, is not in conformity with the sex assigned to them at birth and may include pre and post-operative transsexual persons and also persons who do not choose to undergo or do not have access to operation and also include persons who cannot undergo successful operation”

Individuals with intersex varieties are being alluded to as having “genital anatomy problems” and likewise conflated with transgender people based on confounding stigmatization of sexual orientation. Some hostile and derogatory definitions including the definition of a eunuch are visible. 

“Discussion on gender identity including self-identification of gender of male/female or as Transgender mostly focuses on those persons who are assigned male sex at birth, whether one talks of Hijra transgender, woman or male or male to female transgender persons, while concern voiced by those who are identified as female to male trans-sexual persons often not properly addressed. Female to male unlike Hijra/ transgender persons are not quite visible in public unlike Hijra/transgender persons. Many of them, however, do experience violence and discrimination because of their sexual orientation or gender identity” 

These were some references for analysing how the entire issue is faced by the people belonging to this community, who are not even addressed here explicitly is what the entire judgment is ironically guilty of.

Despite of such evidence showing how limited the scope is within the term of TRASNGENDER, in p 74, Justice Radhakrishnan’s section kept interpreting the broad aspects of the Constitutional provisions of equality as per as Article 14,15,16,19 and 21 and that it applies to all the persons irrespective of gender (p70) and there will be no discrimination of such grounds of sex (Article 15 and 16), and these provisions should be taken into account to adhere to the gender identity of transgender and hijra people.

The promise to ‘self-determination’ which is apparently allowed in this judgment is self-contradicting in nature in the sense, the directions declare Hijras as Third Gender but at the same time limiting them their right to self-identify as ‘female’ or ‘male’.(p. 127). In the judgment, the right to self-determination and personal autonomy was clearly affirmed but later it was decided that Hijars will have to be regarded as the third gender, thus taking away their autonomy just granted above.

Thus, from the above analysis, it was clear that the Court intends to distinguish us into a reasonable class, outraging and uncovering “reality” of our sex. With a bizarre yet rationale twist and turns, this symbolic yet ironic judgment asserts that treating trans-women as females would amount to deny them of their constitutional rights!

Transgender people are subject to myriad forms of oppression. However, many of them do experience violence and discrimination because of their sexual orientation or gender identity.

Indian law only recognizes the paradigm of binary genders of male and female, based on a person’s sex assigned by birth. Exhaustive reference was made to various articles included in the Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, the International Covenant on Civil and Political Rights, 1966 as well as the Yogyakarta principles, along with legislations enacted in other countries dealing with the rights of persons of the transgender Community. Due to the absence of relevant legislation, members of the transgender community face discrimination in various areas. Hence, there exists a desideratum to follow the International Conventions, to which India is a party and give due respect to other non-binding International Conventions and principles.

Justice A.K. Sikri while according with Justice S.K. Radhakrishnan remarked that according to international human rights law, equality is established upon two corelative principles;

 non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to assure equal enjoyment and availment of all rights and freedoms, by every person. Discrimination occurs due to the capricious denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of the TGs, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (for example, the protection of individuals against unfavorable treatment by introducing anti-discrimination laws) but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation.

Owing to this, Transgender’s lead a tough life. If their gender is recognized, things would be much easier for them. 

On the other hand, the defendants defended by saying that the state government has set up an “Expert Committee on Issues Relating to Transgender”. 

The Court had to determine whether persons who fall outside the male/female gender binary can be legally recognized as “third gender” persons. Whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by India’s Constitution, was deliberated upon. 

Conclusion

15th April 2014 is an important day for the transgender community, as the landmark decision to legally recognize non-binary gender identities and uphold the fundamental rights of transgender persons in India was pronounced on this very day. The apex court legally recognized “third gender”/transgender persons for the first time and discussed “gender identity” at length. The Court recognized that third gender persons were entitled to fundamental rights under the Constitution and International Law. Further, the state governments were instructed to develop mechanisms to realize “third gender”/transgender persons’ rights.

The Court upheld the right of all persons to self-identify their gender. Further, it declared that hijras and eunuchs could legally identify as “third gender”.

It clarified that gender identity did not refer to biological characteristics but instead referred to it as “an innate perception of one’s gender”. Thus, it held that third gender persons should not be subjected to any medical examination or biological test which would amount to invasion of their right to privacy.

 It’s an essential step and plays a significant role in protecting human rights. The torture, pain and humiliation suffered by the transgender Community cannot be ignored, but owing to this judgment, the circumstances of the transgender Community have improved. The exclusion of the transgender Community from participation in the society is a prominent human rights issue. Even after recognizing and ratifying various human rights, they are fighting every single second to get accepted in this society. It is remarkable that now that there is a verdict which makes Transgender a separate gender than the binary gender; however, all is not over now. The transgender Community still has a long way to go.  

References

[1] https://transequality.org/issues/non-discrimination-laws

[2] https://roundtableindia.co.in/index.php?option=com_content&view=article&id=7377:because-we-have-a-voice-too-the-supreme-court-judgment-on-third-gender-and-its-implications&catid=120:gender&Itemid=133

[3] http://docs.manupatra.in/newsline/articles/Upload/FC172F97-B266-4AA2-8739-0BDB7E2D966C.pdf

Hey there!

come here often?

Login To Come In