The case of ‘National Legal Service Authority v. Union of India’ is a landmark case not only in constitution law but in the Indian history too, when Supreme court of India recognized the rights of transgender community and directed the government to also insert third gender in gender columns, other than male and female.
Petitioner in the Case
There were two petitions in the case and one was impleader-
First) The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalized sections of the society, came forward to advocate their cause, by filing Writ Petition.
Second) Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, also preferred Writ Petition, seeking similar reliefs in respect of Kinnar community, a TG community.
Impleader) Laxmi Narayan Tripathy, a renowned TG right activist, also got impleaded so as to effectively put across the cause of the members of the transgender community.
What was the main Concern?
The main concern was with the grievances of the members of Transgender Community (for short TG community) who was seeking a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claimed legal status as a third gender with all legal and constitutional protection.
The Contentions of the Counsels
The contentions of the counsels were noteworthy, they argued with great wit and wisdom.
Non-recognition of gender is depriving their rights and privileges
Shri Raju Ramachandran, appearing for the National Legal Services Authority, highlighted the traumatic experiences faced by the members of the TG community and submitted that every person of that community has a legal right to decide their sex orientation and to espouse and determine their identity.
Counsel submitted that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country.
History of TG community and laws applied to them
Shri Anand Grover, appearing for the Intervener, traced the historical background of the third gender identity in India and the position accorded to them in the Hindu Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts of the Islamic world etc. Reference was also made to the repealed Criminal Tribes Act, 1871 and explained the inhuman manner by which they were treated at the time of the British Colonial rule.
Counsel also submitted that various International Forums and U.N. Bodies have recognized their gender identity and referred to the Yogyakarta Principles and pointed out that those principles have been recognized by various countries around the world.
Reference was also made to few legislations giving recognition to the trans-sexual persons in other countries.
Right to choose gender identity
Shri T. Srinivasa Murthy, submitted that transgender persons have to be declared as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders.
He also submitted that the right to choose one’s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India.
Shri Rakesh K. Khanna, Additional Solicitor General, appearing for the Union of India, submitted that the problems highlighted by the transgender community is a sensitive human issue, which calls for serious attention.
ASG pointed out that, under the aegis of the Ministry of Social Justice and Empowerment (for short MOSJE), a Committee, called Expert Committee on Issues relating to Transgender, constituted to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to MOSJE.
The court also heard counsel appearing for various States and Union Territories who have explained the steps they have taken to improve the conditions and status of the members of TG community in their respective States and Union Territories.
Laxmi Narayan Tripathy, a Hijra, through a petition supported by an affidavit, highlighted the trauma undergone by Tripathy from Tripathy’s birth.
The arena of laws and conventions taken in consideration by the court
The court took in consideration the International Conventions, including Yogyakarta principles, History of transgender community in India, legislation and case laws on transgenders in various countries including the status of sex re-assignment surgery, the old laws on transgender and other laws which are in the constitution and Indian Penal Code.
As Section 377 was not the issue before the court, therefore, the court recognized the rights of transgender community after interpreting fundamental rights given in Part III of constitution.
ARTICLE 14 AND TRANSGENDERS
Article 14 of the Constitution of India states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Petitioners asserted as well as demonstrated on facts and figures supported by relevant materials that despite constitutional guarantee of equality, Hijras/transgender persons have been facing extreme discrimination in all spheres of the society. Non-recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.
Further, access to public toilets is also a serious problem they face quite often. Since, there are no separate toilet facilities for Hijras/transgender persons, they have to use male toilets where they are prone to sexual assault and harassment. Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.
The court said on it-
“Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection.
Article 14 does not restrict the word person and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression person and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.”
ARTICLES 15 & 16 AND TRANSGENDERS
Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of sex. In fact, both the Articles prohibit all forms of gender bias and gender based discrimination.
Article 15 states that the State shall not discriminate against any citizen, inter alia, on the ground of sex, with regard to
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
The requirement of taking affirmative action for the advancement of any socially and educationally backward classes of citizens is also provided in this Article.
Article 16 states that there shall be equality of opportunities for all the citizens in matters relating to employment or appointment to any office under the State. Article 16 (2) of the Constitution of India reads as follows:
16(2). No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State.
Article 16 not only prohibits discrimination on the ground of sex in public employment, but also imposes a duty on the State to ensure that all citizens are treated equally in matters relating to employment and appointment by the State.
On this the court said,
“Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex discrimination is a historical fact and needs to be addressed. Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.
Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.”
The court further said that,
“Articles 15(2) to (4) and Article 16(4) read with the Directive Principles of State Policy and various international instruments to which Indian is a party, call for social equality, which the TGs could realize, only if facilities and opportunities are extended to them so that they can also live with dignity and equal status with other genders.”
ARTICLE 19(1)(a) AND TRANSGENDERS
Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country.
Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes ones right to expression of his self-identified gender.
The supreme court’s comment was as follows-
“Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.
Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgenders personality could be expressed by the transgenders behavior and presentation. State cannot prohibit, restrict or interfere with a transgenders expression of such personality, which reflects that inherent personality.
Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons.
We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.”
ARTICLE 21 AND THE TRANSGENDERS
Article 21 of the Constitution of India reads as follows:
No person shall be deprived of his life or personal liberty except according to procedure established by law.
The court said that,
“Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person’s life meaningful.
Article 21 protects the dignity of human life, one’s personal autonomy, ones right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans.”
LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
Finally, while speaking on the recognition of third identity, the judges wrote remarkable words when they said,
“Self-identified gender can be either male or female or a third gender. Hijras are identified as persons of third gender and are not identified either as male or female. Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability. This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a third gender. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a third gender, apart from male and female.
Article 21, as already indicated, protects ones right of self- determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned.
In other words, gender identity is integral to the dignity of an individual and is at the core of personal autonomy and self-determination. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.
Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex.
Article 14 has used the expression person and the Article 15 has used the expression citizen and sex so also Article 16. Article 19 has also used the expression citizen. Article 21 has used the expression person. All these expressions, which are gender neutral evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender.
Gender identity as already indicated forms the core of one’s personal self, based on self-identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.
We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution.”
Justice A.K. Sikri
While speaking on human dignity and equality, Justice A.K. Sikri in his separate judgment wrote,
“Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable 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
If a person has changed his/her sex in tune with his/her gender characteristics and perception, which has become possible because of the advancement in medical science, and when that is permitted by in medical ethics with no legal embargo, we do not find any impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS.
For these reasons, we are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well.”
Declaration by the Court on Transgender Issue
The court declared that,
(1) Hijras, Eunuchs, apart from binary gender, be treated as third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
(2) Transgender persons right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centers since Hijras/ Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.
National Legal Service Authority of India v. Union of India, (2014)
 Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608