The landmark judgement of NALSA v. Union of India recognized the transgender identity as the third gender. It was delivered on 15th April 2014, by a Division Bench comprising Justice A. K. Sikri and Justice K. S. Radhakrishnan. Members of the Transgender community filed a writ petition demanding legal recognition of their right to choose their gender identity other than male and female as assigned to them by birth. For quite a while, Transgenders had been denied the essential right to gender equality, as enriched under the Constitution of India. This case was a gigantic advance towards giving gender equality to everybody in India. It allowed numerous individuals of various segments of the public to distinguish under, if not male or female, but under a third-sex. The Supreme Court duly looked into transgenders’ mythological presence in ancient India. The Court exhaustively assessed Article 14, 15 and 21, and various International Human Rights provisions while delivering the Judgement. [CITATION- (2014) 5 SCC 438]
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Two petitions, primary petition by National Legal Service Authority, and then by Poojaya Mata Nasib Kaur Ji Women Welfare Society were filed, demanding recognition of transgenders, and scrutinise whether the lack of legal measures hinders the needs of people who do not identify themselves as male or female, and violates their constitutional rights. One Laxmi Narayan Tripathy, who professed to be a part of the ‘hijra’ community, had likewise come forward to advance her life experiences and condition of her community. Denial of recognition of the transgender as third sex results in non-recognition with regard to fundamental rights- it is a violation of the right of equality before the law and equal protection of law as guaranteed under Article 14 and rights provided under Article 21 of the Constitution of India. The petitioners put forward their case before the Court, the upsetting phases they experienced and submitted before the Court that the transgender community has a right to determine their sexual orientation.
Firstly, the Court had to decide whether the persons falling outside the category of male/female binary gender system be recognised as “third gender”.
Secondly, the Court had to scrutinise whether such non-recognition violates the fundamental rights of the transgender people, enriched under the Constitution of India.
Transgender is a wide term which consists of all those people whose personality, gender or expressions are not followed under the sex they were born with. The Indian culture has only accepted the genders in the binary terms i.e. either a male or a female. Even though the transgender community has been accepted by society, they have to face social isolation and various other types of abuse. The Supreme Court discussed the mythological and ancient background of the transgender community. The court mentioned that in the history of our country a special and important position is accorded to the transgender community. Transgender community is recognised as the third gender and are well respected in Hindu mythology, Vedic and Puranic texts. The court also mentioned presence of the transgender community in Ramayana and Mahabharat. The Transgender community was compelled to live as pariahs and were often regarded with contempt. However, with the advancement of time, people became increasingly conscious of gender identity and sexual preference, thus increasing the need to identify distinct gender identities and sexual orientation.
The court said that the rights under Article 14 are for any person, regardless of gender, caste, nationality etc., thus it equally applies to male, female and transgender people. Therefore, transgender people have equal claim over the right and in all spheres, including civil rights, health, employment and education. Discrimination based on the premise of gender identity violates Article 14. The court finely put forward the importance of recognizing one’s gender identity, under the purview of Article 21. Article 21 provides protection to the personal autonomy, dignity of human life and privacy. Thus, it must be protected. The constitution under Article 15 and 16 explicitly mentioned sex as a ground, based on which discrimination is prohibited. Such emphasis on prohibiting sex discrimination presents us the intention of the constitition, which is that the fundamental right is to not be determinded differently because it is not in conformity with the stereotypical generalisation of the two gender system. Additionally, Article 15 mentions that there should be affirmative action in favour of socially and educationally disadvantaged people.
Furthermore, the Court Stated that as gender identity revolves around one’s identity, gender presentation and expression, and such expression through word, dress, behaviour or action comes under the ambit of right to freedom of expression under Article 19. It is often observed that the state fails to accept the identity of transgender and their behaviour or character, which state is bound to do, to uphold their rights under Article 19.
In this judgment, the Court held that a person’s gender identity is not biologically determined, and that self-identification is a vital element of gender identity. Human beings have the right to decide how they are assessed by society. In proving this case, the Court used numerous international judgments, ranging from the case of Corbett v. Corbett to recent judgements of the European Court of Human Rights and national courts of different countries, providing different and wide gender perspectives. It expressed that the discrimination transgender community faces makes a “necessity to follow the international Conventions to which India is a party and to give due respect to other non-binding international Conventions and principles.”
Gender identity and sexual orientation were both viewed as two separate terms in this decision, declaring that both are an integral part of the identity of an individual. The Court highlighted the psychological facet concerning gender identity and self-identity that should be recognised, regardless of whether a person has gone through the Sex Reassignment Surgery (SRS) or not. The court also mentioned that SRS should not be imposed on any person.
The Supreme Court provided the right to self identify as the third gender to the transgender community. The Court stated that legal acknowledgement to the transgender community, as the third gender must be provided by both central and state government.
The Court gave the following guidelines to the Centre and the State Governments:
- Eunuchs are to be treated as the third gender and the same will protect their privileges, which are mentioned in the Constitution. Rights will be the same as males and females;
- The transsexual people have the option to choose their self recognized sexual orientation and the focal of state governments are coordinated to allow lawful acknowledgement of sex as male, female or third sex;
- Transgender should be treated as socially and instructively in reverse classes and reservations should be stretched out to them in instances of confirmation in instructive foundations and for public arrangements;
- Emphasis ongoing through SRS for the purpose of pronouncing an individual’s sex is illicit and shameless;
- The Center and State should outline different social government assistance measures for the advancement of transsexual including legitimate clinical consideration to a transsexual in emergency clinics, activity of discrete HIV Sero-observation Center, making public attention to absorb in the general public and address different mental issues looked by the transsexual;
- Center and State Governments have been approached to give the network different social government assistance plans and to regard the network as socially and monetarily in reverse classes for Socio-Economic Rights. They have likewise been approached to expand reservation in instructive organizations and for public arrangements;
- For Stigma and Public Awareness, being the broadest reach: Center and State Governments were approached to find a way to make public mindfulness, so that Transgender individuals would feel that they were additionally a vital part of the public activity and not be treated as untouchables.
The Supreme Court after duly looking into the position of the transgender community in ancient times, different countries and UN Declarations and Conventions and other relevant provisions upheld the transgenders’ rights. The Decision embraces a right-based, reformist perspective towards the transgender community, henceforth made a path towards social acknowledgement plus acknowledegment of the transsexual and others, who believe in the third gender and do not affirm to the only two gender perspective. This may not be an instantaneous remarkable change in the mentality of the individuals. However, it is the initial step towards gender equality. With the help of the government policies, measures and provisions in different laws and realization among the overall population, a sex comprehensive community will be built, based on the very establishment set somewhere near the current decision where nobody will be discriminated because of sex and/or sexual preferences.
 (2014) 5 SCC 438.
 Id., art. 21.
 Id., art. 16.
 Id., art. 19.
 (1970) 2 All ER 33.
 Supra note 1 at 64.
BY RATI CHOUREY| NATIONAL LAW UNIVERSITY ODISHA