|Bench||K S Radhakrishnan, A.K Sikri|
|Petitioner||National Legal Service Authority|
|Respondent||Union of India|
|Date||15th APRIL 2014|
|Citation||AIR 2014 SC 1863|
Gender identity is essential to the dignity of an individual. It is also at the core of self-determination. The case talks about the ray of hope toward LGBT community. The LGBT community battles for absolute identification and the recognition of same rights as the other citizens of the country. The Supreme Court in its land mark judgment granted legal recognition to transgender persons and directed all the center and state governments to treat them as socially and educationally backward classes therefore the court provided for self-identification of transgender persons and stated the government must make provisions in education, employment, health etc. The judgment stressed on affirmative action.
In 2012, the National Legal Services Authority, an Indian statutory body constituted under the Legal Services Authority Act, 1997 filed a writ petition to give legal representation to marginalized sections of society. The petition was joined by a non-governmental organization ‘Poojaya Mata Nasib Kaur Ji Women Welfare Society’, a registered association, seeking reliefs in respect of Kinnar community and an individual “Laxmi Narayan Tripathi’ who identified himself as a Hijra. The term Hijra serves as an umbrella term that includes people who do not identify with the biological gender they were born with, as well as people who may identify as neither gender. This includes hermaphrodites, pre-operative, and post-operative transsexuals, as well as transvestites. The two writ petitions were filed to protect the rights and identity of the transgender community
The petition desired a legal declaration of their gender identity that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. The transgender community urged that their inability to express themselves in terms of a binary gender denies them equal protection of law and social welfare schemes. It was submitted that TG community is being deprived of many of the rights and privileges which other people enjoy as citizens of India, in turn, is a violation of their many fundamental rights
• Article 14 of Constitution of India (equality before law)
• Article 15 of constitution of India (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth)
• Article 16 of Constitution of India (Equality of opportunity in matters of public employment)
• Article 19 of the Constitution of India (Freedom of Expression)
• Article 21 of the Constitution of India (Right to Life)
• International Covenant on Civil and Political Rights (ICCPR) Article 6 (right to life), Article 7 (prohibition of torture or cruel, inhuman or degrading treatment), Article 16 (recognition before the law), Article 17 (right to private and family life)
• Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International Conventions)
• Universal Declaration of Human Rights (UDHR) Article 6 (right to life)
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Article 2, Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 4 (right to life), 6 (right to privacy), 9 (right to treatment with humanity while in detention), 18 (protection from medical abuses)
The petitioner was joined by number of interveners. The argument was that recognition of only binary genders of male and female under the Indian Law and lack of measures to cater for needs of represented groups contradicted several constitutional rights. The constitutional rights include equality before law, freedom of expression, right to dignified life and non-discrimination.
- 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?
- Whether transgender (TG) who are neither males nor females have a right to be identified and categorized as a “third gender”?
The court recognized that gender identity as the most fundamental aspects of life. It refers to a person’s intrinsic sense of being male, female, or transgender or transsexual person. The opinion delivered by Sikri; J defines the rights of TG community in a jurisprudential light. The judge made a detailed analysis of Kantian criterion of justice, Aristotle’s equalitarian. Taking reference from In Apparel Export Promotion Council v. A. K. Chopra, the court acknowledged the necessity to follow international conventions because of the absence of proper legislation.
The Court held that TGs are entitled to affirmative action as guaranteed under Article 15(4) and also to reservation in the matter of appointment and the state is bound to act and give them due representation in public services. The court emphasised on need for legal recognition of transgender identity and concluded that they belong to a distinct socio-religious and cultural group and must be considered as “third gender”, apart from male and female. To protect the rights of the transgender guaranteed in the constitution of India, it was declared that Hijras, Eunuchs, apart from binary gender, must be treated as “third gender” and right of transgender persons to decide their self-identified gender was also upheld.
The judges relied upon the Yogyakarta principles. An appreciable factor of the judgment was its recognition of the TG community as socially and educationally backward community. Such classification acts as a positive discrimination and it is a much-needed action for the upliftment of the community. Another aspect is that special medical attention must be given to this community. Also, the measures to provide them a sense of belonging in the society by educating the society as well as the community is a laudable solution was put forth by the judgment. The judgment provided that the state cannot discriminate them on the ground of gender, violating Article 14, 16 and 21 of the Constitution of India.
Thereby, Supreme Court directed Centre and State Government to grant legal recognition of their gender identity such as male, female or as third gender and also 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, address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc., Take proper measures to provide medical care to TGs in the hospitals and provide separate public toilets and other facilities, Take steps to create public awareness so that TGs will feel that they are also part and to take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.
This is a landmark decision because it is the initial step was to legally recognize non-binary gender identities and stand by the fundamental rights of transgender persons in India. The homosexuals and third gender people like other men and women are also human beings. Thus, the people including men, women and transgender cannot be discriminated under the ambit of Article 14. The judgment does not provide an extensive solution for the problems faced by transgender, but it gave a cursory glance at these problems. This judgment brings a ray of hope for not only by the transgender community but also by human rights workers.
However, six years since the judgment, while some things have changed on the ground for the TG community, a lot more have simply remained the same. The most important changes are that most of the High Courts have used the above judgment as a reference and granted rights to several trans and intersex individuals who have approached them. There are several states that have implemented or at least passed Trans policies like state of Karnataka and Kerela. To change the perception of people is slow and gradual process and one cannot expect it to happen overnight, but what is important is acceptance.
 In Apparel Export Promotion Council v. A. K. Chopra (1999) 1 SCC 759.
 Mark E. Wojcik, Male. Female. Other. India Requires Legal Recognition of a Third Gender, 43:4 International Law News 1 (American Bar Association Section of International Law) (2014).