CORAM:

Court Name: The Supreme Court of India.

Equivalent Citations: (2014) 5 SCC 438.

Petitioners: 1. National Legal Services Authority (NALSA),

  1. Poojaya Mata Nasib Kaur Ji Women Welfare Society,
  2. Laxmi Narayan Tripathy.

Respondent: Union of India.

Bench: Justice K.S.P. Radhakrishnan, Justice Dr. A.K. Sikri.

Date of Judgment: 15th April 2014.

 

ABSTRACT:

The lives of individuals are brimming with complexities, but transgenders face significantly more trauma compared to others. It is necessary to understand the sentiments of the transgender community and also grant them human rights. In the landmark judgment of NALSA v. Union of India[1], the Hon’ble Supreme Court recognized transgender as the “third gender” and the right to self-identify their gender. This ushered the recognition of various legal and civil rights that other members of the society enjoy as a citizen of India. The judgment acts as a first step towards bestowing transgenders with equal status and opportunities. The paper attempts to explore and assess all the aspects of the judgment. It scrutinizes and interprets the judgment to extract a clear understanding of the violation of fundamental rights and how it undermines the quality of life of transgenders, who have a great historical background shoved into an era of the constant struggle to find meaningful and respectable life. This happens because society is preoccupied with a binary division of gender which further leads to traumatizing transgenders socially, physically, and economically. Further, it delves into the various legal and social challenges to effective implementation of all the principles laid down in the judgment. The paper concludes with some recommendations and a possible way forward keeping in mind the overall upliftment and social integration of the transgender people into the mainstream by challenging the binary norm of society.

 

INTRODUCTION:

The case of National Legal Services Authority v. Union of India & Ors has proved to be a landmark judgment for the entire transgender community in India. The judgment recognizes Transgenders as a “Third Gender”. The term ‘Transgender’ is generally used as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. It can also include persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs. The judgment demonstrated that the right to self-determination of gender-identity is important for the basic civil rights of an individual. This judgment is the first step in paving a way for social acceptance of transgender and provide them equal status and opportunities in all aspects of life. The court also observed that non-recognition of the transgender community violates their fundamental rights enshrined in the Indian Constitution and undermines the quality of their life.

 

FACTS:

The writ petition was filed by NALSA seeking the legal gender recognition of transgender people to choose their identity other than the one assigned at the time of birth, i.e., male or female. The petitions by Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association representing the Kinnar transgender community, and Laxmi Narayan Tripathy, a Hijra, were also seeking similar reliefs. They claimed that the right to choose the gender identity is integral to the right to live a life with dignity guaranteed under Article 21 of the Indian Constitution. The claimants alleged that since transgender persons are neither treated as male or female nor given the status of a third gender, they call for constitutional as well as legal protection for their identity and for other socio-economic benefits, which are otherwise extended to the members of the male and female genders in the community.[2] The transgender community urged that their inability to precise themselves in terms of a binary gender denies them equal protection of law and welfare schemes.

 

HISTORICAL BACKGROUND OF TRANGENDERS IN INDIA:

Transgender persons have been a part of the Indian society for hundreds of years. There is historical evidence of recognition of “third sex” or persons not identifying as male or female gender in the ancient writings. The term “napumsaka” had been utilized in Hindu mythology to denote the absence of procreative ability, presented by signifying difference from masculine and feminine markers. Hijras also had a role in epic Ramayana and Mahabharata and were given the power to confer a blessing on people on different auspicious occasions. Even Hijras has held various renowned jobs in the imperial courts of the Islamic world, especially in the Ottoman Empire and the Mughal rule in Medieval India, and were considered clever, trustworthy, and fiercely loyal. But the circumstances changed drastically during the colonial rule when Criminal Tribes Act was enacted which treats the entire community of Hijras as criminals. Hence, denying them civil rights.

 

JUDGMENT:

The Supreme Court observed that the transgender community has faced discrimination and are bereft of social and cultural participation in various areas of life including health care, employment, and education which leads to the violation of various rights guaranteed in the Constitution of India.

Before pronouncing the judgment, the court referred to various judicial pronouncements in the international realm and legislations of various countries to understand and interpret the gender identity and equality. It stated that gender identity is an integral part of an individual and the basic aspect of self-determination, dignity, and freedom. The court observed thatthe genesis of gender recognition lies in the acknowledgment of another fundamental and universal principle viz. ‘right of choice’ given to an individual which is the inseparable part of human rights.”[3] These human rights are moral and pre-legal rights. They are not granted by people nor can they be alienated by them. The court also stated that in India there is no legislation which deals with the protection and rights of the transgender community and due to the absence of a suitable legislation, these people are facing discriminations in various areas. Hence, it creates 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.”[4]

On these grounds, the court upheld a transgender persons’ right to self-identify their gender and declared that Hijra/Eunuchs be treated as ‘third gender’. The court also directed Central and State governments to grant them legal recognition as one of the gender identities such as male, female or as the third gender. Additionally, the court directed the government to take steps for the social welfare of the community and to create public awareness so that transgenders will feel that they are also part of society and regain their respect and place in the society.

 

ANALYSIS AND REASONING OF THE COURT BEHIND THE JUDGMENT:

The judgment proves to be a landmark for safeguarding the interests of the entire transgender community who has been facing discrimination in the social and legal sphere. The status of “Third gender” apart from binary male and female gender has been accorded to them. Transgender persons’ ‘Right to Self-identify’ themselves as Male, Female, or Transgender was also upheld by the court. Although the judgment is a huge milestone for the entire transgender community, the practical applicability of the judgment is abysmal. For Example, the court in its judgment restricted its applicability to only some communities of transgender leaving other transgender like Trans-man, Trans-woman, etc. This neglects the legal rights of other communities that do not fall within the ambit of the judgment. Concerning the issues of the case, Article 14, 15, 16, and 21of the Constitution of India, 1950 come into the picture. The court also referred to the legislations of various countries and International conventions & norms that are significant for the interpretation of gender equality.

Article 14 of the Constitution of India, 1950 provides equality before the law and equal protection of the law within the territory of India. Equality means equal protection of rights and equal representation of each individual in the eyes of law. The word “person” used in Article 14 does not restrict its applicability to only male and female. Transgender persons who do not conform to the sex assigned to them at the time of birth also fall within the ambit of expression “person”. Hence, they are entitled to protection of their legal and civil rights including employment, healthcare, education, etc. enjoyed by the other citizens of this country. This implies that the repression of transgender under the grab of biological issues is a violation of the constitutional guarantee of equality and cannot be given the seal of legitimacy. Transgender persons are equally entitled to all the benefits that other citizens enjoy. There is an obligation on the centre and state government to make such legal and social changes so that transgender persons may enjoy equal protection of the law.

Moreover, Article 15(2) of the Constitution of India, 1950 prohibits discrimination, including discrimination on the grounds of “sex” – to access any public area or facilities which are partly or wholly funded by the state. Both gender and biological attributes constitute distinct components of sex. The discrimination that the transgender community has to face in the society of binary gender in the name of sex extends to basic needs like education, health care, employment, etc. In the case of Naz Foundation V. Govt. (NCT of Delhi), the Hon’ble Delhi High Court stated that “We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”[5] The court has emphasized on the rights of transgender and found that any discrimination based on conventional gender norms against a transgender is illegal. Further, the Status of Socially and Economically Backward Class underArticle 15(4) of the Indian Constitution, 1950 has been accorded to them considering injustice done to them for centuries. The government should take positive measures for the advancement of the community at par with other citizens of the nation.  The court ensures that a transgender person should enjoy their social, political, economic, and cultural rights without any restrictions.

As to Article 16(2) of the Constitution of India, 1950 which states “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 of, any employment or office under the State.”The prohibition of discrimination based on “sex” in all the aspects of life further extends to the issue of discrimination in the respect of employment that the entire group of transgenders has been facing for a long period. Transgenders face a high rate of unemployment and underemployment and are segregated in narrow, marginalized occupations. The difficulty of educational attainment contributes to severe employment discrimination, making it very difficult or impossible for transgender people to obtain employment consistent with their level of education or ability. This contributes greatly to marginalizing transgender people, pushing many male-to-female transgender people into prostitution and beggaring to fulfil their necessities.[6] The court has observed that transgender should be given equal rights and status in the arena of employment and should not be discriminated against just because they are different from the binary sex of males and females. Persons with diverse sexual orientation and identities shall enjoy equal opportunities in the matter of employment as it is very essential for the livelihood of a person.

Moreover, the court has directed the Centre and State governments to make such legislation under Article 16(4) of the Constitution of India, 1950 safeguarding the interests of the transgender. The legislations are meant to provide equal opportunities and equal representation in public employment. The status of Socially and Economically Backward Class provides them reservations in the matter of appointment in public employment. This will lead to enhancement and up-gradation of their status in society.

As to Article 19(1)(a) of the Constitution of India, 1950 which states that “all citizens have the right to freedom of speech and expression.” The right to express one’s gender identity is a fundamental aspect of the Right to Speech and Expression regardless of sexual orientation and gender identity. Transgender persons have to face a lot of restrictions as to their appearance; behaviour and other personal characteristics as it differs from traditional gender norms. These are the basic rights that are recognized as natural rights and should be given to every citizen of a free nation-state. The court has explicitly mentioned that “Self-identified gender can be expressed through dress, words, action or behaviour 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.”[7] The transgender community should be allowed to express their personality in the way they want. They have a right to their sexuality and gender choices. The government, as well as society, do not have any right to illegally put any restrictions on their way of expression. Transgenders cannot be excluded from the sphere of rights that is enjoyed by the citizen of India merely on the basis that they are different from the binary genders.

Furthermore, Article 21 of the Constitution of India, 1950 states that the Right to dignified life is a fundamental right intrinsic to the quality of individual life and the state cannot take away these rights. Life does not mean mere animal existence.[8] Transgender rights are important not only in their demand for equality and dignity but also, because we may be not able to achieve full social and legal equality of everyone in the nation unless we challenge the shorthand view of sex. Article 21 is the sole repository of all rights to life and personal liberty which has a wider scope to be able to take in its ambit un-enumerated rights along with enumerated rights.[9] Recognition of one’s gender identity is a fundamental aspect of the right to dignity. The representation in the eyes of law is associated with all the legal and civil rights like employment, health care, etc. which is essential to live a dignified life. The constitutional protection of human dignity requires us to acknowledge the value and worth of all individuals as members of our society. “Gender identification is an essential component which is required for enjoying civil rights by the community. It is only with this recognition that many rights attached to the sexual recognition as the third gender would be available to the said community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health and so on.”[10] This implies that excluding transgender to identify themselves in the eyes of law is directly associated with depriving them of their fundamental right to live with dignity at par with other citizens of the nation.

Analysing the wider ambit of Article 21, we come across that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country under Article 21 and it is a right to be let alone. A citizen has the right to safeguard the privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing, and education among other matters.[11]The transgender has the right to autonomous life choices without any interference from state and non-state actors.  In the case of Justice K.S. Puttaswamy v. Union of India, the court observed that Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private.”[12] Transgender being the citizen of the nation has the right to private sphere i.e. to make their life choices, to take the decision of expressing or not expressing their gender identity and sexuality. This also extends to rights related to marriage, adoption, family, inheritance, etc.

In the absence of any legislation safeguarding the interests of the transgender community, the court has emphasized on the international conventions & norms concerning the rights of transgender against human rights violations. This includes harassment at the workplace, hospital, places of public conveniences, etc. Indian law only recognizes the rights of binary genders of male and female in all the aspects that are intrinsic to an individual’s life. India is obliged to follow the principles of international treaties to which it is a signatory. Even if India is not a signatory to an international convention, the court can refer the principles in the interest of the general population. Article 31 of the Vienna Convention on the Law of Treaties[13] was referred to stating that the Indian court can apply principles of those international conventions pertaining to human rights and not in the conflict of municipal law.

Moreover, the emphasis has been led upon the Universal Deceleration of Human Rights, 1948[14] (hereinafter referred to as UDHR), and International Convention on Civil and Political Rights, 1966[15] (hereinafter referred to as ICCPR). Article 1 of UDHR states that “All human beings are born free and equal in dignity and rights.” There should be no unreasonable restrictions that infringe the rights of transgender and the state should make laws to protect their rights. Article 6 of UDHR and Article 17 of ICCPR more specifically focus on the fact that everyone has the right to recognition in the eyes of law. This indicates that the harassment a transgender person is facing in the legal and social arena of life is illegal and they should be allowed to enjoy their rights as others. The state and non-state players have no right to interfere in their private space and any attacks on their reputation keeping in mind binary gender law is a violation of their legal rights.

Yogyakarta principles, 2006[16] state that “the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity addressing a broad range of human rights standards and their application. Yogyakarta Principles address a broad range of human rights standards and their application to issues of sexual orientation and gender identity.” These principles play a very important role in determining the discrimination faced by the entire transgender community based on gender identity and sexual orientation. It explicitly says that exclusion or any kind of restrictions based on gender identity or sexual orientation nullifies equality before law. It says that interpretation of the legislation or the constitution of a nation should be done in such a way that it protects the interests of all human beings living in that nation. Any law made in the advancement of transgender should not be deemed discriminatory as it is important for their equal legal and social participation. Article 18 of Yogyakarta principles sheds light on the medical abuse faced by transgender. No one can be forced to undergo sex reassignment surgery or any medical test based on sexual orientation and gender identity. Hence, having a gender identity or sexual orientation different from binary male and female is not a medical condition to be treated or cured.

 

ISSUES IDENTIFIED WITH THE JUDGMENT:

According to the authors, any form of discrimination based on sexual orientation and gender identity is arbitrary and hence, the court is correct in its holding. The discussed case though innovative and progressive in many ways also suffers from some lacunae. Firstly, the judgment limited its applicability to the communities identified as Hijras, Kinnars, Kothis, Shiv-Shaktis, etc. Transgender is a board term that includes Trans- men/women, etc. The judgment treats transgender as an umbrella term thereby, creating confusion about the status of other identities within the term “transgender”. The issue that arises here is about the basis of this distinction made among transgenders. The court should also consider the legal and civil rights of communities that do not fall within the scope of the judgment. This creates a confusion among the lawmakers as well regarding the persons who should be included in the affirmative steps taken for transgender’s advancement.

Secondly, while the judgment advocated for self-identification of gender identity, but it did not offer any procedure for legal recognition. This has led to several inconsistencies in the state government’s approaches concerning self-identification. These difficulties should be removed and the process of obtaining identity by transgender should be made uniform throughout the country. It is the right of all people to identity documents consistent with their gender identity, including those documents which confer legal gender status. Such documents are essential to the ability of all people to enjoy rights and opportunities equal to those available to others; to access accommodation, education, employment, and health care; to travel; to navigate everyday transactions, and to enjoy safety.[17]

Thirdly, practical applicability is poor. Although, the court upheld transgender people’s right to self-identity. This forbids discrimination based on sexual orientation and gender identity but the transgender community is still surviving in unceasing silence bearing the oppressive burden of not conforming to the binary gender of males and females.

The NALSA judgment is a significant and potentially transformative decision. It affirms that there is no place in the constitution for a hierarchy of super-humans, lesser- humans, and non-humans.[18] The judgment paved the way for recognition in the eyes of law entire transgender community. This further extends to legal and civil rights but it also brings to our notice the highly regressive attitude of the Indian society restrained in myths and social prejudices. The government has given various legal rights but the marginalized don’t have access to these rights. They have to either compromise or engage in a struggle for earning their livelihood. Their participation is still low in educational institutions and jobs. They are still seen begging from people at railway stations, temples, and other public places and are forced to get involved in prostitution. They are still considered as “others” keeping aside from the mainstream society. Legal rights are not limited to mere observance of basic principles of law. Morality is not limited to words but is deep-rooted ushering a pluralistic and inclusive society.[19] No doubt the last few years saw the appearance of some transgenders in the socio-political field challenging the binary norms of the society but many more steps are still needed.

 

CONCLUSION:

After probing a close review of the judgment, an illation can be drawn that this judgment provides a lot of opportunities for the transgender community. The court gave them the right to self-identity, but this society still forgets the community, their rights and these people face inequality due to insufficient public understanding about third gender. The ruling was based on the constitutional principles of equality, non-discrimination, freedom of expression, and dignity. The violence and discrimination faced by the transgender community can’t be removed by the actions of the state only but also from societal development.

The judiciary has played a vital role in protecting the rights of the transgender community by recognition of ‘third gender’ and directing centre and state governments to take essential steps for the social welfare and upliftment of the community. After the judgment, the Central Government, various State Governments, and various government agencies like the National Commission for Backward Classes, University Grant Commission and Reserve Bank of India started working for the implementation of the orders. And the Transgender Persons (Protection of Rights) Act, 2019[20], which articulated the rights of the community, was also passed by the executive. The law sets up a two-step process for application and issue of the certificate of identity as a transgender person under Section 5, 6 & 7, and empowers the district magistrate to judge the ‘correctness’ of the application following a procedure. But these steps are not enough and need guidelines on how this decision should be made and suggestions as per practical reality. A report[21] by Asia Pacific Transgender Network suggests various comprehensive steps that should be taken for the benefit of transgender people.

Transgender existential dilemma revolves around their neglected and unacknowledged sexual identity. They are still struggling to find a meaningful and respectable life for themselves. Throughout India, the life of transgenders is same as they are compelled to leave their native place in exchange of expressing their sexuality as they wish to. They are considered as outsiders and compelled to live a life detached from family and society. Individuality and sexual identity are under threat in the society which focuses upon masculine and feminine gender. India is still not ready to perceive transgender as a normal human being and shows a sense of strangeness towards them.

However, the judgment may not bring any over-night phenomenal change in the mindset of society. But it creates the way to the inclusion and welfare of the community. A simple shift toward allowing people autonomy to determine how their gender is expressed and recorded is gaining momentum. It is long overdue.[22]

 

SUGGESTIONS:

For the social inclusion of the transgender community, we need to reorient our imagination to conceptualize the recognition of the community. For this purpose, the following steps can be taken: –

  1. Comprehensive civil rights legislation should be enacted to offer transgender people the same protection and rights given to others.
  2. Amendments should be done in several sections of the Indian Penal Code, 1860 to reduce sexual abuse against transgenders and punish all kinds of sexual violence.
  3. Reservation criteria should be revised in educational institutions as well as government employment.
  4. Police reforms should be done to promptly investigate the reports of gross abuses against the transgender community by police and public, and the guilty person should be punished immediately.
  5. Reformation or initiatives should be taken by the medical profession to make people aware of the SRS services, transgenderism as a choice, not a disease or deviance.
  6. Human rights and social action organizations should take action for awareness among the society for the concerns of the transgender community in areas such as family, religion, and the media which stimulate major forms of injustice to gender non-conformity.

[1] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[2] See National Legal Services Authority v. Union of India, (2014) 5 SCC 438 at 461.

[3]Id. At 494.

[4]Id. At 485.

[5]Naz Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762. at 47.

[6]Jillian Todd Weiss, Chapter2: Teaching Transgender Issues: Global Social Movements based on Gender Identity, 358 A Twenty-First Century Approach to Teaching Social Justice: Educating for Both Advocacy and Action 27 (2009).

[7]National Legal Services Authority v. Union of India, (2014) 5 SCC 438. At 489.

[8]Munn v. Illinois, 94 U.S. 113 (1876).

[9]ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

[10]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. At 76.

[11]R. Rajagopal v. State of T.N., (1994) 6 SCC 632.At 649.

[12]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. At 497.

[13]Vienna Convention on the Law of Treaties, (May 23, 1969), 1155 U.N.T.S. 331, https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.

[14]Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948),https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.

[15]International Covenant on Civil and Political Rights, (Dec. 16, 1966), S. Exec. Rep. 102-23, 999 U.N.T.S. 171, https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.

[16]International Commission of Jurists (ICJ), Yogyakarta Principle – Principles on the application of international human rights law in relation to sexual orientation and gender identity, (Mar. 2007), http://yogyakartaprinciples.org/wp-content/uploads/2016/08/principles_en.pdf.

[17]WPATH Identity Recognition Statement, World Professional Association for Transgender Health, (Nov.15,2017),https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH%20Identity%20Recognition%20Statement%2011.15.17.pdf.

[18]RatnaKapur, Beyond male and female, the right to humanity, The Hindu (June 24, 2016, 10:52 AM),  https://www.thehindu.com/opinion/op-ed/beyond-male-and-female-the-right-to-humanity/article5926142.ece.

[19]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[20]The Transgenders Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India).

[21]Blueprint for the provision of comprehensive care for trans people and trans communities in Asia and the Pacific, Asia Pacific Transgender Network, United Nations Development Programme, 2015, http://www.healthpolicyproject.com/pubs/484_APTBFINAL.pdf.

[22]Neela Ghoshal & Kyle Knight, Rights in Transition: Making Legal Recognition for Transgender People a Global Priority, Human Rights Watch, https://www.hrw.org/world-report/2016/rights-in-transition.

 

 

Authors:

Ms. Anushka Kashyap & Mr. Chandan Kumar

2nd Year Student, Tamil Nadu National Law University