Title of the case: National Legal Service Authority v. Union of India & Others
Citation: Writ Petition (Civil) No.604 Of 2013, AIR 2014 SC 1863
Court: Supreme Court of India
Bench: K.S. Radhakrishnan, A.K. Sikri
Appellant: National Legal Service Authority
Respondent: Union of India
In this case, members of Transgender Community seek a legal declaration of their gender identity. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.
The National Legal Services Authority provide free legal services to the weaker and other marginalized sections of the society has come forward to advocate their cause.
Laxmi Narayan Tripathy, a Hijra highlighted the trauma undergone by Tripathi from his birth, born as a male but felt different from the boys of her age and was feminine in her ways. She faced repeated sexual harassments, molestation and sexual abuse, both within and outside the family. She was constantly abused by everyone as a ‘chakka’ and ‘hijra’. She started to dress and appear in public in women’s clothing in her late teens but she did not identify as a woman. Later, she joined the Hijra community in Mumbai.
Siddarth Narrain, a Hijra, when he was in his 10th standard he realized that the only way for him is to join the Hijra community and when his family found that he was beaten by a cricket bat. Somehow, he escaped from his home and went to live with a group of Hijras.
Sachin, a TG also expressed how he felt growing up, when he liked to put makeup in childhood and his parents always saw him as a girl. He used to help his mother in cooking, washing and cleaning but by seeing this his neighbors and relatives teased, mocked and scold him, which made him ashamed of himself.
These were only few people who elaborated their life, there were a lot of people like them who faced the same abuse in everyday of life. That being a hijra, the Applicants has faced serious discrimination throughout their life because of their gender identity. It has been clear to the Applicant that the complete non-recognition of the identity of hijras/transgender persons by the State has resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution of India
Laws and Act Used:
The Legal Services Authorities Act,1987
- The Constitution of India: Article 14 (equality before law), Article 15 (non-discrimination), Article 16 (equality of opportunity in matters of public employment), Article 19 (freedom of expression), Article 21 (right to life), Article 253(power to make any law)
- Section 377 of Indian Penal Code
- 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)
- Universal Declaration of Human Rights (UDHR): Article 1(equal in dignity), Article 3(right to life, liberty and security of person), Article 6 (right to life), Article 5 and 7(No one should be tortured)
- 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) , 19(The right to freedom of opinion and expression)
- Alteration of Sex Description and Sex Status Act, 2003, in South Africa
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Articles 11 (discrimination in employment) and 24 (commitment of State parties)
Convention for Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights), Article 8 (right to respect for private and family life) and 14 (non-discrimination)
Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International Conventions)
As is clear, these petitions essentially raise an issue of “Gender Identity”, which is the core issue. It has two facets, viz.:
“(a) 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 moreso, when such a person after having undergone operational procedure, changes his/her sex as well;
(b) Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a “third gender”?
- The petitioner 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. 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. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. He also submitted that the State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India.
- 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 literature 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. It was 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 legislation giving recognition to the trans-sexual persons in other countries. Learned senior counsel also submitted that non-recognition of gender identity of the transgender community violates the fundamental rights guaranteed to them.
- The 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. Learned counsel 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. Learned counsel, therefore, submitted that, subject to such rules, transgender persons may be afforded the right of choice to determine whether to opt for male, female or transgender classification.
- The Union of India (respondent) submitted that the problems highlighted by the transgender community is a sensitive human issue, which calls for serious attention. Learned 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”, has been constituted to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to MOSJE.
- A detailed study was conducted by the United Nations Development Programme (UNDP – India) and submitted a report in December, 2010 on Hijras/transgenders in India: “HIV Human Rights and Social Exclusion”. The Report states that the HIV Human Immunodeficiency Virus and Sexually Transmitted Infections (STI) is now increasingly seen in Hijras/transgenders population. The estimated size of men who have sex with men (MSM) and male sex workers population in India is 2,352,133 and 235,213 respectively. It was stated that no reliable estimates are available for Hijras/TG women.
- Indian Law, on the whole, only recognizes the paradigm of binary genders of male and female, based on a person’s sex assigned by birth, which permits gender system, including the law relating to marriage, adoption, inheritance, succession and taxation and welfare legislations. They have referred to various articles contained 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. Reference was also made to legislations enacted in other countries dealing with rights of persons of transgender community. Unfortunately, we have no legislation in this country dealing with the rights of transgender community. Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the 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. Constitution makers could not have envisaged that each and every human activity be guided, controlled, recognized or safeguarded by laws made by the legislature. Article 21 has been incorporated to safeguard those rights and a constitutional Court cannot be a mute spectator when those rights are violated, but is expected to safeguard those rights knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance.
- TGs have been systematically denied the rights under Article 15(2) that is not to be subjected to any disability, liability, restriction or condition in regard to access to public places. TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. State is bound to take affirmative action to give them due representation in public services
- Gender identity, 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 transgender’s personality could be expressed by the transgender’s behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. We 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, as already indicated, guarantees the protection of “personal autonomy” of an individual. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
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 Centres 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.
Social exclusion and discrimination on the ground of gender stating that one does not conform to the binary gender (male/female) does prevail in India. 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. They do experience violence and discrimination because of their sexual orientation or gender identity.
Some of the common and reported problem that transgender most commonly suffer are: harassment by the police in public places, harassment at home, police entrapment, rape, discrimination, abuse in public places et.al. The other major problems that the transgender people face in their daily life are discrimination, lack of educational facilities, lack of medical facilities, homelessness, unemployment, depression, hormone pill abuse, tobacco and alcohol abuse, and problems related to marriage and adoption. Therefore, gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this 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 so on.
- Sunil Babu Pant & Others, v. Nepal Government (Writ Petition No.917 of 2007 decided on 21st December, 2007),
- The House of Lords in Bellinger v. Bellinger (2003) 2 All ER 593
- B. v. Western Australia (2011) HCA 42
- Corbett v. Corbett (1970) 2 All ER 33, the Court in England
- Christine Goodwin v. United Kingdom (Application No.28957/95 – Judgment dated 11th July, 2002)