“By recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights.”
|Case name:||National Legal Services Authority Vs. Union of India & Ors.|
|Case number:||Writ Petition (Civil) Nos. 400 of 2012 and 604 of 2013 Under Article 32 of The Constitution of India)|
|Court:||The Supreme Court Of India|
|Bench:||K.S. Panicker Radhakrishnan and A.K. Sikri, JJ.|
|Relevant Act/Sections:||Constitutional Law: Article 14, 15, 16, 19 and 21 Indian Penal Code: Section 377|
BRIEF FACTS AND PROCEDURAL HISTORY:
- The Court, in this case, was approached Under Article 32 of the Constitution and Writ was concerned with the grievances of the members of Transgender Community (for short ‘TG community’) who sought a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer was 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 a legal status as a third gender with all legal and constitutional protection.
- The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, came forward to advocate their cause, by filing Writ Petition No. 400 of 2012.
- Poojaya Mata Nasib Kaur Ji Women Welfare ociety, a registered association, had also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in respect of Kinnar community, a TG community.
- Laxmi Narayan Tripathy, claimed to be a Hijra, also impleaded so as to effectively put across the cause of the members of the transgender community and Tripathy’s life experiences also for recognition of their identity as a third gender, over and above male and female. Tripathy said that non-recognition of the identity of Hijras, a TG community, as a third gender, denied them the right of equality before the law and equal protection of law guaranteed Under Article 14 of the Constitution and violates the rights guaranteed to them Under Article 21 of the Constitution of India.
- The Court was also informed of similar life experiences faced by various others who belong to the TG community.
ISSUE BEFORE THE COURT:
1. Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a “third gender”?
RATIO OF THE COURT
- The Court felt that the word ‘Transgender’ was an umbrella term and therefore, first defined who all were included under the said term and with what section of it the court was concerned. Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. TG may also takes in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female. TG also includes persons who intend to undergo Sex Re-Assignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. They are generally called transsexual persons. Further, there are persons who like to cross-dress in clothing of opposite gender, i.e. transvestites. Resultantly, the term “transgender”, in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.
- INDIAN SCENARIO
- The Court observed that social exclusion and discrimination on the ground of gender stating that one does not conform to the binary gender (male/female) prevails in India. Transgender people, as a whole, face multiple forms of oppression in this country. Discrimination is so large and pronounced, especially in the field of health care, employment, education, leaves aside social exclusion.
- It further observed that 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.
- The Court found that unfortunately no legislation in this country was at the time 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 were facing discrimination in various areas.
- ARTICLE 14 AND TRANSGENDERS
- The Court then considered the present problem with respect to Article 14. It observed that 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.
- The Court also took into consideration various petitioners’ assertions as well as 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.
- Hijras/transgender persons face huge discrimination in access to public spaces like restaurants, cinemas, shops, malls etc. 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.
- ARTICLES 15 & 16 AND TRANSGENDERS
- The Court further observed that 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.
- ARTICLE 19(1)(a) AND TRANSGENDERS
- The court while referring to Article 19(1)(a) of the Constitution stated that the right to freedom of speech and expression, includes one’s right to expression of his self-identified gender.
- 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.
- The Court pointed out the harsh reality that often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. The Court, thus concluded 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
- The Court stated that recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.
- LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
- 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 one’s 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.
- 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 the Court’s 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.
- The Court, therefore, concluded 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, and hence it is inclined to give various directions to safeguard the constitutional rights of the members of the TG community.
- The court was of the opinion that by recognizing such TGs as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition. TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability. Up till recently they were subjected to cruelty, pity or charity.
DECISION HELD BY COURT:
- The Court thus, held:
- 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.
- 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.
- 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.
- Centre and State Governments are directed to operate separate HIV Sero- surveillance Centres since Hijras/Transgenders face several sexual health issues.
- 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.
- 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.
- Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
- 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.
- 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.
- Let the recommendations be examined based on the legal declaration made in this judgment and implemented within six months.
- Writ Petitions was, accordingly, allowed, as above.