National Legal services Authority v.

Union of India

Facts of the Case

A writ petition was filed to confer the legal recognition on transgender community as third
gender. Dur to non recognition of their gender they were discriminated everywhere and were
subject to violence in family, public places, restaurants, stations and so on. They are also denied
fundamental rights because of their non assimilation of binary gender model. The gender of a
person has been assigned at birth at birth and would determine his or her rights in relation to
marriage, adoption, maintenance, succession, taxation and welfare. In India there is no
legislation to protect the rights of transgender community and facing discrimination in all
spheres of life.

The Court considered the violation of basic human rights of transgender community. The court
considered that transgender community is discriminated on the basis of their gender identity
because Indian society is following the binary model of gender identification. The Supreme
Court held that transgender people be recognized as third gender and have right to enjoy all
fundamental rights. the court held that transgender has right to decide their self identified gender
which must be upheld by state and centre governments are directed to grant legal recognition as
third gender with male and female. The Court decided that they have right to equality before law
and equal protection of law which is available to all citizens of India under Article 14 of the
Constitution. the Court considered that right to choose one’s gender identity is an integral part of
right to life with dignity and falls under Article 21.the Court allowed the personal freedom and
right to self determination to determine their identity.

Analysis of the Case

The Court recognised the transgender as third gender and conferred all the fundamental rights
available to citizens of the Country. India is following the binary gender model where male and
female are considered as gender and no other because social and cultural forces construct specify
the gender roles and these work accordingly in the society. 1 The Court considered the historical
origin of transgender community from religious purposes. The court traced the historical

1
Judith Butler “Gender Trouble: Feminism and subversion of identity” (Routledge publishers 1990) pp. 13-14
evolution of the transgender community and its status in various ages. 2 The Transgender
community consists of Hijras, eunuchs, kothis , Aravains and Shiv shaktis etc. eunuchs can be
traced back to 9th century BC. Eunuch according to Greek meaning keeper of bed, castrated men
were considered for protection of women as guard. The Indian Culture including Hinduism,
Jainism and Buddhism considered three genders during 1500-500 BC. There is evidence in
Vedas, Kamasutras and Manu Smriti explained biological origin of three sexes. 3 During the
Muhgal empire they held very significant posts like political advisors, administrators and closest
to kings and queens. But during the British empire transgender community was criminalized
under Criminal Tribes Act, 1871, then in 1860s Indian Penal Code contained Section 377 which
criminalizes the homosexuality including transgender community.4 The Court defined the
transgender Community but it is not clear who comes within the ambit of term transgender. The
court defined transgender as5:

“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. Hijras are not men by virtue of anatomy appearance and
psychologically, they are also not women, though they are like women with no female
reproduction organ and no menstruation. Since Hijras do not have reproduction capacities as
either men or women, they are neither men nor women and claim to be an institutional “third
gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men
(not castrated/akva/akka) and inter-sexed persons (hermaphrodites). 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.”

2
M Michelrj, Historical evolution of Transgender community in India” Asian Law Review 4 (1) 2015 pp. 17-19.
3
Ibid.
4
Ibid.
5
Nalsa Judgement p. 10
Rthe Court considered that all the Hijras are third gender and they are neither men nor women
because lacking reproductive organs, they are men because of their anatomical appreance and
psychological factor. They are not women because lack reproduction organ and menstruation.
The definition also includes cross dressers whose identity is similar to assigned at birth. 6
Reference to the Trans women as phantasmagoric beings who are neither men nor women. the
court assigned the gender identity on the basis of reproductive capacity of an individual which os
transphobic and stereotype.7 Justice Sikri gave more narrow definition and excluded the lesbian,
gays and bisexuals from the purview of the definition of transgender. Even the guidelines
provided in the judgement are confusing the terms hijra and transgender repeatedly using words
Transgender/Hijra especially in Fourth and Fifth Directives.8 The Court also ignord Section 377
which not only criminalizes some acts but sexuality in itself and prohibit the expression of sexual
orientation which is criminalizes identity as well. The Court has not made it clear that whether
Sex Reassignment Surgery is mandatory for self-identification of not. Justice Radhakrishanan
has discussed the Argentinean Model where such procedure is not required but judgment
specified some Psychological test for self–identity of transsexual persons9

The Court conferred fundamental rights on the transgender people and discrimination from
societal and legal perspective started from British rules. They enacted Criminal Tribes Act, 1871
and also incorporated Section 377 which is violative of Articles 14, 15 and 16 of the
Constitution. While interpreting the Fundamental Rights Court referred international Human
Rights instruments like UDHR, ICCPR and so on and judgements decided by various
international courts. The Court widened the scope of Article 14 by interpreting persons including
transgender community. They are socially excluded because not conforming to binary model.
They are effectively excluded from social pattern cultural and economic activities and in
decision making process.10 They are excluded from the family and cultural activities and also
unable to claim share in property. They are also excluded from healthcare services and

6
Gee Imaam Semmalar, Gender Outlawed: Supreme Court judgment on Third Gender and its Implications.19 April
2014 available at: http://roundtableindia.co.in/index.php?option=com_content&view=article&id=7377:because-
we-have-a-voice-too-the-supreme-court-judgment-on-third-gender-and-its-
implications&catid=120:gender&Itemid=133.
7
Ibid.
8
Akanksha Mishra, Third Gender Rights: The Battle for Equality” Christ University Law Journal 5(2) 2016. Pp. 9-21.
9
Ibid.
10
United Nations Development Program, “Hijra/ Transgender Women in India: HIV, Human Rights and Social
Exclusion”, December 2010.
healthcare providers are unable to understand diverse sexualities. 11 They are also discriminated in
employment and lack of livelihood options in their life because of societal norms. 12 The Court
considered their grievances of transgender community and interpreted Indian constitution in light
of international human rights conventions and widened the scope of gender identity and also
referred the Yogyakarta Principles which are non binding in nature. The Court considered that
right to life includes right to determine one’s own gender identity as core of live with dignity. the
court held that fundamental rights must be interpreted and read as society is changing and must
be inclusive in nature so new entities can be given required space. Right to equality is a basic
feature of Constitution of India13 and concepts like equality before law and equal protection of
law are essentials of social justice. The concept of equal protection of laws imposes obligation on
state to take all necessary steps to ensure equality so that every individual can be given equal
concern which is entitled to be as human being. 14 The Court interpreted word “person” in article
14 of the Constitution which specifies no gender and sexual minorities are also included in it.
Article 1 of UDHR provides principle of equal dignity and rights. further art. Provides grounds
of grounds of discrimination and contains words “distinction of any kind” which can be read as
no difference at all.15 Further Art. 2of ICCPR provides principle of non discrimination and India
should implement these international human rights standards since these are binding in nature.
Article 2(2) of ICESCR, Article 2 of CRC, Article 7 of CMW and Art 5 of CRPD.

The Court interpreted the word “sex” under Arts. 15 and 16 of the Constitution in broader terms
and held that term is not confined to male and female, rather works on self-identification of
gender. Transgender community has been strictly denied rights under these Artiles they are
discriminated to access public places and also denied education and right to employment which
force them to go for begging, sex works etc which is injustice to them for centuries and must be
remedied.16

Article 19(1) (a) right to freedom of expression and speech also includes right to express one’s
identity. Gender identity lies at the core of individual identity. Transgender community have

11
Ibid.
12
Ibid.
13
Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 1087
14
V .N Shukla, Constitution of India 10th edition p. 37.
15
Article 2 of Universal Declaration of Human Rights, 1948.
16
NALSA V. UOI, para 64.
right to express their gender and behaviour. State cannot restrict the expression of personality
which reflects the inherent personality. 17 Yogyakarta principles obligates the States to take all
necessary measures for the elimination of discrimination and give primacy to express one’s
sexual orientation and gender identity though not conforming to binary model.

Conclusion

The Court took very constructive step by conferring legal recognition on transgender community
as third gender. They faced extreme discrimination in every facet of life and social and culturally
excluded and denied even right to livelihood and to live with dignity which compels them to
choose begging, sex work as consequence of social denial for employment. The court held that
they were not considered equal in society and were denied fundamental rights which were need
of the hour to promote and protect their basic human rights like right to live with human dignity,
education, healthcare and education etc. the court recognised their gender identity breaking the
binary model which was accepted by Indian society and become hope of ray for progress for the
humanization of transgender community.

17
Id, para 66.