Transgender community consists of Kothis, Hijras, Enuchs, Aravanis, Jogappas, Shiv/shakthis etc. had a huge significance in Hindu religion and other religious texts. According to Hindu mythology Lord Rama being impressed by the hijra gave power to them to confer blessings on propitious occasions like marriage, childbirth and a custom was set that hijra singing and dancing on occasion were considered as a blessing. Jain texts also make a detailed reference to TG in mentioning the concept of ‘Psychological sex’. Hijras also played an eminent role in the courts of Ottoman empire and Mughal rule.
But with the coming of 18th century and establishment of British rule in India hijras community started to be discriminated continuously from that time. Criminal Tribes Act 1871 was passed by the Britishers to supervise the actions of hijras.Hijras were considered as criminal who commits horrible offences which are non-bailable. Under this act eunuchs who dressed like women and dances and played music in the streets could be arrested without warrants and were imprisoned for two years or fine or even both. The act directed local government to make records of all the eunuchs residing in the community who were suspected of kidnapping or sterilizing children or committed any offences under section 377 or have abetted the commission of the above offences. This act was in violation of rights of transgender as keeping a boy below age of 16 was made punishable offence. It also forbids eunuchs from becoming a guardian of any minor or doing any gift deed or a will. This act was rescinded in 1949, still the violence against transgender continued and they were unable to seek redressal for their grievances. They had a long history of discrimination in sectors like heath, education, politics and have also been prone to social exclusion.
The landmark Supreme court judgement NALSA v. UOI was decided on 15 April 2014 by the bench which consisted of justice A.K. Sikri and justice K.S. Radhakrishan.
The judgement was provided to solve the problems of transgender community and provide them their rights that have been guaranteed by the constitution of India to all its citizens. This was the landmark judgement which stated that the transgender rather been classified as males and females should be classified as third gender identity. Due to the inexistence of third gender identity there was continuous violation of their rights under article 14,15,16 and 21. Also they were considered as untouchables by the Indian society. Thus they lacked support of society as well as legal justice system. This judgement stated that transgender should be provided with all the rights and should be identified as third gender. It was a milestone judgement which improved the status of transgender to a considerable extent.
National legal service authority of India was formed under the legal service authority act 1997. It was constituted on 9 November 1995 to provide free legal aid services to the eligible candidates. The primary functioning of NALSA is to provide speedy disposal of the cases and to lessen the burden of judiciary.NALSA filled writ petition No. 400 of 2012 to advocate the cause of one of the weaker and marginalized section of society i.e. transgender.
A registered association Poojaya Mata Nasib Kaur Ji Women Welfare Society has also filed writ petition No. 604 of 2013 in order to seek justice for Kinnar which is a part of transgender community.
Laxmi Narayan Tripathi, a member of hijra community has got impleaded as he has spoken for the rights of transgender community and for properly recognizing the community as a third gender and not as male or female. Contentions raised by Tripathi were that transgender are not given proper recognition and equal treatment. This violates the rights guaranteed to them under article 14 and 21 of the constitution of India.
- Whether a person who is born as a male but have female orientation (or vice-versa) has the right to be perceived as a female after going operational procedure and changing the sex.
- Whether the transgender community should be given special identity as a third gender because they cannot be recognized as male or female.
Article 14 of Indian constitution states that no person should be denied equality before the law or equal protection of law inside the territory of India. Under this article equals should be treated equally. This article places obligation of the State to timely bring social and political changes with time so that everyone enjoys equal protection. Article 14 also covers transgender/hijras. Thus they should also be provided legal protection in all State activities and discrimination should not be there in any sector for example health, education, civil and citizenship rights etc.
Petitioner raised facts and figures that transgender are not recognized as third gender. Due to this they don’t have legal protection and hence are prone to sexual harassment, sexual assault, molestation, gang rape, forced oral and anal sex in public places, at home and jails. They do not have access to public toilet, malls, cinemas, education, health care facilities. Thus this discrimination that arises due to non-recognition prevents transgender to enjoy their right under article 14 of Indian constitution.
Article 15 & 16
Article 15 and 16 prevents discrimination on any ground including ‘sex’ of the person and prohibits gender biasness of any form.
Article 15 states that no discrimination should be allowed on any ground in relation to use of public toilets, shops, hotels, bathing ghats, wells, resorts, tanks or any facility that is dedicated to public use maintained wholly or partly by the funds of the states.
Article 16 prohibits discrimination in affairs related to employment or appointment to any state office. Other than this it also specifies that state should also take responsibility to ensure timely that all citizens are getting equal treatment in matters of employment and state appointments.
The term sex is not only limited to the biological sex of people at their birth but also include people who don’t consider themselves as male or female. From the long time TGs are denied fundamental rights under article 15 and 16. As they have faced disability and restriction in getting access to public spaces. Factually they are socially backward and economically weaker section, but they are not provided any special advantage that are provided to SEBC(socially and educationally backward classes) under article 15(4).TGs are also not able to enjoy economic, social and political rights and are not provided rights under article 16(2).
Article 19(1)(a) of Indian constitution states that all persons shall have the right to freedom of speech and expression. This also includes a person right to express his self-identified gender. Thus the gender can be expressed through dress, words, actions, behavior and any other form. Gender identity thus is at the core of a person’s identity. State cannot interfere or restrict transgender fro, expressing their identity which is expressed by their behavior or presentation. But the state either due to ignorance or for any other reason has always failed to recognize the identity of transgender.
According to article 21 no person shall be denied of any personal liberty except the procedure that is established by the law. This article considers all the aspect of the life and protects the dignity of human life, their privacy, autonomy etc. This article is made to ensure that there is full development of the human beings, and includes right of expressing oneself in various forms, freely moving, mixing and compiling with other fellow beings. Personal autonomy under this article includes the right to not to be interfered by anyone and also the right of making once decision himself or herself. Self-determination of the gender is an important part of the personal autonomy and self-expression and it falls within the domain of personal liberty that is ensured under article 21.
Thus discrimination on the basis of sexual orientation and gender identity includes all the restriction or exclusion that quash equal protection of law or the equality before the law that is guaranteed by the Indian constitution and thus various direction should be issued to prevent the rights of TG community.
The court after going through the opinions of all the counsels, international conventions, foreign judgements and Indian judgements came to the conclusion that a person has the right to choose his or her gender and transgender community should be classified as third gender
Human rights have a direct link with the human development. They are moral and pre-legal rights. They cannot be granted by someone or taken by someone. According to international human rights law discrimination is due to the arbitrary refusal of equal participation and opportunities. Equality not just includes preventing discrimination but also includes providing solutions to the suppressed groups of the society.
Basic spirit of Indian constitution is to provide equal opportunities of growing to each and every citizen no matter what is the caste, race, color, religion etc. Democracy is based on recognizing the dignity and individuality of a man. Thus it is must to recognize the right of an individual to choose his/her gender or sex identity as it is an important part of her personality, self-determination and freedom.
The court acknowledges the fact that a person born with a body at time of birth may have different innate perception due to genital anatomy problems. Medical science ensures can change physiology appearance of a person through surgical procedures. In order to keep going with the science some countries have recognized Sex Re-Assignment Surgery (SRS). The transition from a man to a woman is painful and long procedure and requires patience and mental support. If a human being changes his/her sex according to his/her gender attributes then there should be no hindrance either legal or any other in providing recognition to the gender based on the sex that is recognized after undergoing SRS.
The issue of transgender is not just a social or medical issue rather it is a human rights issue. In order to provide them all the rights, it is important to assign them proper ‘sex’. TGs should be given proper gender identity and appropriate sex categorization. Providing this ensures right to equality under article 14 and life of dignity under article 21. By providing them constitutional rights the court is doing justice too society as well.
Thus the court held that the transgender persons have right to choose self-identified gender and the government has to grant legal recognition of their gender identity. State and central government were directed to treat them socially and educationally backward classes and make reservations for them in educational and public appointments. Separate HIV Sero-survellance should be made for dealing with sexual health issues and any problem faced by the community during SRS should be held immoral and illegal. Government should ensure proper health care, separate public toilets and other facilities to the community. Various welfare schemes, public awareness programs should be organized so that the respect of transgender community is regained.
The fact cannot be ignored that TG community from long time has suffered discrimination and have faced a large amount of pain, torture and sufferings. This landmark judgement is substantial in improving the conditions of community and granting them their rights.
But there were still some flaws in the judgement and its implementation. The state should not only confirm the injunction of constitution to secure citizen’s liberty but it should also make his duty to prevent that rights of citizens are not taken by the society. The orders like making toilet facility HIV centres, social and education recognition, public awareness programs are good only if they are implemented. Otherwise these orders are vague and possess no particular accountability on anyone. Petition has been passed to make arrangements for horizontal reservation for the community but nothing has been done yet.
Transgender has been used an umbrella term for all the community. The court first classifies the community under the set of hijras. Then it states that hijras and eunuchs should be treated as third gender. When everyone is already covered under hijra then providing different rights to eunuchs seems illogical
Also in this judgement there has been no talk of whether intercourse should be allowed between transgenders and no provision of right of sexual intercourse has been granted to them. The judgement has changed the status quo that existed in India. It has not only helped Indian citizens but other countries also. But still there are lot of changes that are required for the betterment of the transgender community.
National Legal Ser.Auth vs Union Of India &Ors on 15 April, 2014,
YashDahiya, National Legal Services Authority v Union of India – Case Analysis, 27 August 2018, https://blog.ipleaders.in/national-legal-services-authority-vs-union-of-india-case-study/
Niyati Acharya, NLSA v. Union of India, 15 March 2019, https://lawtimesjournal.in/nlsa-vs-union-of-india/
Lavina Bhargava,Supreme Court Case Analysis: NALSA v. Union of India and Ors. (Transgenders Rights Case), https://www.latestlaws.com/case-analysis/supreme-court-case-analysis-nalsa-v-union-of-india-and-ors-transgenders-rights-case-by-lavina-bhargava/
AnamikaGoel is a first year BA-LLB student from Rajiv Gandhi National University of Law, Punjab. She is an intern at interesting laws blogs. She has keen interest in legal research. She has participated in various law school activities and was also in cultural committee.
 NALSA v. UOI (2014),AIR 2014 SC 1863
Article 14 in The Constitution Of India 1949
Article 15 in The Constitution Of India 1949
Article 19(1) in The Constitution Of India 1949
Article 21 in The Constitution Of India 1949