NATIONAL LEGAL SERVICES AUTHORITY VS UNION OF INDIA : CASE SUMMARY
The Supreme Court in National Legal Services Authority Vs Union of India (2014 ) 5 SCR 119 inter alia issued directions for identifying Hijra and eunuchs as third gender for safeguarding their rights.
National Legal Services Authority has filed Writ Petition before the Supreme Court of India seeking declaration that non-recognition of Transgender Community is violation of Article 14 and 21 of Indian Constitution. Third-gender status for transgenders was also sought.
Transgenders comprise of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv Shakthis etc. The Supreme Court noted that in Hindu Mythology there are abundant references to transgenders. Transgenders are told to have accompanied Lord Rama when he was being exiled to Forest. There are references to transgenders in Mahabharat and Jain Texts also. Hijras also played important role in royal courts of Islamic and Mughal rulers. The Supreme Court noted that during British Rule a discriminatory approach was adopted towards transgenders and were prosecuted under Criminal Tribes Act.
The Supreme Court noted that Gender Identity refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. Small group of people are born with bodies which incorporate both or certain aspects of male or female physiology. The world grapples with the question of attribution of gender to persons who believe that they belong to opposite sex. Some persons even go through surgical procedure to alter their body which confirm their perception to gender. Gender identity thus is self-identification as man, woman, transgender or other-identified category.
Sexual orientation refers to individual’s enduring physical, romantic or emotional attraction to another person.
International Initiatives on Gender Identity and Sexual Orientation
Article 6 of Universal Declaration of Human Rights, 1948 and Article 16 of International Covenants on Civil and Political Rights, 1966 (ICCPR ) recognize that every human being has inherent right to live and this right will be protected by law.
Yogyakarta Principles drafted by a distinguished group of Human Rights experts address a broad range of Human Rights standards and their application to sexual orientation and gender identity. Human beings of all sexual orientation and gender identity are entitled to the full enjoyment of all human rights. Yogyakarta Principles also recommended States to take steps against discrimination on ground of sexual orientation and gender identity.
The Supreme Court surveyed various judgments of different jurisdictions on treatment to persons who had gone through surgery to change their sex. The Court in England in Corbett Vs Corbett (1970) 2 All ER 33 had held that the gender will be decided on the basis of biological sex at the time of birth. But shift can be discerned in subsequent judgments. European Court of Human Rights in Christine Goodwin Vs United Kingdom (Application No 28957/95 ) and Van Kuck Vs Germany (Application No. 35968/97 ) has recognized rights of transgender persons.
The Supreme Court held that rights of transsexual persons who have undergone SRS, the test to be applied is not the “Biological Test” but the “Psychological Test” because psychological factor and thinking of transsexual has to be given primacy than binary notion of gender of that person.
The Court also noted that many countries have passed legislations against discrimination on the ground of gender identity and sexual orientation.
Scenario in India
The Supreme Court noted that several types of transgenders i.e. Hijras, Eunuchs, Aravanis and Thirunangi, Kothi, Jogtas and Jogappas, Shiv Shakthis etc exist in India. Transgender persons face several discrimination in India. The Court noted that HIV and sexually transmitted diseases are increasing among transgender persons.
The Supreme Court noted India lacks legislations in respect of persons belonging to transgender community. The Court noted that International Conventions including Yogyakarta principles are not inconsistent with the various fundamental rights guaranteed under the Indian Constitution. These rights must be recognized and followed.
The Court held that Article 14 does not restrict “person” to male and female only. Hijra/Transgenders are also covered under expression “person” and has protection of Article 14. Prohibition of discrimination on ground of “sex” under Article 15 and 16 also include prohibition of discrimination on the ground of gender identity. State is also liable to grant employment opportunities to transgender community under Article 16 (4).
The Supreme Court held that Article 19 (1) (a) 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.
The Supreme Court noted that right to dignity is inherent in Article 21. Legal identity is part of right to dignity and freedom guaranteed under Constitution of India. The Supreme Court held that 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.
The Supreme Court issued various directions for safeguarding the interests of transgenders. The Supreme Court declared transgenders as third gender. Transgender persons’ right to self-determine their gender was also recognized. Union and State Governments were also directed to treat them as socially and educationally backward class of citizens. The Supreme Court also directed for creation of medical facilities and welfare schemes for transgender persons.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.