“Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.”
In April 2014 the Supreme Court of India passed a path-breaking judgment, National Legal Services Authority (NALSA) v. Union of India and Others. By granting constitutional rights and freedoms to transgender persons, the Court recognized the diverse gender identities by breaking the binary gender construct of ‘man’ and ‘woman’ that had prevailed in Indian laws till date. A Division Bench of Justice K.S. Radhakrishnan and A.K. Sikri pronounced this judgment.
Facts of the case and issues raised
Prior to this judgment the Indian law on the whole acknowledged or identified only two categories of sexes, males and females. Due to this characterization of gender based on the person’s sex assigned at birth, laws related to adoption, inheritance, marriage, succession, taxation, and welfare legislations did not apply to those members of society who did not fall within the scope of this restricted definition of gender. The world’s largest democracy therefore, failed to legally recognize 4.9 lakh person’s, the transgender community residing within its state. Unfortunately, there existed no legislation in India dealing with the rights of the transgender (TG) community, and due to this absence of suitable legislation protecting the rights of such people, they continued to face discrimination of various forms (legal and social) and hence the National Legal Services Authority found the necessity to address the problem. The Supreme Court, acknowledging the need for such legislation, referred to International Conventions and the principles of the Constitution to give due recognition to the transgender community and protect their rights.
The case raised two issues:
- Whether a person who is born as a male with predominantly female orientation (or vice versa), has a right to get himself or herself to be recognized as the opposite gender as per their choice more so, when such a person after having undergone operational procedure, changes his/her sex as well;
- Whether transgender, who are neither male nor females, have a right to be identified and categorized as a “third gender”?
Defining “Transgender”, “Sexual Orientation” and “Gender Identity”
Gender Identity is considered a fundamental aspect of life, and refers to a person’s intrinsic sense of being male, female, transgender, or transsexual. It refers to the “self-identification” of an individual according to what is deeply and innately felt by them.
As mentioned earlier, Indian law defined gender only with respect to the sex of a person assigned at birth, thereby excluding transgender people and their form of self-identification. To remedy this wrong, the Judgment defined “transgender” as an “umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex”.
Sexual orientation has been defined under this judgment as an individual’s “enduring physical, romantic and/or emotional attraction to another person.” On the question of rights of transsexual persons, who have undergone sex reassignment surgery (SRS) the test to be applied has been set as 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.
Background and Need for Legal Protection
The Judgment highlights the plight of members of the TG community by quoting the experiences of many who faced sexual abuse, harassment, suicidal tendencies, abandonment and other atrocities. It traces the history and importance of the community in India back to the Mahabharata and condemns their prolonged suffering in society, specially by the Criminal Tribes Act, 1871 under the British Raj, which held the entire Hijra community as “innately criminal” and subjected them to arbitrary penalties. Even though the Act was revoked in 1949, such prejudice continued. In the case of Queen Empress v. Khairati  a transgender person was held under Section 377 of the Indian Penal Code on the suspicion of being a “habitual sodomite”. Thus, this provision continues to be an instrument of harassment, physical abuse and discrimination against the TG community. However, referring to Suresh Kumar Koushal and another v. Naz Foundation and others  the Court held that, even though the constitutional validity of Section 377 was discussed in that case the issue here is distinctively different and refers to the gender identity and constitutional inclusion of the community.
It is thus befitting that, the Court asked for the recognition of the TG community as a distinctive community that must also be protected. It says that, without of protection of human rights there can “be no democracy and no justification for democracy”. Further, due to the oppression faced by them over the course of our history the Court issues a series of directions to the State and Central Governments to consider TG persons as socially and educationally backward classes of citizens and extending reservations in public employment, education, providing separate HIV medical care and appropriate health facilities amongst others. The judgment thereby frames the concerns of the community as a matter of rights, rather than a charitable and paternalistic duty of the State that existed.
On Fundamental Rights
For transgender persons “to flower to its fullest” and to empower themselves as independent and active members of our society, the Court emphatically noted that they must not be forced to live as a gender they do not identify themselves with or rely to. Further, for their true inclusion into society, they must enjoy freedom and equality.
The Court referred to Article 14 of the Constitution of India which states that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. It held that, such a right is regarded as a basic feature of the Constitution and must be applicable to individuals for the fullest enjoyment of their rights and freedoms. Further, there is nothing to indicate that the words “any person” were limited to men and women only, and the State thus has a positive obligation to include the transgender community within the ambit of this provision.
Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’. The Constitution thus recognizes sexual discrimination as a historical fact that needs to be addressed. This judgment seeks to fade the distinction between sexual discrimination and discrimination based on gender identity. It held that, both flow from the principle that there must not be differential treatment based on stereotypical generalizations of binary genders and thus, the expression ‘sex’ used in Articles 15 and 16 is intended to include people who consider themselves to be neither male or female.
Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which this decision deems to include one’s right to expression of his self-identified gender. Subject to restrictions in Article 19 (2), it says that there can be no restriction to self-identification of ones gender whether by dress, words, expression, behavior or any other form.
Article 21, on the right to life and personal liberty covers all those aspects of life, which make ones life meaningful. In this decision, it was rightly observed that it to be “the heart and soul of the Indian Constitution”. In the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi  the court held that right to dignity is essential to our culture and for the growth of individuals and includes in its meaning “expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings”. It is further stated that, recognition of ones gender identity “lies in the heart” of ones human dignity.
Article 253 of the Constitution of India states that the Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention. Article 51 of the Directive Principles of State Policy, clause (c) says that the State must respect International Law and Treaty obligations. If the Parliament makes a law contrary to any international law, Indian courts are bound to give effect to the laws of the nation. However, in the absence of such laws the municipal courts may give effect to international laws. The Universal Declaration of Human Rights, The International Covenant on Civil and Political Rights, The United Nations Charter all call upon states to award equal protection to all citizens without discriminating on grounds of sex and further uphold the notion of equality and human dignity. Further, The Yogyakarta Principles that address a broad range of human rights standards with relation to gender identity and sexual orientation were also referred to in this judgment. Referring to such international instruments and legislations enacted by other states and in the absence of any such domestic law addressing the issue of rights of the transgender community in India, the Court felt that it is only just to give due recognition to these international conventions and principles. The Constitution makers could not have envisaged all possible forms of human activity, as noted by the court and therefore to include the rights of the transgender community within the framework of the Constitution upholds its ethos and philosophy of equality, freedom and non-discrimination. Thus, by recognizing the transgender community as a ‘third gender’ the court is not only upholding the rule of law, but also advancing justice to a class that has been wrongly deprived of its constitutional and natural rights.
- Transgender people (including Hijras and Eunuchs) to be recognized as the third gender for purposes of guaranteeing their rights under Part III of the Constitution.
- Transgender people have a right to self-identification and the State must grant legal recognition to their identity.
- The State must further recognize them as a socially and educationally backward class and provide for reservations in public employment, education, etc.
- The State must address the several problems faced by the community such as body dysphoria, social pressure, fear, shame, stigma, suicidal tendencies etc. and create general awareness and social welfare schemes to tackle with the same.
- The State must also take proper measures to provide medical facilities and health care to transgender persons and ensure separate hospitals, toilet facilities etc.
- Lastly, The State must take steps to ensure that transgender persons can regain their place and respect in society, and enjoy their social and cultural life to the fullest.
 WP (Civil) No. 604 of 2013
 2014 Census of India Report conducted by Registrar General and Census Commissioner of India. (Naz Foundation and other transgender activists have estimated this number to be six to seven times higher)
 (1884) ILR 6 All 204
 [(2014) 1 SCC 1]
 (1981) 1 SCC 608