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SUPREME COURT OF INDIA
K.S. Radhakrishnan, A.K. Sikri, JJ.
National Legal Services Authority – Petitioner
Versus
Union of India and others – Respondents
WRIT PETITION (CIVIL) NO.400 OF 2012 WITH WRIT PETITION (CIVIL) NO.604 OF 2013
Decided On : 15-04-2014
(a) Words and Phrases – Transgender, also transsexual – Umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex – Include Hijras, Eunuch, Aravanis and Thirunangi, Kothi, Jogtas/Jogappas and Shiv-Shakthis – Described as “third gender” not identifying as either male or female – Hijras not having reproduction capacities as either men or women, are neither men nor women – Hijras include emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites) – Also include 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 – Includes persons who like to cross-dress in clothing of opposite gender, i.e., transvestites – The umbrella term “Transgender” is used to describe a wide range of identities and experiences, including pre-operative, post-operative and non-operative transsexual people. (Para 11, 44)
(b) Words and Phrases – Transsexuals – Is a person who, whilst belonging physically to one sex, seek to achieve a more integrated unambiguous identity by undergoing medical and surgical operations to adapt their physical characteristic to their psychological nature – Rights of transsexual persons – Test to be applied – Not the “Biological test”, but the “Psychological test”. (Para 34)
(1884) ILR 6 All 204; (2014) 1 SCC 1; (1970) 2 All ER 33; (1983) QB 1053; (1995) 1 NZLR 603; (2001) Fam CA 1074; (2003) Fam CA 94; (1993) 43 FCR 299; (1988) 17 NSWLR 158; (2011) HCA 42; (2003) 2 All ER 593; (2006) 1 MLJ 90; (2013) NSWCA 145; Application No.28957/95; Application No.35968/97 – Referred
(c) Transgender – Recognition of “sex identity gender” of persons, and “guarantee to equality and non-discrimination” on the ground of gender identity or expression – Increasing and gaining acceptance in international law – Should be applied in India as well. (Para 43)
(d) Constitution of India – Article 253 and 51 – Implementation of International conventions/ treaties – Not automatic – Parliament has to make law – Even in absence of any law, such treaty/convention/ agreement can be applied by courts on principles of comity of Nations if not overridden by domestic law – Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content of the fundamental rights and to promote the object of constitutional guarantee. (Para 51, 53)
(1984) 2 SCC 534; (1969) 3 SCC 562; (1966) 1 SCR 391; (1980) 2 SCC 360; (1973) 4 SCC 225; (1999) 1 SCC 759; (1999) 2 SCC 228; (2007) 15 SCC 337; (2005) 2 SCC 436; (1997) 6 SCC 241 – Relied upon
(e) Constitution of India – Article 14 – Rights of transgenders – Meaning and application of word ‘person’ not restricted only to male or female – Hijras/transgender persons, neither male/female are ‘person’ – 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. (Para 54)
(f) Constitution of India – Articles 15 and 16 r/w Article 51 – Articles 15 and 16 prohibit all forms of gender bias and gender based discrimination – Transgenders have been denied all rights and protection of laws on basis of sex discrimination – They are entitled to all benefits of Articles 15 and 16 including those available to socially and educationally backward classes (SEBC). (Para 56, 60)
(g) Constitution of India – Article 19(1)(a) – Freedom of expression – Includes freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc. (Para 65, 66)
75 III.2d 525(1978); 2000 WL33162199 – Referred
(h) Constitution of India – Article 21 – Recognition of one’s gender identity lies at the heart of the fundamental right to dignity – Legal recognition of gender identity – Also, Self-determination of gender being integral part of personal autonomy and self-expression – Part of right to dignity and freedom guaranteed under Article 21. (Para 68, 69)
(1981) 1 SCC 608; (2008) 3 SCC 1 – Relied upon
(i) Transgenders – Legal recognition of third/transgender identity – Hijras belong to a distinct socio-religious and cultural group – Have to be considered as a “third gender”, apart from male and female – Articles 14, 15, 16, 19 and 21 do not exclude Hijras/Transgenders from its ambit – Directions given. (Para 70)
Writ Petition No.917 of 2007; Constitution Petition No.43 of 2009 – Referred
Per A.K.Sikri, J.
(j) Transgenders – Legal identity – Neither male nor female, nor given status of a third gender – Resulting in depriving them of many valuable rights and privileges which other citizens enjoy – Also deprived of social and cultural participation resulting into lack of access to education and health services. (Para 81)
(k) Human Rights – Universal to every person – Includes ‘right of choice’. (Para 84, 87)
(l) Constitution of India – Article 14 – Anything which is not ‘reasonable, just and fair’ is not treated to be equal – Is violative of Article 14. (Para 92)
AIR 1978 SC 215 – Relied upon
(m) Constitution of India Article 21 – So long, negative language of Art.21 and use of the word ‘deprived’ was construed as imposing upon the State negative duty not to interfere with the life or liberty of an individual without the sanction of law – Now Article 21 is meant to impose a positive obligation on the State (Para 96)
(1987) 3 SCC 430; AIR 1987 SC 149; AIR 1988 SC 1768; AIR 1989 SC 2039; AIR 1989 SC 677; AIR 1989 SC 190; AIR 1988 SC 1883; AIR 1988 SC 1782; AIR 1991 SC 420; AIR 1990 SC 630; AIR 1989 SC 549; AIR 1986 SC 847; AIR 1992 SC 1858; AIR 1993 SC 2178; AIR 1987 SC 990; (1987) 4 SCC 463; AIR 1984 SC 802; (1986) 3 SCC 596; (1994) Suppl (3) SCC 448 – Relied upon
(n) Constitution of India – Article – 21 – Right of choice to gender identity – Sex identity after SRS – No statutory regime available – Even then a person has a constitutional right to get the recognition as male or female after SRS. (Para 106)
(o) Constitution of India – Article – 21 – Transgender – Hijra etc. – Third gender – Right to be identified and characterize as – Recognition will confer many civil rights on the community – No reason why basic human rights be denied to them – a (Para 113, 114, 119)
AIR 1977 SC 915 – Relied upon
(p) Human Rights – Rule of law is not merely public order – It is social justice based on public order – TGs are human beings – Have right to enjoy their human rights – Recognising TGs as third gender is to uphold rule of law – Directions given. (Para 124, 125, 126, 129)
AIR 1996 SC 1234 – Relied upon
Facts of the case:
These writ petitions pertain to legal status of transgender community including kinnars.
In this case the members of Transgender Community seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is 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, claim legal status as a third gender with all legal and constitutional protection.
Finding of the Court:
TGs have human right to be recognised as third gender.
Result: Petitions allowed.
The legal document affirms that transgender persons, including hijras, eunuchs, and other gender-diverse communities, are to be recognized as a distinct "third gender" for the purpose of safeguarding their fundamental rights under the Constitution and applicable laws (!) (!) . It emphasizes that the right of self-identification of gender is a constitutional right and must be recognized and protected by the State (!) .
Furthermore, the document directs the Government to treat transgender persons as socially and educationally backward classes, thereby entitling them to reservations and affirmative action in education and employment (!) . It also mandates the establishment of separate health surveillance centers to address sexual health issues faced by the community (!) .
The recognition of gender identity is rooted in the principle of personal autonomy and human dignity, which are protected under constitutional rights (!) (!) (!) (!) . The law recognizes that gender identity is an intrinsic aspect of an individual’s personality and self-expression, and therefore, the State is obliged to legally recognize and respect an individual’s self-identified gender, whether male, female, or third gender (!) (!) (!) .
Discrimination on the grounds of gender identity or expression is prohibited, and the law mandates measures to eliminate such discrimination in all spheres of public and private life, including employment, healthcare, education, and access to public facilities (!) (!) (!) . It also underscores the importance of protecting the community from social exclusion, violence, harassment, and discrimination, and urges the State to take proactive steps to promote awareness, respect, and integration of transgender persons into society (!) (!) .
In addition, the document recognizes the importance of legal reforms to enable transgender individuals to obtain identity documents reflecting their self-identified gender, including provisions for change of gender markers in official records (!) (!) (!) . It highlights that such recognition is essential for ensuring their civil rights, including voting, property rights, marriage, and access to social welfare schemes (!) (!) .
Overall, the legal framework advocates for a comprehensive approach that affirms the dignity, autonomy, and equal rights of transgender persons, aligning domestic law with international human rights principles and norms, and mandates the State to implement policies and schemes that facilitate their social, economic, and cultural inclusion (!) (!) (!) .
JUDGMENT
K.S. Radhakrishnan, J. –
1. 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. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.
2. We are, in this case, concerned with the grievances of the members of Transgender Community (for short ‘TG community’) who seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is 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, claim legal status as a third gender with all legal and constitutional protection.
3. The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalized sections of the society, has come forward to advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, has also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in respect of Kinnar community, a TG community.
4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got 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 says that nonrecognition of the identity of Hijras, a TG community, as a third gender, denies 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.
5. Shri Raju Ramachandran, learned senior counsel appearing for the petitioner – the National Legal Services Authority, highlighted the traumatic experiences faced by the members of the TG community and submitted that every person of that community has a legal right to decide their sex orientation and to espouse and determine their identity. Learned senior counsel has submitted that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. Learned senior counsel also submitted that the State cannot discriminate them on the ground of gender, violating Articles 14 to 16 and 21 of the Constitution of India.
6. Shri Anand Grover, learned senior counsel appearing for the Intervener, traced the historical background of the third gender identity in India and the position accorded to them in the Hindu Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts of the Islamic world etc. Reference was also made to the repealed Criminal Tribes Act, 1871 and explained the inhuman manner by which they were treated at the time of the British Colonial rule. Learned senior counsel also submitted tha
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