Recognition of transgender as 'third gender', right to self-identified gender, and the directive for legal recognition, reservation, and social welfare schemes for transgender persons.

JUDGMENT :

1. Not on the Board. Mentioned. Taken on the Production Board.

2. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

3. The petitioner, undisputedly a transgender, is aggrieved by the rejection of her nomination form by the Returning Officer vide the impugned order dated 31.12.2020. The petitioner has decided to choose the female gender and hence, had tendered her nomination form for contesting the election from the ward reserved for women-general category. The reason for rejecting the nomination form is that the petitioner is a transgender. It is stated that there is no reservation for the transgender category in the present Village Panchayat elections.

4. The petitioner relies upon Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019 and also places reliance upon the judgment delivered by the Honourable Supreme Court in the matter of National Legal Services Authority vs. Union of India and others, AIR 2014 SC 1863 : (2014) 5 SCC 438.

5. The learned AGP and the learned advocate representing the State Election Commission submit that they would not argue beyond the provisions of law and would not make submissions, which are contrary to the law laid down by the Honourable Supreme Court in National Legal Services Authority (supra). It is stated that the Returning Officer is likely to be unaware of this law and must have been in a dilemma while deciding the issue of acceptance of the nomination form of the petitioner.

6. The learned advocate for the petitioner makes a categoric statement, on instructions, that this is the first occasion wherein, the petitioner has opted for a right to a self perceived gender identity and has selected a female gender for all purposes during her lifetime. He submits that the petitioner, henceforth, shall not switch over to the male gender under any circumstances anytime in future during her lifetime.

7. The Honourable Supreme Court has dealt with the issue of the rights of the transgender persons in National Legal Services Authority (supra) and has observed in paragraphs 53, 61, 66, 67 and 71 to 75 as under:-

“53. Indian Law, on the whole, only recognizes the paradigm of binary genders of male and female, based on a person’s sex assigned by birth, which permits gender system, including the law relating to marriage, adoption, inheritance, succession and taxation and welfare legislations. We have exhaustively referred to various articles contained in the Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, the International Covenant on Civil and Political Rights, 1966 as well as the Yogyakarta principles. Reference was also made to legislations enacted in other countries dealing with rights of persons of transgender community. Unfortunately we have no legislation in this country dealing with the rights of transgender community. Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles. Constitution makers could not have envisaged that each and every human activity be guided, controlled, recognized or safeguarded by laws made by the legislature. Article 21 has been incorporated to safeguard those rights and a constitutional Court cannot be a mute spectator when those rights are violated, but is expected to safeguard those rights knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance.”

“61. Article 14 of the Constitution of India 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. Equality includes the full and equal enjoyment of al