K.S.RADHAKRISHNAN, A.K.SIKRI
National Legal Services Authority – Appellant
Versus
Union of India – Respondent
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 pr
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