Chanakya IAS Academy Blog

Dawning of a New Era in India with Legal Recognition to Transgender People

In a ground-breaking judgment, honorable Supreme Court has confirmed the constitutional rights and freedoms of transgender persons including those who identify as third gender and those who identify in a gender opposite to the biological sex. By recognizing diverse gender identities, the Court has wiped out the binary gender construct of ‘man’ and ‘woman’ that has pervaded Indian law. The judgment was pronounced in National Legal Services Authority v. Union of India & Ors. [Writ Petition (Civil) No. 400 of 2012 (‘NALSA’)] by a division bench of Justices K.S. Radhakrishnan and A.K. Sikri.

In September 2012, National Legal Services Authority filed the writ petition which had sought several directions from the Supreme Court including protection to transgender persons,granting of equal rights and inclusion of third category in recording one’s sex/gender in identify documents like the passport, election card, ration card and driving license for admission in hospitals, educational institutions etc. The Lawyers Collective had filed an intervention, on behalf of Ms. Laxmi Narayan Tripathy, a Hijra/transgender activist, seeking recognition of self-identified gender of persons, either as male/female/third gender, based on their choice.

Right to equality and equal protection for transgender persons are firmly secured by the Supreme Court under Articles 14, 15 and 16 by prohibiting discrimination on the ground of gender identity. It has widened the scope of the term ‘sex’ in Articles 15 and 16 which till recently meant biological sex of male and female to embrace ‘gender identity’ or ‘psychological sex’. Significantly, the Court also stated that no one can be discriminated against on the ground of sexual orientation.

Freedom and equality are further buttressed by the Court’s observations on personhood, dignity, privacy and the free spirit of human being which are essential for the human ‘personality to flower to its fullest’. The Court emphatically observed that dignity cannot be realized if a person is pressured to grow up and live in a gender, which they do not identify with or relate to.

In discussing the fundamental rights of the transgender persons, NLSA counts on principles of international human rights law, especially on gender identity and sexual orientation, by stating that these must inform and provide content to the rights guaranteed under the Constitution. The Court also referred to foreign legislations and judgments on gender identity and expression.

Directions to the Central and State Government

  • The court has issued certain directions to the central and state governments which are:
  • Tackle their problems such as gender dysporia, fear, shame, suicidal tendencies, depression, etc.
  • Providing reservations in public employment and education as socially and educationally backward class of citizens,
  • The judgment has marked a break from otherwise charitable and paternalistic approach of the state towards the transgender community by framing their concerns as a matter of rights.
  • Measures should be taken to render health care to transgender people in hospitals such as making separate wards and also provide them separate public toilets.
  • Eunuchs, Hijras should be treated as third gender for the purpose of safeguarding their fundamental rights,
  • To create public awareness so that transgenders feel that they are integral part of the society and should not be treated as untouchables.
  • Recognize the persons’ need to identify his own gender
  • Making special provisions regarding HIV sero-survellience for transgenders persons and provide appropriate health facilities.
  • Frame social welfare schemes for their well-rounded growth and development.
  • The judgment has marked a break from otherwise charitable and paternalistic approach of the state towards the transgender community by framing their concerns as a matter of rights.

Misconception about the Term ‘Transgender’

Transgender is not a term confined to persons whose genitals are intermixed but it is a blanket term of people whose identity, behavior or gender expression differs from the norms expected from their birth sex. Various transgender identities fall under this category including transgender female, female to male (FTM), transgender male, and male-to-female (FTM). It also embraces transsexuals, gender queer people (they feel they belonged to either genders or neither gender) and cross-dressers ( those who wear clothes of the other).

‘Hijra’ is a Persian word translated as eunuch which is used in common parlance for transgender community in India

‘Aravani’ is a term used for male-to-female transgender who perform Nirwaan which is a traditional mode of castration or undergoes genital modification through SRS (Sex Reassignment Surgery).

Shiv Shakthis found in Andhra Pradesh are males who are considered married to gods particularly Lord Shiva. They usually work as spiritual astrologers or healers.

Jogtas/ Jogappas found in Karnataka and Maharashtra are male to female transgender who devote themselves to the service of a particular god.

The decision of Supreme Court brings sigh of relief to transgender peoples and definitely will bring them to the mainstream society. The much-awaited decision of the court has placed them in a situation where they can be a significant contributor in the growth and development of the country.

Read 320 times Last modified on Tuesday, 20 September 2016 14:35
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