National Legal Services Authority v. Union of India and others

Members of transgender community sought a legal declaration of their gender identity, instead of the male or female identity assigned to them at the time of their birth, claiming that that non-recognition of their gender identity violated Articles 14 and 21 of the Constitution of India (the “Constitution”). Hijras and eunuchs, who were also members of the transgender community, claimed legal status as a third gender.

Claimants alleged that since transgendered persons (“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.” Such deprivation included restriction on social and cultural participation, and access to education, health care and public places. TGs further alleged that the community faced discrimination related to elections and voting rights, obtaining licenses, etc., and were effectively treated as outcasts.

The Court began its analysis by detailing the strong historical presence that TGs have played in Indian culture, mythology and religious text, before noting that persecution of the TG community was a feature of British colonial jurisprudence in India.

Citing, inter alia, Article 6 of the Universal Declaration of Human Rights, Articles 16 and 17 of the International Covenant on Civil and Political Rights and the Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, the Court stated that international law advocated the protection of the rights of TGs. The Court went on to detail certain foreign judgments and legislation which had given recognition to the gender identity of TGs. The Court also discussed the wide range of TG-related identities, cultures and experiences which existed in India, and catalogued the multiple forms of oppression TGs suffered in India, including discrimination and high rates of HIV infection.

The Court reasoned that, particularly because India did not have any legislation protecting the rights of TGs, international conventions and norms were significant for the purpose of interpreting the guarantee of gender equality and that such conventions and norms protected and promoted TG’s human rights.  Where Indian law did not conflict with international covenants—particularly those pertaining to human rights—the Court held that domestic courts could apply the principles in such international covenants to the Indian context.

Noting that Article 14 of the Constitution guaranteed that a State could not deny to any person equality before the law, the Court held that the State had a positive obligation to bring in the necessary social and economic changes so that everyone, including TGs, could enjoy the full and equal enjoyment of all rights and freedoms. The Court also noted that the language in Article 14 covered “any person” and was thus not limited to male or female persons. The Court held that the facts supported the assertion that TGs faced extreme discrimination in all spheres of society which impaired their equality before the law and equal protection of law, and resulted in a violation of Article 14 of the Constitution.

Noting that Articles 15 and 16 prohibited discrimination against any citizen on certain enumerated grounds, including the ground of “sex”, the Court held that that both gender and biological attributes constituted distinct components of sex and therefore discrimination on the ground of sex included discrimination on the ground of gender identity.  The Court further determined that TGs had been systematically denied their rights under Articles 15 and 16 and were not afforded the special protections envisioned under Article 15 for the advancement of the socially and educationally backward classes, or the reservations in the matter of appointment envisioned under Article 16.

Noting that Article 19 of the Constitution guaranteed certain fundamental rights, the Court held that gender identity, which lay at the core of one’s personal identity, gender expression and presentation, must be protected under Article 19.

Noting that Article 21 of the Constitution protected the dignity of human life, one’s personal autonomy, and one’s right to privacy, the Court held that, because recognition of one’s gender identity lay at the heart of the fundamental right to dignity, legal recognition of gender identify must be protected under Article 21.

Noting that TGs did not identify as either male or female and that gender identity was integral to the dignity of an individual, the Court held that hijras and eunuchs must be considered as a “third gender”.

The Court therefore directed that (1) hijras and eunuchs be treated as a “third gender” in order to safeguard their rights; (2) the right of TGs to decide their self-identified gender be upheld by the government; (3) the government treat TGs as backward classes of citizens and extend to them reservations for admission into educational institutions and public appointments; (4) the government operate separate HIV sero-survellance centers for TGs; (5) the government address the social and health problems faced by TGs; (6) the government provide medical care to TGs in hospitals, separate public toilets and other facilities; (7) the government take steps to frame welfare schemes for TGs' benefit; (8)  the government take steps to create public awareness regarding inclusion of TGs; and (9) the government take measures so that TGs regain their traditional place of respect in society.

Justice Sikri concurred with the opinion. Regarding the right of a person to have the gender of his/her choice, Justice Sikri opined that “even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after [sex reassignment surgery], which was not only his/her gender characteristic, but has become his/her physical form as well.” Regarding the right of TG person to be identified and categorized as “third gender”, Justice Sikri noted that while there might not be any statutory regime recognizing the third gender, there was enough justification in the natural law sphere for the Court to recognize this right (as well as justification taken from Part III of the Constitution) and that, by recognizing TGs as a third gender, the court was advancing justice to both the class of TGs and to society.

“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.”

“19. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.”

“49. 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.”

“53. If the parliament has made any legislation which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather than the international law.  However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.”

“54. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, 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 of this country.”

“55. Petitioners have asserted as well as demonstrated on facts and figures supported by relevant materials that despite constitutional guarantee of equality, Hijras/transgender persons have been facing extreme discrimination in all spheres of the society.  Non-recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police.  Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.  Further, non-recognition of identity of Hijras /transgender persons results in them facing extreme discrimination in all spheres of society, especially in the field of employment, education, healthcare etc. Hijras/transgender persons face huge discrimination in access to public spaces like restaurants, cinemas, shops, malls etc.   Further, access to public toilets is also a serious problem they face quite often.   Since, there are no separate toilet facilities for Hijras/transgender persons, they have to use male toilets where they are prone to sexual assault and harassment.  Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”

“59. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex discrimination is a historical fact and needs to be addressed.  Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.   Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.”

“66. Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India.  A transgender’s personality could be expressed by the transgender’s behavior and presentation.  State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.   Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons.  We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.”

“68. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity.  Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity.  Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”

“69. Self determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.”

“70. Self-identified gender can be either male or female or a third gender.  Hijras are identified as persons of third gender and are not identified either as male or female.  Gender identity, as already indicated, refers to a person’s internal sense of being male, female or a transgender, for example Hijras do not identify as female because of their lack of female genitalia or lack of reproductive capability.   This distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a “third gender”.  Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a “third gender”, apart from male and female.”

“74. Article 21, as already indicated, protects one’s right of self determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned.  In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.”

“76. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure.  Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.”