The society which we live in, is composed of different genders but those psychologically accepted are the men and the women. The other dormant genders include the Transgenders, gays, lesbians, bisexuals, etc…This paper talks about the Transgenders. Transgender people are not some new kind of strangers. They have been there among us even from the ancient times. Just like the other people, the hormonal changes that take place in their bodies make them get identified as the third genders. We come across them in our daily lives. It is the fundamental right of every creature of this universe to live a life with dignity. But it doesn’t always be practical untill we get a change in the minds of people.
This paper is a case analysis of the famous Transgenders case, National Legal Services Authority v.
Union Of India. This is a very important case to every transgender person as it gave the legal recognition of their gender. This judgement was delivered in 2014 and it took these many years for them to gain their identity. This paper observes the facts of this case, submits the contentions of both the Petitioners and the Respondents and finally utters the judgement delivered. The final part contains my views in this regard.
KEYWORDS: Transgenders, National Legal Services Authority of India, Union Of India, Recognition
National Legal Services Authority v. Union Of India famously known as the Transgenders Rights Case, is the Supreme Court Landmark judgement held on 15 April, 2014 by Justice K. S. Radhakrishnan and Justice A. K. Sikri. This case made sure that every person must have equal oppurtunities to make use of their fundamental rights which is granted under the India n Constitution. It also granted them the right to self-identification of their gender. Moreover, the court also decided that since the transgenders are to be treated as socially and economically backward classes, they should be granted reservations in admissions to educational institutions and jobs.
FACTS OF THE CASE
In the year of 2012, an Indian statutory body, the National Legal Services Authority established to give legal delegacy to borderline segments of society. Hence, a writ petition was filed in the Supreme Court of India under Article 32 of the Indian Constitution. The petition was accompanied by a non-governmental organization which represented the Kinnar transgender community, and an individual Hijra person.Thus they are the petitioners.
The word Hijra describes the transgender people in South Asia. It generally includes bisexuals, and neutered men as well as non-castrated men. Non-castrated men generally do not have structural reproductive organs of either gender. The term Transgenders is used as an umbrella term that lets in people who do not match with their birth gender as well as people who may determine as neither gender. This includes intersexuals, pre-operative and post-operative transsexuals, as well as homosexuals.
The petition sought a legal testimony of their gender identity than the one which is assigned to them at the time of birth. It also stated that not recognising their gender identity goes in violation of Articles 14 and 21 of the Indian constitution. The transgender people insisted that their inability to represent themselves as a binary gender forbids them from accessing the equal protection of law and the other available social welfare schemes. They also prayed for the legal security and protection as a backward community and also the right to express their self-identified gender in government forms.
The Additional Solicitor General, standing for the government,authorized that the matters discussed in This petition depicted a serious social issue. He told the Court that the Government had already constituted an Expert Committee to look into various issues faced by the transgender community.
This petition clearly gives rise tothe issue of ‘Gender Identity’, which is the central issue. It has two
(a) Whether a person who is born as a male with preponderantly female attitude or behaviour (or vice-versa), has a right to get himself recognized as a female according to his choice and also when such a person after undergoing operational process, changes his/her sex?
(b) Whether transgenders, who are neither males nor females, have a right to be identified and recognized as a ‘third gender’?
ARGUMENTS OF THE PETITIONERS
The petitioners fiercely argued through their advocates that the idea of binary genders attacks at the core of Article 14- the Right to Equality, Article 21- Right to Life and Personal Liberty, and Article 19- Freedom of Expression. The normalization of binary genders has further victimized and alienated individuals that do not identify with either of the genders. They further argued that due to non-identification as the third gender, the basic human dignity of such individuals is violated which marginalizes them and forces them to live on the fringes of society for no fault of theirs.
ARGUMENTS OF THE RESPONDENTS
On the other hand, the respondents argued that the state had already constituted an “Expert Committee on Issues Relating to Transgender” which is looking into all kinds of opinions to reach out transgender persons and help them live a more comfortable and dignified life. They also said that the Committee will also take into consideration the views of the petitioners so that a more detailed policy can be framed in this regard. Several states and union territories argued that they have taken a significant number of steps for the betterment of the lives of the transgender community.
This landmark judgement was delivered on 15 April, 2014, by a two-judge bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri despite Justice Sikri giving a different opinion with some extra comments. The court in its judgement relied uon various judgements from international courts such as New Zealand,Malaysia, Australia, England and Pakistan. The Court differentiated between biological sex and psychological sex. The Court said no to gender identification based on biological sex and gave full value to identification based on psychological sex.
The Court ruled that all provisions in the international conventions including the Yogyakarta Principles must be acknowledged and followed provided they match with the fundamental rights guaranteed by Part III of the Indian Constitution. The Court held that transgenders fall within the purview of the Indian Constitution and so they are fully entitled to the rights guaranteed therein.
Article 14 guarantees equality to “any person” which means man, woman, and transgender, and as such, they are also guaranteed equal protection of the law. They have equal rights in employment, health care, education, and civil rights. Discrimination on the grounds of sexual orientation and gender identity represents inequality before the law and unequal protection of the law and violates Article 14.
The Court further added that transgender individuals have freedom of expression under Article 19 whereby they can talk, dress, act, and behave in a manner they like. They also have a right to live a life of dignity under Article 21. The Court held that the State and Central governments must grant transgenders full recognition in the eyes of the law so that they can get education and healthcare without being subjected to any kind of discrimination.
The Court also decided that Hijras, Eunuchs are to be treated as the ‘third gender’. It made various
declarations and directions to the Centre and State Governments such as to operate separate HIV Zero- Surveillance Centres, provision for separate public toilets, and appropriate medical care in hospitals for transgenders.
CONCLUSION AND SUGGESTION
This judgement is viewed as a fresh ray of hope for the transgender people who have suffered for an indefinite period in silence due to large measure discrimination and social injustice. We cannot be satisfied that this judgement will change the way society treats transgender individuals but it is a great initiative to make right the wrongs that took place against transgenders for centuries together. Though we have this judement and a statute to deal with their rights, a massive change in the minds of the people will be the only solution to this. Despite all the criticisms, this judgement has remarkably changed their lives to a certain extent.
CREDIT: Cyndhia. JR
CLG NAME: School Of Excellence In Law,
The Tamilnadu Dr. Ambedkar Law University.