New Delhi - Many Supreme Court judgements have changed the face of Indian polity and society. As the transgender community becomes more vocal about their deserved rights, let's refresh our memory on one such verdict -the landmark NALSA judgment that provided legal autonomy to transgender individuals.
This is an important decision as it is the first to legally recognize non-binary gender identities and uphold the fundamental rights of transgender people in India. The judgment also urged the central and state governments to take proactive steps to protect transgender people and provide necessary help in education and employment.
The judgement was delivered by a two-judge bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri on 15th April 2014 although Justice Sikri gave a different opinion with some additional comments.
Two writs were filed to protect and safeguard the rights of individuals that belong to the transgender community.
The National Legal Service Authority , which is constituted under the Legal Services Authority Act, 1997, filed a writ petition (writ petition no. 400 of 2012).
It was followed by another writ petition (No. 604 of 2013) which was filed by Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered association for the protection of the rights of the Kinnar (Transgender) community.
Laxmi Narayan Tripathi, who considered himself to be Hijra, also approached the court and was also impleaded in the present case. He claimed that being a hijra, his rights as guaranteed by Article 14 and 21 were being denied and the Court had to intervene so that he and other members of his community are not discriminated against anymore.
NALSA filed the case to legally recognize individuals who do not identify with the gender binary. The case was presented before a two-judge bench of the Supreme Court, composed of Justice K.S. Radhakrishnan and Justice Arjan Kumar Sikri. The court assumed the responsibility of deciding whether individuals outside the male/female gender binary could be legally recognized as "third-gender" individuals and whether disregarding non-binary gender identity constituted a violation of fundamental rights guaranteed by the Constitution of India. The court directed the Expert Committee on Transgender Issues, established under the Ministry of Social Justice and Empowerment, to work on the decision.
The court upheld the right of all individuals to self-identify their gender. It further stated that 'hijras' and eunuchs could legally identify as the "third sex." The court explained that gender identity is not linked to biological characteristics but described it as a "natural concept of sex." Consequently, it ruled that no individual of the third sex should be subjected to a medical examination or biological test that violates their right to privacy. It is important to note that the decision overlooked the grammatical usage of the word "transgender," as it was used in various instances as a noun rather than an adjective. Using it as a noun is demeaning to people in the trans community and objectifies them. "Transgender" is an adjective, not a noun.
The apex court recognized that the right to equality (Article 14 of the Constitution) and freedom of expression (Article 19(1)(a)) use gender-neutral terms such as 'all persons.' As a result, these rights extend to the transgender community as well. Under Articles 15 and 16, a person cannot be discriminated against based on 'sex.' The court held that "sex" here does not only refer to biological attributes (such as chromosomes, genitalia, and secondary sexual characteristics) but also includes "gender" (based on one's self-perception). Therefore, the court held that discrimination based on "sex" includes discrimination based on gender identity. The court interpreted "value" under Article 21 of the Constitution to encompass the diversity of self-expression that empowers a person to lead a dignified life. It placed a person's sexual identity within the framework of the fundamental right to human dignity under Article 21.
Directives Provided by the Court:
Hijras, eunuchs, apart from the binary gender, should be treated as the "third gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
Transgender persons' right to self-identify their gender is also upheld, and the Centre and State Governments are directed to grant legal recognition of their gender identity, such as male, female, or as the third gender.
The Centre and State Governments are directed to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission to educational institutions and public appointments.
Centre and State Governments are directed to operate separate HIV Sero-surveillance Centers since hijras/transgenders face several sexual health issues.
Centre and State Governments should seriously address the problems faced by hijras/transgenders, such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc., and any insistence on SRS for declaring one's gender is deemed immoral and illegal.
Centre and State Governments should take proper measures to provide medical care to TGs in hospitals and also provide them with separate public toilets and other facilities.
Centre and State Governments should also take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and not be treated as untouchables.
Constituted under the Legal Services Authorities Act, 1987, the National Legal Services Authority (NALSA) provides free legal services to marginalized sectors of society and organizes Lok Adalats for amicable dispute resolution. The current Patron-in-Chief is Chief Justice of India D.Y. Chandrachud. NALSA is located at the Supreme Court of India, Tilak Marg, New Delhi, Delhi (110001). State Legal Services Authorities have been established in each state to conduct Lok Adalats, offer free legal services to the public, and implement NALSA's policies and directives. The Honourable Chief Justice of the corresponding High Court serves as the patron-in-chief of the State Legal Services Authority. In each district, a District Legal Service Office has been established to implement legal service programs and is located in the District Court Complex of each district. It is headed by the District Magistrate of the relevant district, and a Civil Judge Cadre Judicial Officer is appointed as a full-time secretary.