JAHNVI GOEL (AMITY UNIVERSITY, LUCKNOW)

ABSTRACT / HEADNOTE

This particular case was a landmark decision that assured and gave guarantee to the rights and protection of the transgender community in India for the very first time and discussed “gender identity” and “third gender” at great length. The first petition was filed by the National Legal Services Authority of India (NALSA) to give legal recognition to people who tend to fall outside the classification of male/female gender binary, including persons who identify themselves as “third genders”.  The court recognizes the discrimination and violation of rights in this case faced by transgender individuals on an everyday basis due to societal norms and lack of public awareness. Also, the violation of rights guaranteed by Articles 14, 15, 16, 19, and 21 of the Indian Constitution. The court mandated and held the right to gender identification beyond the given traditional binary system, legally recognizing the existence and identity of a third gender and providing legal protections and opportunities for this marginalized group.

The identification of one’s gender identity for one’s pride and human dignity was directed and followed by courts. It referred to the international human rights, such as the Yogyakarta Principles which gives light to gender orientation and identity at great length.

Overall, the judgment ensured responsibilities for both Governments (state and central) to ensure the rights of the TG community are being maintained and respected in the society and also to provide equal status and protection to them. To recognize the unified importance of the right to privacy and the right to gender identity, and maintain equality and inclusion for all under the law, the court held a precedent.

Keywords: Transgender persons, gender identity, right to life, human rights. Marginalized community, equality under the law.

INTRODUCTION AND BACKGROUND OF JUDGEMENT

To safeguard and emphasize the rights of persons belonging to the transgender community in India two writ petitions were filed by the National Legal Services Authority. The first petition (Writ Petition No. 400 of 2012) was submitted by the National Legal Services Authority, formed under the Legal Services Authority Act, 1997. Following this, a second petition (Writ Petition No. 604 of 2013) was filed by the Poojya Mata Nasib Kaur Ji (Women Welfare Society), an association dedicated to safeguard the rights of the Transgender ( kinnar) persons.

Moreover , Laxmi Narayan Tripathi, who also identified himself as Hijra, was involved in the case and therefore, approached the court as well. Laxmi Narayan Tripathi brought to light that as a Hijra, his rights guaranteed under Articles 14 and 21 of the Indian Constitution were being infringed. He encouraged the court to take a step to put a stop to more discrimination against himself and other vulnerable members of the marginalized community.

FACTS OF THE CASE

Tracing the historical background of the third gender identity in India and the position accorded to them in the Hindu Mythology, Vedic and Puranic literatures, and the prominent role played by them in the royal courts of the Islamic world etc, the first reference to transgenders in Hindu mythology is Mohini, the female avatar of Vishnu, who appears in the Mahabharata and Vishnu Purana, also mentioned in the Ramayana, transgender individuals (hijras) demonstrate loyalty to Lord Rama during his exile, leading him to grant them the power to confer blessings on auspicious occasions. They are further mentioned in the Mahabharata, where Aravan is put forward as a sacrifice for victory in the battle of Kurukshetra war, he was the son of Ulupi and Arjuna in the historical text (Mahabharata), Lord Krishna, who disguised himself as Mohini, offers to marry Aravan,thus, arriving to the tradition of transgenders (hijras) in Tamil Nadu calling themselves as Aravanis. Therefore , Hindu mythology always held and accepted transgender persons in a status equal to other genders and showed them equal respect and importance.

In this particular case, two writ petitions were filed to safeguard and protect the rights of the transgender persons in India. The first petition was put forward by the National Legal Services Authority (NALSA), Following this petition, another petition was submitted by the Poojya Mata Nasib Kaur Ji, from  Women Welfare Society, which fights for the rights and protection of the transgender community, especially the “kinnar” community.

Lakshmi Narayan Tripathi, also urged the court to take a step to end the discrimination against the community for good since his rights under article 14 and 21 are being violated.

As a result, the TG community was recognized and legally entitled to fundamental rights under Articles 14, 15, 16, 19(1)(a), and 21 of the Indian Constitution, with a special reference to international human rights treaties such as the Yogyakarta Principles which specifically recognize freedom of sexual orientation and identity as part of human rights,

The Court further held that certain programs were required to be set up for public awareness and consciousness to tackle and prevent the stigma and societal notions against the TG community and gave importance to the recognition of the “third gender” in official government documents. Moreover, the court addressed the state and central governments to provide opportunities and resources in education and public sectors and to set up social welfare schemes for the upliftment of the transgender community.

LEGAL ISSUES RAISED

1. Whether non-recognition of the gender identity of the members of the transgender community result in the infringement of their rights as guaranteed by Article 14, Article 15, Article 16, Article 19 and Article 21 of the Constitution?
2. Whether persons who do not fit under the traditional male/female gender binary can be legally acknowledged as “third gender” persons?

PETITIONER/ APPELLANT’S ARGUMENTS

The counsels for Petitioners submitted that:

1. Binary gender norms infringe upon fundamental rights such as the Right to Equality (Article 14), Right to Life and Personal Liberty (Article 21), and Freedom of Expression (Article 19). 
2. Due to the non-identification of individuals 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.
3. The right to choose one’s gender identity is integral to the right to lead a dignified life, which is guaranteed by Article 21 of the Constitution of India.
4.  Legal recognition of gender identity should not be contingent upon medical procedures like sex reassignment surgery or sterilisation or hormonal therapy, nor should individuals be pressured to conceal, suppress or deny their sexual orientation or gender identity.
5. Transgender persons should have the right to choose their gender classification, whether male, female, or transgender, within established rules, regulations or protocols.
6. Legal Recognition of Third Gender is essential as it enabled transgender persons to assert their identity in official documents and access government welfare schemes and entitlements since the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable.

RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that:

1. The state had already established an “Expert Committee on Issues Relating to Transgender” to address all kinds of opinions and concerns and to improve the lives of transgender individuals. The expert Committee aimed to initiate a number of diverse opinions, including petitioners, to further implement and form comprehensive policies and structures.
2. Several states and union territories have already taken steps for the betterment of the lives of the transgender community.
3. The problems highlighted by transgender individuals in the petitions are regarded as sensitive human rights issues and the Ministry of Social Justice and Empowerment is responsible for addressing these concerns and will consider input from the Expert Committee and petitioners during the consultation process.

JUDGEMENT

• RATIO DECIDENDI
  The Supreme Court, in response to NALSA’s submissions, affirmed the gender neutrality of Article 14 and Article 19(1)(a) also the provisions under Articles 15, 16, and 21 of the Indian Constitution, applying to all individuals, including transgender persons. The Court mandated and directed to prevent discrimination against the marginalized community, considering it an infringement of rights guaranteed by Articles 15 and 16.
• OBITER DICTA
  Constitutional provisions, particularly Articles 19 (freedom of expression) and 21 (right to life and dignity), were interpreted to protect gender identity as part of the right to dignity and freedom.The Court acknowledged the umbrella term “transgender” encompassing various identities and experiences, including pre-operative, post-operative, and non-operative individuals and historical discrimination against transgender communities, such as Hijras, Eunuchs, Kothis, Aravanis, Jogappas, and Shiv-Shakthis, was acknowledged. Public awareness programs, social welfare schemes, improved medical care, and the implementation of the Expert Committee’s recommendations were among the directives provided by the Court.International instruments like the Yogyakarta Principles, affirming the right to privacy regardless of sexual orientation or gender identity, were cited.
  The State was directed to recognize transgender persons’ self-identification and as the ‘third gender’ and acknowledge their right to be treated with the same fundamental rights, also to extend reservations for their social and educational backwardness in the eyes of the law and address issues like sexual and mental health.

CONCLUSION& COMMENTS

Since India has historically lacked awareness regarding gender identity and issues, transgender persons have always faced a certain denial of their rights as evident in societal attitudes and legal framework. This is a landmark decision where issues like right to identify as a “third gender” was cleared and a set of guidelines were maintained and looked into for the first time. The case not only helped legalize non binary gender identities but also the fundamental rights the community deserves. Both the central and the state government took certain measures to protect and safeguard the rights of transgender persons as a part of the Court’s judgment.

1. REFERENCES
   1. Important Cases Referred
      1. Shivani Bhat vs State Of Nct Of Delhi & Ors on 5 October, 2015
   1. 1. Arunkumar vs The Inspector General Of Registration on 22 April, 2019
   1. Important Statutes Referred
      1. Constitution of India- Article 14, 15, 16, 19(1)(a), and 21
      1.  Universal Declaration of Human Rights (UDHR)- Article 6
      1.  International Covenant on Civil and Political Rights (ICCPR)- Article 16