NALSA vs. UOI- A Critical Analysis

This article was written by Dibyadarshini Nanda, she is currently an Advocate.

A two-judge bench of the Supreme Court of India passed a landmark judgment on 15^th April, 2014 upholding the rights of the transgender community. In a petition filed by the National Legal Service Authority, the Apex Court gave the long over-due recognition of the transgender as the third gender. This judgment is the first step in paving the way for the social acceptance of the transgender community in India.

Transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth. Traditionally, Indian society and laws have only recognized gender in binary terms i.e. male and female. Transgender though their existence was acknowledged by the society, but were subjected to social exclusion and other harassments. They were forced to live as outcasts and treated with disdain. But with changing times, awareness about gender identity and sexual orientation is increasing among the people and thus raising the need for the acceptance of different gender identity and sexual orientation. In this scenario, the judgment is a cornerstone in establishing a more diversified and liberal society.

In the judgment, the Court recognized that the gender identity of a person is not necessarily determined biologically and self-identification is an important aspect of the gender identity. Every person has right to determine how they are perceived by the society. The Court used various foreign judgments in proving the point; starting from the infamous Corbett v. Corbett to recent rulings of European court of Human Rights and domestic courts of various other nations, giving a broader view of gender. The judgment also treated gender identity and sexual orientation as two different concepts and declared that both are integral part of a person’s identity.

The Court based the reasoning behind the recognition of the third gender on the constitutional principles and fundamental rights.  Court pointed out that the Indian constitution is not gender specific and fundamental rights are guaranteed to every Indian citizen irrespective of his gender. The Court declared that the term “person” in the constitution also includes transgender. The Court considered various International instruments like Universal Declaration of Human Rights, 1948, the International Covenant on Civil and Political Rights, 1966 and Yogyakarta Principles to give the judgment. The Court broadens the scope of fundamental rights by noting that any international convention not inconsistent with the fundamental rights should be read into those provisions. The Court also referred to the domestic legislations of other countries.

The judgment described in detail the manner non-recognition of the transgender as third gender affects their fundamental rights under Article 14, 15, 19 and 21. The Court interpreted the Article 19 (1) (a) to include one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. The Court further stated that not recognizing the rights of transgender violates right to life and personal liberty under Article 21, especially when their rights have gained universal recognition and acceptance. The Court recognized the importance of gender identity for the enjoyment of other rights like right to vote, right to marry, inheritance, driving license, passports etc. The Court granted right against discrimination to the community on the basis of gender identity and sexual orientation.

The Court emphasized on the psychological factors relating to gender identity and self-identity should be acknowledged irrespective if a person has undergone Sex Reassignment Surgery (SRS) or not. In fact, the Court stated that SRS should not be forced on a person.

The Court gave following directions to State and the Central Governments:

1. Hijras, eunuchs are to be treated as third gender to safeguard their rights under Part III of the Indian Constitution
2. The transgender persons have right to decide their self identified gender and the central and state governments are directed to grant legal recognition of gender as male, female or third gender;
3. Transgender should be treated as socially and educationally backward classes and reservations should be extended to them in cases of admission in educational institutions and for public appointments
4. Any insistence on SRS for declaring a person’s gender is illegal and immoral;
5. The Centre and State should frame various social welfare measures for the betterment of transgender including proper medical care to transgender in hospitals, operation of separate HIV Sero-surveillance Centre, creating public awareness to assimilate in the society and address various psychological problems faced by the transgender.

The judgment though innovative and progressive in many ways, also suffers from the following lacunas:

Firstly, the judgment limited its applicability to the communities identified in it like Hijras, Kinnars, Kothis, Shiv-shaktis etc. Transgender is a broad term and includes many others identities like trans-men, trans-women, gender-queer etc. The rest of the judgment treats transgender as an umbrella term. Therefore, there is confusion about status of other identities within the term transgender. The judgment also used the term eunuchs interchangeable with transgender, which many persons of transgender community finds insulting.

Secondly, the judgment preferred to be silent about the issue of Section 377, IPC.  This makes the rights granted to transgender incomplete because it prohibits the transgender from enjoying sexual relationship of their choice and this section can be used to discriminate and harass the transgender. Even the judgment pointed out instances in past where this section had been misused. The Yogyakarta principles also recommends repeal of any such criminal laws and considers right to form sexual or intimate relationship is an integral part of personality. Further, the judgment included marriage rights in the rights of the transgender. Marriage rights cannot be fully enjoyed if right to form sexual relationships is not granted.

Thirdly, the Court directed the government to confer OBC status to the transgender. There are many dalits in the community and hence the deciding their status for providing reservation benefits will be very confusing. Not to mention the discontentment among the youths regarding reservation in general.

Lastly, the Court describes in great detail the historical position of the transgender in the Indian society, but did not mention the Mughal period, an important phase in the history of transgender.

The judgment adopts a progressive, right-based approach towards transgender and hence paved the way for the social recognition and acceptance of the transgender and other communities who do not confirm to the binary view of the gender. It may not bring any over-night phenomenal change in the mind-set of the people. But it is the first step none the less. With government measures and amendments in various laws and awareness among the general public, a gender inclusive society can be built on the very foundation laid down by this judgment where no person shall be discriminated on the grounds of gender and sexual orientation.