NATIONAL
LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA
CITATION
AIR
2014 SC 1863
COURT:
SUPREME
COURT OF INDIA
JUDGES:
K
S RADHAKRISHNAN & A K SIKRI
KEY
FACTS:
This case was filed by the National Legal
Services Authority of India (NALSA) to legally recognize persons who fall
outside the male/female gender binary, including persons who identify as “third
gender”.
ISSUES
& DECISION:
The Court had to decide whether persons who fall
outside the male/female gender binary can be legally recognised as “third
gender” persons. It deliberated on whether disregarding non-binary gender
identities is a breach of fundamental rights guaranteed by the Constitution of
India. It referred to an “Expert Committee on Issues Relating to Transgender”
constituted under the Ministry of Social Justice and Empowerment to develop its
judgement.
This was a landmark decision where the apex
court legally recognised “third gender”/transgender persons for the first time
and discussed “gender identity” at length. The Court recognised that third
gender persons were entitled to fundamental rights under the Constitution and
under International law. Further, it directed state governments to develop
mechanisms to realise the rights of “third gender”/transgender persons.
Defining “Third Gender”
The Court upheld the right of all persons to
self-identify their gender. Further, it declared that hijras and eunuchs can legally identify as “third
gender”.
The Court clarified that gender identity did not
refer to biological characteristics but rather referred to it as “an innate
perception of one’s gender”. Thus, it held that no third gender persons should
be subjected to any medical examination or biological test which would invade
their right to privacy.
Fundamental Rights
The Court interpreted ‘dignity’ under Article 21
of the Constitution to include diversity in self-expression, which allowed a
person to lead a dignified life. It placed one’s gender identity within the
framework of the fundamental right to dignity under Article 21.
Further, it noted that the right to
equality (Article 14 of the Constitution) and freedom of expression (Article
19(1)(a)) was framed in gender-neutral terms (“all persons”). Consequently, the
right to equality and freedom of expression would extend to transgender persons.
It drew attention to the fact that transgender persons were subject to “extreme
discrimination in all spheres of society” which was a violation of their right
to equality. Further, it included the right to express one’s gender “through
dress, words, action, or behaviour” under the ambit of freedom of expression.
Under Articles 15 and 16, discrimination on the
ground of “sex” is explicitly prohibited. 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). Thus, the Court held that discrimination on the ground of
“sex” included discrimination on the basis of gender identity.
Thus, the Court held that transgender persons
were entitled to fundamental rights under Articles 14, 15, 16, 19(1)(a) and 21
of the Constitution. Further, the Court also referred to core international
human rights treaties and the Yogyakarta Principles to recognise transgender persons’ human
rights.
Further Directions
The Court held that public awareness programs
were required to tackle stigma against the transgender community. It
also directed the Central and State Governments to take several steps for
the advancement of the transgender community, including:
1.
Making provisions for
legal recognition of “third gender” in all documents
2.
Recognising third gender
persons as a “socially and educationally backward class of citizens”, entitled
to reservations in educational institutions and public employment.
3.
Taking steps to frame
social welfare schemes for the community
SIGNIFICANCE:
This is a landmark decision because it is the
first to legally recognise non-binary gender identities and uphold the
fundamental rights of transgender persons in India. The judgement also directed
Central and State governments to take proactive action in securing transgender
persons’ rights.
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