NALSA v. Union of India – Case Analysis
Introduction:
Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or trans-sexual person. – Radhakrishnan J
The notion of the personal autonomy is an important principle underlying the interpretation of its guarantees; protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings.
For too long, the members of the transgender community were ridicules, abused and often kept away from the social structure by treating them as untouchables forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions. Every person discriminated on the ground of being a transgender would have story of humiliation, abuse and being treated as an untouchable. They are deprived of social and cultural participation, access to education, right to vote, employment and more importantly identity. The Nalsa judgment addresses this issue not only by identifying transgenders as a third gender, but also by directing the Centre and State Governments to take appropriate measures to prevent abuse against them and uplifting them and recognising them as Socially and Economically Background class.
The Supreme Court on 15.04.2021 have affirmed the constitutional rights and freedoms of transgender persons and directed the Centre and State Governments to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Not only the Apex Court recognized the rights of the transgender persons to decide their self-identified gender, but also directed the Centre and State Governments to address the problems faced by them including providing medical care, separate public toilets and other facilities, farming various social welfare schemes for their betterment and also to operate separate HIV serosurveillance centres as they face several sexual health issues.
The judgment is delivered by Radhakrishnan J and Sikri J.
Justice Radhakrishnan penned down the 1st paragraph of the judgment highlighting the issues faced by the transgenders and that we rarely take note of them.
“Seldom, our society realises or cares to realise the trauma, agony and pain which the members of the transgender community undergo, nor appreciates the inmate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the transgender community and in public places like railway stations, bus-stands, schools, workplaces, malls, theatres, hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.”
The right of transgenders to be identified is not without any reasons.
They are generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.
They do not conform to their biological sex or sex assigned at birth
Persons like Hijras are not men by virtue of anatomy appearance and psychologically, they are not women, though they are like women with no female reproduction organ and no menstruation.
Few also include who have or intend to undergo sex reassignment surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female.
Historical Background of transgenders in India.
The concept of Tritiya Prakriti or napunsaka has been an integral part of Vedic and Puranic Literatures.
Lord Rama in the epic Ramayana sanctions them the power to confer blessings on people on auspicious occasions which set the stage for the custom of badhaj.
Lord Krishna assumes the form of a beautiful woman called Mohin and marries Aravan, the son of Arjuna and Nagakanya in Mahabharatha. The hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis.
A detailed analysis of the historical background of the presence of transgenders in the Medieval India can be found in the book of Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India.
A legislation was also enacted to supervise the deeds of hijras/TG Community of hijra persons as innately “criminal” and “addicted to the systematic commission of non-bailable offences”.
Section 377 of IPC found a place in the Penal code prior to the enactment of the Criminal Tribes Act that criminalised all penile, non-vaginal sexual acts between persons. (Reference _ Queen Empress v. Khairati)
International Recognition on Gender Identity and sexual orientation.
Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 recognise that every human being has the inherent right to live and law shall protect this right and that no one shall be arbitrarily denied of that right .
Article 17 if ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has right to protection of law against such interference or attacks.
The distinguished group of human rights experts has drafted, developed, discussed and reformed the principles in a meeting held at Gadjah Mada University in Yogyakarta, Indonesia from 06.11.2006 to 09.11.2006 which was unanimously adopted as the Yogyakarta Principles on the Application of International Human Rights in Relation to Sexual Orientation and Gender Identity.
What are Yogyakarta Principles?
Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfil that precious birth right. These principles were developed and unanimously adopted by a distinguished group of human rights experts, from diverse regions and backgrounds, including judges, academics, a former UN High Commissioner for Human Rights, UN Special Procedures, members of treaty bodies, NGOs and others. They address the broad range of human rights standards and their application to issues of sexual orientation and gender identity which includes extrajudicial executions, violence and torture, access to justice, privacy, non-discrimination, rights to freedom of expression and assembly, employment, health, education, immigration and refugee issues, public participation and a variety of other rights. Each Principle is accompanied by detailed recommendations to States emphasising their role and responsibility to promote and protect human rights. Several International bodies including organs of United Nations, regional human rights bodies, national courts, government commissions and the commissions for Human Rights, Council of Europe etc., have endorsed the Yograkarta Principles and have considered them as an important tool for identifying the obligations of the States to respect, protect and fulfil the human rights of all persons, regardless of their gender identity
Evolution of Law in a global perspective.
The Court of England in the year 1971 recognised the Corbett principle in Corbett v. Corbett where it held that the law should adopt the chromosomal, gonadal and genital tests for the purpose of determination of a person’s sex and that any operative intervention should be ignored and the biological sexual constitution of an individual is fixed at birth and cannot be changed either by natural development of organs of the opposite sex or by medical or surgical means.. However, this view was not found in favour of various other countries like New Zealand, Australia etc., The Court in New Zealand held that an adequate test is whether the person in question has undergone surgical and medical procedures that has effectively given the person the physical conformation of a person of specified sex. The Full Court of Federal Family Court (Australia) went further ahead and held that there was a biological basis for transsexualism and that there was no reason to exclude the psyche as one of the relevant factors in determining sex and gender. The Malaysian Court, though it applied the Crobett principle, had noticed that a person who was born as a male, but felt more inclined to be a woman and underwent a surgery feels like woman, lives like one, behaves as one, has her physical body attuned to one, and the most important of all, her psychological thinking is that of a woman. The European Court of Human Rights have also recognised and held that the concept of private life covers the physical and psychological integrity of a person which can sometimes embrace aspects of an individual’s physical and social identity. The court also held that the notion of personal identity is an important principle underlying the interpretation of various guaranteed rights and the very absence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and to physical and moral security.
United Kingdom – General Recommendation Act, 2004 – provides legal recognition to the acquired gender of a person, but it also lays down provisions highlighting the consequences of the newly acquired gender status on legal rights and entitlements of the newly acquired gender status on their legal rights and entitlements in various aspects such as marriage, parentage, succession, social security and pensions. One of the notable features of the Act is that it is not necessary that a person need to have undergone or in the process of undergoing a SRS to apply under the Act.
Australia – The Sex Determination Act, 1984 and The Sex Discrimination Amendemnt (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013.
South Africa – Alteration of Sex Description and Sex Status Act – 2003.
Argentina – a law was passed in 2012 on gender identity that recognises right of all persons to the recognition of their gender identity as well as free development of their person according to their gender identity.
Acknowledging the International Law and absence of any legislation in India governing the Transgenders and their problems, the Supreme Court have held that the Yogyakarta Principles and other International conventions have not found inconsistent with the various fundamental rights guaranteed under the Indian Constitution and can be adopted as under Article 253 of Constitution of India.
Contours of Indian Constitution:
Article 14: Article 14 does not restrict the word “person” and its application only to male or female. Hijras/Transgender persons who are neither male/female fall within the expression “person” and hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. Discrimination on the ground of sexual orientation or gender identity therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution – J Radhakrishnan.
Article 15 and 16: The expression “sex” used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female. The Court noted that TGs have been systematically denied the rights under Article 15(2) and have also not been afforded special provisions envisaged under Articles 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens which they are, and hence are legally entitled to get the benefits of SEBC. TGs have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. Further, TGs are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. – J Radhakrishnan.
Article 19(1)(a) : Gender identity lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. The values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognise those rights. – J Radhakrishnan.
Article 21: The recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of person’s identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our Constitution. – J Radhakrishnan.
J Sikri also relied on the method of Reflective Equilibrium introduced by Nelson Goodman which was further elaborated by John Rawls by introducing the conception of “Justice as Fairness”, to combine the universalistic rules with the notions of Distributive Justice subscribed by Noble Laureate Prof. Amartya Sen for doing justice to the vulnerable groups which includes Transgender persons.
Concluding the judgment, the Hon’ble Supreme Court declared as follows:
(1) Hijras, Eunuchs, apart from binary gender, be treated as "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.
(2) Transgender persons' right to decide their self-identified 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 third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.
What happened thereafter?
The Parliament had passed Transgender Persons (Protection of Rights) Act, which received its accent on 05.12.2019 prohibiting discrimination against a transgender person and penalising those who deny use of public places to transgenders and removal of transgenders from household and village, etc., Further, the Act also provides for constitution of National Council for Transgender persons.
The Transgender Persons (Protection of Rights) Rules 2020 have also been notified by the Ministry of Social Justice and Empowerment on 25.09.2020 dealing with Application for issue of certificate of identity, procedure for issuance of certificate of identity, change of gender and welfare measures, education, social security and health of transgender persons and provisions for non-discrimination and equal opportunities in employment.
The Bihar Government recently submitted before the Patna High Court that it is going to create a separate unit of Transgender Police Personnel named as Special Unit (Transgender).
The Kerala High Court on Monday allowed a petition moved by transwoman Hina Haneefa seeking her admission into the National Cadet Corps (NCC) noting that the provisions of the NCC Act cannot preclude the operation of the Transgender Rights Act, 2019 .
A PIL has been filed seeking equal employment opportunities aggrieved by the government notification issued for conducting “Assistant Central Intelligence Officer-Grade-II/Executive examination” for direct recruitment from male and female which is violative of Section 3 and 9 of the Transgender Persons (Protection of Rights) Act, 2019.
A PIL has been filed seeking establishment of a Transgender Welfare Board to address social welfare issues of a transgender person and for the appointment of a Standing Committee comprising Station House Officers and human rights and social activists to promptly investigate reports of gross abuse by the police against transgender persons.
Conclusion: The judgment's landmark role in recognizing transgender rights is significant, although it is accompanied by criticized contradictory provisions in the Act. These include the requirement for sex reconstruction surgery for recognition. However, there is an opportunity for improvement in the legislation, such as the need for a clear definition of discrimination against the transgender community and the provision of extensive penalties for crimes like rape, which disproportionately impact vulnerable transgender individuals.