National Legal Services Authority v. Union of India
Writ Petition (Civil) No. 400 of 2012
JUDGES: K.S. Radhakrishnan, A.K. Sikri, JJ.
Date of Decision: 15-4-2014
By filing a writ petition on behalf of the transgender community the petitioner sought a legal declaration of the gender identity of transgenders than the one assigned to them, male or female, at the time of birth and their prayer was that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.
Recognition of transgenders as third gender.
Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate 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 sidelined 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.
Gender identification becomes very essential component which is required for enjoying civil rights by this community. It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz., the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on. Further, there seems to be no reason why a transgender must be denied of basic human rights which includes Right to life and liberty with dignity, Right to Privacy and freedom of expression, Right to Education and Empowerment, Right against violence, Right against Exploitation and Right against Discrimination. Constitution has fulfilled its duty of providing rights to transgenders.
Now it’s time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition of transgender as third gender. In order to translate the aforesaid rights of transgenders into reality, it becomes imperative to first assign them their proper ‘sex’. At the time of birth of a child itself, sex is assigned. However, it is either male or female. In the process, the society as well as law, has completely ignored the basic human right of transgenders to give them their appropriate sex categorization. Up to now, they have either been treated as male or female. This is not only improper as it is far from truth, but indignified to these transgenders and violates their human rights.
Though, there may not be any statutory regime recognizing ‘third gender’ for these transgenders. However, we find enough justification to recognize this right of theirs in natural law sphere. Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These transgenders, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.
By recognizing transgenders as third gender, the Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to transgenders but also justice to the society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the transgenders which legitimately belongs to them.