In a landmark judgment Supreme Court of India put paid to the binary notion of gender in Indian law by ruling that transgenders must be given the third gender status
By Team FI
This judgement may be called as a historic victory for transgender rights in India. The Supreme Court has ruled that discrimination against transgender people should be treated as discrimination on the grounds of sex. The apex court passed the order on a PIL filed by National Legal Services Authority (NALSA) urging the court to recognize separate identity to transgenders by recognising them as a third gender preference.
The judgment also recognized that gender identity refers “to an individual’s self-identification as a man, woman, transgender or other identified category. Sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person.”
The judgment stated that since gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination” – “Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.”
It recognized that self-defined sexual orientation and gender identity is integral to a person’s personality “and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.”
The court stated that, transgender should be admitted in educational institutions and given employment on the basis that they belonged to the third gender category. The SC has also asked the Government to treat transgender community as socially and economically backward. As per the OBC (other backward classes) category, they are entitled to employment and educational reservations and other state recognized benefits. The apex court also ruled that the Government will chart out social welfare schemes for third gender community and run public awareness campaign to erase social stigma.
1. Recognition of third gender.
2. Recognition of people who identify in the opposite sex based on self-identification. Includes female identifying as male and male identifying as female.
3. Non-recognition of gender identity amounts to discrimination under Arts 14, 15 and 16.
4. Discrimination on the ground of sexual orientation and gender identity amounts to discrimination on the ground of sex under Art 15.
5. No SRS (sex reassignment surgery ) required for recognition of gender identity.
6. Persons gender identity based on their choice is protected under the constitution.
7. A series of directions have been given to the Centre and States based on the above.
Details of the Judgment:
The judgment referred to the various articles regarding gender identity and human rights from the Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, the International Covenant on Civil and Political Rights, 1966 and also quoted extensively from Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.
The judgment also referred to international law and cases dealing with the rights of the transgender community in other countries. The judgment stated that it was unfortunate that there was no legislation in this country that dealt with the rights of the transgender community. It referred to the fact that binary notions of gender existed in the Indian Penal Code, for example, “Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Nonrecognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.”
The judgment quoted Articles 14, 15, 16, 19 and 21 of the Indian constitution – Article 14 of the Constitution of India states that the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India. Article 15 states that the State shall not discriminate against any citizen, inter alia, on the ground of sex. Article 16 states that there shall be equality of opportunities for all the citizens in matters relating to employment or appointment to any office under the State.
The judgment stated that “Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently, refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender.”
The judgment referred to Article 19(1) (a) of the Constitution which states that all citizens shall have the right to freedom of speech and expression, “which includes one’s right to expression of his self-identified gender.” The judgment stated that “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. Gender identity, therefore, 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.”
Stating that Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy and so on, the judgment recognized that “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 a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.”
Stating that “gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender, the judgment concluded that “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”
Directions of the Judgment
(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.
Though the judgment referred to the abuse in the usage of Section 377 stating that it “used as an instrument of harassment and physical abuse against Hijras and transgender persons,” it refrained from expressing any opinion on the law, stating that they were dealing with a “different issue” that of “the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.”