Indian society has usually lacked gender awareness, and the same is reflected in the mindset of the society. The tale of people who are generally referred to as transgender is a story of pain, misery, and agony.
They have not only face deprivation of rights, but also abuse and violence just because they do not fit within the “norms” that society has generally accepted. They are shunned and defamed by society and are considered to be outcasts and kept far away from participation in various societal activities.
In 2012, the National Legal Services Authority, an Indian statutory body which is constituted under the Legal Services Authority Act, filed a writ petition (writ petition no. 400 of 2012) with the Supreme Court of India. It was followed by another writ petition (No. 604 of 2013) which was filed by Poojya Mata Nasib Kaur Ji Women Welfare Society, a non-governmental organization representing the Kinnar transgender community. Laxmi Narayan Tripathi, an individual who identified himself as a Hijra also approached the court and was also impleaded in the present case.
The petitions mainly raised an issue of “Gender Identity”. It has two facets, viz.:
- Whether a person who is born male but has female orientation has the right to be identified as a female as per his choice ; the same question arises when an individual uses surgery to change his/her sex.
- Whether a person who does not identify either as a male or a female has the right to be categorized in a “third gender”.
The argument was made that the recognition of only the binary genders of male and female and the lack of legal measures to cater for the needs of the represented groups violates Right to Equality (Article 14), Freedom of Expression (Article 19), Right to Life and Personal Liberty (Article 21).
The transgender community urged that their inability to express themselves in terms of a binary gender denies them their rights and social welfare schemes.
The judgement was delivered by a 2-judge bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri on 15th April 2014. The Court had to decide whether persons who fall outside binary gender can be legally recognised as “third gender” persons.
The Supreme Court in this case relied on various judgements from foreign courts like New Zealand, Australia, and England and took into consideration different foreign judgements like Corbett v. Corbett with its complete emphasis on biological sex, Attorney-General v. Otahuhu Family Court in which Justice Ellis noted that once a transsexual person has undergone surgery, he or she is no longer able to operate in his or her original sex.
The Court ruled that all provisions in the international conventions including the Yogyakarta Principles must be followed provided they align with the fundamental rights guaranteed under Part III of the Constitution.
In this landmark judgement Supreme Court legally recognised “third gender” for the first time and discussed “gender identity” at length. Further, it declared that eunuchs and hijras can legally identify as “third gender”.
The Court recognised that third gender persons were entitled to fundamental rights guaranteed under Part III of the Constitution and under International law.
The Court declared that the State and Central governments must grant transgenders full recognition in the eyes of the law so that they can avail education and healthcare without being subjected to any kind of discrimination.
Well, we cannot ignore the fact that the transgender community for long have suffered torture, humiliation, and pain. This judgement came as a fresh ray of hope for the transgender community who have faced discrimination and social injustice. This is a landmark judgement because it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender people in India. However, the transgender community still has a long way to go.