In National Legal Services Authority v. Union of India & Others, all aspects of mental torment of the LGBT community, as well as neglect and alienation of the community, were ended by the Court’s ruling.
Equivalent Citation: AIR 2014 SC 1800
Introduction
The lives of humans are full of inconsistencies, however relative to other people, LGBT people face even more turmoil and isolation. What is expected is to consider the LGBT community’s feelings and also to give them basic civil dignity. Yet the society drops its gaze and continues to question the community’s granting of fundamental human rights. And it is so tragic to see, particularly in the 21st century, that such injustice persists. In general, Indian law only accepts the ideology of male and female biological gender, relying on the sex of a person assigned at birth, which provides for a gender structure, including laws relating to marriage, adoption, inheritance, succession and taxation, and health. In regard to the LGBT community, the most important question is whether all human beings should discriminate against LGBT people. It does not grant anyone the right to castigate one from the community merely to be distinct. In reality, the Delhi High Court ruled in July, 2009 that intimate same-sex private relations between adults could not be deemed illegal. The Supreme Court of India then voiced its reservations about the mental trauma, physical agony and suffering of members of the transgender community in a recent judgement. In National Legal Services Authority v. Union of India & Others, all aspects of mental torment of the LGBT community, as well as neglect and alienation of the community, were ended by the Court’s ruling.
In the development of the transgender community, the decision is particularly important since it briefly takes into consideration the status quo of transgender people in other nations and highlights how transgender people are discriminated against in India. This analysis is an attempt to examine the decision and to stress that there is a long way to go and that the fight for the transgender people is not over yet.
Facts Of The Case
The transgender community has been facing bigotry for its distinctive identities for a long time. They were exposed to systematic disrespect, bullying, intimidation, and manipulation by culture, which only accepts and preaches traditional genders that are stereotypical and widely accepted. Because of who they are, they are treated with disrespect and they seek to recognise or identify themselves. They remain deprived of universal human rights because of the lack of respect and acceptance that they endure. Over all, before this decision, the state still did not accept the transgender community, and so they faced discrimination when asserting their basic rights, as enshrined in the Indian Constitution. The proposed petition was lodged as a Public Interest Litigation (PIL) by the National Legal Service Authority (NALSA), which is the legal aid authority for the vulnerable and deprived parts of society. In specific, NALSA lodged a petition before the Supreme Court requesting that transgender should be accepted in the court of society as a third gender and enjoy the fundamental rights provided for in Articles 14 and 21 of the Indian Constitution, in addition to other international human rights.
- Poojaya Mata NasibKaurJi Women Welfare Society, a registered organisation, also favoured the Writ Petition before the Supreme Court for the protection on moral grounds of the Kinnars, who also come under the transgender community.
- Laxmi Narayan Tripathy, member of the Hijra community, also demanded that the requirements of the transgender community be adequately defined before the Supreme Court and demanded legal and constitutional recognition for them.
Issues Raised
In this situation, there were two concerns that were presented. “These petitions basically present a “Gender Identity” question, and the problem with regard to this case were:
(a) Whether an individual who is conceived as a male with predominantly female orientation (or vice-versa), features a right to encourage himself to be perceived as a female according to his choice all the more so, when such an individual subsequent to having gone through operational procedure, changes his/her sex as well?
(b)Whether transgender, who are neither males nor females, have a right to be recognized and classified as a “third gender”?[1]
Analysis
Several interventionists joined the petitioners. They claimed that under Indian law, single binary genders of male and female were considered and the lack of legislative interventions to address the interests of the communities listed contradicted many fundamental rights, along with the rights to a dignified life, equality before the law, non-discrimination and freedom of speech. They are belittled by people and manipulated. The petitioners argued and reasoned the right was fundamental and is being violated. Admittedly, we cannot forget the way the transgender community has endured and undergone torture, embarrassment, and suffering for a long time. They remained quiet and struggled, but the condition of the transgender community has gradually changed by this decision. This decision has had an impact both in India and around the world. A significant human rights concern is the alienation of the transgender people from support of society. India embraces democracy and democracy requires everybody regardless of their deformity, condition, and so on. Everyone should be treated fairly and equal treatment of the law should be achieved on the off chance that we pass the three Rule of Law requirements that include equality.[2]
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The Supreme Court took numerous international decisions into account—
In Corbett v. Corbett[3], the Court in England, during this case, said that the law should embrace the chromosomal, gonadal and genital tests should be adopted by the statute, and if one of the three is congruent, it should determine the sex of a person for the marriage stage. Learned Judge articulated the opinion that all operative interference can be ignored, and therefore an individual’s biological sexual constitution is set at the newest before joining the world, and should not be altered either by the distinctive growth of other-sex organs or by medicinal or surgical means.
Various different countries like New Zealand, Australia and so on neglected to favor this guideline and furthermore pulled in much criticism, from the clinical community. In New Zealand in Attorney General v. Otahuhu Family Court[4], Justice Ellis noticed that when a transsexual person has gone through surgery, the individual in question is no longer prepared to work in his or her original sex.
In Christine Goodwin v. United Kingdom[5], the European Court of Human Rights had investigated an appeal alleging violations of Articles 8, 12, 13 and 14 of the 1997 Convention for the Protection of Human Rights and Fundamental Freedoms with regard to the status of transsexuals in the United Kingdom and, in particular, their care in the fields of work, social welfare, pensions and marriage.
Following different provisions and conventions, the Court held as follows:-
“Nonetheless, the very essence of the Convention is respect for human dignity and human freedom. Within the twenty-first century the right of transsexuals to personal development and to physical and moral security within the full sense enjoyed by others in society cannot be considered a matter of controversy requiring the lapse of time to cast clearer light on the problems involved. In short, the unsatisfactory situation during which post- operative transsexuals live in an intermediate zone as almost one gender or the opposite is not any longer sustainable.’’
Judgment In A Glance
Subsequent to discussing the historical foundation of transgender “In India, the Supreme Court upheld that identity and sexual orientation involve transgender people who” the self-characterized sexual orientation and identity of each person is central to their personality and is one of the most important elements of self-assurance, respect and freedom and nobody shall be compelled to go through medical procedures as a requirement for legal recognition of their identity.”[6]
“It referred to applicable international norms of human rights at that time, in particular the Yogyakarta Principles, which provide:” Human beings of all sexual orientations and gender differences are entitled for the total enjoyment of all human rights.”[7]
In comparison, the Court has intimately addressed the inclusive jurisprudence of various nations, analogous to those of the United Kingdom, Australia, and New Zealand and, along these lines, the United States, on the interpretation of the basic rights of transsexual people. It felt that it was important for India to comply with international conventions on human rights and non-restrictive standards because the country lacks “effective laws protecting the rights of transgender community members.”” At that point, the Court proceeded to recognize the treaties and values of human rights in its reading of the Constitution of India. According to Article 14, “The State shall not deny equality before the law or equal treatment of laws within the jurisdiction of India to ‘any individual.’ The Court held that the article gives protection to ‘any person,’ “Transgender people who are not male/female fall within the word ‘person’ and who are henceforth entitled for legal coverage of laws out and out spheres of State activity, including employment, medical services, schooling also as equal civil and citizenship rights, as appreciated by the other citizen of this country.”[8]
It also held that the prohibition of discrimination against any citizen, even on grounds of sex, found in Articles 15 and 16 extended equally to transgender. Consistent with the Court, the use of word ‘sex’ inside the articles “Is not just restricted to biological sex of male or female, however planned to consolidate individuals that consider themselves to be neither male or female.”[9]
“As regards the right of freedom of speech guaranteed according to Article 19(1)(a) of the Constitution , the Supreme Court ruled that it” requires one’s right to convey one’s self-distinguished gender “and, despite the reasonable exceptions provided for in Article 19(2) of the Constitution,” (no) limitations are often imposed on one’s personal appearance or choice of clothing.”[10]
It claimed the personality of a transgendered “could be expressed by the transgender behavior and presentation (and the government) can’t forbid, restrict or interfere with a transgender expression of such personality, which reflects that intrinsic personality.”[11]
In the end, the Court put forth the significance of Article 21, which says “no person shall be dispossessed of his life or personal liberty aside from consistent with procedure established by law.” It translated that this clause broadly covers “all facets of life that make meaningful the life of an individual,” including one’s right to self-assurance of the sex of which a person belongs. The Court properly held that “in this way, Hijras / Eunuchs should be treated as third gender, over or more binary genders under our Constitution and accordingly the rules.”[12]
Based on the prior analysis, the Supreme Court pronounced inter alia, transgender “aside from binary gender, be treated as ‘third gender’ for the point of safeguarding their rights under Part III of our Constitution and in this manner hence the laws made by the Parliament and the State Legislature.”[13] It also coordinated the state governments “to allow legal recognition of their identity like male, female or as third gender.”
Overview Of The Judgement
A petition for the transgender community of the nation was approved by the Supreme Court of India and it was held that the right to convey one’s identity in a non-binary gender was an essential part of freedom of speech. It directed the government to grant the third gender official status, those citizens would be ready to distinguish themselves as male, female or third gender. It also urged the government to find a way to remove the social stigma, encourage transgender-specific treatment services and grant them equal legal rights.
The Court upheld the freedom of transgender people to self-recognize their identity on these foundations. Regardless of their gender orientation or language, the Constitution promises to deliver fair justice. The Court ruled that the government of the Center and State would permit legal recognition of gender identity as male, female or third gender. Also in the absence of any current legislative regime, Apex Court is the only recourse available. In addition, the Court declared that educational, social and health care problems faced by transgender people would be addressed at both the middle and state levels of government.
References
[1] Lavina Bhargava, “Supreme Court Case Analysis: National Legal Service Authority V. Union of India and Ors. (Transgenders Rights Case)”, available at : https://www.latestlaws.com/case-analysis/supreme-court-case-analysis-nalsa-v-union-of-india-and-ors-transgenders-rights-case-by-lavina-bhargava/ (last visited on November 5,2020).
[2] Niyati Acharya, NLSA v. Union of India, available at:, http://lawtimesjournal.in/nlsa-vs-union-of-india/ (last visited on November 4th,2020).
[3] (1970) 2 All ER 33.
[4] (1995) 1 NZLR 603.
[5] (2002) 2 FCR 613.
[6] (2014) 5 SCC 438 (para. 20).
[7] (2014) 5 SCC 438 (para. 22).
[8] (2014) 5 SCC 438 (para. 54).
[9] (2014) 5 SCC 438 (para. 59).
[10] (2014) 5 SCC 438 (para. 62).
[11] (2014) 5 SCC 438 (para. 66).
[12] (2014) 5 SCC 438 (para. 74).
[13] (2014) 5 SCC 438 (para. 129).
BY MUSKAAN RAWAT | INDORE INSTITUTE OF LAW , INDORE