Case Brief: National Legal Services Authority of India v. Union of India

CASE NAME	NATIONAL LEGAL SERVICES AUTHORITY OF INDIA VS UNION OF INDIA
CASE NAME ( EMINENTLY KNOWN AS)	RIGHTS OF TRANS-GENDERS CASE
CITATION	AIR 2014 SC 1863
COURT	SUPREME COURT OF INDIA
BENCH	K S RADHAKRISHNAN & A K SIKRI
PETITIONERS	NATIONAL LEGAL SERVICES AUTHORITY (PRIMARY PETITIONER), POOJAYA MATA NASIB KAUR JI WOMEN WELFARE SOCIETY LAXMI NARAYAN TRIPATHY
RESPONDENTS	UNION OF INDIA
DECIDED ON	( WRIT PETITION 400 OF 2012, 604 OF 2013, DECIDED ON APRIL 15, 2014)

INTRODUCTION:

The question that was seen as the simplest question to humanity was “How many genders are there?” But the answer to the question confines to the biological physique and genitals of a person and not the person’s actual wish to stay in the given form or the comfort the find with the given body. Transgender people have existed throughout history but the awareness for these people has been neglected before till recent times where members of the transgender community along with the support of some organizations managed to fight for a fundamental freedom of being recognized.

THIRD GENDER

The Court affirmed everyone’s freedom to self-identify as a specific gender. Moreover, it said that the transgender community is legally permitted to identify themselves as “third gender.”

It was made clear that gender identity was “an inherent opinion of one’s gender” as opposed to biological traits. It concluded that no biological test or medical examination that might violate a third-gender person’s right to privacy should be performed on them.

FACTS

The transgender community, often known as the TG community, has long faced discrimination and marginalization from the larger society. The term “transgender” is used to describe this group. They are subjected to violence and abuse on a regular basis simply because they do not fit into the categories of male and female those are widely accepted. They are subjected to torture and do not have the same liberties and privileges as citizens. They are viewed as untouchables by society, who scorn and vilify them. They are viewed as a burden on the country and a liability.

In order to address the concerns of the underprivileged and underprivileged segments of society, the NALSA—who in this instance are the principal petitioner—finally filed a petition. For these reasons, the petition to recognise transgender people as a third gender in addition to the binary genders of male and female was filed. The main objectives of NALSA are to ensure that no citizen is denied the opportunity to obtain justice due to their financial situation or other disabilities, to provide free and competent legal services to the most vulnerable members of society, to organise Lok Adalats for the peaceful resolution of disputes, and all of the above.

Furthermore, a plea was filed by prominent Hijra activist Laxmi Narayan Tripathy and the Poojaya Mata Nasib Kaur Ji Women Welfare Society. When the transgender community is not recognised as a separate sexual and gender identity, many fundamental and human rights are violated. These rights are protected by the Indian Constitution and other international human rights agreements, among others. This is the rationale behind the applications’ filing. Regarding the fundamental rights, which are defined in Articles 14 and 21, respectively, the rights to equality and life and liberty are included. Transgender persons ought to have the same freedoms and privileges as those who identify as male or female in the binary.

ISSUES 

1. Is it possible for someone who was born a man but has a predominately female preference, or vice versa, to alter their sex and be recognised as a girl based on their decision after undergoing an operation?
2. Do transgender people, who are neither male nor female, have the right to be acknowledged as a third gender?

ARGUMENTS 

They argued that the laws of India recognised only the binary genders of male and female, and that the lack of legislative action to meet the needs of the groups they represented violated a number of fundamental rights, including the rights to nondiscrimination, freedom of expression, equality before the law, and a dignified life. They are taken advantage of and treated disrespectfully by others. The petitioners provided arguments and reasoning for each violation of a fundamental right. Article 14 of the Indian Constitution states that no one shall be subjected to discrimination on the basis of sex, religion, or any other factor. On Indian territory, the State shall not deprive any individual of equality before the law. It is not exclusive to either gender.

The state government has established a “Expert Committee on Issues Relating to Transgender,” according to the defendants, who also claimed that the petitioner’s opinions would be considered during the proceedings. A number of states and union territories have asserted that they have made notable progress in elevating the standing and circumstances of the transgender populace. In the writ petition, the transgender community’s perception of gender identities was the primary point of contention. The judges examined the global legal environment as well as the recognition of the transgender community’s rights by international human rights treaties and human rights tribunals.

As the responder, the state has formed a “Expert Committee on Issues Relating to Transgender,” which is considering all points of view in an endeavour to give transgender individuals a more respected and prosperous life. They also stated that the Committee will consider the views of the petitioners in order to develop a more thorough policy in this area. Many states and union territories asserted that they had significantly improved the lives of transgender people.

JUDGMENT/DECISION 

The court cited a number of decisions from foreign courts, including those in England, New Zealand, Australia, Malaysia, and Pakistan, in its historic ruling. The court held that Article 15 and Article 16 of the Constitution prohibited discrimination based on sex and it held that sex is not restricted to male and female. Trans-genders were being denied rights under 15(2), 15(4) and 16(2), 16(4). Article 19(1) (a) guarantees right to expression of self-identified gender as in case of Trans-Genders which can be expressed through expression, speech, mannerisms, clothing etc through the mentioned manner or any other manner. It also held that they are entitled to get benefits that are available to socially and economically backward classes (SEBC). This ruling would recognize third gender on all official documents, including passports and ration cards.

Regardless of population size, the Court also decided that transgender individuals are Indian citizens with full rights to take part in any government-sponsored programmes and programmes. More efforts to register have recently been made by the Indian Election Commission. According to the Court’s ruling, the State and Federal governments must fully recognise transgender people as legitimate individuals if they are to receive healthcare and education without encountering prejudice. The Court additionally declared that Hijras and Eunuchs should be considered members of the “third gender.” Gender-neutral public restrooms, the provision of appropriate transgender medical care in hospitals, and the creation of separate HIV Zero-Surveillance Centres are just a few of the proclamations and instructions it sent to the federal and state governments.

ANALYSIS:

The TG community has a long history of pain, shame, and grief that we cannot ignore. Ultimately, this verdict has improved the circumstances for the transgender community, even though they suffered silently. individuals are not only impacted in India by this verdict; individuals worldwide are also impacted. The social exclusion of the transgender community constitutes a grave human rights violation. Since India is a democratic nation, people from all backgrounds and with all kinds of disabilities are welcome.

Concerns have been raised about the Transgender Persons (Protection of Rights) Bill, 2018, which the government passed in response to this problem and which the Lok Sabha just passed. Campaigns and public protests against lawmakers have been launched by organisations supporting intersex and transgender rights.

The Supreme Court stated that “no one shall be forced to undergo medical procedures or hormonal therapy in order to obtain legal recognition,” and added that “each person’s self-defined gender identity and sexual orientation is integral to their self-determination, dignity, and freedom.” Put differently, no medical evaluation or mental health assessment should be required before a transgender or intersex person can receive an identity paper.

Requiring someone to give documentation of their medical care or a mental health evaluation that considers their gender identity violates their right to dignity and their freedom from unnecessary medical treatment. Our society regularly makes fun of and mistreats transgender people, and they are marginalised and treated like outsiders in public areas like bus stops, train stations, schools, workplaces, malls, theatres, and hospitals.

But this mentality needs to change because it is the source of society’s moral collapse. Judge Sikhri’s acknowledgment of the difficult process of changing one’s gender identity and Justice Radhakrishnan’s introductory comments regarding the moral deficiency of society’s rejection of a variety of gender identities and expressions are just two examples of the many instances of empathy in this book. There is still more work to be done before transgender people are granted equal rights in our socio-religious and socio-political activities; in the meantime, they continue to exist as outsiders on the periphery of society or as protagonists in the mainstream.