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REPORTABLE
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IN THE SUPREME COURT OF INDIA
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CIVIL ORIGINAL JURISDICTION
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WRIT PETITION (CIVIL) NO.400 OF 2012
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National Legal Services Authority ... Petitioner
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Versus
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Union of India and others ... Respondents
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WITH
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WRIT PETITION (CIVIL) NO.604 OF 2013
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JUDGMENT
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K.S. Radhakrishnan, J.
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1. Seldom, our society realizes or cares to realize the trauma,
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agony and pain which the members of Transgender community
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undergo, nor appreciates the innate feelings of the members of the
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Transgender community, especially of those whose mind and body
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disown their biological sex. Our society often ridicules and abuses
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the Transgender community and in public places like railway
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stations, bus stands, schools, workplaces, malls, theatres,
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hospitals, they are sidelined and treated as untouchables,
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forgetting the fact that the moral failure lies in the society's
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unwillingness to contain or embrace different gender identities and
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expressions, a mindset which we have to change.
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2. We are, in this case, concerned with the grievances of the
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members of Transgender Community (for short `TG community')
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who seek a legal declaration of their gender identity than the one
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assigned to them, male or female, at the time of birth and their
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prayer is that non-recognition of their gender identity violates
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Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs,
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who also fall in that group, claim legal status as a third gender with
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all legal and constitutional protection.
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3. The National Legal Services Authority, constituted under the
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Legal Services Authority Act, 1997, to provide free legal services
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to the weaker and other marginalized sections of the society, has
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come forward to advocate their cause, by filing Writ Petition No.
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400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare
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Society, a registered association, has also preferred Writ Petition
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No. 604 of 2013, seeking similar reliefs in respect of Kinnar
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community, a TG community.
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4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got
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impleaded so as to effectively put across the cause of the
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members of the transgender community and Tripathy's life
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experiences also for recognition of their identity as a third gender,
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over and above male and female. Tripathy says that non-
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recognition of the identity of Hijras, a TG community, as a third
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gender, denies them the right of equality before the law and equal
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protection of law guaranteed under Article 14 of the Constitution
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and violates the rights guaranteed to them under Article 21 of the
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Constitution of India.
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5. Shri Raju Ramachandran, learned senior counsel appearing
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for the petitioner - the National Legal Services Authority,
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highlighted the traumatic experiences faced by the members of the
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TG community and submitted that every person of that community
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has a legal right to decide their sex orientation and to espouse and
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determine their identity. Learned senior counsel has submitted
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that since the TGs are neither treated as male or female, nor given
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the status of a third gender, they are being deprived of many of the
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rights and privileges which other persons enjoy as citizens of this
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country. TGs are deprived of social and cultural participation and
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hence restricted access to education, health care and public
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places which deprives them of the Constitutional guarantee of
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equality before law and equal protection of laws. Further, it was
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also pointed out that the community also faces discrimination to
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contest election, right to vote, employment, to get licences etc.
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and, in effect, treated as an outcast and untouchable. Learned
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senior counsel also submitted that the State cannot discriminate
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them on the ground of gender, violating Articles 14 to 16 and 21 of
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the Constitution of India.
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6. Shri Anand Grover, learned senior counsel appearing for the
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Intervener, traced the historical background of the third gender
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identity in India and the position accorded to them in the Hindu
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Mythology, Vedic and Puranic literatures, and the prominent role
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played by them in the royal courts of the Islamic world etc.
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Reference was also made to the repealed Criminal Tribes Act,
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1871 and explained the inhuman manner by which they were
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treated at the time of the British Colonial rule. Learned senior
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counsel also submitted that various International Forums and U.N.
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Bodies have recognized their gender identity and referred to the
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Yogyakarta Principles and pointed out that those principles have
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been recognized by various countries around the world.
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Reference was also made to few legislations giving recognition to
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the trans-sexual persons in other countries. Learned senior
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counsel also submitted that non-recognition of gender identity of
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the transgender community violates the fundamental rights
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guaranteed to them, who are citizens of this country.
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7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A.
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No. 2 of 2013, submitted that transgender persons have to be
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declared as a socially and educationally backward classes of
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citizens and must be accorded all benefits available to that class of
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persons, which are being extended to male and female genders.
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Learned counsel also submitted that the right to choose one's
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gender identity is integral to the right to lead a life with dignity,
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which is undoubtedly guaranteed by Article 21 of the Constitution
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of India. Learned counsel, therefore, submitted that, subject to
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such rules/regulations/protocols, transgender persons may be
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afforded the right of choice to determine whether to opt for male,
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female or transgender classification.
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8. Shri Sanjeev Bhatnagar, learned counsel appearing for the
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petitioner in Writ Petition No.604 of 2013, highlighted the cause of
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the Kinnar community and submitted that they are the most
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deprived group of transgenders and calls for constitutional as well
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as legal protection for their identity and for other socio-economic
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benefits, which are otherwise extended to the members of the
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male and female genders in the community.
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9. Shri Rakesh K. Khanna, learned Additional Solicitor General,
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appearing for the Union of India, submitted that the problems
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highlighted by the transgender community is a sensitive human
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issue, which calls for serious attention. Learned ASG pointed out
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that, under the aegis of the Ministry of Social Justice and
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Empowerment (for short "MOSJE"), a Committee, called "Expert
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Committee on Issues relating to Transgender", has been
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constituted to conduct an in-depth study of the problems relating to
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transgender persons to make appropriate recommendations to
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MOSJE. Shri Khanna also submitted that due representation
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would also be given to the applicants, appeared before this Court
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in the Committee, so that their views also could be heard.
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10. We also heard learned counsel appearing for various States
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and Union Territories who have explained the steps they have
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taken to improve the conditions and status of the members of TG
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community in their respective States and Union Territories. Laxmi
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Narayan Tripathy, a Hijra, through a petition supported by an
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affidavit, highlighted the trauma undergone by Tripathy from
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Tripathy's birth. Rather than explaining the same by us, it would
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be appropriate to quote in Tripathy's own words:
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"That the Applicant has born as a male. Growing up as
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a child, she felt different from the boys of her age and
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was feminine in her ways. On account of her femininity,
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from an early age, she faced repeated sexual
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harassment, molestation and sexual abuse, both within
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and outside the family. Due to her being different, she
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was isolated and had no one to talk to or express her
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feelings while she was coming to terms with her identity.
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She was constantly abused by everyone as a `chakka'
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and `hijra'. Though she felt that there was no place for
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her in society, she did not succumb to the prejudice.
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She started to dress and appear in public in women's
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clothing in her late teens but she did not identify as a
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woman. Later, she joined the Hijra community in
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Mumbai as she identified with the other hijras and for
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the first time in her life, she felt at home.
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That being a hijra, the Applicant has faced serious
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discrimination throughout her life because of her gender
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identity. It has been clear to the Applicant that the
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complete non-recognition of the identity of
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hijras/transgender persons by the State has resulted in
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the violation of most of the fundamental rights
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guaranteed to them under the Constitution of India...."
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Siddarth Narrain, eunuch, highlights Narrain's feeling, as
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follows:
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"Ever since I can remember, I have always identified
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myself as a woman. I lived in Namakkal, a small town in
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Tamil Nadu. When I was in the 10th standard I realized
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that the only way for me to be comfortable was to join
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the hijra community. It was then that my family found
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out that I frequently met hijras who lived in the city. One
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day, when my father was away, my brother, encouraged
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by my mother, started beating me with a cricket bat. I
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locked myself in a room to escape from the beatings.
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My mother and brother then tried to break into the room
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to beat me up further. Some of my relatives intervened
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and brought me out of the room. I related my ordeal to
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an uncle of mine who gave me Rs.50 and asked me to
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go home. Instead, I took the money and went to live
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with a group of hijras in Erode."
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Sachin, a TG, expressed his experiences as follows:
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"My name is Sachin and I am 23 years old. As a child I
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always enjoyed putting make-up like `vibhuti' or `kum
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kum' and my parents always saw me as a girl. I am
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male but I only have female feelings. I used to help my
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mother in all the housework like cooking, washing and
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cleaning. Over the years, I started assuming more of
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the domestic responsibilities at home. The neighbours
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starting teasing me. They would call out to me and ask:
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`Why don't you go out and work like a man?' or `Why
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are you staying at home like a girl?' But I liked being a
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girl. I felt shy about going out and working. Relatives
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would also mock and scold me on this score. Every day
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I would go out of the house to bring water. And as I
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walked back with the water I would always be teased. I
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felt very ashamed. I even felt suicidal. How could I live
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like that? But my parents never protested. They were
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helpless."
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We have been told and informed of similar life experiences
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faced by various others who belong to the TG community.
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11. Transgender is generally described as an umbrella term for
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persons whose gender identity, gender expression or behavior
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does not conform to their biological sex. TG may also takes in
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persons who do not identify with their sex assigned at birth, which
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include Hijras/Eunuchs who, in this writ petition, describe
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themselves as "third gender" and they do not identify as either male
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or female. Hijras are not men by virtue of anatomy appearance
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and psychologically, they are also not women, though they are like
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women with no female reproduction organ and no menstruation.
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Since Hijras do not have reproduction capacities as either men or
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women, they are neither men nor women and claim to be an
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institutional "third gender". Among Hijras, there are emasculated
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(castrated, nirvana) men, non-emasculated men (not
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castrated/akva/akka) and inter-sexed persons (hermaphrodites).
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TG also includes persons who intend to undergo Sex Re-
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Assignment Surgery (SRS) or have undergone SRS to align their
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biological sex with their gender identity in order to become male or
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female. They are generally called transsexual persons. Further,
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there are persons who like to cross-dress in clothing of opposite
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gender, i.e transvestites. Resultantly, the term "transgender", in
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contemporary usage, has become an umbrella term that is used to
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describe a wide range of identities and experiences, including but
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not limited to pre-operative, post-operative and non-operative
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transsexual people, who strongly identify with the gender opposite
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to their biological sex; male and female.
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HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:
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12. TG Community comprises of Hijras, eunuchs, Kothis,
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Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have
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got a strong historical presence in our country in the Hindu
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mythology and other religious texts. The Concept of tritiya prakrti
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or napunsaka has also been an integral part of vedic and puranic
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literatures. The word `napunsaka' has been used to denote
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absence of procreative capability.
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13. Lord Rama, in the epic Ramayana, was leaving for the forest
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upon being banished from the kingdom for 14 years, turns around
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to his followers and asks all the `men and women' to return to the
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city. Among his followers, the hijras alone do not feel bound by this
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direction and decide to stay with him. Impressed with their
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devotion, Rama sanctions them the power to confer blessings on
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people on auspicious occasions like childbirth and marriage, and
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also at inaugural functions which, it is believed set the stage for the
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custom of badhai in which hijras sing, dance and confer blessings.
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14. Aravan, the son of Arjuna and Nagakanya in Mahabharata,
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offers to be sacrificed to Goddess Kali to ensure the victory of the
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Pandavas in the Kurukshetra war, the only condition that he made
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was to spend the last night of his life in matrimony. Since no
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woman was willing to marry one who was doomed to be killed,
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Krishna assumes the form of a beautiful woman called Mohini and
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marries him. The Hijras of Tamil Nadu consider Aravan their
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progenitor and call themselves Aravanis.
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15. Jain Texts also make a detailed reference to TG which
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mentions the concept of `psychological sex'. Hijras also played a
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prominent role in the royal courts of the Islamic world, especially in
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the Ottaman empires and the Mughal rule in the Medieval India. A
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detailed analysis of the historical background of the same finds a
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place in the book of Gayatri Reddy, "With Respect to Sex:
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Negotiating Hijra Identity in South India" - Yoda Press (2006).
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16. We notice that even though historically, Hijras/transgender
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persons had played a prominent role, with the onset of colonial rule
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from the 18th century onwards, the situation had changed
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drastically. During the British rule, a legislation was enacted to
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supervise the deeds of Hijras/TG community, called the Criminal
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Tribes Act, 1871, which deemed the entire community of Hijras
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persons as innately `criminal' and `addicted to the systematic
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commission of non-bailable offences'. The Act provided for the
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registration, surveillance and control of certain criminal tribes and
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eunuchs and had penalized eunuchs, who were registered, and
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appeared to be dressed or ornamented like a woman, in a public
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street or place, as well as those who danced or played music in a
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public place. Such persons also could be arrested without warrant
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and sentenced to imprisonment up to two years or fine or both.
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Under the Act, the local government had to register the names and
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residence of all eunuchs residing in that area as well as of their
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properties, who were reasonably suspected of kidnapping or
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castrating children, or of committing offences under Section 377 of
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the IPC, or of abetting the commission of any of the said offences.
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Under the Act, the act of keeping a boy under 16 years in the
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charge of a registered eunuch was made an offence punishable
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with imprisonment up to two years or fine and the Act also denuded
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the registered eunuchs of their civil rights by prohibiting them from
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acting as guardians to minors, from making a gift deed or a will, or
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from adopting a son. Act has, however, been repealed in August
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1949.
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17. Section 377 of the IPC found a place in the Indian Penal
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Code, 1860, prior to the enactment of Criminal Tribles Act that
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criminalized all penile-non-vaginal sexual acts between persons,
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including anal sex and oral sex, at a time when transgender
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persons were also typically associated with the prescribed sexual
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practices. Reference may be made to the judgment of the
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Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6
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All 204, wherein a transgender person was arrested and
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prosecuted under Section 377 on the suspicion that he was a
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`habitual sodomite' and was later acquitted on appeal. In that case,
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while acquitting him, the Sessions Judge stated as follows:
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"This case relates to a person named Khairati, over
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whom the police seem to have exercised some sort of
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supervision, whether strictly regular or not, as a eunuch.
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The man is not a eunuch in the literal sense, but he was
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called for by the police when on a visit to his village, and
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was found singing dressed as a woman among the
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women of a certain family. Having been subjected to
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examination by the Civil Surgeon (and a subordinate
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medical man), he is shown to have the characteristic
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mark of a habitual catamite - the distortion of the orifice
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of the anus into the shape of a trumpet and also to be
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affected with syphilis in the same region in a manner
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which distinctly points to unnatural intercourse within the
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last few months."
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18. Even though, he was acquitted on appeal, this case would
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demonstrate that Section 377, though associated with specific
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sexual acts, highlighted certain identities, including Hijras and was
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used as an instrument of harassment and physical abuse against
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Hijras and transgender persons. A Division Bench of this Court in
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Suresh Kumar Koushal and another v. Naz Foundation and
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others [(2014) 1 SCC 1] has already spoken on the
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constitutionality of Section 377 IPC and, hence, we express no
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opinion on it since we are in these cases concerned with an
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altogether different issue pertaining to the constitutional and other
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legal rights of the transgender community and their gender identity
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and sexual orientation.
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GENDER IDENTITY AND SEXUAL ORIENTATION
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19. Gender identity is one of the most-fundamental aspects of life
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which refers to a person's intrinsic sense of being male, female or
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transgender or transsexual person. A person's sex is usually
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assigned at birth, but a relatively small group of persons may born
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with bodies which incorporate both or certain aspects of both male
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and female physiology. At times, genital anatomy problems may
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arise in certain persons, their innate perception of themselves, is
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not in conformity with the sex assigned to them at birth and may
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include pre and post-operative transsexual persons and also
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persons who do not choose to undergo or do not have access to
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operation and also include persons who cannot undergo successful
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operation. Countries, all over the world, including India, are
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grappled with the question of attribution of gender to persons who
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believe that they belong to the opposite sex. Few persons
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undertake surgical and other procedures to alter their bodies and
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physical appearance to acquire gender characteristics of the sex
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which conform to their perception of gender, leading to legal and
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social complications since official record of their gender at birth is
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found to be at variance with the assumed gender identity. Gender
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identity refers to each person's deeply felt internal and individual
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experience of gender, which may or may not correspond with the
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sex assigned at birth, including the personal sense of the body
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which may involve a freely chosen, modification of bodily
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appearance or functions by medical, surgical or other means and
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other expressions of gender, including dress, speech and
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mannerisms. Gender identity, therefore, refers to an individual's
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self-identification as a man, woman, transgender or other identified
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category.
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20. Sexual orientation refers to an individual's enduring physical,
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romantic and/or emotional attraction to another person. Sexual
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orientation includes transgender and gender-variant people with
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heavy sexual orientation and their sexual orientation may or may
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not change during or after gender transmission, which also
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includes homo-sexuals, bysexuals, heterosexuals, asexual etc.
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Gender identity and sexual orientation, as already indicated, are
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different concepts. Each person's self-defined sexual orientation
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and gender identity is integral to their personality and is one of the
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most basic aspects of self-determination, dignity and freedom and
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no one shall be forced to undergo medical procedures, including
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SRS, sterilization or hormonal therapy, as a requirement for legal
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recognition of their gender identity.
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UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES - ON
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GENDER IDENTITY AND SEXUAL ORIENTATION
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21. United Nations has been instrumental in advocating the
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protection and promotion of rights of sexual minorities, including
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transgender persons. Article 6 of the Universal Declaration of
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Human Rights, 1948 and Article 16 of the International Covenant
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on Civil and Political Rights, 1966 (ICCPR) recognize that every
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human being has the inherent right to live and this right shall be
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protected by law and that no one shall be arbitrarily denied of that
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right. Everyone shall have a right to recognition, everywhere as a
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person before the law. Article 17 of the ICCPR states that no one
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shall be subjected to arbitrary or unlawful interference with his
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privacy, family, home or correspondence, nor to unlawful attacks
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on his honour and reputation and that everyone has the right to
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protection of law against such interference or attacks. International
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Commission of Jurists and the International Service for Human
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Rights on behalf of a coalition of human rights organizations, took
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a project to develop a set of international legal principles on the
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application of international law to human rights violations based on
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sexual orientation and sexual identity to bring greater clarity and
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coherence to State's human rights obligations. A distinguished
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group of human rights experts has drafted, developed, discussed
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and reformed the principles in a meeting held at Gadjah Mada
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University in Yogyakarta, Indonesia from 6 to 9 November, 2006,
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which is unanimously adopted the Yogyakarta Principles on the
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application of International Human Rights Law in relation to Sexual
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Orientation and Gender Identity. Yogyakarta Principles address a
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broad range of human rights standards and their application to
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issues of sexual orientation gender identity. Reference to few
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Yogyakarta Principles would be useful.
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YOGYAKARTA PRINCIPLES:
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22. Principle 1 which deals with the right to the universal
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enjoyment of human rights, reads as follows :-
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"1. THE RIGHT TO THE UNIVERSAL ENJOYMENT
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OF HUMAN RIGHTS
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All human beings are born free and equal in dignity and
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rights. Human beings of all sexual orientations and
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gender identities are entitled to the full enjoyment of all
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human rights.
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States shall:
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A. Embody the principles of the universality,
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interrelatedness, interdependence and indivisibility
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of all human rights in their national constitutions or
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other appropriate legislation and ensure the
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practical realisation of the universal enjoyment of
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all human rights;
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B. Amend any legislation, including criminal law, to
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ensure its consistency with the universal
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enjoyment of all human rights;
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C. Undertake programmes of education and
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awareness to promote and enhance the full
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enjoyment of all human rights by all persons,
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irrespective of sexual orientation or gender
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identity;
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D. Integrate within State policy and decision-making a
-
pluralistic approach that recognises and affirms
-
the interrelatedness and indivisibility of all aspects
-
of human identity including sexual orientation and
-
gender identity.
-
-
2. THE RIGHTS TO EQUALITY AND NON-
-
DISCRIMINATION
-
-
Everyone is entitled to enjoy all human rights without
-
discrimination on the basis of sexual orientation or
-
gender identity. Everyone is entitled to equality before
-
the law and the equal protection of the law without any
-
such discrimination whether or not the enjoyment of
-
another human right is also affected. The law shall
-
prohibit any such discrimination and guarantee to all
-
persons equal and effective protection against any such
-
discrimination.
-
-
Discrimination on the basis of sexual orientation or
-
gender identity includes any distinction, exclusion,
-
restriction or preference based on sexual orientation or
-
gender identity which has the purpose or effect of
-
nullifying or impairing equality before the law or the
-
equal protection of the law, or the recognition,
-
enjoyment or exercise, on an equal basis, of all human
-
rights and fundamental freedoms. Discrimination based
-
on sexual orientation or gender identity may be, and
-
commonly is, compounded by discrimination on other
-
grounds including gender, race, age, religion, disability,
-
health and economic status.
-
-
States shall:
-
-
A. Embody the principles of equality and non-
-
discrimination on the basis of sexual orientation and
-
gender identity in their national constitutions or other
-
appropriate legislation, if not yet incorporated therein,
-
including by means of amendment and interpretation,
-
and ensure the effective realisation of these
-
principles;
-
20
-
-
-
B. Repeal criminal and other legal provisions that
-
prohibit or are, in effect, employed to prohibit
-
consensual sexual activity among people of the same
-
sex who are over the age of consent, and ensure that
-
an equal age of consent applies to both same-sex
-
and different- sex sexual activity;
-
-
C. Adopt appropriate legislative and other measures to
-
prohibit and eliminate discrimination in the public and
-
private spheres on the basis of sexual orientation and
-
gender identity;
-
-
D. Take appropriate measures to secure adequate
-
advancement of persons of diverse sexual
-
orientations and gender identities as may be
-
necessary to ensure such groups or individuals equal
-
enjoyment or exercise of human rights. Such
-
measures shall not be deemed to be discriminatory;
-
-
E. In all their responses to discrimination on the basis
-
of sexual orientation or gender identity, take account
-
of the manner in which such discrimination may
-
intersect with other forms of discrimination;
-
-
F. Take all appropriate action, including programmes of
-
education and training, with a view to achieving the
-
elimination of prejudicial or discriminatory attitudes or
-
behaviours which are related to the idea of the
-
inferiority or the superiority of any sexual orientation
-
or gender identity or gender expression.
-
-
3. THE RIGHT TO RECOGNITION BEFORE THE
-
LAW
-
-
Everyone has the right to recognition everywhere as a
-
person before the law. Persons of diverse sexual
-
orientations and gender identities shall enjoy legal
-
capacity in all aspects of life. Each person's self-defined
-
sexual orientation and gender identity is integral to their
-
personality and is one of the most basic aspects of self-
-
determination, dignity and freedom. No one shall be
-
forced to undergo medical procedures, including sex
-
21
-
-
-
reassignment surgery, sterilisation or hormonal therapy,
-
as a requirement for legal recognition of their gender
-
identity. No status, such as marriage or parenthood,
-
may be invoked as such to prevent the legal recognition
-
of a person's gender identity. No one shall be subjected
-
to pressure to conceal, suppress or deny their sexual
-
orientation or gender identity.
-
-
States shall:
-
-
A. Ensure that all persons are accorded legal capacity in
-
civil matters, without discrimination on the basis of
-
sexual orientation or gender identity, and the
-
opportunity to exercise that capacity, including equal
-
rights to conclude contracts, and to administer, own,
-
acquire (including through inheritance), manage,
-
enjoy and dispose of property;
-
-
B. Take all necessary legislative, administrative and
-
other measures to fully respect and legally recognise
-
each person's self-defined gender identity;
-
-
C. Take all necessary legislative, administrative and
-
other measures to ensure that procedures exist
-
whereby all State-issued identity papers which
-
indicate a person's gender/sex -- including birth
-
certificates, passports, electoral records and other
-
documents -- reflect the person's profound self-
-
defined gender identity;
-
-
D. Ensure that such procedures are efficient, fair and
-
non-discriminatory, and respect the dignity and
-
privacy of the person concerned;
-
-
E. Ensure that changes to identity documents will be
-
recognised in all contexts where the identification or
-
disaggregation of persons by gender is required by
-
law or policy;
-
-
F. Undertake targeted programmes to provide social
-
support for all persons experiencing gender
-
transitioning or reassignment.
-
22
-
-
-
-
4. THE RIGHT TO LIFE
-
-
Everyone has the right to life. No one shall be arbitrarily
-
deprived of life, including by reference to considerations
-
of sexual orientation or gender identity. The death
-
penalty shall not be imposed on any person on the basis
-
of consensual sexual activity among persons who are
-
over the age of consent or on the basis of sexual
-
orientation or gender identity.
-
-
States shall:
-
-
A. Repeal all forms of crime that have the purpose or
-
effect of prohibiting consensual sexual activity among
-
persons of the same sex who are over the age of
-
consent and, until such provisions are repealed,
-
never impose the death penalty on any person
-
convicted under them;
-
-
B. Remit sentences of death and release all those
-
currently awaiting execution for crimes relating to
-
consensual sexual activity among persons who are
-
over the age of consent;
-
-
C. Cease any State-sponsored or State-condoned
-
attacks on the lives of persons based on sexual
-
orientation or gender identity, and ensure that all
-
such attacks, whether by government officials or by
-
any individual or group, are vigorously investigated,
-
and that, where appropriate evidence is found, those
-
responsible are prosecuted, tried and duly punished.
-
-
6. THE RIGHT TO PRIVACY
-
-
Everyone, regardless of sexual orientation or gender
-
identity, is entitled to the enjoyment of privacy without
-
arbitrary or unlawful interference, including with regard
-
to their family, home or correspondence as well as to
-
protection from unlawful attacks on their honour and
-
reputation. The right to privacy ordinarily includes the
-
choice to disclose or not to disclose information relating
-
23
-
-
-
to one's sexual orientation or gender identity, as well as
-
decisions and choices regarding both one's own body
-
and consensual sexual and other relations with others.
-
-
States shall:
-
-
A. Take all necessary legislative, administrative and
-
other measures to ensure the right of each person,
-
regardless of sexual orientation or gender identity, to
-
enjoy the private sphere, intimate decisions, and
-
human relations, including consensual sexual activity
-
among persons who are over the age of consent,
-
without arbitrary interference;
-
-
B. Repeal all laws that criminalise consensual sexual
-
activity among persons of the same sex who are over
-
the age of consent, and ensure that an equal age of
-
consent applies to both same-sex and different-sex
-
sexual activity;
-
-
C. Ensure that criminal and other legal provisions of
-
general application are not applied to de facto
-
criminalise consensual sexual activity among persons
-
of the same sex who are over the age of consent;
-
-
D. Repeal any law that prohibits or criminalises the
-
expression of gender identity, including through
-
dress, speech or mannerisms, or that denies to
-
individuals the opportunity to change their bodies as
-
a means of expressing their gender identity;
-
-
E. Release all those held on remand or on the basis of a
-
criminal conviction, if their detention is related to
-
consensual sexual activity among persons who are
-
over the age of consent, or is related to gender
-
identity;
-
-
F. Ensure the right of all persons ordinarily to choose
-
when, to whom and how to disclose information
-
pertaining to their sexual orientation or gender
-
identity, and protect all persons from arbitrary or
-
unwanted disclosure, or threat of disclosure of such
-
24
-
-
-
information by others
-
-
9. THE RIGHT TO TREATMENT WITH HUMANITY
-
WHILE IN DETENTION
-
-
Everyone deprived of liberty shall be treated with
-
humanity and with respect for the inherent dignity of the
-
human person. Sexual orientation and gender identity
-
are integral to each person's dignity.
-
-
-
States shall:
-
-
A. Ensure that placement in detention avoids further
-
marginalising persons on the basis of sexual
-
orientation or gender identity or subjecting them to
-
risk of violence, ill-treatment or physical, mental or
-
sexual abuse;
-
-
B. Provide adequate access to medical care and
-
counselling appropriate to the needs of those in
-
custody, recognising any particular needs of persons
-
on the basis of their sexual orientation or gender
-
identity, including with regard to reproductive health,
-
access to HIV/AIDS information and therapy and
-
access to hormonal or other therapy as well as to
-
gender-reassignment treatments where desired;
-
-
C. Ensure, to the extent possible, that all prisoners
-
participate in decisions regarding the place of
-
detention appropriate to their sexual orientation and
-
gender identity;
-
-
D. Put protective measures in place for all prisoners
-
vulnerable to violence or abuse on the basis of their
-
sexual orientation, gender identity or gender
-
expression and ensure, so far as is reasonably
-
practicable, that such protective measures involve no
-
greater restriction of their rights than is experienced
-
by the general prison population;
-
-
E. Ensure that conjugal visits, where permitted, are
-
25
-
-
-
granted on an equal basis to all prisoners and
-
detainees, regardless of the gender of their partner;
-
-
F. Provide for the independent monitoring of detention
-
facilities by the State as well as by non-governmental
-
organisations including organisations working in the
-
spheres of sexual orientation and gender identity;
-
-
G. Undertake programmes of training and awareness-
-
raising for prison personnel and all other officials in
-
the public and private sector who are engaged in
-
detention facilities, regarding international human
-
rights standards and principles of equality and non-
-
discrimination, including in relation to sexual
-
orientation and gender identity.
-
-
18. PROTECTION FROM MEDICAL ABUSES
-
-
No person may be forced to undergo any form of
-
medical or psychological treatment, procedure, testing,
-
or be confined to a medical facility, based on sexual
-
orientation or gender identity. Notwithstanding any
-
classifications to the contrary, a person's sexual
-
orientation and gender identity are not, in and of
-
themselves, medical conditions and are not to be
-
treated, cured or suppressed.
-
-
States shall:
-
-
A. Take all necessary legislative, administrative and
-
other measures to ensure full protection against
-
harmful medical practices based on sexual
-
orientation or gender identity, including on the basis
-
of stereotypes, whether derived from culture or
-
otherwise, regarding conduct, physical appearance or
-
perceived gender norms;
-
-
B. Take all necessary legislative, administrative and
-
other measures to ensure that no child's body is
-
irreversibly altered by medical procedures in an
-
attempt to impose a gender identity without the full,
-
free and informed consent of the child in accordance
-
26
-
-
-
with the age and maturity of the child and guided by
-
the principle that in all actions concerning children,
-
the best interests of the child shall be a primary
-
consideration;
-
-
C. Establish child protection mechanisms whereby no
-
child is at risk of, or subjected to, medical abuse;
-
-
D. Ensure protection of persons of diverse sexual
-
orientations and gender identities against unethical or
-
involuntary medical procedures or research, including
-
in relation to vaccines, treatments or microbicides for
-
HIV/AIDS or other diseases;
-
-
E. Review and amend any health funding provisions or
-
programmes, including those of a development-
-
assistance nature, which may promote, facilitate or in
-
any other way render possible such abuses;
-
-
F. Ensure that any medical or psychological treatment
-
or counselling does not, explicitly or implicitly, treat
-
sexual orientation and gender identity as medical
-
conditions to be treated, cured or suppressed.
-
-
19. THE RIGHT TO FREEDOM OF OPINION AND
-
EXPRESSION
-
-
Everyone has the right to freedom of opinion and
-
expression, regardless of sexual orientation or gender
-
identity. This includes the expression of identity or
-
personhood through speech, deportment, dress, bodily
-
characteristics, choice of name, or any other means, as
-
well as the freedom to seek, receive and impart
-
information and ideas of all kinds, including with regard
-
to human rights, sexual orientation and gender identity,
-
through any medium and regardless of frontiers.
-
-
States shall:
-
-
A. Take all necessary legislative, administrative and
-
other measures to ensure full enjoyment of freedom
-
of opinion and expression, while respecting the rights
-
27
-
-
-
and freedoms of others, without discrimination on the
-
basis of sexual orientation or gender identity,
-
including the receipt and imparting of information and
-
ideas concerning sexual orientation and gender
-
identity, as well as related advocacy for legal rights,
-
publication of materials, broadcasting, organisation of
-
or participation in conferences, and dissemination of
-
and access to safer-sex information;
-
-
B. Ensure that the outputs and the organisation of
-
media that is State-regulated is pluralistic and non-
-
discriminatory in respect of issues of sexual
-
orientation and gender identity and that the personnel
-
recruitment and promotion policies of such
-
organisations are non-discriminatory on the basis of
-
sexual orientation or gender identity;
-
-
C. Take all necessary legislative, administrative and
-
other measures to ensure the full enjoyment of the
-
right to express identity or personhood, including
-
through speech, deportment, dress, bodily
-
characteristics, choice of name or any other means;
-
-
D. Ensure that notions of public order, public morality,
-
public health and public security are not employed to
-
restrict, in a discriminatory manner, any exercise of
-
freedom of opinion and expression that affirms
-
diverse sexual orientations or gender identities;
-
-
E. Ensure that the exercise of freedom of opinion and
-
expression does not violate the rights and freedoms
-
of persons of diverse sexual orientations and gender
-
identities;
-
-
F. Ensure that all persons, regardless of sexual
-
orientation or gender identity, enjoy equal access to
-
information and ideas, as well as to participation in
-
public debate."
-
28
-
-
-
23. UN bodies, Regional Human Rights Bodies, National Courts,
-
-
Government Commissions and the Commissions for Human
-
-
Rights, Council of Europe, etc. have endorsed the Yogyakarta
-
-
Principles and have considered them as an important tool for
-
-
identifying the obligations of States to respect, protect and fulfill the
-
-
human rights of all persons, regardless of their gender identity.
-
-
United Nations Committee on Economic, Social and Cultural
-
-
Rights in its Report of 2009 speaks of gender orientation and
-
-
gender identity as follows:-
-
-
"Sexual orientation and gender identity
-
`Other status' as recognized in article 2, paragraph 2,
-
includes sexual orientation. States parties should
-
ensure that a person's sexual orientation is not a
-
barrier to realizing Covenant rights, for example, in
-
accessing survivor's pension rights. In addition,
-
gender identity is recognized as among the prohibited
-
grounds of discrimination, for example, persons who
-
are transgender, transsexual or intersex, often face
-
serious human rights violations, such as harassment
-
in schools or in the workplace."
-
-
-
24. In this respect, reference may also be made to the General
-
-
Comment No.2 of the Committee on Torture and Article 2 of the
-
-
Convention against Torture and Other Cruel, Inhuman or
-
-
Degrading Treatment or Punishment in 2008 and also the General
-
-
Comment No.20 of the Committee on Elimination of Discrimination
-
-
against Woman, responsible for the implementation of the
-
29
-
-
-
Convention on the Elimination of All Forms of Discrimination
-
-
against Woman, 1979 and 2010 report.
-
-
-
SRS and Foreign Judgments
-
-
-
25. Various countries have given recognition to the gender
-
-
identity of such persons, mostly, in cases where transsexual
-
-
persons started asserting their rights after undergoing SRS of their
-
-
re-assigned sex. In Corbett v. Corbett (1970) 2 All ER 33, the
-
-
Court in England was concerned with the gender of a male to
-
-
female transsexual in the context of the validity of a marriage.
-
-
Ormrod, J. in that case took the view that the law should adopt the
-
-
chromosomal, gonadal and genital tests and if all three are
-
-
congruent, that should determine a person's sex for the purpose of
-
-
marriage. Learned Judge expressed the view that any operative
-
-
intervention should be ignored and the biological sexual
-
-
constitution of an individual is fixed at birth, at the latest, and
-
-
cannot be changed either by the natural development of organs of
-
-
the opposite sex or by medical or surgical means. Later, in R v.
-
-
Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied
-
-
Corbett approach in the context of criminal law. The Court upheld
-
30
-
-
-
convictions which were imposed on Gloria Greaves, a post-
-
-
operative male to female transsexual, still being in law, a man.
-
-
-
26. Corbett principle was not found favour by various other
-
-
countries, like New Zealand, Australia etc. and also attracted much
-
-
criticism, from the medical profession. It was felt that the
-
-
application of the Corbett approach would lead to a substantial
-
-
different outcome in cases of a post operative inter-sexual person
-
-
and a post operative transsexual person. In New Zealand in
-
-
Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603,
-
-
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. It was held that there is no social advantage in the law for not
-
-
recognizing the validity of the marriage of a transsexual in the sex
-
-
of reassignment. The Court held that an adequate test is whether
-
-
the person in question has undergone surgical and medical
-
-
procedures that have effectively given the person the physical
-
-
conformation of a person of a specified sex. In Re Kevin (Validity
-
-
of Marriage of Transsexual) (2001) Fam CA 1074, in an
-
-
Australian case, Chisholm J., held that there is no `formulaic
-
-
solution' to determine the sex of an individual for the purpose of the
-
-
law of marriage. It was held that all relevant matters need to be
-
31
-
-
-
considered, including the person's life experiences and self-
-
-
perception. Full Court of the Federal Family Court in the year
-
-
2003 approved the above-mentioned judgment holding that in the
-
-
relevant Commonwealth marriage statute the words `man' and
-
-
`woman' should be given their ordinary, everyday contemporary
-
-
meaning and that the word `man' includes a post operative female
-
-
to male transsexual person. The Full Court also held that there
-
-
was a biological basis for transsexualism and that there was no
-
-
reason to exclude the psyche as one of the relevant factors in
-
-
determining sex and gender. The judgment Attorney-General for
-
-
the Commonwealth & "Kevin and Jennifer" & Human Rights
-
-
and Equal Opportunity Commission is reported in (2003) Fam
-
-
CA 94.
-
-
-
27. Lockhart, J. in Secretary, Department of Social Security v.
-
-
"SRA", (1993) 43 FCR 299 and Mathews, J. in R v. Harris &
-
-
McGuiness (1988) 17 NSWLR 158, made an exhaustive review of
-
-
the various decisions with regard to the question of recognition to
-
-
be accorded by Courts to the gender of a transsexual person who
-
-
had undertaken a surgical procedure. The Courts generally in
-
-
New Zealand held that the decision in Corbett v. Corbett (supra)
-
-
and R v. Tan (supra) which applied a purely biological test, should
-
32
-
-
-
not be followed. In fact, Lockhart. J. in SRA observed that the
-
-
development in surgical and medical techniques in the field of
-
-
sexual reassignment, together with indications of changing social
-
-
attitudes towards transsexuals, would indicate that generally they
-
-
should not be regarded merely as a matter of chromosomes, which
-
-
is purely a psychological question, one of self-perception, and
-
-
partly a social question, how society perceives the individual.
-
-
-
28. A.B. v. Western Australia (2011) HCA 42 was a case
-
-
concerned with the Gender Reassignment Act, 2000. In that Act, a
-
-
person who had undergone a reassignment procedure could apply
-
-
to Gender Reassignment Board for the issue of a recognition
-
-
certificate. Under Section 15 of that Act, before issuing the
-
-
certificate, the Board had to be satisfied, inter alia, that the
-
-
applicant believed his or her true gender was the person's
-
-
reassigned gender and had adopted the lifestyle and gender
-
-
characteristics of that gender. Majority of Judges agreed with
-
-
Lockhart, J. in SRA that gender should not be regarded merely as
-
-
a matter of chromosomes, but partly a psychological question, one
-
-
of self-perception, and partly a social question, how society
-
-
perceives the individual.
-
33
-
-
-
29. The House of Lords in Bellinger v. Bellinger (2003) 2 All ER
-
-
593 was dealing with the question of a transsexual. In that case,
-
-
Mrs. Bellinger was born on 7th September, 1946. At birth, she was
-
-
correctly classified and registered as male. However, she felt
-
-
more inclined to be a female. Despite her inclinations, and under
-
-
some pressure, in 1967 she married a woman and at that time she
-
-
was 21 years old. Marriage broke down and parties separated in
-
-
1971 and got divorce in the year 1975. Mrs. Bellinger dressed and
-
-
lived like a woman and when she married Mr. Bellinger, he was
-
-
fully aware of her background and throughout had been supportive
-
-
to her. Mr. and Mrs. Bellinger since marriage lived happily as
-
-
husband and wife and presented themselves in that fashion to the
-
-
outside world. Mrs. Bellinger's primary claim was for a declaration
-
-
under Section 55 of the Family Law Act, 1986 that her marriage to
-
-
Mr. Bellinger in 1981 was "at its inception valid marriage". The
-
-
House of Lords rejected the claim and dismissed the appeal.
-
-
Certainly, the "psychological factor" has not been given much
-
-
prominence in determination of the claim of Mrs. Bellinger.
-
-
-
30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah
-
-
Jabatan Pendaftaran Negara (2006) 1 MLJ 90, was considering
-
-
the question as to whether an application to amend or correct
-
34
-
-
-
gender status stated in National Registration Identity Card could
-
-
be allowed after a person has undergone SRS. It was a case
-
-
where the plaintiff was born as a male, but felt more inclined to be
-
-
a woman. In 1996 at Hospital Siroros she underwent a gender
-
-
reassignment and got the surgery done for changing the sex from
-
-
male to female and then she lived like a woman. She applied to
-
-
authorities to change her name and also for a declaration of her
-
-
gender as female, but her request was not favourably considered,
-
-
but still treated as a male. She sought a declaration from the
-
-
Court that she be declared as a female and that the Registration
-
-
Department be directed to change the last digit of her identity card
-
-
to a digit that reflects a female gender. The Malaysian Court
-
-
basically applied the principle laid down in Corbett (supra),
-
-
however, both the prayers sought for were granted, after noticing
-
-
that the medical men have spoken that the plaintiff is a female and
-
-
they have considered the sex change of the plaintiff as well as her
-
-
"psychological aspect". The Court noticed that she feels like a
-
-
woman, lives like one, behaves as one, has her physical body
-
-
attuned to one, and most important of all, her "psychological
-
-
thinking" is that of a woman.
-
35
-
-
-
31. The Court of Appeal, New South Wales was called upon to
-
-
decide the question whether the Registrar of Births, Deaths and
-
-
Marriages has the power under the Births, Deaths and Marriages
-
-
Act, 1995 to register a change of sex of a person and the sex
-
-
recorded on the register to "non-specific" or "non-specified". The
-
-
appeal was allowed and the matter was remitted back to the
-
-
Tribunal for a fresh consideration in accordance with law, after
-
-
laying down the law on the subject. The judgment is reported as
-
-
Norrie v. NSW Registrar of Births, Deaths and Marriages
-
-
(2013) NSWCA 145. While disposing of the appeal, the Court held
-
-
as follows:-
-
-
"The consequence is that the Appeal Panel (and the
-
Tribunal and the Registrar) were in error in construing
-
the power in S.32DC(1) as limiting the Registrar to
-
registering a person's change of sex as only male or
-
female. An error in the construction of the statutory
-
provision granting the power to register a person's
-
change of sex is an error on a question of law.
-
Collector of Customs v. Pozzolanic Enterprises Pty.
-
Ltd. [1993] FCA 322; (1993) 43 FCR 280 at 287. This
-
is so notwithstanding that the determination of the
-
common understanding of a general word used in the
-
statutory provision is a question of fact. The Appeal
-
Panel (and the Tribunal and the Registrar) erred in
-
determining that the current ordinary meaning of the
-
word "sex" is limited to the character of being either
-
male or female. That involved an error on a question
-
of fact. But the Appeal Panel's error in arriving at the
-
common understanding of the word "sex" was
-
associated with its error in construction of the effect of
-
the statutory provision of S.32DC (and also of
-
36
-
-
-
S.32DA), and accordingly is of law: Hope v. Bathurst
-
City Council [1980] HCA 16, (1980) 144 CLR 1 at 10."
-
-
32. In Christine Goodwin v. United Kingdom (Application
-
-
No.28957/95 - Judgment dated 11th July, 2002), the European
-
-
Court of Human Rights examined an application alleging violation
-
-
of Articles 8, 12, 13 and 14 of the Convention for Protection of
-
-
Human Rights and Fundamental Freedoms, 1997 in respect of the
-
-
legal status of transsexuals in UK and particularly their treatment in
-
-
the sphere of employment, social security, pensions and marriage.
-
-
Applicant in that case had a tendency to dress as a woman from
-
-
early childhood and underwent aversion therapy in 1963-64. In
-
-
the mid-1960s she was diagnosed as a transsexual. Though she
-
-
married a woman and they had four children, her inclination was
-
-
that her "brain sex" did not fit her body. From that time until 1984
-
-
she dressed as a man for work but as a woman in her free time. In
-
-
January, 1985, the applicant began treatment at the Gender
-
-
Identity Clinic. In October, 1986, she underwent surgery to
-
-
shorten her vocal chords. In August, 1987, she was accepted on
-
-
the waiting list for gender re-assignment surgery and later
-
-
underwent that surgery at a National Health Service hospital. The
-
-
applicant later divorced her former wife. She claimed between
-
-
1990 and 1992 she was sexually harassed by colleagues at work,
-
37
-
-
-
followed by other human rights violations. The Court after referring
-
-
to various provisions and Conventions held as follows:-
-
-
"Nonetheless, the very essence of the Convention is
-
respect for human dignity and human freedom. Under
-
Article 8 of the Convention in particular, where the
-
notion of personal autonomy is an important principle
-
underlying the interpretation of its guarantees,
-
protection is given to the personal sphere of each
-
individuals, including the right to establish details of
-
their identity as individual human beings (see, inter
-
alia, Pretty v. the United Kingdom no.2346/02,
-
judgment of 29 April 2002, 62, and Mikulic v. Croatia,
-
no.53176/99, judgment of 7 February 2002, 53, both to
-
be published in ECHR 2002...). In the twenty first
-
century the right of transsexuals to personal
-
development and to physical and moral security in the
-
full sense enjoyed by others in society cannot be
-
regarded as a matter of controversy requiring the lapse
-
of time to cast clearer light on the issues involved. In
-
short, the unsatisfactory situation in which post-
-
operative transsexuals live in an intermediate zone as
-
not quite one gender or the other is no longer
-
sustainable."
-
-
33. The European Court of Human Rights in the case of Van
-
-
Kuck v. Germany (Application No.35968/97 - Judgment dated
-
-
12.9.2003) dealt with the application alleging that German Court's
-
-
decisions refusing the applicant's claim for reimbursement of
-
-
gender reassignment measures and the related proceedings were
-
-
in breach of her rights to a fair trial and of her right to respect for
-
-
her private life and that they amounted to discrimination on the
-
-
ground of her particular "psychological situation". Reliance was
-
38
-
-
-
placed on Articles 6, 8, 13 and 14 of the Convention for Protection
-
-
of Human Rights and Fundamental Freedoms, 1997. The Court
-
-
held that the concept of "private life" covers the physical and
-
-
psychological integrity of a person, which can sometimes embrace
-
-
aspects of an individual's physical and social identity. For
-
-
example, gender identifications, name and sexual orientation and
-
-
sexual life fall within the personal sphere protected by Article 8.
-
-
The Court also held that the notion of personal identity is an
-
-
important principle underlying the interpretation of various
-
-
guaranteed rights and the very essence of the Convention being
-
-
respect for human dignity and human freedom, protection is given
-
-
to the right of transsexuals to personal development and to
-
-
physical and moral security.
-
-
-
34. Judgments referred to above are mainly related to
-
-
transsexuals, who, whilst belonging physically to one sex, feel
-
-
convinced that they belong to the other, seek to achieve a more
-
-
integrated unambiguous identity by undergoing medical and
-
-
surgical operations to adapt their physical characteristic to their
-
-
psychological nature. When we examine the rights of transsexual
-
-
persons, who have undergone SRS, the test to be applied is not
-
-
the "Biological test", but the "Psychological test", because
-
39
-
-
-
psychological factor and thinking of transsexual has to be given
-
-
primacy than binary notion of gender of that person. Seldom
-
-
people realize the discomfort, distress and psychological trauma,
-
-
they undergo and many of them undergo "Gender Dysphoria'
-
-
which may lead to mental disorder. Discrimination faced by this
-
-
group in our society, is rather unimaginable and their rights have to
-
-
be protected, irrespective of chromosomal sex, genitals, assigned
-
-
birth sex, or implied gender role. Rights of transgenders, pure and
-
-
simple, like Hijras, eunuchs, etc. have also to be examined, so
-
-
also their right to remain as a third gender as well as their physical
-
-
and psychological integrity. Before addressing those aspects
-
-
further, we may also refer to few legislations enacted in other
-
-
countries recognizing their rights.
-
-
-
LEGISLATIONS IN OTHER COUNTRIES ON TGs
-
-
-
35. We notice, following the trend, in the international human
-
-
rights law, many countries have enacted laws for recognizing
-
-
rights of transsexual persons, who have undergone either
-
-
partial/complete SRS, including United Kingdom, Netherlands,
-
-
Germany, Australia, Canada, Argentina, etc. United Kingdom has
-
-
passed the General Recommendation Act, 2004, following the
-
40
-
-
-
judgment in Christine Goodwin (supra) passed by the European
-
-
Courts of Human Rights. The Act is all encompassing as not only
-
-
does it provide legal recognition to the acquired gender of a
-
-
person, but it also lays down provisions highlighting the
-
-
consequences of the newly acquired gender status on their legal
-
-
rights and entitlements in various aspects such as marriage,
-
-
parentage, succession, social security and pensions etc. One of
-
-
the notable features of the Act is that it is not necessary that a
-
-
person needs to have undergone or in the process of undergoing
-
-
a SRS to apply under the Act. Reference in this connection may
-
-
be made to the Equality Act, 2010 (UK) which has consolidated,
-
-
repealed and replaced around nine different anti-discrimination
-
-
legislations including the Sex Discrimination Act, 1986. The Act
-
-
defines certain characteristics to be "protected characteristics" and
-
-
no one shall be discriminated or treated less favourably on
-
-
grounds that the person possesses one or more of the "protected
-
-
characteristics". The Act also imposes duties on Public Bodies to
-
-
eliminate all kinds of discrimination, harassment and victimization.
-
-
Gender reassignment has been declared as one of the protected
-
-
characteristics under the Act, of course, only the transsexuals i.e.
-
-
those who are proposing to undergo, is undergoing or has
-
41
-
-
-
undergone the process of the gender reassignment are protected
-
-
under the Act.
-
-
-
36. In Australia, there are two Acts dealing with the gender
-
-
identity, (1) Sex Discrimination Act, 1984; and (ii) Sex
-
-
Discrimination Amendment (Sexual Orientation, Gender Identity
-
-
and Intersex Status) Act, 2013 (Act 2013). Act 2013 amends the
-
-
Sex Discrimination Act, 1984. Act 2013 defines gender identity as
-
-
the appearance or mannerisms or other gender-related
-
-
characteristics of a person (whether by way of medical intervention
-
-
or not) with or without regard to the person's designated sex at
-
-
birth.
-
-
Sections 5(A), (B) and (C) of the 2013 Act have some
-
-
relevance and the same are extracted hereinbelow:-
-
-
"5A Discrimination on the ground of sexual
-
orientation
-
-
(1) For the purposes of this Act, a person (the
-
discriminator) discriminates against another person
-
(the aggrieved person) on the ground of the aggrieved
-
person's sexual orientation if, by reason of:
-
-
(a) the aggrieved person's sexual orientation; or
-
(b) a characteristic that appertains generally to
-
persons who have the same sexual orientation as
-
the aggrieved person; or
-
(c) a characteristic that is generally imputed to
-
persons who have the same sexual orientation as
-
the aggrieved person;
-
42
-
-
-
-
the discriminator treats the aggrieved person less
-
favourably than, in circumstances that are the same or
-
are not materially different, the discriminator treats or
-
would treat a person who has a different sexual
-
orientation.
-
-
(2) For the purposes of this Act, a person (the
-
discriminator) discriminates against another person
-
(the aggrieved person) on the ground of the aggrieved
-
person's sexual orientation if the discriminator imposes,
-
or proposes to impose, a condition, requirement or
-
practice that has, or is likely to have, the effect of
-
disadvantaging persons who have the same sexual
-
orientation as the aggrieved person.
-
-
(3) This section has effect subject to sections 7B and
-
7D.
-
-
5B Discrimination on the ground of gender identity
-
-
(1) For the purposes of this Act, a person (the
-
discriminator) discriminates against another person
-
(the aggrieved person) on the ground of the aggrieved
-
person's gender identity if, by reason of:
-
(a) the aggrieved person's gender identity; or
-
(b) a characteristic that appertains generally to
-
persons who have the same gender identity as the
-
aggrieved person; or
-
(c) a characteristic that is generally imputed to
-
persons who have the same gender identity as the
-
aggrieved person;
-
-
the discriminator treats the aggrieved person less
-
favourably than, in circumstances that are the same or
-
are not materially different, the discriminator treats or
-
would treat a person who has a different gender identity.
-
-
(2) For the purposes of this Act, a person (the
-
discriminator) discriminates against another person
-
(the aggrieved person) on the ground of the aggrieved
-
person's gender identity if the discriminator imposes, or
-
43
-
-
-
proposes to impose, a condition, requirement or practice
-
that has, or is likely to have, the effect of disadvantaging
-
persons who have the same gender identity as the
-
aggrieved person.
-
-
(3) This section has effect subject to sections 7B and
-
7D.
-
-
5C Discrimination on the ground of intersex status
-
-
(1) For the purposes of this Act, a person (the
-
discriminator) discriminates against another person
-
(the aggrieved person) on the ground of the aggrieved
-
person's intersex status if, by reason of:
-
(a) the aggrieved person's intersex status; or
-
-
(b) a characteristic that appertains generally to
-
persons of intersex status; or
-
-
(c) a characteristic that is generally imputed to
-
persons of intersex status;
-
-
the discriminator treats the aggrieved person less
-
favourably than, in circumstances that are the same or
-
are not materially different, the discriminator treats or
-
would treat a person who is not of intersex status.
-
-
(2) For the purposes of this Act, a person (the
-
discriminator) discriminates against another person
-
(the aggrieved person) on the ground of the aggrieved
-
person's intersex status if the discriminator imposes, or
-
proposes to impose, a condition, requirement or practice
-
that has, or is likely to have, the effect of disadvantaging
-
persons of intersex status.
-
-
(3) This section has effect subject to sections 7B and
-
7D."
-
Various other precautions have also been provided under
-
-
the Act.
-
44
-
-
-
37. We may in this respect also refer to the European Union
-
-
Legislations on transsexuals. Recital 3 of the Preamble to the
-
-
Directive 2006/54/EC of European Parliament and the Council of 5
-
-
July 2006 makes an explicit reference to discrimination based on
-
-
gender reassignment for the first time in European Union Law.
-
-
Recital 3 reads as under :-
-
-
"The Court of Justice has held that the scope of the
-
principle of equal treatment for men and women cannot
-
be confined to the prohibition of discrimination based on
-
the fact that a person is of one or other sex. In view of
-
this purpose and the nature of the rights which it seeks
-
to safeguard, it also applies to discrimination arising
-
from the gender reassignment of a person."
-
-
-
38. European Parliament also adopted a resolution on
-
-
discrimination against transsexuals on 12th September, 1989 and
-
-
called upon the Member States to take steps for the protection of
-
-
transsexual persons and to pass legislation to further that end.
-
-
Following that Hungary has enacted Equal Treatment and the
-
-
Promotion of Equal Opportunities Act, 2003, which includes sexual
-
-
identity as one of the grounds of discrimination. 2010 paper on
-
-
`Transgender Persons' Rights in the EU Member States prepared
-
-
by the Policy Department of the European Parliament presents
-
-
the specific situation of transgender people in 27 Member States
-
-
of the European Union. In the United States of America some of
-
45
-
-
-
the laws enacted by the States are inconsistent with each other.
-
-
The Federal Law which provides protection to transgenders is The
-
-
Matthew Shepard and James Byrd. Jr. Hate Crimes Prevention
-
-
Act, 2009, which expands the scope of the 1969 United States
-
-
Federal Hate-crime Law by including offences motivated by actual
-
-
or perceived gender identity. Around 15 States and District of
-
-
Colombia in the United States have legislations which prohibit
-
-
discrimination on grounds of gender identity and expression. Few
-
-
States have issued executive orders prohibiting discrimination.
-
-
-
39. The Parliament of South Africa in the year 2003, enacted
-
-
Alteration of Sex Description and Sex Status Act, 2003, which
-
-
permits transgender persons who have undergone gender
-
-
reassignment or people whose sexual characteristics have
-
-
evolved naturally or an intersexed person to apply to the Director
-
-
General of the National Department of Home Affairs for alteration
-
-
of his/her sex description in the birth register, though the
-
-
legislation does not contemplate a more inclusive definition of
-
-
transgenders.
-
-
-
40. The Senate of Argentina in the year 2012 passed a law on
-
-
Gender Identity that recognizes right by all persons to the
-
46
-
-
-
recognition of their gender identity as well as free development of
-
-
their person according to their gender identity and can also
-
-
request that their recorded sex be amended along with the
-
-
changes in first name and image, whenever they do not agree with
-
-
the self-perceived gender identity. Not necessary that they
-
-
seemed to prove that a surgical procedure for total or partial
-
-
genital reassignment, hormonal therapies or any other
-
-
psychological or medical treatment had taken place. Article 12
-
-
deals with dignified treatment, respecting the gender identity
-
-
adopted by the individual, even though the first name is different
-
-
from the one recorded in their national identity documents.
-
-
Further laws also provide that whenever requested by the
-
-
individual, the adopted first name must be used for summoning,
-
-
recording, filing, calling and any other procedure or service in
-
-
public and private spaces.
-
-
-
41. In Germany, a new law has come into force on 5th November,
-
-
2013, which allows the parents to register the sex of the children
-
-
as `not specified' in the case of children with intersex variation.
-
-
According to Article 22, Section 3 of the German Civil Statutes Act
-
-
reads as follows:-
-
47
-
-
-
"If a child can be assigned to neither the female nor the
-
male sex then the child has to be named without a
-
specification"
-
-
-
42. The law has also added a category of X, apart from "M" and
-
-
"F" under the classification of gender in the passports.
-
-
-
Indian Scenario
-
-
-
43. We have referred exhaustively to the various judicial
-
-
pronouncements and legislations on the international arena to
-
-
highlight the fact that the recognition of "sex identity gender" of
-
-
persons, and "guarantee to equality and non-discrimination" on the
-
-
ground of gender identity or expression is increasing and gaining
-
-
acceptance in international law and, therefore, be applied in India
-
-
as well.
-
-
-
44. Historical background of Transgenders in India has already
-
-
been dealth in the earlier part of this Judgment indicating that they
-
-
were once treated with great respect, at least in the past, though
-
-
not in the present. We can perceive a wide range of transgender
-
-
related identities, cultures or experiences which are generally as
-
-
follows:
-
-
"Hijras: Hijras are biological males who reject their
-
`masculine' identity in due course of time to identify either
-
48
-
-
-
as women, or "not-men", or "in-between man and
-
woman", or "neither man nor woman". Hijras can be
-
considered as the western equivalent of
-
transgender/transsexual (male-to-female) persons but
-
Hijras have a long tradition/culture and have strong social
-
ties formalized through a ritual called "reet" (becoming a
-
member of Hijra community). There are regional
-
variations in the use of terms referred to Hijras. For
-
example, Kinnars (Delhi) and Aravanis (Tamil Nadu).
-
Hijras may earn through their traditional work: `Badhai'
-
(clapping their hands and asking for alms), blessing new-
-
born babies, or dancing in ceremonies. Some proportion
-
of Hijras engage in sex work for lack of other job
-
opportunities, while some may be self-employed or work
-
for non-governmental organisations." (See UNDP India
-
Report (December, 2010).
-
-
Eunuch: Eunuch refers to an emasculated male and
-
intersexed to a person whose genitals are ambiguously
-
male-like at birth, but this is discovered the child
-
previously assigned to the male sex, would be
-
recategorized as intesexexd - as a Hijra.
-
-
"Aravanis and `Thirunangi' - Hijras in Tamil Nadu
-
identify as "Aravani". Tamil Nadu Aravanigal Welfare
-
Board, a state government's initiative under the
-
Department of Social Welfare defines Aravanis as
-
biological males who self-identify themselves as a woman
-
trapped in a male's body. Some Aravani activists want
-
the public and media to use the term `Thirunangi' to refer
-
to Aravanis.
-
-
Kothi - Kothis are a heterogeneous group. `Kothis' can
-
be described as biological males who show varying
-
degrees of `femininity' - which may be situational. Some
-
proportion of Kothis have bisexual behavior and get
-
married to a woman. Kothis are generally of lower
-
socioeconomic status and some engage in sex work for
-
survival. Some proportion of Hijra-identified people may
-
also identify themselves as `Kothis'. But not all Kothi
-
identified people identify themselves as transgender or
-
Hijras.
-
49
-
-
-
-
Jogtas/Jogappas: Jogtas or Jogappas are those persons
-
who are dedicated to and serve as a servant of goddess
-
Renukha Devi (Yellamma) whose temples are present in
-
Maharashtra and Karnataka. `Jogta' refers to male servant
-
of that Goddess and `Jogti' refers to female servant (who is
-
also sometimes referred to as `Devadasi'). One can
-
become a `Jogta' (or Jogti) if it is part of their family
-
tradition or if one finds a `Guru' (or `Pujari') who accepts
-
him/her as a `Chela' or `Shishya' (disciple). Sometimes, the
-
term `Jogti Hijras' is used to denote those male-to-female
-
transgender persons who are devotees/servants of
-
Goddess Renukha Devi and who are also in the Hijra
-
communities. This term is used to differentiate them from
-
`Jogtas' who are heterosexuals and who may or may not
-
dress in woman's attire when they worship the Goddess.
-
Also, that term differentiates them from `Jogtis' who are
-
biological females dedicated to the Goddess. However,
-
`Jogti Hijras' may refer to themselves as `Jogti' (female
-
pronoun) or Hijras, and even sometimes as `Jogtas'.
-
-
Shiv-Shakthis: Shiv-Shakthis are considered as males
-
who are possessed by or particularly close to a goddess
-
and who have feminine gender expression. Usually, Shiv-
-
Shakthis are inducted into the Shiv-Shakti community by
-
senior gurus, who teach them the norms, customs, and
-
rituals to be observed by them. In a ceremony, Shiv-
-
Shakthis are married to a sword that represents male
-
power or Shiva (deity). Shiv-Shakthis thus become the
-
bride of the sword. Occasionally, Shiv-Shakthis cross-
-
dress and use accessories and ornaments that are
-
generally/socially meant for women. Most people in this
-
community belong to lower socio-economic status and earn
-
for their living as astrologers, soothsayers, and spiritual
-
healers; some also seek alms." (See Serena Nanda,
-
Wadsworth Publishing Company, Second Edition
-
(1999)
-
-
-
45. Transgender people, as a whole, face multiple forms of
-
-
oppression in this country. Discrimination is so large and
-
50
-
-
-
pronounced, especially in the field of health care, employment,
-
-
education, leave aside social exclusion. A detailed study was
-
-
conducted by the United Nations Development Programme
-
-
(UNDP - India) and submitted a report in December, 2010 on
-
-
Hijras/transgenders in India: "HIV Human Rights and Social
-
-
Exclusion". The Report states that the HIV Human
-
-
Immunodeficiency Virus and Sexually Transmitted Infections (STI)
-
-
is now increasingly seen in Hijras/transgenders population. The
-
-
estimated size of men who have sex with men (MSM) and male
-
-
sex workers population in India (latter presumably includes Hijras/
-
-
TG communities) is 2,352,133 and 235,213 respectively. It was
-
-
stated that no reliable estimates are available for Hijras/TG
-
-
women. HIV prevalence among MSM population was 7.4%
-
-
against the overall adult HIV prevalence of 0.36%. It was stated
-
-
recently Hijras/TG people were included under the category of
-
-
MSM in HIV sentinel serosurveillance. It is also reported in recent
-
-
studies that Hijras/TG women have indicated a very high HIV
-
-
prevalence (17.5% to 41%) among them. Study conducted by
-
-
NACO also highlights a pathetic situation. Report submitted by
-
-
NACI, NACP IV Working Group Hijras TG dated 5.5.2011 would
-
-
indicate that transgenders are extremely vulnerable to HIV. Both
-
51
-
-
-
the reports highlight the extreme necessity of taking emergent
-
-
steps to improve their sexual health, mental health and also
-
-
address the issue of social exclusion. The UNDP in its report has
-
-
made the following recommendations, which are as under:
-
-
"Multiple problems are faced by Hijras/TG, which
-
necessitate a variety of solutions and actions. While
-
some actions require immediate implementation such as
-
introducing Hijra/TG-specific social welfare schemes,
-
some actions need to be taken on a long-term basis
-
changing the negative attitude of the general public and
-
increasing accurate knowledge about Hijra/TG
-
communities. The required changes need to be reflected
-
in policies and laws; attitude of the government, general
-
public and health care providers; and health care systems
-
and practice. Key recommendations include the
-
following:
-
-
1. Address the gape in NACP-III: establish HIV sentinel
-
serosurveillance sites for Hijras/TG at strategic
-
locations; conduct operations research to design and
-
fine-tune culturally-relevant package of HIV prevention
-
and care interventions for Hijras/TG; provide financial
-
support for the formation of CBOs run by Hijras/TG;
-
and build the capacity of CBOs to implement effective
-
rogrammes.
-
-
2. Move beyond focusing on individual-level HIV
-
prevention activities to address the structural
-
determinants of risks and mitigate the impact of
-
risks. For example, mental health counseling, crisis
-
intervention (crisis in relation to suicidal tendencies,
-
police harassment and arrests, support following
-
sexual and physical violence), addressing alcohol and
-
drug abuse, and connecting to livelihood programs all
-
need to be part of the HIV interventions.
-
-
3. Train health care providers to be competent and
-
sensitive in providing health care services (including
-
52
-
-
-
STI and HIV-related services) to Hijras/TG as well as
-
develop and monitor implementation of guidelines
-
related to gender transition and sex reassignment
-
surgery (SRS).
-
-
4. Clarify the ambiguous legal status of sex reassignment
-
surgery and provide gender transition and SRS
-
services (with proper pre-and post-operation/transition
-
counseling) for free in public hospitals in various parts
-
in India.
-
-
5. Implement stigma and discrimination reduction
-
measures at various settings through a variety of
-
ways: mass media awareness for the general public to
-
focused training and sensitization for police and health
-
care providers.
-
-
6. Develop action steps toward taking a position on legal
-
recognition of gender identity of Hijras/TG need to
-
be taken in consultation with Hijras/TG and other key
-
stakeholders. Getting legal recognition and avoiding
-
ambiguities in the current procedures that issue
-
identity documents to Hijras/TGs are required as they
-
are connected to basic civil rights such as access to
-
health and public services, right to vote, right to contest
-
elections, right to education, inheritance rights, and
-
marriage and child adoption.
-
-
7. Open up the existing Social Welfare Schemes for
-
needy Hijras/TG and create specific welfare schemes
-
to address the basic needs of Hijras/TG including
-
housing and employment needs.
-
-
8. Ensure greater involvement of vulnerable
-
communities including Hijras/TG women in policy
-
formulation and program development."
-
-
-
46. Social exclusion and discrimination on the ground of gender
-
-
stating that one does not conform to the binary gender
-
53
-
-
-
(male/female) does prevail in India. Discussion on gender identity
-
-
including self-identification of gender of male/female or as
-
-
transgender mostly focuses on those persons who are assigned
-
-
male sex at birth, whether one talks of Hijra transgender, woman
-
-
or male or male to female transgender persons, while concern
-
-
voiced by those who are identified as female to male trans-sexual
-
-
persons often not properly addressed. Female to male unlike Hijra/
-
-
transgender persons are not quite visible in public unlike
-
-
Hijra/transgender persons. Many of them, however, do experience
-
-
violence and discrimination because of their sexual orientation or
-
-
gender identity.
-
-
-
INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
-
-
-
47. International Conventions and norms are significant for the
-
-
purpose of interpretation of gender equality. Article 1 of the
-
-
Universal declaration on Human Rights, 1948, states that all
-
-
human-beings are born free and equal in dignity and rights. Article
-
-
3 of the Universal Declaration of Human Rights states that
-
-
everyone has a right to life, liberty and security of person. Article 6
-
-
of the International Covenant on Civil and Political Rights, 1966
-
-
affirms that every human-being has the inherent right to life, which
-
54
-
-
-
right shall be protected by law and no one shall be arbitrarily
-
-
deprived of his life. Article 5 of the Universal Declaration of
-
-
Human Rights and Article 7 of the International Covenant on Civil
-
-
and Political Rights provide that no one shall be subjected to
-
-
torture or to cruel inhuman or degrading treatment or punishment.
-
-
United Nations Convention against Torture and Other Cruel
-
-
Inhuman and Degrading Treatment or Punishment (dated 24th
-
-
January, 2008) specifically deals with protection of individuals and
-
-
groups made vulnerable by discrimination or marginalization.
-
-
Para 21 of the Convention states that States are obliged to protect
-
-
from torture or ill-treatment all persons regardless of sexual
-
-
orientation or transgender identity and to prohibit, prevent and
-
-
provide redress for torture and ill-treatment in all contests of State
-
-
custody or control. Article 12 of the Universal Declaration of
-
-
Human Rights and Article 17 of the International Covenant on Civil
-
-
and Political Rights state that no one shall be subjected to
-
-
"arbitrary or unlawful interference with his privacy, family, home or
-
-
correspondence".
-
-
-
48. Above-mentioned International Human Rights instruments
-
-
which are being followed by various countries in the world are
-
-
aimed to protect the human rights of transgender people since it
-
55
-
-
-
has been noticed that transgenders/transsexuals often face
-
-
serious human rights violations, such as harassment in work place,
-
-
hospitals, places of public conveniences, market places, theaters,
-
-
railway stations, bus stands, and so on.
-
-
-
49. Indian Law, on the whole, only recognizes the paradigm of
-
-
binary genders of male and female, based on a person's sex
-
-
assigned by birth, which permits gender system, including the law
-
-
relating to marriage, adoption, inheritance, succession and
-
-
taxation and welfare legislations. We have exhaustively referred
-
-
to various articles contained in 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 as well as the Yogyakarta principles.
-
-
Reference was also made to legislations enacted in other
-
-
countries dealing with rights of persons of transgender community.
-
-
Unfortunately we have no legislation in this country dealing with
-
-
the rights of transgender community. Due to the absence of
-
-
suitable legislation protecting the rights of the members of the
-
-
transgender community, they are facing discrimination in various
-
-
areas and hence the necessity to follow the International
-
-
Conventions to which India is a party and to give due respect to
-
56
-
-
-
other non-binding International Conventions and principles.
-
-
Constitution makers could not have envisaged that each and every
-
-
human activity be guided, controlled, recognized or safeguarded
-
-
by laws made by the legislature. Article 21 has been incorporated
-
-
to safeguard those rights and a constitutional Court cannot be a
-
-
mute spectator when those rights are violated, but is expected to
-
-
safeguard those rights knowing the pulse and feeling of that
-
-
community, though a minority, especially when their rights have
-
-
gained universal recognition and acceptance.
-
-
-
50. Article 253 of the Constitution of India states that the
-
-
Parliament has the power to make any law for the whole or any
-
-
part of the territory of India for implementing any treaty, agreement
-
-
or convention. Generally, therefore, a legislation is required for
-
-
implementing the international conventions, unlike the position in
-
-
the United States of America where the rules of international law
-
-
are applied by the municipal courts on the theory of their implied
-
-
adoption by the State, as a part of its own municipal law. Article
-
-
VI, Cl. (2) of the U.S. Constitution reads as follows:
-
-
"........all treaties made, or which shall be made, under
-
the authority of the united States, shall be the supreme
-
law of the land, and the judges in every State shall be
-
bound thereby, anything in the Constitution or laws of
-
any State to the contrary not-withstanding."
-
57
-
-
-
-
51. In the United States, however, it is open to the courts to
-
-
supersede or modify international law in its application or it may be
-
-
controlled by the treaties entered into by the United States. But, till
-
-
an Act of Congress is passed, the Court is bound by the law of
-
-
nations, which is part of the law of the land. Such a `supremacy
-
-
clause' is absent in our Constitution. Courts in India would apply
-
-
the rules of International law according to the principles of comity of
-
-
Nations, unless they are overridden by clear rules of domestic law.
-
-
See: Gramophone Company of India Ltd. v. Birendra Bahadur
-
-
Pandey (1984) 2 SCC 534 and Tractor Export v. Tarapore & Co.
-
-
(1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab
-
-
Republic (1966) 1 SCR 391. In the case of Jolly George
-
-
Varghese v. Bank of Cochin (1980) 2 SCC 360, the Court applied
-
-
the above principle in respect of the International Covenant on Civil
-
-
and Political Rights, 1966 as well as in connection with the
-
-
Universal Declaration of Human Rights. India has ratified the
-
-
above mentioned covenants, hence, those covenants can be used
-
-
by the municipal courts as an aid to the Interpretation of Statutes
-
-
by applying the Doctrine of Harmonization. But, certainly, if the
-
-
Indian law is not in conflict with the International covenants,
-
-
particularly pertaining to human rights, to which India is a party, the
-
58
-
-
-
domestic court can apply those principles in the Indian conditions.
-
-
The Interpretation of International Conventions is governed by
-
-
Articles 31 and 32 of the Vienna Convention on the Law of Treaties
-
-
of 1969.
-
-
-
52. Article 51 of the Directive Principles of State Policy, which
-
-
falls under Part IV of the Indian Constitution, reads as under:
-
-
"Art. 51. The State shall endeavour to -
-
-
(a)promote international peace and security;
-
-
(b) maintain just and honourable relations between
-
nations;
-
-
(c) Foster respect for international law and treaty
-
obligation in the dealings of organised peoples with
-
one another; and
-
-
(d)Encourage settlement of international disputes by
-
arbitration."
-
-
53. Article 51, as already indicated, has to be read along with
-
-
Article 253 of the Constitution. If the parliament has made any
-
-
legislation which is in conflict with the international law, then Indian
-
-
Courts are bound to give effect to the Indian Law, rather than the
-
-
international law. However, in the absence of a contrary
-
-
legislation, municipal courts in India would respect the rules of
-
-
international law. In His Holiness Kesavananda Bharati
-
-
Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was
-
59
-
-
-
stated that in view of Article 51 of the Constitution, the Court must
-
-
interpret language of the Constitution, if not intractable, in the light
-
-
of United Nations Charter and the solemn declaration subscribed to
-
-
it by India. In Apparel Export Promotion Council v. A. K.
-
-
Chopra (1999) 1 SCC 759, it was pointed out that domestic courts
-
-
are under an obligation to give due regard to the international
-
-
conventions and norms for construing the domestic laws, more so,
-
-
when there is no inconsistency between them and there is a void in
-
-
domestic law. Reference may also be made to the Judgments of
-
-
this Court in Githa Hariharan (Ms) and another v. Reserve Bank
-
-
of India and another (1999) 2 SCC 228, R.D. Upadhyay v. State
-
-
of Andhra Pradesh and others (2007) 15 SCC 337 and People's
-
-
Union for Civil Liberties v. Union of India and another (2005) 2
-
-
SCC 436. In Vishaka and others v. State of Rajasthan and
-
-
Others (1997) 6 SCC 241, this Court under Article 141 laid down
-
-
various guidelines to prevent sexual harassment of women in
-
-
working places, and to enable gender equality relying on Articles
-
-
11, 24 and general recommendations 22, 23 and 24 of the
-
-
Convention on the Elimination of All Forms of Discrimination
-
-
against Women. Any international convention not inconsistent with
-
-
the fundamental rights and in harmony with its spirit must be read
-
60
-
-
-
into those provisions, e.g., Articles 14, 15, 19 and 21 of the
-
-
Constitution to enlarge the meaning and content thereof and to
-
-
promote the object of constitutional guarantee. Principles
-
-
discussed hereinbefore on TGs and the International Conventions,
-
-
including Yogyakarta principles, which we have found not
-
-
inconsistent with the various fundamental rights guaranteed under
-
-
the Indian Constitution, must be recognized and followed, which
-
-
has sufficient legal and historical justification in our country.
-
-
-
ARTICLE 14 AND TRANSGENDERS
-
-
-
54. 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. Equality includes
-
-
the full and equal enjoyment of all rights and freedom. Right to
-
-
equality has been declared as the basic feature of the Constitution
-
-
and treatment of equals as unequals or unequals as equals will be
-
-
violative of the basic structure of the Constitution. Article 14 of the
-
-
Constitution also ensures equal protection and hence a positive
-
-
obligation on the State to ensure equal protection of laws by
-
-
bringing in necessary social and economic changes, so that
-
-
everyone including TGs may enjoy equal protection of laws and
-
61
-
-
-
nobody is denied such protection. Article 14 does not restrict the
-
-
word `person' and its application only to male or female.
-
-
Hijras/transgender persons who are neither male/female fall within
-
-
the expression `person' and, hence, entitled to legal protection of
-
-
laws in all spheres of State activity, including employment,
-
-
healthcare, education as well as equal civil and citizenship rights,
-
-
as enjoyed by any other citizen of this country.
-
-
-
55. Petitioners have asserted as well as demonstrated on facts
-
-
and figures supported by relevant materials that despite
-
-
constitutional guarantee of equality, Hijras/transgender persons
-
-
have been facing extreme discrimination in all spheres of the
-
-
society. Non-recognition of the identity of Hijras/transgender
-
-
persons denies them equal protection of law, thereby leaving them
-
-
extremely vulnerable to harassment, violence and sexual assault in
-
-
public spaces, at home and in jail, also by the police. Sexual
-
-
assault, including molestation, rape, forced anal and oral sex, gang
-
-
rape and stripping is being committed with impunity and there are
-
-
reliable statistics and materials to support such activities. Further,
-
-
non-recognition of identity of Hijras /transgender persons results in
-
-
them facing extreme discrimination in all spheres of society,
-
-
especially in the field of employment, education, healthcare etc.
-
62
-
-
-
Hijras/transgender persons face huge discrimination in access to
-
-
public spaces like restaurants, cinemas, shops, malls etc. Further,
-
-
access to public toilets is also a serious problem they face quite
-
-
often. Since, there are no separate toilet facilities for
-
-
Hijras/transgender persons, they have to use male toilets where
-
-
they are prone to sexual assault and harassment. Discrimination
-
-
on the ground of sexual orientation or gender identity, therefore,
-
-
impairs equality before law and equal protection of law and violates
-
-
Article 14 of the Constitution of India.
-
-
-
ARTICLES 15 & 16 AND TRANSGENDERS
-
-
-
56. Articles 15 and 16 prohibit discrimination against any citizen
-
-
on certain enumerated grounds, including the ground of `sex'. In
-
-
fact, both the Articles prohibit all forms of gender bias and gender
-
-
based discrimination.
-
-
-
57. Article 15 states that the State shall not discriminate against
-
-
any citizen, inter alia, on the ground of sex, with regard to
-
-
(a) access to shops, public restaurants, hotels and places of
-
public entertainment; or
-
(b) use of wells, tanks, bathing ghats, roads and places of public
-
resort maintained wholly or partly out of State funds or
-
dedicated to the use of the general public.
-
63
-
-
-
The requirement of taking affirmative action for the
-
-
advancement of any socially and educationally backward classes
-
-
of citizens is also provided in this Article.
-
-
-
58. 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. Article 16 (2) of the Constitution of
-
-
India reads as follows :
-
-
"16(2). No citizen shall, on grounds only of religion,
-
race, caste, sex, descent, place of birth, residence or
-
any of them, be ineligible for, or discriminated against
-
in respect or, any employment or office under the
-
State."
-
-
Article 16 not only prohibits discrimination on the ground of
-
-
sex in public employment, but also imposes a duty on the State to
-
-
ensure that all citizens are treated equally in matters relating to
-
-
employment and appointment by the State.
-
-
-
59. Articles 15 and 16 sought to prohibit discrimination on the
-
-
basis of sex, recognizing that sex discrimination is a historical fact
-
-
and needs to be addressed. Constitution makers, it can be
-
-
gathered, gave emphasis to the fundamental right against sex
-
-
discrimination so as to prevent the direct or indirect attitude to treat
-
-
people differently, for the reason of not being in conformity with
-
64
-
-
-
stereotypical generalizations of binary genders. Both gender and
-
-
biological attributes constitute distinct components of sex.
-
-
Biological characteristics, of course, include genitals,
-
-
chromosomes and secondary sexual features, but gender
-
-
attributes include one's self image, the deep psychological or
-
-
emotional sense of sexual identity and character. The
-
-
discrimination on the ground of `sex' under Articles 15 and 16,
-
-
therefore, includes discrimination on the ground of gender identity.
-
-
The expression `sex' used in Articles 15 and 16 is not just limited to
-
-
biological sex of male or female, but intended to include people
-
-
who consider themselves to be neither male or female.
-
-
-
60. TGs have been systematically denied the rights under Article
-
-
15(2) that is not to be subjected to any disability, liability, restriction
-
-
or condition in regard to access to public places. TGs have also
-
-
not been afforded special provisions envisaged under Article 15(4)
-
-
for the advancement of the socially and educationally backward
-
-
classes (SEBC) of citizens, which they are, and hence legally
-
-
entitled and eligible to get the benefits of SEBC. State is bound to
-
-
take some affirmative action for their advancement so that the
-
-
injustice done to them for centuries could be remedied. TGs are
-
-
also entitled to enjoy economic, social, cultural and political rights
-
65
-
-
-
without discrimination, because forms of discrimination on the
-
-
ground of gender are violative of fundamental freedoms and human
-
-
rights. TGs have also been denied rights under Article 16(2) and
-
-
discriminated against in respect of employment or office under the
-
-
State on the ground of sex. TGs are also entitled to reservation in
-
-
the matter of appointment, as envisaged under Article 16(4) of the
-
-
Constitution. State is bound to take affirmative action to give them
-
-
due representation in public services.
-
-
-
61. Articles 15(2) to (4) and Article 16(4) read with the Directive
-
-
Principles of State Policy and various international instruments to
-
-
which Indian is a party, call for social equality, which the TGs could
-
-
realize, only if facilities and opportunities are extended to them so
-
-
that they can also live with dignity and equal status with other
-
-
genders.
-
-
-
ARTICLE 19(1)(a) AND TRANSGENDERS
-
-
-
62. Article 19(1) of the Constitution guarantees certain
-
-
fundamental rights, subject to the power of the State to impose
-
-
restrictions from exercise of those rights. The rights conferred by
-
-
Article 19 are not available to any person who is not a citizen of
-
-
India. Article 19(1) guarantees those great basic rights which are
-
66
-
-
-
recognized and guaranteed as the natural rights inherent in the
-
-
status of the citizen of a free country. Article 19(1) (a) of the
-
-
Constitution 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. 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.
-
-
-
63. We may, in this connection, refer to few judgments of the US
-
-
Supreme Courts on the rights of TG's freedom of expression. The
-
-
Supreme Court of the State of Illinois in the City of Chicago v.
-
-
Wilson et al., 75 III.2d 525(1978) struck down the municipal law
-
-
prohibiting cross-dressing, and held as follows "-
-
-
"the notion that the State can regulate one's personal
-
appearance, unconfined by any constitutional strictures
-
whatsoever, is fundamentally inconsistent with "values
-
of privacy, self-identity, autonomy and personal
-
integrity that ..... the Constitution was designed to
-
protect."
-
-
-
64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.),
-
-
the Superior Court of Massachusetts, upheld the right of a person
-
67
-
-
-
to wear school dress that matches her gender identity as part of
-
-
protected speech and expression and observed as follows :-
-
-
"by dressing in clothing and accessories traditionally
-
associated with the female gender, she is expressing
-
her identification with the gender. In addition, plaintiff's
-
ability to express herself and her gender identity
-
through dress is important for her health and well-
-
being. Therefore, plaintiff's expression is not merely a
-
personal preference but a necessary symbol of her
-
identity."
-
-
-
65. Principles referred to above clearly indicate that the freedom
-
-
of expression guaranteed under Article 19(1)(a) includes the
-
-
freedom to express one's chosen gender identity through varied
-
-
ways and means by way of expression, speech, mannerism,
-
-
clothing etc.
-
-
-
66. 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. A transgender's personality could be expressed by the
-
-
transgender's behavior and presentation. State cannot prohibit,
-
-
restrict or interfere with a transgender's expression of such
-
-
personality, which reflects that inherent personality. Often the
-
-
State and its authorities either due to ignorance or otherwise fail to
-
-
digest the innate character and identity of such persons. We,
-
68
-
-
-
therefore, hold that values of privacy, self-identity, autonomy and
-
-
personal integrity are fundamental rights guaranteed to members of
-
-
the transgender community under Article 19(1)(a) of the
-
-
Constitution of India and the State is bound to protect and
-
-
recognize those rights.
-
-
-
ARTICLE 21 AND THE TRANSGENDERS
-
-
-
67. Article 21 of the Constitution of India reads as follows:
-
-
"21. Protection of life and personal liberty - No
-
person shall be deprived of his life or personal liberty
-
except according to procedure established by law."
-
-
Article 21 is the heart and soul of the Indian Constitution,
-
-
which speaks of the rights to life and personal liberty. Right to life
-
-
is one of the basic fundamental rights and not even the State has
-
-
the authority to violate or take away that right. Article 21 takes all
-
-
those aspects of life which go to make a person's life meaningful.
-
-
Article 21 protects the dignity of human life, one's personal
-
-
autonomy, one's right to privacy, etc. Right to dignity has been
-
-
recognized to be an essential part of the right to life and accrues to
-
-
all persons on account of being humans. In Francis Coralie
-
-
Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC
-
-
608 (paras 7 and 8), this Court held that the right to dignity forms
-
69
-
-
-
an essential part of our constitutional culture which seeks to
-
-
ensure the full development and evolution of persons and includes
-
-
"expressing oneself in diverse forms, freely moving about and
-
-
mixing and comingling with fellow human beings".
-
-
-
68. Recognition of 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.
-
-
-
-
69. Article 21, as already indicated, guarantees the protection of
-
-
"personal autonomy" of an individual. In Anuj Garg v. Hotel
-
-
Association of India (2008) 3 SCC 1 (paragraphs 34-35), this
-
-
Court held that personal autonomy includes both the negative right
-
-
of not to be subject to interference by others and the positive right
-
-
of individuals to make decisions about their life, to express
-
-
themselves and to choose which activities to take part in. Self-
-
-
determination of gender is an integral part of personal autonomy
-
-
and self-expression and falls within the realm of personal liberty
-
-
guaranteed under Article 21 of the Constitution of India.
-
70
-
-
-
-
LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
-
-
-
70. Self-identified gender can be either male or female or a third
-
-
gender. Hijras are identified as persons of third gender and are
-
-
not identified either as male or female. Gender identity, as already
-
-
indicated, refers to a person's internal sense of being male, female
-
-
or a transgender, for example Hijras do not identify as female
-
-
because of their lack of female genitalia or lack of reproductive
-
-
capability. This distinction makes them separate from both male
-
-
and female genders and they consider themselves neither man
-
-
nor woman, but a "third gender". Hijras, therefore, belong to a
-
-
distinct socio-religious and cultural group and have, therefore, to
-
-
be considered as a "third gender", apart from male and female.
-
-
State of Punjab has treated all TGs as male which is not legally
-
-
sustainable. State of Tamil Nadu has taken lot of welfare
-
-
measures to safeguard the rights of TGs, which we have to
-
-
acknowledge. Few States like Kerala, Tripura, Bihar have referred
-
-
TGs as "third gender or sex". Certain States recognize them as
-
-
"third category". Few benefits have also been extended by certain
-
-
other States. Our neighbouring countries have also upheld their
-
-
fundamental rights and right to live with dignity.
-
71
-
-
-
-
71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v.
-
-
Nepal Government (Writ Petition No.917 of 2007 decided on 21st
-
-
December, 2007), spoke on the rights of Transgenders as
-
-
follows:-
-
-
"the fundamental rights comprised under Part II of the
-
Constitution are enforceable fundamental human rights
-
guaranteed to the citizens against the State. For this
-
reason, the fundamental rights stipulated in Part III are
-
the rights similarly vested in the third gender people as
-
human beings. The homosexuals and third gender
-
people are also human beings as other men and
-
women are, and they are the citizens of this country as
-
well.... Thus, the people other than `men' and
-
`women', including the people of `third gender' cannot
-
be discriminated. The State should recognize the
-
existence of all natural persons including the people of
-
third gender other than the men and women. And it
-
cannot deprive the people of third gender from
-
enjoying the fundamental rights provided by Part III of
-
the Constitution."
-
-
72. The Supreme Court of Pakistan in Dr. Mohammad Aslam
-
-
Khaki & Anr. V. Senior Superintendent of Police (Operation)
-
-
Rawalpindi & Ors. (Constitution Petition No.43 of 2009) decided
-
-
on 22nd March, 2011, had occasion to consider the rights of
-
-
eunuchs and held as follows:-
-
-
"Needless to observe that eunuchs in their rights are
-
citizens of this country and subject to the Constitution
-
of the Islamic Republic of Pakistan, 1973, their rights,
-
obligations including right to life and dignity are equally
-
protected. Thus no discrimination, for any reason, is
-
possible against them as far as their rights and
-
72
-
-
-
obligations are concerned. The Government
-
functionaries both at federal and provincial levels are
-
bound to provide them protection of life and property
-
and secure their dignity as well, as is done in case of
-
other citizens."
-
-
-
73. We may remind ourselves of the historical presence of the
-
-
third gender in this country as well as in the neighbouring countries.
-
-
-
74. Article 21, as already indicated, protects one's right of self-
-
-
determination of the gender to which a person belongs.
-
-
Determination of gender to which a person belongs is to be
-
-
decided by the person concerned. In other words, 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.
-
-
-
75. Articles 14, 15, 16, 19 and 21, above discussion, would
-
-
indicate, do not exclude Hijras/Transgenders from its ambit, but
-
-
Indian law on the whole recognize the paradigm of binary genders
-
-
of male and female, based on one's biological sex. As already
-
-
indicated, we cannot accept the Corbett principle of "Biological
-
-
Test", rather we prefer to follow the psyche of the person in
-
-
determining sex and gender and prefer the "Psychological Test"
-
73
-
-
-
instead of "Biological Test". Binary notion of gender reflects 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. Non-
-
-
recognition of the identity of Hijras/Transgenders in the various
-
-
legislations denies them equal protection of law and they face
-
-
wide-spread discrimination.
-
-
-
76. 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. Gender identity as already indicated
-
-
forms the core of one's personal self, based on self identification,
-
-
not on surgical or medical procedure. 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.
-
-
77. We, therefore, conclude that discrimination on the basis of
-
-
sexual orientation or gender identity includes any discrimination,
-
74
-
-
-
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.
-
-
-
-
...............................J
-
(K.S. Radhakrishnan)
-
-
-
A.K. SIKRI,J.
-
-
78. I have carefully, and with lot of interest, gone through the
-
-
perspicuous opinion of my brother Radhakrishnan,J. I am entirely
-
-
in agreement with the discussion contained in the said judgment
-
-
on all the cardinal issues that have arisen for consideration in
-
-
these proceedings. At the same time, having regard to the fact that
-
-
the issues involved are of seminal importance, I am also inclined to
-
-
pen down my thoughts.
-
-
-
79. As is clear, these petitions essentially raise an issue of
-
-
"Gender Identity", which is the core issue. It has two facets, viz.:
-
-
"(a) Whether a person who is born as a male with
-
predominantly female orientation (or vice-versa), has a right
-
to get himself to be recognized as a female as per his choice
-
moreso, when such a person after having undergone
-
75
-
-
-
operational procedure, changes his/her sex as well;
-
(b) Whether transgender (TG), who are neither males nor
-
females, have a right to be identified and categorized as a
-
"third gender"?
-
-
80. We would hasten to add that it is the second issue with which
-
-
we are primarily concerned in these petitions though in the process
-
-
of discussion, first issue which is somewhat inter-related, has also
-
-
popped up.
-
-
-
81. Indubitably, the issue of choice of gender identify has all the
-
-
trappings of a human rights. That apart, as it becomes clear from
-
-
the reading of the judgment of my esteemed Brother
-
-
Radhakrishnan,J., the issue is not limited to the exercise of choice
-
-
of gender/sex. Many rights which flow from this choice also come
-
-
into play, inasmuch not giving them the status of a third gender
-
-
results in depriving the community of TGs of many of their valuable
-
-
rights and privileges which other persons enjoy as citizens of this
-
-
Country. There is also deprivation of social and cultural
-
-
participation which results into eclipsing their access to education
-
-
and health services. Radhakrishnan,J. has exhaustively described
-
-
the term `Transgender' as an umbrella term which embraces within
-
-
itself a wide range of identities and experiences including but not
-
76
-
-
-
limited to pre-operative/post-operative trans sexual people who
-
-
strongly identify with the gender opposite to their biological sex i.e.
-
-
male/ female. Therein, the history of transgenders in India is also
-
-
traced and while doing so, there is mention of upon the draconian
-
-
legislation enacted during the British Rule, known as Criminal
-
-
Tribes Act, 1871 which treated, per se, the entire community of
-
-
Hizra persons as innately `criminals', `addicted to the systematic
-
-
commission of non-bailable offences'.
-
-
-
82. With these introductory remarks, I revert to the two facets of
-
-
pivotal importance mentioned above. Before embarking on the
-
-
discussion, I may clarify that my endeavour would be not to repeat
-
-
the discussion contained in the judgment of my Brother
-
-
Radhakrishnan, J., as I agree with every word written therein.
-
-
However, at times, if some of the observations are re-narrated,
-
-
that would be only with a view to bring continuity in the thought
-
-
process.
-
-
(1) Re: Right of a person to have the gender of his/her
-
-
choice.
-
-
When a child is born, at the time of birth itself, sex is
-
-
assigned to him/her. A child would be treated with that sex
-
-
thereafter, i.e. either a male or a female. However, as explained in
-
77
-
-
-
detail in the accompanying judgment, some persons, though
-
-
relatively very small in number, may born with bodies which
-
-
incorporate both or certain aspects of both male or female
-
-
physiology. It may also happen that though a person is born as a
-
-
male, because of some genital anatomy problems his innate
-
-
perception may be that of a female and all his actions would be
-
-
female oriented. The position may be exactly the opposite wherein
-
-
a person born as female may behave like a male person.
-
-
-
83. In earlier times though one could observe such
-
-
characteristics, at the same time the underlying rationale or reason
-
-
behind such a behavior was not known. Over a period of time, with
-
-
in depth study and research of such physical and psychological
-
-
factors bevaviour, the causes of this behaviour have become
-
-
discernable which in turn, has led to some changes in societal
-
-
norms. Society has starting accepting, though slowly, these have
-
-
accepted the behavioral norms of such persons without treating it
-
-
as abnormal. Further, medical science has leaped forward to such
-
-
an extent that even physiology appearance of a person can be
-
-
changed through surgical procedures, from male to female and
-
-
vice-versa. In this way, such persons are able to acquire the body
-
-
which is in conformity with the perception of their gender/gender
-
78
-
-
-
characteristics. In order to ensure that law also keeps pace with
-
-
the aforesaid progress in medical science, various countries have
-
-
come out with Legislation conferring rights on such persons to
-
-
recognize their gender identity based on reassigned sex after
-
-
undergoing Sex Re-Assignment Surgery (SRS). Law and
-
-
judgments given by the courts in other countries have been
-
-
exhaustively and grandiloquently traversed by my learned Brother
-
-
in his judgment, discussing amongst others, the Yogyakarta
-
-
principles, the relevant provisions of the Universal Declaration of
-
-
Human Rights 1948 and highlighting the statutory framework
-
-
operating in those countries.
-
-
-
84. The genesis of this recognition lies in the acknowledgment of
-
-
another fundamental and universal principal viz. "right of choice"
-
-
given to an individual which is the inseparable part of human
-
-
rights. It is a matter of historical significance that the 20th Century
-
-
is often described as "the age of rights".
-
-
-
85. The most important lesson which was learnt as a result of
-
-
Second World War was the realization by the Governments of
-
-
various countries about the human dignity which needed to be
-
-
cherished and protected. It is for this reason that in the
-
79
-
-
-
U.N.Charter, 1945, adopted immediately after the Second World
-
-
War, dignity of the individuals was mentioned as of core value. The
-
-
almost contemporaneous Universal Declaration of Human Rights
-
-
(1948) echoed same sentiments.
-
-
-
86. The underlined message in the aforesaid documents is the
-
-
acknowledgment that human rights are individual and have a
-
-
definite linkage of human development, both sharing common
-
-
vision and with a common purpose. Respect for human rights is
-
-
the root for human development and realization of full potential of
-
-
each individual, which in turn leads to the augmentation of human
-
-
resources with progress of the nation. Empowerment of the people
-
-
through human development is the aim of human rights.
-
-
-
87. There is thus a universal recognition that human rights are
-
-
rights that "belong" to every person, and do not depend on the
-
-
specifics of the individual or the relationship between the right-
-
-
holder and the right-grantor. Moreover, human rights exist
-
-
irrespective of the question whether they are granted or
-
-
recognized by the legal and social system within which we live.
-
-
They are devices to evaluate these existing arrangements: ideally,
-
-
these arrangements should not violate human rights. In other
-
80
-
-
-
words, human rights are moral, pre-legal rights. They are not
-
-
granted by people nor can they be taken away by them.
-
-
-
88. In international human rights law, equality is found upon two
-
-
complementary principles: non-discrimination and reasonable
-
-
differentiation. The principle of non-discrimination seeks to ensure
-
-
that all persons can equally enjoy and exercise all their rights and
-
-
freedoms. Discrimination occurs due to arbitrary denial of
-
-
opportunities for equal participation. For example, when public
-
-
facilities and services are set on standards out of the reach of the
-
-
TGs, it leads to exclusion and denial of rights. Equality not only
-
-
implies preventing discrimination (example, the protection of
-
-
individuals against unfavourable treatment by introducing anti-
-
-
discrimination laws), but goes beyond in remedying discrimination
-
-
against groups suffering systematic discrimination in society. In
-
-
concrete terms, it means embracing the notion of positive rights,
-
-
affirmative action and reasonable accommodation.
-
-
-
89. Nevertheless, the Universal Declaration of Human Rights
-
-
recognizes that all human beings are born free and equal in dignity
-
-
and rights and, since the Covenant's provisions apply fully to all
-
-
members of society, persons with disabilities are clearly entitled to
-
81
-
-
-
the full range of rights recognized in the Covenant. Moreover, the
-
-
requirement contained in Article 2 of the Covenant that the rights
-
-
enunciated will be exercised without discrimination of any kind
-
-
based on certain specified grounds or other status clearly applies
-
-
to cover persons with disabilities.
-
-
-
90. India attained independence within two years of adoption of
-
-
the aforesaid U.N.Charter and it was but natural that such a Bill of
-
-
Rights would assume prime importance insofar as thinking of the
-
-
members of the Constituent Assembly goes. It in fact did and we
-
-
found chapter on fundamental rights in Part-III of the Constitution.
-
-
It is not necessary for me, keeping in view the topic of today's
-
-
discussion, to embark on detailed discussion on Chapter-III. Some
-
-
of the provisions relevant for our purposes would be Article 14,
-
-
15,16 and 21 of the Constitution which have already been
-
-
adverted to in detail in the accompanying judgment. At this
-
-
juncture it also needs to be emphasized simultaneously is that in
-
-
addition to the fundamental rights, Constitution makers also
-
-
deemed it proper to impose certain obligations on the State in the
-
-
form of "Directive Principles of State Policy" (Part-IV) as a mark of
-
-
good governance. It is this part which provides an ideal and
-
-
purpose to our Constitution and delineates certain principles which
-
82
-
-
-
are fundamental in the governance of the country. Dr.Ambedkar
-
-
had explained the purpose of these Directive Principles in the
-
-
following manner (See Constituent Assembly debates):
-
-
"The Directive Principles are like the
-
Instruments of Instructions which were
-
issued to the Governor-General and the
-
Governors of Colonies, and to those of India
-
by the British Government under the 1935
-
Government of India Act. What is called
-
"Directive Principles" is merely another name
-
for the Instrument of Instructions. The only
-
difference is that they are instructions to the
-
legislature and the executive. Whoever
-
capture power will not be free to do what he
-
likes with it. In the exercise of it he will have
-
to respect these instruments of instructions
-
which are called Directive Principles".
-
-
-
91. The basic spirit of our Constitution is to provide each and
-
-
every person of the nation equal opportunity to grow as a human
-
-
being, irrespective of race, caste, religion, community and social
-
-
status. Granville Austin while analyzing the functioning of Indian
-
-
Constitution in first 50 years ha described three distinguished
-
-
strands of Indian Constitution: (i)protecting national unity and
-
-
integrity, (ii)establishing the institution and spirit of democracy;
-
-
and (iii) fostering social reforms. The Strands are mutually
-
-
dependent, and inextricably intertwined in what he elegantly
-
-
describes as "a seamless web". And there cannot be social
-
83
-
-
-
reforms till it is ensured that each and every citizen of this country
-
-
is able to exploit his/her potentials to the maximum. The
-
-
Constitution, although drafted by the Constituent Assembly, was
-
-
meant for the people of India and that is why it is given by the
-
-
people to themselves as expressed in the opening words "We the
-
-
People". What is the most important gift to the common person
-
-
given by this Constitution is "fundamental rights" which may be
-
-
called Human Rights as well.
-
-
-
92. The concept of equality in Article 14 so also the meaning of
-
-
the words `life', `liberty' and `law' in Article 21 have been
-
-
considerably enlarged by judicial decisions. Anything which is not
-
-
`reasonable, just and fair' is not treated to be equal and is,
-
-
therefore, violative of Article 14.
-
-
-
-
93. Speaking for the vision of our founding fathers, in State of
-
-
Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this Court
-
-
speaking through Justice Krishna Iyer observed:
-
-
"The social philosophy of the
-
Constitution shapes creative judicial vision
-
and orientation. Our nation has, as its
-
dynamic doctrine, economic democracy
-
sans which political democracy is
-
chimerical. We say so because our
-
Constitution, in Parts III and IV and
-
84
-
-
-
elsewhere, ensouls such a value system,
-
and the debate in this case puts precisely
-
this soul in peril....Our thesis is that the
-
dialectics of social justice should not be
-
missed if the synthesis of Parts III and Part
-
IV is to influence State action and court
-
pronouncements. Constitutional problems
-
cannot be studied in a socio-economic
-
vacuum, since socio-cultural changes are
-
the source of the new values, and
-
sloughing off old legal thought is part of
-
the process the new equity-loaded legality.
-
A judge is a social scientist in his role as
-
constitutional invigilator and fails
-
functionally if he forgets this dimension in
-
his complex duties."
-
-
-
94. While interpreting Art. 21, this Court has comprehended such
-
-
diverse aspects as children in jail entitled to special treatment
-
-
(Sheela Barse vs. Union of India [(1986)3 SCC 596], health
-
-
hazard due to pollution (Mehta M.C. v. Union of India [(1987) 4
-
-
SCC 463], beggars interest in housing (Kalidas Vs. State of J&K
-
-
[(1987) 3 SCC 430] health hazard from harmful drugs (Vincent
-
-
Panikurlangara Vs. Union of India AIR 1987 SC 990), right of
-
-
speedy trial (Reghubir Singh Vs. State of Bihar, AIR 1987 SC
-
-
149), handcuffing of prisoners(Aeltemesh Rein Vs. Union of
-
-
India, AIR 1988 SC 1768), delay in execution of death sentence,
-
-
immediate medical aid to injured persons(Parmanand Katara Vs.
-
-
Union of India, AIR 1989 SC 2039), starvation deaths(Kishen Vs.
-
85
-
-
-
State of Orissa, AIR 1989 SC 677), the right to know(Reliance
-
-
Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay
-
-
Pvt. Ltd. AIR 1989 SC 190), right to open trial(Kehar Singh Vs.
-
-
State (Delhi Admn.) AIR 1988 SC 1883), inhuman conditions an
-
-
after-care home(Vikram Deo Singh Tomar Vs. State of Bihar,
-
-
AIR 1988 SC 1782).
-
-
-
95. A most remarkable feature of this expansion of Art.21 is that
-
-
many of the non-justiciable Directive Principles embodied in Part
-
-
IV of the Constitution have now been resurrected as enforceable
-
-
fundamental rights by the magic wand of judicial activism, playing
-
-
on Art.21 e.g.
-
-
(a) Right to pollution-free water and air (Subhash Kumar Vs.
-
-
State of Bihar, AIR 1991 SC 420).
-
-
(b) Right to a reasonable residence (Shantistar Builders Vs.
-
-
Narayan Khimalal Totame AIR 1990 SC 630).
-
-
(c) Right to food (Supra note 14), clothing, decent
-
-
environment (supra note 20) and even protection of cultural
-
-
heritage (Ram Sharan Autyanuprasi Vs. UOI, AIR 1989 SC
-
-
549) .
-
-
(d) Right of every child to a full development (Shantistar
-
-
Builders Vs. Narayan Khimalal Totame AIR 1990 SC 630).
-
86
-
-
-
(e) Right of residents of hilly-areas to access to roads(State
-
-
of H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847).
-
-
(f) Right to education (Mohini Jain Vs. State of Karnataka,
-
-
AIR 1992 SC 1858), but not for a professional degree (Unni
-
-
Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178).
-
-
-
96. A corollary of this development is that while so long the
-
-
negative language of Art.21 and use of the word `deprived' was
-
-
supposed to impose upon the State the negative duty not to
-
-
interfere with the life or liberty of an individual without the sanction
-
-
of law, the width and amplitude of this provision has now imposed
-
-
a positive obligation (Vincent Panikurlangara Vs. UOI AIR 1987
-
-
SC 990) upon the State to take steps for ensuring to the individual
-
-
a better enjoyment of his life and dignity, e.g. -
-
-
(i) Maintenance and improvement of public health (Vincent
-
-
Panikurlangara Vs. UOI AIR 1987 SC 990).
-
-
(ii) Elimination of water and air pollution (Mehta M.C. Vs.
-
-
UOI (1987) 4 SCC 463).
-
-
(iii) Improvement of means of communication (State of H.P.
-
-
Vs. Umed Ram Sharma AIR 1986 SC 847).
-
-
(iv) Rehabilitation of bonded labourers (Bandhuva Mukti
-
-
Morcha Vs. UOI, AIR 1984 SC 802).
-
87
-
-
-
(v) Providing human conditions if prisons (Sher Singh Vs.
-
-
State of Punjab AIR 1983 SC 465) and protective homes
-
-
(Sheela Barse Vs. UOI (1986) 3 SCC 596).
-
-
(vi) Providing hygienic condition in a slaughter-house
-
-
(Buffalo Traders Welfare Ass. Vs. Maneka Gandhi (1994) Suppl
-
-
(3) SCC 448) .
-
-
-
97. The common golden thread which passes through all these
-
-
pronouncements is that Art.21 guarantees enjoyment of life by all
-
-
citizens of this country with dignity, viewing this human rights in
-
-
terms of human development.
-
-
-
98. The concepts of justice social, economic and political,
-
-
equality of status and of opportunity and of assuring dignity of the
-
-
individual incorporated in the Preamble, clearly recognize the right
-
-
of one and all amongst the citizens of these basic essentials
-
-
designed to flower the citizen's personality to its fullest. The
-
-
concept of equality helps the citizens in reaching their highest
-
-
potential.
-
-
-
99. Thus, the emphasis is on the development of an individual in
-
-
all respects. The basic principle of the dignity and freedom of the
-
-
individual is common to all nations, particularly those having
-
88
-
-
-
democratic set up. Democracy requires us to respect and develop
-
-
the free spirit of human being which is responsible for all progress
-
-
in human history. Democracy is also a method by which we
-
-
attempt to raise the living standard of the people and to give
-
-
opportunities to every person to develop his/her personality. It is
-
-
founded on peaceful co-existence and cooperative living. If
-
-
democracy is based on the recognition of the individuality and
-
-
dignity of man, as a fortiori we have to recognize the right of a
-
-
human being to choose his sex/gender identity which is integral
-
-
his/her personality and is one of the most basic aspect of self-
-
-
determination dignity and freedom. In fact, there is a growing
-
-
recognition that the true measure of development of a nation is not
-
-
economic growth; it is human dignity.
-
-
-
100. More than 225 years ago, Immanuel Kant propounded the
-
-
doctrine of free will, namely the free willing individual as a natural
-
-
law ideal. Without going into the detail analysis of his aforesaid
-
-
theory of justice (as we are not concerned with the analysis of his
-
-
jurisprudence) what we want to point out is his emphasis on the
-
-
"freedom" of human volition. The concepts of volition and freedom
-
-
are "pure", that is not drawn from experience. They are
-
-
independent of any particular body of moral or legal rules. They
-
89
-
-
-
are presuppositions of all such rules, valid and necessary for all of
-
-
them.
-
-
-
101. Over a period of time, two divergent interpretations of the
-
-
Kantian criterion of justice came to be discussed. One trend was
-
-
an increasing stress on the maximum of individual freedom of
-
-
action as the end of law. This may not be accepted and was
-
-
criticized by the protagonist of `hedonist utilitarianism', notably
-
-
Benthem. This school of thoughts laid emphasis on the welfare of
-
-
the society rather than an individual by propounding the principle
-
-
of maximum of happiness to most of the people. Fortunately, in the
-
-
instant case, there is no such dichotomy between the individual
-
-
freedom/liberty we are discussing, as against public good. On the
-
-
contrary, granting the right to choose gender leads to public good.
-
-
The second tendency of Kantian criterion of justice was found in
-
-
re-interpreting "freedom" in terms not merely of absence of
-
-
restraint but in terms of attainment of individual perfection. It is this
-
-
latter trend with which we are concerned in the present case and
-
-
this holds good even today. As pointed out above, after the
-
-
Second World War, in the form of U.N.Charter and thereafter there
-
-
is more emphasis on the attainment of individual perfection. In that
-
-
united sense at least there is a revival of natural law theory of
-
90
-
-
-
justice. Blackstone, in the opening pages in his `Vattelian
-
-
Fashion' said that the principal aim of society "is to protect
-
-
individuals in the enjoyment of those absolute rights which were
-
-
vested in them by the immutable laws of nature......"
-
-
-
102. In fact, the recognition that every individual has fundamental
-
-
right to achieve the fullest potential, is founded on the principle that
-
-
all round growth of an individual leads to common public good.
-
-
After all, human beings are also valuable asset of any country who
-
-
contribute to the growth and welfare of their nation and the society.
-
-
A person who is born with a particular sex and his forced to grow
-
-
up identifying with that sex, and not a sex that his/her
-
-
psychological behavior identifies with, faces innumerable obstacles
-
-
in growing up. In an article appeared in the magazine "Eye" of the
-
-
Sunday Indian Express (March 9-15, 2014) a person born as a boy
-
-
but with trappings of female ( who is now a female after SRS) has
-
-
narrated these difficulties in the following manner:
-
-
-
"The other children treated me as a boy,
-
but I preferred playing with girls.
-
Unfortunately, grown-ups consider that
-
okay only as long as you are a small child.
-
The constant inner conflict made things
-
difficult for me and, as I grew up, I began to
-
dread social interactions".
-
91
-
-
-
-
103. Such a person, carrying dual entity simultaneously, would
-
-
encounter mental and psychological difficulties which would hinder
-
-
his/her normal mental and even physical growth. It is not even
-
-
easy for such a person to take a decision to undergo SRS
-
-
procedure which requires strong mental state of affairs. However,
-
-
once that is decided and the sex is changed in tune with
-
-
psychological behavior, it facilitates spending the life smoothly.
-
-
Even the process of transition is not smooth. The transition from
-
-
a man to a woman is not an overnight process. It is a "painfully"
-
-
long procedure that requires a lot of patience. A person must first
-
-
undergo hormone therapy and, if possible, live as a member of the
-
-
desired sex for a while. To be eligible for hormone therapy, the
-
-
person needs at least two psychiatrists to certify that he or she is
-
-
mentally sound, and schizophrenia, depression and transvestism
-
-
have to be ruled out first. The psychiatric evaluation involved a
-
-
serious a questions on how Sunaina felt, when she got to know of
-
-
her confusion and need for sex change, whether she is a recluse,
-
-
her socio-economic condition, among other things.
-
-
-
104. In the same article appearing in the "Eye" referred to
-
-
above, the person who had undergone the operation and became
-
92
-
-
-
a complete girl, Sunaina (name changed) narrates the benefit
-
-
which ensued because of change in sex, in harmony with her
-
-
emotional and psychological character, as is clear from the
-
-
following passage in that article:
-
-
"Like many other single people in the city, she
-
can spend hours watching Friends, and reading
-
thrillers and Harry Potter. A new happiness
-
has taken seed in her and she says it does not
-
feel that she ever had a male body. "I am a
-
person who likes to laugh. Till my surgery,
-
behind every smile of mine, there was a
-
struggle. Now it's about time that I laughed for
-
real. I have never had a relationship in my life,
-
because somewhere, I always wanted to be
-
treated as a girl. Now, that I am a woman, I am
-
open to a new life, new relationships. I don't
-
have to hide anymore, I don't feel trapped
-
anymore. I love coding and my job. I love
-
cooking. I am learning French and when my left
-
foot recovers fully, I plan to learn dancing. And,
-
for the first time this year, I will vote with my new
-
name. I am looking forward to that," she says.
-
-
-
105. If a person has changed his/her sex in tune with his/her
-
-
gender characteristics and perception ,which has become possible
-
-
because of the advancement in medical science, and when that is
-
-
permitted by in medical ethics with no legal embargo, we do not
-
-
find any impediment, legal or otherwise, in giving due recognition
-
-
to the gender identity based on the reassign sex after undergoing
-
-
SRS.
-
93
-
-
-
106. For these reasons, we are of the opinion that even in the
-
-
absence of any statutory regime in this country, a person has a
-
-
constitutional right to get the recognition as male or female after
-
-
SRS, which was not only his/her gender characteristic but has
-
-
become his/her physical form as well.
-
-
(2) Re: Right of TG to be identified and categorized as "third
-
-
gender".
-
-
-
107. At the outset, it may be clarified that the term `transgender'
-
-
is used in a wider sense, in the present age. Even Gay, Lesbian,
-
-
bisexual are included by the descriptor `transgender'.
-
-
Etymologically, the term `transgender' is derived from two words,
-
-
namely `trans' and `gender'. Former is a Latin word which means
-
-
`across' or `beyond'. The grammatical meaning of `transgender',
-
-
therefore, is across or beyond gender. This has come to be known
-
-
as umbrella term which includes Gay men, Lesbians, bisexuals,
-
-
and cross dressers within its scope. However, while dealing with
-
-
the present issue we are not concerned with this aforesaid wider
-
-
meaning of the expression transgender.
-
-
-
108. It is to be emphasized that Transgender in India have
-
-
assumed distinct and separate class/category which is not
-
94
-
-
-
prevalent in other parts of the World except in some neighbouring
-
-
countries . In this country, TG community comprise of Hijaras,
-
-
enunch, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. In Indian
-
-
community transgender are referred as Hizra or the third gendered
-
-
people. There exists wide range of transgender-related identities,
-
-
cultures, or experience -including Hijras, Aravanis, Kothis,
-
-
jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological
-
-
males who reject their masculinity identity in due course of time to
-
-
identify either as women, or `not men'. Aravanis: Hijras in Tamil
-
-
Nadu identify as `Aravani'. Kothi: Kothis are heterogeneous group.
-
-
Kothis can be described as biological males who show varying
-
-
degrees of `feminity'. Jogtas/Jogappas: They are those who are
-
-
dedicated to serve as servant of Goddess Renukha Devi whose
-
-
temples are present in Maharashtra and Karnataka. Sometimes,
-
-
Jogti Hijras are used to denote such male-to-female transgender
-
-
persons who are devotees of Goddess Renukha and are also from
-
-
the Hijra community. Shiv-Shakthis: They are considered as males
-
-
who are possessed by or particularly close to a goddess and who
-
-
have feminine gender expression). The way they behave and acts
-
-
differs from the normative gender role of a men and women. For
-
-
them, furthering life is far more difficult since such people are
-
95
-
-
-
neither categorized as men nor women and this deviation is
-
-
unacceptable to society's vast majority. Endeavour to live a life
-
-
with dignity is even worse. Obviously transvestites, the hijra beg
-
-
from merchants who quickly, under threat of obscene abuse,
-
-
respond to the silent demands of such detested individuals. On
-
-
occasion, especially festival days, they press their claims with
-
-
boisterous and ribald singing and dancing.( A Right to Exist:
-
-
Eunuchs and the State in Nineteenth-Century India Laurence W.
-
-
Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-387).
-
-
-
-
-
109. Therefore, we make it clear at the outset that when we
-
-
discuss about the question of conferring distinct identity, we are
-
-
restrictive in our meaning which has to be given to TG community
-
-
i.e. hijra etc., as explained above.
-
-
-
110. Their historical background and individual scenario has
-
-
been stated in detail in the accompanying judgment rendered by
-
-
my learned Brother. Few things which follow from this discussion
-
-
are summed up below:
-
-
"(a) Though in the past TG in India was treated with
-
great respect, that does not remain the scenario any
-
longer. Attrition in their status was triggered with the
-
96
-
-
-
passing of the Criminal Tribes Act, 1871 which deemed
-
the entire community of Hijara persons as innately
-
`criminal' and `adapted to the systematic commission of
-
non-bailable offences'. This dogmatism and
-
indoctrination of Indian people with aforesaid
-
presumption, was totally capricious and nefarious. There
-
could not have been more harm caused to this
-
community with the passing of the aforesaid brutal
-
Legislation during British Regime with the vicious and
-
savage this mind set. To add insult to the irreparable
-
injury caused, Section 377 of the Indian Penal Code
-
was misused and abused as there was a tendency, in
-
British period, to arrest and prosecute TG persons under
-
Section 377 merely on suspicion. To undergo this sordid
-
historical harm caused to TGs of India, there is a need
-
for incessant efforts with effervescence.
-
-
(b) There may have been marginal improvement in the
-
social and economic condition of TGs in India. It is still
-
far from satisfactory and these TGs continue to face
-
different kinds of economic blockade and social
-
degradation. They still face multiple forms of oppression
-
in this country. Discrimination qua them is clearly
-
discernable in various fields including health care,
-
employment, education, social cohesion etc.
-
-
(c) The TGs are also citizens of this country. They also
-
have equal right to achieve their full potential as human
-
beings. For this purpose, not only they are entitled to
-
97
-
-
-
proper education, social assimilation, access to public
-
and other places but employment opportunities as well.
-
The discussion above while dealing with the first issue,
-
therefore, equally applies to this issue as well.
-
-
111. We are of the firm opinion that by recognizing such TGs as
-
-
third gender, they would be able to enjoy their human rights, to
-
-
which they are largely deprived of for want of this recognition. As
-
-
mentioned above, the issue of transgender is not merely a social
-
-
or medical issue but there is a need to adopt human right
-
-
approach towards transgenders which may focus on functioning as
-
-
an interaction between a person and their environment highlighting
-
-
the role of society and changing the stigma attached to them. TGs
-
-
face many disadvantages due to various reasons, particularly for
-
-
gender abnormality which in certain level needs to physical and
-
-
mental disability. Up till recently they were subjected to cruelty, pity
-
-
or charity. Fortunately, there is a paradigm shift in thinking from the
-
-
aforesaid approach to a rights based approach. Though, this may
-
-
be the thinking of human rights activist, the society has not kept
-
-
pace with this shift. There appears to be limited public knowledge
-
-
and understanding of same-sex sexual orientation and people
-
-
whose gender identity and expression are incongruent with their
-
-
biological sex. As a result of this approach, such persons are
-
98
-
-
-
socially excluded from the mainstream of the society and they are
-
-
denied equal access to those fundamental rights and freedoms
-
-
that the other people enjoy freely.(See, Hijras/Transgender
-
-
Women in India: HIV, Human Rights and Social Exclusion, UNDP
-
-
report on India Issue: December, 2010).
-
-
-
-
112. Some of the common and reported problem that
-
-
transgender most commonly suffer are: harassment by the police
-
-
in public places, harassment at home, police entrapment, rape,
-
-
discriminations, abuse in public places et.al. The other major
-
-
problems that the transgender people face in their daily life are
-
-
discrimination, lack of educational facilities, lack of medical
-
-
facilities, homelessness, unemployment, depression, hormone pill
-
-
abuse, tobacco and alcohol abuse, and problems related to
-
-
marriage and adoption. In spite of the adoption of Universal
-
-
Declaration of Human Rights (UDHR) in the year 1948, the
-
-
inherent dignity, equality, respect and rights of all human beings
-
-
throughout the world, the transgender are denied basic human
-
-
rights. This denial is premised on a prevalent juridical assumption
-
-
that the law should target discrimination based on sex (i.e.,
-
-
whether a person is anatomically male or female), rather than
-
99
-
-
-
gender (i.e., whether a person has qualities that society consider
-
-
masculine or feminine (Katherine M.Franke, The Central Mistake
-
-
of Sex Discrimination Law: the Disaggregation of Sex from
-
-
Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that by defining sex in
-
-
biological terms, the law has failed to distinguish sex from gender,
-
-
and sexual differentiation from sex discrimination). Transgender
-
-
people are generally excluded from the society and people think
-
-
transgenderism as a medical disease. Much like the disability,
-
-
which in earlier times was considered as an illness but later on
-
-
looked upon as a right based approach. The question whether
-
-
transgenderism is a disease is hotly debated in both the
-
-
transgender and medical-psychiatric communities. But a prevalent
-
-
view regarding this is that transgenderism is not a disease at all,
-
-
but a benign normal variant of the human experience akin to left-
-
-
handedness.
-
-
-
113. Therefore, 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
-
100
-
-
-
through a passport and a ration card, a driver's license, the right to
-
-
education, employment, health so on.
-
-
-
114. 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 that TG as third gender.
-
-
-
115. In order to translate the aforesaid rights of TGs into reality,
-
-
it becomes imperative to first assign them their proper `sex'. As is
-
-
stated earlier, 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 TGs
-
-
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 TGs and
-
101
-
-
-
violates their human rights.
-
-
-
116. Though there may not be any statutory regime recognizing
-
-
`third gender' for these TGs. However, we find enough justification
-
-
to recognize this right of theirs in natural law sphere. Further, such
-
-
a justification can be traced to the various provisions contained in
-
-
Part III of the Constitution relating to `Fundamental Rights'. In
-
-
addition to the powerful justification accomplished in the
-
-
accompanying opinion of my esteemed Brother, additional raison
-
-
d'etre for this conclusion is stated hereinafter.
-
-
-
117. We are in the age of democracy, that too substantive and
-
-
liberal democracy. Such a democracy is not based solely on the
-
-
rule of people through their representatives' namely formal
-
-
democracy. It also has other percepts like Rule of Law, human
-
-
rights, independence of judiciary, separation of powers etc.
-
-
-
118. There is a recognition to the hard realty that without
-
-
protection for human rights there can be no democracy and no
-
-
justification for democracy. In this scenario, while working within
-
-
the realm of separation of powers (which is also fundamental to
-
-
the substantive democracy), the judicial role is not only to decide
-
-
the dispute before the Court, but to uphold the rule of law and
-
102
-
-
-
ensure access to justice to the marginalized section of the society.
-
-
It cannot be denied that TGs belong to the unprivileged class
-
-
which is a marginalized section.
-
-
-
119. The role of the Court is to understand the central purpose
-
-
and theme of the Constitution for the welfare of the society. Our
-
-
Constitution, like the law of the society, is a living organism. It is
-
-
based on a factual and social realty that is constantly changing.
-
-
Sometimes a change in the law precedes societal change and is
-
-
even intended to stimulate it. Sometimes, a change in the law is
-
-
the result in the social realty. When we discuss about the rights of
-
-
TGs in the constitutional context, we find that in order to bring
-
-
about complete paradigm shift, law has to play more pre-dominant
-
-
role. As TGs in India, are neither male nor female, treating them as
-
-
belonging to either of the aforesaid categories, is the denial of
-
-
these constitutional rights. It is the denial of social justice which in
-
-
turn has the effect of denying political and economic justice.
-
-
-
120. In Dattatraya Govind Mahajan vs. State of Maharashtra
-
-
(AIR 1977 SC 915) this Court observed:
-
-
"Our Constitution is a tryst with
-
destiny, preamble with luscent solemnity in
-
the words `Justice - social, economic and
-
political.' The three great branches of
-
103
-
-
-
Government, as creatures of the
-
Constitution, must remember this promise in
-
their fundamental role and forget it at their
-
peril, for to do so will be a betrayal of chose
-
high values and goals which this nation set
-
for itself in its objective Resolution and
-
whose elaborate summation appears in Part
-
IV of the Paramount Parchment. The history
-
of our country's struggle for independence
-
was the story of a battle between the forces
-
of socio-economic exploitation and the
-
masses of deprived people of varying
-
degrees and the Constitution sets the new
-
sights of the nation.....Once we grasp the
-
dharma of the Constitution, the new
-
orientation of the karma of adjudication
-
becomes clear. Our founding fathers, aware
-
of our social realities, forged our fighting
-
faith and integrating justice in its social,
-
economic and political aspects. While
-
contemplating the meaning of the Articles of
-
the Organic Law, the Supreme Court shall
-
not disown Social Justice."
-
-
-
121. Oliver Wendlle Holmes said: "the life of law has been
-
-
logical; it has been experience". It may be added that `the life of
-
-
law is not just logic or experience. The life of law is renewable
-
-
based on experience and logic, which adapted law to the new
-
-
social realty'. Recognizing this fact, the aforesaid provisions of the
-
-
Constitution are required to be given new and dynamic meaning
-
-
with the inclusion of rights of TGs as well. In this process, the first
-
-
and foremost right is to recognize TGs as `third gender' in law as
-
-
well. This is a recognition of their right of equality enshrined in
-
104
-
-
-
Art.14 as well as their human right to life with dignity, which is the
-
-
mandate of the Art.21 of the Constitution. This interpretation is in
-
-
consonance with new social needs. By doing so, this Court is only
-
-
bridging the gap between the law and life and that is the primary
-
-
role of the Court in a democracy. It only amounts to giving
-
-
purposive interpretation to the aforesaid provisions of the
-
-
Constitution so that it can adapt to the changes in realty. Law
-
-
without purpose has no raison d'etre. The purpose of law is the
-
-
evolution of a happy society. As Justice Iyer has aptly put:
-
-
-
"The purpose of law is the
-
establishment of the welfare of society
-
"and a society whose members enjoy
-
welfare and happiness may be
-
described as a just society. It is a
-
negation of justice to say that some
-
members, some groups, some
-
minorities, some individuals do not have
-
welfare: on the other hand they suffer
-
from ill-fare. So it is axiomatic that law, if
-
it is to fulfil itself, must produce a
-
contented, dynamic society which is at
-
once meting out justice to its members."
-
-
-
122. It is now very well recognized that the Constitution is a living
-
-
character; its interpretation must be dynamic. It must be
-
-
understood in a way that intricate and advances modern realty.
-
-
The judiciary is the guardian of the Constitution and by ensuring to
-
105
-
-
-
grant legitimate right that is due to TGs, we are simply protecting
-
-
the Constitution and the democracy inasmuch as judicial protection
-
-
and democracy in general and of human rights in particular is a
-
-
characteristic of our vibrant democracy.
-
-
-
123. As we have pointed out above, our Constitution inheres
-
-
liberal and substantive democracy with rule of law as an important
-
-
and fundamental pillar. It has its own internal morality based on
-
-
dignity and equality of all human beings. Rule of law demands
-
-
protection of individual human rights. Such rights are to be
-
-
guaranteed to each and every human being. These TGs, even
-
-
though insignificant in numbers, are still human beings and
-
-
therefore they have every right to enjoy their human rights.
-
-
-
124. In National Human Rights Commission vs. State of
-
-
Arunachal Pradesh (AIR 1996 SC 1234), This Court observed:
-
-
"We are a country governed by the
-
Rule of Law. Our Constitution confers
-
certain rights on every human being and
-
certain other rights on citizens. Every
-
person is entitled to equality before the law
-
and equal protection of the laws."
-
-
-
125. The rule of law is not merely public order. The rule of law is
-
-
social justice based on public order. The law exists to ensure
-
106
-
-
-
proper social life. Social life, however, is not a goal in itself but a
-
-
means to allow the individual to life in dignity and development
-
-
himself. The human being and human rights underlie this
-
-
substantive perception of the rule of law, with a proper balance
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-
among the different rights and between human rights and the
-
-
proper needs of society. The substantive rule of law "is the rule of
-
-
proper law, which balances the needs of society and the
-
-
individual." This is the rule of law that strikes a balance between
-
-
society's need for political independence, social equality, economic
-
-
development, and internal order, on the one hand, and the needs
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-
of the individual, his personal liberty, and his human dignity on the
-
-
other. It is the duty of the Court to protect this rich concept of the
-
-
rule of law.
-
-
-
126. By recognizing TGs as third gender, this 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
-
-
TGs 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
-
107
-
-
-
are long enough to bring within its reach and embrace this right of
-
-
recognition to the TGs which legitimately belongs to them.
-
-
-
127. Aristotle opined that treating all equal things equal and all
-
-
unequal things unequal amounts to justice. Kant was of the view
-
-
that at the basis of all conceptions of justice, no matter which
-
-
culture or religion has inspired them, lies the golden rule that you
-
-
should treat others as you would want everybody to treat
-
-
everybody else, including yourself. When Locke conceived of
-
-
individual liberties, the individuals he had in mind were
-
-
independently rich males. Similarly, Kant thought of economically
-
-
self-sufficient males as the only possible citizens of a liberal
-
-
democratic state. These theories may not be relevant in today's
-
-
context as it is perceived that the bias of their perspective is all too
-
-
obvious to us. In post-traditional liberal democratic theories of
-
-
justice, the background assumption is that humans have equal
-
-
value and should, therefore, be treated as equal, as well as by
-
-
equal laws. This can be described as `Reflective Equilibrium'. The
-
-
method of Reflective Equilibrium was first introduced by Nelson
-
-
Goodman in `Fact, Fiction and Forecast' (1955). However, it is
-
-
John Rawls who elaborated this method of Reflective Equilibrium
-
-
by introducing the conception of `Justice as Fairness'. In his
-
108
-
-
-
`Theory of Justice', Rawls has proposed a model of just institutions
-
-
for democratic societies. Herein he draws on certain pre-
-
-
theoretical elementary moral beliefs (`considered judgments'),
-
-
which he assumes most members of democratic societies would
-
-
accept. "[Justice as fairness [....] tries to draw solely upon basic
-
-
intuitive ideas that are embedded in the political institutions of a
-
-
constitutional democratic regime and the public traditions of their
-
-
interpretations. Justice as fairness is a political conception in part
-
-
because it starts from within a certain political tradition. Based on
-
-
this preliminary understanding of just institutions in a democratic
-
-
society, Rawls aims at a set of universalistic rules with the help of
-
-
which the justice of present formal and informal institutions can be
-
-
assessed. The ensuing conception of justice is called `justice as
-
-
fairness'. When we combine Rawls's notion of Justice as
-
-
Fairness with the notions of Distributive Justice, to which Noble
-
-
Laureate Prof. Amartya Sen has also subscribed, we get
-
-
jurisprudential basis for doing justice to the Vulnerable Groups
-
-
which definitely include TGs. Once it is accepted that the TGs are
-
-
also part of vulnerable groups and marginalized section of the
-
-
society, we are only bringing them within the fold of aforesaid
-
-
rights recognized in respect of other classes falling in the
-
109
-
-
-
marginalized group. This is the minimum riposte in an attempt to
-
-
assuage the insult and injury suffered by them so far as to
-
-
pave way for fast tracking the realization of their human rights.
-
-
-
128. The aforesaid, thus, are my reasons for treating TGs as
-
-
`third gender' for the purposes of safeguarding and enforcing
-
-
appropriately their rights guaranteed under the Constitution. These
-
-
are my reasons in support of our Constitution to the two issues in
-
-
these petitions.
-
-
-
-
.........................J.
-
(A.K.Sikri)
-
-
-
-
129. We, therefore, declare:
-
-
(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
-
110
-
-
-
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.
-
111
-
-
-
130. We are informed an Expert Committee has already been
-
-
constituted to make an in-depth study of the problems faced by the
-
-
Transgender community and suggest measures that can be taken
-
-
by the Government to ameliorate their problems and to submit its
-
-
report with recommendations within three months of its constitution.
-
-
Let the recommendations be examined based on the legal
-
-
declaration made in this Judgment and implemented within six
-
-
months.
-
-
-
131. Writ Petitions are, accordingly, allowed, as above.
-
-
-
-
-
................................J.
-
(K.S. Radhakrishnan)
-
-
-
-
...............................J.
-
(A.K. Sikri)
-
New Delhi,
-
April 15, 2014.
-
112
-
-
ITEM NO.1A (For Judgment) COURT NO.7 SECTION PIL
-
-
S U P R E M E C O U R T O F I N D I A
-
RECORD OF PROCEEDINGS
-
-
WRIT PETITION (CIVIL) NO(s). 400 OF 2012
-
-
NATIONAL LEGAL SER. AUTH. Petitioner(s)
-
-
VERSUS
-
-
UNION OF INDIA & ORS. Respondent(s)
-
-
WITH W.P(C) NO. 604 of 2013
-
-
-
Date: 15/04/2014 These matters were called on for
-
pronouncement of judgment.
-
-
For Petitioner(s) Ms. Anitha Shenoy,AOR
-
-
Ms. Manju Jetley,AOR
-
-
For Respondent(s) Mr. V.N. Raghupathy,AOR
-
-
Mr. Suryanarayana Singh,AAG
-
Mr. Aviral Saxena,Adv.
-
Ms. Pragati Neekhra,AOR
-
-
Dr. Manish Singhvi,Adv.
-
Mr. Irshad Ahmad,Adv.
-
-
Mr. V.G. Pragasam,AOR
-
-
Mr. Manjit Singh,AAG, Haryana
-
Mrs. Vivekta Singh,Adv.
-
Mrs. Nupur Chaudhary,Adv.
-
Mr. Tarjit Singh,Adv.
-
Mr. Kamal Mohan Gupta,AOR
-
-
Mr. D.S. Mahra,AOR
-
Mr. Gopal Singh,AOR
-
Mr. Sudarshan Singh Rawat,AOR
-
Mr. P.V. Yogeswaran,AOR
-
Mr. Anip Sachthey,AOR
-
Mr. Aniruddha P. Mayee,AOR
-
Mr. Sunil Fernandes,AOR
-
Mr. Abhishek Atrey,AOR
-
Mr. Jogy Scaria,AOR
-
113
-
-
-
Mr. Mishra Saurabh,AOR
-
Ms. Vanshaja Shukla,Adv.
-
-
M/s. Corporate Law Group,AOR
-
Mrs. Kirti Renu Mishra,AOR
-
M/s. Arputham,Aruna & Co.,AOR
-
Mr. Anil Shrivastav,AOR
-
Ms. Asha Gopalan Nair,AOR
-
Mr. B. Balaji,AOR
-
-
Mr. Sapam Biswajit Meitei,Adv.
-
Mr. Ashok Kumar Singh,AOR
-
-
Mrs. K. Enatoli Sema,Adv.
-
Mr. Amit Kumar Singh,Adv.
-
-
Mr. Balasubramanian,Adv.
-
Mr. K.V. Jagdishvaran,Adv.
-
Ms. G. Indira,AOR
-
-
Ms. Hemantika Wahi,AOR
-
-
Mr. Mihir,Adv.
-
Ms. Tripti Tandon,Adv.
-
Mr. Amritananda Ch.,Adv.
-
Mr. Mukesh Kumar,Adv.
-
Ms. Filza Moonis,Adv.
-
-
Ms. A. Subhashini,Adv.
-
-
-
Hon'ble Mr. Justice K.S. Radhakrishnan
-
and Hon'ble Mr. Justice A.K. Sikri pronounced
-
concurring views in the judgment of the Bench
-
comprising their Lordships.
-
The writ petitions are allowed in
-
terms of the signed judgment.
-
-
-
(Narendra Prasad) (Renuka Sadana)
-
Court Master Court Master
-
-
(Signed "Reportable" judgment is placed on the file)
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