2014 (4) TMI 1047 - SC - Indian Laws

Application to seek a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India - Held that - 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 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. 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 undergone the process of the gender reassignment are protected under the Act. Social exclusion and discrimination on the ground of gender stating that one does not conform to the binary gender (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. 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. 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 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 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. 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, 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 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. Discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community - 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. - 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 - Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments - Several other directions were issued - Decided in favour of Petitioner.

Summary

Issues Involved:
1. Recognition of the third gender.
2. Legal recognition of gender identity.
3. Discrimination against transgender persons.
4. Social and educational backwardness of transgender persons.
5. Medical care and social welfare for transgender persons.
6. Public awareness and social inclusion.

Detailed Analysis:

1. Recognition of the Third Gender:
The court emphasized that the transgender community, including Hijras and Eunuchs, should be recognized as a distinct third gender. This recognition is essential for safeguarding their constitutional rights under Part III of the Constitution and various laws. The court declared, "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. Legal Recognition of Gender Identity:
The judgment highlighted the right of transgender persons to self-identify their gender. It stated that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. The court upheld that "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. Discrimination Against Transgender Persons:
The court noted the extreme discrimination faced by transgender persons in various spheres, including employment, education, healthcare, and public spaces. It was observed that "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." The court directed the Centre and State Governments to treat transgender persons as socially and educationally backward classes and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

4. Social and Educational Backwardness of Transgender Persons:
The court recognized the social and educational backwardness of transgender persons and directed the government to extend reservations and other affirmative actions to them. It stated, "We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments."

5. Medical Care and Social Welfare for Transgender Persons:
The judgment addressed the need for proper medical care and social welfare measures for transgender persons. It directed the government to provide separate public toilets and other facilities, operate separate HIV Sero-surveillance Centres, and take measures to provide medical care in hospitals. The court stated, "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."

6. Public Awareness and Social Inclusion:
The court emphasized the importance of creating public awareness to ensure social inclusion and respect for transgender persons. It directed the Centre and State Governments to take steps to create public awareness so that transgender persons will feel part of social life and not be treated as untouchables. The judgment stated, "Centre and 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."

Conclusion:
The Supreme Court's judgment is a landmark decision that recognizes the rights of transgender persons to self-identify their gender and be legally recognized as a third gender. It addresses the discrimination and social exclusion faced by transgender persons and directs the government to take affirmative actions, provide medical care, and create public awareness to ensure their inclusion and respect in society. The judgment is a significant step towards ensuring equality and dignity for transgender persons in India.