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TMI Blog2014 (4) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idelined and treated as untouchables, forgetting the fact that the moral failure lies in the society s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change. 2. We are, in this case, concerned with the grievances of the members of Transgender Community (for short TG community ) who 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. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection. 3. The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalized sections of the society, has come forward to advocate their cause, by filing Writ Petition No. 400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, has also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in respect of Kinnar community, a TG community. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity and referred to the Yogyakarta Principles and pointed out that those principles have been recognized by various countries around the world. Reference was also made to few legislations giving recognition to the trans-sexual persons in other countries. Learned senior counsel also submitted that non-recognition of gender identity of the transgender community violates the fundamental rights guaranteed to them, who are citizens of this country. 7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A. No. 2 of 2013, submitted that transgender persons have to be declared as a socially and educationally backward classes of citizens and must be accorded all benefits available to that class of persons, which are being extended to male and female genders. Learned counsel also submitted that the right to choose one s gender identity is integral to the right to lead a life with dignity, which is undoubtedly guaranteed by Article 21 of the Constitution of India. Learned counsel, therefore, submitted that, subject to such rules/regulations/protocols, transgender persons may be afforded the right of choice to determine whether to opt for male, female or transgender classification. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joined the Hijra community in Mumbai as she identified with the other hijras and for the first time in her life, she felt at home. That being a hijra, the Applicant has faced serious discrimination throughout her life because of her gender identity. It has been clear to the Applicant that the complete non-recognition of the identity of hijras/transgender persons by the State has resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution of India . Siddarth Narrain, eunuch, highlights Narrain s feeling, as follows: Ever since I can remember, I have always identified myself as a woman. I lived in Namakkal, a small town in Tamil Nadu. When I was in the 10th standard I realized that the only way for me to be comfortable was to join the hijra community. It was then that my family found out that I frequently met hijras who lived in the city. One day, when my father was away, my brother, encouraged by my mother, started beating me with a cricket bat. I locked myself in a room to escape from the beatings. My mother and brother then tried to break into the room to beat me up further. Some of my relatives intervened and brought me out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clothing of opposite gender, i.e transvestites. Resultantly, the term transgender , in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female. HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA: 12. TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts. The Concept of tritiya prakrti or napunsaka has also been an integral part of vedic and puranic literatures. The word napunsaka has been used to denote absence of procreative capability. 13. Lord Rama, in the epic Ramayana, was leaving for the forest upon being banished from the kingdom for 14 years, turns around to his followers and asks all the men and women to return to the city. Among his followers, the hijras alone do not feel bound by this direction and decide to stay with him. Impressed with their devotion, Rama s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said offences. Under the Act, the act of keeping a boy under 16 years in the charge of a registered eunuch was made an offence punishable with imprisonment up to two years or fine and the Act also denuded the registered eunuchs of their civil rights by prohibiting them from acting as guardians to minors, from making a gift deed or a will, or from adopting a son. Act has, however, been repealed in August 1949. 17. Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of Criminal Tribles Act that criminalized all penile- non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices. Reference may be made to the judgment of the Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6 All 204, wherein a transgender person was arrested and prosecuted under Section 377 on the suspicion that he was a habitual sodomite and was later acquitted on appeal. In that case, while acquitting him, the Sessions Judge stated as follows: This case relates to a person named Khairati, over whom the police seem to have exercised som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gender characteristics of the sex which conform to their perception of gender, leading to legal and social complications since official record of their gender at birth is found to be at variance with the assumed gender identity. Gender identity refers to each person s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual s self-identification as a man, woman, transgender or other identified category. 20. Sexual orientation refers to an individual s enduring physical, romantic and/or emotional attraction to another person. Sexual orientation includes transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission, which also includes homo-sexuals, bysexuals, heterosexuals, asexual etc. Gender identity and sexual orientation, as already indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows :- 1. THE RIGHT TO THE UNIVERSAL ENJOYMENT OF HUMAN RIGHTS All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights. States shall: A. Embody the principles of the universality, interrelatedness, interdependence and indivisibility of all human rights in their national constitutions or other appropriate legislation and ensure the practical realisation of the universal enjoyment of all human rights; B. Amend any legislation, including criminal law, to ensure its consistency with the universal enjoyment of all human rights; C. Undertake programmes of education and awareness to promote and enhance the full enjoyment of all human rights by all persons, irrespective of sexual orientation or gender identity; 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 entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual 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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joyment of freedom of opinion and expression, while respecting the rights 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Ze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 placed on Articles 6, 8, 13 and 14 of the Convention for Protection of Human Rights and Fundamental Freedo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates of America some of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Welfar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 45. Transgender people, as a whole, face multiple forms of oppression in this country. Discrimination is so large and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. 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 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 ende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational 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 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral public. 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 atti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ople 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 obligations are concerned. The Government functionaries both at federal and provincial levels are bound to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. .. ..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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be treated with that sex thereafter, i.e. either a male or a female. However, as explained in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uctions 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ihar, 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). (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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 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 util ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 a complete girl, Sunaina (name changed) narrates the benefit which ensued be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression transgender. 108. It is to be emphasized that Transgender in India have assumed distinct and separate class/category which is not 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical 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 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 violenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government, as creatures of the Constitution, must remember this promise in their fundamental role and forget it at their peril, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontented, 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 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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