Case Brief: NLSA v. Union Of India
Court: Supreme Court of India
Bench: Justice S. Panicker Radhakrishnan, Justice A.K. Sikri
Theme: Right to Transgenders for legally identifying them as the third gender.
Subject: Constitutional law
The case deals with transgender people and all those people who do not conform to either male or female genders. Their rights are often violated which in turn causes serious trauma and difficulties in their lives. Most of the times they suffer mental or sexual abuse in public spaces like shopping malls, railway stations, hospitals, education centres, workplaces and so on. They are not readily accepted, rather get ridiculed and treated like untouchables, in the society. In order to throw light upon these various grievances and concerns of the Transgender Community, The National Legal Services Authority filed a writ petition to identify this community, which includes Kinnars, Hijras, legally as the “third gender”. The Constitution of India lacked legal provisions for them and so they were not able to protect their rights even when their fundamental rights are supposed to be protected under Articles 14, 15, 16 and 21. Laxmi Narayan Tripathy, a member of the Hijra community, shares personal life incidents where Tripathy got prosecuted in the past for putting forth the same issues for not being legally identified as the third gender and that this community has been denied equality and equal protection by law. The following words give an insight to Tripathy’s sufferings- “That the Applicant has born as a male. Growing up as a child, she felt different from the boys of her age and was feminine in her ways. On account of her femininity, from an early age, she faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family.” The community also gets discriminated by being outcasted in cultural and social events, during elections which include the “right to vote”, contesting for elections, getting licences and employment.
1. Is the non-recognition of Transgender as a gender identity a violation of their Fundamental Rights?
2. Whether the State should make any provisions for the Transgender?
3. Whether the law provided has given the TransgenderCommunity the freedom to choose their gender?
The petitioners argued that only binary genders of male and female were recognized under Indian law and the lack of legal measures to cater to the needs of the represented groups contradicted several constitutional rights including the rights to a dignified life, equality before the law, non-discrimination and freedom of expression.
The Petitioners further argued how the rights of the third gender were being violated in the case, taking the support of Fundamental Rights provided by the Constitution.They argued that according to Article 14 (right to equality) of the Indian Constitution, no person shall be discriminated based on sex, religion, etc. The State shall not deny to any person equality before the law within the territory of India. This right is not restricted to male and female which means that any third gender should be protected by it equally.
It was further argued that Article 19 which guarantees citizens freedom of speech, form associations or unions, to meet peacefully without any arms, etc. is also being violated over here and is perhaps one of the most important rights which is being violated. The violation occurs when the transgenderpeople are not free to express themselves as it is objected by the society, sometimes becoming a threat to their lives. This right includes the right to expression of one’s self-identified gender. This expression may be done through dress, words, action or behaviour or any other manner.
And finally, Article 21which is the most extensive right guarantees citizensthe right to personal life and liberty i.e. no person shall be deprived of his life and personal liberty except by law. Transgenders have every right to live their life in a dignified and respectful way. It also includes right to live with human dignity. Expression of oneself with respect to a gender which is self-recognized is an important part of Article 21.
Along with the Fundamental Rights, the petitioners also argued that there were many international laws as well which were being violated:
International Covenant on Civil and Political Rights (ICCPR)
Universal Declaration of Human Rights
Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 6 (right to privacy), 4 (right to life), 9 (right to treatment with humanity while in detention), 6 (right to privacy), 18 (protection from medical abuses) Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International Conventions) 
Given these reasons, transgenders live a tough life andtheir gender identity would make things easier for them. It would be easier for them to fill forms and they won’t have any difficulty in choosing between sexes as they would have a separate gender in the form. They would not have to undergo any operation to recognize themselves under a particular sex. They would get to enjoy all the rights which the male and female citizens of the country enjoy.
The defendants, on the other hand, argued by saying that the State Government had set up an “Expert Committee on Issues Relating to Transgender” and said that the petitioner’s views would be sought as part of the process. Various states and union territories have also argued that they have taken significant steps to improve the conditions and status of the transgender community.
The court gave its verdict in favour of the petitioners. The decision said that transgender people have the right to self-identification of their gender and so they must have the legal provision of identifying themselves as males, females or the third gender. Eunuchs, Hijras and all of those who do not conform to the binary gender will be legally identified as the “third gender” and their fundamental rights will be safeguarded as per the provisions in Part III of the Indian Constitution. The court also directed the Union and State governments to take necessary measures regarding the various social, health and educational issues faced by the transgender people and providing reservation to them under the category of “socially and educationally backward classes of citizens”.
The court said that it recognises gender identity and the sexual orientation of an individual to be a major aspect of his/her personality and dignity. Therefore, they should not be forced into medical procedures such as sterilization, sex reassignment surgery (SRS) and so on in order to gain recognition under law. Article 14 of our Indian Constitution provides equality and equal protection before the law to all “persons”, where a person might not necessarily be a male or a female. The term “transgender” has a wide scope as it covers all those people who do not fit into the binary gender system (Hijras, Kothis, Eunuchs, Jogtas, Shiv-Shakthis). Article 15, as well as Article 16, of our Constitution protects the citizens of India from being discriminated based on certain grounds, one of them being ‘sex’. Article 21 provides the right to live with dignity and giving a person the choice of identifying his/her own gender comes under the ambit of this article. In the court’s words, “recognition of one’s gender identity lies at the heart of the fundamental right to dignity”.Article 19(1) (a) provides the right to free speech and expression to all the citizens and so expressingyour own gender through any kind of clothing, language or demeanour is not against the law.
The judgement in this case stands till date as the law.
The Supreme Court made history on 15th April, 2014 by passing this judgement. It paved the way for the Transgender Community to enjoy equal rights and opportunities in India.
WP (Civil) No 400 of 2012  NLSA v. UOI, https://indiankanoon.org/doc/193543132/  Constitution of India NLSA v Union of India, https://www.scconline.com/  Constitution of India  NLSA v UOI, https://ipleaders.in/home NLSA v. UOI, WP (Civil) No 400 of 2012 NLSA v. UOI, WP (Civil) No 400 of 2012
Contributed by: Tavishi Singh and Sanya Rai (Students, Symbiosis Law School, Pune and Jindal Global Law School respectively)
The views of the author are personal only. (if any)