Judgement Briefs

Constitutional Law

National Legal Services Authority v. Union of India

AIR 2014 SC 1863; (2014) 5 SCC 438

Citation
AIR 2014 SC 1863; (2014) 5 SCC 438
Court
Supreme Court of India
Date
15 April 2014
Bench
K.S. Radhakrishnan; A.K. Sikri

Facts

  • The National Legal Services Authority filed a petition under Article 32 seeking constitutional recognition and protection for transgender persons.
  • Members of the hijra, kinnar and broader transgender communities were frequently denied recognition as either:
  • male;
  • female; or
  • a legally recognised third gender.
  • Official documents, educational institutions, hospitals and welfare programmes often recognised only two genders.
  • Transgender persons faced:
  • family rejection;
  • violence;
  • exclusion from schools and employment;
  • lack of healthcare;
  • denial of housing;
  • police harassment; and
  • inability to obtain identity documents.
  • Laxmi Narayan Tripathy and other representatives placed personal and community experiences before the Court.
  • The petitioners argued that legal gender identity was essential to equality, dignity and full participation in society.
  • They also argued that every person should have the right to identify their gender without being compelled to undergo surgery or other medical procedures.

Issue

  • Whether the Constitution recognises a third gender.
  • Whether a person has the right to determine their own gender identity.
  • Whether discrimination against transgender persons violates Articles 14, 15, 16, 19 and 21.
  • Whether the State has positive duties to provide reservation, healthcare and welfare protections.

Rule

  • Article 14 protects “any person” and is not confined to men and women.
  • The term “sex” in Articles 15 and 16 includes discrimination based upon:
  • gender identity;
  • gender expression; and
  • non-conformity with gender stereotypes.
  • Article 19(1)(a) protects expression of one’s self-identified gender through:
  • clothing;
  • appearance;
  • behaviour; and
  • personal presentation.
  • Article 21 protects:
  • dignity;
  • privacy;
  • autonomy;
  • bodily integrity; and
  • personal identity.
  • Gender identity is determined primarily through an individual’s own experience and cannot depend entirely upon biological characteristics or compulsory medical procedures.
  • Equality may require positive State measures for historically excluded communities.

Application

  • The Court rejected the assumption that all persons must be legally classified only as male or female.
  • Indian history and culture had long recognised communities whose identities did not fall within a strict gender binary.
  • Colonial and later legal systems had contributed to their marginalisation.
  • Denying legal recognition prevented transgender persons from exercising ordinary citizenship rights.
  • They could not properly obtain:
  • passports;
  • ration cards;
  • educational records;
  • employment documents; or
  • access to welfare schemes.
  • Article 14’s reference to “person” necessarily included transgender persons.
  • The Court also held that discrimination on the ground of sex includes discrimination based upon a person’s failure to conform to the gender assigned at birth.
  • Compelling a transgender person to present as a gender they did not identify with violated expression and dignity.
  • The State could not insist upon sex-reassignment surgery as a condition for recognising identity.
  • The Court distinguished gender identity from sexual orientation, while confirming that both deserve constitutional protection.
  • It directed governments to treat transgender persons as socially and educationally backward for affirmative-action purposes.
  • It also required measures concerning:
  • healthcare;
  • separate sanitation facilities;
  • HIV prevention;
  • public awareness;
  • education;
  • employment; and
  • protection from social stigma.
  • Justice A.K. Sikri wrote a concurring opinion emphasising dignity and the need for immediate governmental action.

Conclusion

  • The Supreme Court legally recognised hijras and transgender persons as a third gender.
  • It also recognised every person’s right to identify as:
  • male;
  • female; or
  • third gender.
  • Self-identified gender was protected under Articles 14, 15, 16, 19 and 21.
  • Governments were directed to provide reservations and appropriate social-welfare measures.