Supreme Court Lawyers Delhi India

.Third Gender in India land mark judgement by Supreme Court of India.

HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:

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 sanctions them the
power to confer blessings on people on auspicious occasions like childbirth
and marriage, and also at inaugural functions which, it is believed set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings.

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:
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.

ARTICLE 14 AND TRANSGENDERS

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 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.

ARTICLES 15 & 16 AND TRANSGENDERS

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.

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.
The requirement of taking affirmative action for the advancement of
any socially and educationally backward classes of citizens is also
provided in this Article.

ARTICLE 19(1)(a) AND TRANSGENDERS

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 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.

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.”

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.400 OF 2012
National Legal Services Authority … Petitioner
Versus
Union of India and others … Respondents
WITH
WRIT PETITION (CIVIL) NO.604 OF 2013
J U D G M E N T
K.S. Radhakrishnan, J.
1. Seldom, our society realizes or cares to realize the trauma, agony
and pain which the members of Transgender community undergo, nor
appreciates the innate feelings of the members of the Transgender
community, especially of those whose mind and body disown their biological
sex. Our society often ridicules and abuses the Transgender community and
in public places like railway stations, bus stands, schools, workplaces,
malls, theatres, hospitals, they are sidelined 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. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got impleaded
so as to effectively put across the cause of the members of the transgender
community and Tripathy’s life experiences also for recognition of their
identity as a third gender, over and above male and female. Tripathy says
that non-recognition of the identity of Hijras, a TG community, as a third
gender, denies them the right of equality before the law and equal
protection of law guaranteed under Article 14 of the Constitution and
violates the rights guaranteed to them under Article 21 of the Constitution
of India.

5. Shri Raju Ramachandran, learned senior counsel appearing for the
petitioner – the National Legal Services Authority, highlighted the
traumatic experiences faced by the members of the TG community and
submitted that every person of that community has a legal right to decide
their sex orientation and to espouse and determine their identity. Learned
senior counsel has submitted that since the TGs are neither treated as male
or female, nor given the status of a third gender, they are being deprived
of many of the rights and privileges which other persons enjoy as citizens
of this country. TGs are deprived of social and cultural participation and
hence restricted access to education, health care and public places which
deprives them of the Constitutional guarantee of equality before law and
equal protection of laws. Further, it was also pointed out that the
community also faces discrimination to contest election, right to vote,
employment, to get licences etc. and, in effect, treated as an outcast and
untouchable. Learned senior counsel also submitted that the State cannot
discriminate them on the ground of gender, violating Articles 14 to 16 and
21 of the Constitution of India.

6. Shri Anand Grover, learned senior counsel appearing for the
Intervener, traced the historical background of the third gender identity
in India and the position accorded to them in the Hindu Mythology, Vedic
and Puranic literatures, and the prominent role played by them in the royal
courts of the Islamic world etc. Reference was also made to the repealed
Criminal Tribes Act, 1871 and explained the inhuman manner by which they
were treated at the time of the British Colonial rule. Learned senior
counsel also submitted that various International Forums and U.N. Bodies
have recognized their gender identity 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.

8. Shri Sanjeev Bhatnagar, learned counsel appearing for the petitioner
in Writ Petition No.604 of 2013, highlighted the cause of the Kinnar
community and submitted that they are the most deprived group of
transgenders and calls for constitutional as well as legal protection for
their identity and for other socio-economic benefits, which are otherwise
extended to the members of the male and female genders in the community.

9. Shri Rakesh K. Khanna, learned Additional Solicitor General,
appearing for the Union of India, submitted that the problems highlighted
by the transgender community is a sensitive human issue, which calls for
serious attention. Learned ASG pointed out that, under the aegis of the
Ministry of Social Justice and Empowerment (for short “MOSJE”), a
Committee, called “Expert Committee on Issues relating to Transgender”,
has been constituted to conduct an in-depth study of the problems relating
to transgender persons to make appropriate recommendations to MOSJE. Shri
Khanna also submitted that due representation would also be given to the
applicants, appeared before this Court in the Committee, so that their
views also could be heard.

10. We also heard learned counsel appearing for various States and Union
Territories who have explained the steps they have taken to improve the
conditions and status of the members of TG community in their respective
States and Union Territories. Laxmi Narayan Tripathy, a Hijra, through a
petition supported by an affidavit, highlighted the trauma undergone by
Tripathy from Tripathy’s birth. Rather than explaining the same by us, it
would be appropriate to quote in Tripathy’s own words:
“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. Due to her being different, she was isolated and
had no one to talk to or express her feelings while she was coming to
terms with her identity. She was constantly abused by everyone as a
‘chakka’ and ‘hijra’. Though she felt that there was no place for
her in society, she did not succumb to the prejudice. She started to
dress and appear in public in women’s clothing in her late teens but
she did not identify as a woman. Later, she 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 the room. I related my ordeal to an uncle of
mine who gave me Rs.50 and asked me to go home. Instead, I took the
money and went to live with a group of hijras in Erode.”

Sachin, a TG, expressed his experiences as follows:
“My name is Sachin and I am 23 years old. As a child I always
enjoyed putting make-up like ‘vibhuti’ or ‘kum kum’ and my parents
always saw me as a girl. I am male but I only have female feelings.
I used to help my mother in all the housework like cooking, washing
and cleaning. Over the years, I started assuming more of the domestic
responsibilities at home. The neighbours starting teasing me. They
would call out to me and ask: ‘Why don’t you go out and work like a
man?’ or ‘Why are you staying at home like a girl?’ But I liked
being a girl. I felt shy about going out and working. Relatives
would also mock and scold me on this score. Every day I would go out
of the house to bring water. And as I walked back with the water I
would always be teased. I felt very ashamed. I even felt suicidal.
How could I live like that? But my parents never protested. They
were helpless.”
We have been told and informed of similar life experiences faced by
various others who belong to the TG community.

11. Transgender is generally described as an umbrella term for
persons whose gender identity, gender expression or behavior does not
conform to their biological sex. TG may also takes in persons who do not
identify with their sex assigned at birth, which include Hijras/Eunuchs
who, in this writ petition, describe themselves as “third gender” and they
do not identify as either male or female. Hijras are not men by virtue of
anatomy appearance and psychologically, they are also not women, though
they are like women with no female reproduction organ and no menstruation.
Since Hijras do not have reproduction capacities as either men or women,
they are neither men nor women and claim to be an institutional “third
gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-
emasculated men (not castrated/akva/akka) and inter-sexed persons
(hermaphrodites). TG also includes persons who intend to undergo Sex Re-
Assignment Surgery (SRS) or have undergone SRS to align their biological
sex with their gender identity in order to become male or female. They are
generally called transsexual persons. Further, there are persons who like
to cross-dress in 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 sanctions them the
power to confer blessings on people on auspicious occasions like childbirth
and marriage, and also at inaugural functions which, it is believed set the
stage for the custom of badhai in which hijras sing, dance and confer
blessings.

14. Aravan, the son of Arjuna and Nagakanya in Mahabharata, offers to be
sacrificed to Goddess Kali to ensure the victory of the Pandavas in the
Kurukshetra war, the only condition that he made was to spend the last
night of his life in matrimony. Since no woman was willing to marry one
who was doomed to be killed, Krishna assumes the form of a beautiful woman
called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan
their progenitor and call themselves Aravanis.
15. Jain Texts also make a detailed reference to TG which mentions the
concept of ‘psychological sex’. Hijras also played a prominent role in the
royal courts of the Islamic world, especially in the Ottaman empires and
the Mughal rule in the Medieval India. A detailed analysis of the
historical background of the same finds a place in the book of Gayatri
Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” –
Yoda Press (2006).
16. We notice that even though historically, Hijras/transgender persons
had played a prominent role, with the onset of colonial rule from the 18th
century onwards, the situation had changed drastically. During the
British rule, a legislation was enacted to supervise the deeds of Hijras/TG
community, called the Criminal Tribes Act, 1871, which deemed the entire
community of Hijras persons as innately ‘criminal’ and ‘addicted to the
systematic commission of non-bailable offences’. The Act provided for
the registration, surveillance and control of certain criminal tribes and
eunuchs and had penalized eunuchs, who were registered, and appeared to be
dressed or ornamented like a woman, in a public street or place, as well as
those who danced or played music in a public place. Such persons also
could be arrested without warrant and sentenced to imprisonment up to two
years or fine or both. Under the Act, the local government had to
register the names and residence of all eunuchs residing in that area as
well as of their properties, who were reasonably suspected of kidnapping or
castrating children, or of committing offences under Section 377 of the
IPC, or of abetting the commission of any of the 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 some sort of supervision, whether strictly
regular or not, as a eunuch. The man is not a eunuch in the literal
sense, but he was called for by the police when on a visit to his
village, and was found singing dressed as a woman among the women of a
certain family. Having been subjected to examination by the Civil
Surgeon (and a subordinate medical man), he is shown to have the
characteristic mark of a habitual catamite – the distortion of the
orifice of the anus into the shape of a trumpet and also to be
affected with syphilis in the same region in a manner which distinctly
points to unnatural intercourse within the last few months.”
18. Even though, he was acquitted on appeal, this case would demonstrate
that Section 377, though associated with specific sexual acts, highlighted
certain identities, including Hijras and was used as an instrument of
harassment and physical abuse against Hijras and transgender persons. A
Division Bench of this Court in Suresh Kumar Koushal and another v. Naz
Foundation and others [(2014) 1 SCC 1] has already spoken on the
constitutionality of Section 377 IPC and, hence, we express no opinion on
it since we are in these cases concerned with an altogether different issue
pertaining to the constitutional and other legal rights of the transgender
community and their gender identity and sexual orientation.

GENDER IDENTITY AND SEXUAL ORIENTATION

19. Gender identity is one of the most-fundamental aspects of life which
refers to a person’s intrinsic sense of being male, female or transgender
or transsexual person. A person’s sex is usually assigned at birth, but a
relatively small group of persons may born with bodies which incorporate
both or certain aspects of both male and female physiology. At times,
genital anatomy problems may arise in certain persons, their innate
perception of themselves, is not in conformity with the sex assigned to
them at birth and may include pre and post-operative transsexual persons
and also persons who do not choose to undergo or do not have access to
operation and also include persons who cannot undergo successful operation.
Countries, all over the world, including India, are grappled with the
question of attribution of gender to persons who believe that they belong
to the opposite sex. Few persons undertake surgical and other procedures
to alter their bodies and physical appearance to acquire 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, are different concepts. 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
and no one shall be forced to undergo medical procedures, including SRS,
sterilization or hormonal therapy, as a requirement for legal recognition
of their gender identity.

UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES – ON GENDER IDENTITY AND
SEXUAL ORIENTATION
21. United Nations has been instrumental in advocating the protection and
promotion of rights of sexual minorities, including transgender persons.
Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16
of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
recognize that every human being has the inherent right to live and this
right shall be protected by law and that no one shall be arbitrarily denied
of that right. Everyone shall have a right to recognition, everywhere as a
person before the law. Article 17 of the ICCPR states that no one shall
be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation and that everyone has the right to protection of law against
such interference or attacks. International Commission of Jurists and the
International Service for Human Rights on behalf of a coalition of human
rights organizations, took a project to develop a set of international
legal principles on the application of international law to human rights
violations based on sexual orientation and sexual identity to bring greater
clarity and coherence to State’s human rights obligations. A
distinguished group of human rights experts has drafted, developed,
discussed and reformed the principles in a meeting held at Gadjah Mada
University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is
unanimously adopted the Yogyakarta Principles on the application of
International Human Rights Law in relation to Sexual Orientation and Gender
Identity. Yogyakarta Principles address a broad range of human rights
standards and their application to issues of sexual orientation gender
identity. Reference to few Yogyakarta Principles would be useful.

YOGYAKARTA PRINCIPLES:
22. Principle 1 which deals with the right to the universal enjoyment of
human rights, reads as 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 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;
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 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.
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 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
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 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 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 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.”

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
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 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 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
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.

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 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.
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 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, 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
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
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
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 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;
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 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.

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 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 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:-
“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 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.
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 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 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 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 (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 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 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 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.”

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
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 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 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 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. 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.
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 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 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 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 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, 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

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 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.
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. 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
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” 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, 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 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 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 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 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 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 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 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 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 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 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. 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).
(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).
(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 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 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 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”.

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 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.
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 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 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 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 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
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 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 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 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 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 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 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 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 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 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 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 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
‘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 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 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.
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.

Wednesday, 16 April 2014

Supreme Court recognizes transgenders as ‘third gender in India.