My Identity My Rights

‘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’.

Justice K.S. Radhakrishnan and Justice A. K. Sikri

Writ petition (civil) No.400 of 2012National Legal Services Authority vs.

Union of India

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Hon'ble Supreme Court of India

Protects Rights of Transgender Individuals

Social welfare measures:

Access to health:

To treat transgender people as socially and educationally backward classes (OBC) of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Also it has directed the government to frame various social welfare schemes for their betterment.

To take proper measures to provide medical care to transgender in the hospitals, including addressing their issues around sexual health.

§ GENDER is one's personal, social and/or legal status as man, woman or transgender. TRANSGENDER people are individuals whose gender differs from the gender that was assigned to them based on their biological sex.

§ As per the judgement of Hon'ble Supreme Court of India (April 2014), a transgender person assigned male at birth can have their gender recognised legally as woman or transgender, and one assigned female at birth can have their gender recognised legally as man or transgender.

§ A lawyer can help transgender persons in preparing a NAME and GENDER change affidavit. They can get in touch with a lawyer from their locality, preferably a lawyer associated with State-, District- or Taluk Legal Services Authority.

§ SAATHII, other civil society organisations and community-based initiatives have a continued focus on advocacy with respective state governments towards ensuring full and early implementation of the Supreme Court NALSA judgement. We appeal to all concerned individuals and organisations to unite in solidarity for transgender rights, and call on state governments to establish transgender welfare boards and/or strengthen existing ones.

KEY ISSUES TO REMEMBER

Hon'ble Supreme Court of India

Protects Rights of Transgender Individuals

T

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ransgender people in India, and globally, are extremely vulnerable to harassment,

discrimination, violence and sexual assault. Despite a pre-colonial heritage that recognized and celebrated gender diversity through sculptures in temples and mythology, transgender people in India, at present, face intolerance, stigma, discrimination and violence. Stigma, discrimination and violence stem from intolerance of lives that transgress binary gender norms and expression, and threaten the gendered power relations of the patriarchy. (

Articles 14, 19, and 21 of the Constitution of India collectively guarantee to all persons equality before law, ensure freedom of speech and expression to all citizens, and guarantee a life of dignity to all persons. Articles 15 (1), 15 (2), 16 (2) expressly prohibit discrimination on grounds of sex. Yet, transgender people continue to face human rights violation in families, educational institutions, workplaces and various other institutions.

Hon'ble Supreme Court of India's NALSA ruling (April 2014) is a pioneering judgement that shows the government ways to protect rights of transgender individuals.

Seeking directions from the Supreme Court to address denial and violations of rights faced by the transgender community, a writ petition (civil: No. 400 of 2012) was filed by National Legal Services Authority. A supporting intervention was filed the same year on behalf of hijra activist Laxmi Narayan Tripathi by the Lawyers Collective. In 2013, Poojya Mata Nasib Kaur Ji Women Welfare Society also filed a petition similar to NALSA. Issues raised included the grievances of the members of transgender community seeking a legal declaration of their gender identity other than the one assigned to them at birth. The petitioners appealed that non-recognition of the identity of transgender people is in violation of their fundamental rights as laid down in the Constitution of India.

In response to the petition, the Hon'ble Supreme Court of India delivered a landmark NALSA judgement on April 15, 2014. The Apex court recognized the need for granting full citizenship, regardless of gender assigned at birth, protecting rights and making provision of entitlements for transgender individuals.

Source: Report of the Expert Committee on the issues relating to transgender persons, Ministry of Social Justice and E m p o w e r m e n t , G o v e r n m e n t o f I n d i a

).

BACKGROUND TO THE JUDGEMENT

THE JUDGEMENT

The Apex court recognized that non-recognition of gender identity violates the following articles:

Equality before law does not restrict the word 'person' and its application Article 14:

only to male or female. It can cover transgender persons, who are, hence, entitled to legal protection of laws in all sphere of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Equality of opportunity in matters of public employment. In both the sections, the expression 'sex' is not limited to biological sex of male or female, but includes gender identity, and is intended to include people who consider themselves to be neither male or female.

All citizens shall have the right to freedom of speech and expression, which includes one's right to expression of his/ her self-identified gender. Gender identity can be expressed through dress, words, action or behavior or any other form.

Protection of life and personal liberty. 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 human. Recognition of one's gender identity lies at the heart of the fundamental right to dignity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our constitution.

The judgement provides scope for legal recognition of self-identified gender for those persons who identify with the third gender as well as those identify within the binary: i.e. those assigned male at birth whose gender identity is that of 'woman', or those assigned female at birth whose gender identity is of 'man'.

The Hon'ble Supreme Court's direction to Centre and State governments:

To grant legal recognition of transgender person's gender identity such as male, female or as third gender based on self-identification, the court has also added that no person shall be forced to undergo medical procedures, including SRS (sex-reassignment surgery), sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity. The judgement has specified that a psychological assessment will suffice to determine the gender identity of the person. Physical check-ups or other medical tests should not be used.

To address the problems being faced by transgender people such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc and help transgender people regain their respect and place in the society which once they enjoyed in our cultural and social life.

Article 15:

Article 16:

Article 19(1)(a):

Article 21:

Gender identity:

Protection of human rights:

SCOPE OF THE JUDGEMENT

RECOMMENDATIONS IN THE JUDGEMENT