Transgenders recognised as third gender; [Download judgment]
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Transgenders recognised as third gender; [Download judgment]

Murali Krishnan

In a historic judgment, the Supreme Court today held that transgender persons are to be recognised as a third gender and are entitled to the same Constitutional and legal rights as any other citizen. The Court held that Articles 14, 15, 16, 19 and 21 do not exclude transgender persons from its ambit and take into account rights of “hijras” as well and hence, discrimination against them on the basis of their gender would be a violation of Constitutional mandate.

The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and AK Sikri in a Public Interest Litigation (PIL) filed by National Legal Services Authority (NALSA) seeking the recognition of Transgenders as a third gender.

Senior Advocate Raju Ramachandran represented NALSA with Anitha Shenoy as the Advocate on Record. Senior Advocate Anand Grover appeared for an individual intervenor while Additional Solicitor General Rakesh Khanna appeared for the Union government.

In two separate but concurring judgments written by the two judges, the Court made it clear that in determining the gender of a person, it would prefer the “Psychological Test” instead of “Biological Test” and proceeded to hold that,

“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…..Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category….

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…… 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.”

Interpreting the language of Articles 14, 15, 16, 19 and 21 as applicable to all “human beings” the Court held that,

“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.”

The court also issued a series of directions to ensure that the Constitutional guarantees are met. Accordingly, Transgender persons will have the right to decide their self-identified gender and Centre and State Governments are to grant legal recognition of their gender identity – as male, female or as third gender. Further, Transgender citizens will be treated as socially and economically backward classes and will be entitled to reservation for admission to educational institutions and in public appointments.

Image taken from here

National-Legal-Services-Authority-v-Union-of-India.pdf
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