LexNATIONAL LEGAL SERVICES AUTHORITY versus UNION OF INDIA AND OTHERS
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[2014] 5 S.C.R. 119 NATIONAL LEGAL SERVICES AUTHORITY v. UNION OF INDIA AND OTHERS (Writ Petition (Civil) No. 400 of 2012) APRIL 15, 2014 [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] CONSTITUTION OF IND/A, 1950: A B Article 14 - Transgenders • Claim for equal treatment - C Held: Article 14 states that the State shall not deny to "any person" equality before law or equal protection of laws within the territory of India - Article 14 does not restrict the word 'person' and its application only to male or female - Hijras/ transgender persons who are neither male nor female fall o within the expressions 'person' and hence entitle 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 Indian citizen - Criminal Tribes Act, 1871 - Penal Code, 1860 - s.377. E . Article 14 - Claim by Transgenders!Hijrasleunuch for legal status as third gender - Held: Transgenders belong to a distinct socio-religious and cultural group and, therefore, have to be considered as a 'third gender' apart from male and female - Gender identity is integral to the dignity of an F individual and is at the core of 'personal autonomy' and 'self determination' - Hijras/eanuchs, therefore, have to be considered as third gender over and above binary genders - Article 14, 15, 16, 19 and 21 do no exclude Hijras/TGs from their ambit. G Articles 14, 15, 16, 19, 21 - Transgenders - Held: Article 14 use expression ''person" and the Article 15 use expression "citizen" and "sex" so also Article 16 - Article 19 a/so use the 119 H 120 SUPREME COURT REPORTS [2014] 5 S.C.R. A expression "citizen" - Article 21 use 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. B Articles 15 and 16 - Prohibition of discrimination against any citizen on the ground of 'sex' - Held: Both the Articles prohibit all forms of gender bias and gender based discrimination - Expression 'sex' used in Articles 15 and 16 C 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 - Bias - Gender bias. Article 19(1)(a) - Freedom of speech and expression as to self identified gender - Held: Freedom of expression D includes freedom to express one's chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc. - Transgender's personality could be expressed by Transgender's behaviour and presentation - State cannot prohibit, restrict or interfere with E Transgender's expression of such personality which reflects that inheren"t personality - The values of privacy, se/f~identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community u/ Article 19(1 )(a) and the, State is bound to protect and F recognize those rights. Article 21 - Right to dignity - Transgenders - Held: Article 21 protects the dignity of human life, one's personal autonomy, one's right to privacy - Right to dignity has been recognized to be an essential part of the right to life and G accrues to all persons on account of being humans - 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 with fellow human beings" - H Recognition of one's gender identity lies at the heart of the ·NATIONAL LEGAL SERVICES AUTHORITY v. UNION 121 OF INDIA AND OTHERS fundamental right to dignity - Gender constitutes the core of A one's sense of being as well as an integral part of a person's identity - Article 21 guarantees the protection of ''personal autonomy" of an individual - Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under B Article 21 of the Constitution of India - Human rights. , TRANSGENDERS: Historical background of Transgenders in India - Discussed. C Gender Identity and sexual orientation - Meaning of - Held: Gender Identity refers to individual's self identification as a man, woman or other identified categories - Sexual orientation ref
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