National Legal Services Authority v. Union of India

FACTS

The National Legal Services Authority (NALSA) filed a Writ Petition (W.P. No. 400 of 2012) to advocate the cause of the transgender community. Poojaya Mata Nasib Kaur Ji Women Welfare Society also sought similar reliefs (W.P. No. 604 of 2013). Laxmi Narayan Tripathy, claiming to be a Hijra, was impleaded to effectively represent the community’s cause, including the demand for recognition of their identity as a third gender, over and above male and female.

ISSUE

The issue in the current case pertains to the members of the Transgender Community (TG community) who seek a legal declaration of their gender identity different from the one assigned to them at birth (male or female). Their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who fall in that group, specifically claim legal status as a third gender with all legal and constitutional protection.

JUDGEMENT AND ANALYSIS

• Article 14 and 21: Gender Neutrality: The Hon'ble court observed that the meaning of the term “person” within Article 14 (Equality) and Article 21 (Life and Liberty) is gender neutral and also covers transgenders/hijras who are neither male nor female. It was stated that they were entitled to all kinds of legal protection of laws in State activity, including employment, healthcare, and education.

• Interpretation of 'Sex' in the Constitution: This court examined that the term “sex” in the Constitution wasn’t just limited to the biological sex of male/female but also covers transgenders/hijras.

• Dignity and Personal Autonomy (Article 21): It was observed that self-determination of gender is an integral part of personal autonomy and self-expression and falls within the terms of liberty guaranteed under Article 21. The full enjoyment of life by all citizens, including dignity, is guaranteed.

• Third Gender Recognition and Benefits:

  • This Hon'ble court recognized the legal status of Transgenders/Hijras as the Third Gender.

  • Transgenders were legally entitled to receive the benefits available to Socially and Educationally Backward Classes (SEBCs) for public or State employment and admission to schools for education.

• Role of Judiciary: The court emphasized that the judiciary cannot remain a mute spectator when the rights of marginalized sections are violated. By recognizing transgender as a third gender, the Hon'ble court was bridging the gap between law and life within our society, which is a primary job of the justice system in a democracy.

{pg 906, 973, 1170, 1429 of Indian Constitutional law, by MP Jain} {pg 44, 109 of Constitution of india, by VN Shukla}