--Smrithi Athreya, Christ University, Bangalore
--Poorvi Bhati, Indore Institute of Law
Editor: Akanksha Chowdhury, Department of Law, Calcutta University
BACKGROUND OF THE CASE
National Legal Services Authority V. Union of India (2014) 5 SCC 438 was a landmark judgment delivered by the Supreme Court of India settled on 15 April, 2014 by a bench comprising Justice K. S. Radhakrishnan and Justice A. K. Sikri.
Historical background of transgender in India was analysed, and it was found that they were treated with respect in the past, though not in present. This Judgment takes care of seeking redressal for grievances of the transgender community who seek a legal statement for his or her personality and rights inside the country and says that non acknowledgment of their identities violate Article 14,15, 16 and 21 of the constitution of India. The right to treat equality and equal treatment of persons is a right perceived under Article 14 of the Constitution. It specifically provides that no 'Person' shall be discriminated on the basis of sex/gender. Transgenders do fall inside equal protection of 'Person'. The same way Article 15, 19(1)(a) and Article 21 of the Constitution secure the rights of the Transgenders. The Honourable Apex Court through this landmark judgment provided rights to Transgenders with the assistance of these constitutional provisions. Judiciary assumed a very significant function to perceive the position and perceiving the rights of Transgenders.
FACTS IN ISSUE
In 2012, the National Legal Services Authority, an Indian statutory body constituted to offer representation to underestimated sections of society, documented a writ petition with the Supreme Court of India.
The petition was joined by a NGO representing the Kinnar (transgender) community, and an individual who recognised himself as a Hijra. It is an umbrella term that has individuals that don't relate to the biological gender they were brought into the world with, also as individuals that may recognise as neither gender. This includes hermaphrodites, preoperative and post-operative transsexuals and transvestites.
The petition sought a legal presentation of their identity than one assigned at the hour of birth which non-recognition of their identity violates Articles 14 and 21 of the Constitution of India. There were two issues that were raised in this case. these petitions essentially raise an issue of "Gender Identity", and the worry with respect to this case were,
1. Whether an individual who is conceived as a male with predominantly female orientation (or vice-versa), features a right to encourage himself to be perceived as a female according to his choice all the more so, when such an individual subsequent to having gone through operational procedure, changes his/her sex as well?
2. Whether transgenders, who are neither males nor females, have a right to be recognised and classified as a "third gender"?
The petitioners were joined by several interveners. They contended that lone binary genders of male and female were perceived under Indian law and the absence of legal measures to cater for the needs of the represented groups contradicted several constitutional rights including the rights to a dignified life, equality before the law, non-discrimination and freedom of expression. They are disrespected and exploited by individuals. Transgender people have stayed silent and suffered however at last through this judgment the state of the transgender community has improved. This judgment has had an effect in India as well as all through the world. The exclusion of the Transgender community from support in the society is a major human rights issue. India follows democracy and democracy includes everyone irrespective of their disfigurement, condition, and so forth everyone should be dealt with equally and should get equal protection of law on the off chance that we pass by the three conditions of Rule of Law which includes equality.
The Supreme Court took into consideration different foreign judgments-
In Corbett V. Corbett, the Court in England, during this case, said that the law should embrace the chromosomal, Gonadal and genital tests and if each of the three are congruent, that should decide a person's sex for the point of marriage. Learned Judge expressed the view that any operative intervention should be overlooked and hence the biological sexual constitution of an individual is fixed upon entering the world, at the newest , and can't be changed either by the characteristic development of organs of the other sex or by clinical or surgical means.
Various different countries like New Zealand, Australia and so on neglected to favour this guideline and furthermore pulled in much criticism, from the clinical community. In New Zealand in Attorney General V. Otahuhu Family Court, Justice Ellis noticed that when a transsexual person has gone through surgery, the individual in question is no longer prepared to work in his or her original sex.
In Christine Goodwin V. United Kingdom, the European Court of Human Rights inspected an application claiming violation of Articles 8, 12, 13 and 14 of the Convention for protection of Human Rights and Fundamental Freedoms, 1997 in respect of the status of transsexuals in UK and especially their treatment inside the sphere of employment, Social Security, pensions and marriage.
JUDGMENT AT A GLANCE
Subsequent to discussing the historical foundation of transgender in India, the Supreme Court affirmably perceived that identity and sexual orientation incorporate transgenders which “every person's self-characterised sexual orientation and identity is necessary to their personality and is one among the foremost basic aspects of self assurance, respect and freedom and nobody shall be compelled to go through medical procedures as a requirement for legal recognition of their identity.”
It at that point mentioned relevant international human rights standards, especially Yogyakarta Principles, which provides: "Human beings of every sexual orientation and gender identities are qualified for the total enjoyment of every single human right."
Under Article 14, "The State shall not deny to 'any person' equality before the law or the equal protection of the laws inside the territory of India." The Court held the article affords protection to 'any person,' “Transgender persons who are neither male/female fall inside the expression 'person' and, henceforth, qualified for legal protection of laws out and out spheres of State activity, including employment, medical services, schooling also as equal civil and citizenship rights, as appreciated by the other citizen of this country.”
It also held that Articles 15 and 16's prohibition of discrimination against any citizen, inter alia, on the ground of sex equally apply to transsexual persons. consistent with the Court, the use of word 'sex' inside the articles "Is not just restricted to biological sex of male or female, however planned to consolidate individuals that consider themselves to be neither male or female."
As to the right to freedom of expression ensured under Article 19(1)(a) of the Constitution, the Supreme Court decided that it "includes one's right to expression of his self distinguished gender," and notwithstanding legitimate exceptions pursuant to Article 19(2) of the Constitution, “(no) restriction are often positioned on one's personal appearance or choice of dressing."
Lastly, the Court mentioned Article 21 of the Constitution, which says "no person shall be dispossessed of his life or personal liberty aside from consistent with procedure established by law." It interpreted that this provision extensively protects "those aspects of life, which go to make a person's life meaningful," including one's right of self assurance of the gender to which an individual belongs.
Based on the prior analysis, the Supreme Court pronounced, inter alia, transgender "aside from binary gender, be treated as 'third gender' for the point of safeguarding their rights under Part III of our Constitution and in this manner hence the laws made by the Parliament and the State Legislature." It also coordinated the state governments "to allow legal recognition of their identity like male, female or as third gender."
OVERVIEW OF THE JUDGEMENT
The Supreme Court of India permitted a petition for the country's transgender community and held that the right to express one's identity in a non-binary gender was a significant a piece of freedom of expression. It guided the government to offer legal recognition to the third gender, such individuals would be prepared to distinguish themselves as male, female or third gender. It also requested the government to find a way to dispose of the social stigma, advance transgender-specific health programs, and award them equal legal protection.
On these bases, the Court maintained transgender persons' right to self-recognise their gender. The Constitution requires equal treatment surprisingly regardless of their gender identity or expression. The Court proclaimed that the Center and State governments must allow legal recognition of gender identity as male, female or third gender. A full recognition is to be given even in the absence of any existing statutory regime. Furthermore, the Court announced that educational, social and health care issues looked by transgender individuals must be addressed both at the middle and state government levels and central government levels.
 Lavina Bhargava, Supreme Court Case Analysis: NALSA V. Union of India and Ors. (Transgenders Rights Case), 2nd July, 2018, https://www.latestlaws.com/case-analysis/supreme-court-case-analysis-nalsa-v-union-of-india-and-ors-transgenders-rights-case-by-lavina-bhargava/  Tripti Tandon, Analysis: The Transgender Persons (Protection of Rights) Bill, 2016: Standing Committee Report, 24th May, 2018, https://www.theleaflet.in/analysis-the-transgender-persons-protection-of-rights-bill-2016-standing-committee-report/#  Yash Dahiya, National Legal Services Authority vs Union of India – Case Analysis, 27th August, 2018, https://blog.ipleaders.in/national-legal-services-authority-vs-union-of-india-case-study/#_ftn37  Lavina Bhargava, Supreme Court Case Analysis: NALSA V. Union of India and Ors. (Transgenders Rights Case), 2nd July, 2018, https://www.latestlaws.com/case-analysis/supreme-court-case-analysis-nalsa-v-union-of-india-and-ors-transgenders-rights-case-by-lavina-bhargava/  Niyati Acharya, NLSA vs. Union of India, 15th March, 2019, http://lawtimesjournal.in/nlsa-vs-union-of-india/  (1970) 2 All ER 33  (1995) 1 NZLR 603  (2002) 2 FCR 613  Id. At para. 20  Id. (para. 22)  Id. (para. 54) Id. (para. 59) Id. (para. 62)  Id. (para. 74) Id. (para. 129)  Id. (para. 129)  Lavina Bhargava, Supreme Court Case Analysis: NALSA V. Union of India and Ors. (Transgenders Rights Case), 2nd July, 2018, https://www.latestlaws.com/case-analysis/supreme-court-case-analysis-nalsa-v-union-of-india-and-ors-transgenders-rights-case-by-lavina-bhargava/