National Legal Services Authority v. Union of India
Supreme Court of India · 15 April 2014 · 2 judges
Hijras and eunuchs must be treated as a 'third gender'; transgender persons have the right to decide their self-identified gender under Articles 14, 15, 16, 19(1)(a) and 21, and governments must legally recognise it and give them affirmative action.
Facts
The National Legal Services Authority filed a writ petition under Article 32 on behalf of the transgender community, and a registered society filed a second petition for the Kinnar community. A person who claimed to be a Hijra was also impleaded. They sought legal declaration of a gender identity other than the male or female sex assigned at birth, and recognition of Hijras and eunuchs as a third gender. They contended that non-recognition denied transgender persons equality and dignity and led to discrimination in education, health care, employment, public places, voting and licences, in violation of Articles 14, 15, 16 and 21. The Union informed the Court that an Expert Committee on issues relating to transgender persons had been constituted under the Ministry of Social Justice and Empowerment.
Questions before the Court
- Whether a person has the right to be recognised in the gender of his or her choice, including after sex reassignment.
- Whether transgender persons who are neither male nor female have a right to be identified as a 'third gender'.
- Whether non-recognition of gender identity violates Articles 14, 15, 16, 19(1)(a) and 21 of the Constitution.
What the Court held
- Article 14 uses 'any person', which is not limited to male or female; transgender persons are entitled to equal protection of laws in all spheres of State activity. The word 'sex' in Articles 15 and 16 includes gender identity, so discrimination on that ground is prohibited.
- Freedom of expression under Article 19(1)(a) includes expressing one's self-identified gender through dress, words, action or behaviour, subject only to Article 19(2).
- Article 21 protects dignity, personal autonomy and self-determination of gender. Gender is to be decided by the person concerned, applying a psychological rather than a biological test, and insisting on sex reassignment surgery for declaring gender is illegal.
- International conventions and the Yogyakarta Principles, so far as not inconsistent with fundamental rights, must be recognised and followed in reading Articles 14, 15, 19 and 21.
- Hijras and eunuchs are to be treated as 'third gender'. Governments must grant legal recognition of gender identity as male, female or third gender, treat transgender persons as socially and educationally backward classes for reservation in education and public appointments, and provide health care, separate toilets, welfare schemes and public awareness.
Why it matters
The judgment gives constitutional recognition to a third gender and to the right of transgender persons to self-identify their gender without medical procedures. It reads gender identity into 'sex' in Articles 15 and 16 and into Articles 19(1)(a) and 21, and issues directions to the Centre and States, including treatment as socially and educationally backward classes. It also directs that the Expert Committee's recommendations be examined in light of the declaration and implemented within six months.
In the Court's words
Copied from the official judgment; each passage links to its page.
“Article 21, as already indicated, protects one's right of self-determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of "personal autonomy" and "self-determination". Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.”
“The discrimination on the ground of 'sex' under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression 'sex' used in Articles 15 and 16 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.”
“Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one's right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one's personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”
“(2) Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender. (3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”
Provisions interpreted
Related judgments
Case and bench
- Parties
- National Legal Services Authority v. Union of India
- Case
- Writ Petition (Civil) No. 400 of 2012 with Writ Petition (Civil) No. 604 of 2013
- Decided
- 15 April 2014
- Bench
- K.S. Radhakrishnan, A.K. Sikri
- Opinions
- Unanimous. Principal opinion by K.S. Radhakrishnan, J.; A.K. Sikri, J. agreed with every word of it and wrote a separate concurring opinion. The declarations and directions in paragraph 129 were signed by both judges.
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