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Transgender Rights in India: The Road Ahead

On 15th April 2014, the landmark judgment in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) was passed.

The court was constituted of two judges and the leading judgment was given by Justice K.S. Radhakrishnan, whose judgment was endorsed by Justice A.K. Sikri and Justice Sikri went on to provide valuable inputs of his own.

However, the judgment is limited to only the Transgender Community and does not include Gay, Lesbian or Bisexuals.

According to Justice Skiri:

“The grammatical meaning of ‘transgender’ is across or beyond gender. This has come to be known as umbrella term which includes Gay men, Lesbians, bisexuals, and cross dressers within its scope. However, while dealing with the present issue we are not concerned with this aforesaid wider meaning of the expression transgender. Therefore, we make it clear at the outset that when we discuss about the question of conferring distinct identity, we are restrictive in our meaning which has to be given to TG community i.e. hijra etc….”

Justice Radhakrishnan held that:

“Transgender” (TG), in contemporary usage, has become an umbrella term that is used to describe a wide range of identities and experiences, including but not limited to pre-operative, post-operative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female. TG may also takes in persons who do not identify with their sex assigned at birth.”

“TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts. The Concept of tritiya prakrti or napunsaka has also been an integral part of vedic and puranic literatures.”

Thus, the judgment is limited in its extent to the TG Community.

Domestic Laws and International Law

The Court upheld the rights of TG in accordance with International laws and Domestic laws. Some of the international laws delved upon by the Court were the International Covenant on Civil and Political Rights (ICCPR) Article 6 (right to life), Article 7 (prohibition of torture or cruel, inhuman or degrading treatment), Article 16 (recognition before the law), Article 17 (right to private and family life). The Court also took into consideration the Universal Declaration of Human Rights (UDHR) Article 6 (right to life), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Article 2, Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 4 (right to life), 6 (right to privacy), 9 (right to treatment with humanity while in detention), 18 (protection from medical abuses).

Justice Radhakrishnan held that:

“Article 253 of the Constitution of India states that the Parliament has the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention. Generally, therefore, a legislation is required for implementing the international conventions, unlike the position in the United States of America where the rules of international law are applied by the municipal courts on the theory of their implied adoption by the State, as a part of its own municipal law. Courts in India would apply the rules of International law according to the principles of comity of Nations, unless they are overridden by clear rules of domestic law.”

Article 51 of the Indian Constitution read with Article 253 of the Constitution provides that if the parliament has made any legislation which is in conflict with the international law, then Indian Courts are bound to give effect to the Indian Law, rather than the international law. However, in the absence of a contrary legislation, municipal courts in India would respect the rules of international law.

According to Justice Radhakrishnan:

“Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of the person in determining sex and gender and prefer the “Psychological Test”.”

“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.

According to Justice Sikri:

“The genesis of this recognition lies in the acknowledgment of another fundamental and universal principal viz. “right of choice” given to an individual which is the inseparable part of human rights. It is a matter of historical significance that the 20th Century is often described as “the age of rights.”

The Hon’ble Supreme Court found transgenders to be a socially and educationally backward class under Article 15(4). The Hon’ble Supreme Court opined that TGs should be entitled to reservation in matters of appointment in Article 16(4). The Court also held that gender identity is protected under Article 19 (1) (a) as a means of expression protected under the Constitution. The Court held that the right to choose one’s gender identity is integral to the right to lead a life with dignity and hence protected under Article 21 of the Indian Constitution.

Justice Sikri stated:

“We are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well”

Justice Sikri succinctly states the protection guaranteed to TGs under the Indian Constitution:

“It is only with this recognition that many rights attached to the sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.”

The TG Community now has the right to be recognized as third gender.

Effects of the Judgments

The judgment has definitely helped the TG community to come forward and is a landmark judgment in the history of India. After the judgment was passed, DU admissions and admissions in various colleges have introduced space for third genders in its application forms. UGC scholarships and fellowships have also been opened for third genders.

The government has taken significant steps, ever since the judgment was passed, such as constituting an expert committee by Ministry of Social Justice and Empowerment and in-depth study of the problems faced by TGs in India but the application of law would require further research and legislation.

No One Can Be Forced Into Sexual Determination and Medical Examination

The first instance of utilization of the law declared in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) is

I.Jackuline Mary v The Superintendent of Police (17 April 2014) W.P. No. 587 of 2014 and M.P. No. 1 and 2 of 2014 wherein, the Hon’ble Madras High Court extended the TG community to include the case of Females to Males (FTMs) and stated that fundamental rights are available to them and therefore, it is for them to chose and express their identity either as females or males or as transsexuals.

The Madras High Court held that in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) theHon’ble Supreme Court referred the male to female (MTFs) to be treated as a Transgender for the purpose of safeguarding their rights under Part-III of the Constitution of India and the laws made by the Parliament and the State Legislatures. The other transsexuals such as Females to Males (FTMs) will not have the benefit of the classification as third genders. Therefore, even after the said judgement, there is a legal compulsion that these Females to Males [FTMs] are to be brought within the binary classification as male or female. If they are not brought under this binary classification , then, they will be deprived of the fundamental rights under Part-III of the Constitution of India. If an individual, who is born as a female, is declared as a transsexual by the medical community, on that score, the individual cannot be kept out of the binary classification. Irrespective of the opinion of the medical, psychological, genetical and other scientific communities, these medically declared transsexuals are to be treated by the legal community only by the sexual identity given to them by birth and recognised by the society. If we have to treat this group of medically declared transsexuals as outside the purview of the female sexual identity, then, the State will not be in a position to provide employment and other opportunities by treating them as females or as males.”

The Madras High Court also stated that:

“By compelling an individual, who has been recognised all through as a female, like the petitioner, to undergo medical examination so as to declare her as a transsexual will be a gross violation of the right to privacy which falls within the ambit of Article 21 of the Constitution of India. Such kind of forcible declaration will have a lot of repercussions in her personal life.”

“In the absence of a legislation, compelling an individual to expose to medical examination to declare medically his/her sex identity itself is violative of Article 21 of the Constitution of India.”

The Madras High Court held that:

(i) The petitioner is declared as a female for all purposes and she has got right to retain such sexual / gender identity.

(ii) The petitioner has liberty to chose a different sexual / gender identity as a third gender in future based on the medical declaration, if there is any law put in place recognising FTMs as a third gender.

The most important statement by the Hon’ble Madras High Court:

“Pinky Pramanic choose to declare herself as a female forever. So was Shanthi Soundararajan. The petitioner herein also has declared her gender identity only as a “Female” notwithstanding the declaration made by the medical community that she is a transgender. Her sexual identity as female by birth and recognised by the society and her own self-identity as female should be recognised by the Government. Therefore, the petitioner should be treated as a female for all purposes, such as, employment, property rights, etc. Unless laws are made recognising this Female to Male (FTMs) as third genders providing certain special rights, such identification by the individual as third gender thereby exercising her freedom of expression will not be beneficial to her.”

Thus the Court recognized that expression of identity is an individual opinion and unless special provisions are made for FTMS, such persons would have the liberty to continue in the gender prescribed to them in their birth certificate and the gender she/he has been following till date. Further the Court has also held that no person can be forced to undergo medical examination for determination of their sexual identity (biological identity).

In Para 129 of the judgement of the Hon’ble Supreme Court in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) the Hon’ble Supreme Court has declared that the transgender persons have right to decide their self identified gender and the Governments have to grant legal recognition of their gender identity such as male or female or as third gender.

Thus the Hon’ble Supreme Court and the Hon’ble Madras High Court have held that gender identity is an integral part of the personality and one of the most basic aspects of self-determination, dignity and freedom. Thus, no one can be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy as a requirement for legal recognition of their gender identity. Psychological gender is to be given priority over biological sex. Rights have to be protected irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. 

Questions Remain

The Heinous law of Section 377 Indian Penal Code, 1860 Still Looming Large

In National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) Justice Radhakrishnan recognized the role played by Section 377 of the IPC:

“During the British rule, a legislation was enacted to supervise the deeds of Hijras/TG community, called the Criminal Tribes Act, 1871, which deemed the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offences’.

Section 377 of the IPC found a place in the Indian Penal Code, 1860, prior to the enactment of Criminal Tribles Act that criminalized all penile-non-vaginal sexual acts between persons, including anal sex and oral sex, at a time when transgender persons were also typically associated with the prescribed sexual practices.”

Justice Sikri stated that:

“Section 377 of the Indian Penal Code was misused and abused as there was a tendency, in

British period, to arrest and prosecute TG persons under Section 377 merely on suspicion.”

However, Section 377 was upheld by the Hon’ble Supreme Court to be constitutionally valid in Suresh Kumar Koushal and another v. Naz Foundation and others [(2014) 1 SCC 1]

The Hon’ble Supreme Court stated that:

“The learned Attorney General, who argued the case as Amicus, invited our attention to affidavit dated 1.3.2012 filed on behalf of the Home Ministry to show that the Group of Ministers constituted for looking into the issue relating to constitutionality of Section 377 IPC recommended that there is no error in the impugned order, but the Supreme Court may take final view in the matter. The learned Attorney General submitted that the declaration granted by the High Court may not result in deletion of Section 377 IPC from the statute book, but a proviso would have to be added to clarify that nothing contained therein shall apply to any sexual activity between the two consenting adults in private. Learned Attorney General also emphasised that the Court must take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century”

However, the Hon’ble Supreme Court concluded the judgment by stating that:

“While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”

As it stands today, Section 377 IPC is valid law and the rampant misuse of the law by police authorities would continue in future. The question that arises after the judgment in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) is that if the TGs come out declaring their identity. Wouldn’t they be the easy targets since Section 377 IPC is still the valid law of the country? How would the administrative and enforcement agencies react to the present situation?

Further, while arriving at its decision, the Hon’ble Supreme Court of India in National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012 with Writ Petition No. 604 of 2013) considered several foreign judgments. However, one particular judgments is of significant importance and was dealt by Justice Radhakrishnan:

“A.B. v. Western Australia (2011) HCA 42 was a case concerned with the Gender Reassignment Act, 2000. In that Act, person who had undergone a reassignment procedure could apply to Gender Reassignment Board for the issue of a recognition certificate. Under Section 15 of that Act, before issuing the certificate, the Board had to be satisfied, inter alia, that the applicant believed his or her true gender was the person’s reassigned gender and had adopted the lifestyle and gender characteristics of that gender. Majority of Judges agreed with Lockhart, J. in Secretary, Department of Social Security v. “SRA”, (1993) 43 FCR 299 that gender should not be regarded merely as a matter of chromosomes, but partly a psychological question, one of self-perception, and partly a social question, how society perceives the individual.”

In India there is no such law for Gender reassignment and gender recognition by any Board. Further, the judgment has recognized the concept of psychological gender instead of the biological gender to arrive at recognizing TGs in India. Thus, TGs do not have to undergo any biological tests to get themselves recognized. However, it has to be seen whether in future, specific State or Centre Boards are constituted to recognize the TG community and protect them from intrusion. Further, the Judgment is limited to the TG community. This implies that the protection is not extended to Lesbians, Gays or Bisexuals who are still a part of marginalised community and looking for ways to deal with Section 377 IPC. The LGBT Community has been divided by the Supreme Court judgment as the protection extends only to the transgender community. It is without doubt true that the marginalized would look for ways of inclusion and therein problems would arise.

Since there is no legislation to force any person to determine their sexual identity (biological identity) and since the Courts have recognized that sexual identity is psychological, it would be interesting to see how the administration declares certain individuals as TGs and provides affirmative action to support the TG community. Further, Section 377 should be immediately repealed or amended to protect the TG community from being easy targets.

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