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  1. ' 1
  2.  
  3.  
  4. REPORTABLE
  5. IN THE SUPREME COURT OF INDIA
  6.  
  7. CIVIL ORIGINAL JURISDICTION
  8.  
  9. WRIT PETITION (CIVIL) NO.400 OF 2012
  10.  
  11. National Legal Services Authority ... Petitioner
  12.  
  13. Versus
  14.  
  15. Union of India and others ... Respondents
  16.  
  17. WITH
  18.  
  19. WRIT PETITION (CIVIL) NO.604 OF 2013
  20.  
  21.  
  22.  
  23. JUDGMENT
  24.  
  25.  
  26.  
  27. K.S. Radhakrishnan, J.
  28.  
  29.  
  30.  
  31.  
  32. 1. Seldom, our society realizes or cares to realize the trauma,
  33.  
  34. agony and pain which the members of Transgender community
  35.  
  36. undergo, nor appreciates the innate feelings of the members of the
  37.  
  38. Transgender community, especially of those whose mind and body
  39.  
  40. disown their biological sex. Our society often ridicules and abuses
  41.  
  42. the Transgender community and in public places like railway
  43. 2
  44.  
  45.  
  46. stations, bus stands, schools, workplaces, malls, theatres,
  47.  
  48. hospitals, they are sidelined and treated as untouchables,
  49.  
  50. forgetting the fact that the moral failure lies in the society's
  51.  
  52. unwillingness to contain or embrace different gender identities and
  53.  
  54. expressions, a mindset which we have to change.
  55.  
  56.  
  57. 2. We are, in this case, concerned with the grievances of the
  58.  
  59. members of Transgender Community (for short `TG community')
  60.  
  61. who seek a legal declaration of their gender identity than the one
  62.  
  63. assigned to them, male or female, at the time of birth and their
  64.  
  65. prayer is that non-recognition of their gender identity violates
  66.  
  67. Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs,
  68.  
  69. who also fall in that group, claim legal status as a third gender with
  70.  
  71. all legal and constitutional protection.
  72.  
  73.  
  74. 3. The National Legal Services Authority, constituted under the
  75.  
  76. Legal Services Authority Act, 1997, to provide free legal services
  77.  
  78. to the weaker and other marginalized sections of the society, has
  79.  
  80. come forward to advocate their cause, by filing Writ Petition No.
  81.  
  82. 400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare
  83.  
  84. Society, a registered association, has also preferred Writ Petition
  85. 3
  86.  
  87.  
  88. No. 604 of 2013, seeking similar reliefs in respect of Kinnar
  89.  
  90. community, a TG community.
  91.  
  92.  
  93. 4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got
  94.  
  95. impleaded so as to effectively put across the cause of the
  96.  
  97. members of the transgender community and Tripathy's life
  98.  
  99. experiences also for recognition of their identity as a third gender,
  100.  
  101. over and above male and female. Tripathy says that non-
  102.  
  103. recognition of the identity of Hijras, a TG community, as a third
  104.  
  105. gender, denies them the right of equality before the law and equal
  106.  
  107. protection of law guaranteed under Article 14 of the Constitution
  108.  
  109. and violates the rights guaranteed to them under Article 21 of the
  110.  
  111. Constitution of India.
  112.  
  113.  
  114. 5. Shri Raju Ramachandran, learned senior counsel appearing
  115.  
  116. for the petitioner - the National Legal Services Authority,
  117.  
  118. highlighted the traumatic experiences faced by the members of the
  119.  
  120. TG community and submitted that every person of that community
  121.  
  122. has a legal right to decide their sex orientation and to espouse and
  123.  
  124. determine their identity. Learned senior counsel has submitted
  125.  
  126. that since the TGs are neither treated as male or female, nor given
  127.  
  128. the status of a third gender, they are being deprived of many of the
  129. 4
  130.  
  131.  
  132. rights and privileges which other persons enjoy as citizens of this
  133.  
  134. country. TGs are deprived of social and cultural participation and
  135.  
  136. hence restricted access to education, health care and public
  137.  
  138. places which deprives them of the Constitutional guarantee of
  139.  
  140. equality before law and equal protection of laws. Further, it was
  141.  
  142. also pointed out that the community also faces discrimination to
  143.  
  144. contest election, right to vote, employment, to get licences etc.
  145.  
  146. and, in effect, treated as an outcast and untouchable. Learned
  147.  
  148. senior counsel also submitted that the State cannot discriminate
  149.  
  150. them on the ground of gender, violating Articles 14 to 16 and 21 of
  151.  
  152. the Constitution of India.
  153.  
  154.  
  155. 6. Shri Anand Grover, learned senior counsel appearing for the
  156.  
  157. Intervener, traced the historical background of the third gender
  158.  
  159. identity in India and the position accorded to them in the Hindu
  160.  
  161. Mythology, Vedic and Puranic literatures, and the prominent role
  162.  
  163. played by them in the royal courts of the Islamic world etc.
  164.  
  165. Reference was also made to the repealed Criminal Tribes Act,
  166.  
  167. 1871 and explained the inhuman manner by which they were
  168.  
  169. treated at the time of the British Colonial rule. Learned senior
  170.  
  171. counsel also submitted that various International Forums and U.N.
  172.  
  173. Bodies have recognized their gender identity and referred to the
  174. 5
  175.  
  176.  
  177. Yogyakarta Principles and pointed out that those principles have
  178.  
  179. been recognized by various countries around the world.
  180.  
  181. Reference was also made to few legislations giving recognition to
  182.  
  183. the trans-sexual persons in other countries. Learned senior
  184.  
  185. counsel also submitted that non-recognition of gender identity of
  186.  
  187. the transgender community violates the fundamental rights
  188.  
  189. guaranteed to them, who are citizens of this country.
  190.  
  191.  
  192. 7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A.
  193.  
  194. No. 2 of 2013, submitted that transgender persons have to be
  195.  
  196. declared as a socially and educationally backward classes of
  197.  
  198. citizens and must be accorded all benefits available to that class of
  199.  
  200. persons, which are being extended to male and female genders.
  201.  
  202. Learned counsel also submitted that the right to choose one's
  203.  
  204. gender identity is integral to the right to lead a life with dignity,
  205.  
  206. which is undoubtedly guaranteed by Article 21 of the Constitution
  207.  
  208. of India. Learned counsel, therefore, submitted that, subject to
  209.  
  210. such rules/regulations/protocols, transgender persons may be
  211.  
  212. afforded the right of choice to determine whether to opt for male,
  213.  
  214. female or transgender classification.
  215. 6
  216.  
  217.  
  218. 8. Shri Sanjeev Bhatnagar, learned counsel appearing for the
  219.  
  220. petitioner in Writ Petition No.604 of 2013, highlighted the cause of
  221.  
  222. the Kinnar community and submitted that they are the most
  223.  
  224. deprived group of transgenders and calls for constitutional as well
  225.  
  226. as legal protection for their identity and for other socio-economic
  227.  
  228. benefits, which are otherwise extended to the members of the
  229.  
  230. male and female genders in the community.
  231.  
  232.  
  233. 9. Shri Rakesh K. Khanna, learned Additional Solicitor General,
  234.  
  235. appearing for the Union of India, submitted that the problems
  236.  
  237. highlighted by the transgender community is a sensitive human
  238.  
  239. issue, which calls for serious attention. Learned ASG pointed out
  240.  
  241. that, under the aegis of the Ministry of Social Justice and
  242.  
  243. Empowerment (for short "MOSJE"), a Committee, called "Expert
  244.  
  245. Committee on Issues relating to Transgender", has been
  246.  
  247. constituted to conduct an in-depth study of the problems relating to
  248.  
  249. transgender persons to make appropriate recommendations to
  250.  
  251. MOSJE. Shri Khanna also submitted that due representation
  252.  
  253. would also be given to the applicants, appeared before this Court
  254.  
  255. in the Committee, so that their views also could be heard.
  256. 7
  257.  
  258.  
  259. 10. We also heard learned counsel appearing for various States
  260.  
  261. and Union Territories who have explained the steps they have
  262.  
  263. taken to improve the conditions and status of the members of TG
  264.  
  265. community in their respective States and Union Territories. Laxmi
  266.  
  267. Narayan Tripathy, a Hijra, through a petition supported by an
  268.  
  269. affidavit, highlighted the trauma undergone by Tripathy from
  270.  
  271. Tripathy's birth. Rather than explaining the same by us, it would
  272.  
  273. be appropriate to quote in Tripathy's own words:
  274.  
  275. "That the Applicant has born as a male. Growing up as
  276. a child, she felt different from the boys of her age and
  277. was feminine in her ways. On account of her femininity,
  278. from an early age, she faced repeated sexual
  279. harassment, molestation and sexual abuse, both within
  280. and outside the family. Due to her being different, she
  281. was isolated and had no one to talk to or express her
  282. feelings while she was coming to terms with her identity.
  283. She was constantly abused by everyone as a `chakka'
  284. and `hijra'. Though she felt that there was no place for
  285. her in society, she did not succumb to the prejudice.
  286. She started to dress and appear in public in women's
  287. clothing in her late teens but she did not identify as a
  288. woman. Later, she joined the Hijra community in
  289. Mumbai as she identified with the other hijras and for
  290. the first time in her life, she felt at home.
  291.  
  292. That being a hijra, the Applicant has faced serious
  293. discrimination throughout her life because of her gender
  294. identity. It has been clear to the Applicant that the
  295. complete non-recognition of the identity of
  296. hijras/transgender persons by the State has resulted in
  297. the violation of most of the fundamental rights
  298. guaranteed to them under the Constitution of India...."
  299. 8
  300.  
  301.  
  302. Siddarth Narrain, eunuch, highlights Narrain's feeling, as
  303.  
  304. follows:
  305.  
  306. "Ever since I can remember, I have always identified
  307. myself as a woman. I lived in Namakkal, a small town in
  308. Tamil Nadu. When I was in the 10th standard I realized
  309. that the only way for me to be comfortable was to join
  310. the hijra community. It was then that my family found
  311. out that I frequently met hijras who lived in the city. One
  312. day, when my father was away, my brother, encouraged
  313. by my mother, started beating me with a cricket bat. I
  314. locked myself in a room to escape from the beatings.
  315. My mother and brother then tried to break into the room
  316. to beat me up further. Some of my relatives intervened
  317. and brought me out of the room. I related my ordeal to
  318. an uncle of mine who gave me Rs.50 and asked me to
  319. go home. Instead, I took the money and went to live
  320. with a group of hijras in Erode."
  321.  
  322. Sachin, a TG, expressed his experiences as follows:
  323.  
  324. "My name is Sachin and I am 23 years old. As a child I
  325. always enjoyed putting make-up like `vibhuti' or `kum
  326. kum' and my parents always saw me as a girl. I am
  327. male but I only have female feelings. I used to help my
  328. mother in all the housework like cooking, washing and
  329. cleaning. Over the years, I started assuming more of
  330. the domestic responsibilities at home. The neighbours
  331. starting teasing me. They would call out to me and ask:
  332. `Why don't you go out and work like a man?' or `Why
  333. are you staying at home like a girl?' But I liked being a
  334. girl. I felt shy about going out and working. Relatives
  335. would also mock and scold me on this score. Every day
  336. I would go out of the house to bring water. And as I
  337. walked back with the water I would always be teased. I
  338. felt very ashamed. I even felt suicidal. How could I live
  339. like that? But my parents never protested. They were
  340. helpless."
  341. 9
  342.  
  343.  
  344. We have been told and informed of similar life experiences
  345.  
  346. faced by various others who belong to the TG community.
  347.  
  348.  
  349. 11. Transgender is generally described as an umbrella term for
  350.  
  351. persons whose gender identity, gender expression or behavior
  352.  
  353. does not conform to their biological sex. TG may also takes in
  354.  
  355. persons who do not identify with their sex assigned at birth, which
  356.  
  357. include Hijras/Eunuchs who, in this writ petition, describe
  358.  
  359. themselves as "third gender" and they do not identify as either male
  360.  
  361. or female. Hijras are not men by virtue of anatomy appearance
  362.  
  363. and psychologically, they are also not women, though they are like
  364.  
  365. women with no female reproduction organ and no menstruation.
  366.  
  367. Since Hijras do not have reproduction capacities as either men or
  368.  
  369. women, they are neither men nor women and claim to be an
  370.  
  371. institutional "third gender". Among Hijras, there are emasculated
  372.  
  373. (castrated, nirvana) men, non-emasculated men (not
  374.  
  375. castrated/akva/akka) and inter-sexed persons (hermaphrodites).
  376.  
  377. TG also includes persons who intend to undergo Sex Re-
  378.  
  379. Assignment Surgery (SRS) or have undergone SRS to align their
  380.  
  381. biological sex with their gender identity in order to become male or
  382.  
  383. female. They are generally called transsexual persons. Further,
  384.  
  385. there are persons who like to cross-dress in clothing of opposite
  386. 10
  387.  
  388.  
  389. gender, i.e transvestites. Resultantly, the term "transgender", in
  390.  
  391. contemporary usage, has become an umbrella term that is used to
  392.  
  393. describe a wide range of identities and experiences, including but
  394.  
  395. not limited to pre-operative, post-operative and non-operative
  396.  
  397. transsexual people, who strongly identify with the gender opposite
  398.  
  399. to their biological sex; male and female.
  400.  
  401.  
  402. HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:
  403.  
  404.  
  405. 12. TG Community comprises of Hijras, eunuchs, Kothis,
  406.  
  407. Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have
  408.  
  409. got a strong historical presence in our country in the Hindu
  410.  
  411. mythology and other religious texts. The Concept of tritiya prakrti
  412.  
  413. or napunsaka has also been an integral part of vedic and puranic
  414.  
  415. literatures. The word `napunsaka' has been used to denote
  416.  
  417. absence of procreative capability.
  418.  
  419.  
  420. 13. Lord Rama, in the epic Ramayana, was leaving for the forest
  421.  
  422. upon being banished from the kingdom for 14 years, turns around
  423.  
  424. to his followers and asks all the `men and women' to return to the
  425.  
  426. city. Among his followers, the hijras alone do not feel bound by this
  427.  
  428. direction and decide to stay with him. Impressed with their
  429.  
  430. devotion, Rama sanctions them the power to confer blessings on
  431. 11
  432.  
  433.  
  434. people on auspicious occasions like childbirth and marriage, and
  435.  
  436. also at inaugural functions which, it is believed set the stage for the
  437.  
  438. custom of badhai in which hijras sing, dance and confer blessings.
  439.  
  440.  
  441. 14. Aravan, the son of Arjuna and Nagakanya in Mahabharata,
  442.  
  443. offers to be sacrificed to Goddess Kali to ensure the victory of the
  444.  
  445. Pandavas in the Kurukshetra war, the only condition that he made
  446.  
  447. was to spend the last night of his life in matrimony. Since no
  448.  
  449. woman was willing to marry one who was doomed to be killed,
  450.  
  451. Krishna assumes the form of a beautiful woman called Mohini and
  452.  
  453. marries him. The Hijras of Tamil Nadu consider Aravan their
  454.  
  455. progenitor and call themselves Aravanis.
  456.  
  457.  
  458. 15. Jain Texts also make a detailed reference to TG which
  459.  
  460. mentions the concept of `psychological sex'. Hijras also played a
  461.  
  462. prominent role in the royal courts of the Islamic world, especially in
  463.  
  464. the Ottaman empires and the Mughal rule in the Medieval India. A
  465.  
  466. detailed analysis of the historical background of the same finds a
  467.  
  468. place in the book of Gayatri Reddy, "With Respect to Sex:
  469.  
  470. Negotiating Hijra Identity in South India" - Yoda Press (2006).
  471.  
  472.  
  473. 16. We notice that even though historically, Hijras/transgender
  474.  
  475. persons had played a prominent role, with the onset of colonial rule
  476. 12
  477.  
  478.  
  479. from the 18th century onwards, the situation had changed
  480.  
  481. drastically. During the British rule, a legislation was enacted to
  482.  
  483. supervise the deeds of Hijras/TG community, called the Criminal
  484.  
  485. Tribes Act, 1871, which deemed the entire community of Hijras
  486.  
  487. persons as innately `criminal' and `addicted to the systematic
  488.  
  489. commission of non-bailable offences'. The Act provided for the
  490.  
  491. registration, surveillance and control of certain criminal tribes and
  492.  
  493. eunuchs and had penalized eunuchs, who were registered, and
  494.  
  495. appeared to be dressed or ornamented like a woman, in a public
  496.  
  497. street or place, as well as those who danced or played music in a
  498.  
  499. public place. Such persons also could be arrested without warrant
  500.  
  501. and sentenced to imprisonment up to two years or fine or both.
  502.  
  503. Under the Act, the local government had to register the names and
  504.  
  505. residence of all eunuchs residing in that area as well as of their
  506.  
  507. properties, who were reasonably suspected of kidnapping or
  508.  
  509. castrating children, or of committing offences under Section 377 of
  510.  
  511. the IPC, or of abetting the commission of any of the said offences.
  512.  
  513. Under the Act, the act of keeping a boy under 16 years in the
  514.  
  515. charge of a registered eunuch was made an offence punishable
  516.  
  517. with imprisonment up to two years or fine and the Act also denuded
  518.  
  519. the registered eunuchs of their civil rights by prohibiting them from
  520. 13
  521.  
  522.  
  523. acting as guardians to minors, from making a gift deed or a will, or
  524.  
  525. from adopting a son. Act has, however, been repealed in August
  526.  
  527. 1949.
  528.  
  529.  
  530. 17. Section 377 of the IPC found a place in the Indian Penal
  531.  
  532. Code, 1860, prior to the enactment of Criminal Tribles Act that
  533.  
  534. criminalized all penile-non-vaginal sexual acts between persons,
  535.  
  536. including anal sex and oral sex, at a time when transgender
  537.  
  538. persons were also typically associated with the prescribed sexual
  539.  
  540. practices. Reference may be made to the judgment of the
  541.  
  542. Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6
  543.  
  544. All 204, wherein a transgender person was arrested and
  545.  
  546. prosecuted under Section 377 on the suspicion that he was a
  547.  
  548. `habitual sodomite' and was later acquitted on appeal. In that case,
  549.  
  550. while acquitting him, the Sessions Judge stated as follows:
  551.  
  552. "This case relates to a person named Khairati, over
  553. whom the police seem to have exercised some sort of
  554. supervision, whether strictly regular or not, as a eunuch.
  555. The man is not a eunuch in the literal sense, but he was
  556. called for by the police when on a visit to his village, and
  557. was found singing dressed as a woman among the
  558. women of a certain family. Having been subjected to
  559. examination by the Civil Surgeon (and a subordinate
  560. medical man), he is shown to have the characteristic
  561. mark of a habitual catamite - the distortion of the orifice
  562. of the anus into the shape of a trumpet and also to be
  563. affected with syphilis in the same region in a manner
  564. 14
  565.  
  566.  
  567. which distinctly points to unnatural intercourse within the
  568. last few months."
  569.  
  570.  
  571. 18. Even though, he was acquitted on appeal, this case would
  572.  
  573. demonstrate that Section 377, though associated with specific
  574.  
  575. sexual acts, highlighted certain identities, including Hijras and was
  576.  
  577. used as an instrument of harassment and physical abuse against
  578.  
  579. Hijras and transgender persons. A Division Bench of this Court in
  580.  
  581. Suresh Kumar Koushal and another v. Naz Foundation and
  582.  
  583. others [(2014) 1 SCC 1] has already spoken on the
  584.  
  585. constitutionality of Section 377 IPC and, hence, we express no
  586.  
  587. opinion on it since we are in these cases concerned with an
  588.  
  589. altogether different issue pertaining to the constitutional and other
  590.  
  591. legal rights of the transgender community and their gender identity
  592.  
  593. and sexual orientation.
  594.  
  595.  
  596. GENDER IDENTITY AND SEXUAL ORIENTATION
  597.  
  598.  
  599. 19. Gender identity is one of the most-fundamental aspects of life
  600.  
  601. which refers to a person's intrinsic sense of being male, female or
  602.  
  603. transgender or transsexual person. A person's sex is usually
  604.  
  605. assigned at birth, but a relatively small group of persons may born
  606.  
  607. with bodies which incorporate both or certain aspects of both male
  608. 15
  609.  
  610.  
  611. and female physiology. At times, genital anatomy problems may
  612.  
  613. arise in certain persons, their innate perception of themselves, is
  614.  
  615. not in conformity with the sex assigned to them at birth and may
  616.  
  617. include pre and post-operative transsexual persons and also
  618.  
  619. persons who do not choose to undergo or do not have access to
  620.  
  621. operation and also include persons who cannot undergo successful
  622.  
  623. operation. Countries, all over the world, including India, are
  624.  
  625. grappled with the question of attribution of gender to persons who
  626.  
  627. believe that they belong to the opposite sex. Few persons
  628.  
  629. undertake surgical and other procedures to alter their bodies and
  630.  
  631. physical appearance to acquire gender characteristics of the sex
  632.  
  633. which conform to their perception of gender, leading to legal and
  634.  
  635. social complications since official record of their gender at birth is
  636.  
  637. found to be at variance with the assumed gender identity. Gender
  638.  
  639. identity refers to each person's deeply felt internal and individual
  640.  
  641. experience of gender, which may or may not correspond with the
  642.  
  643. sex assigned at birth, including the personal sense of the body
  644.  
  645. which may involve a freely chosen, modification of bodily
  646.  
  647. appearance or functions by medical, surgical or other means and
  648.  
  649. other expressions of gender, including dress, speech and
  650.  
  651. mannerisms. Gender identity, therefore, refers to an individual's
  652. 16
  653.  
  654.  
  655. self-identification as a man, woman, transgender or other identified
  656.  
  657. category.
  658.  
  659.  
  660. 20. Sexual orientation refers to an individual's enduring physical,
  661.  
  662. romantic and/or emotional attraction to another person. Sexual
  663.  
  664. orientation includes transgender and gender-variant people with
  665.  
  666. heavy sexual orientation and their sexual orientation may or may
  667.  
  668. not change during or after gender transmission, which also
  669.  
  670. includes homo-sexuals, bysexuals, heterosexuals, asexual etc.
  671.  
  672. Gender identity and sexual orientation, as already indicated, are
  673.  
  674. different concepts. Each person's self-defined sexual orientation
  675.  
  676. and gender identity is integral to their personality and is one of the
  677.  
  678. most basic aspects of self-determination, dignity and freedom and
  679.  
  680. no one shall be forced to undergo medical procedures, including
  681.  
  682. SRS, sterilization or hormonal therapy, as a requirement for legal
  683.  
  684. recognition of their gender identity.
  685.  
  686.  
  687. UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES - ON
  688. GENDER IDENTITY AND SEXUAL ORIENTATION
  689.  
  690.  
  691. 21. United Nations has been instrumental in advocating the
  692.  
  693. protection and promotion of rights of sexual minorities, including
  694.  
  695. transgender persons. Article 6 of the Universal Declaration of
  696. 17
  697.  
  698.  
  699. Human Rights, 1948 and Article 16 of the International Covenant
  700.  
  701. on Civil and Political Rights, 1966 (ICCPR) recognize that every
  702.  
  703. human being has the inherent right to live and this right shall be
  704.  
  705. protected by law and that no one shall be arbitrarily denied of that
  706.  
  707. right. Everyone shall have a right to recognition, everywhere as a
  708.  
  709. person before the law. Article 17 of the ICCPR states that no one
  710.  
  711. shall be subjected to arbitrary or unlawful interference with his
  712.  
  713. privacy, family, home or correspondence, nor to unlawful attacks
  714.  
  715. on his honour and reputation and that everyone has the right to
  716.  
  717. protection of law against such interference or attacks. International
  718.  
  719. Commission of Jurists and the International Service for Human
  720.  
  721. Rights on behalf of a coalition of human rights organizations, took
  722.  
  723. a project to develop a set of international legal principles on the
  724.  
  725. application of international law to human rights violations based on
  726.  
  727. sexual orientation and sexual identity to bring greater clarity and
  728.  
  729. coherence to State's human rights obligations. A distinguished
  730.  
  731. group of human rights experts has drafted, developed, discussed
  732.  
  733. and reformed the principles in a meeting held at Gadjah Mada
  734.  
  735. University in Yogyakarta, Indonesia from 6 to 9 November, 2006,
  736.  
  737. which is unanimously adopted the Yogyakarta Principles on the
  738.  
  739. application of International Human Rights Law in relation to Sexual
  740. 18
  741.  
  742.  
  743. Orientation and Gender Identity. Yogyakarta Principles address a
  744.  
  745. broad range of human rights standards and their application to
  746.  
  747. issues of sexual orientation gender identity. Reference to few
  748.  
  749. Yogyakarta Principles would be useful.
  750.  
  751.  
  752. YOGYAKARTA PRINCIPLES:
  753.  
  754. 22. Principle 1 which deals with the right to the universal
  755.  
  756. enjoyment of human rights, reads as follows :-
  757.  
  758. "1. THE RIGHT TO THE UNIVERSAL ENJOYMENT
  759. OF HUMAN RIGHTS
  760.  
  761. All human beings are born free and equal in dignity and
  762. rights. Human beings of all sexual orientations and
  763. gender identities are entitled to the full enjoyment of all
  764. human rights.
  765.  
  766. States shall:
  767.  
  768. A. Embody the principles of the universality,
  769. interrelatedness, interdependence and indivisibility
  770. of all human rights in their national constitutions or
  771. other appropriate legislation and ensure the
  772. practical realisation of the universal enjoyment of
  773. all human rights;
  774.  
  775. B. Amend any legislation, including criminal law, to
  776. ensure its consistency with the universal
  777. enjoyment of all human rights;
  778.  
  779. C. Undertake programmes of education and
  780. awareness to promote and enhance the full
  781. enjoyment of all human rights by all persons,
  782. irrespective of sexual orientation or gender
  783. identity;
  784. 19
  785.  
  786.  
  787. D. Integrate within State policy and decision-making a
  788. pluralistic approach that recognises and affirms
  789. the interrelatedness and indivisibility of all aspects
  790. of human identity including sexual orientation and
  791. gender identity.
  792.  
  793. 2. THE RIGHTS TO EQUALITY AND NON-
  794. DISCRIMINATION
  795.  
  796. Everyone is entitled to enjoy all human rights without
  797. discrimination on the basis of sexual orientation or
  798. gender identity. Everyone is entitled to equality before
  799. the law and the equal protection of the law without any
  800. such discrimination whether or not the enjoyment of
  801. another human right is also affected. The law shall
  802. prohibit any such discrimination and guarantee to all
  803. persons equal and effective protection against any such
  804. discrimination.
  805.  
  806. Discrimination on the basis of sexual orientation or
  807. gender identity includes any distinction, exclusion,
  808. restriction or preference based on sexual orientation or
  809. gender identity which has the purpose or effect of
  810. nullifying or impairing equality before the law or the
  811. equal protection of the law, or the recognition,
  812. enjoyment or exercise, on an equal basis, of all human
  813. rights and fundamental freedoms. Discrimination based
  814. on sexual orientation or gender identity may be, and
  815. commonly is, compounded by discrimination on other
  816. grounds including gender, race, age, religion, disability,
  817. health and economic status.
  818.  
  819. States shall:
  820.  
  821. A. Embody the principles of equality and non-
  822. discrimination on the basis of sexual orientation and
  823. gender identity in their national constitutions or other
  824. appropriate legislation, if not yet incorporated therein,
  825. including by means of amendment and interpretation,
  826. and ensure the effective realisation of these
  827. principles;
  828. 20
  829.  
  830.  
  831. B. Repeal criminal and other legal provisions that
  832. prohibit or are, in effect, employed to prohibit
  833. consensual sexual activity among people of the same
  834. sex who are over the age of consent, and ensure that
  835. an equal age of consent applies to both same-sex
  836. and different- sex sexual activity;
  837.  
  838. C. Adopt appropriate legislative and other measures to
  839. prohibit and eliminate discrimination in the public and
  840. private spheres on the basis of sexual orientation and
  841. gender identity;
  842.  
  843. D. Take appropriate measures to secure adequate
  844. advancement of persons of diverse sexual
  845. orientations and gender identities as may be
  846. necessary to ensure such groups or individuals equal
  847. enjoyment or exercise of human rights. Such
  848. measures shall not be deemed to be discriminatory;
  849.  
  850. E. In all their responses to discrimination on the basis
  851. of sexual orientation or gender identity, take account
  852. of the manner in which such discrimination may
  853. intersect with other forms of discrimination;
  854.  
  855. F. Take all appropriate action, including programmes of
  856. education and training, with a view to achieving the
  857. elimination of prejudicial or discriminatory attitudes or
  858. behaviours which are related to the idea of the
  859. inferiority or the superiority of any sexual orientation
  860. or gender identity or gender expression.
  861.  
  862. 3. THE RIGHT TO RECOGNITION BEFORE THE
  863. LAW
  864.  
  865. Everyone has the right to recognition everywhere as a
  866. person before the law. Persons of diverse sexual
  867. orientations and gender identities shall enjoy legal
  868. capacity in all aspects of life. Each person's self-defined
  869. sexual orientation and gender identity is integral to their
  870. personality and is one of the most basic aspects of self-
  871. determination, dignity and freedom. No one shall be
  872. forced to undergo medical procedures, including sex
  873. 21
  874.  
  875.  
  876. reassignment surgery, sterilisation or hormonal therapy,
  877. as a requirement for legal recognition of their gender
  878. identity. No status, such as marriage or parenthood,
  879. may be invoked as such to prevent the legal recognition
  880. of a person's gender identity. No one shall be subjected
  881. to pressure to conceal, suppress or deny their sexual
  882. orientation or gender identity.
  883.  
  884. States shall:
  885.  
  886. A. Ensure that all persons are accorded legal capacity in
  887. civil matters, without discrimination on the basis of
  888. sexual orientation or gender identity, and the
  889. opportunity to exercise that capacity, including equal
  890. rights to conclude contracts, and to administer, own,
  891. acquire (including through inheritance), manage,
  892. enjoy and dispose of property;
  893.  
  894. B. Take all necessary legislative, administrative and
  895. other measures to fully respect and legally recognise
  896. each person's self-defined gender identity;
  897.  
  898. C. Take all necessary legislative, administrative and
  899. other measures to ensure that procedures exist
  900. whereby all State-issued identity papers which
  901. indicate a person's gender/sex -- including birth
  902. certificates, passports, electoral records and other
  903. documents -- reflect the person's profound self-
  904. defined gender identity;
  905.  
  906. D. Ensure that such procedures are efficient, fair and
  907. non-discriminatory, and respect the dignity and
  908. privacy of the person concerned;
  909.  
  910. E. Ensure that changes to identity documents will be
  911. recognised in all contexts where the identification or
  912. disaggregation of persons by gender is required by
  913. law or policy;
  914.  
  915. F. Undertake targeted programmes to provide social
  916. support for all persons experiencing gender
  917. transitioning or reassignment.
  918. 22
  919.  
  920.  
  921.  
  922. 4. THE RIGHT TO LIFE
  923.  
  924. Everyone has the right to life. No one shall be arbitrarily
  925. deprived of life, including by reference to considerations
  926. of sexual orientation or gender identity. The death
  927. penalty shall not be imposed on any person on the basis
  928. of consensual sexual activity among persons who are
  929. over the age of consent or on the basis of sexual
  930. orientation or gender identity.
  931.  
  932. States shall:
  933.  
  934. A. Repeal all forms of crime that have the purpose or
  935. effect of prohibiting consensual sexual activity among
  936. persons of the same sex who are over the age of
  937. consent and, until such provisions are repealed,
  938. never impose the death penalty on any person
  939. convicted under them;
  940.  
  941. B. Remit sentences of death and release all those
  942. currently awaiting execution for crimes relating to
  943. consensual sexual activity among persons who are
  944. over the age of consent;
  945.  
  946. C. Cease any State-sponsored or State-condoned
  947. attacks on the lives of persons based on sexual
  948. orientation or gender identity, and ensure that all
  949. such attacks, whether by government officials or by
  950. any individual or group, are vigorously investigated,
  951. and that, where appropriate evidence is found, those
  952. responsible are prosecuted, tried and duly punished.
  953.  
  954. 6. THE RIGHT TO PRIVACY
  955.  
  956. Everyone, regardless of sexual orientation or gender
  957. identity, is entitled to the enjoyment of privacy without
  958. arbitrary or unlawful interference, including with regard
  959. to their family, home or correspondence as well as to
  960. protection from unlawful attacks on their honour and
  961. reputation. The right to privacy ordinarily includes the
  962. choice to disclose or not to disclose information relating
  963. 23
  964.  
  965.  
  966. to one's sexual orientation or gender identity, as well as
  967. decisions and choices regarding both one's own body
  968. and consensual sexual and other relations with others.
  969.  
  970. States shall:
  971.  
  972. A. Take all necessary legislative, administrative and
  973. other measures to ensure the right of each person,
  974. regardless of sexual orientation or gender identity, to
  975. enjoy the private sphere, intimate decisions, and
  976. human relations, including consensual sexual activity
  977. among persons who are over the age of consent,
  978. without arbitrary interference;
  979.  
  980. B. Repeal all laws that criminalise consensual sexual
  981. activity among persons of the same sex who are over
  982. the age of consent, and ensure that an equal age of
  983. consent applies to both same-sex and different-sex
  984. sexual activity;
  985.  
  986. C. Ensure that criminal and other legal provisions of
  987. general application are not applied to de facto
  988. criminalise consensual sexual activity among persons
  989. of the same sex who are over the age of consent;
  990.  
  991. D. Repeal any law that prohibits or criminalises the
  992. expression of gender identity, including through
  993. dress, speech or mannerisms, or that denies to
  994. individuals the opportunity to change their bodies as
  995. a means of expressing their gender identity;
  996.  
  997. E. Release all those held on remand or on the basis of a
  998. criminal conviction, if their detention is related to
  999. consensual sexual activity among persons who are
  1000. over the age of consent, or is related to gender
  1001. identity;
  1002.  
  1003. F. Ensure the right of all persons ordinarily to choose
  1004. when, to whom and how to disclose information
  1005. pertaining to their sexual orientation or gender
  1006. identity, and protect all persons from arbitrary or
  1007. unwanted disclosure, or threat of disclosure of such
  1008. 24
  1009.  
  1010.  
  1011. information by others
  1012.  
  1013. 9. THE RIGHT TO TREATMENT WITH HUMANITY
  1014. WHILE IN DETENTION
  1015.  
  1016. Everyone deprived of liberty shall be treated with
  1017. humanity and with respect for the inherent dignity of the
  1018. human person. Sexual orientation and gender identity
  1019. are integral to each person's dignity.
  1020.  
  1021.  
  1022. States shall:
  1023.  
  1024. A. Ensure that placement in detention avoids further
  1025. marginalising persons on the basis of sexual
  1026. orientation or gender identity or subjecting them to
  1027. risk of violence, ill-treatment or physical, mental or
  1028. sexual abuse;
  1029.  
  1030. B. Provide adequate access to medical care and
  1031. counselling appropriate to the needs of those in
  1032. custody, recognising any particular needs of persons
  1033. on the basis of their sexual orientation or gender
  1034. identity, including with regard to reproductive health,
  1035. access to HIV/AIDS information and therapy and
  1036. access to hormonal or other therapy as well as to
  1037. gender-reassignment treatments where desired;
  1038.  
  1039. C. Ensure, to the extent possible, that all prisoners
  1040. participate in decisions regarding the place of
  1041. detention appropriate to their sexual orientation and
  1042. gender identity;
  1043.  
  1044. D. Put protective measures in place for all prisoners
  1045. vulnerable to violence or abuse on the basis of their
  1046. sexual orientation, gender identity or gender
  1047. expression and ensure, so far as is reasonably
  1048. practicable, that such protective measures involve no
  1049. greater restriction of their rights than is experienced
  1050. by the general prison population;
  1051.  
  1052. E. Ensure that conjugal visits, where permitted, are
  1053. 25
  1054.  
  1055.  
  1056. granted on an equal basis to all prisoners and
  1057. detainees, regardless of the gender of their partner;
  1058.  
  1059. F. Provide for the independent monitoring of detention
  1060. facilities by the State as well as by non-governmental
  1061. organisations including organisations working in the
  1062. spheres of sexual orientation and gender identity;
  1063.  
  1064. G. Undertake programmes of training and awareness-
  1065. raising for prison personnel and all other officials in
  1066. the public and private sector who are engaged in
  1067. detention facilities, regarding international human
  1068. rights standards and principles of equality and non-
  1069. discrimination, including in relation to sexual
  1070. orientation and gender identity.
  1071.  
  1072. 18. PROTECTION FROM MEDICAL ABUSES
  1073.  
  1074. No person may be forced to undergo any form of
  1075. medical or psychological treatment, procedure, testing,
  1076. or be confined to a medical facility, based on sexual
  1077. orientation or gender identity. Notwithstanding any
  1078. classifications to the contrary, a person's sexual
  1079. orientation and gender identity are not, in and of
  1080. themselves, medical conditions and are not to be
  1081. treated, cured or suppressed.
  1082.  
  1083. States shall:
  1084.  
  1085. A. Take all necessary legislative, administrative and
  1086. other measures to ensure full protection against
  1087. harmful medical practices based on sexual
  1088. orientation or gender identity, including on the basis
  1089. of stereotypes, whether derived from culture or
  1090. otherwise, regarding conduct, physical appearance or
  1091. perceived gender norms;
  1092.  
  1093. B. Take all necessary legislative, administrative and
  1094. other measures to ensure that no child's body is
  1095. irreversibly altered by medical procedures in an
  1096. attempt to impose a gender identity without the full,
  1097. free and informed consent of the child in accordance
  1098. 26
  1099.  
  1100.  
  1101. with the age and maturity of the child and guided by
  1102. the principle that in all actions concerning children,
  1103. the best interests of the child shall be a primary
  1104. consideration;
  1105.  
  1106. C. Establish child protection mechanisms whereby no
  1107. child is at risk of, or subjected to, medical abuse;
  1108.  
  1109. D. Ensure protection of persons of diverse sexual
  1110. orientations and gender identities against unethical or
  1111. involuntary medical procedures or research, including
  1112. in relation to vaccines, treatments or microbicides for
  1113. HIV/AIDS or other diseases;
  1114.  
  1115. E. Review and amend any health funding provisions or
  1116. programmes, including those of a development-
  1117. assistance nature, which may promote, facilitate or in
  1118. any other way render possible such abuses;
  1119.  
  1120. F. Ensure that any medical or psychological treatment
  1121. or counselling does not, explicitly or implicitly, treat
  1122. sexual orientation and gender identity as medical
  1123. conditions to be treated, cured or suppressed.
  1124.  
  1125. 19. THE RIGHT TO FREEDOM OF OPINION AND
  1126. EXPRESSION
  1127.  
  1128. Everyone has the right to freedom of opinion and
  1129. expression, regardless of sexual orientation or gender
  1130. identity. This includes the expression of identity or
  1131. personhood through speech, deportment, dress, bodily
  1132. characteristics, choice of name, or any other means, as
  1133. well as the freedom to seek, receive and impart
  1134. information and ideas of all kinds, including with regard
  1135. to human rights, sexual orientation and gender identity,
  1136. through any medium and regardless of frontiers.
  1137.  
  1138. States shall:
  1139.  
  1140. A. Take all necessary legislative, administrative and
  1141. other measures to ensure full enjoyment of freedom
  1142. of opinion and expression, while respecting the rights
  1143. 27
  1144.  
  1145.  
  1146. and freedoms of others, without discrimination on the
  1147. basis of sexual orientation or gender identity,
  1148. including the receipt and imparting of information and
  1149. ideas concerning sexual orientation and gender
  1150. identity, as well as related advocacy for legal rights,
  1151. publication of materials, broadcasting, organisation of
  1152. or participation in conferences, and dissemination of
  1153. and access to safer-sex information;
  1154.  
  1155. B. Ensure that the outputs and the organisation of
  1156. media that is State-regulated is pluralistic and non-
  1157. discriminatory in respect of issues of sexual
  1158. orientation and gender identity and that the personnel
  1159. recruitment and promotion policies of such
  1160. organisations are non-discriminatory on the basis of
  1161. sexual orientation or gender identity;
  1162.  
  1163. C. Take all necessary legislative, administrative and
  1164. other measures to ensure the full enjoyment of the
  1165. right to express identity or personhood, including
  1166. through speech, deportment, dress, bodily
  1167. characteristics, choice of name or any other means;
  1168.  
  1169. D. Ensure that notions of public order, public morality,
  1170. public health and public security are not employed to
  1171. restrict, in a discriminatory manner, any exercise of
  1172. freedom of opinion and expression that affirms
  1173. diverse sexual orientations or gender identities;
  1174.  
  1175. E. Ensure that the exercise of freedom of opinion and
  1176. expression does not violate the rights and freedoms
  1177. of persons of diverse sexual orientations and gender
  1178. identities;
  1179.  
  1180. F. Ensure that all persons, regardless of sexual
  1181. orientation or gender identity, enjoy equal access to
  1182. information and ideas, as well as to participation in
  1183. public debate."
  1184. 28
  1185.  
  1186.  
  1187. 23. UN bodies, Regional Human Rights Bodies, National Courts,
  1188.  
  1189. Government Commissions and the Commissions for Human
  1190.  
  1191. Rights, Council of Europe, etc. have endorsed the Yogyakarta
  1192.  
  1193. Principles and have considered them as an important tool for
  1194.  
  1195. identifying the obligations of States to respect, protect and fulfill the
  1196.  
  1197. human rights of all persons, regardless of their gender identity.
  1198.  
  1199. United Nations Committee on Economic, Social and Cultural
  1200.  
  1201. Rights in its Report of 2009 speaks of gender orientation and
  1202.  
  1203. gender identity as follows:-
  1204.  
  1205. "Sexual orientation and gender identity
  1206. `Other status' as recognized in article 2, paragraph 2,
  1207. includes sexual orientation. States parties should
  1208. ensure that a person's sexual orientation is not a
  1209. barrier to realizing Covenant rights, for example, in
  1210. accessing survivor's pension rights. In addition,
  1211. gender identity is recognized as among the prohibited
  1212. grounds of discrimination, for example, persons who
  1213. are transgender, transsexual or intersex, often face
  1214. serious human rights violations, such as harassment
  1215. in schools or in the workplace."
  1216.  
  1217.  
  1218. 24. In this respect, reference may also be made to the General
  1219.  
  1220. Comment No.2 of the Committee on Torture and Article 2 of the
  1221.  
  1222. Convention against Torture and Other Cruel, Inhuman or
  1223.  
  1224. Degrading Treatment or Punishment in 2008 and also the General
  1225.  
  1226. Comment No.20 of the Committee on Elimination of Discrimination
  1227.  
  1228. against Woman, responsible for the implementation of the
  1229. 29
  1230.  
  1231.  
  1232. Convention on the Elimination of All Forms of Discrimination
  1233.  
  1234. against Woman, 1979 and 2010 report.
  1235.  
  1236.  
  1237. SRS and Foreign Judgments
  1238.  
  1239.  
  1240. 25. Various countries have given recognition to the gender
  1241.  
  1242. identity of such persons, mostly, in cases where transsexual
  1243.  
  1244. persons started asserting their rights after undergoing SRS of their
  1245.  
  1246. re-assigned sex. In Corbett v. Corbett (1970) 2 All ER 33, the
  1247.  
  1248. Court in England was concerned with the gender of a male to
  1249.  
  1250. female transsexual in the context of the validity of a marriage.
  1251.  
  1252. Ormrod, J. in that case took the view that the law should adopt the
  1253.  
  1254. chromosomal, gonadal and genital tests and if all three are
  1255.  
  1256. congruent, that should determine a person's sex for the purpose of
  1257.  
  1258. marriage. Learned Judge expressed the view that any operative
  1259.  
  1260. intervention should be ignored and the biological sexual
  1261.  
  1262. constitution of an individual is fixed at birth, at the latest, and
  1263.  
  1264. cannot be changed either by the natural development of organs of
  1265.  
  1266. the opposite sex or by medical or surgical means. Later, in R v.
  1267.  
  1268. Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied
  1269.  
  1270. Corbett approach in the context of criminal law. The Court upheld
  1271. 30
  1272.  
  1273.  
  1274. convictions which were imposed on Gloria Greaves, a post-
  1275.  
  1276. operative male to female transsexual, still being in law, a man.
  1277.  
  1278.  
  1279. 26. Corbett principle was not found favour by various other
  1280.  
  1281. countries, like New Zealand, Australia etc. and also attracted much
  1282.  
  1283. criticism, from the medical profession. It was felt that the
  1284.  
  1285. application of the Corbett approach would lead to a substantial
  1286.  
  1287. different outcome in cases of a post operative inter-sexual person
  1288.  
  1289. and a post operative transsexual person. In New Zealand in
  1290.  
  1291. Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603,
  1292.  
  1293. Justice Ellis noted that once a transsexual person has undergone
  1294.  
  1295. surgery, he or she is no longer able to operate in his or her original
  1296.  
  1297. sex. It was held that there is no social advantage in the law for not
  1298.  
  1299. recognizing the validity of the marriage of a transsexual in the sex
  1300.  
  1301. of reassignment. The Court held that an adequate test is whether
  1302.  
  1303. the person in question has undergone surgical and medical
  1304.  
  1305. procedures that have effectively given the person the physical
  1306.  
  1307. conformation of a person of a specified sex. In Re Kevin (Validity
  1308.  
  1309. of Marriage of Transsexual) (2001) Fam CA 1074, in an
  1310.  
  1311. Australian case, Chisholm J., held that there is no `formulaic
  1312.  
  1313. solution' to determine the sex of an individual for the purpose of the
  1314.  
  1315. law of marriage. It was held that all relevant matters need to be
  1316. 31
  1317.  
  1318.  
  1319. considered, including the person's life experiences and self-
  1320.  
  1321. perception. Full Court of the Federal Family Court in the year
  1322.  
  1323. 2003 approved the above-mentioned judgment holding that in the
  1324.  
  1325. relevant Commonwealth marriage statute the words `man' and
  1326.  
  1327. `woman' should be given their ordinary, everyday contemporary
  1328.  
  1329. meaning and that the word `man' includes a post operative female
  1330.  
  1331. to male transsexual person. The Full Court also held that there
  1332.  
  1333. was a biological basis for transsexualism and that there was no
  1334.  
  1335. reason to exclude the psyche as one of the relevant factors in
  1336.  
  1337. determining sex and gender. The judgment Attorney-General for
  1338.  
  1339. the Commonwealth & "Kevin and Jennifer" & Human Rights
  1340.  
  1341. and Equal Opportunity Commission is reported in (2003) Fam
  1342.  
  1343. CA 94.
  1344.  
  1345.  
  1346. 27. Lockhart, J. in Secretary, Department of Social Security v.
  1347.  
  1348. "SRA", (1993) 43 FCR 299 and Mathews, J. in R v. Harris &
  1349.  
  1350. McGuiness (1988) 17 NSWLR 158, made an exhaustive review of
  1351.  
  1352. the various decisions with regard to the question of recognition to
  1353.  
  1354. be accorded by Courts to the gender of a transsexual person who
  1355.  
  1356. had undertaken a surgical procedure. The Courts generally in
  1357.  
  1358. New Zealand held that the decision in Corbett v. Corbett (supra)
  1359.  
  1360. and R v. Tan (supra) which applied a purely biological test, should
  1361. 32
  1362.  
  1363.  
  1364. not be followed. In fact, Lockhart. J. in SRA observed that the
  1365.  
  1366. development in surgical and medical techniques in the field of
  1367.  
  1368. sexual reassignment, together with indications of changing social
  1369.  
  1370. attitudes towards transsexuals, would indicate that generally they
  1371.  
  1372. should not be regarded merely as a matter of chromosomes, which
  1373.  
  1374. is purely a psychological question, one of self-perception, and
  1375.  
  1376. partly a social question, how society perceives the individual.
  1377.  
  1378.  
  1379. 28. A.B. v. Western Australia (2011) HCA 42 was a case
  1380.  
  1381. concerned with the Gender Reassignment Act, 2000. In that Act, a
  1382.  
  1383. person who had undergone a reassignment procedure could apply
  1384.  
  1385. to Gender Reassignment Board for the issue of a recognition
  1386.  
  1387. certificate. Under Section 15 of that Act, before issuing the
  1388.  
  1389. certificate, the Board had to be satisfied, inter alia, that the
  1390.  
  1391. applicant believed his or her true gender was the person's
  1392.  
  1393. reassigned gender and had adopted the lifestyle and gender
  1394.  
  1395. characteristics of that gender. Majority of Judges agreed with
  1396.  
  1397. Lockhart, J. in SRA that gender should not be regarded merely as
  1398.  
  1399. a matter of chromosomes, but partly a psychological question, one
  1400.  
  1401. of self-perception, and partly a social question, how society
  1402.  
  1403. perceives the individual.
  1404. 33
  1405.  
  1406.  
  1407. 29. The House of Lords in Bellinger v. Bellinger (2003) 2 All ER
  1408.  
  1409. 593 was dealing with the question of a transsexual. In that case,
  1410.  
  1411. Mrs. Bellinger was born on 7th September, 1946. At birth, she was
  1412.  
  1413. correctly classified and registered as male. However, she felt
  1414.  
  1415. more inclined to be a female. Despite her inclinations, and under
  1416.  
  1417. some pressure, in 1967 she married a woman and at that time she
  1418.  
  1419. was 21 years old. Marriage broke down and parties separated in
  1420.  
  1421. 1971 and got divorce in the year 1975. Mrs. Bellinger dressed and
  1422.  
  1423. lived like a woman and when she married Mr. Bellinger, he was
  1424.  
  1425. fully aware of her background and throughout had been supportive
  1426.  
  1427. to her. Mr. and Mrs. Bellinger since marriage lived happily as
  1428.  
  1429. husband and wife and presented themselves in that fashion to the
  1430.  
  1431. outside world. Mrs. Bellinger's primary claim was for a declaration
  1432.  
  1433. under Section 55 of the Family Law Act, 1986 that her marriage to
  1434.  
  1435. Mr. Bellinger in 1981 was "at its inception valid marriage". The
  1436.  
  1437. House of Lords rejected the claim and dismissed the appeal.
  1438.  
  1439. Certainly, the "psychological factor" has not been given much
  1440.  
  1441. prominence in determination of the claim of Mrs. Bellinger.
  1442.  
  1443.  
  1444. 30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah
  1445.  
  1446. Jabatan Pendaftaran Negara (2006) 1 MLJ 90, was considering
  1447.  
  1448. the question as to whether an application to amend or correct
  1449. 34
  1450.  
  1451.  
  1452. gender status stated in National Registration Identity Card could
  1453.  
  1454. be allowed after a person has undergone SRS. It was a case
  1455.  
  1456. where the plaintiff was born as a male, but felt more inclined to be
  1457.  
  1458. a woman. In 1996 at Hospital Siroros she underwent a gender
  1459.  
  1460. reassignment and got the surgery done for changing the sex from
  1461.  
  1462. male to female and then she lived like a woman. She applied to
  1463.  
  1464. authorities to change her name and also for a declaration of her
  1465.  
  1466. gender as female, but her request was not favourably considered,
  1467.  
  1468. but still treated as a male. She sought a declaration from the
  1469.  
  1470. Court that she be declared as a female and that the Registration
  1471.  
  1472. Department be directed to change the last digit of her identity card
  1473.  
  1474. to a digit that reflects a female gender. The Malaysian Court
  1475.  
  1476. basically applied the principle laid down in Corbett (supra),
  1477.  
  1478. however, both the prayers sought for were granted, after noticing
  1479.  
  1480. that the medical men have spoken that the plaintiff is a female and
  1481.  
  1482. they have considered the sex change of the plaintiff as well as her
  1483.  
  1484. "psychological aspect". The Court noticed that she feels like a
  1485.  
  1486. woman, lives like one, behaves as one, has her physical body
  1487.  
  1488. attuned to one, and most important of all, her "psychological
  1489.  
  1490. thinking" is that of a woman.
  1491. 35
  1492.  
  1493.  
  1494. 31. The Court of Appeal, New South Wales was called upon to
  1495.  
  1496. decide the question whether the Registrar of Births, Deaths and
  1497.  
  1498. Marriages has the power under the Births, Deaths and Marriages
  1499.  
  1500. Act, 1995 to register a change of sex of a person and the sex
  1501.  
  1502. recorded on the register to "non-specific" or "non-specified". The
  1503.  
  1504. appeal was allowed and the matter was remitted back to the
  1505.  
  1506. Tribunal for a fresh consideration in accordance with law, after
  1507.  
  1508. laying down the law on the subject. The judgment is reported as
  1509.  
  1510. Norrie v. NSW Registrar of Births, Deaths and Marriages
  1511.  
  1512. (2013) NSWCA 145. While disposing of the appeal, the Court held
  1513.  
  1514. as follows:-
  1515.  
  1516. "The consequence is that the Appeal Panel (and the
  1517. Tribunal and the Registrar) were in error in construing
  1518. the power in S.32DC(1) as limiting the Registrar to
  1519. registering a person's change of sex as only male or
  1520. female. An error in the construction of the statutory
  1521. provision granting the power to register a person's
  1522. change of sex is an error on a question of law.
  1523. Collector of Customs v. Pozzolanic Enterprises Pty.
  1524. Ltd. [1993] FCA 322; (1993) 43 FCR 280 at 287. This
  1525. is so notwithstanding that the determination of the
  1526. common understanding of a general word used in the
  1527. statutory provision is a question of fact. The Appeal
  1528. Panel (and the Tribunal and the Registrar) erred in
  1529. determining that the current ordinary meaning of the
  1530. word "sex" is limited to the character of being either
  1531. male or female. That involved an error on a question
  1532. of fact. But the Appeal Panel's error in arriving at the
  1533. common understanding of the word "sex" was
  1534. associated with its error in construction of the effect of
  1535. the statutory provision of S.32DC (and also of
  1536. 36
  1537.  
  1538.  
  1539. S.32DA), and accordingly is of law: Hope v. Bathurst
  1540. City Council [1980] HCA 16, (1980) 144 CLR 1 at 10."
  1541.  
  1542. 32. In Christine Goodwin v. United Kingdom (Application
  1543.  
  1544. No.28957/95 - Judgment dated 11th July, 2002), the European
  1545.  
  1546. Court of Human Rights examined an application alleging violation
  1547.  
  1548. of Articles 8, 12, 13 and 14 of the Convention for Protection of
  1549.  
  1550. Human Rights and Fundamental Freedoms, 1997 in respect of the
  1551.  
  1552. legal status of transsexuals in UK and particularly their treatment in
  1553.  
  1554. the sphere of employment, social security, pensions and marriage.
  1555.  
  1556. Applicant in that case had a tendency to dress as a woman from
  1557.  
  1558. early childhood and underwent aversion therapy in 1963-64. In
  1559.  
  1560. the mid-1960s she was diagnosed as a transsexual. Though she
  1561.  
  1562. married a woman and they had four children, her inclination was
  1563.  
  1564. that her "brain sex" did not fit her body. From that time until 1984
  1565.  
  1566. she dressed as a man for work but as a woman in her free time. In
  1567.  
  1568. January, 1985, the applicant began treatment at the Gender
  1569.  
  1570. Identity Clinic. In October, 1986, she underwent surgery to
  1571.  
  1572. shorten her vocal chords. In August, 1987, she was accepted on
  1573.  
  1574. the waiting list for gender re-assignment surgery and later
  1575.  
  1576. underwent that surgery at a National Health Service hospital. The
  1577.  
  1578. applicant later divorced her former wife. She claimed between
  1579.  
  1580. 1990 and 1992 she was sexually harassed by colleagues at work,
  1581. 37
  1582.  
  1583.  
  1584. followed by other human rights violations. The Court after referring
  1585.  
  1586. to various provisions and Conventions held as follows:-
  1587.  
  1588. "Nonetheless, the very essence of the Convention is
  1589. respect for human dignity and human freedom. Under
  1590. Article 8 of the Convention in particular, where the
  1591. notion of personal autonomy is an important principle
  1592. underlying the interpretation of its guarantees,
  1593. protection is given to the personal sphere of each
  1594. individuals, including the right to establish details of
  1595. their identity as individual human beings (see, inter
  1596. alia, Pretty v. the United Kingdom no.2346/02,
  1597. judgment of 29 April 2002, 62, and Mikulic v. Croatia,
  1598. no.53176/99, judgment of 7 February 2002, 53, both to
  1599. be published in ECHR 2002...). In the twenty first
  1600. century the right of transsexuals to personal
  1601. development and to physical and moral security in the
  1602. full sense enjoyed by others in society cannot be
  1603. regarded as a matter of controversy requiring the lapse
  1604. of time to cast clearer light on the issues involved. In
  1605. short, the unsatisfactory situation in which post-
  1606. operative transsexuals live in an intermediate zone as
  1607. not quite one gender or the other is no longer
  1608. sustainable."
  1609.  
  1610. 33. The European Court of Human Rights in the case of Van
  1611.  
  1612. Kuck v. Germany (Application No.35968/97 - Judgment dated
  1613.  
  1614. 12.9.2003) dealt with the application alleging that German Court's
  1615.  
  1616. decisions refusing the applicant's claim for reimbursement of
  1617.  
  1618. gender reassignment measures and the related proceedings were
  1619.  
  1620. in breach of her rights to a fair trial and of her right to respect for
  1621.  
  1622. her private life and that they amounted to discrimination on the
  1623.  
  1624. ground of her particular "psychological situation". Reliance was
  1625. 38
  1626.  
  1627.  
  1628. placed on Articles 6, 8, 13 and 14 of the Convention for Protection
  1629.  
  1630. of Human Rights and Fundamental Freedoms, 1997. The Court
  1631.  
  1632. held that the concept of "private life" covers the physical and
  1633.  
  1634. psychological integrity of a person, which can sometimes embrace
  1635.  
  1636. aspects of an individual's physical and social identity. For
  1637.  
  1638. example, gender identifications, name and sexual orientation and
  1639.  
  1640. sexual life fall within the personal sphere protected by Article 8.
  1641.  
  1642. The Court also held that the notion of personal identity is an
  1643.  
  1644. important principle underlying the interpretation of various
  1645.  
  1646. guaranteed rights and the very essence of the Convention being
  1647.  
  1648. respect for human dignity and human freedom, protection is given
  1649.  
  1650. to the right of transsexuals to personal development and to
  1651.  
  1652. physical and moral security.
  1653.  
  1654.  
  1655. 34. Judgments referred to above are mainly related to
  1656.  
  1657. transsexuals, who, whilst belonging physically to one sex, feel
  1658.  
  1659. convinced that they belong to the other, seek to achieve a more
  1660.  
  1661. integrated unambiguous identity by undergoing medical and
  1662.  
  1663. surgical operations to adapt their physical characteristic to their
  1664.  
  1665. psychological nature. When we examine the rights of transsexual
  1666.  
  1667. persons, who have undergone SRS, the test to be applied is not
  1668.  
  1669. the "Biological test", but the "Psychological test", because
  1670. 39
  1671.  
  1672.  
  1673. psychological factor and thinking of transsexual has to be given
  1674.  
  1675. primacy than binary notion of gender of that person. Seldom
  1676.  
  1677. people realize the discomfort, distress and psychological trauma,
  1678.  
  1679. they undergo and many of them undergo "Gender Dysphoria'
  1680.  
  1681. which may lead to mental disorder. Discrimination faced by this
  1682.  
  1683. group in our society, is rather unimaginable and their rights have to
  1684.  
  1685. be protected, irrespective of chromosomal sex, genitals, assigned
  1686.  
  1687. birth sex, or implied gender role. Rights of transgenders, pure and
  1688.  
  1689. simple, like Hijras, eunuchs, etc. have also to be examined, so
  1690.  
  1691. also their right to remain as a third gender as well as their physical
  1692.  
  1693. and psychological integrity. Before addressing those aspects
  1694.  
  1695. further, we may also refer to few legislations enacted in other
  1696.  
  1697. countries recognizing their rights.
  1698.  
  1699.  
  1700. LEGISLATIONS IN OTHER COUNTRIES ON TGs
  1701.  
  1702.  
  1703. 35. We notice, following the trend, in the international human
  1704.  
  1705. rights law, many countries have enacted laws for recognizing
  1706.  
  1707. rights of transsexual persons, who have undergone either
  1708.  
  1709. partial/complete SRS, including United Kingdom, Netherlands,
  1710.  
  1711. Germany, Australia, Canada, Argentina, etc. United Kingdom has
  1712.  
  1713. passed the General Recommendation Act, 2004, following the
  1714. 40
  1715.  
  1716.  
  1717. judgment in Christine Goodwin (supra) passed by the European
  1718.  
  1719. Courts of Human Rights. The Act is all encompassing as not only
  1720.  
  1721. does it provide legal recognition to the acquired gender of a
  1722.  
  1723. person, but it also lays down provisions highlighting the
  1724.  
  1725. consequences of the newly acquired gender status on their legal
  1726.  
  1727. rights and entitlements in various aspects such as marriage,
  1728.  
  1729. parentage, succession, social security and pensions etc. One of
  1730.  
  1731. the notable features of the Act is that it is not necessary that a
  1732.  
  1733. person needs to have undergone or in the process of undergoing
  1734.  
  1735. a SRS to apply under the Act. Reference in this connection may
  1736.  
  1737. be made to the Equality Act, 2010 (UK) which has consolidated,
  1738.  
  1739. repealed and replaced around nine different anti-discrimination
  1740.  
  1741. legislations including the Sex Discrimination Act, 1986. The Act
  1742.  
  1743. defines certain characteristics to be "protected characteristics" and
  1744.  
  1745. no one shall be discriminated or treated less favourably on
  1746.  
  1747. grounds that the person possesses one or more of the "protected
  1748.  
  1749. characteristics". The Act also imposes duties on Public Bodies to
  1750.  
  1751. eliminate all kinds of discrimination, harassment and victimization.
  1752.  
  1753. Gender reassignment has been declared as one of the protected
  1754.  
  1755. characteristics under the Act, of course, only the transsexuals i.e.
  1756.  
  1757. those who are proposing to undergo, is undergoing or has
  1758. 41
  1759.  
  1760.  
  1761. undergone the process of the gender reassignment are protected
  1762.  
  1763. under the Act.
  1764.  
  1765.  
  1766. 36. In Australia, there are two Acts dealing with the gender
  1767.  
  1768. identity, (1) Sex Discrimination Act, 1984; and (ii) Sex
  1769.  
  1770. Discrimination Amendment (Sexual Orientation, Gender Identity
  1771.  
  1772. and Intersex Status) Act, 2013 (Act 2013). Act 2013 amends the
  1773.  
  1774. Sex Discrimination Act, 1984. Act 2013 defines gender identity as
  1775.  
  1776. the appearance or mannerisms or other gender-related
  1777.  
  1778. characteristics of a person (whether by way of medical intervention
  1779.  
  1780. or not) with or without regard to the person's designated sex at
  1781.  
  1782. birth.
  1783.  
  1784. Sections 5(A), (B) and (C) of the 2013 Act have some
  1785.  
  1786. relevance and the same are extracted hereinbelow:-
  1787.  
  1788. "5A Discrimination on the ground of sexual
  1789. orientation
  1790.  
  1791. (1) For the purposes of this Act, a person (the
  1792. discriminator) discriminates against another person
  1793. (the aggrieved person) on the ground of the aggrieved
  1794. person's sexual orientation if, by reason of:
  1795.  
  1796. (a) the aggrieved person's sexual orientation; or
  1797. (b) a characteristic that appertains generally to
  1798. persons who have the same sexual orientation as
  1799. the aggrieved person; or
  1800. (c) a characteristic that is generally imputed to
  1801. persons who have the same sexual orientation as
  1802. the aggrieved person;
  1803. 42
  1804.  
  1805.  
  1806.  
  1807. the discriminator treats the aggrieved person less
  1808. favourably than, in circumstances that are the same or
  1809. are not materially different, the discriminator treats or
  1810. would treat a person who has a different sexual
  1811. orientation.
  1812.  
  1813. (2) For the purposes of this Act, a person (the
  1814. discriminator) discriminates against another person
  1815. (the aggrieved person) on the ground of the aggrieved
  1816. person's sexual orientation if the discriminator imposes,
  1817. or proposes to impose, a condition, requirement or
  1818. practice that has, or is likely to have, the effect of
  1819. disadvantaging persons who have the same sexual
  1820. orientation as the aggrieved person.
  1821.  
  1822. (3) This section has effect subject to sections 7B and
  1823. 7D.
  1824.  
  1825. 5B Discrimination on the ground of gender identity
  1826.  
  1827. (1) For the purposes of this Act, a person (the
  1828. discriminator) discriminates against another person
  1829. (the aggrieved person) on the ground of the aggrieved
  1830. person's gender identity if, by reason of:
  1831. (a) the aggrieved person's gender identity; or
  1832. (b) a characteristic that appertains generally to
  1833. persons who have the same gender identity as the
  1834. aggrieved person; or
  1835. (c) a characteristic that is generally imputed to
  1836. persons who have the same gender identity as the
  1837. aggrieved person;
  1838.  
  1839. the discriminator treats the aggrieved person less
  1840. favourably than, in circumstances that are the same or
  1841. are not materially different, the discriminator treats or
  1842. would treat a person who has a different gender identity.
  1843.  
  1844. (2) For the purposes of this Act, a person (the
  1845. discriminator) discriminates against another person
  1846. (the aggrieved person) on the ground of the aggrieved
  1847. person's gender identity if the discriminator imposes, or
  1848. 43
  1849.  
  1850.  
  1851. proposes to impose, a condition, requirement or practice
  1852. that has, or is likely to have, the effect of disadvantaging
  1853. persons who have the same gender identity as the
  1854. aggrieved person.
  1855.  
  1856. (3) This section has effect subject to sections 7B and
  1857. 7D.
  1858.  
  1859. 5C Discrimination on the ground of intersex status
  1860.  
  1861. (1) For the purposes of this Act, a person (the
  1862. discriminator) discriminates against another person
  1863. (the aggrieved person) on the ground of the aggrieved
  1864. person's intersex status if, by reason of:
  1865. (a) the aggrieved person's intersex status; or
  1866.  
  1867. (b) a characteristic that appertains generally to
  1868. persons of intersex status; or
  1869.  
  1870. (c) a characteristic that is generally imputed to
  1871. persons of intersex status;
  1872.  
  1873. the discriminator treats the aggrieved person less
  1874. favourably than, in circumstances that are the same or
  1875. are not materially different, the discriminator treats or
  1876. would treat a person who is not of intersex status.
  1877.  
  1878. (2) For the purposes of this Act, a person (the
  1879. discriminator) discriminates against another person
  1880. (the aggrieved person) on the ground of the aggrieved
  1881. person's intersex status if the discriminator imposes, or
  1882. proposes to impose, a condition, requirement or practice
  1883. that has, or is likely to have, the effect of disadvantaging
  1884. persons of intersex status.
  1885.  
  1886. (3) This section has effect subject to sections 7B and
  1887. 7D."
  1888. Various other precautions have also been provided under
  1889.  
  1890. the Act.
  1891. 44
  1892.  
  1893.  
  1894. 37. We may in this respect also refer to the European Union
  1895.  
  1896. Legislations on transsexuals. Recital 3 of the Preamble to the
  1897.  
  1898. Directive 2006/54/EC of European Parliament and the Council of 5
  1899.  
  1900. July 2006 makes an explicit reference to discrimination based on
  1901.  
  1902. gender reassignment for the first time in European Union Law.
  1903.  
  1904. Recital 3 reads as under :-
  1905.  
  1906. "The Court of Justice has held that the scope of the
  1907. principle of equal treatment for men and women cannot
  1908. be confined to the prohibition of discrimination based on
  1909. the fact that a person is of one or other sex. In view of
  1910. this purpose and the nature of the rights which it seeks
  1911. to safeguard, it also applies to discrimination arising
  1912. from the gender reassignment of a person."
  1913.  
  1914.  
  1915. 38. European Parliament also adopted a resolution on
  1916.  
  1917. discrimination against transsexuals on 12th September, 1989 and
  1918.  
  1919. called upon the Member States to take steps for the protection of
  1920.  
  1921. transsexual persons and to pass legislation to further that end.
  1922.  
  1923. Following that Hungary has enacted Equal Treatment and the
  1924.  
  1925. Promotion of Equal Opportunities Act, 2003, which includes sexual
  1926.  
  1927. identity as one of the grounds of discrimination. 2010 paper on
  1928.  
  1929. `Transgender Persons' Rights in the EU Member States prepared
  1930.  
  1931. by the Policy Department of the European Parliament presents
  1932.  
  1933. the specific situation of transgender people in 27 Member States
  1934.  
  1935. of the European Union. In the United States of America some of
  1936. 45
  1937.  
  1938.  
  1939. the laws enacted by the States are inconsistent with each other.
  1940.  
  1941. The Federal Law which provides protection to transgenders is The
  1942.  
  1943. Matthew Shepard and James Byrd. Jr. Hate Crimes Prevention
  1944.  
  1945. Act, 2009, which expands the scope of the 1969 United States
  1946.  
  1947. Federal Hate-crime Law by including offences motivated by actual
  1948.  
  1949. or perceived gender identity. Around 15 States and District of
  1950.  
  1951. Colombia in the United States have legislations which prohibit
  1952.  
  1953. discrimination on grounds of gender identity and expression. Few
  1954.  
  1955. States have issued executive orders prohibiting discrimination.
  1956.  
  1957.  
  1958. 39. The Parliament of South Africa in the year 2003, enacted
  1959.  
  1960. Alteration of Sex Description and Sex Status Act, 2003, which
  1961.  
  1962. permits transgender persons who have undergone gender
  1963.  
  1964. reassignment or people whose sexual characteristics have
  1965.  
  1966. evolved naturally or an intersexed person to apply to the Director
  1967.  
  1968. General of the National Department of Home Affairs for alteration
  1969.  
  1970. of his/her sex description in the birth register, though the
  1971.  
  1972. legislation does not contemplate a more inclusive definition of
  1973.  
  1974. transgenders.
  1975.  
  1976.  
  1977. 40. The Senate of Argentina in the year 2012 passed a law on
  1978.  
  1979. Gender Identity that recognizes right by all persons to the
  1980. 46
  1981.  
  1982.  
  1983. recognition of their gender identity as well as free development of
  1984.  
  1985. their person according to their gender identity and can also
  1986.  
  1987. request that their recorded sex be amended along with the
  1988.  
  1989. changes in first name and image, whenever they do not agree with
  1990.  
  1991. the self-perceived gender identity. Not necessary that they
  1992.  
  1993. seemed to prove that a surgical procedure for total or partial
  1994.  
  1995. genital reassignment, hormonal therapies or any other
  1996.  
  1997. psychological or medical treatment had taken place. Article 12
  1998.  
  1999. deals with dignified treatment, respecting the gender identity
  2000.  
  2001. adopted by the individual, even though the first name is different
  2002.  
  2003. from the one recorded in their national identity documents.
  2004.  
  2005. Further laws also provide that whenever requested by the
  2006.  
  2007. individual, the adopted first name must be used for summoning,
  2008.  
  2009. recording, filing, calling and any other procedure or service in
  2010.  
  2011. public and private spaces.
  2012.  
  2013.  
  2014. 41. In Germany, a new law has come into force on 5th November,
  2015.  
  2016. 2013, which allows the parents to register the sex of the children
  2017.  
  2018. as `not specified' in the case of children with intersex variation.
  2019.  
  2020. According to Article 22, Section 3 of the German Civil Statutes Act
  2021.  
  2022. reads as follows:-
  2023. 47
  2024.  
  2025.  
  2026. "If a child can be assigned to neither the female nor the
  2027. male sex then the child has to be named without a
  2028. specification"
  2029.  
  2030.  
  2031. 42. The law has also added a category of X, apart from "M" and
  2032.  
  2033. "F" under the classification of gender in the passports.
  2034.  
  2035.  
  2036. Indian Scenario
  2037.  
  2038.  
  2039. 43. We have referred exhaustively to the various judicial
  2040.  
  2041. pronouncements and legislations on the international arena to
  2042.  
  2043. highlight the fact that the recognition of "sex identity gender" of
  2044.  
  2045. persons, and "guarantee to equality and non-discrimination" on the
  2046.  
  2047. ground of gender identity or expression is increasing and gaining
  2048.  
  2049. acceptance in international law and, therefore, be applied in India
  2050.  
  2051. as well.
  2052.  
  2053.  
  2054. 44. Historical background of Transgenders in India has already
  2055.  
  2056. been dealth in the earlier part of this Judgment indicating that they
  2057.  
  2058. were once treated with great respect, at least in the past, though
  2059.  
  2060. not in the present. We can perceive a wide range of transgender
  2061.  
  2062. related identities, cultures or experiences which are generally as
  2063.  
  2064. follows:
  2065.  
  2066. "Hijras: Hijras are biological males who reject their
  2067. `masculine' identity in due course of time to identify either
  2068. 48
  2069.  
  2070.  
  2071. as women, or "not-men", or "in-between man and
  2072. woman", or "neither man nor woman". Hijras can be
  2073. considered as the western equivalent of
  2074. transgender/transsexual (male-to-female) persons but
  2075. Hijras have a long tradition/culture and have strong social
  2076. ties formalized through a ritual called "reet" (becoming a
  2077. member of Hijra community). There are regional
  2078. variations in the use of terms referred to Hijras. For
  2079. example, Kinnars (Delhi) and Aravanis (Tamil Nadu).
  2080. Hijras may earn through their traditional work: `Badhai'
  2081. (clapping their hands and asking for alms), blessing new-
  2082. born babies, or dancing in ceremonies. Some proportion
  2083. of Hijras engage in sex work for lack of other job
  2084. opportunities, while some may be self-employed or work
  2085. for non-governmental organisations." (See UNDP India
  2086. Report (December, 2010).
  2087.  
  2088. Eunuch: Eunuch refers to an emasculated male and
  2089. intersexed to a person whose genitals are ambiguously
  2090. male-like at birth, but this is discovered the child
  2091. previously assigned to the male sex, would be
  2092. recategorized as intesexexd - as a Hijra.
  2093.  
  2094. "Aravanis and `Thirunangi' - Hijras in Tamil Nadu
  2095. identify as "Aravani". Tamil Nadu Aravanigal Welfare
  2096. Board, a state government's initiative under the
  2097. Department of Social Welfare defines Aravanis as
  2098. biological males who self-identify themselves as a woman
  2099. trapped in a male's body. Some Aravani activists want
  2100. the public and media to use the term `Thirunangi' to refer
  2101. to Aravanis.
  2102.  
  2103. Kothi - Kothis are a heterogeneous group. `Kothis' can
  2104. be described as biological males who show varying
  2105. degrees of `femininity' - which may be situational. Some
  2106. proportion of Kothis have bisexual behavior and get
  2107. married to a woman. Kothis are generally of lower
  2108. socioeconomic status and some engage in sex work for
  2109. survival. Some proportion of Hijra-identified people may
  2110. also identify themselves as `Kothis'. But not all Kothi
  2111. identified people identify themselves as transgender or
  2112. Hijras.
  2113. 49
  2114.  
  2115.  
  2116.  
  2117. Jogtas/Jogappas: Jogtas or Jogappas are those persons
  2118. who are dedicated to and serve as a servant of goddess
  2119. Renukha Devi (Yellamma) whose temples are present in
  2120. Maharashtra and Karnataka. `Jogta' refers to male servant
  2121. of that Goddess and `Jogti' refers to female servant (who is
  2122. also sometimes referred to as `Devadasi'). One can
  2123. become a `Jogta' (or Jogti) if it is part of their family
  2124. tradition or if one finds a `Guru' (or `Pujari') who accepts
  2125. him/her as a `Chela' or `Shishya' (disciple). Sometimes, the
  2126. term `Jogti Hijras' is used to denote those male-to-female
  2127. transgender persons who are devotees/servants of
  2128. Goddess Renukha Devi and who are also in the Hijra
  2129. communities. This term is used to differentiate them from
  2130. `Jogtas' who are heterosexuals and who may or may not
  2131. dress in woman's attire when they worship the Goddess.
  2132. Also, that term differentiates them from `Jogtis' who are
  2133. biological females dedicated to the Goddess. However,
  2134. `Jogti Hijras' may refer to themselves as `Jogti' (female
  2135. pronoun) or Hijras, and even sometimes as `Jogtas'.
  2136.  
  2137. Shiv-Shakthis: Shiv-Shakthis are considered as males
  2138. who are possessed by or particularly close to a goddess
  2139. and who have feminine gender expression. Usually, Shiv-
  2140. Shakthis are inducted into the Shiv-Shakti community by
  2141. senior gurus, who teach them the norms, customs, and
  2142. rituals to be observed by them. In a ceremony, Shiv-
  2143. Shakthis are married to a sword that represents male
  2144. power or Shiva (deity). Shiv-Shakthis thus become the
  2145. bride of the sword. Occasionally, Shiv-Shakthis cross-
  2146. dress and use accessories and ornaments that are
  2147. generally/socially meant for women. Most people in this
  2148. community belong to lower socio-economic status and earn
  2149. for their living as astrologers, soothsayers, and spiritual
  2150. healers; some also seek alms." (See Serena Nanda,
  2151. Wadsworth Publishing Company, Second Edition
  2152. (1999)
  2153.  
  2154.  
  2155. 45. Transgender people, as a whole, face multiple forms of
  2156.  
  2157. oppression in this country. Discrimination is so large and
  2158. 50
  2159.  
  2160.  
  2161. pronounced, especially in the field of health care, employment,
  2162.  
  2163. education, leave aside social exclusion. A detailed study was
  2164.  
  2165. conducted by the United Nations Development Programme
  2166.  
  2167. (UNDP - India) and submitted a report in December, 2010 on
  2168.  
  2169. Hijras/transgenders in India: "HIV Human Rights and Social
  2170.  
  2171. Exclusion". The Report states that the HIV Human
  2172.  
  2173. Immunodeficiency Virus and Sexually Transmitted Infections (STI)
  2174.  
  2175. is now increasingly seen in Hijras/transgenders population. The
  2176.  
  2177. estimated size of men who have sex with men (MSM) and male
  2178.  
  2179. sex workers population in India (latter presumably includes Hijras/
  2180.  
  2181. TG communities) is 2,352,133 and 235,213 respectively. It was
  2182.  
  2183. stated that no reliable estimates are available for Hijras/TG
  2184.  
  2185. women. HIV prevalence among MSM population was 7.4%
  2186.  
  2187. against the overall adult HIV prevalence of 0.36%. It was stated
  2188.  
  2189. recently Hijras/TG people were included under the category of
  2190.  
  2191. MSM in HIV sentinel serosurveillance. It is also reported in recent
  2192.  
  2193. studies that Hijras/TG women have indicated a very high HIV
  2194.  
  2195. prevalence (17.5% to 41%) among them. Study conducted by
  2196.  
  2197. NACO also highlights a pathetic situation. Report submitted by
  2198.  
  2199. NACI, NACP IV Working Group Hijras TG dated 5.5.2011 would
  2200.  
  2201. indicate that transgenders are extremely vulnerable to HIV. Both
  2202. 51
  2203.  
  2204.  
  2205. the reports highlight the extreme necessity of taking emergent
  2206.  
  2207. steps to improve their sexual health, mental health and also
  2208.  
  2209. address the issue of social exclusion. The UNDP in its report has
  2210.  
  2211. made the following recommendations, which are as under:
  2212.  
  2213. "Multiple problems are faced by Hijras/TG, which
  2214. necessitate a variety of solutions and actions. While
  2215. some actions require immediate implementation such as
  2216. introducing Hijra/TG-specific social welfare schemes,
  2217. some actions need to be taken on a long-term basis
  2218. changing the negative attitude of the general public and
  2219. increasing accurate knowledge about Hijra/TG
  2220. communities. The required changes need to be reflected
  2221. in policies and laws; attitude of the government, general
  2222. public and health care providers; and health care systems
  2223. and practice. Key recommendations include the
  2224. following:
  2225.  
  2226. 1. Address the gape in NACP-III: establish HIV sentinel
  2227. serosurveillance sites for Hijras/TG at strategic
  2228. locations; conduct operations research to design and
  2229. fine-tune culturally-relevant package of HIV prevention
  2230. and care interventions for Hijras/TG; provide financial
  2231. support for the formation of CBOs run by Hijras/TG;
  2232. and build the capacity of CBOs to implement effective
  2233. rogrammes.
  2234.  
  2235. 2. Move beyond focusing on individual-level HIV
  2236. prevention activities to address the structural
  2237. determinants of risks and mitigate the impact of
  2238. risks. For example, mental health counseling, crisis
  2239. intervention (crisis in relation to suicidal tendencies,
  2240. police harassment and arrests, support following
  2241. sexual and physical violence), addressing alcohol and
  2242. drug abuse, and connecting to livelihood programs all
  2243. need to be part of the HIV interventions.
  2244.  
  2245. 3. Train health care providers to be competent and
  2246. sensitive in providing health care services (including
  2247. 52
  2248.  
  2249.  
  2250. STI and HIV-related services) to Hijras/TG as well as
  2251. develop and monitor implementation of guidelines
  2252. related to gender transition and sex reassignment
  2253. surgery (SRS).
  2254.  
  2255. 4. Clarify the ambiguous legal status of sex reassignment
  2256. surgery and provide gender transition and SRS
  2257. services (with proper pre-and post-operation/transition
  2258. counseling) for free in public hospitals in various parts
  2259. in India.
  2260.  
  2261. 5. Implement stigma and discrimination reduction
  2262. measures at various settings through a variety of
  2263. ways: mass media awareness for the general public to
  2264. focused training and sensitization for police and health
  2265. care providers.
  2266.  
  2267. 6. Develop action steps toward taking a position on legal
  2268. recognition of gender identity of Hijras/TG need to
  2269. be taken in consultation with Hijras/TG and other key
  2270. stakeholders. Getting legal recognition and avoiding
  2271. ambiguities in the current procedures that issue
  2272. identity documents to Hijras/TGs are required as they
  2273. are connected to basic civil rights such as access to
  2274. health and public services, right to vote, right to contest
  2275. elections, right to education, inheritance rights, and
  2276. marriage and child adoption.
  2277.  
  2278. 7. Open up the existing Social Welfare Schemes for
  2279. needy Hijras/TG and create specific welfare schemes
  2280. to address the basic needs of Hijras/TG including
  2281. housing and employment needs.
  2282.  
  2283. 8. Ensure greater involvement of vulnerable
  2284. communities including Hijras/TG women in policy
  2285. formulation and program development."
  2286.  
  2287.  
  2288. 46. Social exclusion and discrimination on the ground of gender
  2289.  
  2290. stating that one does not conform to the binary gender
  2291. 53
  2292.  
  2293.  
  2294. (male/female) does prevail in India. Discussion on gender identity
  2295.  
  2296. including self-identification of gender of male/female or as
  2297.  
  2298. transgender mostly focuses on those persons who are assigned
  2299.  
  2300. male sex at birth, whether one talks of Hijra transgender, woman
  2301.  
  2302. or male or male to female transgender persons, while concern
  2303.  
  2304. voiced by those who are identified as female to male trans-sexual
  2305.  
  2306. persons often not properly addressed. Female to male unlike Hijra/
  2307.  
  2308. transgender persons are not quite visible in public unlike
  2309.  
  2310. Hijra/transgender persons. Many of them, however, do experience
  2311.  
  2312. violence and discrimination because of their sexual orientation or
  2313.  
  2314. gender identity.
  2315.  
  2316.  
  2317. INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
  2318.  
  2319.  
  2320. 47. International Conventions and norms are significant for the
  2321.  
  2322. purpose of interpretation of gender equality. Article 1 of the
  2323.  
  2324. Universal declaration on Human Rights, 1948, states that all
  2325.  
  2326. human-beings are born free and equal in dignity and rights. Article
  2327.  
  2328. 3 of the Universal Declaration of Human Rights states that
  2329.  
  2330. everyone has a right to life, liberty and security of person. Article 6
  2331.  
  2332. of the International Covenant on Civil and Political Rights, 1966
  2333.  
  2334. affirms that every human-being has the inherent right to life, which
  2335. 54
  2336.  
  2337.  
  2338. right shall be protected by law and no one shall be arbitrarily
  2339.  
  2340. deprived of his life. Article 5 of the Universal Declaration of
  2341.  
  2342. Human Rights and Article 7 of the International Covenant on Civil
  2343.  
  2344. and Political Rights provide that no one shall be subjected to
  2345.  
  2346. torture or to cruel inhuman or degrading treatment or punishment.
  2347.  
  2348. United Nations Convention against Torture and Other Cruel
  2349.  
  2350. Inhuman and Degrading Treatment or Punishment (dated 24th
  2351.  
  2352. January, 2008) specifically deals with protection of individuals and
  2353.  
  2354. groups made vulnerable by discrimination or marginalization.
  2355.  
  2356. Para 21 of the Convention states that States are obliged to protect
  2357.  
  2358. from torture or ill-treatment all persons regardless of sexual
  2359.  
  2360. orientation or transgender identity and to prohibit, prevent and
  2361.  
  2362. provide redress for torture and ill-treatment in all contests of State
  2363.  
  2364. custody or control. Article 12 of the Universal Declaration of
  2365.  
  2366. Human Rights and Article 17 of the International Covenant on Civil
  2367.  
  2368. and Political Rights state that no one shall be subjected to
  2369.  
  2370. "arbitrary or unlawful interference with his privacy, family, home or
  2371.  
  2372. correspondence".
  2373.  
  2374.  
  2375. 48. Above-mentioned International Human Rights instruments
  2376.  
  2377. which are being followed by various countries in the world are
  2378.  
  2379. aimed to protect the human rights of transgender people since it
  2380. 55
  2381.  
  2382.  
  2383. has been noticed that transgenders/transsexuals often face
  2384.  
  2385. serious human rights violations, such as harassment in work place,
  2386.  
  2387. hospitals, places of public conveniences, market places, theaters,
  2388.  
  2389. railway stations, bus stands, and so on.
  2390.  
  2391.  
  2392. 49. Indian Law, on the whole, only recognizes the paradigm of
  2393.  
  2394. binary genders of male and female, based on a person's sex
  2395.  
  2396. assigned by birth, which permits gender system, including the law
  2397.  
  2398. relating to marriage, adoption, inheritance, succession and
  2399.  
  2400. taxation and welfare legislations. We have exhaustively referred
  2401.  
  2402. to various articles contained in the Universal Declaration of Human
  2403.  
  2404. Rights, 1948, the International Covenant on Economic, Social and
  2405.  
  2406. Cultural Rights, 1966, the International Covenant on Civil and
  2407.  
  2408. Political Rights, 1966 as well as the Yogyakarta principles.
  2409.  
  2410. Reference was also made to legislations enacted in other
  2411.  
  2412. countries dealing with rights of persons of transgender community.
  2413.  
  2414. Unfortunately we have no legislation in this country dealing with
  2415.  
  2416. the rights of transgender community. Due to the absence of
  2417.  
  2418. suitable legislation protecting the rights of the members of the
  2419.  
  2420. transgender community, they are facing discrimination in various
  2421.  
  2422. areas and hence the necessity to follow the International
  2423.  
  2424. Conventions to which India is a party and to give due respect to
  2425. 56
  2426.  
  2427.  
  2428. other non-binding International Conventions and principles.
  2429.  
  2430. Constitution makers could not have envisaged that each and every
  2431.  
  2432. human activity be guided, controlled, recognized or safeguarded
  2433.  
  2434. by laws made by the legislature. Article 21 has been incorporated
  2435.  
  2436. to safeguard those rights and a constitutional Court cannot be a
  2437.  
  2438. mute spectator when those rights are violated, but is expected to
  2439.  
  2440. safeguard those rights knowing the pulse and feeling of that
  2441.  
  2442. community, though a minority, especially when their rights have
  2443.  
  2444. gained universal recognition and acceptance.
  2445.  
  2446.  
  2447. 50. Article 253 of the Constitution of India states that the
  2448.  
  2449. Parliament has the power to make any law for the whole or any
  2450.  
  2451. part of the territory of India for implementing any treaty, agreement
  2452.  
  2453. or convention. Generally, therefore, a legislation is required for
  2454.  
  2455. implementing the international conventions, unlike the position in
  2456.  
  2457. the United States of America where the rules of international law
  2458.  
  2459. are applied by the municipal courts on the theory of their implied
  2460.  
  2461. adoption by the State, as a part of its own municipal law. Article
  2462.  
  2463. VI, Cl. (2) of the U.S. Constitution reads as follows:
  2464.  
  2465. "........all treaties made, or which shall be made, under
  2466. the authority of the united States, shall be the supreme
  2467. law of the land, and the judges in every State shall be
  2468. bound thereby, anything in the Constitution or laws of
  2469. any State to the contrary not-withstanding."
  2470. 57
  2471.  
  2472.  
  2473.  
  2474. 51. In the United States, however, it is open to the courts to
  2475.  
  2476. supersede or modify international law in its application or it may be
  2477.  
  2478. controlled by the treaties entered into by the United States. But, till
  2479.  
  2480. an Act of Congress is passed, the Court is bound by the law of
  2481.  
  2482. nations, which is part of the law of the land. Such a `supremacy
  2483.  
  2484. clause' is absent in our Constitution. Courts in India would apply
  2485.  
  2486. the rules of International law according to the principles of comity of
  2487.  
  2488. Nations, unless they are overridden by clear rules of domestic law.
  2489.  
  2490. See: Gramophone Company of India Ltd. v. Birendra Bahadur
  2491.  
  2492. Pandey (1984) 2 SCC 534 and Tractor Export v. Tarapore & Co.
  2493.  
  2494. (1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab
  2495.  
  2496. Republic (1966) 1 SCR 391. In the case of Jolly George
  2497.  
  2498. Varghese v. Bank of Cochin (1980) 2 SCC 360, the Court applied
  2499.  
  2500. the above principle in respect of the International Covenant on Civil
  2501.  
  2502. and Political Rights, 1966 as well as in connection with the
  2503.  
  2504. Universal Declaration of Human Rights. India has ratified the
  2505.  
  2506. above mentioned covenants, hence, those covenants can be used
  2507.  
  2508. by the municipal courts as an aid to the Interpretation of Statutes
  2509.  
  2510. by applying the Doctrine of Harmonization. But, certainly, if the
  2511.  
  2512. Indian law is not in conflict with the International covenants,
  2513.  
  2514. particularly pertaining to human rights, to which India is a party, the
  2515. 58
  2516.  
  2517.  
  2518. domestic court can apply those principles in the Indian conditions.
  2519.  
  2520. The Interpretation of International Conventions is governed by
  2521.  
  2522. Articles 31 and 32 of the Vienna Convention on the Law of Treaties
  2523.  
  2524. of 1969.
  2525.  
  2526.  
  2527. 52. Article 51 of the Directive Principles of State Policy, which
  2528.  
  2529. falls under Part IV of the Indian Constitution, reads as under:
  2530.  
  2531. "Art. 51. The State shall endeavour to -
  2532.  
  2533. (a)promote international peace and security;
  2534.  
  2535. (b) maintain just and honourable relations between
  2536. nations;
  2537.  
  2538. (c) Foster respect for international law and treaty
  2539. obligation in the dealings of organised peoples with
  2540. one another; and
  2541.  
  2542. (d)Encourage settlement of international disputes by
  2543. arbitration."
  2544.  
  2545. 53. Article 51, as already indicated, has to be read along with
  2546.  
  2547. Article 253 of the Constitution. If the parliament has made any
  2548.  
  2549. legislation which is in conflict with the international law, then Indian
  2550.  
  2551. Courts are bound to give effect to the Indian Law, rather than the
  2552.  
  2553. international law. However, in the absence of a contrary
  2554.  
  2555. legislation, municipal courts in India would respect the rules of
  2556.  
  2557. international law. In His Holiness Kesavananda Bharati
  2558.  
  2559. Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was
  2560. 59
  2561.  
  2562.  
  2563. stated that in view of Article 51 of the Constitution, the Court must
  2564.  
  2565. interpret language of the Constitution, if not intractable, in the light
  2566.  
  2567. of United Nations Charter and the solemn declaration subscribed to
  2568.  
  2569. it by India. In Apparel Export Promotion Council v. A. K.
  2570.  
  2571. Chopra (1999) 1 SCC 759, it was pointed out that domestic courts
  2572.  
  2573. are under an obligation to give due regard to the international
  2574.  
  2575. conventions and norms for construing the domestic laws, more so,
  2576.  
  2577. when there is no inconsistency between them and there is a void in
  2578.  
  2579. domestic law. Reference may also be made to the Judgments of
  2580.  
  2581. this Court in Githa Hariharan (Ms) and another v. Reserve Bank
  2582.  
  2583. of India and another (1999) 2 SCC 228, R.D. Upadhyay v. State
  2584.  
  2585. of Andhra Pradesh and others (2007) 15 SCC 337 and People's
  2586.  
  2587. Union for Civil Liberties v. Union of India and another (2005) 2
  2588.  
  2589. SCC 436. In Vishaka and others v. State of Rajasthan and
  2590.  
  2591. Others (1997) 6 SCC 241, this Court under Article 141 laid down
  2592.  
  2593. various guidelines to prevent sexual harassment of women in
  2594.  
  2595. working places, and to enable gender equality relying on Articles
  2596.  
  2597. 11, 24 and general recommendations 22, 23 and 24 of the
  2598.  
  2599. Convention on the Elimination of All Forms of Discrimination
  2600.  
  2601. against Women. Any international convention not inconsistent with
  2602.  
  2603. the fundamental rights and in harmony with its spirit must be read
  2604. 60
  2605.  
  2606.  
  2607. into those provisions, e.g., Articles 14, 15, 19 and 21 of the
  2608.  
  2609. Constitution to enlarge the meaning and content thereof and to
  2610.  
  2611. promote the object of constitutional guarantee. Principles
  2612.  
  2613. discussed hereinbefore on TGs and the International Conventions,
  2614.  
  2615. including Yogyakarta principles, which we have found not
  2616.  
  2617. inconsistent with the various fundamental rights guaranteed under
  2618.  
  2619. the Indian Constitution, must be recognized and followed, which
  2620.  
  2621. has sufficient legal and historical justification in our country.
  2622.  
  2623.  
  2624. ARTICLE 14 AND TRANSGENDERS
  2625.  
  2626.  
  2627. 54. Article 14 of the Constitution of India states that the State
  2628.  
  2629. shall not deny to "any person" equality before the law or the equal
  2630.  
  2631. protection of the laws within the territory of India. Equality includes
  2632.  
  2633. the full and equal enjoyment of all rights and freedom. Right to
  2634.  
  2635. equality has been declared as the basic feature of the Constitution
  2636.  
  2637. and treatment of equals as unequals or unequals as equals will be
  2638.  
  2639. violative of the basic structure of the Constitution. Article 14 of the
  2640.  
  2641. Constitution also ensures equal protection and hence a positive
  2642.  
  2643. obligation on the State to ensure equal protection of laws by
  2644.  
  2645. bringing in necessary social and economic changes, so that
  2646.  
  2647. everyone including TGs may enjoy equal protection of laws and
  2648. 61
  2649.  
  2650.  
  2651. nobody is denied such protection. Article 14 does not restrict the
  2652.  
  2653. word `person' and its application only to male or female.
  2654.  
  2655. Hijras/transgender persons who are neither male/female fall within
  2656.  
  2657. the expression `person' and, hence, entitled to legal protection of
  2658.  
  2659. laws in all spheres of State activity, including employment,
  2660.  
  2661. healthcare, education as well as equal civil and citizenship rights,
  2662.  
  2663. as enjoyed by any other citizen of this country.
  2664.  
  2665.  
  2666. 55. Petitioners have asserted as well as demonstrated on facts
  2667.  
  2668. and figures supported by relevant materials that despite
  2669.  
  2670. constitutional guarantee of equality, Hijras/transgender persons
  2671.  
  2672. have been facing extreme discrimination in all spheres of the
  2673.  
  2674. society. Non-recognition of the identity of Hijras/transgender
  2675.  
  2676. persons denies them equal protection of law, thereby leaving them
  2677.  
  2678. extremely vulnerable to harassment, violence and sexual assault in
  2679.  
  2680. public spaces, at home and in jail, also by the police. Sexual
  2681.  
  2682. assault, including molestation, rape, forced anal and oral sex, gang
  2683.  
  2684. rape and stripping is being committed with impunity and there are
  2685.  
  2686. reliable statistics and materials to support such activities. Further,
  2687.  
  2688. non-recognition of identity of Hijras /transgender persons results in
  2689.  
  2690. them facing extreme discrimination in all spheres of society,
  2691.  
  2692. especially in the field of employment, education, healthcare etc.
  2693. 62
  2694.  
  2695.  
  2696. Hijras/transgender persons face huge discrimination in access to
  2697.  
  2698. public spaces like restaurants, cinemas, shops, malls etc. Further,
  2699.  
  2700. access to public toilets is also a serious problem they face quite
  2701.  
  2702. often. Since, there are no separate toilet facilities for
  2703.  
  2704. Hijras/transgender persons, they have to use male toilets where
  2705.  
  2706. they are prone to sexual assault and harassment. Discrimination
  2707.  
  2708. on the ground of sexual orientation or gender identity, therefore,
  2709.  
  2710. impairs equality before law and equal protection of law and violates
  2711.  
  2712. Article 14 of the Constitution of India.
  2713.  
  2714.  
  2715. ARTICLES 15 & 16 AND TRANSGENDERS
  2716.  
  2717.  
  2718. 56. Articles 15 and 16 prohibit discrimination against any citizen
  2719.  
  2720. on certain enumerated grounds, including the ground of `sex'. In
  2721.  
  2722. fact, both the Articles prohibit all forms of gender bias and gender
  2723.  
  2724. based discrimination.
  2725.  
  2726.  
  2727. 57. Article 15 states that the State shall not discriminate against
  2728.  
  2729. any citizen, inter alia, on the ground of sex, with regard to
  2730.  
  2731. (a) access to shops, public restaurants, hotels and places of
  2732. public entertainment; or
  2733. (b) use of wells, tanks, bathing ghats, roads and places of public
  2734. resort maintained wholly or partly out of State funds or
  2735. dedicated to the use of the general public.
  2736. 63
  2737.  
  2738.  
  2739. The requirement of taking affirmative action for the
  2740.  
  2741. advancement of any socially and educationally backward classes
  2742.  
  2743. of citizens is also provided in this Article.
  2744.  
  2745.  
  2746. 58. Article 16 states that there shall be equality of opportunities
  2747.  
  2748. for all the citizens in matters relating to employment or appointment
  2749.  
  2750. to any office under the State. Article 16 (2) of the Constitution of
  2751.  
  2752. India reads as follows :
  2753.  
  2754. "16(2). No citizen shall, on grounds only of religion,
  2755. race, caste, sex, descent, place of birth, residence or
  2756. any of them, be ineligible for, or discriminated against
  2757. in respect or, any employment or office under the
  2758. State."
  2759.  
  2760. Article 16 not only prohibits discrimination on the ground of
  2761.  
  2762. sex in public employment, but also imposes a duty on the State to
  2763.  
  2764. ensure that all citizens are treated equally in matters relating to
  2765.  
  2766. employment and appointment by the State.
  2767.  
  2768.  
  2769. 59. Articles 15 and 16 sought to prohibit discrimination on the
  2770.  
  2771. basis of sex, recognizing that sex discrimination is a historical fact
  2772.  
  2773. and needs to be addressed. Constitution makers, it can be
  2774.  
  2775. gathered, gave emphasis to the fundamental right against sex
  2776.  
  2777. discrimination so as to prevent the direct or indirect attitude to treat
  2778.  
  2779. people differently, for the reason of not being in conformity with
  2780. 64
  2781.  
  2782.  
  2783. stereotypical generalizations of binary genders. Both gender and
  2784.  
  2785. biological attributes constitute distinct components of sex.
  2786.  
  2787. Biological characteristics, of course, include genitals,
  2788.  
  2789. chromosomes and secondary sexual features, but gender
  2790.  
  2791. attributes include one's self image, the deep psychological or
  2792.  
  2793. emotional sense of sexual identity and character. The
  2794.  
  2795. discrimination on the ground of `sex' under Articles 15 and 16,
  2796.  
  2797. therefore, includes discrimination on the ground of gender identity.
  2798.  
  2799. The expression `sex' used in Articles 15 and 16 is not just limited to
  2800.  
  2801. biological sex of male or female, but intended to include people
  2802.  
  2803. who consider themselves to be neither male or female.
  2804.  
  2805.  
  2806. 60. TGs have been systematically denied the rights under Article
  2807.  
  2808. 15(2) that is not to be subjected to any disability, liability, restriction
  2809.  
  2810. or condition in regard to access to public places. TGs have also
  2811.  
  2812. not been afforded special provisions envisaged under Article 15(4)
  2813.  
  2814. for the advancement of the socially and educationally backward
  2815.  
  2816. classes (SEBC) of citizens, which they are, and hence legally
  2817.  
  2818. entitled and eligible to get the benefits of SEBC. State is bound to
  2819.  
  2820. take some affirmative action for their advancement so that the
  2821.  
  2822. injustice done to them for centuries could be remedied. TGs are
  2823.  
  2824. also entitled to enjoy economic, social, cultural and political rights
  2825. 65
  2826.  
  2827.  
  2828. without discrimination, because forms of discrimination on the
  2829.  
  2830. ground of gender are violative of fundamental freedoms and human
  2831.  
  2832. rights. TGs have also been denied rights under Article 16(2) and
  2833.  
  2834. discriminated against in respect of employment or office under the
  2835.  
  2836. State on the ground of sex. TGs are also entitled to reservation in
  2837.  
  2838. the matter of appointment, as envisaged under Article 16(4) of the
  2839.  
  2840. Constitution. State is bound to take affirmative action to give them
  2841.  
  2842. due representation in public services.
  2843.  
  2844.  
  2845. 61. Articles 15(2) to (4) and Article 16(4) read with the Directive
  2846.  
  2847. Principles of State Policy and various international instruments to
  2848.  
  2849. which Indian is a party, call for social equality, which the TGs could
  2850.  
  2851. realize, only if facilities and opportunities are extended to them so
  2852.  
  2853. that they can also live with dignity and equal status with other
  2854.  
  2855. genders.
  2856.  
  2857.  
  2858. ARTICLE 19(1)(a) AND TRANSGENDERS
  2859.  
  2860.  
  2861. 62. Article 19(1) of the Constitution guarantees certain
  2862.  
  2863. fundamental rights, subject to the power of the State to impose
  2864.  
  2865. restrictions from exercise of those rights. The rights conferred by
  2866.  
  2867. Article 19 are not available to any person who is not a citizen of
  2868.  
  2869. India. Article 19(1) guarantees those great basic rights which are
  2870. 66
  2871.  
  2872.  
  2873. recognized and guaranteed as the natural rights inherent in the
  2874.  
  2875. status of the citizen of a free country. Article 19(1) (a) of the
  2876.  
  2877. Constitution states that all citizens shall have the right to freedom
  2878.  
  2879. of speech and expression, which includes one's right to expression
  2880.  
  2881. of his self-identified gender. Self-identified gender can be
  2882.  
  2883. expressed through dress, words, action or behavior or any other
  2884.  
  2885. form. No restriction can be placed on one's personal appearance
  2886.  
  2887. or choice of dressing, subject to the restrictions contained in Article
  2888.  
  2889. 19(2) of the Constitution.
  2890.  
  2891.  
  2892. 63. We may, in this connection, refer to few judgments of the US
  2893.  
  2894. Supreme Courts on the rights of TG's freedom of expression. The
  2895.  
  2896. Supreme Court of the State of Illinois in the City of Chicago v.
  2897.  
  2898. Wilson et al., 75 III.2d 525(1978) struck down the municipal law
  2899.  
  2900. prohibiting cross-dressing, and held as follows "-
  2901.  
  2902. "the notion that the State can regulate one's personal
  2903. appearance, unconfined by any constitutional strictures
  2904. whatsoever, is fundamentally inconsistent with "values
  2905. of privacy, self-identity, autonomy and personal
  2906. integrity that ..... the Constitution was designed to
  2907. protect."
  2908.  
  2909.  
  2910. 64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.),
  2911.  
  2912. the Superior Court of Massachusetts, upheld the right of a person
  2913. 67
  2914.  
  2915.  
  2916. to wear school dress that matches her gender identity as part of
  2917.  
  2918. protected speech and expression and observed as follows :-
  2919.  
  2920. "by dressing in clothing and accessories traditionally
  2921. associated with the female gender, she is expressing
  2922. her identification with the gender. In addition, plaintiff's
  2923. ability to express herself and her gender identity
  2924. through dress is important for her health and well-
  2925. being. Therefore, plaintiff's expression is not merely a
  2926. personal preference but a necessary symbol of her
  2927. identity."
  2928.  
  2929.  
  2930. 65. Principles referred to above clearly indicate that the freedom
  2931.  
  2932. of expression guaranteed under Article 19(1)(a) includes the
  2933.  
  2934. freedom to express one's chosen gender identity through varied
  2935.  
  2936. ways and means by way of expression, speech, mannerism,
  2937.  
  2938. clothing etc.
  2939.  
  2940.  
  2941. 66. Gender identity, therefore, lies at the core of one's personal
  2942.  
  2943. identity, gender expression and presentation and, therefore, it will
  2944.  
  2945. have to be protected under Article 19(1)(a) of the Constitution of
  2946.  
  2947. India. A transgender's personality could be expressed by the
  2948.  
  2949. transgender's behavior and presentation. State cannot prohibit,
  2950.  
  2951. restrict or interfere with a transgender's expression of such
  2952.  
  2953. personality, which reflects that inherent personality. Often the
  2954.  
  2955. State and its authorities either due to ignorance or otherwise fail to
  2956.  
  2957. digest the innate character and identity of such persons. We,
  2958. 68
  2959.  
  2960.  
  2961. therefore, hold that values of privacy, self-identity, autonomy and
  2962.  
  2963. personal integrity are fundamental rights guaranteed to members of
  2964.  
  2965. the transgender community under Article 19(1)(a) of the
  2966.  
  2967. Constitution of India and the State is bound to protect and
  2968.  
  2969. recognize those rights.
  2970.  
  2971.  
  2972. ARTICLE 21 AND THE TRANSGENDERS
  2973.  
  2974.  
  2975. 67. Article 21 of the Constitution of India reads as follows:
  2976.  
  2977. "21. Protection of life and personal liberty - No
  2978. person shall be deprived of his life or personal liberty
  2979. except according to procedure established by law."
  2980.  
  2981. Article 21 is the heart and soul of the Indian Constitution,
  2982.  
  2983. which speaks of the rights to life and personal liberty. Right to life
  2984.  
  2985. is one of the basic fundamental rights and not even the State has
  2986.  
  2987. the authority to violate or take away that right. Article 21 takes all
  2988.  
  2989. those aspects of life which go to make a person's life meaningful.
  2990.  
  2991. Article 21 protects the dignity of human life, one's personal
  2992.  
  2993. autonomy, one's right to privacy, etc. Right to dignity has been
  2994.  
  2995. recognized to be an essential part of the right to life and accrues to
  2996.  
  2997. all persons on account of being humans. In Francis Coralie
  2998.  
  2999. Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC
  3000.  
  3001. 608 (paras 7 and 8), this Court held that the right to dignity forms
  3002. 69
  3003.  
  3004.  
  3005. an essential part of our constitutional culture which seeks to
  3006.  
  3007. ensure the full development and evolution of persons and includes
  3008.  
  3009. "expressing oneself in diverse forms, freely moving about and
  3010.  
  3011. mixing and comingling with fellow human beings".
  3012.  
  3013.  
  3014. 68. Recognition of one's gender identity lies at the heart of the
  3015.  
  3016. fundamental right to dignity. Gender, as already indicated,
  3017.  
  3018. constitutes the core of one's sense of being as well as an integral
  3019.  
  3020. part of a person's identity. Legal recognition of gender identity is,
  3021.  
  3022. therefore, part of right to dignity and freedom guaranteed under
  3023.  
  3024. our Constitution.
  3025.  
  3026.  
  3027.  
  3028. 69. Article 21, as already indicated, guarantees the protection of
  3029.  
  3030. "personal autonomy" of an individual. In Anuj Garg v. Hotel
  3031.  
  3032. Association of India (2008) 3 SCC 1 (paragraphs 34-35), this
  3033.  
  3034. Court held that personal autonomy includes both the negative right
  3035.  
  3036. of not to be subject to interference by others and the positive right
  3037.  
  3038. of individuals to make decisions about their life, to express
  3039.  
  3040. themselves and to choose which activities to take part in. Self-
  3041.  
  3042. determination of gender is an integral part of personal autonomy
  3043.  
  3044. and self-expression and falls within the realm of personal liberty
  3045.  
  3046. guaranteed under Article 21 of the Constitution of India.
  3047. 70
  3048.  
  3049.  
  3050.  
  3051. LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY
  3052.  
  3053.  
  3054. 70. Self-identified gender can be either male or female or a third
  3055.  
  3056. gender. Hijras are identified as persons of third gender and are
  3057.  
  3058. not identified either as male or female. Gender identity, as already
  3059.  
  3060. indicated, refers to a person's internal sense of being male, female
  3061.  
  3062. or a transgender, for example Hijras do not identify as female
  3063.  
  3064. because of their lack of female genitalia or lack of reproductive
  3065.  
  3066. capability. This distinction makes them separate from both male
  3067.  
  3068. and female genders and they consider themselves neither man
  3069.  
  3070. nor woman, but a "third gender". Hijras, therefore, belong to a
  3071.  
  3072. distinct socio-religious and cultural group and have, therefore, to
  3073.  
  3074. be considered as a "third gender", apart from male and female.
  3075.  
  3076. State of Punjab has treated all TGs as male which is not legally
  3077.  
  3078. sustainable. State of Tamil Nadu has taken lot of welfare
  3079.  
  3080. measures to safeguard the rights of TGs, which we have to
  3081.  
  3082. acknowledge. Few States like Kerala, Tripura, Bihar have referred
  3083.  
  3084. TGs as "third gender or sex". Certain States recognize them as
  3085.  
  3086. "third category". Few benefits have also been extended by certain
  3087.  
  3088. other States. Our neighbouring countries have also upheld their
  3089.  
  3090. fundamental rights and right to live with dignity.
  3091. 71
  3092.  
  3093.  
  3094.  
  3095. 71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v.
  3096.  
  3097. Nepal Government (Writ Petition No.917 of 2007 decided on 21st
  3098.  
  3099. December, 2007), spoke on the rights of Transgenders as
  3100.  
  3101. follows:-
  3102.  
  3103. "the fundamental rights comprised under Part II of the
  3104. Constitution are enforceable fundamental human rights
  3105. guaranteed to the citizens against the State. For this
  3106. reason, the fundamental rights stipulated in Part III are
  3107. the rights similarly vested in the third gender people as
  3108. human beings. The homosexuals and third gender
  3109. people are also human beings as other men and
  3110. women are, and they are the citizens of this country as
  3111. well.... Thus, the people other than `men' and
  3112. `women', including the people of `third gender' cannot
  3113. be discriminated. The State should recognize the
  3114. existence of all natural persons including the people of
  3115. third gender other than the men and women. And it
  3116. cannot deprive the people of third gender from
  3117. enjoying the fundamental rights provided by Part III of
  3118. the Constitution."
  3119.  
  3120. 72. The Supreme Court of Pakistan in Dr. Mohammad Aslam
  3121.  
  3122. Khaki & Anr. V. Senior Superintendent of Police (Operation)
  3123.  
  3124. Rawalpindi & Ors. (Constitution Petition No.43 of 2009) decided
  3125.  
  3126. on 22nd March, 2011, had occasion to consider the rights of
  3127.  
  3128. eunuchs and held as follows:-
  3129.  
  3130. "Needless to observe that eunuchs in their rights are
  3131. citizens of this country and subject to the Constitution
  3132. of the Islamic Republic of Pakistan, 1973, their rights,
  3133. obligations including right to life and dignity are equally
  3134. protected. Thus no discrimination, for any reason, is
  3135. possible against them as far as their rights and
  3136. 72
  3137.  
  3138.  
  3139. obligations are concerned. The Government
  3140. functionaries both at federal and provincial levels are
  3141. bound to provide them protection of life and property
  3142. and secure their dignity as well, as is done in case of
  3143. other citizens."
  3144.  
  3145.  
  3146. 73. We may remind ourselves of the historical presence of the
  3147.  
  3148. third gender in this country as well as in the neighbouring countries.
  3149.  
  3150.  
  3151. 74. Article 21, as already indicated, protects one's right of self-
  3152.  
  3153. determination of the gender to which a person belongs.
  3154.  
  3155. Determination of gender to which a person belongs is to be
  3156.  
  3157. decided by the person concerned. In other words, gender identity
  3158.  
  3159. is integral to the dignity of an individual and is at the core of
  3160.  
  3161. "personal autonomy" and "self-determination". Hijras/Eunuchs,
  3162.  
  3163. therefore, have to be considered as Third Gender, over and above
  3164.  
  3165. binary genders under our Constitution and the laws.
  3166.  
  3167.  
  3168. 75. Articles 14, 15, 16, 19 and 21, above discussion, would
  3169.  
  3170. indicate, do not exclude Hijras/Transgenders from its ambit, but
  3171.  
  3172. Indian law on the whole recognize the paradigm of binary genders
  3173.  
  3174. of male and female, based on one's biological sex. As already
  3175.  
  3176. indicated, we cannot accept the Corbett principle of "Biological
  3177.  
  3178. Test", rather we prefer to follow the psyche of the person in
  3179.  
  3180. determining sex and gender and prefer the "Psychological Test"
  3181. 73
  3182.  
  3183.  
  3184. instead of "Biological Test". Binary notion of gender reflects in the
  3185.  
  3186. Indian Penal Code, for example, Section 8, 10, etc. and also in the
  3187.  
  3188. laws related to marriage, adoption, divorce, inheritance, succession
  3189.  
  3190. and other welfare legislations like NAREGA, 2005, etc. Non-
  3191.  
  3192. recognition of the identity of Hijras/Transgenders in the various
  3193.  
  3194. legislations denies them equal protection of law and they face
  3195.  
  3196. wide-spread discrimination.
  3197.  
  3198.  
  3199. 76. Article 14 has used the expression "person" and the Article 15
  3200.  
  3201. has used the expression "citizen" and "sex" so also Article 16.
  3202.  
  3203. Article 19 has also used the expression "citizen". Article 21 has
  3204.  
  3205. used the expression "person". All these expressions, which are
  3206.  
  3207. "gender neutral" evidently refer to human-beings. Hence, they take
  3208.  
  3209. within their sweep Hijras/Transgenders and are not as such limited
  3210.  
  3211. to male or female gender. Gender identity as already indicated
  3212.  
  3213. forms the core of one's personal self, based on self identification,
  3214.  
  3215. not on surgical or medical procedure. Gender identity, in our view,
  3216.  
  3217. is an integral part of sex and no citizen can be discriminated on the
  3218.  
  3219. ground of gender identity, including those who identify as third
  3220.  
  3221. gender.
  3222.  
  3223. 77. We, therefore, conclude that discrimination on the basis of
  3224.  
  3225. sexual orientation or gender identity includes any discrimination,
  3226. 74
  3227.  
  3228.  
  3229. exclusion, restriction or preference, which has the effect of
  3230.  
  3231. nullifying or transposing equality by the law or the equal protection
  3232.  
  3233. of laws guaranteed under our Constitution, and hence we are
  3234.  
  3235. inclined to give various directions to safeguard the constitutional
  3236.  
  3237. rights of the members of the TG community.
  3238.  
  3239.  
  3240.  
  3241. ...............................J
  3242. (K.S. Radhakrishnan)
  3243.  
  3244.  
  3245. A.K. SIKRI,J.
  3246.  
  3247. 78. I have carefully, and with lot of interest, gone through the
  3248.  
  3249. perspicuous opinion of my brother Radhakrishnan,J. I am entirely
  3250.  
  3251. in agreement with the discussion contained in the said judgment
  3252.  
  3253. on all the cardinal issues that have arisen for consideration in
  3254.  
  3255. these proceedings. At the same time, having regard to the fact that
  3256.  
  3257. the issues involved are of seminal importance, I am also inclined to
  3258.  
  3259. pen down my thoughts.
  3260.  
  3261.  
  3262. 79. As is clear, these petitions essentially raise an issue of
  3263.  
  3264. "Gender Identity", which is the core issue. It has two facets, viz.:
  3265.  
  3266. "(a) Whether a person who is born as a male with
  3267. predominantly female orientation (or vice-versa), has a right
  3268. to get himself to be recognized as a female as per his choice
  3269. moreso, when such a person after having undergone
  3270. 75
  3271.  
  3272.  
  3273. operational procedure, changes his/her sex as well;
  3274. (b) Whether transgender (TG), who are neither males nor
  3275. females, have a right to be identified and categorized as a
  3276. "third gender"?
  3277.  
  3278. 80. We would hasten to add that it is the second issue with which
  3279.  
  3280. we are primarily concerned in these petitions though in the process
  3281.  
  3282. of discussion, first issue which is somewhat inter-related, has also
  3283.  
  3284. popped up.
  3285.  
  3286.  
  3287. 81. Indubitably, the issue of choice of gender identify has all the
  3288.  
  3289. trappings of a human rights. That apart, as it becomes clear from
  3290.  
  3291. the reading of the judgment of my esteemed Brother
  3292.  
  3293. Radhakrishnan,J., the issue is not limited to the exercise of choice
  3294.  
  3295. of gender/sex. Many rights which flow from this choice also come
  3296.  
  3297. into play, inasmuch not giving them the status of a third gender
  3298.  
  3299. results in depriving the community of TGs of many of their valuable
  3300.  
  3301. rights and privileges which other persons enjoy as citizens of this
  3302.  
  3303. Country. There is also deprivation of social and cultural
  3304.  
  3305. participation which results into eclipsing their access to education
  3306.  
  3307. and health services. Radhakrishnan,J. has exhaustively described
  3308.  
  3309. the term `Transgender' as an umbrella term which embraces within
  3310.  
  3311. itself a wide range of identities and experiences including but not
  3312. 76
  3313.  
  3314.  
  3315. limited to pre-operative/post-operative trans sexual people who
  3316.  
  3317. strongly identify with the gender opposite to their biological sex i.e.
  3318.  
  3319. male/ female. Therein, the history of transgenders in India is also
  3320.  
  3321. traced and while doing so, there is mention of upon the draconian
  3322.  
  3323. legislation enacted during the British Rule, known as Criminal
  3324.  
  3325. Tribes Act, 1871 which treated, per se, the entire community of
  3326.  
  3327. Hizra persons as innately `criminals', `addicted to the systematic
  3328.  
  3329. commission of non-bailable offences'.
  3330.  
  3331.  
  3332. 82. With these introductory remarks, I revert to the two facets of
  3333.  
  3334. pivotal importance mentioned above. Before embarking on the
  3335.  
  3336. discussion, I may clarify that my endeavour would be not to repeat
  3337.  
  3338. the discussion contained in the judgment of my Brother
  3339.  
  3340. Radhakrishnan, J., as I agree with every word written therein.
  3341.  
  3342. However, at times, if some of the observations are re-narrated,
  3343.  
  3344. that would be only with a view to bring continuity in the thought
  3345.  
  3346. process.
  3347.  
  3348. (1) Re: Right of a person to have the gender of his/her
  3349.  
  3350. choice.
  3351.  
  3352. When a child is born, at the time of birth itself, sex is
  3353.  
  3354. assigned to him/her. A child would be treated with that sex
  3355.  
  3356. thereafter, i.e. either a male or a female. However, as explained in
  3357. 77
  3358.  
  3359.  
  3360. detail in the accompanying judgment, some persons, though
  3361.  
  3362. relatively very small in number, may born with bodies which
  3363.  
  3364. incorporate both or certain aspects of both male or female
  3365.  
  3366. physiology. It may also happen that though a person is born as a
  3367.  
  3368. male, because of some genital anatomy problems his innate
  3369.  
  3370. perception may be that of a female and all his actions would be
  3371.  
  3372. female oriented. The position may be exactly the opposite wherein
  3373.  
  3374. a person born as female may behave like a male person.
  3375.  
  3376.  
  3377. 83. In earlier times though one could observe such
  3378.  
  3379. characteristics, at the same time the underlying rationale or reason
  3380.  
  3381. behind such a behavior was not known. Over a period of time, with
  3382.  
  3383. in depth study and research of such physical and psychological
  3384.  
  3385. factors bevaviour, the causes of this behaviour have become
  3386.  
  3387. discernable which in turn, has led to some changes in societal
  3388.  
  3389. norms. Society has starting accepting, though slowly, these have
  3390.  
  3391. accepted the behavioral norms of such persons without treating it
  3392.  
  3393. as abnormal. Further, medical science has leaped forward to such
  3394.  
  3395. an extent that even physiology appearance of a person can be
  3396.  
  3397. changed through surgical procedures, from male to female and
  3398.  
  3399. vice-versa. In this way, such persons are able to acquire the body
  3400.  
  3401. which is in conformity with the perception of their gender/gender
  3402. 78
  3403.  
  3404.  
  3405. characteristics. In order to ensure that law also keeps pace with
  3406.  
  3407. the aforesaid progress in medical science, various countries have
  3408.  
  3409. come out with Legislation conferring rights on such persons to
  3410.  
  3411. recognize their gender identity based on reassigned sex after
  3412.  
  3413. undergoing Sex Re-Assignment Surgery (SRS). Law and
  3414.  
  3415. judgments given by the courts in other countries have been
  3416.  
  3417. exhaustively and grandiloquently traversed by my learned Brother
  3418.  
  3419. in his judgment, discussing amongst others, the Yogyakarta
  3420.  
  3421. principles, the relevant provisions of the Universal Declaration of
  3422.  
  3423. Human Rights 1948 and highlighting the statutory framework
  3424.  
  3425. operating in those countries.
  3426.  
  3427.  
  3428. 84. The genesis of this recognition lies in the acknowledgment of
  3429.  
  3430. another fundamental and universal principal viz. "right of choice"
  3431.  
  3432. given to an individual which is the inseparable part of human
  3433.  
  3434. rights. It is a matter of historical significance that the 20th Century
  3435.  
  3436. is often described as "the age of rights".
  3437.  
  3438.  
  3439. 85. The most important lesson which was learnt as a result of
  3440.  
  3441. Second World War was the realization by the Governments of
  3442.  
  3443. various countries about the human dignity which needed to be
  3444.  
  3445. cherished and protected. It is for this reason that in the
  3446. 79
  3447.  
  3448.  
  3449. U.N.Charter, 1945, adopted immediately after the Second World
  3450.  
  3451. War, dignity of the individuals was mentioned as of core value. The
  3452.  
  3453. almost contemporaneous Universal Declaration of Human Rights
  3454.  
  3455. (1948) echoed same sentiments.
  3456.  
  3457.  
  3458. 86. The underlined message in the aforesaid documents is the
  3459.  
  3460. acknowledgment that human rights are individual and have a
  3461.  
  3462. definite linkage of human development, both sharing common
  3463.  
  3464. vision and with a common purpose. Respect for human rights is
  3465.  
  3466. the root for human development and realization of full potential of
  3467.  
  3468. each individual, which in turn leads to the augmentation of human
  3469.  
  3470. resources with progress of the nation. Empowerment of the people
  3471.  
  3472. through human development is the aim of human rights.
  3473.  
  3474.  
  3475. 87. There is thus a universal recognition that human rights are
  3476.  
  3477. rights that "belong" to every person, and do not depend on the
  3478.  
  3479. specifics of the individual or the relationship between the right-
  3480.  
  3481. holder and the right-grantor. Moreover, human rights exist
  3482.  
  3483. irrespective of the question whether they are granted or
  3484.  
  3485. recognized by the legal and social system within which we live.
  3486.  
  3487. They are devices to evaluate these existing arrangements: ideally,
  3488.  
  3489. these arrangements should not violate human rights. In other
  3490. 80
  3491.  
  3492.  
  3493. words, human rights are moral, pre-legal rights. They are not
  3494.  
  3495. granted by people nor can they be taken away by them.
  3496.  
  3497.  
  3498. 88. In international human rights law, equality is found upon two
  3499.  
  3500. complementary principles: non-discrimination and reasonable
  3501.  
  3502. differentiation. The principle of non-discrimination seeks to ensure
  3503.  
  3504. that all persons can equally enjoy and exercise all their rights and
  3505.  
  3506. freedoms. Discrimination occurs due to arbitrary denial of
  3507.  
  3508. opportunities for equal participation. For example, when public
  3509.  
  3510. facilities and services are set on standards out of the reach of the
  3511.  
  3512. TGs, it leads to exclusion and denial of rights. Equality not only
  3513.  
  3514. implies preventing discrimination (example, the protection of
  3515.  
  3516. individuals against unfavourable treatment by introducing anti-
  3517.  
  3518. discrimination laws), but goes beyond in remedying discrimination
  3519.  
  3520. against groups suffering systematic discrimination in society. In
  3521.  
  3522. concrete terms, it means embracing the notion of positive rights,
  3523.  
  3524. affirmative action and reasonable accommodation.
  3525.  
  3526.  
  3527. 89. Nevertheless, the Universal Declaration of Human Rights
  3528.  
  3529. recognizes that all human beings are born free and equal in dignity
  3530.  
  3531. and rights and, since the Covenant's provisions apply fully to all
  3532.  
  3533. members of society, persons with disabilities are clearly entitled to
  3534. 81
  3535.  
  3536.  
  3537. the full range of rights recognized in the Covenant. Moreover, the
  3538.  
  3539. requirement contained in Article 2 of the Covenant that the rights
  3540.  
  3541. enunciated will be exercised without discrimination of any kind
  3542.  
  3543. based on certain specified grounds or other status clearly applies
  3544.  
  3545. to cover persons with disabilities.
  3546.  
  3547.  
  3548. 90. India attained independence within two years of adoption of
  3549.  
  3550. the aforesaid U.N.Charter and it was but natural that such a Bill of
  3551.  
  3552. Rights would assume prime importance insofar as thinking of the
  3553.  
  3554. members of the Constituent Assembly goes. It in fact did and we
  3555.  
  3556. found chapter on fundamental rights in Part-III of the Constitution.
  3557.  
  3558. It is not necessary for me, keeping in view the topic of today's
  3559.  
  3560. discussion, to embark on detailed discussion on Chapter-III. Some
  3561.  
  3562. of the provisions relevant for our purposes would be Article 14,
  3563.  
  3564. 15,16 and 21 of the Constitution which have already been
  3565.  
  3566. adverted to in detail in the accompanying judgment. At this
  3567.  
  3568. juncture it also needs to be emphasized simultaneously is that in
  3569.  
  3570. addition to the fundamental rights, Constitution makers also
  3571.  
  3572. deemed it proper to impose certain obligations on the State in the
  3573.  
  3574. form of "Directive Principles of State Policy" (Part-IV) as a mark of
  3575.  
  3576. good governance. It is this part which provides an ideal and
  3577.  
  3578. purpose to our Constitution and delineates certain principles which
  3579. 82
  3580.  
  3581.  
  3582. are fundamental in the governance of the country. Dr.Ambedkar
  3583.  
  3584. had explained the purpose of these Directive Principles in the
  3585.  
  3586. following manner (See Constituent Assembly debates):
  3587.  
  3588. "The Directive Principles are like the
  3589. Instruments of Instructions which were
  3590. issued to the Governor-General and the
  3591. Governors of Colonies, and to those of India
  3592. by the British Government under the 1935
  3593. Government of India Act. What is called
  3594. "Directive Principles" is merely another name
  3595. for the Instrument of Instructions. The only
  3596. difference is that they are instructions to the
  3597. legislature and the executive. Whoever
  3598. capture power will not be free to do what he
  3599. likes with it. In the exercise of it he will have
  3600. to respect these instruments of instructions
  3601. which are called Directive Principles".
  3602.  
  3603.  
  3604. 91. The basic spirit of our Constitution is to provide each and
  3605.  
  3606. every person of the nation equal opportunity to grow as a human
  3607.  
  3608. being, irrespective of race, caste, religion, community and social
  3609.  
  3610. status. Granville Austin while analyzing the functioning of Indian
  3611.  
  3612. Constitution in first 50 years ha described three distinguished
  3613.  
  3614. strands of Indian Constitution: (i)protecting national unity and
  3615.  
  3616. integrity, (ii)establishing the institution and spirit of democracy;
  3617.  
  3618. and (iii) fostering social reforms. The Strands are mutually
  3619.  
  3620. dependent, and inextricably intertwined in what he elegantly
  3621.  
  3622. describes as "a seamless web". And there cannot be social
  3623. 83
  3624.  
  3625.  
  3626. reforms till it is ensured that each and every citizen of this country
  3627.  
  3628. is able to exploit his/her potentials to the maximum. The
  3629.  
  3630. Constitution, although drafted by the Constituent Assembly, was
  3631.  
  3632. meant for the people of India and that is why it is given by the
  3633.  
  3634. people to themselves as expressed in the opening words "We the
  3635.  
  3636. People". What is the most important gift to the common person
  3637.  
  3638. given by this Constitution is "fundamental rights" which may be
  3639.  
  3640. called Human Rights as well.
  3641.  
  3642.  
  3643. 92. The concept of equality in Article 14 so also the meaning of
  3644.  
  3645. the words `life', `liberty' and `law' in Article 21 have been
  3646.  
  3647. considerably enlarged by judicial decisions. Anything which is not
  3648.  
  3649. `reasonable, just and fair' is not treated to be equal and is,
  3650.  
  3651. therefore, violative of Article 14.
  3652.  
  3653.  
  3654.  
  3655. 93. Speaking for the vision of our founding fathers, in State of
  3656.  
  3657. Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this Court
  3658.  
  3659. speaking through Justice Krishna Iyer observed:
  3660.  
  3661. "The social philosophy of the
  3662. Constitution shapes creative judicial vision
  3663. and orientation. Our nation has, as its
  3664. dynamic doctrine, economic democracy
  3665. sans which political democracy is
  3666. chimerical. We say so because our
  3667. Constitution, in Parts III and IV and
  3668. 84
  3669.  
  3670.  
  3671. elsewhere, ensouls such a value system,
  3672. and the debate in this case puts precisely
  3673. this soul in peril....Our thesis is that the
  3674. dialectics of social justice should not be
  3675. missed if the synthesis of Parts III and Part
  3676. IV is to influence State action and court
  3677. pronouncements. Constitutional problems
  3678. cannot be studied in a socio-economic
  3679. vacuum, since socio-cultural changes are
  3680. the source of the new values, and
  3681. sloughing off old legal thought is part of
  3682. the process the new equity-loaded legality.
  3683. A judge is a social scientist in his role as
  3684. constitutional invigilator and fails
  3685. functionally if he forgets this dimension in
  3686. his complex duties."
  3687.  
  3688.  
  3689. 94. While interpreting Art. 21, this Court has comprehended such
  3690.  
  3691. diverse aspects as children in jail entitled to special treatment
  3692.  
  3693. (Sheela Barse vs. Union of India [(1986)3 SCC 596], health
  3694.  
  3695. hazard due to pollution (Mehta M.C. v. Union of India [(1987) 4
  3696.  
  3697. SCC 463], beggars interest in housing (Kalidas Vs. State of J&K
  3698.  
  3699. [(1987) 3 SCC 430] health hazard from harmful drugs (Vincent
  3700.  
  3701. Panikurlangara Vs. Union of India AIR 1987 SC 990), right of
  3702.  
  3703. speedy trial (Reghubir Singh Vs. State of Bihar, AIR 1987 SC
  3704.  
  3705. 149), handcuffing of prisoners(Aeltemesh Rein Vs. Union of
  3706.  
  3707. India, AIR 1988 SC 1768), delay in execution of death sentence,
  3708.  
  3709. immediate medical aid to injured persons(Parmanand Katara Vs.
  3710.  
  3711. Union of India, AIR 1989 SC 2039), starvation deaths(Kishen Vs.
  3712. 85
  3713.  
  3714.  
  3715. State of Orissa, AIR 1989 SC 677), the right to know(Reliance
  3716.  
  3717. Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay
  3718.  
  3719. Pvt. Ltd. AIR 1989 SC 190), right to open trial(Kehar Singh Vs.
  3720.  
  3721. State (Delhi Admn.) AIR 1988 SC 1883), inhuman conditions an
  3722.  
  3723. after-care home(Vikram Deo Singh Tomar Vs. State of Bihar,
  3724.  
  3725. AIR 1988 SC 1782).
  3726.  
  3727.  
  3728. 95. A most remarkable feature of this expansion of Art.21 is that
  3729.  
  3730. many of the non-justiciable Directive Principles embodied in Part
  3731.  
  3732. IV of the Constitution have now been resurrected as enforceable
  3733.  
  3734. fundamental rights by the magic wand of judicial activism, playing
  3735.  
  3736. on Art.21 e.g.
  3737.  
  3738. (a) Right to pollution-free water and air (Subhash Kumar Vs.
  3739.  
  3740. State of Bihar, AIR 1991 SC 420).
  3741.  
  3742. (b) Right to a reasonable residence (Shantistar Builders Vs.
  3743.  
  3744. Narayan Khimalal Totame AIR 1990 SC 630).
  3745.  
  3746. (c) Right to food (Supra note 14), clothing, decent
  3747.  
  3748. environment (supra note 20) and even protection of cultural
  3749.  
  3750. heritage (Ram Sharan Autyanuprasi Vs. UOI, AIR 1989 SC
  3751.  
  3752. 549) .
  3753.  
  3754. (d) Right of every child to a full development (Shantistar
  3755.  
  3756. Builders Vs. Narayan Khimalal Totame AIR 1990 SC 630).
  3757. 86
  3758.  
  3759.  
  3760. (e) Right of residents of hilly-areas to access to roads(State
  3761.  
  3762. of H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847).
  3763.  
  3764. (f) Right to education (Mohini Jain Vs. State of Karnataka,
  3765.  
  3766. AIR 1992 SC 1858), but not for a professional degree (Unni
  3767.  
  3768. Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178).
  3769.  
  3770.  
  3771. 96. A corollary of this development is that while so long the
  3772.  
  3773. negative language of Art.21 and use of the word `deprived' was
  3774.  
  3775. supposed to impose upon the State the negative duty not to
  3776.  
  3777. interfere with the life or liberty of an individual without the sanction
  3778.  
  3779. of law, the width and amplitude of this provision has now imposed
  3780.  
  3781. a positive obligation (Vincent Panikurlangara Vs. UOI AIR 1987
  3782.  
  3783. SC 990) upon the State to take steps for ensuring to the individual
  3784.  
  3785. a better enjoyment of his life and dignity, e.g. -
  3786.  
  3787. (i) Maintenance and improvement of public health (Vincent
  3788.  
  3789. Panikurlangara Vs. UOI AIR 1987 SC 990).
  3790.  
  3791. (ii) Elimination of water and air pollution (Mehta M.C. Vs.
  3792.  
  3793. UOI (1987) 4 SCC 463).
  3794.  
  3795. (iii) Improvement of means of communication (State of H.P.
  3796.  
  3797. Vs. Umed Ram Sharma AIR 1986 SC 847).
  3798.  
  3799. (iv) Rehabilitation of bonded labourers (Bandhuva Mukti
  3800.  
  3801. Morcha Vs. UOI, AIR 1984 SC 802).
  3802. 87
  3803.  
  3804.  
  3805. (v) Providing human conditions if prisons (Sher Singh Vs.
  3806.  
  3807. State of Punjab AIR 1983 SC 465) and protective homes
  3808.  
  3809. (Sheela Barse Vs. UOI (1986) 3 SCC 596).
  3810.  
  3811. (vi) Providing hygienic condition in a slaughter-house
  3812.  
  3813. (Buffalo Traders Welfare Ass. Vs. Maneka Gandhi (1994) Suppl
  3814.  
  3815. (3) SCC 448) .
  3816.  
  3817.  
  3818. 97. The common golden thread which passes through all these
  3819.  
  3820. pronouncements is that Art.21 guarantees enjoyment of life by all
  3821.  
  3822. citizens of this country with dignity, viewing this human rights in
  3823.  
  3824. terms of human development.
  3825.  
  3826.  
  3827. 98. The concepts of justice social, economic and political,
  3828.  
  3829. equality of status and of opportunity and of assuring dignity of the
  3830.  
  3831. individual incorporated in the Preamble, clearly recognize the right
  3832.  
  3833. of one and all amongst the citizens of these basic essentials
  3834.  
  3835. designed to flower the citizen's personality to its fullest. The
  3836.  
  3837. concept of equality helps the citizens in reaching their highest
  3838.  
  3839. potential.
  3840.  
  3841.  
  3842. 99. Thus, the emphasis is on the development of an individual in
  3843.  
  3844. all respects. The basic principle of the dignity and freedom of the
  3845.  
  3846. individual is common to all nations, particularly those having
  3847. 88
  3848.  
  3849.  
  3850. democratic set up. Democracy requires us to respect and develop
  3851.  
  3852. the free spirit of human being which is responsible for all progress
  3853.  
  3854. in human history. Democracy is also a method by which we
  3855.  
  3856. attempt to raise the living standard of the people and to give
  3857.  
  3858. opportunities to every person to develop his/her personality. It is
  3859.  
  3860. founded on peaceful co-existence and cooperative living. If
  3861.  
  3862. democracy is based on the recognition of the individuality and
  3863.  
  3864. dignity of man, as a fortiori we have to recognize the right of a
  3865.  
  3866. human being to choose his sex/gender identity which is integral
  3867.  
  3868. his/her personality and is one of the most basic aspect of self-
  3869.  
  3870. determination dignity and freedom. In fact, there is a growing
  3871.  
  3872. recognition that the true measure of development of a nation is not
  3873.  
  3874. economic growth; it is human dignity.
  3875.  
  3876.  
  3877. 100. More than 225 years ago, Immanuel Kant propounded the
  3878.  
  3879. doctrine of free will, namely the free willing individual as a natural
  3880.  
  3881. law ideal. Without going into the detail analysis of his aforesaid
  3882.  
  3883. theory of justice (as we are not concerned with the analysis of his
  3884.  
  3885. jurisprudence) what we want to point out is his emphasis on the
  3886.  
  3887. "freedom" of human volition. The concepts of volition and freedom
  3888.  
  3889. are "pure", that is not drawn from experience. They are
  3890.  
  3891. independent of any particular body of moral or legal rules. They
  3892. 89
  3893.  
  3894.  
  3895. are presuppositions of all such rules, valid and necessary for all of
  3896.  
  3897. them.
  3898.  
  3899.  
  3900. 101. Over a period of time, two divergent interpretations of the
  3901.  
  3902. Kantian criterion of justice came to be discussed. One trend was
  3903.  
  3904. an increasing stress on the maximum of individual freedom of
  3905.  
  3906. action as the end of law. This may not be accepted and was
  3907.  
  3908. criticized by the protagonist of `hedonist utilitarianism', notably
  3909.  
  3910. Benthem. This school of thoughts laid emphasis on the welfare of
  3911.  
  3912. the society rather than an individual by propounding the principle
  3913.  
  3914. of maximum of happiness to most of the people. Fortunately, in the
  3915.  
  3916. instant case, there is no such dichotomy between the individual
  3917.  
  3918. freedom/liberty we are discussing, as against public good. On the
  3919.  
  3920. contrary, granting the right to choose gender leads to public good.
  3921.  
  3922. The second tendency of Kantian criterion of justice was found in
  3923.  
  3924. re-interpreting "freedom" in terms not merely of absence of
  3925.  
  3926. restraint but in terms of attainment of individual perfection. It is this
  3927.  
  3928. latter trend with which we are concerned in the present case and
  3929.  
  3930. this holds good even today. As pointed out above, after the
  3931.  
  3932. Second World War, in the form of U.N.Charter and thereafter there
  3933.  
  3934. is more emphasis on the attainment of individual perfection. In that
  3935.  
  3936. united sense at least there is a revival of natural law theory of
  3937. 90
  3938.  
  3939.  
  3940. justice. Blackstone, in the opening pages in his `Vattelian
  3941.  
  3942. Fashion' said that the principal aim of society "is to protect
  3943.  
  3944. individuals in the enjoyment of those absolute rights which were
  3945.  
  3946. vested in them by the immutable laws of nature......"
  3947.  
  3948.  
  3949. 102. In fact, the recognition that every individual has fundamental
  3950.  
  3951. right to achieve the fullest potential, is founded on the principle that
  3952.  
  3953. all round growth of an individual leads to common public good.
  3954.  
  3955. After all, human beings are also valuable asset of any country who
  3956.  
  3957. contribute to the growth and welfare of their nation and the society.
  3958.  
  3959. A person who is born with a particular sex and his forced to grow
  3960.  
  3961. up identifying with that sex, and not a sex that his/her
  3962.  
  3963. psychological behavior identifies with, faces innumerable obstacles
  3964.  
  3965. in growing up. In an article appeared in the magazine "Eye" of the
  3966.  
  3967. Sunday Indian Express (March 9-15, 2014) a person born as a boy
  3968.  
  3969. but with trappings of female ( who is now a female after SRS) has
  3970.  
  3971. narrated these difficulties in the following manner:
  3972.  
  3973.  
  3974. "The other children treated me as a boy,
  3975. but I preferred playing with girls.
  3976. Unfortunately, grown-ups consider that
  3977. okay only as long as you are a small child.
  3978. The constant inner conflict made things
  3979. difficult for me and, as I grew up, I began to
  3980. dread social interactions".
  3981. 91
  3982.  
  3983.  
  3984.  
  3985. 103. Such a person, carrying dual entity simultaneously, would
  3986.  
  3987. encounter mental and psychological difficulties which would hinder
  3988.  
  3989. his/her normal mental and even physical growth. It is not even
  3990.  
  3991. easy for such a person to take a decision to undergo SRS
  3992.  
  3993. procedure which requires strong mental state of affairs. However,
  3994.  
  3995. once that is decided and the sex is changed in tune with
  3996.  
  3997. psychological behavior, it facilitates spending the life smoothly.
  3998.  
  3999. Even the process of transition is not smooth. The transition from
  4000.  
  4001. a man to a woman is not an overnight process. It is a "painfully"
  4002.  
  4003. long procedure that requires a lot of patience. A person must first
  4004.  
  4005. undergo hormone therapy and, if possible, live as a member of the
  4006.  
  4007. desired sex for a while. To be eligible for hormone therapy, the
  4008.  
  4009. person needs at least two psychiatrists to certify that he or she is
  4010.  
  4011. mentally sound, and schizophrenia, depression and transvestism
  4012.  
  4013. have to be ruled out first. The psychiatric evaluation involved a
  4014.  
  4015. serious a questions on how Sunaina felt, when she got to know of
  4016.  
  4017. her confusion and need for sex change, whether she is a recluse,
  4018.  
  4019. her socio-economic condition, among other things.
  4020.  
  4021.  
  4022. 104. In the same article appearing in the "Eye" referred to
  4023.  
  4024. above, the person who had undergone the operation and became
  4025. 92
  4026.  
  4027.  
  4028. a complete girl, Sunaina (name changed) narrates the benefit
  4029.  
  4030. which ensued because of change in sex, in harmony with her
  4031.  
  4032. emotional and psychological character, as is clear from the
  4033.  
  4034. following passage in that article:
  4035.  
  4036. "Like many other single people in the city, she
  4037. can spend hours watching Friends, and reading
  4038. thrillers and Harry Potter. A new happiness
  4039. has taken seed in her and she says it does not
  4040. feel that she ever had a male body. "I am a
  4041. person who likes to laugh. Till my surgery,
  4042. behind every smile of mine, there was a
  4043. struggle. Now it's about time that I laughed for
  4044. real. I have never had a relationship in my life,
  4045. because somewhere, I always wanted to be
  4046. treated as a girl. Now, that I am a woman, I am
  4047. open to a new life, new relationships. I don't
  4048. have to hide anymore, I don't feel trapped
  4049. anymore. I love coding and my job. I love
  4050. cooking. I am learning French and when my left
  4051. foot recovers fully, I plan to learn dancing. And,
  4052. for the first time this year, I will vote with my new
  4053. name. I am looking forward to that," she says.
  4054.  
  4055.  
  4056. 105. If a person has changed his/her sex in tune with his/her
  4057.  
  4058. gender characteristics and perception ,which has become possible
  4059.  
  4060. because of the advancement in medical science, and when that is
  4061.  
  4062. permitted by in medical ethics with no legal embargo, we do not
  4063.  
  4064. find any impediment, legal or otherwise, in giving due recognition
  4065.  
  4066. to the gender identity based on the reassign sex after undergoing
  4067.  
  4068. SRS.
  4069. 93
  4070.  
  4071.  
  4072. 106. For these reasons, we are of the opinion that even in the
  4073.  
  4074. absence of any statutory regime in this country, a person has a
  4075.  
  4076. constitutional right to get the recognition as male or female after
  4077.  
  4078. SRS, which was not only his/her gender characteristic but has
  4079.  
  4080. become his/her physical form as well.
  4081.  
  4082. (2) Re: Right of TG to be identified and categorized as "third
  4083.  
  4084. gender".
  4085.  
  4086.  
  4087. 107. At the outset, it may be clarified that the term `transgender'
  4088.  
  4089. is used in a wider sense, in the present age. Even Gay, Lesbian,
  4090.  
  4091. bisexual are included by the descriptor `transgender'.
  4092.  
  4093. Etymologically, the term `transgender' is derived from two words,
  4094.  
  4095. namely `trans' and `gender'. Former is a Latin word which means
  4096.  
  4097. `across' or `beyond'. The grammatical meaning of `transgender',
  4098.  
  4099. therefore, is across or beyond gender. This has come to be known
  4100.  
  4101. as umbrella term which includes Gay men, Lesbians, bisexuals,
  4102.  
  4103. and cross dressers within its scope. However, while dealing with
  4104.  
  4105. the present issue we are not concerned with this aforesaid wider
  4106.  
  4107. meaning of the expression transgender.
  4108.  
  4109.  
  4110. 108. It is to be emphasized that Transgender in India have
  4111.  
  4112. assumed distinct and separate class/category which is not
  4113. 94
  4114.  
  4115.  
  4116. prevalent in other parts of the World except in some neighbouring
  4117.  
  4118. countries . In this country, TG community comprise of Hijaras,
  4119.  
  4120. enunch, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. In Indian
  4121.  
  4122. community transgender are referred as Hizra or the third gendered
  4123.  
  4124. people. There exists wide range of transgender-related identities,
  4125.  
  4126. cultures, or experience -including Hijras, Aravanis, Kothis,
  4127.  
  4128. jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological
  4129.  
  4130. males who reject their masculinity identity in due course of time to
  4131.  
  4132. identify either as women, or `not men'. Aravanis: Hijras in Tamil
  4133.  
  4134. Nadu identify as `Aravani'. Kothi: Kothis are heterogeneous group.
  4135.  
  4136. Kothis can be described as biological males who show varying
  4137.  
  4138. degrees of `feminity'. Jogtas/Jogappas: They are those who are
  4139.  
  4140. dedicated to serve as servant of Goddess Renukha Devi whose
  4141.  
  4142. temples are present in Maharashtra and Karnataka. Sometimes,
  4143.  
  4144. Jogti Hijras are used to denote such male-to-female transgender
  4145.  
  4146. persons who are devotees of Goddess Renukha and are also from
  4147.  
  4148. the Hijra community. Shiv-Shakthis: They are considered as males
  4149.  
  4150. who are possessed by or particularly close to a goddess and who
  4151.  
  4152. have feminine gender expression). The way they behave and acts
  4153.  
  4154. differs from the normative gender role of a men and women. For
  4155.  
  4156. them, furthering life is far more difficult since such people are
  4157. 95
  4158.  
  4159.  
  4160. neither categorized as men nor women and this deviation is
  4161.  
  4162. unacceptable to society's vast majority. Endeavour to live a life
  4163.  
  4164. with dignity is even worse. Obviously transvestites, the hijra beg
  4165.  
  4166. from merchants who quickly, under threat of obscene abuse,
  4167.  
  4168. respond to the silent demands of such detested individuals. On
  4169.  
  4170. occasion, especially festival days, they press their claims with
  4171.  
  4172. boisterous and ribald singing and dancing.( A Right to Exist:
  4173.  
  4174. Eunuchs and the State in Nineteenth-Century India Laurence W.
  4175.  
  4176. Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-387).
  4177.  
  4178.  
  4179.  
  4180.  
  4181. 109. Therefore, we make it clear at the outset that when we
  4182.  
  4183. discuss about the question of conferring distinct identity, we are
  4184.  
  4185. restrictive in our meaning which has to be given to TG community
  4186.  
  4187. i.e. hijra etc., as explained above.
  4188.  
  4189.  
  4190. 110. Their historical background and individual scenario has
  4191.  
  4192. been stated in detail in the accompanying judgment rendered by
  4193.  
  4194. my learned Brother. Few things which follow from this discussion
  4195.  
  4196. are summed up below:
  4197.  
  4198. "(a) Though in the past TG in India was treated with
  4199. great respect, that does not remain the scenario any
  4200. longer. Attrition in their status was triggered with the
  4201. 96
  4202.  
  4203.  
  4204. passing of the Criminal Tribes Act, 1871 which deemed
  4205. the entire community of Hijara persons as innately
  4206. `criminal' and `adapted to the systematic commission of
  4207. non-bailable offences'. This dogmatism and
  4208. indoctrination of Indian people with aforesaid
  4209. presumption, was totally capricious and nefarious. There
  4210. could not have been more harm caused to this
  4211. community with the passing of the aforesaid brutal
  4212. Legislation during British Regime with the vicious and
  4213. savage this mind set. To add insult to the irreparable
  4214. injury caused, Section 377 of the Indian Penal Code
  4215. was misused and abused as there was a tendency, in
  4216. British period, to arrest and prosecute TG persons under
  4217. Section 377 merely on suspicion. To undergo this sordid
  4218. historical harm caused to TGs of India, there is a need
  4219. for incessant efforts with effervescence.
  4220.  
  4221. (b) There may have been marginal improvement in the
  4222. social and economic condition of TGs in India. It is still
  4223. far from satisfactory and these TGs continue to face
  4224. different kinds of economic blockade and social
  4225. degradation. They still face multiple forms of oppression
  4226. in this country. Discrimination qua them is clearly
  4227. discernable in various fields including health care,
  4228. employment, education, social cohesion etc.
  4229.  
  4230. (c) The TGs are also citizens of this country. They also
  4231. have equal right to achieve their full potential as human
  4232. beings. For this purpose, not only they are entitled to
  4233. 97
  4234.  
  4235.  
  4236. proper education, social assimilation, access to public
  4237. and other places but employment opportunities as well.
  4238. The discussion above while dealing with the first issue,
  4239. therefore, equally applies to this issue as well.
  4240.  
  4241. 111. We are of the firm opinion that by recognizing such TGs as
  4242.  
  4243. third gender, they would be able to enjoy their human rights, to
  4244.  
  4245. which they are largely deprived of for want of this recognition. As
  4246.  
  4247. mentioned above, the issue of transgender is not merely a social
  4248.  
  4249. or medical issue but there is a need to adopt human right
  4250.  
  4251. approach towards transgenders which may focus on functioning as
  4252.  
  4253. an interaction between a person and their environment highlighting
  4254.  
  4255. the role of society and changing the stigma attached to them. TGs
  4256.  
  4257. face many disadvantages due to various reasons, particularly for
  4258.  
  4259. gender abnormality which in certain level needs to physical and
  4260.  
  4261. mental disability. Up till recently they were subjected to cruelty, pity
  4262.  
  4263. or charity. Fortunately, there is a paradigm shift in thinking from the
  4264.  
  4265. aforesaid approach to a rights based approach. Though, this may
  4266.  
  4267. be the thinking of human rights activist, the society has not kept
  4268.  
  4269. pace with this shift. There appears to be limited public knowledge
  4270.  
  4271. and understanding of same-sex sexual orientation and people
  4272.  
  4273. whose gender identity and expression are incongruent with their
  4274.  
  4275. biological sex. As a result of this approach, such persons are
  4276. 98
  4277.  
  4278.  
  4279. socially excluded from the mainstream of the society and they are
  4280.  
  4281. denied equal access to those fundamental rights and freedoms
  4282.  
  4283. that the other people enjoy freely.(See, Hijras/Transgender
  4284.  
  4285. Women in India: HIV, Human Rights and Social Exclusion, UNDP
  4286.  
  4287. report on India Issue: December, 2010).
  4288.  
  4289.  
  4290.  
  4291. 112. Some of the common and reported problem that
  4292.  
  4293. transgender most commonly suffer are: harassment by the police
  4294.  
  4295. in public places, harassment at home, police entrapment, rape,
  4296.  
  4297. discriminations, abuse in public places et.al. The other major
  4298.  
  4299. problems that the transgender people face in their daily life are
  4300.  
  4301. discrimination, lack of educational facilities, lack of medical
  4302.  
  4303. facilities, homelessness, unemployment, depression, hormone pill
  4304.  
  4305. abuse, tobacco and alcohol abuse, and problems related to
  4306.  
  4307. marriage and adoption. In spite of the adoption of Universal
  4308.  
  4309. Declaration of Human Rights (UDHR) in the year 1948, the
  4310.  
  4311. inherent dignity, equality, respect and rights of all human beings
  4312.  
  4313. throughout the world, the transgender are denied basic human
  4314.  
  4315. rights. This denial is premised on a prevalent juridical assumption
  4316.  
  4317. that the law should target discrimination based on sex (i.e.,
  4318.  
  4319. whether a person is anatomically male or female), rather than
  4320. 99
  4321.  
  4322.  
  4323. gender (i.e., whether a person has qualities that society consider
  4324.  
  4325. masculine or feminine (Katherine M.Franke, The Central Mistake
  4326.  
  4327. of Sex Discrimination Law: the Disaggregation of Sex from
  4328.  
  4329. Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that by defining sex in
  4330.  
  4331. biological terms, the law has failed to distinguish sex from gender,
  4332.  
  4333. and sexual differentiation from sex discrimination). Transgender
  4334.  
  4335. people are generally excluded from the society and people think
  4336.  
  4337. transgenderism as a medical disease. Much like the disability,
  4338.  
  4339. which in earlier times was considered as an illness but later on
  4340.  
  4341. looked upon as a right based approach. The question whether
  4342.  
  4343. transgenderism is a disease is hotly debated in both the
  4344.  
  4345. transgender and medical-psychiatric communities. But a prevalent
  4346.  
  4347. view regarding this is that transgenderism is not a disease at all,
  4348.  
  4349. but a benign normal variant of the human experience akin to left-
  4350.  
  4351. handedness.
  4352.  
  4353.  
  4354. 113. Therefore, gender identification becomes very essential
  4355.  
  4356. component which is required for enjoying civil rights by this
  4357.  
  4358. community. It is only with this recognition that many rights attached
  4359.  
  4360. to the sexual recognition as `third gender' would be available to
  4361.  
  4362. this community more meaningfully viz. the right to vote, the right to
  4363.  
  4364. own property, the right to marry, the right to claim a formal identity
  4365. 100
  4366.  
  4367.  
  4368. through a passport and a ration card, a driver's license, the right to
  4369.  
  4370. education, employment, health so on.
  4371.  
  4372.  
  4373. 114. Further, there seems to be no reason why a transgender
  4374.  
  4375. must be denied of basic human rights which includes Right to life
  4376.  
  4377. and liberty with dignity, Right to Privacy and freedom of
  4378.  
  4379. expression, Right to Education and Empowerment, Right against
  4380.  
  4381. violence, Right against Exploitation and Right against
  4382.  
  4383. Discrimination. Constitution has fulfilled its duty of providing rights
  4384.  
  4385. to transgenders. Now it's time for us to recognize this and to
  4386.  
  4387. extend and interpret the Constitution in such a manner to ensure a
  4388.  
  4389. dignified life of transgender people. All this can be achieved if the
  4390.  
  4391. beginning is made with the recognition that TG as third gender.
  4392.  
  4393.  
  4394. 115. In order to translate the aforesaid rights of TGs into reality,
  4395.  
  4396. it becomes imperative to first assign them their proper `sex'. As is
  4397.  
  4398. stated earlier, at the time of birth of a child itself, sex is assigned.
  4399.  
  4400. However, it is either male or female. In the process, the society as
  4401.  
  4402. well as law, has completely ignored the basic human right of TGs
  4403.  
  4404. to give them their appropriate sex categorization. Up to now, they
  4405.  
  4406. have either been treated as male or female. This is not only
  4407.  
  4408. improper as it is far from truth, but indignified to these TGs and
  4409. 101
  4410.  
  4411.  
  4412. violates their human rights.
  4413.  
  4414.  
  4415. 116. Though there may not be any statutory regime recognizing
  4416.  
  4417. `third gender' for these TGs. However, we find enough justification
  4418.  
  4419. to recognize this right of theirs in natural law sphere. Further, such
  4420.  
  4421. a justification can be traced to the various provisions contained in
  4422.  
  4423. Part III of the Constitution relating to `Fundamental Rights'. In
  4424.  
  4425. addition to the powerful justification accomplished in the
  4426.  
  4427. accompanying opinion of my esteemed Brother, additional raison
  4428.  
  4429. d'etre for this conclusion is stated hereinafter.
  4430.  
  4431.  
  4432. 117. We are in the age of democracy, that too substantive and
  4433.  
  4434. liberal democracy. Such a democracy is not based solely on the
  4435.  
  4436. rule of people through their representatives' namely formal
  4437.  
  4438. democracy. It also has other percepts like Rule of Law, human
  4439.  
  4440. rights, independence of judiciary, separation of powers etc.
  4441.  
  4442.  
  4443. 118. There is a recognition to the hard realty that without
  4444.  
  4445. protection for human rights there can be no democracy and no
  4446.  
  4447. justification for democracy. In this scenario, while working within
  4448.  
  4449. the realm of separation of powers (which is also fundamental to
  4450.  
  4451. the substantive democracy), the judicial role is not only to decide
  4452.  
  4453. the dispute before the Court, but to uphold the rule of law and
  4454. 102
  4455.  
  4456.  
  4457. ensure access to justice to the marginalized section of the society.
  4458.  
  4459. It cannot be denied that TGs belong to the unprivileged class
  4460.  
  4461. which is a marginalized section.
  4462.  
  4463.  
  4464. 119. The role of the Court is to understand the central purpose
  4465.  
  4466. and theme of the Constitution for the welfare of the society. Our
  4467.  
  4468. Constitution, like the law of the society, is a living organism. It is
  4469.  
  4470. based on a factual and social realty that is constantly changing.
  4471.  
  4472. Sometimes a change in the law precedes societal change and is
  4473.  
  4474. even intended to stimulate it. Sometimes, a change in the law is
  4475.  
  4476. the result in the social realty. When we discuss about the rights of
  4477.  
  4478. TGs in the constitutional context, we find that in order to bring
  4479.  
  4480. about complete paradigm shift, law has to play more pre-dominant
  4481.  
  4482. role. As TGs in India, are neither male nor female, treating them as
  4483.  
  4484. belonging to either of the aforesaid categories, is the denial of
  4485.  
  4486. these constitutional rights. It is the denial of social justice which in
  4487.  
  4488. turn has the effect of denying political and economic justice.
  4489.  
  4490.  
  4491. 120. In Dattatraya Govind Mahajan vs. State of Maharashtra
  4492.  
  4493. (AIR 1977 SC 915) this Court observed:
  4494.  
  4495. "Our Constitution is a tryst with
  4496. destiny, preamble with luscent solemnity in
  4497. the words `Justice - social, economic and
  4498. political.' The three great branches of
  4499. 103
  4500.  
  4501.  
  4502. Government, as creatures of the
  4503. Constitution, must remember this promise in
  4504. their fundamental role and forget it at their
  4505. peril, for to do so will be a betrayal of chose
  4506. high values and goals which this nation set
  4507. for itself in its objective Resolution and
  4508. whose elaborate summation appears in Part
  4509. IV of the Paramount Parchment. The history
  4510. of our country's struggle for independence
  4511. was the story of a battle between the forces
  4512. of socio-economic exploitation and the
  4513. masses of deprived people of varying
  4514. degrees and the Constitution sets the new
  4515. sights of the nation.....Once we grasp the
  4516. dharma of the Constitution, the new
  4517. orientation of the karma of adjudication
  4518. becomes clear. Our founding fathers, aware
  4519. of our social realities, forged our fighting
  4520. faith and integrating justice in its social,
  4521. economic and political aspects. While
  4522. contemplating the meaning of the Articles of
  4523. the Organic Law, the Supreme Court shall
  4524. not disown Social Justice."
  4525.  
  4526.  
  4527. 121. Oliver Wendlle Holmes said: "the life of law has been
  4528.  
  4529. logical; it has been experience". It may be added that `the life of
  4530.  
  4531. law is not just logic or experience. The life of law is renewable
  4532.  
  4533. based on experience and logic, which adapted law to the new
  4534.  
  4535. social realty'. Recognizing this fact, the aforesaid provisions of the
  4536.  
  4537. Constitution are required to be given new and dynamic meaning
  4538.  
  4539. with the inclusion of rights of TGs as well. In this process, the first
  4540.  
  4541. and foremost right is to recognize TGs as `third gender' in law as
  4542.  
  4543. well. This is a recognition of their right of equality enshrined in
  4544. 104
  4545.  
  4546.  
  4547. Art.14 as well as their human right to life with dignity, which is the
  4548.  
  4549. mandate of the Art.21 of the Constitution. This interpretation is in
  4550.  
  4551. consonance with new social needs. By doing so, this Court is only
  4552.  
  4553. bridging the gap between the law and life and that is the primary
  4554.  
  4555. role of the Court in a democracy. It only amounts to giving
  4556.  
  4557. purposive interpretation to the aforesaid provisions of the
  4558.  
  4559. Constitution so that it can adapt to the changes in realty. Law
  4560.  
  4561. without purpose has no raison d'etre. The purpose of law is the
  4562.  
  4563. evolution of a happy society. As Justice Iyer has aptly put:
  4564.  
  4565.  
  4566. "The purpose of law is the
  4567. establishment of the welfare of society
  4568. "and a society whose members enjoy
  4569. welfare and happiness may be
  4570. described as a just society. It is a
  4571. negation of justice to say that some
  4572. members, some groups, some
  4573. minorities, some individuals do not have
  4574. welfare: on the other hand they suffer
  4575. from ill-fare. So it is axiomatic that law, if
  4576. it is to fulfil itself, must produce a
  4577. contented, dynamic society which is at
  4578. once meting out justice to its members."
  4579.  
  4580.  
  4581. 122. It is now very well recognized that the Constitution is a living
  4582.  
  4583. character; its interpretation must be dynamic. It must be
  4584.  
  4585. understood in a way that intricate and advances modern realty.
  4586.  
  4587. The judiciary is the guardian of the Constitution and by ensuring to
  4588. 105
  4589.  
  4590.  
  4591. grant legitimate right that is due to TGs, we are simply protecting
  4592.  
  4593. the Constitution and the democracy inasmuch as judicial protection
  4594.  
  4595. and democracy in general and of human rights in particular is a
  4596.  
  4597. characteristic of our vibrant democracy.
  4598.  
  4599.  
  4600. 123. As we have pointed out above, our Constitution inheres
  4601.  
  4602. liberal and substantive democracy with rule of law as an important
  4603.  
  4604. and fundamental pillar. It has its own internal morality based on
  4605.  
  4606. dignity and equality of all human beings. Rule of law demands
  4607.  
  4608. protection of individual human rights. Such rights are to be
  4609.  
  4610. guaranteed to each and every human being. These TGs, even
  4611.  
  4612. though insignificant in numbers, are still human beings and
  4613.  
  4614. therefore they have every right to enjoy their human rights.
  4615.  
  4616.  
  4617. 124. In National Human Rights Commission vs. State of
  4618.  
  4619. Arunachal Pradesh (AIR 1996 SC 1234), This Court observed:
  4620.  
  4621. "We are a country governed by the
  4622. Rule of Law. Our Constitution confers
  4623. certain rights on every human being and
  4624. certain other rights on citizens. Every
  4625. person is entitled to equality before the law
  4626. and equal protection of the laws."
  4627.  
  4628.  
  4629. 125. The rule of law is not merely public order. The rule of law is
  4630.  
  4631. social justice based on public order. The law exists to ensure
  4632. 106
  4633.  
  4634.  
  4635. proper social life. Social life, however, is not a goal in itself but a
  4636.  
  4637. means to allow the individual to life in dignity and development
  4638.  
  4639. himself. The human being and human rights underlie this
  4640.  
  4641. substantive perception of the rule of law, with a proper balance
  4642.  
  4643. among the different rights and between human rights and the
  4644.  
  4645. proper needs of society. The substantive rule of law "is the rule of
  4646.  
  4647. proper law, which balances the needs of society and the
  4648.  
  4649. individual." This is the rule of law that strikes a balance between
  4650.  
  4651. society's need for political independence, social equality, economic
  4652.  
  4653. development, and internal order, on the one hand, and the needs
  4654.  
  4655. of the individual, his personal liberty, and his human dignity on the
  4656.  
  4657. other. It is the duty of the Court to protect this rich concept of the
  4658.  
  4659. rule of law.
  4660.  
  4661.  
  4662. 126. By recognizing TGs as third gender, this Court is not only
  4663.  
  4664. upholding the rule of law but also advancing justice to the class, so
  4665.  
  4666. far deprived of their legitimate natural and constitutional rights. It
  4667.  
  4668. is, therefore, the only just solution which ensures justice not only to
  4669.  
  4670. TGs but also justice to the society as well. Social justice does not
  4671.  
  4672. mean equality before law in papers but to translate the spirit of the
  4673.  
  4674. Constitution, enshrined in the Preamble, the Fundamental Rights
  4675.  
  4676. and the Directive Principles of State Policy into action, whose arms
  4677. 107
  4678.  
  4679.  
  4680. are long enough to bring within its reach and embrace this right of
  4681.  
  4682. recognition to the TGs which legitimately belongs to them.
  4683.  
  4684.  
  4685. 127. Aristotle opined that treating all equal things equal and all
  4686.  
  4687. unequal things unequal amounts to justice. Kant was of the view
  4688.  
  4689. that at the basis of all conceptions of justice, no matter which
  4690.  
  4691. culture or religion has inspired them, lies the golden rule that you
  4692.  
  4693. should treat others as you would want everybody to treat
  4694.  
  4695. everybody else, including yourself. When Locke conceived of
  4696.  
  4697. individual liberties, the individuals he had in mind were
  4698.  
  4699. independently rich males. Similarly, Kant thought of economically
  4700.  
  4701. self-sufficient males as the only possible citizens of a liberal
  4702.  
  4703. democratic state. These theories may not be relevant in today's
  4704.  
  4705. context as it is perceived that the bias of their perspective is all too
  4706.  
  4707. obvious to us. In post-traditional liberal democratic theories of
  4708.  
  4709. justice, the background assumption is that humans have equal
  4710.  
  4711. value and should, therefore, be treated as equal, as well as by
  4712.  
  4713. equal laws. This can be described as `Reflective Equilibrium'. The
  4714.  
  4715. method of Reflective Equilibrium was first introduced by Nelson
  4716.  
  4717. Goodman in `Fact, Fiction and Forecast' (1955). However, it is
  4718.  
  4719. John Rawls who elaborated this method of Reflective Equilibrium
  4720.  
  4721. by introducing the conception of `Justice as Fairness'. In his
  4722. 108
  4723.  
  4724.  
  4725. `Theory of Justice', Rawls has proposed a model of just institutions
  4726.  
  4727. for democratic societies. Herein he draws on certain pre-
  4728.  
  4729. theoretical elementary moral beliefs (`considered judgments'),
  4730.  
  4731. which he assumes most members of democratic societies would
  4732.  
  4733. accept. "[Justice as fairness [....] tries to draw solely upon basic
  4734.  
  4735. intuitive ideas that are embedded in the political institutions of a
  4736.  
  4737. constitutional democratic regime and the public traditions of their
  4738.  
  4739. interpretations. Justice as fairness is a political conception in part
  4740.  
  4741. because it starts from within a certain political tradition. Based on
  4742.  
  4743. this preliminary understanding of just institutions in a democratic
  4744.  
  4745. society, Rawls aims at a set of universalistic rules with the help of
  4746.  
  4747. which the justice of present formal and informal institutions can be
  4748.  
  4749. assessed. The ensuing conception of justice is called `justice as
  4750.  
  4751. fairness'. When we combine Rawls's notion of Justice as
  4752.  
  4753. Fairness with the notions of Distributive Justice, to which Noble
  4754.  
  4755. Laureate Prof. Amartya Sen has also subscribed, we get
  4756.  
  4757. jurisprudential basis for doing justice to the Vulnerable Groups
  4758.  
  4759. which definitely include TGs. Once it is accepted that the TGs are
  4760.  
  4761. also part of vulnerable groups and marginalized section of the
  4762.  
  4763. society, we are only bringing them within the fold of aforesaid
  4764.  
  4765. rights recognized in respect of other classes falling in the
  4766. 109
  4767.  
  4768.  
  4769. marginalized group. This is the minimum riposte in an attempt to
  4770.  
  4771. assuage the insult and injury suffered by them so far as to
  4772.  
  4773. pave way for fast tracking the realization of their human rights.
  4774.  
  4775.  
  4776. 128. The aforesaid, thus, are my reasons for treating TGs as
  4777.  
  4778. `third gender' for the purposes of safeguarding and enforcing
  4779.  
  4780. appropriately their rights guaranteed under the Constitution. These
  4781.  
  4782. are my reasons in support of our Constitution to the two issues in
  4783.  
  4784. these petitions.
  4785.  
  4786.  
  4787.  
  4788. .........................J.
  4789. (A.K.Sikri)
  4790.  
  4791.  
  4792.  
  4793. 129. We, therefore, declare:
  4794.  
  4795. (1) Hijras, Eunuchs, apart from binary gender, be treated
  4796. as "third gender" for the purpose of safeguarding their
  4797. rights under Part III of our Constitution and the laws
  4798. made by the Parliament and the State Legislature.
  4799. (2) Transgender persons' right to decide their self-identified
  4800. gender is also upheld and the Centre and State
  4801. Governments are directed to grant legal recognition of
  4802. their gender identity such as male, female or as third
  4803. gender.
  4804. (3) We direct the Centre and the State Governments to
  4805. take steps to treat them as socially and educationally
  4806. 110
  4807.  
  4808.  
  4809. backward classes of citizens and extend all kinds of
  4810. reservation in cases of admission in educational
  4811. institutions and for public appointments.
  4812. (4) Centre and State Governments are directed to operate
  4813. separate HIV Sero-survellance Centres since Hijras/
  4814. Transgenders face several sexual health issues.
  4815. (5) Centre and State Governments should seriously
  4816. address the problems being faced by
  4817. Hijras/Transgenders such as fear, shame, gender
  4818. dysphoria, social pressure, depression, suicidal
  4819. tendencies, social stigma, etc. and any insistence for
  4820. SRS for declaring one's gender is immoral and illegal.
  4821. (6) Centre and State Governments should take proper
  4822. measures to provide medical care to TGs in the
  4823. hospitals and also provide them separate public toilets
  4824. and other facilities.
  4825. (7) Centre and State Governments should also take steps
  4826. for framing various social welfare schemes for their
  4827. betterment.
  4828. (8) Centre and State Governments should take steps to
  4829. create public awareness so that TGs will feel that they
  4830. are also part and parcel of the social life and be not
  4831. treated as untouchables.
  4832. (9) Centre and the State Governments should also take
  4833. measures to regain their respect and place in the
  4834. society which once they enjoyed in our cultural and
  4835. social life.
  4836. 111
  4837.  
  4838.  
  4839. 130. We are informed an Expert Committee has already been
  4840.  
  4841. constituted to make an in-depth study of the problems faced by the
  4842.  
  4843. Transgender community and suggest measures that can be taken
  4844.  
  4845. by the Government to ameliorate their problems and to submit its
  4846.  
  4847. report with recommendations within three months of its constitution.
  4848.  
  4849. Let the recommendations be examined based on the legal
  4850.  
  4851. declaration made in this Judgment and implemented within six
  4852.  
  4853. months.
  4854.  
  4855.  
  4856. 131. Writ Petitions are, accordingly, allowed, as above.
  4857.  
  4858.  
  4859.  
  4860.  
  4861. ................................J.
  4862. (K.S. Radhakrishnan)
  4863.  
  4864.  
  4865.  
  4866. ...............................J.
  4867. (A.K. Sikri)
  4868. New Delhi,
  4869. April 15, 2014.
  4870. 112
  4871.  
  4872. ITEM NO.1A (For Judgment) COURT NO.7 SECTION PIL
  4873.  
  4874. S U P R E M E C O U R T O F I N D I A
  4875. RECORD OF PROCEEDINGS
  4876.  
  4877. WRIT PETITION (CIVIL) NO(s). 400 OF 2012
  4878.  
  4879. NATIONAL LEGAL SER. AUTH. Petitioner(s)
  4880.  
  4881. VERSUS
  4882.  
  4883. UNION OF INDIA & ORS. Respondent(s)
  4884.  
  4885. WITH W.P(C) NO. 604 of 2013
  4886.  
  4887.  
  4888. Date: 15/04/2014 These matters were called on for
  4889. pronouncement of judgment.
  4890.  
  4891. For Petitioner(s) Ms. Anitha Shenoy,AOR
  4892.  
  4893. Ms. Manju Jetley,AOR
  4894.  
  4895. For Respondent(s) Mr. V.N. Raghupathy,AOR
  4896.  
  4897. Mr. Suryanarayana Singh,AAG
  4898. Mr. Aviral Saxena,Adv.
  4899. Ms. Pragati Neekhra,AOR
  4900.  
  4901. Dr. Manish Singhvi,Adv.
  4902. Mr. Irshad Ahmad,Adv.
  4903.  
  4904. Mr. V.G. Pragasam,AOR
  4905.  
  4906. Mr. Manjit Singh,AAG, Haryana
  4907. Mrs. Vivekta Singh,Adv.
  4908. Mrs. Nupur Chaudhary,Adv.
  4909. Mr. Tarjit Singh,Adv.
  4910. Mr. Kamal Mohan Gupta,AOR
  4911.  
  4912. Mr. D.S. Mahra,AOR
  4913. Mr. Gopal Singh,AOR
  4914. Mr. Sudarshan Singh Rawat,AOR
  4915. Mr. P.V. Yogeswaran,AOR
  4916. Mr. Anip Sachthey,AOR
  4917. Mr. Aniruddha P. Mayee,AOR
  4918. Mr. Sunil Fernandes,AOR
  4919. Mr. Abhishek Atrey,AOR
  4920. Mr. Jogy Scaria,AOR
  4921. 113
  4922.  
  4923.  
  4924. Mr. Mishra Saurabh,AOR
  4925. Ms. Vanshaja Shukla,Adv.
  4926.  
  4927. M/s. Corporate Law Group,AOR
  4928. Mrs. Kirti Renu Mishra,AOR
  4929. M/s. Arputham,Aruna & Co.,AOR
  4930. Mr. Anil Shrivastav,AOR
  4931. Ms. Asha Gopalan Nair,AOR
  4932. Mr. B. Balaji,AOR
  4933.  
  4934. Mr. Sapam Biswajit Meitei,Adv.
  4935. Mr. Ashok Kumar Singh,AOR
  4936.  
  4937. Mrs. K. Enatoli Sema,Adv.
  4938. Mr. Amit Kumar Singh,Adv.
  4939.  
  4940. Mr. Balasubramanian,Adv.
  4941. Mr. K.V. Jagdishvaran,Adv.
  4942. Ms. G. Indira,AOR
  4943.  
  4944. Ms. Hemantika Wahi,AOR
  4945.  
  4946. Mr. Mihir,Adv.
  4947. Ms. Tripti Tandon,Adv.
  4948. Mr. Amritananda Ch.,Adv.
  4949. Mr. Mukesh Kumar,Adv.
  4950. Ms. Filza Moonis,Adv.
  4951.  
  4952. Ms. A. Subhashini,Adv.
  4953.  
  4954.  
  4955. Hon'ble Mr. Justice K.S. Radhakrishnan
  4956. and Hon'ble Mr. Justice A.K. Sikri pronounced
  4957. concurring views in the judgment of the Bench
  4958. comprising their Lordships.
  4959. The writ petitions are allowed in
  4960. terms of the signed judgment.
  4961.  
  4962.  
  4963. (Narendra Prasad) (Renuka Sadana)
  4964. Court Master Court Master
  4965.  
  4966. (Signed "Reportable" judgment is placed on the file)