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REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.400 OF 2012

National Legal Services Authority ... Petitioner

Versus

Union of India and others ... Respondents

WITH

WRIT PETITION (CIVIL) NO.604 OF 2013



JUDGMENT



K.S. Radhakrishnan, J.




1. Seldom, our society realizes or cares to realize the trauma,

agony and pain which the members of Transgender community

undergo, nor appreciates the innate feelings of the members of the

Transgender community, especially of those whose mind and body

disown their biological sex. Our society often ridicules and abuses

the Transgender community and in public places like railway
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stations, bus stands, schools, workplaces, malls, theatres,

hospitals, they are sidelined and treated as untouchables,

forgetting the fact that the moral failure lies in the society's

unwillingness to contain or embrace different gender identities and

expressions, a mindset which we have to change.


2. We are, in this case, concerned with the grievances of the

members of Transgender Community (for short `TG community')

who seek a legal declaration of their gender identity than the one

assigned to them, male or female, at the time of birth and their

prayer is that non-recognition of their gender identity violates

Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs,

who also fall in that group, claim legal status as a third gender with

all legal and constitutional protection.


3. The National Legal Services Authority, constituted under the

Legal Services Authority Act, 1997, to provide free legal services

to the weaker and other marginalized sections of the society, has

come forward to advocate their cause, by filing Writ Petition No.

400 of 2012. Poojaya Mata Nasib Kaur Ji Women Welfare

Society, a registered association, has also preferred Writ Petition
 3


No. 604 of 2013, seeking similar reliefs in respect of Kinnar

community, a TG community.


4. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got

impleaded so as to effectively put across the cause of the

members of the transgender community and Tripathy's life

experiences also for recognition of their identity as a third gender,

over and above male and female. Tripathy says that non-

recognition of the identity of Hijras, a TG community, as a third

gender, denies them the right of equality before the law and equal

protection of law guaranteed under Article 14 of the Constitution

and violates the rights guaranteed to them under Article 21 of the

Constitution of India.


5. Shri Raju Ramachandran, learned senior counsel appearing

for the petitioner - the National Legal Services Authority,

highlighted the traumatic experiences faced by the members of the

TG community and submitted that every person of that community

has a legal right to decide their sex orientation and to espouse and

determine their identity. Learned senior counsel has submitted

that since the TGs are neither treated as male or female, nor given

the status of a third gender, they are being deprived of many of the
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rights and privileges which other persons enjoy as citizens of this

country. TGs are deprived of social and cultural participation and

hence restricted access to education, health care and public

places which deprives them of the Constitutional guarantee of

equality before law and equal protection of laws. Further, it was

also pointed out that the community also faces discrimination to

contest election, right to vote, employment, to get licences etc.

and, in effect, treated as an outcast and untouchable. Learned

senior counsel also submitted that the State cannot discriminate

them on the ground of gender, violating Articles 14 to 16 and 21 of

the Constitution of India.


6. Shri Anand Grover, learned senior counsel appearing for the

Intervener, traced the historical background of the third gender

identity in India and the position accorded to them in the Hindu

Mythology, Vedic and Puranic literatures, and the prominent role

played by them in the royal courts of the Islamic world etc.

Reference was also made to the repealed Criminal Tribes Act,

1871 and explained the inhuman manner by which they were

treated at the time of the British Colonial rule. Learned senior

counsel also submitted that various International Forums and U.N.

Bodies have recognized their gender identity and referred to the
 5


Yogyakarta Principles and pointed out that those principles have

been recognized by various countries around the world.

Reference was also made to few legislations giving recognition to

the trans-sexual persons in other countries. Learned senior

counsel also submitted that non-recognition of gender identity of

the transgender community violates the fundamental rights

guaranteed to them, who are citizens of this country.


7. Shri T. Srinivasa Murthy, learned counsel appearing in I.A.

No. 2 of 2013, submitted that transgender persons have to be

declared as a socially and educationally backward classes of

citizens and must be accorded all benefits available to that class of

persons, which are being extended to male and female genders.

Learned counsel also submitted that the right to choose one's

gender identity is integral to the right to lead a life with dignity,

which is undoubtedly guaranteed by Article 21 of the Constitution

of India. Learned counsel, therefore, submitted that, subject to

such rules/regulations/protocols, transgender persons may be

afforded the right of choice to determine whether to opt for male,

female or transgender classification.
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8. Shri Sanjeev Bhatnagar, learned counsel appearing for the

petitioner in Writ Petition No.604 of 2013, highlighted the cause of

the Kinnar community and submitted that they are the most

deprived group of transgenders and calls for constitutional as well

as legal protection for their identity and for other socio-economic

benefits, which are otherwise extended to the members of the

male and female genders in the community.


9. Shri Rakesh K. Khanna, learned Additional Solicitor General,

appearing for the Union of India, submitted that the problems

highlighted by the transgender community is a sensitive human

issue, which calls for serious attention. Learned ASG pointed out

that, under the aegis of the Ministry of Social Justice and

Empowerment (for short "MOSJE"), a Committee, called "Expert

Committee on Issues relating to Transgender", has been

constituted to conduct an in-depth study of the problems relating to

transgender persons to make appropriate recommendations to

MOSJE. Shri Khanna also submitted that due representation

would also be given to the applicants, appeared before this Court

in the Committee, so that their views also could be heard.
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10. We also heard learned counsel appearing for various States

and Union Territories who have explained the steps they have

taken to improve the conditions and status of the members of TG

community in their respective States and Union Territories. Laxmi

Narayan Tripathy, a Hijra, through a petition supported by an

affidavit, highlighted the trauma undergone by Tripathy from

Tripathy's birth. Rather than explaining the same by us, it would

be appropriate to quote in Tripathy's own words:

"That the Applicant has born as a male. Growing up as
a child, she felt different from the boys of her age and
was feminine in her ways. On account of her femininity,
from an early age, she faced repeated sexual
harassment, molestation and sexual abuse, both within
and outside the family. Due to her being different, she
was isolated and had no one to talk to or express her
feelings while she was coming to terms with her identity.
She was constantly abused by everyone as a `chakka'
and `hijra'. Though she felt that there was no place for
her in society, she did not succumb to the prejudice.
She started to dress and appear in public in women's
clothing in her late teens but she did not identify as a
woman. Later, she joined the Hijra community in
Mumbai as she identified with the other hijras and for
the first time in her life, she felt at home.

That being a hijra, the Applicant has faced serious
discrimination throughout her life because of her gender
identity. It has been clear to the Applicant that the
complete non-recognition of the identity of
hijras/transgender persons by the State has resulted in
the violation of most of the fundamental rights
guaranteed to them under the Constitution of India...."
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Siddarth Narrain, eunuch, highlights Narrain's feeling, as

follows:

"Ever since I can remember, I have always identified
myself as a woman. I lived in Namakkal, a small town in
Tamil Nadu. When I was in the 10th standard I realized
that the only way for me to be comfortable was to join
the hijra community. It was then that my family found
out that I frequently met hijras who lived in the city. One
day, when my father was away, my brother, encouraged
by my mother, started beating me with a cricket bat. I
locked myself in a room to escape from the beatings.
My mother and brother then tried to break into the room
to beat me up further. Some of my relatives intervened
and brought me out of the room. I related my ordeal to
an uncle of mine who gave me Rs.50 and asked me to
go home. Instead, I took the money and went to live
with a group of hijras in Erode."

Sachin, a TG, expressed his experiences as follows:

"My name is Sachin and I am 23 years old. As a child I
always enjoyed putting make-up like `vibhuti' or `kum
kum' and my parents always saw me as a girl. I am
male but I only have female feelings. I used to help my
mother in all the housework like cooking, washing and
cleaning. Over the years, I started assuming more of
the domestic responsibilities at home. The neighbours
starting teasing me. They would call out to me and ask:
`Why don't you go out and work like a man?' or `Why
are you staying at home like a girl?' But I liked being a
girl. I felt shy about going out and working. Relatives
would also mock and scold me on this score. Every day
I would go out of the house to bring water. And as I
walked back with the water I would always be teased. I
felt very ashamed. I even felt suicidal. How could I live
like that? But my parents never protested. They were
helpless."
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We have been told and informed of similar life experiences

faced by various others who belong to the TG community.


11. Transgender is generally described as an umbrella term for

persons whose gender identity, gender expression or behavior

does not conform to their biological sex. TG may also takes in

persons who do not identify with their sex assigned at birth, which

include Hijras/Eunuchs who, in this writ petition, describe

themselves as "third gender" and they do not identify as either male

or female. Hijras are not men by virtue of anatomy appearance

and psychologically, they are also not women, though they are like

women with no female reproduction organ and no menstruation.

Since Hijras do not have reproduction capacities as either men or

women, they are neither men nor women and claim to be an

institutional "third gender". Among Hijras, there are emasculated

(castrated, nirvana) men, non-emasculated men (not

castrated/akva/akka) and inter-sexed persons (hermaphrodites).

TG also includes persons who intend to undergo Sex Re-

Assignment Surgery (SRS) or have undergone SRS to align their

biological sex with their gender identity in order to become male or

female. They are generally called transsexual persons. Further,

there are persons who like to cross-dress in clothing of opposite
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gender, i.e transvestites. Resultantly, the term "transgender", in

contemporary usage, has become an umbrella term that is used to

describe a wide range of identities and experiences, including but

not limited to pre-operative, post-operative and non-operative

transsexual people, who strongly identify with the gender opposite

to their biological sex; male and female.


HISTORICAL BACKGROUND OF TRANSGENDERS IN INDIA:


12. TG Community comprises of Hijras, eunuchs, Kothis,

Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have

got a strong historical presence in our country in the Hindu

mythology and other religious texts. The Concept of tritiya prakrti

or napunsaka has also been an integral part of vedic and puranic

literatures. The word `napunsaka' has been used to denote

absence of procreative capability.


13. Lord Rama, in the epic Ramayana, was leaving for the forest

upon being banished from the kingdom for 14 years, turns around

to his followers and asks all the `men and women' to return to the

city. Among his followers, the hijras alone do not feel bound by this

direction and decide to stay with him. Impressed with their

devotion, Rama sanctions them the power to confer blessings on
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people on auspicious occasions like childbirth and marriage, and

also at inaugural functions which, it is believed set the stage for the

custom of badhai in which hijras sing, dance and confer blessings.


14. Aravan, the son of Arjuna and Nagakanya in Mahabharata,

offers to be sacrificed to Goddess Kali to ensure the victory of the

Pandavas in the Kurukshetra war, the only condition that he made

was to spend the last night of his life in matrimony. Since no

woman was willing to marry one who was doomed to be killed,

Krishna assumes the form of a beautiful woman called Mohini and

marries him. The Hijras of Tamil Nadu consider Aravan their

progenitor and call themselves Aravanis.


15. Jain Texts also make a detailed reference to TG which

mentions the concept of `psychological sex'. Hijras also played a

prominent role in the royal courts of the Islamic world, especially in

the Ottaman empires and the Mughal rule in the Medieval India. A

detailed analysis of the historical background of the same finds a

place in the book of Gayatri Reddy, "With Respect to Sex:

Negotiating Hijra Identity in South India" - Yoda Press (2006).


16. We notice that even though historically, Hijras/transgender

persons had played a prominent role, with the onset of colonial rule
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from the 18th century onwards, the situation had changed

drastically. During the British rule, a legislation was enacted to

supervise the deeds of Hijras/TG community, called the Criminal

Tribes Act, 1871, which deemed the entire community of Hijras

persons as innately `criminal' and `addicted to the systematic

commission of non-bailable offences'. The Act provided for the

registration, surveillance and control of certain criminal tribes and

eunuchs and had penalized eunuchs, who were registered, and

appeared to be dressed or ornamented like a woman, in a public

street or place, as well as those who danced or played music in a

public place. Such persons also could be arrested without warrant

and sentenced to imprisonment up to two years or fine or both.

Under the Act, the local government had to register the names and

residence of all eunuchs residing in that area as well as of their

properties, who were reasonably suspected of kidnapping or

castrating children, or of committing offences under Section 377 of

the IPC, or of abetting the commission of any of the said offences.

Under the Act, the act of keeping a boy under 16 years in the

charge of a registered eunuch was made an offence punishable

with imprisonment up to two years or fine and the Act also denuded

the registered eunuchs of their civil rights by prohibiting them from
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acting as guardians to minors, from making a gift deed or a will, or

from adopting a son. Act has, however, been repealed in August

1949.


17. Section 377 of the IPC found a place in the Indian Penal

Code, 1860, prior to the enactment of Criminal Tribles Act that

criminalized all penile-non-vaginal sexual acts between persons,

including anal sex and oral sex, at a time when transgender

persons were also typically associated with the prescribed sexual

practices. Reference may be made to the judgment of the

Allahabad High Court in Queen Empress v. Khairati (1884) ILR 6

All 204, wherein a transgender person was arrested and

prosecuted under Section 377 on the suspicion that he was a

`habitual sodomite' and was later acquitted on appeal. In that case,

while acquitting him, the Sessions Judge stated as follows:

"This case relates to a person named Khairati, over
whom the police seem to have exercised some sort of
supervision, whether strictly regular or not, as a eunuch.
The man is not a eunuch in the literal sense, but he was
called for by the police when on a visit to his village, and
was found singing dressed as a woman among the
women of a certain family. Having been subjected to
examination by the Civil Surgeon (and a subordinate
medical man), he is shown to have the characteristic
mark of a habitual catamite - the distortion of the orifice
of the anus into the shape of a trumpet and also to be
affected with syphilis in the same region in a manner
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which distinctly points to unnatural intercourse within the
last few months."


18. Even though, he was acquitted on appeal, this case would

demonstrate that Section 377, though associated with specific

sexual acts, highlighted certain identities, including Hijras and was

used as an instrument of harassment and physical abuse against

Hijras and transgender persons. A Division Bench of this Court in

Suresh Kumar Koushal and another v. Naz Foundation and

others [(2014) 1 SCC 1] has already spoken on the

constitutionality of Section 377 IPC and, hence, we express no

opinion on it since we are in these cases concerned with an

altogether different issue pertaining to the constitutional and other

legal rights of the transgender community and their gender identity

and sexual orientation.


GENDER IDENTITY AND SEXUAL ORIENTATION


19. Gender identity is one of the most-fundamental aspects of life

which refers to a person's intrinsic sense of being male, female or

transgender or transsexual person. A person's sex is usually

assigned at birth, but a relatively small group of persons may born

with bodies which incorporate both or certain aspects of both male
 15


and female physiology. At times, genital anatomy problems may

arise in certain persons, their innate perception of themselves, is

not in conformity with the sex assigned to them at birth and may

include pre and post-operative transsexual persons and also

persons who do not choose to undergo or do not have access to

operation and also include persons who cannot undergo successful

operation. Countries, all over the world, including India, are

grappled with the question of attribution of gender to persons who

believe that they belong to the opposite sex. Few persons

undertake surgical and other procedures to alter their bodies and

physical appearance to acquire gender characteristics of the sex

which conform to their perception of gender, leading to legal and

social complications since official record of their gender at birth is

found to be at variance with the assumed gender identity. Gender

identity refers to each person's deeply felt internal and individual

experience of gender, which may or may not correspond with the

sex assigned at birth, including the personal sense of the body

which may involve a freely chosen, modification of bodily

appearance or functions by medical, surgical or other means and

other expressions of gender, including dress, speech and

mannerisms. Gender identity, therefore, refers to an individual's
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self-identification as a man, woman, transgender or other identified

category.


20. Sexual orientation refers to an individual's enduring physical,

romantic and/or emotional attraction to another person. Sexual

orientation includes transgender and gender-variant people with

heavy sexual orientation and their sexual orientation may or may

not change during or after gender transmission, which also

includes homo-sexuals, bysexuals, heterosexuals, asexual etc.

Gender identity and sexual orientation, as already indicated, are

different concepts. Each person's self-defined sexual orientation

and gender identity is integral to their personality and is one of the

most basic aspects of self-determination, dignity and freedom and

no one shall be forced to undergo medical procedures, including

SRS, sterilization or hormonal therapy, as a requirement for legal

recognition of their gender identity.


UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES - ON
GENDER IDENTITY AND SEXUAL ORIENTATION


21. United Nations has been instrumental in advocating the

protection and promotion of rights of sexual minorities, including

transgender persons. Article 6 of the Universal Declaration of
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Human Rights, 1948 and Article 16 of the International Covenant

on Civil and Political Rights, 1966 (ICCPR) recognize that every

human being has the inherent right to live and this right shall be

protected by law and that no one shall be arbitrarily denied of that

right. Everyone shall have a right to recognition, everywhere as a

person before the law. Article 17 of the ICCPR states that no one

shall be subjected to arbitrary or unlawful interference with his

privacy, family, home or correspondence, nor to unlawful attacks

on his honour and reputation and that everyone has the right to

protection of law against such interference or attacks. International

Commission of Jurists and the International Service for Human

Rights on behalf of a coalition of human rights organizations, took

a project to develop a set of international legal principles on the

application of international law to human rights violations based on

sexual orientation and sexual identity to bring greater clarity and

coherence to State's human rights obligations. A distinguished

group of human rights experts has drafted, developed, discussed

and reformed the principles in a meeting held at Gadjah Mada

University in Yogyakarta, Indonesia from 6 to 9 November, 2006,

which is unanimously adopted the Yogyakarta Principles on the

application of International Human Rights Law in relation to Sexual
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Orientation and Gender Identity. Yogyakarta Principles address a

broad range of human rights standards and their application to

issues of sexual orientation gender identity. Reference to few

Yogyakarta Principles would be useful.


YOGYAKARTA PRINCIPLES:

22. Principle 1 which deals with the right to the universal

enjoyment of human rights, reads as follows :-

"1. THE RIGHT TO THE UNIVERSAL ENJOYMENT
OF HUMAN RIGHTS

All human beings are born free and equal in dignity and
rights. Human beings of all sexual orientations and
gender identities are entitled to the full enjoyment of all
human rights.

States shall:

A. Embody the principles of the universality,
interrelatedness, interdependence and indivisibility
of all human rights in their national constitutions or
other appropriate legislation and ensure the
practical realisation of the universal enjoyment of
all human rights;

B. Amend any legislation, including criminal law, to
ensure its consistency with the universal
enjoyment of all human rights;

C. Undertake programmes of education and
awareness to promote and enhance the full
enjoyment of all human rights by all persons,
irrespective of sexual orientation or gender
identity;
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D. Integrate within State policy and decision-making a
pluralistic approach that recognises and affirms
the interrelatedness and indivisibility of all aspects
of human identity including sexual orientation and
gender identity.

2. THE RIGHTS TO EQUALITY AND NON-
DISCRIMINATION

Everyone is entitled to enjoy all human rights without
discrimination on the basis of sexual orientation or
gender identity. Everyone is entitled to equality before
the law and the equal protection of the law without any
such discrimination whether or not the enjoyment of
another human right is also affected. The law shall
prohibit any such discrimination and guarantee to all
persons equal and effective protection against any such
discrimination.

Discrimination on the basis of sexual orientation or
gender identity includes any distinction, exclusion,
restriction or preference based on sexual orientation or
gender identity which has the purpose or effect of
nullifying or impairing equality before the law or the
equal protection of the law, or the recognition,
enjoyment or exercise, on an equal basis, of all human
rights and fundamental freedoms. Discrimination based
on sexual orientation or gender identity may be, and
commonly is, compounded by discrimination on other
grounds including gender, race, age, religion, disability,
health and economic status.

States shall:

A. Embody the principles of equality and non-
discrimination on the basis of sexual orientation and
gender identity in their national constitutions or other
appropriate legislation, if not yet incorporated therein,
including by means of amendment and interpretation,
and ensure the effective realisation of these
principles;
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B. Repeal criminal and other legal provisions that
prohibit or are, in effect, employed to prohibit
consensual sexual activity among people of the same
sex who are over the age of consent, and ensure that
an equal age of consent applies to both same-sex
and different- sex sexual activity;

C. Adopt appropriate legislative and other measures to
prohibit and eliminate discrimination in the public and
private spheres on the basis of sexual orientation and
gender identity;

D. Take appropriate measures to secure adequate
advancement of persons of diverse sexual
orientations and gender identities as may be
necessary to ensure such groups or individuals equal
enjoyment or exercise of human rights. Such
measures shall not be deemed to be discriminatory;

E. In all their responses to discrimination on the basis
of sexual orientation or gender identity, take account
of the manner in which such discrimination may
intersect with other forms of discrimination;

F. Take all appropriate action, including programmes of
education and training, with a view to achieving the
elimination of prejudicial or discriminatory attitudes or
behaviours which are related to the idea of the
inferiority or the superiority of any sexual orientation
or gender identity or gender expression.

3. THE RIGHT TO RECOGNITION BEFORE THE
LAW

Everyone has the right to recognition everywhere as a
person before the law. Persons of diverse sexual
orientations and gender identities shall enjoy legal
capacity in all aspects of life. Each person's self-defined
sexual orientation and gender identity is integral to their
personality and is one of the most basic aspects of self-
determination, dignity and freedom. No one shall be
forced to undergo medical procedures, including sex
 21


reassignment surgery, sterilisation or hormonal therapy,
as a requirement for legal recognition of their gender
identity. No status, such as marriage or parenthood,
may be invoked as such to prevent the legal recognition
of a person's gender identity. No one shall be subjected
to pressure to conceal, suppress or deny their sexual
orientation or gender identity.

States shall:

A. Ensure that all persons are accorded legal capacity in
civil matters, without discrimination on the basis of
sexual orientation or gender identity, and the
opportunity to exercise that capacity, including equal
rights to conclude contracts, and to administer, own,
acquire (including through inheritance), manage,
enjoy and dispose of property;

B. Take all necessary legislative, administrative and
other measures to fully respect and legally recognise
each person's self-defined gender identity;

C. Take all necessary legislative, administrative and
other measures to ensure that procedures exist
whereby all State-issued identity papers which
indicate a person's gender/sex -- including birth
certificates, passports, electoral records and other
documents -- reflect the person's profound self-
defined gender identity;

D. Ensure that such procedures are efficient, fair and
non-discriminatory, and respect the dignity and
privacy of the person concerned;

E. Ensure that changes to identity documents will be
recognised in all contexts where the identification or
disaggregation of persons by gender is required by
law or policy;

F. Undertake targeted programmes to provide social
support for all persons experiencing gender
transitioning or reassignment.
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4. THE RIGHT TO LIFE

Everyone has the right to life. No one shall be arbitrarily
deprived of life, including by reference to considerations
of sexual orientation or gender identity. The death
penalty shall not be imposed on any person on the basis
of consensual sexual activity among persons who are
over the age of consent or on the basis of sexual
orientation or gender identity.

States shall:

A. Repeal all forms of crime that have the purpose or
effect of prohibiting consensual sexual activity among
persons of the same sex who are over the age of
consent and, until such provisions are repealed,
never impose the death penalty on any person
convicted under them;

B. Remit sentences of death and release all those
currently awaiting execution for crimes relating to
consensual sexual activity among persons who are
over the age of consent;

C. Cease any State-sponsored or State-condoned
attacks on the lives of persons based on sexual
orientation or gender identity, and ensure that all
such attacks, whether by government officials or by
any individual or group, are vigorously investigated,
and that, where appropriate evidence is found, those
responsible are prosecuted, tried and duly punished.

6. THE RIGHT TO PRIVACY

Everyone, regardless of sexual orientation or gender
identity, is entitled to the enjoyment of privacy without
arbitrary or unlawful interference, including with regard
to their family, home or correspondence as well as to
protection from unlawful attacks on their honour and
reputation. The right to privacy ordinarily includes the
choice to disclose or not to disclose information relating
 23


to one's sexual orientation or gender identity, as well as
decisions and choices regarding both one's own body
and consensual sexual and other relations with others.

States shall:

A. Take all necessary legislative, administrative and
other measures to ensure the right of each person,
regardless of sexual orientation or gender identity, to
enjoy the private sphere, intimate decisions, and
human relations, including consensual sexual activity
among persons who are over the age of consent,
without arbitrary interference;

B. Repeal all laws that criminalise consensual sexual
activity among persons of the same sex who are over
the age of consent, and ensure that an equal age of
consent applies to both same-sex and different-sex
sexual activity;

C. Ensure that criminal and other legal provisions of
general application are not applied to de facto
criminalise consensual sexual activity among persons
of the same sex who are over the age of consent;

D. Repeal any law that prohibits or criminalises the
expression of gender identity, including through
dress, speech or mannerisms, or that denies to
individuals the opportunity to change their bodies as
a means of expressing their gender identity;

E. Release all those held on remand or on the basis of a
criminal conviction, if their detention is related to
consensual sexual activity among persons who are
over the age of consent, or is related to gender
identity;

F. Ensure the right of all persons ordinarily to choose
when, to whom and how to disclose information
pertaining to their sexual orientation or gender
identity, and protect all persons from arbitrary or
unwanted disclosure, or threat of disclosure of such
 24


information by others

9. THE RIGHT TO TREATMENT WITH HUMANITY
WHILE IN DETENTION

Everyone deprived of liberty shall be treated with
humanity and with respect for the inherent dignity of the
human person. Sexual orientation and gender identity
are integral to each person's dignity.


States shall:

A. Ensure that placement in detention avoids further
marginalising persons on the basis of sexual
orientation or gender identity or subjecting them to
risk of violence, ill-treatment or physical, mental or
sexual abuse;

B. Provide adequate access to medical care and
counselling appropriate to the needs of those in
custody, recognising any particular needs of persons
on the basis of their sexual orientation or gender
identity, including with regard to reproductive health,
access to HIV/AIDS information and therapy and
access to hormonal or other therapy as well as to
gender-reassignment treatments where desired;

C. Ensure, to the extent possible, that all prisoners
participate in decisions regarding the place of
detention appropriate to their sexual orientation and
gender identity;

D. Put protective measures in place for all prisoners
vulnerable to violence or abuse on the basis of their
sexual orientation, gender identity or gender
expression and ensure, so far as is reasonably
practicable, that such protective measures involve no
greater restriction of their rights than is experienced
by the general prison population;

E. Ensure that conjugal visits, where permitted, are
 25


granted on an equal basis to all prisoners and
detainees, regardless of the gender of their partner;

F. Provide for the independent monitoring of detention
facilities by the State as well as by non-governmental
organisations including organisations working in the
spheres of sexual orientation and gender identity;

G. Undertake programmes of training and awareness-
raising for prison personnel and all other officials in
the public and private sector who are engaged in
detention facilities, regarding international human
rights standards and principles of equality and non-
discrimination, including in relation to sexual
orientation and gender identity.

18. PROTECTION FROM MEDICAL ABUSES

No person may be forced to undergo any form of
medical or psychological treatment, procedure, testing,
or be confined to a medical facility, based on sexual
orientation or gender identity. Notwithstanding any
classifications to the contrary, a person's sexual
orientation and gender identity are not, in and of
themselves, medical conditions and are not to be
treated, cured or suppressed.

States shall:

A. Take all necessary legislative, administrative and
other measures to ensure full protection against
harmful medical practices based on sexual
orientation or gender identity, including on the basis
of stereotypes, whether derived from culture or
otherwise, regarding conduct, physical appearance or
perceived gender norms;

B. Take all necessary legislative, administrative and
other measures to ensure that no child's body is
irreversibly altered by medical procedures in an
attempt to impose a gender identity without the full,
free and informed consent of the child in accordance
 26


with the age and maturity of the child and guided by
the principle that in all actions concerning children,
the best interests of the child shall be a primary
consideration;

C. Establish child protection mechanisms whereby no
child is at risk of, or subjected to, medical abuse;

D. Ensure protection of persons of diverse sexual
orientations and gender identities against unethical or
involuntary medical procedures or research, including
in relation to vaccines, treatments or microbicides for
HIV/AIDS or other diseases;

E. Review and amend any health funding provisions or
programmes, including those of a development-
assistance nature, which may promote, facilitate or in
any other way render possible such abuses;

F. Ensure that any medical or psychological treatment
or counselling does not, explicitly or implicitly, treat
sexual orientation and gender identity as medical
conditions to be treated, cured or suppressed.

19. THE RIGHT TO FREEDOM OF OPINION AND
EXPRESSION

Everyone has the right to freedom of opinion and
expression, regardless of sexual orientation or gender
identity. This includes the expression of identity or
personhood through speech, deportment, dress, bodily
characteristics, choice of name, or any other means, as
well as the freedom to seek, receive and impart
information and ideas of all kinds, including with regard
to human rights, sexual orientation and gender identity,
through any medium and regardless of frontiers.

States shall:

A. Take all necessary legislative, administrative and
other measures to ensure full enjoyment of freedom
of opinion and expression, while respecting the rights
 27


and freedoms of others, without discrimination on the
basis of sexual orientation or gender identity,
including the receipt and imparting of information and
ideas concerning sexual orientation and gender
identity, as well as related advocacy for legal rights,
publication of materials, broadcasting, organisation of
or participation in conferences, and dissemination of
and access to safer-sex information;

B. Ensure that the outputs and the organisation of
media that is State-regulated is pluralistic and non-
discriminatory in respect of issues of sexual
orientation and gender identity and that the personnel
recruitment and promotion policies of such
organisations are non-discriminatory on the basis of
sexual orientation or gender identity;

C. Take all necessary legislative, administrative and
other measures to ensure the full enjoyment of the
right to express identity or personhood, including
through speech, deportment, dress, bodily
characteristics, choice of name or any other means;

D. Ensure that notions of public order, public morality,
public health and public security are not employed to
restrict, in a discriminatory manner, any exercise of
freedom of opinion and expression that affirms
diverse sexual orientations or gender identities;

E. Ensure that the exercise of freedom of opinion and
expression does not violate the rights and freedoms
of persons of diverse sexual orientations and gender
identities;

F. Ensure that all persons, regardless of sexual
orientation or gender identity, enjoy equal access to
information and ideas, as well as to participation in
public debate."
 28


23. UN bodies, Regional Human Rights Bodies, National Courts,

Government Commissions and the Commissions for Human

Rights, Council of Europe, etc. have endorsed the Yogyakarta

Principles and have considered them as an important tool for

identifying the obligations of States to respect, protect and fulfill the

human rights of all persons, regardless of their gender identity.

United Nations Committee on Economic, Social and Cultural

Rights in its Report of 2009 speaks of gender orientation and

gender identity as follows:-

"Sexual orientation and gender identity
`Other status' as recognized in article 2, paragraph 2,
includes sexual orientation. States parties should
ensure that a person's sexual orientation is not a
barrier to realizing Covenant rights, for example, in
accessing survivor's pension rights. In addition,
gender identity is recognized as among the prohibited
grounds of discrimination, for example, persons who
are transgender, transsexual or intersex, often face
serious human rights violations, such as harassment
in schools or in the workplace."


24. In this respect, reference may also be made to the General

Comment No.2 of the Committee on Torture and Article 2 of the

Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment in 2008 and also the General

Comment No.20 of the Committee on Elimination of Discrimination

against Woman, responsible for the implementation of the
 29


Convention on the Elimination of All Forms of Discrimination

against Woman, 1979 and 2010 report.


SRS and Foreign Judgments


25. Various countries have given recognition to the gender

identity of such persons, mostly, in cases where transsexual

persons started asserting their rights after undergoing SRS of their

re-assigned sex. In Corbett v. Corbett (1970) 2 All ER 33, the

Court in England was concerned with the gender of a male to

female transsexual in the context of the validity of a marriage.

Ormrod, J. in that case took the view that the law should adopt the

chromosomal, gonadal and genital tests and if all three are

congruent, that should determine a person's sex for the purpose of

marriage. Learned Judge expressed the view that any operative

intervention should be ignored and the biological sexual

constitution of an individual is fixed at birth, at the latest, and

cannot be changed either by the natural development of organs of

the opposite sex or by medical or surgical means. Later, in R v.

Tan (1983) QB 1053, 1063-1064, the Court of Appeal applied

Corbett approach in the context of criminal law. The Court upheld
 30


convictions which were imposed on Gloria Greaves, a post-

operative male to female transsexual, still being in law, a man.


26. Corbett principle was not found favour by various other

countries, like New Zealand, Australia etc. and also attracted much

criticism, from the medical profession. It was felt that the

application of the Corbett approach would lead to a substantial

different outcome in cases of a post operative inter-sexual person

and a post operative transsexual person. In New Zealand in

Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603,

Justice Ellis noted that once a transsexual person has undergone

surgery, he or she is no longer able to operate in his or her original

sex. It was held that there is no social advantage in the law for not

recognizing the validity of the marriage of a transsexual in the sex

of reassignment. The Court held that an adequate test is whether

the person in question has undergone surgical and medical

procedures that have effectively given the person the physical

conformation of a person of a specified sex. In Re Kevin (Validity

of Marriage of Transsexual) (2001) Fam CA 1074, in an

Australian case, Chisholm J., held that there is no `formulaic

solution' to determine the sex of an individual for the purpose of the

law of marriage. It was held that all relevant matters need to be
 31


considered, including the person's life experiences and self-

perception. Full Court of the Federal Family Court in the year

2003 approved the above-mentioned judgment holding that in the

relevant Commonwealth marriage statute the words `man' and

`woman' should be given their ordinary, everyday contemporary

meaning and that the word `man' includes a post operative female

to male transsexual person. The Full Court also held that there

was a biological basis for transsexualism and that there was no

reason to exclude the psyche as one of the relevant factors in

determining sex and gender. The judgment Attorney-General for

the Commonwealth & "Kevin and Jennifer" & Human Rights

and Equal Opportunity Commission is reported in (2003) Fam

CA 94.


27. Lockhart, J. in Secretary, Department of Social Security v.

"SRA", (1993) 43 FCR 299 and Mathews, J. in R v. Harris &

McGuiness (1988) 17 NSWLR 158, made an exhaustive review of

the various decisions with regard to the question of recognition to

be accorded by Courts to the gender of a transsexual person who

had undertaken a surgical procedure. The Courts generally in

New Zealand held that the decision in Corbett v. Corbett (supra)

and R v. Tan (supra) which applied a purely biological test, should
 32


not be followed. In fact, Lockhart. J. in SRA observed that the

development in surgical and medical techniques in the field of

sexual reassignment, together with indications of changing social

attitudes towards transsexuals, would indicate that generally they

should not be regarded merely as a matter of chromosomes, which

is purely a psychological question, one of self-perception, and

partly a social question, how society perceives the individual.


28. A.B. v. Western Australia (2011) HCA 42 was a case

concerned with the Gender Reassignment Act, 2000. In that Act, a

person who had undergone a reassignment procedure could apply

to Gender Reassignment Board for the issue of a recognition

certificate. Under Section 15 of that Act, before issuing the

certificate, the Board had to be satisfied, inter alia, that the

applicant believed his or her true gender was the person's

reassigned gender and had adopted the lifestyle and gender

characteristics of that gender. Majority of Judges agreed with

Lockhart, J. in SRA that gender should not be regarded merely as

a matter of chromosomes, but partly a psychological question, one

of self-perception, and partly a social question, how society

perceives the individual.
 33


29. The House of Lords in Bellinger v. Bellinger (2003) 2 All ER

593 was dealing with the question of a transsexual. In that case,

Mrs. Bellinger was born on 7th September, 1946. At birth, she was

correctly classified and registered as male. However, she felt

more inclined to be a female. Despite her inclinations, and under

some pressure, in 1967 she married a woman and at that time she

was 21 years old. Marriage broke down and parties separated in

1971 and got divorce in the year 1975. Mrs. Bellinger dressed and

lived like a woman and when she married Mr. Bellinger, he was

fully aware of her background and throughout had been supportive

to her. Mr. and Mrs. Bellinger since marriage lived happily as

husband and wife and presented themselves in that fashion to the

outside world. Mrs. Bellinger's primary claim was for a declaration

under Section 55 of the Family Law Act, 1986 that her marriage to

Mr. Bellinger in 1981 was "at its inception valid marriage". The

House of Lords rejected the claim and dismissed the appeal.

Certainly, the "psychological factor" has not been given much

prominence in determination of the claim of Mrs. Bellinger.


30. The High Court of Kuala Lumpur in Re JG, JG v. Pengarah

Jabatan Pendaftaran Negara (2006) 1 MLJ 90, was considering

the question as to whether an application to amend or correct
 34


gender status stated in National Registration Identity Card could

be allowed after a person has undergone SRS. It was a case

where the plaintiff was born as a male, but felt more inclined to be

a woman. In 1996 at Hospital Siroros she underwent a gender

reassignment and got the surgery done for changing the sex from

male to female and then she lived like a woman. She applied to

authorities to change her name and also for a declaration of her

gender as female, but her request was not favourably considered,

but still treated as a male. She sought a declaration from the

Court that she be declared as a female and that the Registration

Department be directed to change the last digit of her identity card

to a digit that reflects a female gender. The Malaysian Court

basically applied the principle laid down in Corbett (supra),

however, both the prayers sought for were granted, after noticing

that the medical men have spoken that the plaintiff is a female and

they have considered the sex change of the plaintiff as well as her

"psychological aspect". The Court noticed that she feels like a

woman, lives like one, behaves as one, has her physical body

attuned to one, and most important of all, her "psychological

thinking" is that of a woman.
 35


31. The Court of Appeal, New South Wales was called upon to

decide the question whether the Registrar of Births, Deaths and

Marriages has the power under the Births, Deaths and Marriages

Act, 1995 to register a change of sex of a person and the sex

recorded on the register to "non-specific" or "non-specified". The

appeal was allowed and the matter was remitted back to the

Tribunal for a fresh consideration in accordance with law, after

laying down the law on the subject. The judgment is reported as

Norrie v. NSW Registrar of Births, Deaths and Marriages

(2013) NSWCA 145. While disposing of the appeal, the Court held

as follows:-

"The consequence is that the Appeal Panel (and the
Tribunal and the Registrar) were in error in construing
the power in S.32DC(1) as limiting the Registrar to
registering a person's change of sex as only male or
female. An error in the construction of the statutory
provision granting the power to register a person's
change of sex is an error on a question of law.
Collector of Customs v. Pozzolanic Enterprises Pty.
Ltd. [1993] FCA 322; (1993) 43 FCR 280 at 287. This
is so notwithstanding that the determination of the
common understanding of a general word used in the
statutory provision is a question of fact. The Appeal
Panel (and the Tribunal and the Registrar) erred in
determining that the current ordinary meaning of the
word "sex" is limited to the character of being either
male or female. That involved an error on a question
of fact. But the Appeal Panel's error in arriving at the
common understanding of the word "sex" was
associated with its error in construction of the effect of
the statutory provision of S.32DC (and also of
 36


S.32DA), and accordingly is of law: Hope v. Bathurst
City Council [1980] HCA 16, (1980) 144 CLR 1 at 10."

32. In Christine Goodwin v. United Kingdom (Application

No.28957/95 - Judgment dated 11th July, 2002), the European

Court of Human Rights examined an application alleging violation

of Articles 8, 12, 13 and 14 of the Convention for Protection of

Human Rights and Fundamental Freedoms, 1997 in respect of the

legal status of transsexuals in UK and particularly their treatment in

the sphere of employment, social security, pensions and marriage.

Applicant in that case had a tendency to dress as a woman from

early childhood and underwent aversion therapy in 1963-64. In

the mid-1960s she was diagnosed as a transsexual. Though she

married a woman and they had four children, her inclination was

that her "brain sex" did not fit her body. From that time until 1984

she dressed as a man for work but as a woman in her free time. In

January, 1985, the applicant began treatment at the Gender

Identity Clinic. In October, 1986, she underwent surgery to

shorten her vocal chords. In August, 1987, she was accepted on

the waiting list for gender re-assignment surgery and later

underwent that surgery at a National Health Service hospital. The

applicant later divorced her former wife. She claimed between

1990 and 1992 she was sexually harassed by colleagues at work,
 37


followed by other human rights violations. The Court after referring

to various provisions and Conventions held as follows:-

"Nonetheless, the very essence of the Convention is
respect for human dignity and human freedom. Under
Article 8 of the Convention in particular, where the
notion of personal autonomy is an important principle
underlying the interpretation of its guarantees,
protection is given to the personal sphere of each
individuals, including the right to establish details of
their identity as individual human beings (see, inter
alia, Pretty v. the United Kingdom no.2346/02,
judgment of 29 April 2002, 62, and Mikulic v. Croatia,
no.53176/99, judgment of 7 February 2002, 53, both to
be published in ECHR 2002...). In the twenty first
century the right of transsexuals to personal
development and to physical and moral security in the
full sense enjoyed by others in society cannot be
regarded as a matter of controversy requiring the lapse
of time to cast clearer light on the issues involved. In
short, the unsatisfactory situation in which post-
operative transsexuals live in an intermediate zone as
not quite one gender or the other is no longer
sustainable."

33. The European Court of Human Rights in the case of Van

Kuck v. Germany (Application No.35968/97 - Judgment dated

12.9.2003) dealt with the application alleging that German Court's

decisions refusing the applicant's claim for reimbursement of

gender reassignment measures and the related proceedings were

in breach of her rights to a fair trial and of her right to respect for

her private life and that they amounted to discrimination on the

ground of her particular "psychological situation". Reliance was
 38


placed on Articles 6, 8, 13 and 14 of the Convention for Protection

of Human Rights and Fundamental Freedoms, 1997. The Court

held that the concept of "private life" covers the physical and

psychological integrity of a person, which can sometimes embrace

aspects of an individual's physical and social identity. For

example, gender identifications, name and sexual orientation and

sexual life fall within the personal sphere protected by Article 8.

The Court also held that the notion of personal identity is an

important principle underlying the interpretation of various

guaranteed rights and the very essence of the Convention being

respect for human dignity and human freedom, protection is given

to the right of transsexuals to personal development and to

physical and moral security.


34. Judgments referred to above are mainly related to

transsexuals, who, whilst belonging physically to one sex, feel

convinced that they belong to the other, seek to achieve a more

integrated unambiguous identity by undergoing medical and

surgical operations to adapt their physical characteristic to their

psychological nature. When we examine the rights of transsexual

persons, who have undergone SRS, the test to be applied is not

the "Biological test", but the "Psychological test", because
 39


psychological factor and thinking of transsexual has to be given

primacy than binary notion of gender of that person. Seldom

people realize the discomfort, distress and psychological trauma,

they undergo and many of them undergo "Gender Dysphoria'

which may lead to mental disorder. Discrimination faced by this

group in our society, is rather unimaginable and their rights have to

be protected, irrespective of chromosomal sex, genitals, assigned

birth sex, or implied gender role. Rights of transgenders, pure and

simple, like Hijras, eunuchs, etc. have also to be examined, so

also their right to remain as a third gender as well as their physical

and psychological integrity. Before addressing those aspects

further, we may also refer to few legislations enacted in other

countries recognizing their rights.


LEGISLATIONS IN OTHER COUNTRIES ON TGs


35. We notice, following the trend, in the international human

rights law, many countries have enacted laws for recognizing

rights of transsexual persons, who have undergone either

partial/complete SRS, including United Kingdom, Netherlands,

Germany, Australia, Canada, Argentina, etc. United Kingdom has

passed the General Recommendation Act, 2004, following the
 40


judgment in Christine Goodwin (supra) passed by the European

Courts of Human Rights. The Act is all encompassing as not only

does it provide legal recognition to the acquired gender of a

person, but it also lays down provisions highlighting the

consequences of the newly acquired gender status on their legal

rights and entitlements in various aspects such as marriage,

parentage, succession, social security and pensions etc. One of

the notable features of the Act is that it is not necessary that a

person needs to have undergone or in the process of undergoing

a SRS to apply under the Act. Reference in this connection may

be made to the Equality Act, 2010 (UK) which has consolidated,

repealed and replaced around nine different anti-discrimination

legislations including the Sex Discrimination Act, 1986. The Act

defines certain characteristics to be "protected characteristics" and

no one shall be discriminated or treated less favourably on

grounds that the person possesses one or more of the "protected

characteristics". The Act also imposes duties on Public Bodies to

eliminate all kinds of discrimination, harassment and victimization.

Gender reassignment has been declared as one of the protected

characteristics under the Act, of course, only the transsexuals i.e.

those who are proposing to undergo, is undergoing or has
 41


undergone the process of the gender reassignment are protected

under the Act.


36. In Australia, there are two Acts dealing with the gender

identity, (1) Sex Discrimination Act, 1984; and (ii) Sex

Discrimination Amendment (Sexual Orientation, Gender Identity

and Intersex Status) Act, 2013 (Act 2013). Act 2013 amends the

Sex Discrimination Act, 1984. Act 2013 defines gender identity as

the appearance or mannerisms or other gender-related

characteristics of a person (whether by way of medical intervention

or not) with or without regard to the person's designated sex at

birth.

Sections 5(A), (B) and (C) of the 2013 Act have some

relevance and the same are extracted hereinbelow:-

"5A Discrimination on the ground of sexual
orientation

(1) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the aggrieved
person's sexual orientation if, by reason of:

(a) the aggrieved person's sexual orientation; or
(b) a characteristic that appertains generally to
persons who have the same sexual orientation as
the aggrieved person; or
(c) a characteristic that is generally imputed to
persons who have the same sexual orientation as
the aggrieved person;
 42



the discriminator treats the aggrieved person less
favourably than, in circumstances that are the same or
are not materially different, the discriminator treats or
would treat a person who has a different sexual
orientation.

(2) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the aggrieved
person's sexual orientation if the discriminator imposes,
or proposes to impose, a condition, requirement or
practice that has, or is likely to have, the effect of
disadvantaging persons who have the same sexual
orientation as the aggrieved person.

(3) This section has effect subject to sections 7B and
7D.

5B Discrimination on the ground of gender identity

(1) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the aggrieved
person's gender identity if, by reason of:
(a) the aggrieved person's gender identity; or
(b) a characteristic that appertains generally to
persons who have the same gender identity as the
aggrieved person; or
(c) a characteristic that is generally imputed to
persons who have the same gender identity as the
aggrieved person;

the discriminator treats the aggrieved person less
favourably than, in circumstances that are the same or
are not materially different, the discriminator treats or
would treat a person who has a different gender identity.

(2) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the aggrieved
person's gender identity if the discriminator imposes, or
 43


proposes to impose, a condition, requirement or practice
that has, or is likely to have, the effect of disadvantaging
persons who have the same gender identity as the
aggrieved person.

(3) This section has effect subject to sections 7B and
7D.

5C Discrimination on the ground of intersex status

(1) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the aggrieved
person's intersex status if, by reason of:
(a) the aggrieved person's intersex status; or

(b) a characteristic that appertains generally to
persons of intersex status; or

(c) a characteristic that is generally imputed to
persons of intersex status;

the discriminator treats the aggrieved person less
favourably than, in circumstances that are the same or
are not materially different, the discriminator treats or
would treat a person who is not of intersex status.

(2) For the purposes of this Act, a person (the
discriminator) discriminates against another person
(the aggrieved person) on the ground of the aggrieved
person's intersex status if the discriminator imposes, or
proposes to impose, a condition, requirement or practice
that has, or is likely to have, the effect of disadvantaging
persons of intersex status.

(3) This section has effect subject to sections 7B and
7D."
Various other precautions have also been provided under

the Act.
 44


37. We may in this respect also refer to the European Union

Legislations on transsexuals. Recital 3 of the Preamble to the

Directive 2006/54/EC of European Parliament and the Council of 5

July 2006 makes an explicit reference to discrimination based on

gender reassignment for the first time in European Union Law.

Recital 3 reads as under :-

"The Court of Justice has held that the scope of the
principle of equal treatment for men and women cannot
be confined to the prohibition of discrimination based on
the fact that a person is of one or other sex. In view of
this purpose and the nature of the rights which it seeks
to safeguard, it also applies to discrimination arising
from the gender reassignment of a person."


38. European Parliament also adopted a resolution on

discrimination against transsexuals on 12th September, 1989 and

called upon the Member States to take steps for the protection of

transsexual persons and to pass legislation to further that end.

Following that Hungary has enacted Equal Treatment and the

Promotion of Equal Opportunities Act, 2003, which includes sexual

identity as one of the grounds of discrimination. 2010 paper on

`Transgender Persons' Rights in the EU Member States prepared

by the Policy Department of the European Parliament presents

the specific situation of transgender people in 27 Member States

of the European Union. In the United States of America some of
 45


the laws enacted by the States are inconsistent with each other.

The Federal Law which provides protection to transgenders is The

Matthew Shepard and James Byrd. Jr. Hate Crimes Prevention

Act, 2009, which expands the scope of the 1969 United States

Federal Hate-crime Law by including offences motivated by actual

or perceived gender identity. Around 15 States and District of

Colombia in the United States have legislations which prohibit

discrimination on grounds of gender identity and expression. Few

States have issued executive orders prohibiting discrimination.


39. The Parliament of South Africa in the year 2003, enacted

Alteration of Sex Description and Sex Status Act, 2003, which

permits transgender persons who have undergone gender

reassignment or people whose sexual characteristics have

evolved naturally or an intersexed person to apply to the Director

General of the National Department of Home Affairs for alteration

of his/her sex description in the birth register, though the

legislation does not contemplate a more inclusive definition of

transgenders.


40. The Senate of Argentina in the year 2012 passed a law on

Gender Identity that recognizes right by all persons to the
 46


recognition of their gender identity as well as free development of

their person according to their gender identity and can also

request that their recorded sex be amended along with the

changes in first name and image, whenever they do not agree with

the self-perceived gender identity. Not necessary that they

seemed to prove that a surgical procedure for total or partial

genital reassignment, hormonal therapies or any other

psychological or medical treatment had taken place. Article 12

deals with dignified treatment, respecting the gender identity

adopted by the individual, even though the first name is different

from the one recorded in their national identity documents.

Further laws also provide that whenever requested by the

individual, the adopted first name must be used for summoning,

recording, filing, calling and any other procedure or service in

public and private spaces.


41. In Germany, a new law has come into force on 5th November,

2013, which allows the parents to register the sex of the children

as `not specified' in the case of children with intersex variation.

According to Article 22, Section 3 of the German Civil Statutes Act

reads as follows:-
 47


"If a child can be assigned to neither the female nor the
male sex then the child has to be named without a
specification"


42. The law has also added a category of X, apart from "M" and

"F" under the classification of gender in the passports.


Indian Scenario


43. We have referred exhaustively to the various judicial

pronouncements and legislations on the international arena to

highlight the fact that the recognition of "sex identity gender" of

persons, and "guarantee to equality and non-discrimination" on the

ground of gender identity or expression is increasing and gaining

acceptance in international law and, therefore, be applied in India

as well.


44. Historical background of Transgenders in India has already

been dealth in the earlier part of this Judgment indicating that they

were once treated with great respect, at least in the past, though

not in the present. We can perceive a wide range of transgender

related identities, cultures or experiences which are generally as

follows:

"Hijras: Hijras are biological males who reject their
`masculine' identity in due course of time to identify either
 48


as women, or "not-men", or "in-between man and
woman", or "neither man nor woman". Hijras can be
considered as the western equivalent of
transgender/transsexual (male-to-female) persons but
Hijras have a long tradition/culture and have strong social
ties formalized through a ritual called "reet" (becoming a
member of Hijra community). There are regional
variations in the use of terms referred to Hijras. For
example, Kinnars (Delhi) and Aravanis (Tamil Nadu).
Hijras may earn through their traditional work: `Badhai'
(clapping their hands and asking for alms), blessing new-
born babies, or dancing in ceremonies. Some proportion
of Hijras engage in sex work for lack of other job
opportunities, while some may be self-employed or work
for non-governmental organisations." (See UNDP India
Report (December, 2010).

Eunuch: Eunuch refers to an emasculated male and
intersexed to a person whose genitals are ambiguously
male-like at birth, but this is discovered the child
previously assigned to the male sex, would be
recategorized as intesexexd - as a Hijra.

"Aravanis and `Thirunangi' - Hijras in Tamil Nadu
identify as "Aravani". Tamil Nadu Aravanigal Welfare
Board, a state government's initiative under the
Department of Social Welfare defines Aravanis as
biological males who self-identify themselves as a woman
trapped in a male's body. Some Aravani activists want
the public and media to use the term `Thirunangi' to refer
to Aravanis.

Kothi - Kothis are a heterogeneous group. `Kothis' can
be described as biological males who show varying
degrees of `femininity' - which may be situational. Some
proportion of Kothis have bisexual behavior and get
married to a woman. Kothis are generally of lower
socioeconomic status and some engage in sex work for
survival. Some proportion of Hijra-identified people may
also identify themselves as `Kothis'. But not all Kothi
identified people identify themselves as transgender or
Hijras.
 49



Jogtas/Jogappas: Jogtas or Jogappas are those persons
who are dedicated to and serve as a servant of goddess
Renukha Devi (Yellamma) whose temples are present in
Maharashtra and Karnataka. `Jogta' refers to male servant
of that Goddess and `Jogti' refers to female servant (who is
also sometimes referred to as `Devadasi'). One can
become a `Jogta' (or Jogti) if it is part of their family
tradition or if one finds a `Guru' (or `Pujari') who accepts
him/her as a `Chela' or `Shishya' (disciple). Sometimes, the
term `Jogti Hijras' is used to denote those male-to-female
transgender persons who are devotees/servants of
Goddess Renukha Devi and who are also in the Hijra
communities. This term is used to differentiate them from
`Jogtas' who are heterosexuals and who may or may not
dress in woman's attire when they worship the Goddess.
Also, that term differentiates them from `Jogtis' who are
biological females dedicated to the Goddess. However,
`Jogti Hijras' may refer to themselves as `Jogti' (female
pronoun) or Hijras, and even sometimes as `Jogtas'.

Shiv-Shakthis: Shiv-Shakthis are considered as males
who are possessed by or particularly close to a goddess
and who have feminine gender expression. Usually, Shiv-
Shakthis are inducted into the Shiv-Shakti community by
senior gurus, who teach them the norms, customs, and
rituals to be observed by them. In a ceremony, Shiv-
Shakthis are married to a sword that represents male
power or Shiva (deity). Shiv-Shakthis thus become the
bride of the sword. Occasionally, Shiv-Shakthis cross-
dress and use accessories and ornaments that are
generally/socially meant for women. Most people in this
community belong to lower socio-economic status and earn
for their living as astrologers, soothsayers, and spiritual
healers; some also seek alms." (See Serena Nanda,
Wadsworth Publishing Company, Second Edition
(1999)


45. Transgender people, as a whole, face multiple forms of

oppression in this country. Discrimination is so large and
 50


pronounced, especially in the field of health care, employment,

education, leave aside social exclusion. A detailed study was

conducted by the United Nations Development Programme

(UNDP - India) and submitted a report in December, 2010 on

Hijras/transgenders in India: "HIV Human Rights and Social

Exclusion". The Report states that the HIV Human

Immunodeficiency Virus and Sexually Transmitted Infections (STI)

is now increasingly seen in Hijras/transgenders population. The

estimated size of men who have sex with men (MSM) and male

sex workers population in India (latter presumably includes Hijras/

TG communities) is 2,352,133 and 235,213 respectively. It was

stated that no reliable estimates are available for Hijras/TG

women. HIV prevalence among MSM population was 7.4%

against the overall adult HIV prevalence of 0.36%. It was stated

recently Hijras/TG people were included under the category of

MSM in HIV sentinel serosurveillance. It is also reported in recent

studies that Hijras/TG women have indicated a very high HIV

prevalence (17.5% to 41%) among them. Study conducted by

NACO also highlights a pathetic situation. Report submitted by

NACI, NACP IV Working Group Hijras TG dated 5.5.2011 would

indicate that transgenders are extremely vulnerable to HIV. Both
 51


the reports highlight the extreme necessity of taking emergent

steps to improve their sexual health, mental health and also

address the issue of social exclusion. The UNDP in its report has

made the following recommendations, which are as under:

"Multiple problems are faced by Hijras/TG, which
necessitate a variety of solutions and actions. While
some actions require immediate implementation such as
introducing Hijra/TG-specific social welfare schemes,
some actions need to be taken on a long-term basis
changing the negative attitude of the general public and
increasing accurate knowledge about Hijra/TG
communities. The required changes need to be reflected
in policies and laws; attitude of the government, general
public and health care providers; and health care systems
and practice. Key recommendations include the
following:

1. Address the gape in NACP-III: establish HIV sentinel
serosurveillance sites for Hijras/TG at strategic
locations; conduct operations research to design and
fine-tune culturally-relevant package of HIV prevention
and care interventions for Hijras/TG; provide financial
support for the formation of CBOs run by Hijras/TG;
and build the capacity of CBOs to implement effective
rogrammes.

2. Move beyond focusing on individual-level HIV
prevention activities to address the structural
determinants of risks and mitigate the impact of
risks. For example, mental health counseling, crisis
intervention (crisis in relation to suicidal tendencies,
police harassment and arrests, support following
sexual and physical violence), addressing alcohol and
drug abuse, and connecting to livelihood programs all
need to be part of the HIV interventions.

3. Train health care providers to be competent and
sensitive in providing health care services (including
 52


STI and HIV-related services) to Hijras/TG as well as
develop and monitor implementation of guidelines
related to gender transition and sex reassignment
surgery (SRS).

4. Clarify the ambiguous legal status of sex reassignment
surgery and provide gender transition and SRS
services (with proper pre-and post-operation/transition
counseling) for free in public hospitals in various parts
in India.

5. Implement stigma and discrimination reduction
measures at various settings through a variety of
ways: mass media awareness for the general public to
focused training and sensitization for police and health
care providers.

6. Develop action steps toward taking a position on legal
recognition of gender identity of Hijras/TG need to
be taken in consultation with Hijras/TG and other key
stakeholders. Getting legal recognition and avoiding
ambiguities in the current procedures that issue
identity documents to Hijras/TGs are required as they
are connected to basic civil rights such as access to
health and public services, right to vote, right to contest
elections, right to education, inheritance rights, and
marriage and child adoption.

7. Open up the existing Social Welfare Schemes for
needy Hijras/TG and create specific welfare schemes
to address the basic needs of Hijras/TG including
housing and employment needs.

8. Ensure greater involvement of vulnerable
communities including Hijras/TG women in policy
formulation and program development."


46. Social exclusion and discrimination on the ground of gender

stating that one does not conform to the binary gender
 53


(male/female) does prevail in India. Discussion on gender identity

including self-identification of gender of male/female or as

transgender mostly focuses on those persons who are assigned

male sex at birth, whether one talks of Hijra transgender, woman

or male or male to female transgender persons, while concern

voiced by those who are identified as female to male trans-sexual

persons often not properly addressed. Female to male unlike Hijra/

transgender persons are not quite visible in public unlike

Hijra/transgender persons. Many of them, however, do experience

violence and discrimination because of their sexual orientation or

gender identity.


INDIA TO FOLLOW INTERNATIONAL CONVENTIONS


47. International Conventions and norms are significant for the

purpose of interpretation of gender equality. Article 1 of the

Universal declaration on Human Rights, 1948, states that all

human-beings are born free and equal in dignity and rights. Article

3 of the Universal Declaration of Human Rights states that

everyone has a right to life, liberty and security of person. Article 6

of the International Covenant on Civil and Political Rights, 1966

affirms that every human-being has the inherent right to life, which
 54


right shall be protected by law and no one shall be arbitrarily

deprived of his life. Article 5 of the Universal Declaration of

Human Rights and Article 7 of the International Covenant on Civil

and Political Rights provide that no one shall be subjected to

torture or to cruel inhuman or degrading treatment or punishment.

United Nations Convention against Torture and Other Cruel

Inhuman and Degrading Treatment or Punishment (dated 24th

January, 2008) specifically deals with protection of individuals and

groups made vulnerable by discrimination or marginalization.

Para 21 of the Convention states that States are obliged to protect

from torture or ill-treatment all persons regardless of sexual

orientation or transgender identity and to prohibit, prevent and

provide redress for torture and ill-treatment in all contests of State

custody or control. Article 12 of the Universal Declaration of

Human Rights and Article 17 of the International Covenant on Civil

and Political Rights state that no one shall be subjected to

"arbitrary or unlawful interference with his privacy, family, home or

correspondence".


48. Above-mentioned International Human Rights instruments

which are being followed by various countries in the world are

aimed to protect the human rights of transgender people since it
 55


has been noticed that transgenders/transsexuals often face

serious human rights violations, such as harassment in work place,

hospitals, places of public conveniences, market places, theaters,

railway stations, bus stands, and so on.


49. Indian Law, on the whole, only recognizes the paradigm of

binary genders of male and female, based on a person's sex

assigned by birth, which permits gender system, including the law

relating to marriage, adoption, inheritance, succession and

taxation and welfare legislations. We have exhaustively referred

to various articles contained in the Universal Declaration of Human

Rights, 1948, the International Covenant on Economic, Social and

Cultural Rights, 1966, the International Covenant on Civil and

Political Rights, 1966 as well as the Yogyakarta principles.

Reference was also made to legislations enacted in other

countries dealing with rights of persons of transgender community.

Unfortunately we have no legislation in this country dealing with

the rights of transgender community. Due to the absence of

suitable legislation protecting the rights of the members of the

transgender community, they are facing discrimination in various

areas and hence the necessity to follow the International

Conventions to which India is a party and to give due respect to
 56


other non-binding International Conventions and principles.

Constitution makers could not have envisaged that each and every

human activity be guided, controlled, recognized or safeguarded

by laws made by the legislature. Article 21 has been incorporated

to safeguard those rights and a constitutional Court cannot be a

mute spectator when those rights are violated, but is expected to

safeguard those rights knowing the pulse and feeling of that

community, though a minority, especially when their rights have

gained universal recognition and acceptance.


50. Article 253 of the Constitution of India states that the

Parliament has the power to make any law for the whole or any

part of the territory of India for implementing any treaty, agreement

or convention. Generally, therefore, a legislation is required for

implementing the international conventions, unlike the position in

the United States of America where the rules of international law

are applied by the municipal courts on the theory of their implied

adoption by the State, as a part of its own municipal law. Article

VI, Cl. (2) of the U.S. Constitution reads as follows:

"........all treaties made, or which shall be made, under
the authority of the united States, shall be the supreme
law of the land, and the judges in every State shall be
bound thereby, anything in the Constitution or laws of
any State to the contrary not-withstanding."
 57



51. In the United States, however, it is open to the courts to

supersede or modify international law in its application or it may be

controlled by the treaties entered into by the United States. But, till

an Act of Congress is passed, the Court is bound by the law of

nations, which is part of the law of the land. Such a `supremacy

clause' is absent in our Constitution. Courts in India would apply

the rules of International law according to the principles of comity of

Nations, unless they are overridden by clear rules of domestic law.

See: Gramophone Company of India Ltd. v. Birendra Bahadur

Pandey (1984) 2 SCC 534 and Tractor Export v. Tarapore & Co.

(1969) 3 SCC 562, Mirza Ali Akbar Kashani v. United Arab

Republic (1966) 1 SCR 391. In the case of Jolly George

Varghese v. Bank of Cochin (1980) 2 SCC 360, the Court applied

the above principle in respect of the International Covenant on Civil

and Political Rights, 1966 as well as in connection with the

Universal Declaration of Human Rights. India has ratified the

above mentioned covenants, hence, those covenants can be used

by the municipal courts as an aid to the Interpretation of Statutes

by applying the Doctrine of Harmonization. But, certainly, if the

Indian law is not in conflict with the International covenants,

particularly pertaining to human rights, to which India is a party, the
 58


domestic court can apply those principles in the Indian conditions.

The Interpretation of International Conventions is governed by

Articles 31 and 32 of the Vienna Convention on the Law of Treaties

of 1969.


52. Article 51 of the Directive Principles of State Policy, which

falls under Part IV of the Indian Constitution, reads as under:

"Art. 51. The State shall endeavour to -

(a)promote international peace and security;

(b) maintain just and honourable relations between
nations;

(c) Foster respect for international law and treaty
obligation in the dealings of organised peoples with
one another; and

(d)Encourage settlement of international disputes by
arbitration."

53. Article 51, as already indicated, has to be read along with

Article 253 of the Constitution. If the parliament has made any

legislation which is in conflict with the international law, then Indian

Courts are bound to give effect to the Indian Law, rather than the

international law. However, in the absence of a contrary

legislation, municipal courts in India would respect the rules of

international law. In His Holiness Kesavananda Bharati

Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was
 59


stated that in view of Article 51 of the Constitution, the Court must

interpret language of the Constitution, if not intractable, in the light

of United Nations Charter and the solemn declaration subscribed to

it by India. In Apparel Export Promotion Council v. A. K.

Chopra (1999) 1 SCC 759, it was pointed out that domestic courts

are under an obligation to give due regard to the international

conventions and norms for construing the domestic laws, more so,

when there is no inconsistency between them and there is a void in

domestic law. Reference may also be made to the Judgments of

this Court in Githa Hariharan (Ms) and another v. Reserve Bank

of India and another (1999) 2 SCC 228, R.D. Upadhyay v. State

of Andhra Pradesh and others (2007) 15 SCC 337 and People's

Union for Civil Liberties v. Union of India and another (2005) 2

SCC 436. In Vishaka and others v. State of Rajasthan and

Others (1997) 6 SCC 241, this Court under Article 141 laid down

various guidelines to prevent sexual harassment of women in

working places, and to enable gender equality relying on Articles

11, 24 and general recommendations 22, 23 and 24 of the

Convention on the Elimination of All Forms of Discrimination

against Women. Any international convention not inconsistent with

the fundamental rights and in harmony with its spirit must be read
 60


into those provisions, e.g., Articles 14, 15, 19 and 21 of the

Constitution to enlarge the meaning and content thereof and to

promote the object of constitutional guarantee. Principles

discussed hereinbefore on TGs and the International Conventions,

including Yogyakarta principles, which we have found not

inconsistent with the various fundamental rights guaranteed under

the Indian Constitution, must be recognized and followed, which

has sufficient legal and historical justification in our country.


ARTICLE 14 AND TRANSGENDERS


54. Article 14 of the Constitution of India states that the State

shall not deny to "any person" equality before the law or the equal

protection of the laws within the territory of India. Equality includes

the full and equal enjoyment of all rights and freedom. Right to

equality has been declared as the basic feature of the Constitution

and treatment of equals as unequals or unequals as equals will be

violative of the basic structure of the Constitution. Article 14 of the

Constitution also ensures equal protection and hence a positive

obligation on the State to ensure equal protection of laws by

bringing in necessary social and economic changes, so that

everyone including TGs may enjoy equal protection of laws and
 61


nobody is denied such protection. Article 14 does not restrict the

word `person' and its application only to male or female.

Hijras/transgender persons who are neither male/female fall within

the expression `person' and, hence, entitled to legal protection of

laws in all spheres of State activity, including employment,

healthcare, education as well as equal civil and citizenship rights,

as enjoyed by any other citizen of this country.


55. Petitioners have asserted as well as demonstrated on facts

and figures supported by relevant materials that despite

constitutional guarantee of equality, Hijras/transgender persons

have been facing extreme discrimination in all spheres of the

society. Non-recognition of the identity of Hijras/transgender

persons denies them equal protection of law, thereby leaving them

extremely vulnerable to harassment, violence and sexual assault in

public spaces, at home and in jail, also by the police. Sexual

assault, including molestation, rape, forced anal and oral sex, gang

rape and stripping is being committed with impunity and there are

reliable statistics and materials to support such activities. Further,

non-recognition of identity of Hijras /transgender persons results in

them facing extreme discrimination in all spheres of society,

especially in the field of employment, education, healthcare etc.
 62


Hijras/transgender persons face huge discrimination in access to

public spaces like restaurants, cinemas, shops, malls etc. Further,

access to public toilets is also a serious problem they face quite

often. Since, there are no separate toilet facilities for

Hijras/transgender persons, they have to use male toilets where

they are prone to sexual assault and harassment. Discrimination

on the ground of sexual orientation or gender identity, therefore,

impairs equality before law and equal protection of law and violates

Article 14 of the Constitution of India.


ARTICLES 15 & 16 AND TRANSGENDERS


56. Articles 15 and 16 prohibit discrimination against any citizen

on certain enumerated grounds, including the ground of `sex'. In

fact, both the Articles prohibit all forms of gender bias and gender

based discrimination.


57. Article 15 states that the State shall not discriminate against

any citizen, inter alia, on the ground of sex, with regard to

(a) access to shops, public restaurants, hotels and places of
public entertainment; or
(b) use of wells, tanks, bathing ghats, roads and places of public
resort maintained wholly or partly out of State funds or
dedicated to the use of the general public.
 63


The requirement of taking affirmative action for the

advancement of any socially and educationally backward classes

of citizens is also provided in this Article.


58. Article 16 states that there shall be equality of opportunities

for all the citizens in matters relating to employment or appointment

to any office under the State. Article 16 (2) of the Constitution of

India reads as follows :

"16(2). No citizen shall, on grounds only of religion,
race, caste, sex, descent, place of birth, residence or
any of them, be ineligible for, or discriminated against
in respect or, any employment or office under the
State."

Article 16 not only prohibits discrimination on the ground of

sex in public employment, but also imposes a duty on the State to

ensure that all citizens are treated equally in matters relating to

employment and appointment by the State.


59. Articles 15 and 16 sought to prohibit discrimination on the

basis of sex, recognizing that sex discrimination is a historical fact

and needs to be addressed. Constitution makers, it can be

gathered, gave emphasis to the fundamental right against sex

discrimination so as to prevent the direct or indirect attitude to treat

people differently, for the reason of not being in conformity with
 64


stereotypical generalizations of binary genders. Both gender and

biological attributes constitute distinct components of sex.

Biological characteristics, of course, include genitals,

chromosomes and secondary sexual features, but gender

attributes include one's self image, the deep psychological or

emotional sense of sexual identity and character. The

discrimination on the ground of `sex' under Articles 15 and 16,

therefore, includes discrimination on the ground of gender identity.

The expression `sex' used in Articles 15 and 16 is not just limited to

biological sex of male or female, but intended to include people

who consider themselves to be neither male or female.


60. TGs have been systematically denied the rights under Article

15(2) that is not to be subjected to any disability, liability, restriction

or condition in regard to access to public places. TGs have also

not been afforded special provisions envisaged under Article 15(4)

for the advancement of the socially and educationally backward

classes (SEBC) of citizens, which they are, and hence legally

entitled and eligible to get the benefits of SEBC. State is bound to

take some affirmative action for their advancement so that the

injustice done to them for centuries could be remedied. TGs are

also entitled to enjoy economic, social, cultural and political rights
 65


without discrimination, because forms of discrimination on the

ground of gender are violative of fundamental freedoms and human

rights. TGs have also been denied rights under Article 16(2) and

discriminated against in respect of employment or office under the

State on the ground of sex. TGs are also entitled to reservation in

the matter of appointment, as envisaged under Article 16(4) of the

Constitution. State is bound to take affirmative action to give them

due representation in public services.


61. Articles 15(2) to (4) and Article 16(4) read with the Directive

Principles of State Policy and various international instruments to

which Indian is a party, call for social equality, which the TGs could

realize, only if facilities and opportunities are extended to them so

that they can also live with dignity and equal status with other

genders.


ARTICLE 19(1)(a) AND TRANSGENDERS


62. Article 19(1) of the Constitution guarantees certain

fundamental rights, subject to the power of the State to impose

restrictions from exercise of those rights. The rights conferred by

Article 19 are not available to any person who is not a citizen of

India. Article 19(1) guarantees those great basic rights which are
 66


recognized and guaranteed as the natural rights inherent in the

status of the citizen of a free country. Article 19(1) (a) of the

Constitution states that all citizens shall have the right to freedom

of speech and expression, which includes one's right to expression

of his self-identified gender. Self-identified gender can be

expressed through dress, words, action or behavior or any other

form. No restriction can be placed on one's personal appearance

or choice of dressing, subject to the restrictions contained in Article

19(2) of the Constitution.


63. We may, in this connection, refer to few judgments of the US

Supreme Courts on the rights of TG's freedom of expression. The

Supreme Court of the State of Illinois in the City of Chicago v.

Wilson et al., 75 III.2d 525(1978) struck down the municipal law

prohibiting cross-dressing, and held as follows "-

"the notion that the State can regulate one's personal
appearance, unconfined by any constitutional strictures
whatsoever, is fundamentally inconsistent with "values
of privacy, self-identity, autonomy and personal
integrity that ..... the Constitution was designed to
protect."


64. In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.),

the Superior Court of Massachusetts, upheld the right of a person
 67


to wear school dress that matches her gender identity as part of

protected speech and expression and observed as follows :-

"by dressing in clothing and accessories traditionally
associated with the female gender, she is expressing
her identification with the gender. In addition, plaintiff's
ability to express herself and her gender identity
through dress is important for her health and well-
being. Therefore, plaintiff's expression is not merely a
personal preference but a necessary symbol of her
identity."


65. Principles referred to above clearly indicate that the freedom

of expression guaranteed under Article 19(1)(a) includes the

freedom to express one's chosen gender identity through varied

ways and means by way of expression, speech, mannerism,

clothing etc.


66. Gender identity, therefore, lies at the core of one's personal

identity, gender expression and presentation and, therefore, it will

have to be protected under Article 19(1)(a) of the Constitution of

India. A transgender's personality could be expressed by the

transgender's behavior and presentation. State cannot prohibit,

restrict or interfere with a transgender's expression of such

personality, which reflects that inherent personality. Often the

State and its authorities either due to ignorance or otherwise fail to

digest the innate character and identity of such persons. We,
 68


therefore, hold that values of privacy, self-identity, autonomy and

personal integrity are fundamental rights guaranteed to members of

the transgender community under Article 19(1)(a) of the

Constitution of India and the State is bound to protect and

recognize those rights.


ARTICLE 21 AND THE TRANSGENDERS


67. Article 21 of the Constitution of India reads as follows:

"21. Protection of life and personal liberty - No
person shall be deprived of his life or personal liberty
except according to procedure established by law."

Article 21 is the heart and soul of the Indian Constitution,

which speaks of the rights to life and personal liberty. Right to life

is one of the basic fundamental rights and not even the State has

the authority to violate or take away that right. Article 21 takes all

those aspects of life which go to make a person's life meaningful.

Article 21 protects the dignity of human life, one's personal

autonomy, one's right to privacy, etc. Right to dignity has been

recognized to be an essential part of the right to life and accrues to

all persons on account of being humans. In Francis Coralie

Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC

608 (paras 7 and 8), this Court held that the right to dignity forms
 69


an essential part of our constitutional culture which seeks to

ensure the full development and evolution of persons and includes

"expressing oneself in diverse forms, freely moving about and

mixing and comingling with fellow human beings".


68. Recognition of one's gender identity lies at the heart of the

fundamental right to dignity. Gender, as already indicated,

constitutes the core of one's sense of being as well as an integral

part of a person's identity. Legal recognition of gender identity is,

therefore, part of right to dignity and freedom guaranteed under

our Constitution.



69. Article 21, as already indicated, guarantees the protection of

"personal autonomy" of an individual. In Anuj Garg v. Hotel

Association of India (2008) 3 SCC 1 (paragraphs 34-35), this

Court held that personal autonomy includes both the negative right

of not to be subject to interference by others and the positive right

of individuals to make decisions about their life, to express

themselves and to choose which activities to take part in. Self-

determination of gender is an integral part of personal autonomy

and self-expression and falls within the realm of personal liberty

guaranteed under Article 21 of the Constitution of India.
 70



LEGAL RECOGNITION OF THIRD/TRANSGENDER IDENTITY


70. Self-identified gender can be either male or female or a third

gender. Hijras are identified as persons of third gender and are

not identified either as male or female. Gender identity, as already

indicated, refers to a person's internal sense of being male, female

or a transgender, for example Hijras do not identify as female

because of their lack of female genitalia or lack of reproductive

capability. This distinction makes them separate from both male

and female genders and they consider themselves neither man

nor woman, but a "third gender". Hijras, therefore, belong to a

distinct socio-religious and cultural group and have, therefore, to

be considered as a "third gender", apart from male and female.

State of Punjab has treated all TGs as male which is not legally

sustainable. State of Tamil Nadu has taken lot of welfare

measures to safeguard the rights of TGs, which we have to

acknowledge. Few States like Kerala, Tripura, Bihar have referred

TGs as "third gender or sex". Certain States recognize them as

"third category". Few benefits have also been extended by certain

other States. Our neighbouring countries have also upheld their

fundamental rights and right to live with dignity.
 71



71. The Supreme Court of Nepal in Sunil Babu Pant & Ors. v.

Nepal Government (Writ Petition No.917 of 2007 decided on 21st

December, 2007), spoke on the rights of Transgenders as

follows:-

"the fundamental rights comprised under Part II of the
Constitution are enforceable fundamental human rights
guaranteed to the citizens against the State. For this
reason, the fundamental rights stipulated in Part III are
the rights similarly vested in the third gender people as
human beings. The homosexuals and third gender
people are also human beings as other men and
women are, and they are the citizens of this country as
well.... Thus, the people other than `men' and
`women', including the people of `third gender' cannot
be discriminated. The State should recognize the
existence of all natural persons including the people of
third gender other than the men and women. And it
cannot deprive the people of third gender from
enjoying the fundamental rights provided by Part III of
the Constitution."

72. The Supreme Court of Pakistan in Dr. Mohammad Aslam

Khaki & Anr. V. Senior Superintendent of Police (Operation)

Rawalpindi & Ors. (Constitution Petition No.43 of 2009) decided

on 22nd March, 2011, had occasion to consider the rights of

eunuchs and held as follows:-

"Needless to observe that eunuchs in their rights are
citizens of this country and subject to the Constitution
of the Islamic Republic of Pakistan, 1973, their rights,
obligations including right to life and dignity are equally
protected. Thus no discrimination, for any reason, is
possible against them as far as their rights and
 72


obligations are concerned. The Government
functionaries both at federal and provincial levels are
bound to provide them protection of life and property
and secure their dignity as well, as is done in case of
other citizens."


73. We may remind ourselves of the historical presence of the

third gender in this country as well as in the neighbouring countries.


74. Article 21, as already indicated, protects one's right of self-

determination of the gender to which a person belongs.

Determination of gender to which a person belongs is to be

decided by the person concerned. In other words, gender identity

is integral to the dignity of an individual and is at the core of

"personal autonomy" and "self-determination". Hijras/Eunuchs,

therefore, have to be considered as Third Gender, over and above

binary genders under our Constitution and the laws.


75. Articles 14, 15, 16, 19 and 21, above discussion, would

indicate, do not exclude Hijras/Transgenders from its ambit, but

Indian law on the whole recognize the paradigm of binary genders

of male and female, based on one's biological sex. As already

indicated, we cannot accept the Corbett principle of "Biological

Test", rather we prefer to follow the psyche of the person in

determining sex and gender and prefer the "Psychological Test"
 73


instead of "Biological Test". Binary notion of gender reflects in the

Indian Penal Code, for example, Section 8, 10, etc. and also in the

laws related to marriage, adoption, divorce, inheritance, succession

and other welfare legislations like NAREGA, 2005, etc. Non-

recognition of the identity of Hijras/Transgenders in the various

legislations denies them equal protection of law and they face

wide-spread discrimination.


76. Article 14 has used the expression "person" and the Article 15

has used the expression "citizen" and "sex" so also Article 16.

Article 19 has also used the expression "citizen". Article 21 has

used the expression "person". All these expressions, which are

"gender neutral" evidently refer to human-beings. Hence, they take

within their sweep Hijras/Transgenders and are not as such limited

to male or female gender. Gender identity as already indicated

forms the core of one's personal self, based on self identification,

not on surgical or medical procedure. Gender identity, in our view,

is an integral part of sex and no citizen can be discriminated on the

ground of gender identity, including those who identify as third

gender.

77. We, therefore, conclude that discrimination on the basis of

sexual orientation or gender identity includes any discrimination,
 74


exclusion, restriction or preference, which has the effect of

nullifying or transposing equality by the law or the equal protection

of laws guaranteed under our Constitution, and hence we are

inclined to give various directions to safeguard the constitutional

rights of the members of the TG community.



...............................J
(K.S. Radhakrishnan)


A.K. SIKRI,J.

78. I have carefully, and with lot of interest, gone through the

perspicuous opinion of my brother Radhakrishnan,J. I am entirely

in agreement with the discussion contained in the said judgment

on all the cardinal issues that have arisen for consideration in

these proceedings. At the same time, having regard to the fact that

the issues involved are of seminal importance, I am also inclined to

pen down my thoughts.


79. As is clear, these petitions essentially raise an issue of

"Gender Identity", which is the core issue. It has two facets, viz.:

"(a) Whether a person who is born as a male with
predominantly female orientation (or vice-versa), has a right
to get himself to be recognized as a female as per his choice
moreso, when such a person after having undergone
 75


operational procedure, changes his/her sex as well;
(b) Whether transgender (TG), who are neither males nor
females, have a right to be identified and categorized as a
"third gender"?

80. We would hasten to add that it is the second issue with which

we are primarily concerned in these petitions though in the process

of discussion, first issue which is somewhat inter-related, has also

popped up.


81. Indubitably, the issue of choice of gender identify has all the

trappings of a human rights. That apart, as it becomes clear from

the reading of the judgment of my esteemed Brother

Radhakrishnan,J., the issue is not limited to the exercise of choice

of gender/sex. Many rights which flow from this choice also come

into play, inasmuch not giving them the status of a third gender

results in depriving the community of TGs of many of their valuable

rights and privileges which other persons enjoy as citizens of this

Country. There is also deprivation of social and cultural

participation which results into eclipsing their access to education

and health services. Radhakrishnan,J. has exhaustively described

the term `Transgender' as an umbrella term which embraces within

itself a wide range of identities and experiences including but not
 76


limited to pre-operative/post-operative trans sexual people who

strongly identify with the gender opposite to their biological sex i.e.

male/ female. Therein, the history of transgenders in India is also

traced and while doing so, there is mention of upon the draconian

legislation enacted during the British Rule, known as Criminal

Tribes Act, 1871 which treated, per se, the entire community of

Hizra persons as innately `criminals', `addicted to the systematic

commission of non-bailable offences'.


82. With these introductory remarks, I revert to the two facets of

pivotal importance mentioned above. Before embarking on the

discussion, I may clarify that my endeavour would be not to repeat

the discussion contained in the judgment of my Brother

Radhakrishnan, J., as I agree with every word written therein.

However, at times, if some of the observations are re-narrated,

that would be only with a view to bring continuity in the thought

process.

(1) Re: Right of a person to have the gender of his/her

choice.

When a child is born, at the time of birth itself, sex is

assigned to him/her. A child would be treated with that sex

thereafter, i.e. either a male or a female. However, as explained in
 77


detail in the accompanying judgment, some persons, though

relatively very small in number, may born with bodies which

incorporate both or certain aspects of both male or female

physiology. It may also happen that though a person is born as a

male, because of some genital anatomy problems his innate

perception may be that of a female and all his actions would be

female oriented. The position may be exactly the opposite wherein

a person born as female may behave like a male person.


83. In earlier times though one could observe such

characteristics, at the same time the underlying rationale or reason

behind such a behavior was not known. Over a period of time, with

in depth study and research of such physical and psychological

factors bevaviour, the causes of this behaviour have become

discernable which in turn, has led to some changes in societal

norms. Society has starting accepting, though slowly, these have

accepted the behavioral norms of such persons without treating it

as abnormal. Further, medical science has leaped forward to such

an extent that even physiology appearance of a person can be

changed through surgical procedures, from male to female and

vice-versa. In this way, such persons are able to acquire the body

which is in conformity with the perception of their gender/gender
 78


characteristics. In order to ensure that law also keeps pace with

the aforesaid progress in medical science, various countries have

come out with Legislation conferring rights on such persons to

recognize their gender identity based on reassigned sex after

undergoing Sex Re-Assignment Surgery (SRS). Law and

judgments given by the courts in other countries have been

exhaustively and grandiloquently traversed by my learned Brother

in his judgment, discussing amongst others, the Yogyakarta

principles, the relevant provisions of the Universal Declaration of

Human Rights 1948 and highlighting the statutory framework

operating in those countries.


84. The genesis of this recognition lies in the acknowledgment of

another fundamental and universal principal viz. "right of choice"

given to an individual which is the inseparable part of human

rights. It is a matter of historical significance that the 20th Century

is often described as "the age of rights".


85. The most important lesson which was learnt as a result of

Second World War was the realization by the Governments of

various countries about the human dignity which needed to be

cherished and protected. It is for this reason that in the
 79


U.N.Charter, 1945, adopted immediately after the Second World

War, dignity of the individuals was mentioned as of core value. The

almost contemporaneous Universal Declaration of Human Rights

(1948) echoed same sentiments.


86. The underlined message in the aforesaid documents is the

acknowledgment that human rights are individual and have a

definite linkage of human development, both sharing common

vision and with a common purpose. Respect for human rights is

the root for human development and realization of full potential of

each individual, which in turn leads to the augmentation of human

resources with progress of the nation. Empowerment of the people

through human development is the aim of human rights.


87. There is thus a universal recognition that human rights are

rights that "belong" to every person, and do not depend on the

specifics of the individual or the relationship between the right-

holder and the right-grantor. Moreover, human rights exist

irrespective of the question whether they are granted or

recognized by the legal and social system within which we live.

They are devices to evaluate these existing arrangements: ideally,

these arrangements should not violate human rights. In other
 80


words, human rights are moral, pre-legal rights. They are not

granted by people nor can they be taken away by them.


88. In international human rights law, equality is found upon two

complementary principles: non-discrimination and reasonable

differentiation. The principle of non-discrimination seeks to ensure

that all persons can equally enjoy and exercise all their rights and

freedoms. Discrimination occurs due to arbitrary denial of

opportunities for equal participation. For example, when public

facilities and services are set on standards out of the reach of the

TGs, it leads to exclusion and denial of rights. Equality not only

implies preventing discrimination (example, the protection of

individuals against unfavourable treatment by introducing anti-

discrimination laws), but goes beyond in remedying discrimination

against groups suffering systematic discrimination in society. In

concrete terms, it means embracing the notion of positive rights,

affirmative action and reasonable accommodation.


89. Nevertheless, the Universal Declaration of Human Rights

recognizes that all human beings are born free and equal in dignity

and rights and, since the Covenant's provisions apply fully to all

members of society, persons with disabilities are clearly entitled to
 81


the full range of rights recognized in the Covenant. Moreover, the

requirement contained in Article 2 of the Covenant that the rights

enunciated will be exercised without discrimination of any kind

based on certain specified grounds or other status clearly applies

to cover persons with disabilities.


90. India attained independence within two years of adoption of

the aforesaid U.N.Charter and it was but natural that such a Bill of

Rights would assume prime importance insofar as thinking of the

members of the Constituent Assembly goes. It in fact did and we

found chapter on fundamental rights in Part-III of the Constitution.

It is not necessary for me, keeping in view the topic of today's

discussion, to embark on detailed discussion on Chapter-III. Some

of the provisions relevant for our purposes would be Article 14,

15,16 and 21 of the Constitution which have already been

adverted to in detail in the accompanying judgment. At this

juncture it also needs to be emphasized simultaneously is that in

addition to the fundamental rights, Constitution makers also

deemed it proper to impose certain obligations on the State in the

form of "Directive Principles of State Policy" (Part-IV) as a mark of

good governance. It is this part which provides an ideal and

purpose to our Constitution and delineates certain principles which
 82


are fundamental in the governance of the country. Dr.Ambedkar

had explained the purpose of these Directive Principles in the

following manner (See Constituent Assembly debates):

"The Directive Principles are like the
Instruments of Instructions which were
issued to the Governor-General and the
Governors of Colonies, and to those of India
by the British Government under the 1935
Government of India Act. What is called
"Directive Principles" is merely another name
for the Instrument of Instructions. The only
difference is that they are instructions to the
legislature and the executive. Whoever
capture power will not be free to do what he
likes with it. In the exercise of it he will have
to respect these instruments of instructions
which are called Directive Principles".


91. The basic spirit of our Constitution is to provide each and

every person of the nation equal opportunity to grow as a human

being, irrespective of race, caste, religion, community and social

status. Granville Austin while analyzing the functioning of Indian

Constitution in first 50 years ha described three distinguished

strands of Indian Constitution: (i)protecting national unity and

integrity, (ii)establishing the institution and spirit of democracy;

and (iii) fostering social reforms. The Strands are mutually

dependent, and inextricably intertwined in what he elegantly

describes as "a seamless web". And there cannot be social
 83


reforms till it is ensured that each and every citizen of this country

is able to exploit his/her potentials to the maximum. The

Constitution, although drafted by the Constituent Assembly, was

meant for the people of India and that is why it is given by the

people to themselves as expressed in the opening words "We the

People". What is the most important gift to the common person

given by this Constitution is "fundamental rights" which may be

called Human Rights as well.


92. The concept of equality in Article 14 so also the meaning of

the words `life', `liberty' and `law' in Article 21 have been

considerably enlarged by judicial decisions. Anything which is not

`reasonable, just and fair' is not treated to be equal and is,

therefore, violative of Article 14.



93. Speaking for the vision of our founding fathers, in State of

Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), this Court

speaking through Justice Krishna Iyer observed:

"The social philosophy of the
Constitution shapes creative judicial vision
and orientation. Our nation has, as its
dynamic doctrine, economic democracy
sans which political democracy is
chimerical. We say so because our
Constitution, in Parts III and IV and
 84


elsewhere, ensouls such a value system,
and the debate in this case puts precisely
this soul in peril....Our thesis is that the
dialectics of social justice should not be
missed if the synthesis of Parts III and Part
IV is to influence State action and court
pronouncements. Constitutional problems
cannot be studied in a socio-economic
vacuum, since socio-cultural changes are
the source of the new values, and
sloughing off old legal thought is part of
the process the new equity-loaded legality.
A judge is a social scientist in his role as
constitutional invigilator and fails
functionally if he forgets this dimension in
his complex duties."


94. While interpreting Art. 21, this Court has comprehended such

diverse aspects as children in jail entitled to special treatment

(Sheela Barse vs. Union of India [(1986)3 SCC 596], health

hazard due to pollution (Mehta M.C. v. Union of India [(1987) 4

SCC 463], beggars interest in housing (Kalidas Vs. State of J&K

[(1987) 3 SCC 430] health hazard from harmful drugs (Vincent

Panikurlangara Vs. Union of India AIR 1987 SC 990), right of

speedy trial (Reghubir Singh Vs. State of Bihar, AIR 1987 SC

149), handcuffing of prisoners(Aeltemesh Rein Vs. Union of

India, AIR 1988 SC 1768), delay in execution of death sentence,

immediate medical aid to injured persons(Parmanand Katara Vs.

Union of India, AIR 1989 SC 2039), starvation deaths(Kishen Vs.
 85


State of Orissa, AIR 1989 SC 677), the right to know(Reliance

Petrochemicals Ltd. Vs. Indian Express Newspapers Bombay

Pvt. Ltd. AIR 1989 SC 190), right to open trial(Kehar Singh Vs.

State (Delhi Admn.) AIR 1988 SC 1883), inhuman conditions an

after-care home(Vikram Deo Singh Tomar Vs. State of Bihar,

AIR 1988 SC 1782).


95. A most remarkable feature of this expansion of Art.21 is that

many of the non-justiciable Directive Principles embodied in Part

IV of the Constitution have now been resurrected as enforceable

fundamental rights by the magic wand of judicial activism, playing

on Art.21 e.g.

(a) Right to pollution-free water and air (Subhash Kumar Vs.

State of Bihar, AIR 1991 SC 420).

(b) Right to a reasonable residence (Shantistar Builders Vs.

Narayan Khimalal Totame AIR 1990 SC 630).

(c) Right to food (Supra note 14), clothing, decent

environment (supra note 20) and even protection of cultural

heritage (Ram Sharan Autyanuprasi Vs. UOI, AIR 1989 SC

549) .

(d) Right of every child to a full development (Shantistar

Builders Vs. Narayan Khimalal Totame AIR 1990 SC 630).
 86


(e) Right of residents of hilly-areas to access to roads(State

of H.P. Vs. Umed Ram Sharma, AIR 1986 SC 847).

(f) Right to education (Mohini Jain Vs. State of Karnataka,

AIR 1992 SC 1858), but not for a professional degree (Unni

Krishnan J.P. Vs. State of A.P., AIR 1993 SC 2178).


96. A corollary of this development is that while so long the

negative language of Art.21 and use of the word `deprived' was

supposed to impose upon the State the negative duty not to

interfere with the life or liberty of an individual without the sanction

of law, the width and amplitude of this provision has now imposed

a positive obligation (Vincent Panikurlangara Vs. UOI AIR 1987

SC 990) upon the State to take steps for ensuring to the individual

a better enjoyment of his life and dignity, e.g. -

(i) Maintenance and improvement of public health (Vincent

Panikurlangara Vs. UOI AIR 1987 SC 990).

(ii) Elimination of water and air pollution (Mehta M.C. Vs.

UOI (1987) 4 SCC 463).

(iii) Improvement of means of communication (State of H.P.

Vs. Umed Ram Sharma AIR 1986 SC 847).

(iv) Rehabilitation of bonded labourers (Bandhuva Mukti

Morcha Vs. UOI, AIR 1984 SC 802).
 87


(v) Providing human conditions if prisons (Sher Singh Vs.

State of Punjab AIR 1983 SC 465) and protective homes

(Sheela Barse Vs. UOI (1986) 3 SCC 596).

(vi) Providing hygienic condition in a slaughter-house

(Buffalo Traders Welfare Ass. Vs. Maneka Gandhi (1994) Suppl

(3) SCC 448) .


97. The common golden thread which passes through all these

pronouncements is that Art.21 guarantees enjoyment of life by all

citizens of this country with dignity, viewing this human rights in

terms of human development.


98. The concepts of justice social, economic and political,

equality of status and of opportunity and of assuring dignity of the

individual incorporated in the Preamble, clearly recognize the right

of one and all amongst the citizens of these basic essentials

designed to flower the citizen's personality to its fullest. The

concept of equality helps the citizens in reaching their highest

potential.


99. Thus, the emphasis is on the development of an individual in

all respects. The basic principle of the dignity and freedom of the

individual is common to all nations, particularly those having
 88


democratic set up. Democracy requires us to respect and develop

the free spirit of human being which is responsible for all progress

in human history. Democracy is also a method by which we

attempt to raise the living standard of the people and to give

opportunities to every person to develop his/her personality. It is

founded on peaceful co-existence and cooperative living. If

democracy is based on the recognition of the individuality and

dignity of man, as a fortiori we have to recognize the right of a

human being to choose his sex/gender identity which is integral

his/her personality and is one of the most basic aspect of self-

determination dignity and freedom. In fact, there is a growing

recognition that the true measure of development of a nation is not

economic growth; it is human dignity.


100. More than 225 years ago, Immanuel Kant propounded the

doctrine of free will, namely the free willing individual as a natural

law ideal. Without going into the detail analysis of his aforesaid

theory of justice (as we are not concerned with the analysis of his

jurisprudence) what we want to point out is his emphasis on the

"freedom" of human volition. The concepts of volition and freedom

are "pure", that is not drawn from experience. They are

independent of any particular body of moral or legal rules. They
 89


are presuppositions of all such rules, valid and necessary for all of

them.


101. Over a period of time, two divergent interpretations of the

Kantian criterion of justice came to be discussed. One trend was

an increasing stress on the maximum of individual freedom of

action as the end of law. This may not be accepted and was

criticized by the protagonist of `hedonist utilitarianism', notably

Benthem. This school of thoughts laid emphasis on the welfare of

the society rather than an individual by propounding the principle

of maximum of happiness to most of the people. Fortunately, in the

instant case, there is no such dichotomy between the individual

freedom/liberty we are discussing, as against public good. On the

contrary, granting the right to choose gender leads to public good.

The second tendency of Kantian criterion of justice was found in

re-interpreting "freedom" in terms not merely of absence of

restraint but in terms of attainment of individual perfection. It is this

latter trend with which we are concerned in the present case and

this holds good even today. As pointed out above, after the

Second World War, in the form of U.N.Charter and thereafter there

is more emphasis on the attainment of individual perfection. In that

united sense at least there is a revival of natural law theory of
 90


justice. Blackstone, in the opening pages in his `Vattelian

Fashion' said that the principal aim of society "is to protect

individuals in the enjoyment of those absolute rights which were

vested in them by the immutable laws of nature......"


102. In fact, the recognition that every individual has fundamental

right to achieve the fullest potential, is founded on the principle that

all round growth of an individual leads to common public good.

After all, human beings are also valuable asset of any country who

contribute to the growth and welfare of their nation and the society.

A person who is born with a particular sex and his forced to grow

up identifying with that sex, and not a sex that his/her

psychological behavior identifies with, faces innumerable obstacles

in growing up. In an article appeared in the magazine "Eye" of the

Sunday Indian Express (March 9-15, 2014) a person born as a boy

but with trappings of female ( who is now a female after SRS) has

narrated these difficulties in the following manner:


"The other children treated me as a boy,
but I preferred playing with girls.
Unfortunately, grown-ups consider that
okay only as long as you are a small child.
The constant inner conflict made things
difficult for me and, as I grew up, I began to
dread social interactions".
 91



103. Such a person, carrying dual entity simultaneously, would

encounter mental and psychological difficulties which would hinder

his/her normal mental and even physical growth. It is not even

easy for such a person to take a decision to undergo SRS

procedure which requires strong mental state of affairs. However,

once that is decided and the sex is changed in tune with

psychological behavior, it facilitates spending the life smoothly.

Even the process of transition is not smooth. The transition from

a man to a woman is not an overnight process. It is a "painfully"

long procedure that requires a lot of patience. A person must first

undergo hormone therapy and, if possible, live as a member of the

desired sex for a while. To be eligible for hormone therapy, the

person needs at least two psychiatrists to certify that he or she is

mentally sound, and schizophrenia, depression and transvestism

have to be ruled out first. The psychiatric evaluation involved a

serious a questions on how Sunaina felt, when she got to know of

her confusion and need for sex change, whether she is a recluse,

her socio-economic condition, among other things.


104. In the same article appearing in the "Eye" referred to

above, the person who had undergone the operation and became
 92


a complete girl, Sunaina (name changed) narrates the benefit

which ensued because of change in sex, in harmony with her

emotional and psychological character, as is clear from the

following passage in that article:

"Like many other single people in the city, she
can spend hours watching Friends, and reading
thrillers and Harry Potter. A new happiness
has taken seed in her and she says it does not
feel that she ever had a male body. "I am a
person who likes to laugh. Till my surgery,
behind every smile of mine, there was a
struggle. Now it's about time that I laughed for
real. I have never had a relationship in my life,
because somewhere, I always wanted to be
treated as a girl. Now, that I am a woman, I am
open to a new life, new relationships. I don't
have to hide anymore, I don't feel trapped
anymore. I love coding and my job. I love
cooking. I am learning French and when my left
foot recovers fully, I plan to learn dancing. And,
for the first time this year, I will vote with my new
name. I am looking forward to that," she says.


105. If a person has changed his/her sex in tune with his/her

gender characteristics and perception ,which has become possible

because of the advancement in medical science, and when that is

permitted by in medical ethics with no legal embargo, we do not

find any impediment, legal or otherwise, in giving due recognition

to the gender identity based on the reassign sex after undergoing

SRS.
 93


106. For these reasons, we are of the opinion that even in the

absence of any statutory regime in this country, a person has a

constitutional right to get the recognition as male or female after

SRS, which was not only his/her gender characteristic but has

become his/her physical form as well.

(2) Re: Right of TG to be identified and categorized as "third

gender".


107. At the outset, it may be clarified that the term `transgender'

is used in a wider sense, in the present age. Even Gay, Lesbian,

bisexual are included by the descriptor `transgender'.

Etymologically, the term `transgender' is derived from two words,

namely `trans' and `gender'. Former is a Latin word which means

`across' or `beyond'. The grammatical meaning of `transgender',

therefore, is across or beyond gender. This has come to be known

as umbrella term which includes Gay men, Lesbians, bisexuals,

and cross dressers within its scope. However, while dealing with

the present issue we are not concerned with this aforesaid wider

meaning of the expression transgender.


108. It is to be emphasized that Transgender in India have

assumed distinct and separate class/category which is not
 94


prevalent in other parts of the World except in some neighbouring

countries . In this country, TG community comprise of Hijaras,

enunch, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. In Indian

community transgender are referred as Hizra or the third gendered

people. There exists wide range of transgender-related identities,

cultures, or experience -including Hijras, Aravanis, Kothis,

jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are biological

males who reject their masculinity identity in due course of time to

identify either as women, or `not men'. Aravanis: Hijras in Tamil

Nadu identify as `Aravani'. Kothi: Kothis are heterogeneous group.

Kothis can be described as biological males who show varying

degrees of `feminity'. Jogtas/Jogappas: They are those who are

dedicated to serve as servant of Goddess Renukha Devi whose

temples are present in Maharashtra and Karnataka. Sometimes,

Jogti Hijras are used to denote such male-to-female transgender

persons who are devotees of Goddess Renukha and are also from

the Hijra community. Shiv-Shakthis: They are considered as males

who are possessed by or particularly close to a goddess and who

have feminine gender expression). The way they behave and acts

differs from the normative gender role of a men and women. For

them, furthering life is far more difficult since such people are
 95


neither categorized as men nor women and this deviation is

unacceptable to society's vast majority. Endeavour to live a life

with dignity is even worse. Obviously transvestites, the hijra beg

from merchants who quickly, under threat of obscene abuse,

respond to the silent demands of such detested individuals. On

occasion, especially festival days, they press their claims with

boisterous and ribald singing and dancing.( A Right to Exist:

Eunuchs and the State in Nineteenth-Century India Laurence W.

Preston Modern Asian Studies, Vol.21,No.2 (1987), pp.371-387).




109. Therefore, we make it clear at the outset that when we

discuss about the question of conferring distinct identity, we are

restrictive in our meaning which has to be given to TG community

i.e. hijra etc., as explained above.


110. Their historical background and individual scenario has

been stated in detail in the accompanying judgment rendered by

my learned Brother. Few things which follow from this discussion

are summed up below:

"(a) Though in the past TG in India was treated with
great respect, that does not remain the scenario any
longer. Attrition in their status was triggered with the
 96


passing of the Criminal Tribes Act, 1871 which deemed
the entire community of Hijara persons as innately
`criminal' and `adapted to the systematic commission of
non-bailable offences'. This dogmatism and
indoctrination of Indian people with aforesaid
presumption, was totally capricious and nefarious. There
could not have been more harm caused to this
community with the passing of the aforesaid brutal
Legislation during British Regime with the vicious and
savage this mind set. To add insult to the irreparable
injury caused, Section 377 of the Indian Penal Code
was misused and abused as there was a tendency, in
British period, to arrest and prosecute TG persons under
Section 377 merely on suspicion. To undergo this sordid
historical harm caused to TGs of India, there is a need
for incessant efforts with effervescence.

(b) There may have been marginal improvement in the
social and economic condition of TGs in India. It is still
far from satisfactory and these TGs continue to face
different kinds of economic blockade and social
degradation. They still face multiple forms of oppression
in this country. Discrimination qua them is clearly
discernable in various fields including health care,
employment, education, social cohesion etc.

(c) The TGs are also citizens of this country. They also
have equal right to achieve their full potential as human
beings. For this purpose, not only they are entitled to
 97


proper education, social assimilation, access to public
and other places but employment opportunities as well.
The discussion above while dealing with the first issue,
therefore, equally applies to this issue as well.

111. We are of the firm opinion that by recognizing such TGs as

third gender, they would be able to enjoy their human rights, to

which they are largely deprived of for want of this recognition. As

mentioned above, the issue of transgender is not merely a social

or medical issue but there is a need to adopt human right

approach towards transgenders which may focus on functioning as

an interaction between a person and their environment highlighting

the role of society and changing the stigma attached to them. TGs

face many disadvantages due to various reasons, particularly for

gender abnormality which in certain level needs to physical and

mental disability. Up till recently they were subjected to cruelty, pity

or charity. Fortunately, there is a paradigm shift in thinking from the

aforesaid approach to a rights based approach. Though, this may

be the thinking of human rights activist, the society has not kept

pace with this shift. There appears to be limited public knowledge

and understanding of same-sex sexual orientation and people

whose gender identity and expression are incongruent with their

biological sex. As a result of this approach, such persons are
 98


socially excluded from the mainstream of the society and they are

denied equal access to those fundamental rights and freedoms

that the other people enjoy freely.(See, Hijras/Transgender

Women in India: HIV, Human Rights and Social Exclusion, UNDP

report on India Issue: December, 2010).



112. Some of the common and reported problem that

transgender most commonly suffer are: harassment by the police

in public places, harassment at home, police entrapment, rape,

discriminations, abuse in public places et.al. The other major

problems that the transgender people face in their daily life are

discrimination, lack of educational facilities, lack of medical

facilities, homelessness, unemployment, depression, hormone pill

abuse, tobacco and alcohol abuse, and problems related to

marriage and adoption. In spite of the adoption of Universal

Declaration of Human Rights (UDHR) in the year 1948, the

inherent dignity, equality, respect and rights of all human beings

throughout the world, the transgender are denied basic human

rights. This denial is premised on a prevalent juridical assumption

that the law should target discrimination based on sex (i.e.,

whether a person is anatomically male or female), rather than
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gender (i.e., whether a person has qualities that society consider

masculine or feminine (Katherine M.Franke, The Central Mistake

of Sex Discrimination Law: the Disaggregation of Sex from

Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that by defining sex in

biological terms, the law has failed to distinguish sex from gender,

and sexual differentiation from sex discrimination). Transgender

people are generally excluded from the society and people think

transgenderism as a medical disease. Much like the disability,

which in earlier times was considered as an illness but later on

looked upon as a right based approach. The question whether

transgenderism is a disease is hotly debated in both the

transgender and medical-psychiatric communities. But a prevalent

view regarding this is that transgenderism is not a disease at all,

but a benign normal variant of the human experience akin to left-

handedness.


113. Therefore, gender identification becomes very essential

component which is required for enjoying civil rights by this

community. It is only with this recognition that many rights attached

to the sexual recognition as `third gender' would be available to

this community more meaningfully viz. the right to vote, the right to

own property, the right to marry, the right to claim a formal identity
 100


through a passport and a ration card, a driver's license, the right to

education, employment, health so on.


114. Further, there seems to be no reason why a transgender

must be denied of basic human rights which includes Right to life

and liberty with dignity, Right to Privacy and freedom of

expression, Right to Education and Empowerment, Right against

violence, Right against Exploitation and Right against

Discrimination. Constitution has fulfilled its duty of providing rights

to transgenders. Now it's time for us to recognize this and to

extend and interpret the Constitution in such a manner to ensure a

dignified life of transgender people. All this can be achieved if the

beginning is made with the recognition that TG as third gender.


115. In order to translate the aforesaid rights of TGs into reality,

it becomes imperative to first assign them their proper `sex'. As is

stated earlier, at the time of birth of a child itself, sex is assigned.

However, it is either male or female. In the process, the society as

well as law, has completely ignored the basic human right of TGs

to give them their appropriate sex categorization. Up to now, they

have either been treated as male or female. This is not only

improper as it is far from truth, but indignified to these TGs and
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violates their human rights.


116. Though there may not be any statutory regime recognizing

`third gender' for these TGs. However, we find enough justification

to recognize this right of theirs in natural law sphere. Further, such

a justification can be traced to the various provisions contained in

Part III of the Constitution relating to `Fundamental Rights'. In

addition to the powerful justification accomplished in the

accompanying opinion of my esteemed Brother, additional raison

d'etre for this conclusion is stated hereinafter.


117. We are in the age of democracy, that too substantive and

liberal democracy. Such a democracy is not based solely on the

rule of people through their representatives' namely formal

democracy. It also has other percepts like Rule of Law, human

rights, independence of judiciary, separation of powers etc.


118. There is a recognition to the hard realty that without

protection for human rights there can be no democracy and no

justification for democracy. In this scenario, while working within

the realm of separation of powers (which is also fundamental to

the substantive democracy), the judicial role is not only to decide

the dispute before the Court, but to uphold the rule of law and
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ensure access to justice to the marginalized section of the society.

It cannot be denied that TGs belong to the unprivileged class

which is a marginalized section.


119. The role of the Court is to understand the central purpose

and theme of the Constitution for the welfare of the society. Our

Constitution, like the law of the society, is a living organism. It is

based on a factual and social realty that is constantly changing.

Sometimes a change in the law precedes societal change and is

even intended to stimulate it. Sometimes, a change in the law is

the result in the social realty. When we discuss about the rights of

TGs in the constitutional context, we find that in order to bring

about complete paradigm shift, law has to play more pre-dominant

role. As TGs in India, are neither male nor female, treating them as

belonging to either of the aforesaid categories, is the denial of

these constitutional rights. It is the denial of social justice which in

turn has the effect of denying political and economic justice.


120. In Dattatraya Govind Mahajan vs. State of Maharashtra

(AIR 1977 SC 915) this Court observed:

"Our Constitution is a tryst with
destiny, preamble with luscent solemnity in
the words `Justice - social, economic and
political.' The three great branches of
 103


Government, as creatures of the
Constitution, must remember this promise in
their fundamental role and forget it at their
peril, for to do so will be a betrayal of chose
high values and goals which this nation set
for itself in its objective Resolution and
whose elaborate summation appears in Part
IV of the Paramount Parchment. The history
of our country's struggle for independence
was the story of a battle between the forces
of socio-economic exploitation and the
masses of deprived people of varying
degrees and the Constitution sets the new
sights of the nation.....Once we grasp the
dharma of the Constitution, the new
orientation of the karma of adjudication
becomes clear. Our founding fathers, aware
of our social realities, forged our fighting
faith and integrating justice in its social,
economic and political aspects. While
contemplating the meaning of the Articles of
the Organic Law, the Supreme Court shall
not disown Social Justice."


121. Oliver Wendlle Holmes said: "the life of law has been

logical; it has been experience". It may be added that `the life of

law is not just logic or experience. The life of law is renewable

based on experience and logic, which adapted law to the new

social realty'. Recognizing this fact, the aforesaid provisions of the

Constitution are required to be given new and dynamic meaning

with the inclusion of rights of TGs as well. In this process, the first

and foremost right is to recognize TGs as `third gender' in law as

well. This is a recognition of their right of equality enshrined in
 104


Art.14 as well as their human right to life with dignity, which is the

mandate of the Art.21 of the Constitution. This interpretation is in

consonance with new social needs. By doing so, this Court is only

bridging the gap between the law and life and that is the primary

role of the Court in a democracy. It only amounts to giving

purposive interpretation to the aforesaid provisions of the

Constitution so that it can adapt to the changes in realty. Law

without purpose has no raison d'etre. The purpose of law is the

evolution of a happy society. As Justice Iyer has aptly put:


"The purpose of law is the
establishment of the welfare of society
"and a society whose members enjoy
welfare and happiness may be
described as a just society. It is a
negation of justice to say that some
members, some groups, some
minorities, some individuals do not have
welfare: on the other hand they suffer
from ill-fare. So it is axiomatic that law, if
it is to fulfil itself, must produce a
contented, dynamic society which is at
once meting out justice to its members."


122. It is now very well recognized that the Constitution is a living

character; its interpretation must be dynamic. It must be

understood in a way that intricate and advances modern realty.

The judiciary is the guardian of the Constitution and by ensuring to
 105


grant legitimate right that is due to TGs, we are simply protecting

the Constitution and the democracy inasmuch as judicial protection

and democracy in general and of human rights in particular is a

characteristic of our vibrant democracy.


123. As we have pointed out above, our Constitution inheres

liberal and substantive democracy with rule of law as an important

and fundamental pillar. It has its own internal morality based on

dignity and equality of all human beings. Rule of law demands

protection of individual human rights. Such rights are to be

guaranteed to each and every human being. These TGs, even

though insignificant in numbers, are still human beings and

therefore they have every right to enjoy their human rights.


124. In National Human Rights Commission vs. State of

Arunachal Pradesh (AIR 1996 SC 1234), This Court observed:

"We are a country governed by the
Rule of Law. Our Constitution confers
certain rights on every human being and
certain other rights on citizens. Every
person is entitled to equality before the law
and equal protection of the laws."


125. The rule of law is not merely public order. The rule of law is

social justice based on public order. The law exists to ensure
 106


proper social life. Social life, however, is not a goal in itself but a

means to allow the individual to life in dignity and development

himself. The human being and human rights underlie this

substantive perception of the rule of law, with a proper balance

among the different rights and between human rights and the

proper needs of society. The substantive rule of law "is the rule of

proper law, which balances the needs of society and the

individual." This is the rule of law that strikes a balance between

society's need for political independence, social equality, economic

development, and internal order, on the one hand, and the needs

of the individual, his personal liberty, and his human dignity on the

other. It is the duty of the Court to protect this rich concept of the

rule of law.


126. By recognizing TGs as third gender, this Court is not only

upholding the rule of law but also advancing justice to the class, so

far deprived of their legitimate natural and constitutional rights. It

is, therefore, the only just solution which ensures justice not only to

TGs but also justice to the society as well. Social justice does not

mean equality before law in papers but to translate the spirit of the

Constitution, enshrined in the Preamble, the Fundamental Rights

and the Directive Principles of State Policy into action, whose arms
 107


are long enough to bring within its reach and embrace this right of

recognition to the TGs which legitimately belongs to them.


127. Aristotle opined that treating all equal things equal and all

unequal things unequal amounts to justice. Kant was of the view

that at the basis of all conceptions of justice, no matter which

culture or religion has inspired them, lies the golden rule that you

should treat others as you would want everybody to treat

everybody else, including yourself. When Locke conceived of

individual liberties, the individuals he had in mind were

independently rich males. Similarly, Kant thought of economically

self-sufficient males as the only possible citizens of a liberal

democratic state. These theories may not be relevant in today's

context as it is perceived that the bias of their perspective is all too

obvious to us. In post-traditional liberal democratic theories of

justice, the background assumption is that humans have equal

value and should, therefore, be treated as equal, as well as by

equal laws. This can be described as `Reflective Equilibrium'. The

method of Reflective Equilibrium was first introduced by Nelson

Goodman in `Fact, Fiction and Forecast' (1955). However, it is

John Rawls who elaborated this method of Reflective Equilibrium

by introducing the conception of `Justice as Fairness'. In his
 108


`Theory of Justice', Rawls has proposed a model of just institutions

for democratic societies. Herein he draws on certain pre-

theoretical elementary moral beliefs (`considered judgments'),

which he assumes most members of democratic societies would

accept. "[Justice as fairness [....] tries to draw solely upon basic

intuitive ideas that are embedded in the political institutions of a

constitutional democratic regime and the public traditions of their

interpretations. Justice as fairness is a political conception in part

because it starts from within a certain political tradition. Based on

this preliminary understanding of just institutions in a democratic

society, Rawls aims at a set of universalistic rules with the help of

which the justice of present formal and informal institutions can be

assessed. The ensuing conception of justice is called `justice as

fairness'. When we combine Rawls's notion of Justice as

Fairness with the notions of Distributive Justice, to which Noble

Laureate Prof. Amartya Sen has also subscribed, we get

jurisprudential basis for doing justice to the Vulnerable Groups

which definitely include TGs. Once it is accepted that the TGs are

also part of vulnerable groups and marginalized section of the

society, we are only bringing them within the fold of aforesaid

rights recognized in respect of other classes falling in the
 109


marginalized group. This is the minimum riposte in an attempt to

assuage the insult and injury suffered by them so far as to

pave way for fast tracking the realization of their human rights.


128. The aforesaid, thus, are my reasons for treating TGs as

`third gender' for the purposes of safeguarding and enforcing

appropriately their rights guaranteed under the Constitution. These

are my reasons in support of our Constitution to the two issues in

these petitions.



.........................J.
(A.K.Sikri)



129. We, therefore, declare:

(1) Hijras, Eunuchs, apart from binary gender, be treated
as "third gender" for the purpose of safeguarding their
rights under Part III of our Constitution and the laws
made by the Parliament and the State Legislature.
(2) Transgender persons' right to decide their self-identified
gender is also upheld and the Centre and State
Governments are directed to grant legal recognition of
their gender identity such as male, female or as third
gender.
(3) We direct the Centre and the State Governments to
take steps to treat them as socially and educationally
 110


backward classes of citizens and extend all kinds of
reservation in cases of admission in educational
institutions and for public appointments.
(4) Centre and State Governments are directed to operate
separate HIV Sero-survellance Centres since Hijras/
Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously
address the problems being faced by
Hijras/Transgenders such as fear, shame, gender
dysphoria, social pressure, depression, suicidal
tendencies, social stigma, etc. and any insistence for
SRS for declaring one's gender is immoral and illegal.
(6) Centre and State Governments should take proper
measures to provide medical care to TGs in the
hospitals and also provide them separate public toilets
and other facilities.
(7) Centre and State Governments should also take steps
for framing various social welfare schemes for their
betterment.
(8) Centre and State Governments should take steps to
create public awareness so that TGs will feel that they
are also part and parcel of the social life and be not
treated as untouchables.
(9) Centre and the State Governments should also take
measures to regain their respect and place in the
society which once they enjoyed in our cultural and
social life.
 111


130. We are informed an Expert Committee has already been

constituted to make an in-depth study of the problems faced by the

Transgender community and suggest measures that can be taken

by the Government to ameliorate their problems and to submit its

report with recommendations within three months of its constitution.

Let the recommendations be examined based on the legal

declaration made in this Judgment and implemented within six

months.


131. Writ Petitions are, accordingly, allowed, as above.




................................J.
(K.S. Radhakrishnan)



...............................J.
(A.K. Sikri)
New Delhi,
April 15, 2014.
 112

ITEM NO.1A (For Judgment) COURT NO.7 SECTION PIL

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO(s). 400 OF 2012

NATIONAL LEGAL SER. AUTH. Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

WITH W.P(C) NO. 604 of 2013


Date: 15/04/2014 These matters were called on for
pronouncement of judgment.

For Petitioner(s) Ms. Anitha Shenoy,AOR

Ms. Manju Jetley,AOR

For Respondent(s) Mr. V.N. Raghupathy,AOR

Mr. Suryanarayana Singh,AAG
Mr. Aviral Saxena,Adv.
Ms. Pragati Neekhra,AOR

Dr. Manish Singhvi,Adv.
Mr. Irshad Ahmad,Adv.

Mr. V.G. Pragasam,AOR

Mr. Manjit Singh,AAG, Haryana
Mrs. Vivekta Singh,Adv.
Mrs. Nupur Chaudhary,Adv.
Mr. Tarjit Singh,Adv.
Mr. Kamal Mohan Gupta,AOR

Mr. D.S. Mahra,AOR
Mr. Gopal Singh,AOR
Mr. Sudarshan Singh Rawat,AOR
Mr. P.V. Yogeswaran,AOR
Mr. Anip Sachthey,AOR
Mr. Aniruddha P. Mayee,AOR
Mr. Sunil Fernandes,AOR
Mr. Abhishek Atrey,AOR
Mr. Jogy Scaria,AOR
 113


Mr. Mishra Saurabh,AOR
Ms. Vanshaja Shukla,Adv.

M/s. Corporate Law Group,AOR
Mrs. Kirti Renu Mishra,AOR
M/s. Arputham,Aruna & Co.,AOR
Mr. Anil Shrivastav,AOR
Ms. Asha Gopalan Nair,AOR
Mr. B. Balaji,AOR

Mr. Sapam Biswajit Meitei,Adv.
Mr. Ashok Kumar Singh,AOR

Mrs. K. Enatoli Sema,Adv.
Mr. Amit Kumar Singh,Adv.

Mr. Balasubramanian,Adv.
Mr. K.V. Jagdishvaran,Adv.
Ms. G. Indira,AOR

Ms. Hemantika Wahi,AOR

Mr. Mihir,Adv.
Ms. Tripti Tandon,Adv.
Mr. Amritananda Ch.,Adv.
Mr. Mukesh Kumar,Adv.
Ms. Filza Moonis,Adv.

Ms. A. Subhashini,Adv.


Hon'ble Mr. Justice K.S. Radhakrishnan
and Hon'ble Mr. Justice A.K. Sikri pronounced
concurring views in the judgment of the Bench
comprising their Lordships.
The writ petitions are allowed in
terms of the signed judgment.


(Narendra Prasad) (Renuka Sadana)
Court Master Court Master

(Signed "Reportable" judgment is placed on the file)