# NATIONAL LEGAL SERVICES AUTHORITY v. UNION OF INDIA AND OTHERS

- **Citation:** [2014] 5 S.C.R. 119
- **Court:** Supreme Court of India
- **Decided:** 2014-04-15
- **Bench:** K.S. Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/national-legal-services-authority-v-union-of-india-and-others-29960
- **Pages:** 123

## Headnote

CONSTITUTION OF IND/A, 1950:
A
B
Article 14 - Transgenders • Claim for equal treatment -
C
Held: Article 14 states that the State shall not deny to "any
person" equality before law or equal protection of laws within
the territory of India - Article 14 does not restrict the word
'person' and its application only to male or female - Hijras/
transgender persons who are neither male nor female fall o
within the expressions 'person' and hence entitle 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 Indian citizen -
Criminal Tribes Act, 1871 - Penal Code, 1860 - s.377.
E
.
Article 14 - Claim by Transgenders!Hijrasleunuch for
legal status as third gender - Held: Transgenders belong to
a distinct socio-religious and cultural group and, therefore,
have to be considered as a 'third gender' apart from male and
female - Gender identity is integral to the dignity of an
F
individual and is at the core of 'personal autonomy' and 'self
determination' - Hijras/eanuchs, therefore, have to be
considered as third gender over and above binary genders -
Article 14, 15, 16, 19 and 21 do no exclude Hijras/TGs from
their ambit.
G
Articles 14, 15, 16, 19, 21 - Transgenders - Held: Article
14 use expression ''person" and the Article 15 use expression
"citizen" and "sex" so also Article 16 - Article 19 a/so use the
119
H
120
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[2014] 5 S.C.R.
A expression "citizen" - Article 21 use 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.
B
Articles 15 and 16 - Prohibition of discrimination against
any citizen on the ground of 'sex' - Held: Both the Articles
prohibit all forms of gender bias and gender based
discrimination - Expression 'sex' used in Articles 15 and 16
C 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 - Bias - Gender bias.
Article 19(1)(a) - Freedom of speech and expression as
to self identified gender - Held: Freedom of expression
D includes freedom to express one's chosen gender identity
through varied ways and means by way of expression,
speech, mannerism, clothing etc. - Transgender's personality
could be expressed by Transgender's behaviour and
presentation - State cannot prohibit, restrict or interfere with
E Transgender's expression of such personality which reflects
that inheren"t personality - The values of privacy, se/f~identity,
autonomy and personal integrity are fundamental rights
guaranteed to members of the transgender community u/
Article 19(1 )(a) and the, State is bound to protect and
F recognize those rights.
Article 21 - Right to dignity - Transgenders - Held: Article
21 protects the dignity of human life, one's personal
autonomy, one's right to privacy - Right to dignity has been
recognized to be an essential part of the right to life and
G accrues to all persons on account of being humans - Right
to dignity forms 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 with fellow human beings" -
H Recognition of one's gender identity lies at the heart of the
·NATIONAL LEGAL SERVICES AUTHORITY v. UNION 121
OF INDIA AND OTHERS
fundamental right to dignity - Gender constitutes the core of A
one's sense of being as well as an integral part of a person's
identity - Article 21 guarantees the protection of ''personal
autonomy" of an individual - Self-determination of gender is
an integral part of personal autonomy and self-expression
and falls within the realm of personal liberty guaranteed under B
Article 21 of the Constitution of India - Human rights.
,
TRANSGENDERS:
Historical background

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[2014] 5 S.C.R. 119
NATIONAL LEGAL SERVICES AUTHORITY
v.
UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 400 of 2012)
APRIL 15, 2014
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
CONSTITUTION OF IND/A, 1950:
A
B
Article 14 - Transgenders • Claim for equal treatment -
C
Held: Article 14 states that the State shall not deny to "any
person" equality before law or equal protection of laws within
the territory of India - Article 14 does not restrict the word
'person' and its application only to male or female - Hijras/
transgender persons who are neither male nor female fall o
within the expressions 'person' and hence entitle 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 Indian citizen -
Criminal Tribes Act, 1871 - Penal Code, 1860 - s.377.
E
.
Article 14 - Claim by Transgenders!Hijrasleunuch for
legal status as third gender - Held: Transgenders belong to
a distinct socio-religious and cultural group and, therefore,
have to be considered as a 'third gender' apart from male and
female - Gender identity is integral to the dignity of an
F
individual and is at the core of 'personal autonomy' and 'self
determination' - Hijras/eanuchs, therefore, have to be
considered as third gender over and above binary genders -
Article 14, 15, 16, 19 and 21 do no exclude Hijras/TGs from
their ambit.
G
Articles 14, 15, 16, 19, 21 - Transgenders - Held: Article
14 use expression ''person" and the Article 15 use expression
"citizen" and "sex" so also Article 16 - Article 19 a/so use the
119
H
120
SUPREME COURT REPORTS
[2014] 5 S.C.R.
A expression "citizen" - Article 21 use 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.
B
Articles 15 and 16 - Prohibition of discrimination against
any citizen on the ground of 'sex' - Held: Both the Articles
prohibit all forms of gender bias and gender based
discrimination - Expression 'sex' used in Articles 15 and 16
C 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 - Bias - Gender bias.
Article 19(1)(a) - Freedom of speech and expression as
to self identified gender - Held: Freedom of expression
D includes freedom to express one's chosen gender identity
through varied ways and means by way of expression,
speech, mannerism, clothing etc. - Transgender's personality
could be expressed by Transgender's behaviour and
presentation - State cannot prohibit, restrict or interfere with
E Transgender's expression of such personality which reflects
that inheren"t personality - The values of privacy, se/f~identity,
autonomy and personal integrity are fundamental rights
guaranteed to members of the transgender community u/
Article 19(1 )(a) and the, State is bound to protect and
F recognize those rights.
Article 21 - Right to dignity - Transgenders - Held: Article
21 protects the dignity of human life, one's personal
autonomy, one's right to privacy - Right to dignity has been
recognized to be an essential part of the right to life and
G accrues to all persons on account of being humans - Right
to dignity forms 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 with fellow human beings" -
H Recognition of one's gender identity lies at the heart of the
·NATIONAL LEGAL SERVICES AUTHORITY v. UNION 121
OF INDIA AND OTHERS
fundamental right to dignity - Gender constitutes the core of A
one's sense of being as well as an integral part of a person's
identity - Article 21 guarantees the protection of ''personal
autonomy" of an individual - Self-determination of gender is
an integral part of personal autonomy and self-expression
and falls within the realm of personal liberty guaranteed under B
Article 21 of the Constitution of India - Human rights.
,
TRANSGENDERS:
Historical background of Transgenders in India -
Discussed.
C
Gender Identity and sexual orientation - Meaning of -
Held: Gender Identity refers to individual's self identification
as a man, woman or other identified categories - Sexual
orientation refers to individual's enduring physical, romantic o
and/or emotional attraction to another person.
Rights of transsexual person who have undergone Sex
Re-assignment Surgery (SRS) - Test to be applied - Held:
Test to be applied is not the 'Biological test' but 'Psychological
test' - U11iversal Declaration of Human Rights, 1948 - Article
E
6 - International Covenant on Civil and Political Rights, 196.6
- Articles 16, 17 - Doctrines/Principles - Yogyakarata
Principles - Human Rights.
Problems suffered and discrimination faced by · F .
Transgenders - Discussed.
Legislations in other countries on Transgenders -
Discussed.
Sex identity gender of persons and guarantee to equality
G
and non-discrimination of gender identity - Applicability of, in
India - Held: There is no suitable legislation protecting the
rights of the members of TG Community - They are facing
discrimination in various areas and, therefore, there is
necessity to follow the International Conventions to which India
H
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[2014] 5 S.C.R.
A is a party.
Gender identity - 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
8 choice moreso, when such a person after having undergone
operational procedure, charges his/her sex as well - Held: 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 in medical ethics with no legal embargo, there
C is no impediment, legal or otherwise in giving due recognition
to the gender identity based on reassign sex after undergoing
SRS.
Sex Re-Assignment Surgery - Legality of - Held: If a
D 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,
there is no impediment, legal or otherwise, in giving due
E recognition to the gender identity based on the reassign sex
after undergoing Sex Re-Assignment Surgery (SRS) - Ethics
- Medical ethics.
DOCTRINES/PRINCIPLES: Principle of maximum of
F happiness to most of the people - Applicability of when claim
by transgender for equal status - Held: In such case, there is
no dichotomy between the individual freedom/liberty as
against public good - On the contrary, granting the right to
choose gender leads to public good.
G
HUMAN RIGHTS: Held: There is 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
H whether they are granted or recognized by the legal and social
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 123
OF INDIA AND OTHERS
system within which we live - They are devices to evaluate
A
these existing arrangements: ideally, these arrangements
should not violate human rights - In other words, human rights
are moral, pre-legal rights - They are not granted by people
nor can they be taken away by them.
8
INTERNATIONAL CONVENTION: Implementation of -
Held: Implementation of International Convention requires
legislation - Article 253 states that Parliament has power to
make any law for the whole or any part of territory of India for
implementing any treaty, agreement or convention - Indian
C
courts can apply rules of international law according to the
principles of Comity of nations, unless they are overridden by
clear rules of domestic law - Constitution· of India, 1950 -
Articles 51, 253.
INTERNATIONAL LAW: Binding effect of - Held: If D
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 international law -
Constitution of India, 1950 - Articles 51, 253.
E
•JURISPRUDENCE: Theory of law - Kantian criterion of
justice - Interpretation of - Discussed.
_ WORDS AND PHRASES: Transgender - Held: It is
·generally described as an umbrella term for persons whose
gender identity, gender expression or behaviour does not
F
conform to their biological sex - Transgender may also takes
in persons who do not identify with their sex assigned at birth,
which include Hijras/Eunuchs - TG Community comprises of
Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis
etc. - Etymologically, the term 'transgender' is derived from
G
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
H
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[2014] 5 S.C.R.
A - Transgenderism is not a disease at all but a benign normal
variant of human experience akin to left handedness.
The instant writ petitions were filed by the members
of Transgender Community for declaration of their gender
8 identity than the one assigned to them, male or female,
at the time of birth. 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, also claimed legal status as a third gender with all
C legal and constitutional protection.
The questions for consideration in these writ
petitions were 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 (or
D vice-versa) as per his/her choice moreso, when such a
person after having undergone operational procedure,
changes his/her sex as well; whether transgender (TG),
who are neither males nor females, have a right to be
E
F
identified and categorized as a "third gender".
Allowing the writ petitions,.the Court
HELD:
Per Radhakrishnan, J.
1. 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
G 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 dS
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
H reproduction organ and no menstruation. Since Hijras do
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 125
OF INDIA AND OTHERS
not have reproduction capacities as either men or A
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
B
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 c
opposite 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
D
transsexual people, who strongly identify with the gender
opposite to their biological sex, male and female. [Para
11] [168-G-H; 169-A-E]
HISTORICAL BACKGROUND OF TRANSGENDERS IN
INDIA:
E
2.1. 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.
F
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. Lord Rama, in the epic Ramayana,
impressed with their devotion had sanctioned them the
G
power to confer blessings on 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. In Mahabharata, Aravan, the son of
H
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SUPREME COURT REPORTS
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A Arjuna and Nagakanya offered 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. Lord
Krishna assumed the form of a beautiful woman called
B Mohini and married him. The Hijras of Tamil Nadu
consider Aravan their progenitor and call themselves
Aravanis.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
c Islamic world, especially in the Ottaman empires and the
Mughal rule in the Medieval India. [Paras 12 to 15] [169F-H; 170-A-D]
2.2. Though historically, Hijras/transgender persons
had played a prominent role, with the onset of colonial
D rule 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
E innately 'criminal' and 'addicted. to the systematic
commission of non-bailable offences'. The Act was,
however, repealed in August 1949. Section 377 of the IPC
found a place in the Indian Penal Code, 1860, prior to the
enactment of Criminal Tribes Act that criminalized all
F 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. [Paras 16, 17] [170-F-G;
171-D-E]
G
H
Suresh Kumar Koshal and Anr. v. Naz Foundation and
Ors. (2014) 1 sec 1 - relied on.
Queen Empress v. Khairati (1884) ILR 6 All 20 - referred
to.
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 127
OF INDIA AND OTHERS
GENDER IDENTITY AND SEXUAL ORIENTATION
A
3.1 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 are born with bodies
8
which incorporate both or certain aspects of both male
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
C
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 D
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,
E
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
F
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.
G
Gender identity, therefore, refers to an individual's selfidentification as a man, woman, transgender or other
identified category. [Para 19] [172-E-H; 173-A-C]
3.2 Sexual orientation refers·to an individual's
enduring physical, romantic and/or emotional attraction
H
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[2014] 5 S.C.R.
A to another person. Sexual orientation i11cludes
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,
B heterosexuals, asexual etc. Gender identity and sexual
orientation are different concepts. Each person's selfdefined 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
c shall be forced to undergo medical procedures, including
SRS, sterilization or hormonal therapy, as a requirement
for legal recognition of their gender identity. [Para 20]
[173-C-F]
UNITED NATIONS AND OTHER HUMAN RIGHTS BODIES
D - ON GENDER IDENTITY AND SEXUAL ORIENTATION
4.1. United Nations has been instrumental in
advocating the protection and promotion of rights of
sexual minorities, including transgender persons. Article
E 6 of the Universal Declaration of 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
F 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
G 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
H principles on the application of international law to
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 129
OF INDIA AND OTHERS
human rights violations based on sexual orientation and
A
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
B
6 to 9 November, 2006, which unanimously adopted the
Yogyakarta Principles on the application of International
Human Rights Law in relation to Sexual Orientation and
Gender Identity. Yogyakarta Principles address a broad
range of human rights standards and their application to c
issues of sexual orientation gender identity. [Para 21]
[173-G-H; 174-A-E]
4.2. UN bodies, Regional Human Rights Bodies,
National Courts, Government Commissions and the
Commissions for Human Rights, Council of Europe, etc.
D
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. While examining the rights of transsexual
E
persons, who have undergone SRS, the test to be
applied is not the "Biological test", but the
"Psychological test", because psychological factor and
thinking of transsexual has to be given primacy than
binary notion of gender of that person. Seldom people
F
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 the society, is rather
unimaginable and their rights have to be protected, .G
irrespective of chromosomal sex, genitals, assigned birth
sex, or implied gender role. [Paras 23, 34] [185-C-D; 192E-G]
Corbett v. ·Corbett (1970) 2 All ER 33; R v. Tan (1983)
H
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[2014] 5 S.C.R.
A QB 1053, 1063-1064; Attorney-General v. Otahuhu Family
Court (1995) 1 NZLR 603; Re Kevin (Validity of Marriage of
Transsexual) (2001) Fam CA 1074; Attorney-General for the
Commonwealth & "Kevin and Jennifer" & Human Rights and
Equal Opportunity Commission (2003) Fam CA 94;
B Secretary, Department of Social Security v. "SRA" (1993) 43
FCR 299; Mathews, J. in R v. Harris & McGuiness (1988) 17
NSWLR 158; A.B. v. Western Australia (2011) HCA 42;
Bellinger v. Bellinger (2003) 2 All ER 593; Re JG, JG v.
Pengara/7 Jabatan Pendaftaran Negara (2006) 1 MLJ 90;
c Norrie v. NSW Registrar of Births, Deaths and Marriages
(2013) NSWCA 145 - referred to.
LEGISLATIONS IN OTHER COUNTRIES ON TGs
5.1. United Kingdom has passed the General
D Recommendation Act, 2004. 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
E 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.
F The Equality Act, 2010 (UK) was 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
G possesses one or more of the "protected characteristics".
H
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
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 131
OF INDIA AND OTHERS
course, only the transsexuals i.e. those who are
A
proposing to undergo, is undergoing or has undergone
the process of the gender reassignment are protected
under the Act. [Para 35) [193-C-G]
5.2 In Australia, there are two Acts dealing with the
gender"identity, (i) Sex Discrimination Act, 1984; and (ii)
B
Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and lntersex 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 C
person (whether by way of medical intervention or not)
with or without regard to the person's designated sex at
birth. [Para 36) [193-H; 194-A-B]
5.3 European Parliament also adopted a resolution
on discrimination against transsexuals on 12th D
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
E
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
F
Union. In the United States of America, some of the laws
enacted by the States are inconsistent with each other.
The Federal Law which provides protection to
transgender is Matthew Shepard and James Byrd. Jr.
Hate Crimes Prevention Act, 2009, which expands the
G
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
H
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[2014] 5 S.C.R.
A prohibit discrimination on grounds of gender identity and
expression. [Para 38) [197-B-F]
5.4. 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
B 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
C does not contemplate a more inclusive definition of
transgenders. The Senate of Argentina in the year 2012
passed a law on Gender Identity that recognizes right by
all persons to the recognition of their gender identity as
well as free development of their person according to
D 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. In Germany, a new law
came into force on 5th November, 2013, which allows the
E parents to register the sex of the children as 'not
specified' in the case of children with intersex variation.
[Paras 39 to 41) [197-G-H; 198-A-C, E]
Indian Scenario
6.1 The recognition of "sex identity gender" of
F persons, and "guarantee to equality and nondiscrimination" on the ground of gender identity or
expression is increasing and gaining acceptance in
international law and, therefore, is to be applied in India
as well. Transgender people, as a whole, face multiple
G forms of oppression in this country. Discrimination is so
large and 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
H submitted a report in December, 2010 on Hijras/
NAT.IONAL LEGAL SERVICES AUTHORITY v. UNION 133
OF INDIA AND OTHERS ,
transgenders in India: "HIV Human Rights and Social
A
Exclusion". The Report stated 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
B
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 c
prevalence of 0.36%. It was stated recently Hijras/TG
people were included under the category of MSM in HIV
sentinel serosurveillance. It was also reported in recent
studies that Hijras/TG women have indicated a very high
HIV prevalence (17 .5% to 41 %) among them. Study 0
conducted by NACO also highlighted a pathetic situation.
Report submitted by NACI, NACP IV Working Group
Hijras TG dated 5.5.2011 indicated that transgenders are
extremely vulnerable to HIV. Both the reports highlighted
the extreme necessity of taking emergent steps to
E
improve their sexual health, mental health and also
address the issue of social exclusion. [Paras 43, 45] [199A-B; 201-D-H; 202-A-B]
6.2. Social exclusion and discrimination on the
ground of gender stating that one does not conform to
F
the binary gender (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 G
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.
H
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[2014] 5 S.C.R.
A Many of them experience violence and discrimination
because of their sexual orientation or gender identity.
[Para 46] [204-A-C]
INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
B
7 .1. 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
C 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 right shall be protected by law and no one shall
D 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.
E United Nations Convention against Torture and Other
Cruel Inhuman an·d Degrading Treatment or Punishment
(dated 24th Jam,1ary, 2008) specifically deals with
protection of individuals and groups made vulnerable by
discrimination or marginalization. Para 21 of the
F 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
1n all contests of State custody or control. Article 12 of
G 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". Above-mentioned International Human
H Rights instruments which are being followed by various
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 135
OF INDIA AND OTHERS
countries in the world are aimed to protect the human
A
rights of transgender people since it 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. [Paras
B
47 and 48] [204-D-H; 205-A-D]
7.2. 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,
C
inheritance, succession, taxation and welfare legislations.
Unfortunately there is 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
D
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 other non-binding
International Conventions and principles. Constitution
makers could not have envisaged that each and every
E
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
F
those rights knowing the pulse and feeling of that
community, though a minority, especially when their rights
have gained universal recognition and acceptance. [Para
49] [205-D-H; 206-A-B]
7.3 Article 253 of the Constitution of India states that G
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
H
136
SUPREME COURT REPORTS
[2014] 5 S.C.R.
A 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.
In the United States, however, it is open to the courts to
s 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
c Indian 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. India has ratified the above mentioned
covenants, hence, those covenants can be used by the
0 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 domestic court can apply those
principles in the Indian conditions. The Interpretation of
E International Conventions is governed by Articles 31 and
32 of the Vienna Convention on the Law of Treaties of
1969. [Paras 50 and 51] [206-C-D, F-H; 207-A-C]
7.4 Article 51 has to be read along with Article 253 of
F the Constitution. If the parliament has made any
legislation which is in conflict with the international law,
then Indian Courts are bountl to give effect to the Indian
Law, rather than the international law. However, in the
absence of a contrary legislation, municipal courts in
G India would respect the rules of international law. [Para
53] [207 -G-H]
7.5 Any international convention not inconsistent
with the fundamental rights and in harmony with its spirit
must be read into those provisions, e.g., Articles 14, 15,
H 19 and 21 of the Constitution to enlarge the meaning and
NATIONAL LEGAL SERVICES AUTHORITY v. UNION 137
OF INDIA AND OTHERS
content thereof and to promote the object of A
constitutional guarantee. Principles on TGs and the
International Conventions, including Yogyakarta
principles, found not inconsistent with the various
fundamental rights guaranteed under the Indian
Constitution, must be recognized and followed, which
B
has sufficient legal and historical justification in our
country. [Para 53] [208-E-G]
Gramophone Company of India Ltd. v. Birendra Bahadur
Pandey (1984) 2 SCC 534: 1984 (2) SCR 664; Tractor Export
C
v. Tarapore & Co. (1969) 3 SCC 562:1970 (3) SCR 53; Mirza
Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR
391; Jolly George Varghese v. Bank of Cochin (1980) 2 SCC
360: 1980 (2) SCR 913; His Holiness Kesavananda Bharati
Sripadavalvaru v. State of Kera/a (1973) 4 SCC 225:1973 (0)
Suppl. SCR 1; Apparel Export Promotion Council v. A. K.
D
Chopra (1999) 1 SCC_759; Githa Hariharan (Ms) and another
v. Reserve Bank of India and Anr. (1999) 2 SCC 228: 1999
(1) SCR 669; R.D. Upadhyay v. State of Andhra Pradesh and
others (2007) 15 SCC 337: 2006 (3) SCR 1132; People's
Union for Civil Liberties v. Union of India and Anr. (~005) 2
E
sec 436: 2005 (1) SCR 494; Vishaka and Ors. v. State of
Rajasthan and Others (1997) 6 SCC 241: 1997 (3) Suppl.
SCR 404 - relied on.
ARTICLE 14 AND TRANSGENDERS
F
8.1 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
G
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 also ensures equal protection and hence a
positive obligation on the State to ensure equal
H
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[2014} 5 S.C.R.
A protection of laws by bringing in necessary social and
economic changes, so that everyone including TGs may
enjoy equal protection of laws and nobody is denied
such protection. Article 14 does not restrict the word
'person' and its application only to male or female. Hijras/
B 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 enjo~1ed by any other
c citizen of this country. [Para 54] (208-H; 209-A·:D]
ARTICLES f5 & 16 AND TRANSGENDERS
8.2. Articles 15 and 16 prohibit discrimination against
any citizen on certain enumerated grounds, including the
D ground of 'sex'. In fact, both the Articles prohibit all forms
of gender bias and gender based discrimination. 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
E 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. The requirement of taking
affirmative action for the advancement of any socially and
F educationally backward classes of citizens is also
provided in this Article. 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 not only prohibits
G 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.
[Paras 56, 57 and 58] [210-C-H; 211-A]
NATIONAL LEGAL SERVICES AUTHORITY v. UNION . 139
OF INDIA AND OTHERS
8.3 Constitution makers gave emphasis to the
A
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
stereotypical generalizations of binary genders. Both
gender and biological attributes constitute distinct B
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 c
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
0
male or female. [Para 59] [211-B-E]
8.4 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 be.en afforded
E
special provisions envisaged under Article 1'5(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
F
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
without discrimination, because forms of discrimination
on the ground of gender are violative of fundamental
G
freedoms and human rights.