Case Analysis
Bench: K.S. Radhakrishnan, A.K. Sikri National Legal Services Authority … Petitioner VersusUnion of India and others … Respondents
Date of judgement: 15 April, 2014
Facts:
As in this case two writ petitions has been filed to protect the rights and identity of the Transgender Community, as NALSA constituted under filed a writ petition. Poojaya Mata Nasib kaur Ji woman welfare society a registered association has also preferred writ petition no. 604 of 2013 seeking a similar reliefs in respect of Kinnar community. Laxmi Narayan Tripathy claimed to be Hijra has also got impleaded so as to effectively put across the cause of the members of the Transgender Community and Tripathy’s life experience also for recognition of their identity as a Third gender over and above female. Tripathy says non recognition of Transgender Community as third gender, denies them the right of equality before the law and equal protection of law guaranteed under Article 14 of constitution and violated the right guaranteed to them under Article 21 of constitution.
Issues:
As it 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 more so, when such a person after having undergone 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”?
Held:
To safeguard and protect the rights of the transgenders guaranteed in the constitution of India, it was declared that:
1. Hijras, Eunuchs, apart from binary gender, must be treated as “third gender”.
2. . Transgender persons’ right to decide their self-identified gender is also upheld. Supreme Court directed Centre and State Government to :
• Grant legal recognition of their gender identity such as male, female or as third gender.
• Take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
• Operate separate HIV Surveillance Centers since Hijras/ Transgenders face several sexual health issues.
• 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.
• Take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
• Take steps for framing various social welfare schemes for their betterment. • 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.
• Take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life
There has been different foreign judgments that has been taken in this case i.e.Corbett v. Corbett, Attorney general v. Otahuhu Family court and Christine Goodwin v. United Kingdom
“We therefore conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination exclusion, restriction or preference which has the effect of nullifying or transposing equality by the law or the equal protection of law guaranteed under our constitution”
Analysis:
So, in this case transgender has been give a proper identity by the supreme court looking at the need of the hour judgement was important because people has been insulting the Transgender community but still there has been certain changes that need to be done by the supreme court the transgender community need need to be provided jobs basically there need to be provision in the offices whether government or private there has to be 1-2 member that are from transgender community because people still are afraid of them and the respect that are required to be given to these community has not been provided by the society.the legal recognition of the community was important because it determines rights in relation to marriage, adoption inheritance, succession,taxation and welfare. This case sought to demonstrate that the lack of legal measures to cater to the need of transgender went against the principle of constitution.As the Transgender community are also the part of India they are also citizen of this country and has been granted the fundamental rights that has been granted to other people in India. In this case there has been violation of Article 14,15,16,191(a) and 21 of the constitution as Article 16 of the constitution clearly says that “Equal opportunity need to be provided in matters of public employment”. As in the recent judgement in US supreme Court dated 15 June 2020 it has been said “Employees cannot be Fired merely for bring Homosexual or transgender”. So, still there has need to be proper rights that are required to be given to the Transgender community and hope that our government has been working on that aspect in a proper manner
BY- DEEPANKAR CHUGH
