NATIONAL LEGAL SERVICES AUTHORITY v. UNION OF INDIA
The Author, Aparajita is a penultimate year student of National Law University and Judicial Academy, Assam. For any suggestions or queries, she can be reached at AprjtaJha@gmail.com.
Date of Judgement – 15th April 2014
Equivalent Citation – AIR 2014 SC 1863
Bench – Justice K.S. Panicker Radhakrishnan, Justice A.K. Sikri
FACTS OF THE CASE
- NALSA filed a Writ Petition No. 400 of 2012 before the Hon’ble Supreme Court to recognize the transgender as a third gender.
- Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association, also filed a Writ Petition No. 604 of 2013, seeking similar reliefs in respect of Kinnar community, a transgender community.
- Laxmi Narayan Tripathy, a person who identifies herself as a Hijra, 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.
- Whether the non-recognition of transgender community as a gender identity is a violation of the fundamental rights of trans-people?
- What legislations should the state make to protect the rights of transgender community?
- 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?
- Whether transgender, who are neither males nor females, have a right to be identified and categorized as a “third gender”?
ARGUMENTS OF PETITIONER
- The petitioners contended that every transgender person should have the liberty to choose their sex and determine their identity.
- It was also contended by the petitioners that the state cannot determine them on the ground of gender as it violates their fundamental right under Article 14, 16 and 21 of the Constitution of India.
- The petitioners also submitted that the transgender community should be declared as a socially and educationally backward classes of citizens and must be provided all the benefits accordingly.
- It was contended that it is the responsibility of the state to protect the rights of the transgender community as they are also citizens of India.
ARGUMENTS OF RESPONDENT
- Respondents contended that the State has taken all the necessary steps to protect and improve the conditions of the transgender community at large.
- To protect the rights of transgender community, it was declared that –
- Hijras, Eunuchs apart from binary gender must be treated as “third gender”.
- Transgender people’s right to decide their self-identified gender.
- The Hon’ble Apex Court also directed center and state government to –
- Grant legal recognition of gender identity as male or female to third gender as well.
- Take steps to treat the transgender community as socially and educationally backward class of citizens and provided all kinds of support and benefits accordingly.
- Operate separate HIV Sero-surveillance centers since Hijras/ Transgenders face several sexual health issues.
- Take proper measures to provide medical care to transgender community and also provide them separate public toilets and other facilities.
- Frame social welfare schemes for the betterment of transgender community.
- Take steps to create awareness for inclusion of transgender community into society.
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