Slide 1 and 2 – intro + facts – pramodh

-very bad social condition

-most are sex workers/beggars

-criminal tribes act, 1871 – registering and controlling their activities.

-Ipc s 377 passed in 1860

-colonial legislations are major reason for downfall of the tg community and their humiliation

-wp filed by nalsa on behalf of tg community. Other petitioners- Poojya Mata Nasib Kaur Ji Women
Welfare Society, and Laxmi Narayan Tripathi, transgender activist

Introduction and Historical Background

The Transgender Community has been marginalized and treated with neglect in Indian society. They
are abused in public places and are denied employment. They have suffered systematic discrimination
at the hands of society. The only reason that they have failed to develop themselves and raise
themselves in society is due to society’s reluctance to accept different expressions of gender identity.

In India, the Transgender (or “TG”) community has diversified into many groups comprising Kothis,
Aravanis, Jogappas, Shiv-Shakthis etc. This is due to the important place they held in Hindu
mythology and society through the ages. They were granted recognition and positions in Indian
society, even in Islamic courts whose religion generally forbids such expressions of gender identity.
Similar references are made in Jain scriptures. It can be inferred that in Ancient and Medieval India,
before the British Indian Era, the community was held in respect.

In 1860, the Indian Penal Code was passed, Section 377 of which criminalized all penile-non-vaginal
sexual acts, targeting the TG Community. The Criminal Tribes Act, 1871, was enacted to supervise all
acts of the Hijra Community. It stated that this community was ‘addicted to the systematic
commission of non-bailable offences’. This legislation provided for the identification, registration and
surveillance of all activities of Hijras and eunuchs. Due to this act, registered eunuchs could be
arrested without warrant and imprisoned upto two years or fine or both, for dressing, behaving,
playing music or dancing like women in a public place. They were denied many civil rights through
this Act. This Act was repealed in 1949 and replaced by the Habitual Offenders Act, 1952,
denotifying the Hijras from it. However, the divisive and detrimental effect it had on the treatment
and future of the so-called “tribes” or communities is well documented and researched.

Facts
The Writ Petition no. 400 of 2012 was filed by National Legal Services Authority to legally recognize
denied to the TG Community due to non-recognition of their gender. The gender of a person
determines their civil rights in relation to marriage, adoption, inheritance, succession, taxation and
social welfare benefits. The lacuna in legislation, and the historical wrongs commited upon this
community have led to the systematic discrimination of this community which has to be righted by
the judgement.

Bench: J. KS Radhakrishnan, J. AK Sikri.

Date of Judgement: 15th April, 2014.

Issues
There are primarily two issues in this case, both of which have been discussed by Justice KS
Radhakrishnan, and the second of which has been discussed in great detail by Justice AK Sikri.

(i) Whether non-recognition of third gender causes violation of Article 14 and 21 of the
Constitution of India?

The lack of recognition of the “third gender”, an umbrella term for ‘persons whose gender identity,
gender expression or behaviour does not conform to their biological sex’, has led to them facing
difficulties right from birth, or from puberty, when the physical or psychological disconnect with the
sex of the body they are held captive in, becomes more apparent. They face ridicule and disdain from
society, and they do not have any civil rights (other than the right to vote, granted to them in 1994) in
relation to marriage, adoption, inheritance, succession, taxation and social welfare schemes.

(ii) Whether the right of self-identification can be granted to persons?

“Transgender” is used as an umbrella term for those who is held captive in the body of a sex they do
not identify with. Whether the right to come up before the law, in their capacity as a citizen of India
gives them a right to identify themselves with the gender of their choice? Do they have a right to
register themselves as male/female after having undergone Sex Reassignment Surgery(SRS)?
Slide 3 – laws involved – Arjun

The following laws are involved in this case:

1. Constitution of India

(a) Article 14 (right to equality)

(b) Article 15 (prohibition of discrimination)

(c) Article 16 (equality of opportunity in matters of public employment)

(d) Article 19 (freedom of expression)

(e) Article 21 (right to life)

2. International Law

(a) International Covenant on Civil and Political Rights:

i. Article 6 (right to life)

ii. Article 7 (prohibition of torture or cruel, inhuman or degrading treatment)

iii. Article 16 (recognition before the law)

iv. Article 17 (right to private and family life)

(b) Universal Declaration of Human Rights: Article 6 (right to life)

(c) Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or
Punishment: Article 2 (criminalization of, and preventive measures against torture)

(d) Yogyakarta Principles

i. Principle 1 (universal enjoyment of human rights)

ii. Principle 2 (rights to equality and non-discrimination)

iii. Principle 3 (right to recognition before the law)

iv. Principle 4 (right to life)

v. Principle 6 (right to privacy)

vi. Principle 9 (right to treatment with humanity while in detention)

vii. Principle 18 (protection from medical abuses)

The following Case laws were cited in order to bring clarity to the principles applied in the
judgement:
 1. Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603 – after srs person cant
operate in previous sex and his new sex has to be legally recognized

2. Secretary, Department of Social Security v. “SRA”, (1993) 43 FCR 299 – psychological sex
is more important than biological sex

3. Norrie v. NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145

Slide 5 – judgement slide – harshita

-division bench

Bench: J. KS Radhakrishnan and J. AK Sikri

Date : 15th April 2014

TG community has faced discrimination since 18th century, and are disadvantaged in all areas of life

Steps to ensure constitutional rights

Gender identity is the most basic aspect of self-determination, human dignity and freedom.

“Thus no one can be forced to undergo medical procedures, including SRS (sex reassignment
surgery), sterilization or hormonal therapy, as a requirement for legal recognition of gender identity.”

ICCPR, UDHR and Yogyakarta Principles are not inconsistent with fundamental rights in part iii of
constitution, and are thus interpreted for this judgement which is covering a lacuna in law

Slide 6 and 7 – RD and OD – gouri

 Gender identity and Article 21

 Gender neutrality of Articles 14 and 15

 State is bound to take affirmative action under provisions of art. 15(4) and art. 16(4)

 Article 19 and the right of TG community to express themselves words, conduct and dress

 International Law applied through art. 51(c)

od

 Human rights exist irrespective of social/legal systems

 Indian Constitution fosters social reform by widening ambit of Article 21 by guaranteeing

enjoyment of life with dignity
  True measure of development – human dignity

 Freedom to choose one’s sex – attainment of individual perfection

 Protection of rights of TG community and true democracy

Slide 9 – harshita

 “Third gender” recognition

 Right to self-identify

 “socially and educationally backward classes” : reservation in educational institutions and

public appointments

 HIV Sero-surveillance centres for sexual health issues, separate medical care and public toilet
facilities

 Addressing mental and social issues, social welfare schemes and public awareness

Slide 11 to 12 – conclusion – aravind

Problems of tg rights bill, 2016:

 The Supreme Court has held that the right to self-identification of gender is part of the right to dignity
and autonomy under Article 21 of the Constitution. However, objective criteria may be required to
determine one’s gender in order to be eligible for entitlements.

 The Bill states that a person recognised as ‘transgender’ would have the right to ‘self-perceived’ gender
identity. However, it does not provide for the enforcement of such a right. A District Screening
Committee would issue a certificate of identity to recognise transgender persons.

 The definition of ‘transgender persons’ in the Bill is at variance with the definitions recognised by
international bodies and experts in India.

 The Bill includes terms like ‘trans-men’, ‘trans-women’, persons with ‘intersex variations’ and ‘gender-
queers’ in its definition of transgender persons. However, these terms have not been defined.

 Certain criminal and personal laws that are currently in force only recognise the genders of ‘man’ and
‘woman’. It is unclear how such laws would apply to transgender persons who may not identify with
either of the two genders.

 Ground reality has not changed drastically, despite the act having paved way for the
Transgender Persons (Protection of Rights) Bill, 2016

 Lesbians, Gays and Bisexuals removed from term of “third gender” – Supreme court
clarification in june 2016 – lesbians gays and bisexuals are not included under hijras/eunuchs
– thus not part of third gender – because the are not necessarily captive in another body. They
might be ok with their original gender of their body, only sexual preferences are different.
  Self identification is a contentious issue, as the act claims “objective criteria” to be applied to
grant certificate through which benefits are availed

On one hand, human dignity is protected by allowing self identification ans it is human right.
However, it is a matter of accountability and public money. Taxpayer money is used to finance their
welfare schemes, they are given benefits of reservation – thus a certificate is mandatory for ensuring
accountability and to prevent those undeserving of the benefits to make use of them. In America, they
don’t get any reservation or any extra benefits above a normal citizen – which is why self
identification is possible, but in india, they get extra benefits apart from normal citizen – wich is why
verifying committee and certificate is needed

 Case of Law preceding true social change – only laws have changed, and social condition of
tg community is still very bad