/DIG NATIONAL LEGAL SERVICES

ITY
Y/DIGN N AUTHORITY VS. UNION OF
INDIA (UOI) & ORS.

ITY IG
/D
AIR 2014 SC 1863; (2014) 5 SCC 438
IT

IT
Y/DIGN

2014
Case Status NOT State is bound to recognise and protect the
OVERRULED fundamental right to privacy, self-identity,
autonomy and personal integrity of the
transgender community.
Case Type CIVIL WRIT
PETITION

Additional
Aspect(s)
of Privacy
AUTONOMY

Constitutional ARTICLES
Provision(s)
14,15,16,19,21

Bench
Strength 2
JUDGES
2 concurring opinions by
Justice K. S. Radhakrishnan and
Justice A. K. Sikri.

Number of
Opinion(s)
2/0
OPINIONS DISSENT
“We, 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.”
T
his case declared the right of the transgen-
der community to gender identification
outside of the gender binary, and intro-
duced legal protections for the third gender. It
recognized the ongoing violation of rights of
transgender persons under Articles 14, 15, 16, 19,
and 21 of the Constitution, and also laid down
several guidelines for State and Central Govern-
ments to accord actualisation of rights to trans-
gender persons, who it deemed a marginalized
and vulnerable minority.
1
The Court held that the recognition of one’s
gender identity lay at the heart of the right to
dignity, and that gender identity was a fundamen-
tal aspect of life. The Court also noted several
international instruments supporting this propo-
sition, including the Yogyakarta Principles on the
Application of International Human Rights Law
in relation to Sexual Orientation and Gender Iden-
tity (Yogyakarta Principles) as well as cases from
various foreign courts. The Court further recog-
nised the interrelationship of the right to privacy
and the right to gender identity, and imposed a
positive duty on the State to protect and recognise
such rights.

Facts
In 2012, the National Legal Services Authority, the
Petitioner, which was constituted to give legal
representation to marginalized sections of society,
filed a writ petition with the Supreme Court on
behalf of members of the transgender community
alleging ongoing violations of fundamental rights.
Another organization, the Poojaya Mata Nasib
Kaur Ji Women Welfare Society, also filed a
petition seeking similar reliefs in respect of the
Kinnar community, which was also a transgender
community. Finally, Laxmi Narayan Tripathy, an
individual who identified as a Hijra, impleaded
themselves as an Intervenor to represent the cause
of the members of the transgender community.
Issue
A) Whether non-recognition of the gender identi-
ty of the members of the transgender commu-
nity led to violation of their rights under
Article 14, Article 15, Article 16, Article 19 and
Article 21 of the Constitution.
Arguments
The Petitioners in this case argued that every
person of the transgender community should
have a legal right to decide their sexual orienta-
tion and determine their own gender identity. As
transgender persons were not treated as male,
female or given the status of the third-gender, they
were effectively deprived of many rights and
privileges, including social and cultural participa-
tion, access to education, healthcare and public
spaces, in violation of their rights under Article 14.
The Petitioners also argued that the discrimina-
tion they faced on grounds of gender
would violate Articles 14, 15, 16 and 21 of
the Constitution.
The Intervener argued for a third-gender identity,
drawing upon historical references, practices in
other jurisdictions and international norms. They
also submitted that the right to choose one's
gender identity was integral to the right to lead a
life with dignity, which was guaranteed by Article
21 of the Constitution.
The Respondents submitted that the problems
highlighted by the transgender community
through these petitions were a sensitive human
rights issue, which would need consideration by
the Ministry of Social Justice and Empowerment.
They pointed out that an “Expert Committee on
Issues Relating to Transgender Persons” had
already been set up to consider the question,
and the views of the Petitioners and others
would be taken into consideration in the consul-
tation process.
Decision
The judgment rendered by the Court recognized
the rights of transgender persons as a third
gender, apart from the gender binary, in order to
effectively protect and safeguard their rights
under the Constitution. The Court further stated
that gender identity was an integral part of the
personality and one of the most basic aspects of
self-determination, dignity and freedom. It
reaffirmed that psychological gender should take
primacy over biological gender, and medical
procedures could not be a precondition for legal
recognition of gender identity.
2
 In discussing the scope of the judgment, the Court
noted that “(t)ransgender is generally described
as an umbrella term for persons whose gender
identity, gender expression or behavior does not
conform to their biological sex” and 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 biologi-
cal sex.”
The Bench briefly discussed the historical back-
ground of transgender rights in India, looking at
several traditional transgender communities
including Hijras, Eunuchs, Kothis, Aravanis,
Jogappas, and Shiv-Shakthis and acknowledged
the historical discrimination faced by them. The
Court also listened to testimony from transgender
persons including the Intervenor to note the struc-
tural discrimination they faced in areas including
employment, healthcare, and others, apart from
social discrimination.
The Court further delved into the implications of
recognition of gender identity and sexual orienta-
tion. It classified gender identity as a fundamental
aspect of life, as it related to a person's intrinsic
sense of their own gender. In considering this, the
Court drew special attention to several interna-
tional instruments, including the Yogyakarta
Principles which deal with the rights of persons of
differing sexual orientations and gender identi-
ties. The Principles discuss several human rights
standards and provide directions to states on how
to uphold the rights of persons of varied identi-
ties. Principle 6 specifically affirms the applicabili-
ty of the right to privacy, regardless of sexual
orientation or gender identity. The Court further
referred to Article 12 of the Universal Declaration
3
of Human Rights and Article 17 of the Internation-
al Covenant on Civil and Political Rights, which
relate to privacy protections. The Court held that
in the absence of any specific legislation in India
relating to recognition of a third gender, and in
absence of any domestic law to the contrary, the
provisions of these international instruments
must be adopted to protect and safeguard the
rights of the community.
With respect to Constitutional provisions, the
Court held that gender identity was integral to life
and would be protected under Articles 19 and 21
of the Constitution of India, as a function of
freedom of expression, privacy and dignity. The
transgender community’s rights to privacy,
self-identity, autonomy, and personal integrity
were reaffirmed and the legal recognition of
gender identity was considered part of the right to
dignity and freedom guaranteed under Article 21
of the Constitution. The Court noted the impor-
tance of reading Constitutional provisions in line
with present-day conditions based on changing
social realities. The Court also noted that in order
to facilitate the exercise of transgender persons’
right to equality under Article 21, the State would
have a positive obligation “to ensure equal protec-
tion of laws by bringing in necessary social and
economic changes”. The Court further noted that
discrimination on the grounds of sexual orienta-
tion and gender identity would violate Article 14,
while discrimination on the basis of sex would
violate Articles 15 and 16. Sex was understood to
mean all forms of gender-based discrimination.
The Court noted the need for legal recognition of a
third gender and the right of transgender persons
to self-identify. The Court gave directions to the
State to recognise transgender persons’ self-iden-
tification and to take steps to treat them as socially
and educationally backward for the purpose of
extending reservations. The Court further direct-
ed the State to operate HIV Sero-surveillance
Centres since transgender persons faced several
sexual health issues, and to seriously address the
mental health problems being faced by the
community including shame, gender dysphoria,
social pressure, depression and others. Additional
directions included spreading public awareness,
creating social welfare schemes, bettering medical
care, and others. The Court further directed that
the Expert Committee constituted by the govern-
ment should examine the judgment and imple-
ment its recommendations within six months.