NALSA VS UOI

(THE RIGHTS OF TRANSGENDER IN INDIA)

JAIN DIVYA LALIT, BLS LLB, 3rd YEAR, SEMESTER6, MGM LAW COLLEGE, NERUL
 INTRODUCTION
 Transgender persons are people whose identities are different
from the stereotypical gender norms, which identify genders only
as male or female. 
 Society has failed to accept their gender identity due to which
they have suffered from discrimination, social oppression and
physical violence.
 There are certain socio-cultural groups of transgender people who
are identified as Hijras, jogappas, Sakhi, Aradhis etc. and there
are people who do not belong to any of the groups but are
referred to as transgender person individually.
 TRANSGENDER PERSON
 Transgender person means “a person whose gender does not matches
with the gender that was assigned to them at their birth but they are the
persons with intersex variation and genderqueer”.
 They are the people who are born with male or female anatomies but they
feel different from their body structure as their gender expression,
identity or behavior differs from their birth sex.
 Transgender people try to express their gender identity in many ways as
some use their behavior, dress or mannerism to live like the gender they
feel is right for them as they reject the traditional understanding of gender
that is just divided between male and female so they identify themselves
as transgender or genderqueer.
 MISCONCEPTION ABOUT THE TERM
‘TRANSGENDER’
 Transgender is not a term limited to persons whose genitals are intermixed but
it is a blanket term of people whose gender expression, identity or behavior
differs from the norms expected from their birth sex.
 Various transgender identities fall under this category including transgender
male, transgender female, male-to-female (MTF) and female to
male(FTM).
 It also includes cross-dressers (those who wear clothes of the other), gender
queer people (they feel they belonged to either both genders or neither
gender) and transsexuals.
 In India, there are a wide range of transgender related identities which
includes the Hijras, Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis. In
the past, they were treated with great respect.
 NALSA VS UOI
 The third gender gained legal recognition in the eyes of law as the Hon’ble
Supreme Court ruled that the fundamental rights should be available to the
third gender in the same way as they were provided to the male and female.
 The court provides the transgender with equal rights and protection under
the Article 14, 15, 16 and 21.
 The court stressed out on the importance of right to dignity and gave due
recognition to their gender identity which was based upon reassigned sex
after undergoing Sex Reassignment Surgery as the person has a
constitutional right to get recognized as a male or female.
 Thus, the transgender where entitled to legal protection of law in all the
spheres of state activity including the education and employment.
NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA & ORS

 The Supreme Court of India in its pioneering judgment by the

division bench of Justices K.S. Radhakrishnan and A.K.
Sikri in National Legal Services Authority v. Union of India & Ors.
recognized the third gender along with the male and female.
 By recognizing diverse gender identities, the Court has busted the
dual gender structure of ‘man’ and ‘woman’ which is recognized by
the society.
 “Recognition of Transgenders as a third gender is not a social or
medical issue but a human rights issue,” Justice K.S.
Radhakrishnan told the Supreme Court while handing down the
ruling.
 The right of equality before law and equal protection of
law is guaranteed under Article 14 and 21 of the
Constitution. 
 The right to chose one’s gender identity is an essential
part to lead a life with dignity which again falls under the
ambit of Article 21.
 Determining the right to personal freedom and self
determination, the Court observed that “the gender to which
a person belongs is to be determined by the person
concerned.”
 The Court has given the people of India the right to gender
identity.
 They cannot be discriminated against on the ground of gender as it is
violative of Articles 14, 15, 16 and 21.
 The Court also protects one’s gender expression invoked by Article 19 (1)
(a) and held that “no restriction can be placed on one’s personal
appearance or choice of dressing subject to the restrictions contained in
article 19(2) of the Constitution”.
 The Court recognized the right to as to how a person choose to behave in
private, personhood and the free thought process of the human being,
which are necessary for the fullest development of the personality of the
individual. The Court further noted that a person will not realize his
dignity if he is forced to mature in a gender to which he does not belong
to or he cannot relate to which will again hinder in his development.
 The Supreme Court has given certain directions for the
protection of the rights of the transgender persons by
including of a third category in documents like the election
card, passport, driving license and ration card, and for
admission in educational institutions, hospitals, amongst
others.
 Human rights are basic rights and freedoms which are
guaranteed to a human by virtue of him being a human which
can neither be created nor can be abrogated by any
government. It includes the right to life, liberty, equality,
dignity and freedom of thought and expression.
 The Hon’ble court interpreted the meaning of Article 14 and held that the article
provides protection to ‘any person,’ and “person” here includes the transgender
person as well and hence, they are all entitled to legal protection of law in all the
spheres of state activity like any other citizen of this country.
 The court also held that Article 15 and 16 is not just limited to biological sex of
male or female but it intended to include those people too who consider
themselves to be neither male nor female.
 Further the court referred to Article 19(1)(a) and 19(2) and concluded that
transgender personality can be expressed by transgender’ s behavior and
presentation and it cannot be restricted or prohibited.
 Lastly, the court referred to Article 21 and held that “Hijras/ Eunuchs have to be
considered as third gender, over and above binary gender under our constitution
and the laws”. 
 CASE SUMMARY
 Article 14 provides the right to equality. It states that no one should be denied equality
before the law and equal protection of law/
 Article 15(1) and 20 prohibits discrimination of a person on any grounds like sex,
religion, race, caste, or place of birth. It is the discrimination on the basis of sex that the
LGBT section lacks educational and job facilities and is denied equal pay for equal
work [6]. The Indian constitution states that although the term ‘sex’ refers to male and
female, it is broad enough for sexual orientations to include in it [7].
 Article 19 allows this freedom of speech and expression to all the citizens
 Article 21 provides the right to life and private liberty which encompasses the right to
privacy. The Indian Constitution does not expressly grant the right to privacy as a
fundamental right, but it has been emphasized from time to time by the Supreme Court in
some cases, so it is considered to be in the vicinity of fundamental rights. As a result, the
state’s right to privacy must not be infringed upon
 CONCLUSION
 We live in a progressive world. It’s about time for civilization to shed societal taboos
and become more realistic.
 LGBT persons should be granted all of the rights and respect that they are entitled to as
human beings and citizens.
 People should be educated about the varied sexual orientations and the needs they
have. The world has been harsh on them for reasons that are not their fault.
 They have been subjected to violence, disrespect, suffering, and discrimination as a
result of society’s treatment of them. It is past time for society to start smiling at them
with respect, love, and protection.
 LGBT individuals are also Indian citizens who follow the Indian constitution. Every
right enshrined in the constitution binds them as well. They have the right to the same
rights as other citizens.