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Right to Equality in a Community Vis -a-Vis National Legal Service Authority vs Union Of India & Ors


LGBT has become a widely accepted designation for sexual minorities and gender orientation. All members of this community are subject to similar prejudices rooted in beliefs and traditions about sexuality and gender. The judgment was delivered in pursuance of Public Interest Litigation filed by the National Legal Services Authority (NALSA). The petition filed by NALSA sought to address the grievance faced by the transgender community. Hon’ble supreme court states that non recognition of their identities violate Article 14,15,16 and 21 of the constitution of India.TG community comprises of Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. So they must also be provided each and every right provided to other citizens of India by the Indian Constitution.

In 2012, the National Legal Services Authority, an Indian statutory body constituted to give legal representation to marginalized sections of society, filed a writ petition with the Supreme Court of India. The petition was joined by a non-governmental organization representing the Kinnar transgender community, and an individual who identified himself as a Hijra.

The case has been filed before the Hon’ble Supreme court because not giving TG their right to equality harm the very fundamental right provided by the Government to every Citizen. As TG are not considered equal and are not given an equal right from the very beginning. It serves as an umbrella term that includes people who do not identify with the biological gender they were born with, as well as people who may identify as neither gender.

The Additional Solicitor General, representing the government, recognized that the matter represented a serious social issue. He informed the Court that an Expert Committee had already been established by the government to address various problems facing the transgender community.

Shri Raju Ramachandran, learned senior counsel appearing for the petitioner, the National Legal Services Authority, highlighted the traumatic experiences faced by the members of the TG community and submitted that every person of that community has a legal right to decide their sex orientation and to espouse and determine their identity. Learned senior counsel has submitted that since the TGs are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws.

They also highlighted that the state cannot discriminate them on the ground of gender, violating Article 14, 16 and 21 of the Constitution of India. They also submitted that non-recognition of gender identity of the TG Community violates the FR’s guaranteed to them, who are the citizen of this country. Further, petitioner learned counsel has also contended that TG must be given a backward and educationally weak community so that they could have an access to the benefits provided by the government.

It has been further contended by the learned counsel that she herself has suffered various issues and discrimination in various matters. Moreover, she herself felt that they are being treated as a criminal in the eyes of other people. They are not considered equally and people make them feel that they belong to lower society.

Respondent explained all the specific steps taken by the state to improve the condition of a TG. Respondent claims that there must be a community and an organization made by the government for the society. Learned ASG pointed out that, under the aegis of the Ministry of Social Justice and Empowerment (for short “MOSJE”), a Committee, called “Expert Committee on Issues relating to Transgender”, has been constituted to conduct an in-depth study of the problems relating to transgender persons to make appropriate recommendations to MOSJE.

1. 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?

2. Whether transgender (TG), who are neither males nor females, have a right to be identified and categorized as a “third gender”

The court was constituted of two judges. The leading judgment was given by Judge K.S. Radhakrishnan, whose judgment was endorsed by Judge A.K. Sikri. The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender.

It was held by the Hon’ble Supreme Court that they believe that they must be provided equal right provided to other citizens. They also have a right to equality in the community and must be treated equally. The Hon’ble court found that the Applicant has faced various serious discrimination throughout her life because of her gender identity. It has been clear to the Applicant that the complete non-recognition of the idntity of Hijra/ transgenders persons by the state has resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution of India.

Looking into the view by the learned counsel for the petitioner court states that Transgender people are oppressed and are faced with discrimination in the field of health care, employment, education, etc. in this view they must be provided equal right in the society. Further, The Court held that TGs are entitled to affirmative action as guaranteed under Article 15(4) and also to reservation in the matter of appointment. State is bound to take affirmative action to give them due representation in public services. In this view supreme states various guidelines to the state Government.

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 Sero-survellance Centres 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

The judgment given by the Hon’ble Supreme Court was a life changing incident for the TG community. By giving this judgment Supreme Court has restored the faith in judiciary of the people. The community which was not given their rights and were considered as impure have been given their right by the government. Though the community has been granted legal recognition, their present status till needs to improve. It all comes down to the acceptance of public.

Written By: Mr. Mukul Bansal, Final Year Law Student, Punjab University, Law Intern at S.Bhambri & Associates (Advocates)

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