In 2012, the National Legal Services Authority- an institution that provides free legal services marginalised sections of society- brought a case, joined by a number of interveners, arguing that the lack of legal gender recognition and protection for transgender people under Indian law was in violation of the Constitution.
The petitioners argued that as well as not being able to seek a legal declaration of gender identity outside of the binary assigned to them at birth, transgender people had restricted access to education, healthcare, public places, employment and the right to vote, in effect being treated as outcasts. These factors violated a number of constitutional rights including the right to equality before law (Article 14), to non-discrimination (Article 15), to equality of opportunity (Article 16), to freedom of expression (Article 19(1)) and to life and personal liberty (Article 21).
In their judgment Judges K.S. Radhakrishnan and A.K. Sikri acknowledged the persecution the transgender community had faced. The court defined the transgender community as including Hijras, Kothis, Aravanis and others. The court upheld the right of the transgender community to self-identify their gender stating:
‘Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.’
The court held that under Article 14 there was ‘a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes’ to ensure transgender people may enjoy equal protection of laws.
The court interpreted Articles 15 and 16, discrimination on the ground of ‘sex’, as including ‘discrimination on the ground of gender identity’ and found Constitution makers had intended to prevent unequal treatment of people ‘for the reason of not being in conformity with stereotypical generalizations of binary genders.’
Article 19(1)(a), the court held, ‘states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender.’
With regard to Article 21, the court found that, ‘self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.’
The court called on the Centre and State Governments to grant legal recognition of transgender peoples’ self-identified gender identity as male, female or as third gender.
Download the judgment