| Headnote |
CONSTITUTION OF INDIA, 1950: Article 14 - Transgenders - Claim for equal treatment - Held: Article 14 states that the State shall not deny to "any person" equality before law or equal protection of laws within the territory of India - Article 14 does not restrict the word 'person' and its application only to male or female - Hijras/transgender persons who are neither male nor female fall within the expressions 'person' and hence entitle to legal protection of laws in all spheres of state activity including employment, healthcare, education as well as equal civil and citizenship rights as enjoyed by any other Indian citizen - Criminal Tribes Act, 1871 - Penal Code, 1860 - s.377. Article 14 - Claim by Transgenders/Hijras/eunuch for legal status as third gender - Held: Transgenders belong to a distinct socio-religious and cultural group and, therefore, have to be considered as a 'third gender' apart from male and female - Gender identity is integral to the dignity of an individual and is at the core of 'personal autonomy' and 'self determination' - Hijras/eunuchs, therefore, have to be considered as third gender over and above binary genders - Article 14, 15, 16, 19 and 21 do no exclude Hijras/TGs from their ambit.Articles 14, 15, 16, 19, 21 - Transgenders - Held: Article 14 use expression ''person" and the Article 15 use expression "citizen" and "sex" so also Article 16 - Article 19 also use the expression "citizen" - Article 21 use the expression ''person" - All these expressions, which are "gender neutral" evidently refer to human-beings - Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender.Articles 15 and 16 - Prohibition of discrimination against any citizen on the ground of 'sex' - Held: Both the Articles prohibit all forms of gender bias and gender based discrimination - Expression 'sex' used in Articles 15 and 16 is not just limited to biological sex of male or female but intended to include people who consider themselves to be neither male or female - Bias - Gender bias. Article 19(1)(a) - Freedom of speech and expression as to self identified gender - Held: Freedom of expression includes freedom to express one's chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc. - Transgender's personality could be expressed by Transgender's behaviour and presentation - State cannot prohibit, restrict or interfere with Transgender's expression of such personality which reflects that inherent personality - The values of privacy, self identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community u/Article 19(1 )(a) and the, State is bound to protect and recognize those rights.Article 21 - Right to dignity - Transgenders - Held: Article 21 protects the dignity of human life, one's personal autonomy, one's right to privacy - Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans - Right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of persons and includes "expressing oneself in diverse forms, freely moving about and mixing with fellow human beings" - Recognition of one's gender identity lies at the heart of the fundamental right to dignity - Gender constitutes the core of one's sense of being as well as an integral part of a person's identity - Article 21 guarantees the protection of ''personal autonomy" of an individual - 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 - Human rights. TRANSGENDERS: Historical background of Transgenders in India - Discussed. Gender Identity and sexual orientation - Meaning of - Held: Gender Identity refers to individual's self identification as a man, woman or other identified categories - Sexual orientation refers to individual's enduring physical, romantic and/or emotional attraction to another person. Rights of transsexual person who have undergone Sex Re-assignment Surgery (SRS) - Test to be applied - Held: Test to be applied is not the 'Biological test' but 'Psychological test' - Universal Declaration of Human Rights, 1948 - Article 6 - International Covenant on Civil and Political Rights, 1966 - Articles 16, 17 - Doctrines/Principles - Yogyakarata Principles - Human Rights. Problems suffered and discrimination faced by Transgenders - Discussed. Legislations in other countries on Transgenders - Discussed. Sex identity gender of persons and guarantee to equality and non-discrimination of gender identity - Applicability of, in India - Held: There is no suitable legislation protecting the rights of the members of TG Community - They are facing discrimination in various areas and, therefore, there is necessity to follow the International Conventions to which India is a party. Gender identity -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, charges his/her sex as well - Held: If a person has changed his/her sex in tune with his/her gender characteristics and perception which has become possible because of the advancement in medical science and when that is permitted in medical ethics with no legal embargo, there is no impediment, legal or otherwise in giving due recognition to the gender identity based on reassign sex after undergoing SRS. Sex Re-Assignment Surgery - Legality of - Held: If a person has changed his/her sex in tune with his/her gender characteristics and perception which has become possible because of the advancement in medical science, and when that is permitted by in medical ethics with no legal embargo, there is no impediment, legal or otherwise, in giving due E recognition to the gender identity based on the reassign sex after undergoing Sex Re-Assignment Surgery (SRS) - Ethics - Medical ethics. DOCTRINES/PRINCIPLES: Principle of maximum of happiness to most of the people - Applicability of when claim by transgender for equal status - Held: In such case, there is no dichotomy between the individual freedom/liberty as against public good - On the contrary, granting the right to choose gender leads to public good. HUMAN RIGHTS: Held: There is universal recognition that Human rights are rights that "belong" to every person, and do not depend on the specifics of the individual or the relationship between the right-holder and the right-grantor - Moreover, Human Rights exist irrespective of the question whether they are granted or recognized by the legal and social system within which we live - They are devices to evaluate these existing arrangements: ideally, these arrangements should not violate human rights - In other words, human rights are moral, pre-legal rights - They are not granted by people nor can they be taken away by them. INTERNATIONAL CONVENTION: Implementation of - Held: Implementation of International Convention requires legislation - Article 253 states that Parliament has power to make any law for the whole or any part of territory of India for implementing any treaty, agreement or convention - Indian courts can apply rules of international law according to the principles of Comity of nations, unless they are overridden by clear rules of domestic law - Constitution of India, 1950 - Articles 51, 253. INTERNATIONAL LAW: Binding effect of - Held: If Parliament has made any legislation which is in conflict with the International law, then Indian courts are bound to give effect to the Indian Law rather than international law - Constitution of India, 1950 - Articles 51, 253. JURISPRUDENCE: Theory of law - Kantian criterion of justice - Interpretation of - Discussed. WORDS AND PHRASES: Transgender - Held: It is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex - Transgender may also takes in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs - TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. - Etymologically, the term 'transgender' is derived from two words, namely 'trans' and 'gender' - Former is a Latin word which means 'across' or 'beyond' - The grammatical meaning of 'transgender', therefore, is across or beyond gender - This has come to be known as umbrella term which includes Gay men, Lesbians, bisexuals, and cross dressers within its scope- Transgenderism is not a disease at all but a benign normal variant of human experience akin to left handedness. |
