BEYOND MALES AND FEMALES, THE RIGHT TO HUMANITY

DYNAMIC DECISIONS

• The ruling in the National Legal Services Authority (NLSA) VS Union of India has far-reaching implications.
• It is courageous decisions that embed the rights of transgendered persons primarily within the right to equality in the Indian constitution. In this sense, it is a more dynamic decision than the Delhi High court ruling regarding section 377, which was largely based on the right to privacy. The court held that non-recognition of gender identity violates the rights to equality and life and that transgendered persons should not be compelled to declare themselves as either male or female.
• The lack of recognition of their gender identity curtails their access to education, health care and public places and results in discrimination in the exercise of their right to vote and secure employment, driving licenses and other documentation where eligibility is contingent on declaring oneself as either male or female.
• While the decision is largely based on the protection of fundamental rights, the court also relied on a host of UN human rights provisions as well as the 2006 Yogyakarta principles, which specifically recognize the human rights of sexual minorities and which were adopted to counter discrimination based on gender identity and sexual orientation
• An outstanding feature of the decision is that the judges accepted the broad definition of transgender as including persons whose gender identity, gender expression or behaviour did not conform to their biological sex and more importantly, those who did not identify with the sex assigned to them at birth.
• They accepted a vast array of identities and experiences that constitute the category of transgendered persons, culturally and socially and also accepted the fact that gender identity is not necessarily biologically determined
• They referred to each person’s experience of gender, which may involve a free hosen modification of bodily appearance or functions by medial or other means. Gender identity is about self-identification.
• Justice Sikri went so far as to state that even gay, lesbian, and bisexual are included in the description ‘transgender’ and that it was an umbrella term.
• The NLSA decision thus recognized the social construction of not only gender but also of sex as something that is performed rather than biologically determined.
• The court further held that sex discrimination in Indian constitutional law includes discrimination on the grounds of gender identity and rejected the view that it was limited to biological sex.
• As justice Sikri stated –It is only with this recognition that many rights attached to sexual recognition as the third gender would be available to this community more meaningfully viz the right to vote, right to own property, right to marry, right to claim a formal identity through a passport and a ration card, a drivers license, the right to education, employment, health and so on
• The court also addresses the arguments regarding section 377 but expressed no view on the Kaushal case, currently the subject matter of a curative petition. The Justices did however recognize the misuse of section 377 to harass transgendered persons.