April 15 marks the 6th anniversary of the NALSA judgment. It was a remarkable step in the constitutional history of India. It guaranteed rights to an extremely marginalized community. The transgender community has been isolated, stigmatized, ostracized and denied basic human rights for decades despite the operation of a Constitution and functioning of a democracy. The community had been subject to gender-based violence, harassment, abuse and rape. They have been denied access to public toilets, healthcare, education, employment. The landmark 2014 judgment put an end to a very long history of injustice to this community.
It was a far overdue action on the part of justice in the social democracy that India is called. In the following paragraphs, I summarise the judgement of National Legal Services Authority v Union of India. The way the judgement is worded is crucial. It reminds us of what Indian constitutional values of equality, liberty and justice truly stands for.
Transgender is described as an umbrella term for persons whose gender identity and/or gender expression does not conform to their biological sex. It includes members from various sections of the community, hijras, eunuchs, kothis, aravanis, jogtas, kinnars etc. They are a socio-culturally and economically marginalized community facing utmost discrimination, oppression and exploitation. Discrimination is so large and pronounced in terms of education, employment, healthcare and social exclusion in every other sphere of living. They are even denied access to public toilets, shops, restaurants, theatres etc. Gender identity is integral to a person’s dignity and freedom. Forcing individuals to undergo medical sex reassignment, surgery, sterilization, hormonal therapy for legal recognition of their gender identity is against their right to self-determination. Non-recognition of gender identity makes them vulnerable to sexual assault, harassment, rape.
Non-recognition of gender identity leads to violation of the right to life and dignity. Discrimination based on gender identity is a denial of equality and freedom. Non-recognition of rights is also a violation of international law obligations.
The Universal Declaration of Human Rights recognizes all human beings as free and equal in dignity and rights. The Court aimed to broaden the scope of fundamental rights of the Indian Constitution by taking into consideration international covenants and principles, namely UDHR 1948, International Covenant on Civil and Political Rights 1966 (ICCPR) and Yogyakarta Principles. The Constitution has a living character with its interpretation being dynamic. It inheres liberal and substantive democracy which believe in the rule of law
Constitutional issues cannot be studied in a socio-economic vacuum since socio-cultural changes are the source of values and ideals. The social philosophy of the Constitution shapes creative judicial vision and orientation.
The concepts of social, political and economic justice, equality of status and opportunity and of assuring dignity of all individuals are incorporated in the Preamble of the Constitution. The basic principle of dignity and freedom of an individual is central to the idea of democracy. The legal recognition of a ‘third’ gender is in consonance with Article 14 which ensures right to equality and Article 21 that ensures right to life and human dignity.
The Court ordered the recognition of a ‘third gender’ beyond the gender binary for the purpose of safeguarding their rights enshrined in the Constitution. The right of self-determining their gender was upheld, even without mandatory medical transition. The Court directed the government to assist the socially and educationally backward community in education and employment. The Centre and State Governments should study and understand the deep and pervasive discrimination that prevails and take appropriate steps to address it. The government should ensure access to healthcare, public toilets for transgenders and devise social welfare schemes for them.
India is a country that follows the rule of law and thus Constitution confers basic rights to all citizens including equality before law and equal protection by law. Rule of law is social justice based on public order. The legal recognition of the third gender is essential not only for upholding rule of law but also to advance justice to this social class who had been denied basic human rights for decades.
Here’s remembering the struggles and hardships of all transgender persons, their sufferings, the lives that we have lost due to inaccessibility of justice. Here’s hoping for a better and brighter future for the community and a more free and equal society.