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In the last two parts (Part I and Part II), we understood the manner in which court appreciated the difference between gender identity and sexual orientation. We also understood the meaning of the term ‘transgender’, their history during the British Raj, HIV Prevalence, Constitutional Provisions and Important Case Laws relating to this topic. Let us now understand the view of the court with respect to the Fundamental Rights of the Transgender Community.
Article 14 and Transgenders
The court said that the
petitioners gave sufficient facts and records to show that, despite
constitutional guarantee of equality, Hijras/transgender persons have been
facing extreme discrimination in all spheres of the society.
I found some of these reasons to
be particularly compelling.
1. Non-recognition of identity of
Hijras /transgender persons results in them facing extreme discrimination in
all spheres of society, especially in the field of employment, education,
healthcare etc.
2. Hijras/transgender persons
face huge discrimination in access to public spaces like restaurants,
cinemas, shops, malls etc.
3. Further, access to public
toilets is also a serious problem they face quite often. Since, there are no
separate toilet facilities for Hijras/transgender persons, they have to use
male toilets where they are prone to sexual assault and harassment.
The Court finally said that discrimination
on the ground of sexual orientation or gender identity impairs equality before
law and equal protection of law and violates Article 14 of the Constitution of
India.
Article 15 & 16 and
Transgenders
We know that Articles 15 and 16
sought to prohibit discrimination on the basis of sex, recognizing that sex
discrimination is a historical fact and needs to be addressed. The court
said that both gender and biological attributes constitute distinct components
of sex. Biological characteristics, of course, include genitals,
chromosomes and secondary sexual features, but gender attributes include one’s
self image, the deep psychological or emotional sense of sexual identity and character.
The discrimination on the ground of ‘sex’ under Articles 15 and 16,
therefore, includes discrimination on the ground of gender identity. The 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.
The court also said that TGs
have been systematically denied the rights under Article 15(2) that is not to
be subjected to any disability, liability, restriction or condition in regard
to access to public places. The court also believed that TGs are extremely
poor and shunned from the society and hence are legally entitled and eligible
to get the benefits of SEBC (Socially and Educationally Backward Classes).
The court drew the analogy that
since TGs are a socially and educationally backward class, they must be given
reservation in the matters of appointment under article 16 (4). Article 16 (4) stipulates
that the State can make any provisions for the reservation of appointments or
posts in favour of any backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under the State.
Article 19 and Transgenders
The court said that Article 19(1)
(a) of the Constitution 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. The court quoted following excerpts from some
foreign judgments to explain its thoughts on this issue.
1. “the notion that the State can regulate one’s personal
appearance, unconfined by any constitutional strictures whatsoever, is fundamentally
inconsistent with “values of privacy, self-identity, autonomy and personal integrity
that ….. the Constitution was designed to protect.[1]”.
2. “by dressing in clothing
and accessories traditionally associated with the female gender, she is
expressing her identification with the gender. In addition, plaintiff’s ability
to express herself and her gender identity through dress is important for her health
and well-being. Therefore, plaintiff’s expression is not merely a personal
preference but a necessary symbol of her identity.[2]”.
The Court further said that Self-identified
gender can be expressed through dress, words, action or behaviour or any other
form. No restriction can be placed on one’s personal appearance or choice of dressing,
subject to the restrictions contained in Article 19(2) of the Constitution. A
transgender’s personality could be expressed by the transgender’s behaviour and
presentation. State cannot prohibit, restrict or interfere with a transgender’s
expression of such personality, which reflects that inherent personality.
The court finally held that the freedom
of expression guaranteed under Article 19(1) (a) includes the freedom to
express one’s chosen gender identity through varied ways and means by way of expression,
speech, mannerism, clothing etc.
Article 21 and Transgenders
In Francis Coralie Mullin
v. Administrator, Union Territory of Delhi[3],
the Supreme Court held that the 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 and comingling with fellow human beings”.
In the present case, the Court
said that “recognition of one’s gender identity lies at the heart of the
fundamental right to dignity. Gender, as already indicated above, constitutes
the core of one’s sense of being as well as an integral part of a person’s
identity. Legal recognition of gender identity is, therefore, part of right to dignity
and freedom guaranteed under our Constitution.”
Legal Recognition of the Third
Gender
After providing the
above-mentioned reasoning, the court said that Articles 14, 15, 16, 19 and 21 indicate
that our Constitution does not exclude Hijras/Transgenders from its ambit, but
Indian law on the whole recognizes the paradigm of binary genders of male and
female, based on one’s biological sex.
Binary notion of gender reflects
in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws
related to marriage, adoption, divorce, inheritance, succession and other
welfare legislations like NAREGA, 2005, etc. Non-recognition of the identity
of Hijras/Transgenders in the various legislations denies them equal protection
of law and they face wide-spread discrimination.
We also see that article 14, 15,
16, 19 and 21 use either the term “person” or “citizen” or “sex”. All these
expressions, which are “gender neutral” evidently refer to human-beings.
Finally, the court held that Gender
identity as already indicated forms the core of one’s personal self, based on
self-identification, not on surgical or medical procedure.
To be Continued....
[1] The
Supreme Court of the State of Illinois in the City of Chicago v. Wilson et
al., 75 III.2d 525(1978).
[2] The
Superior Court of Massachusetts in Doe v. Yunits et al., 2000 WL33162199
(Mass. Super.).
[3] (1981)
1 SCC 608 (paras 7 and 8).
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