NALSA vs. Union of India: Birth of Transgender Rights



NALSA vs. Union of India: Birth of Transgender Rights

National Legal Services Authority v. Union of India is a landmark decision by the Supreme Court of India that declared Transgender people as the “Third Gender”. For a long time, Transgenders had been denied the fundamental right to equality as a gender granted under the Constitution of India. This judgment was a huge step towards providing gender equality to everyone in India. It gave a chance to many people of different sections of the society to identify under, if not male or female but under the third-gender. It was also held in the following judgment that because Transgenders had been treated with disdain and as a socially & economically backward class for so long, they would be granted reservation for admission to educational institutions and jobs.

The primary petitioner of the case was the National Legal Services Authority (NALSA), It had been constituted with the primary objective of providing free legal aid services to the disadvantaged sections of Indian society. There were other petitioners in the matter like, Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathy, a renowned Hijra activist.

The case was heard before a two-judge bench of the Supreme Court, composed of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri. The Court henceforth gave certain declarations in the judgment of the same as,

  1. For Legal Recognition for Third Gender, In recognizing the third gender category, the Court recognized that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc. would be discriminatory to the third gender.
  2. For Legal Recognition for Persons transitioning within male/female binary, As for how the actual procedure of recognition will happen, the Court merely stated that they preferred to follow the psyche of the person and use the "Psychological Test" as opposed to the "Biological Test". It was also declared that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one's gender is illegal.
  3. For Public Health and Sanitation, Centre and State Governments have been directed to take proper measures to provide medical care to Transgender people in the hospitals and also provide them with separate public toilets and other facilities. Further, they have been directed to operate separate HIV/Sero-surveillance measures for transgender people.
  4. For Socio-Economic Rights, Centre and State Governments have been asked to provide the community various social welfare schemes and to treat the community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments.
  5. For Stigma and Public Awareness, being the broadest directions: Centre and State Governments were asked to take steps to create public awareness so that Transgender people would feel that they were also a part and parcel of the social life and not be treated as untouchables
  6. Take measures to regain their respect and place in society
  7. Seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma.

After this judgment there has been the constitution of Ministry of Social Justice and Empowerment Expert Committee Report on Issues Relating to transgender people, to discuss the issues relating to Transgender Community such as social stigma, discrimination, lack of Education, public health care, employment opportunities, issue of various government documents, etc.

The Court declared that the Centre and State governments must grant recognition of gender identity as male, female or third gender in the eyes of the law. It was observed that Transgenders require full recognition in the eyes of the law. They should get to enjoy health care, education and other facilities.

The Court also ordered the government to specifically address the social and health problems faced by members of the third gender, including by providing targeted medical care, welfare schemes, separate public toilets and other facilities.

Basically, this judgment has been all-embracing and has resonated through the Indian society and may even necessitate changes to the Indian criminal, marital, and civil codes.

Taken hand in hand with the 2013 Naz Foundation judgment, however, the NALSA judgment raises at least as many questions as it answers regarding protection of constitutional rights of the members of the third gender and all the still unanswered questions related to Article 377.

Nevertheless, it is safe to say with this landmark judgment; things for the transgender community have improved for the better regardless there’s a lot more to do in regards to the progress of the transgender community.

 

National Legal Services Authority (NALSA)
Naz Foundation
Section 377 of IPC
Transgender

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