The Hon’ble Supreme Court of India in the case of NALSA v. Union of India, a case concerning the grievances of the transgender community seeking legal declaration of their chosen gender identity rather than the one assigned to them as male or female, held that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India.
The Court exhaustively dealt with various International human rights instruments to bring forth the rights enjoyed by the transgender community. Reference was drawn to Article 1 of Universal Declaration of Human Rights (UDHR) which states that all human beings are born free and equal. Article 3 of UDHR states that everyone has a right to life, liberty and security of person. Article 6 of UDHR, 1948 and Article 16 of International Covenant on Civil and Political Rights (ICCPR), 1966 which recognises the inherent right to life of every human being and also imposes responsibility on the states not to deny arbitrarily anyone of this right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 5 of the UDHR and Article 7 of the ICCPR provide that no one shall be subjected to torture or to cruel inhuman or degrading treatment or punishment. Further, Article 12 of UDHR and Article 17 of the ICCPR state that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks. Yogyakarta Principles on the application of International Human Rights Law, in relation to Sexual Orientation and Gender Identity, address a broad range of human rights standards and their application to issues of sexual orientation and gender identity. Yogyakarta Principles talks about the right to universal enjoyment of human rights, the right to equality and non-discrimination, the right to recognition before the law, the right to life, the right to privacy, the right to treatment with humanity while in detention, protection from medical abuses, the right to freedom of opinion and expression among others.
The Court further went ahead and established that by virtue of Article 51 read with Article 253 of the Constitution, one of the interpretations would mean that in the absence of any contrary law, the municipal courts have to respect the rules of international law. The Court added that hence in pursuance of India’s international obligations which are not inconsistent with fundamental rights, these should be duly provided to transgenders.
After referring to judgements and legislations in various comparative jurisdictions, the Hon’ble Supreme Court was of the view that Art. 14 of the Constitution ensures equal protection and hence imposes a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including transgenders may enjoy equal protection of laws and nobody is denied such protection.
Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’, therefore, both the Articles prohibit all forms of gender bias and gender based discrimination.
Art 19 (1) guarantees those great basic freedoms which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country. Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which is inclusive of one’s right to expression of their self-identified gender. Self-identified gender can be expressed through dress, words, action or behaviour or any other form.
Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. 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. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, 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 the right to dignity and freedom guaranteed under our Constitution.
In Arunkumar v. IG of Registration, Chennai & Ors. (2019), the Madras High Court held that a marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same.
there seems to be no reason why a transgender must be denied of basic human rights which includes right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right against discrimination. The Constitution has fulfilled its duty of providing rights to transgenders. Now it is time for us to recognise this and to extend and interpret the Constitution in such a manner to ensure a dignified life for transgender people.
CRITICAL ANALYSIS OF THE ACT
Recently, the much awaited Transgender Persons (Protection of Rights) Act, 2019 was passed by the Parliament of India. Certain highlights of the bill include :
a) Prohibition of Discrimination (Section 3)
b) Recognition of Identity of Transgender Persons (Section 4-7)
c) Welfare measures by the Government to create an inclusive society, welfare schemes for creating sensitization, rescue, protection and rehabilitation (Section 8)
d) Obligation on establishment not to discriminate in matters relating to employment including, but not limited to, recruitment, promotion and other related issues, also, designated complaint officers to deal with matters relating to violations of the Act (Section 9-12)
e) Education, Social Security and Health of Transgenders to provide for medical care facility including sex reassignment surgery and hormonal therapy; before and after sex reassignment surgery and hormonal therapy counselling; bring out a Health Manual related to sex reassignment surgery in accordance with the World Profession Association for Transgender Health guidelines; review of medical curriculum and research for doctors to address their specific health issues; to facilitate access to transgender persons in hospitals and other healthcare institutions and centres; provision for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons. (Section 13-15)
f) National Council for Transgender Persons (Section 16-17)
g) Offences and Penalties (Section 18)
Though the Act incorporates the fundamental human rights principle of non-discrimination and self-perceived gender identity, but, the Act seems to fail to portray the same sentiments as that of the decision rendered in NALSA judgment. The Act provides under Section 6 that the district magistrate has to issue a certificate of identity as a transgender person. Further, Section 7 states that if after the issue of a certificate under sub-section (1) of section 6, a transgender person undergoes surgery to change gender either as a male or female, such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for revised certificate, in such form and manner as may be prescribed, then, the District Magistrate shall, on receipt of an application along with the certificate issued by the Medical Superintendent or Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating change in gender in such form and the manner and within such time, as may be prescribed. This seems to put an unnecessary procedural requirement in the form of having a certificate issued specifically for the purpose of being identified as a transgender. This goes against the very dicta of the court in the past and the nature of rights to be guaranteed to the transgenders in form of having an identity irrespective of any affirmations from any authority (against self-determination) . The Act also nowhere encompasses or focuses on reservations in educational institutions and public employment, but only talks about all-inclusive education for transgenders and non-discrimination in matters related to employment in any establishment. The Act fails to focus on the very primary socio-legal issues surrounding transgenders and their rights in the country. The Act very superficially and hypothetically deals with very sensitive issues related to transgenders. The Act though provides for coverage of medical expenses by a comprehensive insurance scheme for Sex Reassignment Surgery, hormonal therapy, laser therapy or any other health issues of transgender persons but fails to specify any mode or mechanism for the same. The Act at many instances refer to welfare schemes, but there is no clarity with regard to the implementation and distribution of funds for the same. The Act fails to address the very primary and fundamental issues regarding having a gender-inclusive society guaranteeing the rights and liberties of transgenders. The Act only seems to be a very hastily the drafted document which is based on the utopian state of affairs when it comes to transgender rights in the country. Even after the Supreme Court and various High Court decisions, the socio-legal issues seems to be a huge impediment in the fight by transgenders and there is still a long way to go for achieving the end-goal of having a sensitive society and legal system in place, where transgenders need no longer have to raise their voices or suffer in anguish for the protection of their Constitutionally guaranteed basic fundamental rights.
The aforesaid act came to force on 10th January, 2020, however, to add on to their woes, the Government recently released the draft rules under the Act (the copy of the draft is available on the website of Ministry of Social Justice and Empowerment). The draft was initially released on 18th April, 2020 and the last date of receiving comments and public reviews was kept on 30th April, 2020, however, later they extended it till 18th May, 2020. However, the constitutional validity of the Act has been challenged before the Supreme Court, on the loopholes mentioned above, the challenge thus, rests on the grounds of self-determination, equality, non-discrimination, right to privacy amongst others. Though the Supreme Court has sought response from the Central Government on the aforementioned issue, it is yet to seen that how the Apex Court of the country reacts to this regressive piece of legislation which suffers from the vice of arbitrariness and vagueness and tries to deliberate on the nuances surrounding rights of transgenders in the country, no doubt, it will have a much bigger challenge/impediment in form of NALSA judgment.
Neha Tripathi and Soumya Rajsingh are both Assistant Professors (Law) at the Maharashtra National Law University, Aurangabad.
 Also see, Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608
 Id.Disclaimer: The views or opinions expressed are solely of the author.