In the year 2012 an Indian statutory body, National Legal Service Authority (NALSA) filed a writ petition with the Supreme Court of India in order to protect the legal identity of the marginalized community in the society known as “Transgender”. NALSA constitutes a team of legal experts in order to provide appropriate legal representation to the community for fulfilling the sought objective. To provide support to this battle, a team of Non-governmental organizations also joined hands including a person identifying himself as Hijra.
Hijra is basically a term famously used in South- Asian countries to describe the transgender community. Transgender communities are people who either are hermaphrodites or castrated, or non-castrated men, who do not have any functionally reproductive organ of either sex. Transgender community though are a human beings but had to be the victim of non-conformity with rules and regulations in the same parlance with other genders.
A petition was filed with the Supreme Court of India demanding the to accord Transgenders with the same reverence as to any other gender of the society. Any non-confirmation of human rights to transgender’s only basis difference of gender is in violation of Article 14 and Article 21 of the Constitution of India.
Additional Solicitor General of India has also mentioned that there is a sense of understanding regarding the various issues faced by the transgender community.
1. Non-Conformity of transgenders rights with rights accorded to other genders in the society.
2. Protection of Article 14 and Article 21 of the Constitution of India.
The Honorable Supreme Court of India after studying and acquainting thoroughly with the background relating to transgender in the country observed that any person born with any gender decides it at its birth any no government or law should compel it to undergo a transformation to be accepted by the law in terms of gender identity. Such transformation by any person damages its dignity, self-respect and freedom of being a human being, no law pre-determined should play a role of compliance where such compliance will inflict reparation in a way degrading the quality of life. Any law made in the country should abide by the constitutional standards before being practised in the country, and such standards promote and propagate the basic inalienable rights that stand in the paramount interest of the nation. Article 14 and Article 21 of the Constitution of India provide the right of equality of law and equal protection of law to any person and right to life to any person and transgenes are included in the category when the word person was used instead of any specific gender.
Court also envisages the progressive nature of the jurisprudence of the other nations like the United Kingdom, United States of America, Australia and New Zealand with regards to their structure and system for the rights transsexual persons. The court, while citing the examples of the well-structured civil rights envisaged the need to abide with progressive form rights related to human beings.
The Honorable Supreme Court of India further providing in-depth insights into the interpretation of the Constitution of India states that article 19(2) also states that no restriction can be placed on one’s appearances or choice of dressing that further concludes a person being transgender is a part of its personalities, and no person of any authority with the due process of law restrict or prohibit a person practising its personalities.
Article 21 should not be interpreted in a narrower sense when states the right to life, it should be understood in a way that any right to life to any person should be in accordance with practising and living life with a meaning that derives from the self-determination of one’s gender.
The Honorable Supreme Court of India after observing and hearing the learned counsel reached a conclusion that in progressive jurisprudence transgender community apart from binary gender will be treated as the third gender. The basic rights provided by the constitution of India in part III will be provided to the transgender community, and they will be treated as the third gender while practising such rights. It also directs the state government to provide legal recognition to their gender identity such as male, female or as the third gender in all aspects of life.