Hijras are neither men nor women and claim to be an institutional “third gender
In the present petition it was claimed by members of the transgender community (TG Community) that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India and accordingly, Hijras/Eunuchs falling in that group claimed legal status as a third gender with all legal and constitutional protection.
Transgender, as observed by Court, is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. It may also takes in persons who does not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in the present writ petition, describe themselves as “third gender”, not identifiable as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional “third gender”. Indian Law till the filing of present petition only recognized the concept two genders i.e. male and female, on the basis of person’s sex assigned by birth and permits gender system, including the law relating to marriage, adoption, inheritance, succession and taxation and welfare legislations.
As clarified, Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, equally entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as any other Indian Citizen would enjoy.
Further, the expression ‘sex’ as used in Articles 15 and 16 is not just limited to biological sex of male or female, but includes people who consider themselves to be neither male nor female. The freedom of expression guaranteed under Article 19(1)(a) of the Constitution includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc. The gender identity, thus, has to be protected under Article 19(1)(a).
A State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality and therefore the legal recognition of gender identity is part of right to dignity and freedom guaranteed under our Constitution.
Hijras belong to a distinct socio-religious and cultural group and have, therefore, to be considered as a “third gender”, apart from male and female.
The Court while holding the above gave following directions to safeguard the constitutional rights of the members of the TG community:
(1) Hijras, Eunuchs, apart from binary gender, to be treated as “third gender” for the purpose of safeguarding their rights under Part III of the Constitution and the laws made by the Parliament and the State Legislature.
(2) Centre and State Governments to grant legal recognitition of their gender identity such as male, female or as third gender.
(3) Centre and State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
(4) Centre and State Governments to operate separate HIV sero-survellance centres since hijras/ trans-genders face several sexual health issues.
(5) Centre and State Governments to seriously address the problems being faced by Hijras/Trans-genders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender to be held immoral and illegal.
(6) Centre and State Governments to take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments to take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments to take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments to take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.
[National Legal Services Authority vs. Union of India and others]