Supreme Court of India Recognizes Transgender Persons as Third Gender, Upholds Right to Self-Determined Gender Identity

Landmark Judgment Directs Central and State Governments to Ensure Equal Rights, Affirmative Action, and Social Welfare for Transgender Community

In a historic and pathbreaking judgment delivered on April 15, 2014, the Supreme Court of India in the case of National Legal Services Authority v. Union of India unequivocally recognized transgender persons, including Hijras and Eunuchs, as a "third gender" distinct from male and female. The apex court upheld the fundamental rights of transgender individuals under Articles 14, 15, 16, 19, and 21 of the Constitution of India, guaranteeing them equality before the law, freedom from discrimination, and protection of life and personal liberty with dignity.

The Court acknowledged the deep-rooted social stigma, discrimination, violence, and exclusion faced by the transgender community in education, employment, health care, and access to public spaces. Highlighting the historical background of transgender identities in India, including references to the Vedic and Puranic texts and Hindu mythology, the Court lamented the regression of their status under colonial-era laws like the Criminal Tribes Act, 1871, and Section 377 of the Indian Penal Code, which were often misused to harass and criminalize transgender persons.

Rejecting the outdated "biological test" for gender classification, the Court embraced a "psychological test," recognizing the intrinsic right of individuals to self-identify their gender. It declared that persons who undergo Sex Re-Assignment Surgery (SRS) have the constitutional right to have their gender legally recognized in accordance with their self-identified gender, which becomes their physical form.

The Court issued comprehensive directions to the Central and State Governments, mandating:

- Legal recognition of transgender persons' self-identified gender as male, female, or third gender.

- Classification of transgender persons as socially and educationally backward classes, entitling them to reservations in educational institutions and public employment.

- Establishment of separate HIV Sero-surveillance Centers to address sexual health issues prevalent in the community.

- Provision of medical care, including counseling and facilities sensitive to transgender persons’ needs.

- Creation of separate public toilets and other facilities for transgender persons.

- Formulation and implementation of social welfare schemes to improve their socio-economic status.

- Efforts to raise public awareness to combat stigma and ensure inclusion, restoring the respect and cultural place historically accorded to transgender persons.

The judgment emphasized that discrimination based on sexual orientation or gender identity violates the constitutional guarantee of equality and equal protection of laws. It called for affirmative action and social justice measures to rectify centuries of marginalization. The Court also held that no person should be forced to undergo SRS or any medical procedure as a prerequisite for legal gender recognition, deeming such insistence immoral and illegal.

The Court’s decision aligns with international human rights principles, including the Yogyakarta Principles and various United Nations conventions, and draws on progressive judicial pronouncements from countries like the United Kingdom, Australia, and Nepal. It reflects a global trend toward recognizing and protecting the rights of transgender persons as a vulnerable and marginalized community.

This judgment is a milestone in Indian constitutional jurisprudence, affirming the dignity, identity, and fundamental rights of transgender persons and directing the state to take proactive measures for their welfare and inclusion in society.

Statutory provisions

Articles 14, 15, 16, 19, 21, 253 of the Constitution of India; Criminal Tribes Act, 1871 (repealed); Indian Penal Code Section 377 (contextual reference)

National Legal Services Authority v. Union of India (SC) : Law Finder Doc Id # 542496