NALSA v. UOI [AIR 2014 SC 1863]

It legally acknowledged non-binary gender identifications and upheld transgender people’s fundamental rights in India.

Bench – K.S Radhakrishnan and AK Sikri.

Facts – The case involves legal gender acknowledgement of transgender people and whether the absence of legal initiatives to satisfy the requirements of people who do not explicitly recognise as per binary genders violates the Constitution. The Indian law and legislations at that time only recognised binary genders and made no provision for transgender individual’s rights.

As a result, the National Legal Services Authority of India (NALSA) registered a lawsuit to legally recognise people who do not fit into the male/female gender binary, including those who recognise themselves as “third gender.”

Issues – 

  • Whether an individual born as male with dominance of female orientation, or in the case of vice versa, has the right to be considered as a female of choice or not?
  • Whether individual who has gone through a proceedure for changing his sex, be recognised as the post-operational sex or not?
  • Whether an individual who is transgender has the right to be recognised and classified as a third gender or not?

Judgment – The Apex Court relied upon the recommendations provided by the “Expert Committee on Issues of Transgender” which had been constituted by the Ministry of Social Justice and Empowerment for the purpose of creating its judgement regarding this case.According to the court, people belonging to the transgender community are entitled to their fundamental rights under the Constitution as well as under multiple International laws. Therefore the court recognised them as third gender as well as directed State Authorities for initiation to develop a mechanism for achieving the rights of third gender individuals.

Regarding the identification of third gender individuals and its definition, the Court ruled that all individuals have the right to self-identify themselves as the third gender.  The court also stated that hijras and eunuchs have the right to recognise themselves as third gender, legally. The court of law made it clear that gender identity of an individual does not only confer biological characteristics. Furthermore, it was decided that clinical examinations or tests on a third gender individual shall be considered as an invasion to their right to privacy.

As per the court, every individual including third gender individuals have the right to live dignifiedly under Article 21 which includes the diversity in self-expression. It was declared by the court that gender identity and the right to identify one’s gender falls within the purview of dignity under Article 21. The court also ruled that while making the provisions of Article 14 and Article 19 (1) (a), implying to right to quality and right to freedom of expression, the constitutional makers implied gender neutral terms and hence they extend to transgender individuals as well.

It was declared by the court that discrimination on the basis of gender is prohibited under Article 15 and 16 of the Constitution and the word “sex” in those articles does not only confer to biological characteristics but also includes “gender” which is an individual self-perception. Therefore it was ruled that discrimination on the basis of sex includes any discrimination on the basis of gender identity. 

Thus applying Article 14, 15, 16, 19 (1) (a) and 21, the court decided that non-binary gender identities shall also be recognised as third gender and have the same rights as with binary gender individuals. Further dictating the Centre and State Authorities to make provisions for the said legal recognition and the upliftment and protection of rights of the community.

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