National Legal Services Authority V. Union of India and Others

India`s Supreme Court has granted a petition on behalf of the country`s transgender community, ruling that the right to express one`s identity in a non-binary gender is an essential element of freedom of expression. He called on the government to legally recognize the third gender so that individuals can identify as male, female or third gender. It also called on the government to take the necessary measures to eliminate social stigma, promote specific health programs for transgender people and provide them with equal legal protection. In its judgment, the Court discussed at length the progressive jurisprudence of other countries such as the United Kingdom, Australia, New Zealand and the United States on the recognition of the fundamental rights of transgender people. He said it was necessary for India to respect international human rights conventions and non-binding principles, as the country does not have “appropriate laws to protect the rights of members of the transgender community”. Consequently, the Court interpreted the Indian Constitution in the light of human rights conventions and principles. She referred to Article 14, which states that “the State shall not deny to any person equality before the law or equal protection of the laws in the territory of India”. The court ruled that the article grants protection to “every person”: “Transgender people who are neither men nor women fall under the term `person` and are therefore entitled to the legal protection of laws in all areas of state activity, including employment, health care, education, and the equal civil rights enjoyed by any other citizen of this country. NALSA v. Union of India & Ors concerns both national and international laws and conventions. As I mentioned earlier, it is not only Kushal`s legal illogic that is opposed to this decision, but also to his apathy. From Justice Radhakrishnan`s introductory lines, which speak of the moral failure of society`s reluctance to contain or adopt different gender identities and expressions, to Judge Siri`s recognition of the painful process of transition from one gender to another, it is a text imbued with empathy. In Anuj Garg v.

Hotel Association of India,2 the court held that personal autonomy includes both negative and positive rights. Negative law includes the right not to be disturbed by others, and positive law includes making decisions about their lives, the ability to express themselves, and the choice of activities they want to participate in. The essential part of personal autonomy and self-expression is the self-determination of sex and falls within the scope of article 21 of the Constitution. The Court upheld the right of every person to identify his or her own sex. In addition, he said hijras and eunuchs can legally identify themselves as a “third sex.” In 2013, the Ministry of Social Justice and Empowerment formed an expert committee to thoroughly examine the issues facing the transgender community and propose government action. The Committee`s report contains detailed recommendations on combating discrimination against transgender people at different levels, which are not explicitly addressed in the judgment itself. However, the decision requires that the recommendations themselves be examined on the basis of the legal explanations it has provided and implemented within six months. The scale of the judgments can then be a useful aid to the meaningful implementation of these recommendations.

Respondents noted, however, that the state has established an “Expert Panel on Transgender Issues” that reviews all kinds of opinions to help transgender people live more prosperous and dignified lives. They also stated that the committee would also take into account the views of petitioners in order to formulate a more robust policy in this regard. Several states and union territories have argued that they have taken a significant number of steps to improve the lives of the transgender community. Before turning to the constitutional prejudice found by the Court, mention should be made of the important step in paragraph 53 of the judgment: any international convention which is not contrary to fundamental rights and which is in conformity with their spirit must be interpreted in these provisions, for example: B.: Articles 14, 15, 19 and 21 of the Constitution in order to broaden the meaning and content and to promote the objective of constitutional guarantee. The previously discussed principles on TGs and international conventions, including the Yogyakarta Principles, which we believe do not conflict with the various fundamental rights guaranteed by the Indian Constitution, must be recognized and followed. The right to dignity, the right to privacy, the right to personal autonomy, etc., are guaranteed and safeguarded by article 21 of the Constitution. Legal recognition of gender identity is part of the constitutional right to dignity and liberty. The people of the third community have every right to live their lives with dignity and nobly. The National Legal Services Authority of India (NALSA) was the lead applicant. It was established with the main purpose of providing free legal aid to disadvantaged groups in Indian society. [5] The other applicants in this case were the Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered company and NGO, and Laxmi Narayan Tripathy, a well-known Hijra activist.

[6] In 2012, the National Legal Services Authority, an Indian body representing marginalized segments of society, filed a written petition with the Supreme Court of India. The petition was joined by a non-governmental organization representing the Kinnar transgender community and a person who identified himself as Hijra. This case was filed by the National Legal Services Authority of India (NALSA) to legally recognize people who do not fall under the male/female gender binary, including people who identify as “third gender”. After discussing the historical context of transgender people in India, the Supreme Court confirmed that gender identity and sexual orientation include transgender people and that “a person`s self-defined sexual orientation and gender identity are integral to their personality and constitute one of the most fundamental aspects of self-determination, dignity and freedom, And no one should be forced to undergo medical procedures. […] as a precondition for the legal recognition of their gender identity.” [para. 20] She then referred to relevant international human rights standards, in particular the Yogyakarta Principles, which state: “People of all sexual orientations and gender identities have the right to the full enjoyment of all human rights.” [para. 22] The petition demanded a legal declaration of her gender identity as attributed at the time of her birth and that the non-recognition of her gender identity violated Articles 14 and 21 of the Indian Constitution. The transgender community has insisted that their inability to express themselves in terms of binary gender deprives them of equal protection by law and social welfare.

They also prayed for legal protection as a backward community, as well as the right to express their self-identified gender in forms of government. NALSA`s petition seeks to recognize the gender of the transgender community. Laxmi Narayan Tripathi pleaded in court for their gender to be recognized as a third gender, so that they also enjoy the rights and freedoms enjoyed by all other citizens of the country. It has also been argued that if they are rejected as a third gender, it deprives them of their legal rights to choose and practice their sexual orientation. A coalition of human rights organizations, including the International Law Commission and the International Service for Human Rights, has developed a set of international legal principles to address human rights violations based on gender identity and sexual orientation. This is the kind of explanation that gives diverse marginalized communities a virtual roadmap of rights enforceable by the courts in the future. For this judgment, it assists the Court in situating in Article 14 the right of hijras/transgender persons to legal protection in all areas of State activity and in recognising gender identity as a prohibited ground of discrimination under Articles 15 and 16.

× How can I help you?