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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.400 OF 2012

National Legal Services Authority …

Petitioner

Versus

Union of India and others …

Respondents

WITH

WRIT PETITION (CIVIL) NO.604 OF 2013

J U D G M E N T

K.S. Radhakrishnan, J.

1.Seldom, our society realizes or cares to realize the

trauma, agony and pain which the members of

Transgender community undergo, nor appreciates the

innate feelings of the members of the Transgender

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community, especially of those whose mind and body

disown their biological sex. Our society often ridicules and

abuses the Transgender community and in public places

like railway stations, bus stands, schools, workplaces,

malls, theatres, hospitals, they are sidelined and treated

as untouchables, forgetting the fact that the moral failure

lies in the society’s unwillingness to contain or embrace

different gender identities and expressions, a mindset

which we have to change.

2.We are, in this case, concerned with the grievances

of the members of Transgender Community (for short ‘TG

community’) who seek a legal declaration of their gender

identity than the one assigned to them, male or female, at

the time of birth and their prayer is that non-recognition of

their gender identity violates Articles 14 and 21 of the

Constitution of India. Hijras/Eunuchs, who also fall in that

group, claim legal status as a third gender with all legal

and constitutional protection.

3.The National Legal Services Authority, constituted

under the Legal Services Authority Act, 1997, to provide

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free legal services to the weaker and other marginalized

sections of the society, has come forward to advocate

their cause, by filing Writ Petition No. 400 of 2012.

Poojaya Mata Nasib Kaur Ji Women Welfare Society, a

registered association, has also preferred Writ Petition No.

604 of 2013, seeking similar reliefs in respect of Kinnar

community, a TG community.

4.Laxmi Narayan Tripathy, claimed to be a Hijra, has

also got impleaded so as to effectively put across the

cause of the members of the transgender community and

Tripathy’s life experiences also for recognition of their

identity as a third gender, over and above male and

female. Tripathy says that non-recognition of the identity

of Hijras, a TG community, as a third gender, denies them

the right of equality before the law and equal protection of

law guaranteed under Article 14 of the Constitution and

violates the rights guaranteed to them under Article 21 of

the Constitution of India.

5.Shri Raju Ramachandran, learned senior counsel

appearing for the petitioner – the National Legal Services

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Authority, highlighted the traumatic experiences faced by

the members of the TG community and submitted that

every person of that community has a legal right to decide

their sex orientation and to espouse and determine their

identity. Learned senior counsel has submitted that since

the TGs are neither treated as male or female, nor given

the status of a third gender, they are being deprived of

many of the rights and privileges which other persons

enjoy as citizens of this country. TGs are deprived of

social and cultural participation and hence restricted

access to education, health care and public places which

deprives them of the Constitutional guarantee of equality

before law and equal protection of laws. Further, it was

also pointed out that the community also faces

discrimination to contest election, right to vote,

employment, to get licences etc. and, in effect, treated as

an outcast and untouchable. Learned senior counsel also

submitted that the State cannot discriminate them on the

ground of gender, violating Articles 14 to 16 and 21 of the

Constitution of India.

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6.Shri Anand Grover, learned senior counsel appearing

for the Intervener, traced the historical background of the

third gender identity in India and the position accorded to

them in the Hindu Mythology, Vedic and Puranic

literatures, and the prominent role played by them in the

royal courts of the Islamic world etc. Reference was also

made to the repealed Criminal Tribes Act, 1871 and

explained the inhuman manner by which they were

treated at the time of the British Colonial rule. Learned

senior counsel also submitted that various International

Forums and U.N. Bodies have recognized their gender

identity and referred to the Yogyakarta Principles and

pointed out that those principles have been recognized by

various countries around the world. Reference was also

made to few legislations giving recognition to the trans-

sexual persons in other countries. Learned senior counsel

also submitted that non-recognition of gender identity of

the transgender community violates the fundamental

rights guaranteed to them, who are citizens of this

country.

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7.Shri T. Srinivasa Murthy, learned counsel appearing

in I.A. No. 2 of 2013, submitted that transgender persons

have to be declared as a socially and educationally

backward classes of citizens and must be accorded all

benefits available to that class of persons, which are being

extended to male and female genders. Learned counsel

also submitted that the right to choose one’s gender

identity is integral to the right to lead a life with dignity,

which is undoubtedly guaranteed by Article 21 of the

Constitution of India. Learned counsel, therefore,

submitted that, subject to such

rules/regulations/protocols, transgender persons may be

afforded the right of choice to determine whether to opt

for male, female or transgender classification.

8.Shri Sanjeev Bhatnagar, learned counsel appearing

for the petitioner in Writ Petition No.604 of 2013,

highlighted the cause of the Kinnar community and

submitted that they are the most deprived group of

transgenders and calls for constitutional as well as legal

protection for their identity and for other socio-economic

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benefits, which are otherwise extended to the members of

the male and female genders in the community.

9.Shri Rakesh K. Khanna, learned Additional Solicitor

General, appearing for the Union of India, submitted that

the problems highlighted by the transgender community is

a sensitive human issue, which calls for serious attention.

Learned ASG pointed out that, under the aegis of the

Ministry of Social Justice and Empowerment (for short

“MOSJE”), a Committee, called “Expert Committee on

Issues relating to Transgender”, has been constituted to

conduct an in-depth study of the problems relating to

transgender persons to make appropriate

recommendations to MOSJE. Shri Khanna also submitted

that due representation would also be given to the

applicants, appeared before this Court in the Committee,

so that their views also could be heard.

10.We also heard learned counsel appearing for various

States and Union Territories who have explained the steps

they have taken to improve the conditions and status of

the members of TG community in their respective States

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and Union Territories. Laxmi Narayan Tripathy, a Hijra,

through a petition supported by an affidavit, highlighted

the trauma undergone by Tripathy from Tripathy’s birth.

Rather than explaining the same by us, it would be

appropriate to quote in Tripathy’s own words:

“That the Applicant has born as a male. Growing

up as a child, she felt different from the boys of

her age and was feminine in her ways. On

account of her femininity, from an early age, she

faced repeated sexual harassment, molestation

and sexual abuse, both within and outside the

family. Due to her being different, she was

isolated and had no one to talk to or express her

feelings while she was coming to terms with her

identity. She was constantly abused by everyone

as a ‘chakka’ and ‘hijra’. Though she felt that

there was no place for her in society, she did not

succumb to the prejudice. She started to dress

and appear in public in women’s clothing in her

late teens but she did not identify as a woman.

Later, she joined the Hijra community in Mumbai

as she identified with the other hijras and for the

first time in her life, she felt at home.

That being a hijra, the Applicant has faced

serious discrimination throughout her life

because of her gender identity. It has been clear

to the Applicant that the complete non-

recognition of the identity of hijras/transgender

persons by the State has resulted in the violation

of most of the fundamental rights guaranteed to

them under the Constitution of India….”

Siddarth Narrain, eunuch, highlights Narrain’s

feeling, as follows:

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”Ever since I can remember, I have always

identified myself as a woman. I lived in

Namakkal, a small town in Tamil Nadu. When I

was in the 10

th

standard I realized that the only

way for me to be comfortable was to join the

hijra community. It was then that my family

found out that I frequently met hijras who lived in

the city. One day, when my father was away, my

brother, encouraged by my mother, started

beating me with a cricket bat. I locked myself in

a room to escape from the beatings. My mother

and brother then tried to break into the room to

beat me up further. Some of my relatives

intervened and brought me out of the room. I

related my ordeal to an uncle of mine who gave

me Rs.50 and asked me to go home. Instead, I

took the money and went to live with a group of

hijras in Erode.”

Sachin, a TG, expressed his experiences as follows:

“My name is Sachin and I am 23 years old. As a

child I always enjoyed putting make-up like

‘vibhuti’ or ‘kum kum’ and my parents always

saw me as a girl. I am male but I only have

female feelings. I used to help my mother in all

the housework like cooking, washing and

cleaning. Over the years, I started assuming

more of the domestic responsibilities at home.

The neighbours starting teasing me. They would

call out to me and ask: ‘Why don’t you go out

and work like a man?’ or ‘Why are you staying at

home like a girl?’ But I liked being a girl. I felt

shy about going out and working. Relatives

would also mock and scold me on this score.

Every day I would go out of the house to bring

water. And as I walked back with the water I

would always be teased. I felt very ashamed. I

even felt suicidal. How could I live like that?

But my parents never protested. They were

helpless.”

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We have been told and informed of similar life

experiences faced by various others who belong to the TG

community.

11. Transgender is generally described as an umbrella

term for persons whose gender identity, gender expression

or behavior does not conform to their biological sex. TG

may also takes in persons who do not identify with their

sex assigned at birth, which include Hijras/Eunuchs who, in

this writ petition, describe themselves as “third gender”

and they do not identify 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”.

Among Hijras, there are emasculated (castrated, nirvana)

men, non-emasculated men (not castrated/akva/akka) and

inter-sexed persons (hermaphrodites). TG also includes

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persons who intend to undergo Sex Re-Assignment

Surgery (SRS) or have undergone SRS to align their

biological sex with their gender identity in order to become

male or female. They are generally called transsexual

persons. Further, there are persons who like to cross-dress

in clothing of opposite gender, i.e transvestites.

Resultantly, the term “transgender”, in contemporary

usage, has become an umbrella term that is used to

describe a wide range of identities and experiences,

including but not limited to pre-operative, post-operative

and non-operative transsexual people, who strongly

identify with the gender opposite to their biological sex;

male and female.

HISTORICAL BACKGROUND OF TRANSGENDERS IN

INDIA:

12.TG Community comprises of Hijras, eunuchs, Kothis,

Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a

group, have got a strong historical presence in our country

in the Hindu mythology and other religious texts. The

Concept of tritiya prakrti or napunsaka has also been an

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integral part of vedic and puranic literatures. The word

‘napunsaka’ has been used to denote absence of

procreative capability.

13.Lord Rama, in the epic Ramayana, was leaving for the

forest upon being banished from the kingdom for 14 years,

turns around to his followers and asks all the ‘men and

women’ to return to the city. Among his followers, the

hijras alone do not feel bound by this direction and decide

to stay with him. Impressed with their devotion, Rama

sanctions them the power to confer blessings on people on

auspicious occasions like childbirth and marriage, and also

at inaugural functions which, it is believed set the stage for

the custom of badhai in which hijras sing, dance and

confer blessings.

14.Aravan, the son of Arjuna and Nagakanya in

Mahabharata, offers to be sacrificed to Goddess Kali to

ensure the victory of the Pandavas in the Kurukshetra war,

the only condition that he made was to spend the last

night of his life in matrimony. Since no woman was

willing to marry one who was doomed to be killed, Krishna

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assumes the form of a beautiful woman called Mohini and

marries him. The Hijras of Tamil Nadu consider Aravan

their progenitor and call themselves Aravanis.

15.Jain Texts also make a detailed reference to TG which

mentions the concept of ‘psychological sex’. Hijras also

played a prominent role in the royal courts of the Islamic

world, especially in the Ottaman empires and the Mughal

rule in the Medieval India. A detailed analysis of the

historical background of the same finds a place in the book

of Gayatri Reddy, “With Respect to Sex: Negotiating Hijra

Identity in South India” – Yoda Press (2006).

16.We notice that even though historically,

Hijras/transgender persons had played a prominent role,

with the onset of colonial rule from the 18

th

century

onwards, the situation had changed drastically. During

the British rule, a legislation was enacted to supervise the

deeds of Hijras/TG community, called the Criminal Tribes

Act, 1871, which deemed the entire community of Hijras

persons as innately ‘criminal’ and ‘addicted to the

systematic commission of non-bailable offences’. The Act

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provided for the registration, surveillance and control of

certain criminal tribes and eunuchs and had penalized

eunuchs, who were registered, and appeared to be

dressed or ornamented like a woman, in a public street or

place, as well as those who danced or played music in a

public place. Such persons also could be arrested without

warrant and sentenced to imprisonment up to two years or

fine or both. Under the Act, the local government had to

register the names and residence of all eunuchs residing in

that area as well as of their properties, who were

reasonably suspected of kidnapping or castrating children,

or of committing offences under Section 377 of the IPC, or

of abetting the commission of any of the said offences.

Under the Act, the act of keeping a boy under 16 years in

the charge of a registered eunuch was made an offence

punishable with imprisonment up to two years or fine and

the Act also denuded the registered eunuchs of their civil

rights by prohibiting them from acting as guardians to

minors, from making a gift deed or a will, or from adopting

a son. Act has, however, been repealed in August 1949.

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17.Section 377 of the IPC found a place in the Indian

Penal Code, 1860, prior to the enactment of Criminal

Tribles Act that criminalized all penile-non-vaginal sexual

acts between persons, including anal sex and oral sex, at a

time when transgender persons were also typically

associated with the prescribed sexual practices.

Reference may be made to the judgment of the Allahabad

High Court in Queen Empress v. Khairati (1884) ILR 6

All 204, wherein a transgender person was arrested and

prosecuted under Section 377 on the suspicion that he was

a ‘habitual sodomite’ and was later acquitted on appeal.

In that case, while acquitting him, the Sessions Judge

stated as follows:

“This case relates to a person named Khairati,

over whom the police seem to have exercised

some sort of supervision, whether strictly regular

or not, as a eunuch. The man is not a eunuch in

the literal sense, but he was called for by the

police when on a visit to his village, and was

found singing dressed as a woman among the

women of a certain family. Having been

subjected to examination by the Civil Surgeon

(and a subordinate medical man), he is shown to

have the characteristic mark of a habitual

catamite – the distortion of the orifice of the anus

into the shape of a trumpet and also to be

affected with syphilis in the same region in a

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manner which distinctly points to unnatural

intercourse within the last few months.”

18.Even though, he was acquitted on appeal, this case

would demonstrate that Section 377, though associated

with specific sexual acts, highlighted certain identities,

including Hijras and was used as an instrument of

harassment and physical abuse against Hijras and

transgender persons. A Division Bench of this Court in

Suresh Kumar Koushal and another v. Naz

Foundation and others [(2014) 1 SCC 1] has already

spoken on the constitutionality of Section 377 IPC and,

hence, we express no opinion on it since we are in these

cases concerned with an altogether different issue

pertaining to the constitutional and other legal rights of

the transgender community and their gender identity and

sexual orientation.

GENDER IDENTITY AND SEXUAL ORIENTATION

19.Gender identity is one of the most-fundamental

aspects of life which refers to a person’s intrinsic sense of

being male, female or transgender or transsexual person.

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A person’s sex is usually assigned at birth, but a relatively

small group of persons may born with bodies which

incorporate both or certain aspects of both male and

female physiology. At times, genital anatomy problems

may arise in certain persons, their innate perception of

themselves, is not in conformity with the sex assigned to

them at birth and may include pre and post-operative

transsexual persons and also persons who do not choose

to undergo or do not have access to operation and also

include persons who cannot undergo successful operation.

Countries, all over the world, including India, are grappled

with the question of attribution of gender to persons who

believe that they belong to the opposite sex. Few persons

undertake surgical and other procedures to alter their

bodies and physical appearance to acquire gender

characteristics of the sex which conform to their

perception of gender, leading to legal and social

complications since official record of their gender at birth

is found to be at variance with the assumed gender

identity. Gender identity refers to each person’s deeply felt

internal and individual experience of gender, which may or

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may not correspond with the sex assigned at birth,

including the personal sense of the body which may

involve a freely chosen, modification of bodily appearance

or functions by medical, surgical or other means and other

expressions of gender, including dress, speech and

mannerisms. Gender identity, therefore, refers to an

individual’s self-identification as a man, woman,

transgender or other identified category.

20.Sexual orientation refers to an individual’s enduring

physical, romantic and/or emotional attraction to another

person. Sexual orientation includes transgender and

gender-variant people with heavy sexual orientation and

their sexual orientation may or may not change during or

after gender transmission, which also includes homo-

sexuals, bysexuals, heterosexuals, asexual etc. Gender

identity and sexual orientation, as already indicated, are

different concepts. Each person’s self-defined sexual

orientation and gender identity is integral to their

personality and is one of the most basic aspects of self-

determination, dignity and freedom and no one shall be

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forced to undergo medical procedures, including SRS,

sterilization or hormonal therapy, as a requirement for

legal recognition of their gender identity.

UNITED NATIONS AND OTHER HUMAN RIGHTS

BODIES – ON GENDER IDENTITY AND SEXUAL

ORIENTATION

21.United Nations has been instrumental in advocating

the protection and promotion of rights of sexual

minorities, including transgender persons. Article 6 of the

Universal Declaration of Human Rights, 1948 and Article

16 of the International Covenant on Civil and Political

Rights, 1966 (ICCPR) recognize that every human being

has the inherent right to live and this right shall be

protected by law and that no one shall be arbitrarily

denied of that right. Everyone shall have a right to

recognition, everywhere as a person before the law.

Article 17 of the ICCPR states that no one shall be

subjected to arbitrary or unlawful interference with his

privacy, family, home or correspondence, nor to unlawful

attacks on his honour and reputation and that everyone

has the right to protection of law against such interference

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or attacks. International Commission of Jurists and the

International Service for Human Rights on behalf of a

coalition of human rights organizations, took a project to

develop a set of international legal principles on the

application of international law to human rights violations

based on sexual orientation and sexual identity to bring

greater clarity and coherence to State’s human rights

obligations. A distinguished group of human rights

experts has drafted, developed, discussed and reformed

the principles in a meeting held at Gadjah Mada University

in Yogyakarta, Indonesia from 6 to 9 November, 2006,

which is unanimously adopted the Yogyakarta Principles

on the application of International Human Rights Law in

relation to Sexual Orientation and Gender Identity.

Yogyakarta Principles address a broad range of human

rights standards and their application to issues of sexual

orientation gender identity. Reference to few Yogyakarta

Principles would be useful.

YOGYAKARTA PRINCIPLES:

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22.Principle 1 which deals with the right to the universal

enjoyment of human rights, reads as follows :-

“1.THE RIGHT TO THE UNIVERSAL

ENJOYMENT OF HUMAN RIGHTS

All human beings are born free and equal in

dignity and rights. Human beings of all sexual

orientations and gender identities are entitled to

the full enjoyment of all human rights.

States shall:

A. Embody the principles of the universality,

interrelatedness, interdependence and

indivisibility of all human rights in their

national constitutions or other appropriate

legislation and ensure the practical

realisation of the universal enjoyment of all

human rights;

B.Amend any legislation, including criminal

law, to ensure its consistency with the

universal enjoyment of all human rights;

C.Undertake programmes of education and

awareness to promote and enhance the full

enjoyment of all human rights by all

persons, irrespective of sexual orientation or

gender identity;

D.Integrate within State policy and decision-

making a pluralistic approach that

recognises and affirms the interrelatedness

and indivisibility of all aspects of human

identity including sexual orientation and

gender identity.

2.THE RIGHTS TO EQUALITY AND NON-

DISCRIMINATION

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Everyone is entitled to enjoy all human rights

without discrimination on the basis of sexual

orientation or gender identity. Everyone is

entitled to equality before the law and the equal

protection of the law without any such

discrimination whether or not the enjoyment of

another human right is also affected. The law

shall prohibit any such discrimination and

guarantee to all persons equal and effective

protection against any such discrimination.

Discrimination on the basis of sexual orientation

or gender identity includes any distinction,

exclusion, restriction or preference based on

sexual orientation or gender identity which has

the purpose or effect of nullifying or impairing

equality before the law or the equal protection of

the law, or the recognition, enjoyment or

exercise, on an equal basis, of all human rights

and fundamental freedoms. Discrimination based

on sexual orientation or gender identity may be,

and commonly is, compounded by discrimination

on other grounds including gender, race, age,

religion, disability, health and economic status.

States shall:

A.Embody the principles of equality and non-

discrimination on the basis of sexual

orientation and gender identity in their

national constitutions or other appropriate

legislation, if not yet incorporated therein,

including by means of amendment and

interpretation, and ensure the effective

realisation of these principles;

B.Repeal criminal and other legal provisions that

prohibit or are, in effect, employed to prohibit

consensual sexual activity among people of

the same sex who are over the age of consent,

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and ensure that an equal age of consent

applies to both same-sex and different- sex

sexual activity;

C.Adopt appropriate legislative and other

measures to prohibit and eliminate

discrimination in the public and private

spheres on the basis of sexual orientation and

gender identity;

D.Take appropriate measures to secure

adequate advancement of persons of diverse

sexual orientations and gender identities as

may be necessary to ensure such groups or

individuals equal enjoyment or exercise of

human rights. Such measures shall not be

deemed to be discriminatory;

E. In all their responses to discrimination on the

basis of sexual orientation or gender identity,

take account of the manner in which such

discrimination may intersect with other forms

of discrimination;

F. Take all appropriate action, including

programmes of education and training, with a

view to achieving the elimination of prejudicial

or discriminatory attitudes or behaviours which

are related to the idea of the inferiority or the

superiority of any sexual orientation or gender

identity or gender expression.

3.THE RIGHT TO RECOGNITION BEFORE

THE LAW

Everyone has the right to recognition everywhere

as a person before the law. Persons of diverse

sexual orientations and gender identities shall

enjoy legal capacity in all aspects of life. Each

person’s self-defined sexual orientation and

gender identity is integral to their personality and

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is one of the most basic aspects of self-

determination, dignity and freedom. No one shall

be forced to undergo medical procedures,

including sex reassignment surgery, sterilisation

or hormonal therapy, as a requirement for legal

recognition of their gender identity. No status,

such as marriage or parenthood, may be invoked

as such to prevent the legal recognition of a

person’s gender identity. No one shall be

subjected to pressure to conceal, suppress or

deny their sexual orientation or gender identity.

States shall:

A.Ensure that all persons are accorded legal

capacity in civil matters, without

discrimination on the basis of sexual

orientation or gender identity, and the

opportunity to exercise that capacity, including

equal rights to conclude contracts, and to

administer, own, acquire (including through

inheritance), manage, enjoy and dispose of

property;

B.Take all necessary legislative, administrative

and other measures to fully respect and legally

recognise each person’s self-defined gender

identity;

C.Take all necessary legislative, administrative

and other measures to ensure that procedures

exist whereby all State-issued identity papers

which indicate a person’s gender/sex —

including birth certificates, passports, electoral

records and other documents — reflect the

person’s profound self-defined gender identity;

D.Ensure that such procedures are efficient, fair

and non-discriminatory, and respect the

dignity and privacy of the person concerned;

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E.Ensure that changes to identity documents will

be recognised in all contexts where the

identification or disaggregation of persons by

gender is required by law or policy;

F.Undertake targeted programmes to provide

social support for all persons experiencing

gender transitioning or reassignment.

4.THE RIGHT TO LIFE

Everyone has the right to life. No one shall be

arbitrarily deprived of life, including by reference

to considerations of sexual orientation or gender

identity. The death penalty shall not be imposed

on any person on the basis of consensual sexual

activity among persons who are over the age of

consent or on the basis of sexual orientation or

gender identity.

States shall:

A.Repeal all forms of crime that have the

purpose or effect of prohibiting consensual

sexual activity among persons of the same sex

who are over the age of consent and, until

such provisions are repealed, never impose

the death penalty on any person convicted

under them;

B.Remit sentences of death and release all those

currently awaiting execution for crimes

relating to consensual sexual activity among

persons who are over the age of consent;

C. Cease any State-sponsored or State-condoned

attacks on the lives of persons based on

sexual orientation or gender identity, and

ensure that all such attacks, whether by

government officials or by any individual or

group, are vigorously investigated, and that,

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where appropriate evidence is found, those

responsible are prosecuted, tried and duly

punished.

6.THE RIGHT TO PRIVACY

Everyone, regardless of sexual orientation or

gender identity, is entitled to the enjoyment of

privacy without arbitrary or unlawful

interference, including with regard to their

family, home or correspondence as well as to

protection from unlawful attacks on their honour

and reputation. The right to privacy ordinarily

includes the choice to disclose or not to disclose

information relating to one’s sexual orientation or

gender identity, as well as decisions and choices

regarding both one’s own body and consensual

sexual and other relations with others.

States shall:

A.Take all necessary legislative, administrative

and other measures to ensure the right of

each person, regardless of sexual orientation

or gender identity, to enjoy the private sphere,

intimate decisions, and human relations,

including consensual sexual activity among

persons who are over the age of consent,

without arbitrary interference;

B.Repeal all laws that criminalise consensual

sexual activity among persons of the same sex

who are over the age of consent, and ensure

that an equal age of consent applies to both

same-sex and different-sex sexual activity;

C.Ensure that criminal and other legal provisions

of general application are not applied to de

facto criminalise consensual sexual activity

among persons of the same sex who are over

the age of consent;

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D.Repeal any law that prohibits or criminalises

the expression of gender identity, including

through dress, speech or mannerisms, or that

denies to individuals the opportunity to change

their bodies as a means of expressing their

gender identity;

E.Release all those held on remand or on the

basis of a criminal conviction, if their detention

is related to consensual sexual activity among

persons who are over the age of consent, or is

related to gender identity;

F.Ensure the right of all persons ordinarily to

choose when, to whom and how to disclose

information pertaining to their sexual

orientation or gender identity, and protect all

persons from arbitrary or unwanted disclosure,

or threat of disclosure of such information by

others

9.THE RIGHT TO TREATMENT WITH

HUMANITY WHILE IN DETENTION

Everyone deprived of liberty shall be treated with

humanity and with respect for the inherent

dignity of the human person. Sexual orientation

and gender identity are integral to each person’s

dignity.

States shall:

A.Ensure that placement in detention avoids

further marginalising persons on the basis of

sexual orientation or gender identity or

subjecting them to risk of violence, ill-

treatment or physical, mental or sexual abuse;

Page 28 28

B.Provide adequate access to medical care and

counselling appropriate to the needs of those

in custody, recognising any particular needs of

persons on the basis of their sexual orientation

or gender identity, including with regard to

reproductive health, access to HIV/AIDS

information and therapy and access to

hormonal or other therapy as well as to

gender-reassignment treatments where

desired;

C.Ensure, to the extent possible, that all

prisoners participate in decisions regarding the

place of detention appropriate to their sexual

orientation and gender identity;

D.Put protective measures in place for all

prisoners vulnerable to violence or abuse on

the basis of their sexual orientation, gender

identity or gender expression and ensure, so

far as is reasonably practicable, that such

protective measures involve no greater

restriction of their rights than is experienced

by the general prison population;

E.Ensure that conjugal visits, where permitted,

are granted on an equal basis to all prisoners

and detainees, regardless of the gender of

their partner;

F.Provide for the independent monitoring of

detention facilities by the State as well as by

non-governmental organisations including

organisations working in the spheres of sexual

orientation and gender identity;

G.Undertake programmes of training and

awareness-raising for prison personnel and all

other officials in the public and private sector

who are engaged in detention facilities,

regarding international human rights

Page 29 29

standards and principles of equality and non-

discrimination, including in relation to sexual

orientation and gender identity.

18.PROTECTION FROM MEDICAL ABUSES

No person may be forced to undergo any form of

medical or psychological treatment, procedure,

testing, or be confined to a medical facility,

based on sexual orientation or gender identity.

Notwithstanding any classifications to the

contrary, a person’s sexual orientation and

gender identity are not, in and of themselves,

medical conditions and are not to be treated,

cured or suppressed.

States shall:

A.Take all necessary legislative, administrative

and other measures to ensure full protection

against harmful medical practices based on

sexual orientation or gender identity, including

on the basis of stereotypes, whether derived

from culture or otherwise, regarding conduct,

physical appearance or perceived gender

norms;

B.Take all necessary legislative, administrative

and other measures to ensure that no child’s

body is irreversibly altered by medical

procedures in an attempt to impose a gender

identity without the full, free and informed

consent of the child in accordance with the

age and maturity of the child and guided by

the principle that in all actions concerning

children, the best interests of the child shall be

a primary consideration;

C.Establish child protection mechanisms

whereby no child is at risk of, or subjected to,

medical abuse;

Page 30 30

D.Ensure protection of persons of diverse sexual

orientations and gender identities against

unethical or involuntary medical procedures or

research, including in relation to vaccines,

treatments or microbicides for HIV/AIDS or

other diseases;

E.Review and amend any health funding

provisions or programmes, including those of a

development-assistance nature, which may

promote, facilitate or in any other way render

possible such abuses;

F.Ensure that any medical or psychological

treatment or counselling does not, explicitly or

implicitly, treat sexual orientation and gender

identity as medical conditions to be treated,

cured or suppressed.

19. THE RIGHT TO FREEDOM OF OPINION

AND EXPRESSION

Everyone has the right to freedom of opinion and

expression, regardless of sexual orientation or

gender identity. This includes the expression of

identity or personhood through speech,

deportment, dress, bodily characteristics, choice

of name, or any other means, as well as the

freedom to seek, receive and impart information

and ideas of all kinds, including with regard to

human rights, sexual orientation and gender

identity, through any medium and regardless of

frontiers.

States shall:

A.Take all necessary legislative, administrative

and other measures to ensure full enjoyment

of freedom of opinion and expression, while

respecting the rights and freedoms of others,

Page 31 31

without discrimination on the basis of sexual

orientation or gender identity, including the

receipt and imparting of information and ideas

concerning sexual orientation and gender

identity, as well as related advocacy for legal

rights, publication of materials, broadcasting,

organisation of or participation in conferences,

and dissemination of and access to safer-sex

information;

B. Ensure that the outputs and the organisation

of media that is State-regulated is pluralistic

and non-discriminatory in respect of issues of

sexual orientation and gender identity and

that the personnel recruitment and promotion

policies of such organisations are non-

discriminatory on the basis of sexual

orientation or gender identity;

C. Take all necessary legislative, administrative

and other measures to ensure the full

enjoyment of the right to express identity or

personhood, including through speech,

deportment, dress, bodily characteristics,

choice of name or any other means;

D.Ensure that notions of public order, public

morality, public health and public security are

not employed to restrict, in a discriminatory

manner, any exercise of freedom of opinion

and expression that affirms diverse sexual

orientations or gender identities;

E.Ensure that the exercise of freedom of opinion

and expression does not violate the rights and

freedoms of persons of diverse sexual

orientations and gender identities;

F.Ensure that all persons, regardless of sexual

orientation or gender identity, enjoy equal

Page 32 32

access to information and ideas, as well as to

participation in public debate.”

23.UN bodies, Regional Human Rights Bodies, National

Courts, Government Commissions and the Commissions

for Human Rights, Council of Europe, etc. have endorsed

the Yogyakarta Principles and have considered them as an

important tool for identifying the obligations of States to

respect, protect and fulfill the human rights of all persons,

regardless of their gender identity. United Nations

Committee on Economic, Social and Cultural Rights in its

Report of 2009 speaks of gender orientation and gender

identity as follows:-

“Sexual orientation and gender identity

‘Other status’ as recognized in article 2,

paragraph 2, includes sexual orientation.

States parties should ensure that a person’s

sexual orientation is not a barrier to realizing

Covenant rights, for example, in accessing

survivor’s pension rights. In addition, gender

identity is recognized as among the prohibited

grounds of discrimination, for example, persons

who are transgender, transsexual or intersex,

often face serious human rights violations, such

as harassment in schools or in the workplace.”

24.In this respect, reference may also be made to the

General Comment No.2 of the Committee on Torture and

Page 33 33

Article 2 of the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment in

2008 and also the General Comment No.20 of the

Committee on Elimination of Discrimination against

Woman, responsible for the implementation of the

Convention on the Elimination of All Forms of

Discrimination against Woman, 1979 and 2010 report.

SRS and Foreign Judgments

25.Various countries have given recognition to the

gender identity of such persons, mostly, in cases where

transsexual persons started asserting their rights after

undergoing SRS of their re-assigned sex. In Corbett v.

Corbett (1970) 2 All ER 33, the Court in England was

concerned with the gender of a male to female transsexual

in the context of the validity of a marriage. Ormrod, J. in

that case took the view that the law should adopt the

chromosomal, gonadal and genital tests and if all three are

congruent, that should determine a person’s sex for the

purpose of marriage. Learned Judge expressed the view

that any operative intervention should be ignored and the

Page 34 34

biological sexual constitution of an individual is fixed at

birth, at the latest, and cannot be changed either by the

natural development of organs of the opposite sex or by

medical or surgical means. Later, in R v. Tan (1983) QB

1053, 1063-1064, the Court of Appeal applied Corbett

approach in the context of criminal law. The Court upheld

convictions which were imposed on Gloria Greaves, a post-

operative male to female transsexual, still being in law, a

man.

26.Corbett principle was not found favour by various

other countries, like New Zealand, Australia etc. and also

attracted much criticism, from the medical profession. It

was felt that the application of the Corbett approach

would lead to a substantial different outcome in cases of a

post operative inter-sexual person and a post operative

transsexual person. In New Zealand in Attorney-

General v. Otahuhu Family Court (1995) 1 NZLR 603,

Justice Ellis noted that once a transsexual person has

undergone surgery, he or she is no longer able to operate

in his or her original sex. It was held that there is no

Page 35 35

social advantage in the law for not recognizing the validity

of the marriage of a transsexual in the sex of

reassignment. The Court held that an adequate test is

whether the person in question has undergone surgical

and medical procedures that have effectively given the

person the physical conformation of a person of a specified

sex. In Re Kevin (Validity of Marriage of

Transsexual) (2001) Fam CA 1074, in an Australian case,

Chisholm J., held that there is no ‘formulaic solution’ to

determine the sex of an individual for the purpose of the

law of marriage. It was held that all relevant matters need

to be considered, including the person’s life experiences

and self-perception. Full Court of the Federal Family Court

in the year 2003 approved the above-mentioned judgment

holding that in the relevant Commonwealth marriage

statute the words ‘man’ and ‘woman’ should be given their

ordinary, everyday contemporary meaning and that the

word ‘man’ includes a post operative female to male

transsexual person. The Full Court also held that there

was a biological basis for transsexualism and that there

was no reason to exclude the psyche as one of the

Page 36 36

relevant factors in determining sex and gender. The

judgment Attorney-General for the Commonwealth &

“Kevin and Jennifer” & Human Rights and Equal

Opportunity Commission is reported in (2003) Fam CA

94.

27. Lockhart, J. in Secretary, Department of Social

Security v. “SRA”, (1993) 43 FCR 299 and Mathews, J.

in R v. Harris & McGuiness (1988) 17 NSWLR 158,

made an exhaustive review of the various decisions with

regard to the question of recognition to be accorded by

Courts to the gender of a transsexual person who had

undertaken a surgical procedure. The Courts generally in

New Zealand held that the decision in Corbett v.

Corbett (supra) and R v. Tan (supra) which applied a

purely biological test, should not be followed. In fact,

Lockhart. J. in SRA observed that the development in

surgical and medical techniques in the field of sexual

reassignment, together with indications of changing social

attitudes towards transsexuals, would indicate that

generally they should not be regarded merely as a matter

Page 37 37

of chromosomes, which is purely a psychological question,

one of self-perception, and partly a social question, how

society perceives the individual.

28. A.B. v. Western Australia (2011) HCA 42 was a

case concerned with the Gender Reassignment Act, 2000.

In that Act, a person who had undergone a reassignment

procedure could apply to Gender Reassignment Board for

the issue of a recognition certificate. Under Section 15 of

that Act, before issuing the certificate, the Board had to be

satisfied, inter alia, that the applicant believed his or her

true gender was the person’s reassigned gender and had

adopted the lifestyle and gender characteristics of that

gender. Majority of Judges agreed with Lockhart, J. in SRA

that gender should not be regarded merely as a matter of

chromosomes, but partly a psychological question, one of

self-perception, and partly a social question, how society

perceives the individual.

29. The House of Lords in Bellinger v. Bellinger (2003)

2 All ER 593 was dealing with the question of a

transsexual. In that case, Mrs. Bellinger was born on 7

th

Page 38 38

September, 1946. At birth, she was correctly classified

and registered as male. However, she felt more inclined

to be a female. Despite her inclinations, and under some

pressure, in 1967 she married a woman and at that time

she was 21 years old. Marriage broke down and parties

separated in 1971 and got divorce in the year 1975. Mrs.

Bellinger dressed and lived like a woman and when she

married Mr. Bellinger, he was fully aware of her

background and throughout had been supportive to her.

Mr. and Mrs. Bellinger since marriage lived happily as

husband and wife and presented themselves in that

fashion to the outside world. Mrs. Bellinger’s primary

claim was for a declaration under Section 55 of the Family

Law Act, 1986 that her marriage to Mr. Bellinger in 1981

was “at its inception valid marriage”. The House of Lords

rejected the claim and dismissed the appeal. Certainly,

the “psychological factor” has not been given much

prominence in determination of the claim of Mrs. Bellinger.

30. The High Court of Kuala Lumpur in Re JG, JG v.

Pengarah Jabatan Pendaftaran Negara (2006) 1 MLJ

Page 39 39

90, was considering the question as to whether an

application to amend or correct gender status stated in

National Registration Identity Card could be allowed after

a person has undergone SRS. It was a case where the

plaintiff was born as a male, but felt more inclined to be a

woman. In 1996 at Hospital Siroros she underwent a

gender reassignment and got the surgery done for

changing the sex from male to female and then she lived

like a woman. She applied to authorities to change her

name and also for a declaration of her gender as female,

but her request was not favourably considered, but still

treated as a male. She sought a declaration from the

Court that she be declared as a female and that the

Registration Department be directed to change the last

digit of her identity card to a digit that reflects a female

gender. The Malaysian Court basically applied the

principle laid down in Corbett (supra), however, both the

prayers sought for were granted, after noticing that the

medical men have spoken that the plaintiff is a female and

they have considered the sex change of the plaintiff as

well as her “psychological aspect”. The Court noticed

Page 40 40

that she feels like a woman, lives like one, behaves as

one, has her physical body attuned to one, and most

important of all, her “psychological thinking” is that of a

woman.

31. The Court of Appeal, New South Wales was called

upon to decide the question whether the Registrar of

Births, Deaths and Marriages has the power under the

Births, Deaths and Marriages Act, 1995 to register a

change of sex of a person and the sex recorded on the

register to “non-specific” or “non-specified”. The appeal

was allowed and the matter was remitted back to the

Tribunal for a fresh consideration in accordance with law,

after laying down the law on the subject. The judgment is

reported as Norrie v. NSW Registrar of Births, Deaths

and Marriages (2013) NSWCA 145. While disposing of

the appeal, the Court held as follows:-

“The consequence is that the Appeal Panel

(and the Tribunal and the Registrar) were in

error in construing the power in S.32DC(1) as

limiting the Registrar to registering a person’s

change of sex as only male or female. An error

in the construction of the statutory provision

granting the power to register a person’s

Page 41 41

change of sex is an error on a question of law.

Collector of Customs v. Pozzolanic Enterprises

Pty. Ltd. [1993] FCA 322; (1993) 43 FCR 280 at

287. This is so notwithstanding that the

determination of the common understanding of

a general word used in the statutory provision

is a question of fact. The Appeal Panel (and the

Tribunal and the Registrar) erred in

determining that the current ordinary meaning

of the word “sex” is limited to the character of

being either male or female. That involved an

error on a question of fact. But the Appeal

Panel’s error in arriving at the common

understanding of the word “sex” was

associated with its error in construction of the

effect of the statutory provision of S.32DC (and

also of S.32DA), and accordingly is of law: Hope

v. Bathurst City Council [1980] HCA 16, (1980)

144 CLR 1 at 10.”

32. In Christine Goodwin v. United Kingdom

(Application No.28957/95 - Judgment dated 11

th

July,

2002), the European Court of Human Rights examined an

application alleging violation of Articles 8, 12, 13 and 14 of

the Convention for Protection of Human Rights and

Fundamental Freedoms, 1997 in respect of the legal

status of transsexuals in UK and particularly their

treatment in the sphere of employment, social security,

pensions and marriage. Applicant in that case had a

Page 42 42

tendency to dress as a woman from early childhood and

underwent aversion therapy in 1963-64. In the mid-

1960s she was diagnosed as a transsexual. Though she

married a woman and they had four children, her

inclination was that her “brain sex” did not fit her body.

From that time until 1984 she dressed as a man for work

but as a woman in her free time. In January, 1985, the

applicant began treatment at the Gender Identity Clinic.

In October, 1986, she underwent surgery to shorten her

vocal chords. In August, 1987, she was accepted on the

waiting list for gender re-assignment surgery and later

underwent that surgery at a National Health Service

hospital. The applicant later divorced her former wife.

She claimed between 1990 and 1992 she was sexually

harassed by colleagues at work, followed by other human

rights violations. The Court after referring to various

provisions and Conventions held as follows:-

“Nonetheless, the very essence of the

Convention is respect for human dignity and

human freedom. Under Article 8 of the

Convention in particular, where the notion of

personal autonomy is an important principle

underlying the interpretation of its guarantees,

Page 43 43

protection is given to the personal sphere of

each individuals, including the right to establish

details of their identity as individual human

beings (see, inter alia, Pretty v. the United

Kingdom no.2346/02, judgment of 29 April

2002, 62, and Mikulic v. Croatia, no.53176/99,

judgment of 7 February 2002, 53, both to be

published in ECHR 2002…). In the twenty first

century the right of transsexuals to personal

development and to physical and moral security

in the full sense enjoyed by others in society

cannot be regarded as a matter of controversy

requiring the lapse of time to cast clearer light

on the issues involved. In short, the

unsatisfactory situation in which post-operative

transsexuals live in an intermediate zone as not

quite one gender or the other is no longer

sustainable.”

33. The European Court of Human Rights in the case of

Van Kuck v. Germany (Application No.35968/97 –

Judgment dated 12.9.2003) dealt with the application

alleging that German Court’s decisions refusing the

applicant’s claim for reimbursement of gender

reassignment measures and the related proceedings were

in breach of her rights to a fair trial and of her right to

respect for her private life and that they amounted to

discrimination on the ground of her particular

“psychological situation”. Reliance was placed on Articles

6, 8, 13 and 14 of the Convention for Protection of Human

Page 44 44

Rights and Fundamental Freedoms, 1997. The Court held

that the concept of “private life” covers the physical and

psychological integrity of a person, which can sometimes

embrace aspects of an individual’s physical and social

identity. For example, gender identifications, name and

sexual orientation and sexual life fall within the personal

sphere protected by Article 8. The Court also held that the

notion of personal identity is an important principle

underlying the interpretation of various guaranteed rights

and the very essence of the Convention being respect for

human dignity and human freedom, protection is given to

the right of transsexuals to personal development and to

physical and moral security.

34. Judgments referred to above are mainly related to

transsexuals, who, whilst belonging physically to one sex,

feel convinced that they belong to the other, seek to

achieve a more integrated unambiguous identity by

undergoing medical and surgical operations to adapt their

physical characteristic to their psychological nature.

When we examine the rights of transsexual persons, who

Page 45 45

have undergone SRS, the test to be applied is not the

“Biological test”, but the “Psychological test”, because

psychological factor and thinking of transsexual has to be

given primacy than binary notion of gender of that person.

Seldom people realize the discomfort, distress and

psychological trauma, they undergo and many of them

undergo “Gender Dysphoria’ which may lead to mental

disorder. Discrimination faced by this group in our

society, is rather unimaginable and their rights have to be

protected, irrespective of chromosomal sex, genitals,

assigned birth sex, or implied gender role. Rights of

transgenders, pure and simple, like Hijras, eunuchs, etc.

have also to be examined, so also their right to remain as

a third gender as well as their physical and psychological

integrity. Before addressing those aspects further, we

may also refer to few legislations enacted in other

countries recognizing their rights.

LEGISLATIONS IN OTHER COUNTRIES ON TGs

35. We notice, following the trend, in the international

human rights law, many countries have enacted laws for

Page 46 46

recognizing rights of transsexual persons, who have

undergone either partial/complete SRS, including United

Kingdom, Netherlands, Germany, Australia, Canada,

Argentina, etc. United Kingdom has passed the General

Recommendation Act, 2004, following the judgment in

Christine Goodwin (supra) passed by the European

Courts of Human Rights. The Act is all encompassing as

not only does it provide legal recognition to the acquired

gender of a person, but it also lays down provisions

highlighting the consequences of the newly acquired

gender status on their legal rights and entitlements in

various aspects such as marriage, parentage, succession,

social security and pensions etc. One of the notable

features of the Act is that it is not necessary that a person

needs to have undergone or in the process of undergoing

a SRS to apply under the Act. Reference in this

connection may be made to the Equality Act, 2010 (UK)

which has consolidated, repealed and replaced around

nine different anti-discrimination legislations including the

Sex Discrimination Act, 1986. The Act defines certain

characteristics to be “protected characteristics” and no

Page 47 47

one shall be discriminated or treated less favourably on

grounds that the person possesses one or more of the

“protected characteristics”. The Act also imposes duties

on Public Bodies to eliminate all kinds of discrimination,

harassment and victimization. Gender reassignment has

been declared as one of the protected characteristics

under the Act, of course, only the transsexuals i.e. those

who are proposing to undergo, is undergoing or has

undergone the process of the gender reassignment are

protected under the Act.

36. In Australia, there are two Acts dealing with the

gender identity, (1) Sex Discrimination Act, 1984; and (ii)

Sex Discrimination Amendment (Sexual Orientation,

Gender Identity and Intersex Status) Act, 2013 (Act 2013).

Act 2013 amends the Sex Discrimination Act, 1984. Act

2013 defines gender identity as the appearance or

mannerisms or other gender-related characteristics of a

person (whether by way of medical intervention or not)

with or without regard to the person’s designated sex at

birth.

Page 48 48

Sections 5(A), (B) and (C) of the 2013 Act have some

relevance and the same are extracted hereinbelow:-

“5A Discrimination on the ground of sexual

orientation

(1) For the purposes of this Act, a person (the

discriminator) discriminates against another

person (the aggrieved person ) on the ground

of the aggrieved person’s sexual orientation if, by

reason of:

(a) the aggrieved person’s sexual orientation;

or

(b) a characteristic that appertains generally to

persons who have the same sexual

orientation as the aggrieved person; or

(c) a characteristic that is generally imputed to

persons who have the same sexual

orientation as the aggrieved person;

the discriminator treats the aggrieved person

less favourably than, in circumstances that are

the same or are not materially different, the

discriminator treats or would treat a person who

has a different sexual orientation.

(2) For the purposes of this Act, a person (the

discriminator) discriminates against another

person (the aggrieved person ) on the ground

of the aggrieved person’s sexual orientation if

the discriminator imposes, or proposes to

impose, a condition, requirement or practice that

has, or is likely to have, the effect of

disadvantaging persons who have the same

sexual orientation as the aggrieved person.

(3) This section has effect subject to sections 7B

and 7D.

Page 49 49

5B Discrimination on the ground of gender

identity

(1) For the purposes of this Act, a person (the

discriminator) discriminates against another

person (the aggrieved person ) on the ground

of the aggrieved person’s gender identity if, by

reason of:

(a) the aggrieved person’s gender identity; or

(b) a characteristic that appertains generally to

persons who have the same gender identity

as the aggrieved person; or

(c) a characteristic that is generally imputed to

persons who have the same gender identity

as the aggrieved person;

the discriminator treats the aggrieved person

less favourably than, in circumstances that are

the same or are not materially different, the

discriminator treats or would treat a person who

has a different gender identity.

(2) For the purposes of this Act, a person (the

discriminator) discriminates against another

person (the aggrieved person ) on the ground

of the aggrieved person’s gender identity if the

discriminator imposes, or proposes to impose, a

condition, requirement or practice that has, or is

likely to have, the effect of disadvantaging

persons who have the same gender identity as

the aggrieved person.

(3) This section has effect subject to sections 7B

and 7D.

5C Discrimination on the ground of

intersex status

(1) For the purposes of this Act, a person (the

discriminator) discriminates against another

person (the aggrieved person ) on the ground

Page 50 50

of the aggrieved person’s intersex status if, by

reason of:

(a) the aggrieved person’s intersex status; or

(b) a characteristic that appertains generally to

persons of intersex status; or

(c) a characteristic that is generally imputed to

persons of intersex status;

the discriminator treats the aggrieved person

less favourably than, in circumstances that are

the same or are not materially different, the

discriminator treats or would treat a person who

is not of intersex status.

(2) For the purposes of this Act, a person (the

discriminator) discriminates against another

person (the aggrieved person ) on the ground

of the aggrieved person’s intersex status if the

discriminator imposes, or proposes to impose, a

condition, requirement or practice that has, or is

likely to have, the effect of disadvantaging

persons of intersex status.

(3) This section has effect subject to sections 7B

and 7D.”

Various other precautions have also been provided

under the Act.

37. We may in this respect also refer to the European

Union Legislations on transsexuals. Recital 3 of the

Preamble to the Directive 2006/54/EC of European

Parliament and the Council of 5 July 2006 makes an

explicit reference to discrimination based on gender

Page 51 51

reassignment for the first time in European Union Law.

Recital 3 reads as under :-

“The Court of Justice has held that the scope of

the principle of equal treatment for men and

women cannot be confined to the prohibition of

discrimination based on the fact that a person is

of one or other sex. In view of this purpose and

the nature of the rights which it seeks to

safeguard, it also applies to discrimination

arising from the gender reassignment of a

person.”

38. European Parliament also adopted a resolution on

discrimination against transsexuals on 12

th

September,

1989 and called upon the Member States to take steps for

the protection of transsexual persons and to pass

legislation to further that end. Following that Hungary has

enacted Equal Treatment and the Promotion of Equal

Opportunities Act, 2003, which includes sexual identity as

one of the grounds of discrimination. 2010 paper on

‘Transgender Persons’ Rights in the EU Member States

prepared by the Policy Department of the European

Parliament presents the specific situation of transgender

people in 27 Member States of the European Union. In the

United States of America some of the laws enacted by the

Page 52 52

States are inconsistent with each other. The Federal Law

which provides protection to transgenders is The Matthew

Shepard and James Byrd. Jr. Hate Crimes Prevention Act,

2009, which expands the scope of the 1969 United States

Federal Hate-crime Law by including offences motivated

by actual or perceived gender identity. Around 15 States

and District of Colombia in the United States have

legislations which prohibit discrimination on grounds of

gender identity and expression. Few States have issued

executive orders prohibiting discrimination.

39. The Parliament of South Africa in the year 2003,

enacted Alteration of Sex Description and Sex Status Act,

2003, which permits transgender persons who have

undergone gender reassignment or people whose sexual

characteristics have evolved naturally or an intersexed

person to apply to the Director General of the National

Department of Home Affairs for alteration of his/her sex

description in the birth register, though the legislation

does not contemplate a more inclusive definition of

transgenders.

Page 53 53

40. The Senate of Argentina in the year 2012 passed a

law on Gender Identity that recognizes right by all persons

to the recognition of their gender identity as well as free

development of their person according to their gender

identity and can also request that their recorded sex be

amended along with the changes in first name and image,

whenever they do not agree with the self-perceived

gender identity. Not necessary that they seemed to prove

that a surgical procedure for total or partial genital

reassignment, hormonal therapies or any other

psychological or medical treatment had taken place.

Article 12 deals with dignified treatment, respecting the

gender identity adopted by the individual, even though

the first name is different from the one recorded in their

national identity documents. Further laws also provide

that whenever requested by the individual, the adopted

first name must be used for summoning, recording, filing,

calling and any other procedure or service in public and

private spaces.

Page 54 54

41. In Germany, a new law has come into force on 5

th

November, 2013, which allows the parents to register the

sex of the children as ‘not specified’ in the case of

children with intersex variation. According to Article 22,

Section 3 of the German Civil Statutes Act reads as

follows:-

“If a child can be assigned to neither the female

nor the male sex then the child has to be

named without a specification”

42. The law has also added a category of X, apart from

“M” and “F” under the classification of gender in the

passports.

Indian Scenario

43.We have referred exhaustively to the various judicial

pronouncements and legislations on the international

arena to highlight the fact that the recognition of “sex

identity gender” of persons, and “guarantee to equality

and non-discrimination” on the ground of gender identity

or expression is increasing and gaining acceptance in

international law and, therefore, be applied in India as well.

Page 55 55

44.Historical background of Transgenders in India has

already been dealth in the earlier part of this Judgment

indicating that they were once treated with great respect,

at least in the past, though not in the present. We can

perceive a wide range of transgender related identities,

cultures or experiences which are generally as follows:

“Hijras: Hijras are biological males who reject

their ‘masculine’ identity in due course of time to

identify either as women, or “not-men”, or “in-

between man and woman”, or “neither man nor

woman”. Hijras can be considered as the western

equivalent of transgender/transsexual (male-to-

female) persons but Hijras have a long

tradition/culture and have strong social ties

formalized through a ritual called “reet”

(becoming a member of Hijra community). There

are regional variations in the use of terms referred

to Hijras. For example, Kinnars (Delhi) and

Aravanis (Tamil Nadu). Hijras may earn through

their traditional work: ‘Badhai’ (clapping their

hands and asking for alms), blessing new-born

babies, or dancing in ceremonies. Some

proportion of Hijras engage in sex work for lack of

other job opportunities, while some may be self-

employed or work for non-governmental

organisations.” (See UNDP India Report

(December, 2010).

Eunuch:Eunuch refers to an emasculated male

and intersexed to a person whose genitals are

ambiguously male-like at birth, but this is

discovered the child previously assigned to the

Page 56 56

male sex, would be recategorized as intesexexd –

as a Hijra.

“Aravanis and ‘Thirunangi’ – Hijras in Tamil

Nadu identify as “Aravani”. Tamil Nadu Aravanigal

Welfare Board, a state government’s initiative

under the Department of Social Welfare defines

Aravanis as biological males who self-identify

themselves as a woman trapped in a male’s body.

Some Aravani activists want the public and media

to use the term ‘Thirunangi’ to refer to Aravanis.

Kothi – Kothis are a heterogeneous group.

‘Kothis’ can be described as biological males who

show varying degrees of ‘femininity’ – which may

be situational. Some proportion of Kothis have

bisexual behavior and get married to a woman.

Kothis are generally of lower socioeconomic status

and some engage in sex work for survival. Some

proportion of Hijra-identified people may also

identify themselves as ‘Kothis’. But not all Kothi

identified people identify themselves as

transgender or Hijras.

Jogtas/Jogappas: Jogtas or Jogappas are those

persons who are dedicated to and serve as a

servant of goddess Renukha Devi (Yellamma)

whose temples are present in Maharashtra and

Karnataka. ‘Jogta’ refers to male servant of that

Goddess and ‘Jogti’ refers to female servant (who is

also sometimes referred to as ‘Devadasi’). One can

become a ‘Jogta’ (or Jogti) if it is part of their family

tradition or if one finds a ‘Guru’ (or ‘Pujari’) who

accepts him/her as a ‘Chela’ or ‘Shishya’ (disciple).

Sometimes, the term ‘Jogti Hijras’ is used to denote

those male-to-female transgender persons who are

devotees/servants of Goddess Renukha Devi and

who are also in the Hijra communities. This term is

used to differentiate them from ‘Jogtas’ who are

heterosexuals and who may or may not dress in

Page 57 57

woman’s attire when they worship the Goddess.

Also, that term differentiates them from ‘Jogtis’ who

are biological females dedicated to the Goddess.

However, ‘Jogti Hijras’ may refer to themselves as

‘Jogti’ (female pronoun) or Hijras, and even

sometimes as ‘Jogtas’.

Shiv-Shakthis: Shiv-Shakthis are considered as

males who are possessed by or particularly close to

a goddess and who have feminine gender

expression. Usually, Shiv-Shakthis are inducted into

the Shiv-Shakti community by senior gurus, who

teach them the norms, customs, and rituals to be

observed by them. In a ceremony, Shiv-Shakthis

are married to a sword that represents male power

or Shiva (deity). Shiv-Shakthis thus become the

bride of the sword. Occasionally, Shiv-Shakthis

cross-dress and use accessories and ornaments

that are generally/socially meant for women. Most

people in this community belong to lower socio-

economic status and earn for their living as

astrologers, soothsayers, and spiritual healers;

some also seek alms.” ( See Serena Nanda,

Wadsworth Publishing Company, Second

Edition (1999)

45.Transgender people, as a whole, face multiple forms

of oppression in this country. Discrimination is so large

and pronounced, especially in the field of health care,

employment, education, leave aside social exclusion. A

detailed study was conducted by the United Nations

Development Programme (UNDP – India) and submitted a

report in December, 2010 on Hijras/transgenders in India:

Page 58 58

“HIV Human Rights and Social Exclusion”. The Report

states that the HIV Human Immunodeficiency Virus and

Sexually Transmitted Infections (STI) is now increasingly

seen in Hijras/transgenders population. The estimated

size of men who have sex with men (MSM) and male sex

workers population in India (latter presumably includes

Hijras/TG communities) is 2,352,133 and 235,213

respectively. It was stated that no reliable estimates are

available for Hijras/TG women. HIV prevalence among

MSM population was 7.4% against the overall adult HIV

prevalence of 0.36%. It was stated recently Hijras/TG

people were included under the category of MSM in HIV

sentinel serosurveillance. It is also reported in recent

studies that Hijras/TG women have indicated a very high

HIV prevalence (17.5% to 41%) among them. Study

conducted by NACO also highlights a pathetic situation.

Report submitted by NACI, NACP IV Working Group Hijras

TG dated 5.5.2011 would indicate that transgenders are

extremely vulnerable to HIV. Both the reports highlight

the extreme necessity of taking emergent steps to

improve their sexual health, mental health and also

Page 59 59

address the issue of social exclusion. The UNDP in its

report has made the following recommendations, which

are as under:

“Multiple problems are faced by Hijras/TG, which

necessitate a variety of solutions and actions.

While some actions require immediate

implementation such as introducing Hijra/TG-

specific social welfare schemes, some actions

need to be taken on a long-term basis changing

the negative attitude of the general public and

increasing accurate knowledge about Hijra/TG

communities. The required changes need to be

reflected in policies and laws; attitude of the

government, general public and health care

providers; and health care systems and practice.

Key recommendations include the following:

1.Address the gape in NACP-III: establish HIV

sentinel serosurveillance sites for Hijras/TG at

strategic locations; conduct operations research

to design and fine-tune culturally-relevant

package of HIV prevention and care

interventions for Hijras/TG; provide financial

support for the formation of CBOs run by

Hijras/TG; and build the capacity of CBOs to

implement effective rogrammes.

2.Move beyond focusing on individual-level HIV

prevention activities to address the

structural determinants of risks and

mitigate the impact of risks . For example,

mental health counseling, crisis intervention

(crisis in relation to suicidal tendencies, police

harassment and arrests, support following

sexual and physical violence), addressing

alcohol and drug abuse, and connecting to

livelihood programs all need to be part of the

HIV interventions.

Page 60 60

3.Train health care providers to be

competent and sensitive in providing health

care services (including STI and HIV-related

services) to Hijras/TG as well as develop and

monitor implementation of guidelines related to

gender transition and sex reassignment surgery

(SRS).

4.Clarify the ambiguous legal status of sex

reassignment surgery and provide gender

transition and SRS services (with proper pre-

and post-operation/transition counseling) for

free in public hospitals in various parts in India.

5.Implement stigma and discrimination

reduction measures at various settings

through a variety of ways: mass media

awareness for the general public to focused

training and sensitization for police and health

care providers.

6.Develop action steps toward taking a position

on legal recognition of gender identity of

Hijras/TG need to be taken in consultation with

Hijras/TG and other key stakeholders. Getting

legal recognition and avoiding ambiguities in

the current procedures that issue identity

documents to Hijras/TGs are required as they

are connected to basic civil rights such as

access to health and public services, right to

vote, right to contest elections, right to

education, inheritance rights, and marriage and

child adoption.

7.Open up the existing Social Welfare Schemes

for needy Hijras/TG and create specific welfare

schemes to address the basic needs of Hijras/TG

including housing and employment needs.

Page 61 61

8.Ensure greater involvement of vulnerable

communities including Hijras/TG women in

policy formulation and program development.”

46.Social exclusion and discrimination on the ground of

gender stating that one does not conform to the binary

gender (male/female) does prevail in India. Discussion on

gender identity including self-identification of gender of

male/female or as transgender mostly focuses on those

persons who are assigned male sex at birth, whether one

talks of Hijra transgender, woman or male or male to

female transgender persons, while concern voiced by

those who are identified as female to male trans-sexual

persons often not properly addressed. Female to male

unlike Hijra/transgender persons are not quite visible in

public unlike Hijra/transgender persons. Many of them,

however, do experience violence and discrimination

because of their sexual orientation or gender identity.

INDIA TO FOLLOW INTERNATIONAL CONVENTIONS

47.International Conventions and norms are significant

for the purpose of interpretation of gender equality.

Page 62 62

Article 1 of the Universal declaration on Human Rights,

1948, states that all human-beings are born free and

equal in dignity and rights. Article 3 of the Universal

Declaration of Human Rights states that everyone has a

right to life, liberty and security of person. Article 6 of the

International Covenant on Civil and Political Rights, 1966

affirms that every human-being has the inherent right to

life, which right shall be protected by law and no one shall

be arbitrarily deprived of his life. Article 5 of the

Universal Declaration of Human Rights and Article 7 of the

International Covenant on Civil and Political Rights provide

that no one shall be subjected to torture or to cruel

inhuman or degrading treatment or punishment. United

Nations Convention against Torture and Other Cruel

Inhuman and Degrading Treatment or Punishment (dated

24

th

January, 2008) specifically deals with protection of

individuals and groups made vulnerable by discrimination

or marginalization. Para 21 of the Convention states that

States are obliged to protect from torture or ill-treatment

all persons regardless of sexual orientation or transgender

identity and to prohibit, prevent and provide redress for

Page 63 63

torture and ill-treatment in all contests of State custody or

control. Article 12 of the Universal Declaration of Human

Rights and Article 17 of the International Covenant on Civil

and Political Rights state that no one shall be subjected to

“arbitrary or unlawful interference with his privacy, family,

home or correspondence”.

48.Above-mentioned International Human Rights

instruments which are being followed by various countries

in the world are aimed to protect the human rights of

transgender people since it has been noticed that

transgenders/transsexuals often face serious human rights

violations, such as harassment in work place, hospitals,

places of public conveniences, market places, theaters,

railway stations, bus stands, and so on.

49.Indian Law, on the whole, only recognizes the

paradigm of binary genders of male and female, based on

a person’s sex assigned by birth, which permits gender

system, including the law relating to marriage, adoption,

inheritance, succession and taxation and welfare

legislations. We have exhaustively referred to various

Page 64 64

articles contained in the Universal Declaration of Human

Rights, 1948, the International Covenant on Economic,

Social and Cultural Rights, 1966, the International

Covenant on Civil and Political Rights, 1966 as well as the

Yogyakarta principles. Reference was also made to

legislations enacted in other countries dealing with rights

of persons of transgender community. Unfortunately we

have no legislation in this country dealing with the rights

of transgender community. Due to the absence of

suitable legislation protecting the rights of the members

of the transgender community, they are facing

discrimination in various areas and hence the necessity to

follow the International Conventions to which India is a

party and to give due respect to other non-binding

International Conventions and principles. Constitution

makers could not have envisaged that each and every

human activity be guided, controlled, recognized or

safeguarded by laws made by the legislature. Article 21

has been incorporated to safeguard those rights and a

constitutional Court cannot be a mute spectator when

those rights are violated, but is expected to safeguard

Page 65 65

those rights knowing the pulse and feeling of that

community, though a minority, especially when their

rights have gained universal recognition and acceptance.

50.Article 253 of the Constitution of India states that the

Parliament has the power to make any law for the whole

or any part of the territory of India for implementing any

treaty, agreement or convention. Generally, therefore, a

legislation is required for implementing the international

conventions, unlike the position in the United States of

America where the rules of international law are applied

by the municipal courts on the theory of their implied

adoption by the State, as a part of its own municipal law.

Article VI, Cl. (2) of the U.S. Constitution reads as follows:

“……..all treaties made, or which shall be made,

under the authority of the united States, shall

be the supreme law of the land, and the judges

in every State shall be bound thereby, anything

in the Constitution or laws of any State to the

contrary not-withstanding.”

51.In the United States, however, it is open to the courts

to supersede or modify international law in its application

or it may be controlled by the treaties entered into by the

United States. But, till an Act of Congress is passed, the

Page 66 66

Court is bound by the law of nations, which is part of the

law of the land. Such a ‘supremacy clause’ is absent in our

Constitution. Courts in India would apply the rules of

International law according to the principles of comity of

Nations, unless they are overridden by clear rules of

domestic law. See: Gramophone Company of India

Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534 and

Tractor Export v. Tarapore & Co. (1969) 3 SCC 562,

Mirza Ali Akbar Kashani v. United Arab Republic

(1966) 1 SCR 391. In the case of Jolly George Varghese

v. Bank of Cochin (1980) 2 SCC 360, the Court applied

the above principle in respect of the International

Covenant on Civil and Political Rights, 1966 as well as in

connection with the Universal Declaration of Human

Rights. India has ratified the above mentioned covenants,

hence, those covenants can be used by the municipal

courts as an aid to the Interpretation of Statutes by

applying the Doctrine of Harmonization. But, certainly, if

the Indian law is not in conflict with the International

covenants, particularly pertaining to human rights, to

which India is a party, the domestic court can apply those

Page 67 67

principles in the Indian conditions. The Interpretation of

International Conventions is governed by Articles 31 and

32 of the Vienna Convention on the Law of Treaties of

1969.

52.Article 51 of the Directive Principles of State Policy,

which falls under Part IV of the Indian Constitution, reads

as under:

“Art. 51. The State shall endeavour to –

(a)promote international peace and security;

(b) maintain just and honourable relations

between nations;

(c)Foster respect for international law and

treaty obligation in the dealings of organised

peoples with one another; and

(d)Encourage settlement of international

disputes by arbitration.”

53. Article 51, as already indicated, has to be read along

with Article 253 of the Constitution. If the parliament has

made any legislation which is in conflict with the

international law, then Indian Courts are bound to give

effect to the Indian Law, rather than the international law.

However, in the absence of a contrary legislation,

Page 68 68

municipal courts in India would respect the rules of

international law. In His Holiness Kesavananda

Bharati Sripadavalvaru v. State of Kerala (1973) 4

SCC 225, it was stated that in view of Article 51 of the

Constitution, the Court must interpret language of the

Constitution, if not intractable, in the light of United

Nations Charter and the solemn declaration subscribed to

it by India. In Apparel Export Promotion Council v. A.

K. Chopra (1999) 1 SCC 759, it was pointed out that

domestic courts are under an obligation to give due regard

to the international conventions and norms for construing

the domestic laws, more so, when there is no

inconsistency between them and there is a void in

domestic law. Reference may also be made to the

Judgments of this Court in Githa Hariharan (Ms) and

another v. Reserve Bank of India and another (1999)

2 SCC 228, R.D. Upadhyay v. State of Andhra

Pradesh and others (2007) 15 SCC 337 and People’s

Union for Civil Liberties v. Union of India and

another (2005) 2 SCC 436. In Vishaka and others v.

State of Rajasthan and Others (1997) 6 SCC 241, this

Page 69 69

Court under Article 141 laid down various guidelines to

prevent sexual harassment of women in working places,

and to enable gender equality relying on Articles 11, 24

and general recommendations 22, 23 and 24 of the

Convention on the Elimination of All Forms of

Discrimination against Women. Any international

convention not inconsistent with the fundamental rights

and in harmony with its spirit must be read into those

provisions, e.g., Articles 14, 15, 19 and 21 of the

Constitution to enlarge the meaning and content thereof

and to promote the object of constitutional guarantee.

Principles discussed hereinbefore on TGs and the

International Conventions, including Yogyakarta principles,

which we have found not inconsistent with the various

fundamental rights guaranteed under the Indian

Constitution, must be recognized and followed, which has

sufficient legal and historical justification in our country.

ARTICLE 14 AND TRANSGENDERS

54.Article 14 of the Constitution of India states that the

State shall not deny to “any person” equality before the

Page 70 70

law or the equal protection of the laws within the territory

of India. Equality includes the full and equal enjoyment of

all rights and freedom. Right to equality has been

declared as the basic feature of the Constitution and

treatment of equals as unequals or unequals as equals will

be violative of the basic structure of the Constitution.

Article 14 of the Constitution also ensures equal protection

and hence a positive obligation on the State to ensure

equal protection of laws by bringing in necessary social

and economic changes, so that everyone including TGs

may enjoy equal protection of laws and nobody is denied

such protection. 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, 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 enjoyed by any other

citizen of this country.

Page 71 71

55.Petitioners have asserted as well as demonstrated on

facts and figures supported by relevant materials that

despite constitutional guarantee of equality,

Hijras/transgender persons have been facing extreme

discrimination in all spheres of the society. Non-

recognition of the identity of Hijras/transgender persons

denies them equal protection of law, thereby leaving them

extremely vulnerable to harassment, violence and sexual

assault in public spaces, at home and in jail, also by the

police. Sexual assault, including molestation, rape, forced

anal and oral sex, gang rape and stripping is being

committed with impunity and there are reliable statistics

and materials to support such activities. Further, non-

recognition of identity of Hijras /transgender persons

results in them facing extreme discrimination in all spheres

of society, especially in the field of employment,

education, healthcare etc. Hijras/transgender persons face

huge discrimination in access to public spaces like

restaurants, cinemas, shops, malls etc. Further, access to

public toilets is also a serious problem they face quite

often. Since, there are no separate toilet facilities for

Page 72 72

Hijras/transgender persons, they have to use male toilets

where they are prone to sexual assault and harassment.

Discrimination on the ground of sexual orientation or

gender identity, therefore, impairs equality before law and

equal protection of law and violates Article 14 of the

Constitution of India.

ARTICLES 15 & 16 AND TRANSGENDERS

56.Articles 15 and 16 prohibit discrimination against any

citizen on certain enumerated grounds, including the

ground of ‘sex’. In fact, both the Articles prohibit all forms

of gender bias and gender based discrimination.

57.Article 15 states that the State shall not discriminate

against any citizen, inter alia, on the ground of sex, with

regard to

(a) access to shops, public restaurants, hotels and places

of public entertainment; or

(b) use of wells, tanks, bathing ghats, roads and places

of public resort maintained wholly or partly out of

State funds or dedicated to the use of the general

public.

Page 73 73

The requirement of taking affirmative action for the

advancement of any socially and educationally backward

classes of citizens is also provided in this Article.

58.Article 16 states that there shall be equality of

opportunities for all the citizens in matters relating to

employment or appointment to any office under the State.

Article 16 (2) of the Constitution of India reads as follows :

“16(2). No citizen shall, on grounds only of

religion, race, caste, sex, descent, place of

birth, residence or any of them, be ineligible for,

or discriminated against in respect or, any

employment or office under the State.”

Article 16 not only prohibits discrimination on the

ground of sex in public employment, but also imposes a

duty on the State to ensure that all citizens are treated

equally in matters relating to employment and

appointment by the State.

59.Articles 15 and 16 sought to prohibit discrimination

on the basis of sex, recognizing that sex discrimination is a

historical fact and needs to be addressed. Constitution

makers, it can be gathered, gave emphasis to the

fundamental right against sex discrimination so as to

Page 74 74

prevent the direct or indirect attitude to treat people

differently, for the reason of not being in conformity with

stereotypical generalizations of binary genders. Both

gender and biological attributes constitute distinct

components of sex. Biological characteristics, of course,

include genitals, chromosomes and secondary sexual

features, but gender attributes include one’s self image,

the deep psychological or emotional sense of sexual

identity and character. The discrimination on the ground of

‘sex’ under Articles 15 and 16, therefore, includes

discrimination on the ground of gender identity. The

expression ‘sex’ used in Articles 15 and 16 is not just

limited to biological sex of male or female, but intended to

include people who consider themselves to be neither

male or female.

60.TGs have been systematically denied the rights under

Article 15(2) that is not to be subjected to any disability,

liability, restriction or condition in regard to access to

public places. TGs have also not been afforded special

provisions envisaged under Article 15(4) for the

Page 75 75

advancement of the socially and educationally backward

classes (SEBC) of citizens, which they are, and hence

legally entitled and eligible to get the benefits of SEBC.

State is bound to take some affirmative action for their

advancement so that the injustice done to them for

centuries could be remedied. TGs are also entitled to

enjoy economic, social, cultural and political rights without

discrimination, because forms of discrimination on the

ground of gender are violative of fundamental freedoms

and human rights. TGs have also been denied rights

under Article 16(2) and discriminated against in respect of

employment or office under the State on the ground of

sex. TGs are also entitled to reservation in the matter of

appointment, as envisaged under Article 16(4) of the

Constitution. State is bound to take affirmative action to

give them due representation in public services.

61.Articles 15(2) to (4) and Article 16(4) read with the

Directive Principles of State Policy and various

international instruments to which Indian is a party, call for

social equality, which the TGs could realize, only if facilities

Page 76 76

and opportunities are extended to them so that they can

also live with dignity and equal status with other genders.

ARTICLE 19(1)(a) AND TRANSGENDERS

62.Article 19(1) of the Constitution guarantees certain

fundamental rights, subject to the power of the State to

impose restrictions from exercise of those rights. The

rights conferred by Article 19 are not available to any

person who is not a citizen of India. Article 19(1)

guarantees those great basic rights which are recognized

and guaranteed as the natural rights inherent in the status

of the citizen of a free country. Article 19(1) (a) of the

Constitution states that all citizens shall have the right to

freedom of speech and expression, which includes one’s

right to expression of his self-identified gender. Self-

identified gender can be expressed through dress, words,

action or behavior or any other form. No restriction can

be placed on one’s personal appearance or choice of

dressing, subject to the restrictions contained in Article

19(2) of the Constitution.

Page 77 77

63.We may, in this connection, refer to few judgments of

the US Supreme Courts on the rights of TG’s freedom of

expression. The Supreme Court of the State of Illinois in

the City of Chicago v. Wilson et al., 75 III.2d 525(1978)

struck down the municipal law prohibiting cross-dressing,

and held as follows “-

“the notion that the State can regulate one’s

personal appearance, unconfined by any

constitutional strictures whatsoever, is

fundamentally inconsistent with “values of

privacy, self-identity, autonomy and personal

integrity that ….. the Constitution was designed

to protect.”

64.In Doe v. Yunits et al., 2000 WL33162199 (Mass.

Super.), the Superior Court of Massachusetts, upheld the

right of a person to wear school dress that matches her

gender identity as part of protected speech and expression

and observed as follows :-

“by dressing in clothing and accessories

traditionally associated with the female gender,

she is expressing her identification with the

gender. In addition, plaintiff’s ability to express

herself and her gender identity through dress is

important for her health and well-being.

Therefore, plaintiff’s expression is not merely a

personal preference but a necessary symbol of

her identity.”

Page 78 78

65.Principles referred to above clearly indicate that the

freedom of expression guaranteed under Article 19(1)(a)

includes the freedom to express one’s chosen gender

identity through varied ways and means by way of

expression, speech, mannerism, clothing etc.

66.Gender identity, therefore, lies at the core of one’s

personal identity, gender expression and presentation and,

therefore, it will have to be protected under Article 19(1)

(a) of the Constitution of India. A transgender’s

personality could be expressed by the transgender’s

behavior and presentation. State cannot prohibit, restrict

or interfere with a transgender’s expression of such

personality, which reflects that inherent personality.

Often the State and its authorities either due to ignorance

or otherwise fail to digest the innate character and identity

of such persons. We, therefore, hold that values of

privacy, self-identity, autonomy and personal integrity are

fundamental rights guaranteed to members of the

transgender community under Article 19(1)(a) of the

Page 79 79

Constitution of India and the State is bound to protect and

recognize those rights.

ARTICLE 21 AND THE TRANSGENDERS

67.Article 21 of the Constitution of India reads as

follows:

“21. Protection of life and personal

liberty – No person shall be deprived of his life

or personal liberty except according to

procedure established by law.”

Article 21 is the heart and soul of the Indian

Constitution, which speaks of the rights to life and

personal liberty. Right to life is one of the basic

fundamental rights and not even the State has the

authority to violate or take away that right. Article 21

takes all those aspects of life which go to make a person’s

life meaningful. Article 21 protects the dignity of human

life, one’s personal autonomy, one’s right to privacy, etc.

Right to dignity has been recognized to be an essential

part of the right to life and accrues to all persons on

account of being humans. In Francis Coralie Mullin v.

Administrator, Union Territory of Delhi (1981) 1 SCC

Page 80 80

608 (paras 7 and 8), this Court held that the right to

dignity forms an essential part of our constitutional

culture which seeks to ensure the full development and

evolution of persons and includes “expressing oneself in

diverse forms, freely moving about and mixing and

comingling with fellow human beings”.

68.Recognition of one’s gender identity lies at the heart

of the fundamental right to dignity. Gender, as already

indicated, constitutes the core of one’s sense of being as

well as an integral part of a person’s identity. Legal

recognition of gender identity is, therefore, part of right to

dignity and freedom guaranteed under our Constitution.

69.Article 21, as already indicated, guarantees the

protection of “personal autonomy” of an individual. In

Anuj Garg v. Hotel Association of India (2008) 3 SCC

1 (paragraphs 34-35), this Court held that personal

autonomy includes both the negative right of not to be

subject to interference by others and the positive right of

individuals to make decisions about their life, to express

Page 81 81

themselves and to choose which activities to take part in.

Self-determination of gender is an integral part of

personal autonomy and self-expression and falls within

the realm of personal liberty guaranteed under Article 21

of the Constitution of India.

LEGAL RECOGNITION OF THIRD/TRANSGENDER

IDENTITY

70.Self-identified gender can be either male or female

or a third gender. Hijras are identified as persons of third

gender and are not identified either as male or female.

Gender identity, as already indicated, refers to a person’s

internal sense of being male, female or a transgender, for

example Hijras do not identify as female because of their

lack of female genitalia or lack of reproductive capability.

This distinction makes them separate from both male and

female genders and they consider themselves neither

man nor woman, but a “third gender”. Hijras, therefore,

belong to a distinct socio-religious and cultural group and

have, therefore, to be considered as a “third gender”,

apart from male and female. State of Punjab has treated

Page 82 82

all TGs as male which is not legally sustainable. State of

Tamil Nadu has taken lot of welfare measures to

safeguard the rights of TGs, which we have to

acknowledge. Few States like Kerala, Tripura, Bihar have

referred TGs as “third gender or sex”. Certain States

recognize them as “third category”. Few benefits have

also been extended by certain other States. Our

neighbouring countries have also upheld their

fundamental rights and right to live with dignity.

71.The Supreme Court of Nepal in Sunil Babu Pant &

Ors. v. Nepal Government (Writ Petition No.917 of

2007 decided on 21

st

December, 2007), spoke on the

rights of Transgenders as follows:-

“the fundamental rights comprised under Part II

of the Constitution are enforceable fundamental

human rights guaranteed to the citizens against

the State. For this reason, the fundamental

rights stipulated in Part III are the rights

similarly vested in the third gender people as

human beings. The homosexuals and third

gender people are also human beings as other

men and women are, and they are the citizens

of this country as well…. Thus, the people other

than ‘men’ and ‘women’, including the people of

‘third gender’ cannot be discriminated. The

Page 83 83

State should recognize the existence of all

natural persons including the people of third

gender other than the men and women. And it

cannot deprive the people of third gender from

enjoying the fundamental rights provided by

Part III of the Constitution.”

72.The Supreme Court of Pakistan in Dr. Mohammad

Aslam Khaki & Anr. V. Senior Superintendent of

Police (Operation) Rawalpindi & Ors. (Constitution

Petition No.43 of 2009) decided on 22

nd

March, 2011, had

occasion to consider the rights of eunuchs and held as

follows:-

“Needless to observe that eunuchs in their

rights are citizens of this country and subject to

the Constitution of the Islamic Republic of

Pakistan, 1973, their rights, obligations

including right to life and dignity are equally

protected. Thus no discrimination, for any

reason, is possible against them as far as their

rights and obligations are concerned. The

Government functionaries both at federal and

provincial levels are bound to provide them

protection of life and property and secure their

dignity as well, as is done in case of other

citizens.”

73.We may remind ourselves of the historical presence

of the third gender in this country as well as in the

neighbouring countries.

Page 84 84

74.Article 21, as already indicated, protects one’s right

of self-determination of the gender to which a person

belongs. Determination of gender to which a person

belongs is to be decided by the person concerned. In

other words, gender identity is integral to the dignity of an

individual and is at the core of “personal autonomy” and

“self-determination”. Hijras/Eunuchs, therefore, have to be

considered as Third Gender, over and above binary

genders under our Constitution and the laws.

75.Articles 14, 15, 16, 19 and 21, above discussion,

would indicate, do not exclude Hijras/Transgenders from

its ambit, but Indian law on the whole recognize the

paradigm of binary genders of male and female, based on

one’s biological sex. As already indicated, we cannot

accept the Corbett principle of “Biological Test”, rather we

prefer to follow the psyche of the person in determining

sex and gender and prefer the “Psychological Test” instead

of “Biological Test”. Binary notion of gender reflects in the

Indian Penal Code, for example, Section 8, 10, etc. and

Page 85 85

also in the laws related to marriage, adoption, divorce,

inheritance, succession and other welfare legislations like

NAREGA, 2005, etc. Non-recognition of the identity of

Hijras/Transgenders in the various legislations denies them

equal protection of law and they face wide-spread

discrimination.

76.Article 14 has used the expression “person” and the

Article 15 has used the expression “citizen” and “sex” so

also Article 16. Article 19 has also used the expression

“citizen”. Article 21 has used the expression “person”. All

these expressions, which are “gender neutral” evidently

refer to human-beings. Hence, they take within their

sweep Hijras/Transgenders and are not as such limited to

male or female gender. Gender identity as already

indicated forms the core of one’s personal self, based on

self identification, not on surgical or medical procedure.

Gender identity, in our view, is an integral part of sex and

no citizen can be discriminated on the ground of gender

identity, including those who identify as third gender.

Page 86 86

77.We, therefore, conclude that discrimination on the

basis of sexual orientation or gender identity includes any

discrimination, exclusion, restriction or preference, which

has the effect of nullifying or transposing equality by the

law or the equal protection of laws guaranteed under our

Constitution, and hence we are inclined to give various

directions to safeguard the constitutional rights of the

members of the TG community.

..………………………..J

(K.S. Radhakrishnan )

A.K. SIKRI,J.

78.I have carefully, and with lot of interest, gone

through the perspicuous opinion of my brother

Radhakrishnan,J. I am entirely in agreement with the

discussion contained in the said judgment on all the

cardinal issues that have arisen for consideration in these

proceedings. At the same time, having regard to the fact

that the issues involved are of seminal importance, I am

also inclined to pen down my thoughts.

Page 87 87

79. As is clear, these petitions essentially raise an

issue of “Gender Identity”, which is the core issue. It has

two facets, viz.:

“(a) Whether a person who is born as a male with

predominantly female orientation (or vice-versa),

has a right to get himself to be recognized as a

female as per his choice moreso, when such a person

after having undergone operational procedure,

changes his/her sex as well;

(b) Whether transgender (TG), who are neither males

nor females, have a right to be identified and

categorized as a “third gender”?

80.We would hasten to add that it is the second issue

with which we are primarily concerned in these petitions

though in the process of discussion, first issue which is

somewhat inter-related, has also popped up.

81.Indubitably, the issue of choice of gender identify has

all the trappings of a human rights. That apart, as it

becomes clear from the reading of the judgment of my

esteemed Brother Radhakrishnan,J., the issue is not

limited to the exercise of choice of gender/sex. Many

Page 88 88

rights which flow from this choice also come into play,

inasmuch not giving them the status of a third gender

results in depriving the community of TGs of many of their

valuable rights and privileges which other persons enjoy

as citizens of this Country. There is also deprivation of

social and cultural participation which results into

eclipsing their access to education and health services.

Radhakrishnan,J. has exhaustively described the term

‘Transgender’ as an umbrella term which embraces within

itself a wide range of identities and experiences including

but not limited to pre-operative/post-operative trans

sexual people who strongly identify with the gender

opposite to their biological sex i.e. male/ female. Therein,

the history of transgenders in India is also traced and

while doing so, there is mention of upon the draconian

legislation enacted during the British Rule, known as

Criminal Tribes Act, 1871 which treated, per se, the entire

community of Hizra persons as innately ‘criminals’,

‘addicted to the systematic commission of non-bailable

offences’.

Page 89 89

82.With these introductory remarks, I revert to the two

facets of pivotal importance mentioned above. Before

embarking on the discussion, I may clarify that my

endeavour would be not to repeat the discussion

contained in the judgment of my Brother Radhakrishnan,

J., as I agree with every word written therein. However, at

times, if some of the observations are re-narrated, that

would be only with a view to bring continuity in the

thought process.

(1)Re: Right of a person to have the gender of

his/her choice.

When a child is born, at the time of birth itself, sex is

assigned to him/her. A child would be treated with that

sex thereafter, i.e. either a male or a female. However, as

explained in detail in the accompanying judgment, some

persons, though relatively very small in number, may born

with bodies which incorporate both or certain aspects of

both male or female physiology. It may also happen that

though a person is born as a male, because of some

genital anatomy problems his innate perception may be

that of a female and all his actions would be female

Page 90 90

oriented. The position may be exactly the opposite

wherein a person born as female may behave like a male

person.

83.In earlier times though one could observe such

characteristics, at the same time the underlying rationale

or reason behind such a behavior was not known. Over a

period of time, with in depth study and research of such

physical and psychological factors bevaviour, the causes

of this behaviour have become discernable which in turn,

has led to some changes in societal norms. Society has

starting accepting, though slowly, these have accepted

the behavioral norms of such persons without treating it

as abnormal. Further, medical science has leaped forward

to such an extent that even physiology appearance of a

person can be changed through surgical procedures, from

male to female and vice-versa. In this way, such persons

are able to acquire the body which is in conformity with

the perception of their gender/gender characteristics. In

order to ensure that law also keeps pace with the

aforesaid progress in medical science, various countries

Page 91 91

have come out with Legislation conferring rights on such

persons to recognize their gender identity based on

reassigned sex after undergoing Sex Re-Assignment

Surgery (SRS). Law and judgments given by the courts in

other countries have been exhaustively and

grandiloquently traversed by my learned Brother in his

judgment, discussing amongst others, the Yogyakarta

principles, the relevant provisions of the Universal

Declaration of Human Rights 1948 and highlighting the

statutory framework operating in those countries.

84.The genesis of this recognition lies in the

acknowledgment of another fundamental and universal

principal viz. “right of choice” given to an individual which

is the inseparable part of human rights. It is a matter of

historical significance that the 20

th

Century is often

described as “the age of rights”.

85.The most important lesson which was learnt as a

result of Second World War was the realization by the

Governments of various countries about the human

dignity which needed to be cherished and protected. It is

Page 92 92

for this reason that in the U.N.Charter, 1945, adopted

immediately after the Second World War, dignity of the

individuals was mentioned as of core value. The almost

contemporaneous Universal Declaration of Human Rights

(1948) echoed same sentiments.

86.The underlined message in the aforesaid documents

is the acknowledgment that human rights are individual

and have a definite linkage of human development, both

sharing common vision and with a common purpose.

Respect for human rights is the root for human

development and realization of full potential of each

individual, which in turn leads to the augmentation of

human resources with progress of the nation.

Empowerment of the people through human development

is the aim of human rights.

87.There is thus a universal recognition that human

rights are rights that “belong” to every person, and do not

depend on the specifics of the individual or the

relationship between the right-holder and the right-

grantor. Moreover, human rights exist irrespective of the

Page 93 93

question whether they are granted or recognized by the

legal and social system within which we live. They are

devices to evaluate these existing arrangements: ideally,

these arrangements should not violate human rights. In

other words, human rights are moral, pre-legal rights.

They are not granted by people nor can they be taken

away by them.

88.In international human rights law, equality is found

upon two complementary principles: non-discrimination

and reasonable differentiation. The principle of non-

discrimination seeks to ensure that all persons can equally

enjoy and exercise all their rights and freedoms.

Discrimination occurs due to arbitrary denial of

opportunities for equal participation. For example, when

public facilities and services are set on standards out of

the reach of the TGs, it leads to exclusion and denial of

rights. Equality not only implies preventing discrimination

(example, the protection of individuals against

unfavourable treatment by introducing anti- discrimination

laws), but goes beyond in remedying discrimination

Page 94 94

against groups suffering systematic discrimination in

society. In concrete terms, it means embracing the notion

of positive rights, affirmative action and reasonable

accommodation.

89.Nevertheless, the Universal Declaration of Human

Rights recognizes that all human beings are born free and

equal in dignity and rights and, since the Covenant’s

provisions apply fully to all members of society, persons

with disabilities are clearly entitled to the full range of

rights recognized in the Covenant. Moreover, the

requirement contained in Article 2 of the Covenant that

the rights enunciated will be exercised without

discrimination of any kind based on certain specified

grounds or other status clearly applies to cover persons

with disabilities.

90.India attained independence within two years of

adoption of the aforesaid U.N.Charter and it was but

natural that such a Bill of Rights would assume prime

importance insofar as thinking of the members of the

Constituent Assembly goes. It in fact did and we found

Page 95 95

chapter on fundamental rights in Part-III of the

Constitution. It is not necessary for me, keeping in view

the topic of today’s discussion, to embark on detailed

discussion on Chapter-III. Some of the provisions relevant

for our purposes would be Article 14, 15,16 and 21 of the

Constitution which have already been adverted to in detail

in the accompanying judgment. At this juncture it also

needs to be emphasized simultaneously is that in addition

to the fundamental rights, Constitution makers also

deemed it proper to impose certain obligations on the

State in the form of “Directive Principles of State Policy”

(Part-IV) as a mark of good governance. It is this part

which provides an ideal and purpose to our Constitution

and delineates certain principles which are fundamental in

the governance of the country. Dr.Ambedkar had

explained the purpose of these Directive Principles in the

following manner (See Constituent Assembly debates):

“The Directive Principles are like

the Instruments of Instructions which

were issued to the Governor-General

and the Governors of Colonies, and to

those of India by the British

Government under the 1935

Government of India Act. What is called

Page 96 96

“Directive Principles” is merely another

name for the Instrument of

Instructions. The only difference is that

they are instructions to the legislature

and the executive. Whoever capture

power will not be free to do what he

likes with it. In the exercise of it he will

have to respect these instruments of

instructions which are called Directive

Principles”.

91. The basic spirit of our Constitution is to provide each

and every person of the nation equal opportunity to grow

as a human being, irrespective of race, caste, religion,

community and social status. Granville Austin while

analyzing the functioning of Indian Constitution in first 50

years ha described three distinguished strands of Indian

Constitution: (i)protecting national unity and integrity,

(ii)establishing the institution and spirit of democracy;

and (iii) fostering social reforms. The Strands are mutually

dependent, and inextricably intertwined in what he

elegantly describes as “a seamless web”. And there

cannot be social reforms till it is ensured that each and

every citizen of this country is able to exploit his/her

potentials to the maximum. The Constitution, although

drafted by the Constituent Assembly, was meant for the

Page 97 97

people of India and that is why it is given by the people to

themselves as expressed in the opening words “We the

People”. What is the most important gift to the common

person given by this Constitution is “fundamental rights”

which may be called Human Rights as well.

92. The concept of equality in Article 14 so also the

meaning of the words ‘life’, ‘liberty’ and ‘law’ in Article 21

have been considerably enlarged by judicial decisions.

Anything which is not ‘reasonable, just and fair’ is not

treated to be equal and is, therefore, violative of Article

14.

93. Speaking for the vision of our founding fathers, in

State of Karnataka v. Rangnatha Reddy (AIR 1978 SC

215), this Court speaking through Justice Krishna Iyer

observed:

“The social philosophy of the

Constitution shapes creative judicial

vision and orientation. Our nation

has, as its dynamic doctrine,

economic democracy sans which

political democracy is chimerical. We

say so because our Constitution, in

Parts III and IV and elsewhere,

Page 98 98

ensouls such a value system, and the

debate in this case puts precisely this

soul in peril….Our thesis is that the

dialectics of social justice should not

be missed if the synthesis of Parts III

and Part IV is to influence State

action and court pronouncements.

Constitutional problems cannot be

studied in a socio-economic vacuum,

since socio-cultural changes are the

source of the new values, and

sloughing off old legal thought is part

of the process the new equity-loaded

legality. A judge is a social scientist

in his role as constitutional invigilator

and fails functionally if he forgets this

dimension in his complex duties.”

94.While interpreting Art. 21, this Court has

comprehended such diverse aspects as children in jail

entitled to special treatment (Sheela Barse vs. Union of

India [(1986)3 SCC 596], health hazard due to pollution

(Mehta M.C. v. Union of India [(1987) 4 SCC 463],

beggars interest in housing (Kalidas Vs. State of J&K

[(1987) 3 SCC 430] health hazard from harmful drugs

(Vincent Panikurlangara Vs. Union of India AIR 1987

SC 990), right of speedy trial (Reghubir Singh Vs. State

of Bihar, AIR 1987 SC 149), handcuffing of

prisoners(Aeltemesh Rein Vs. Union of India, AIR 1988

Page 99 99

SC 1768), delay in execution of death sentence,

immediate medical aid to injured persons( Parmanand

Katara Vs. Union of India, AIR 1989 SC 2039), starvation

deaths(Kishen Vs. State of Orissa , AIR 1989 SC 677),

the right to know(Reliance Petrochemicals Ltd. Vs.

Indian Express Newspapers Bombay Pvt. Ltd. AIR

1989 SC 190), right to open trial(Kehar Singh Vs. State

(Delhi Admn.) AIR 1988 SC 1883), inhuman conditions an

after-care home(Vikram Deo Singh Tomar Vs. State of

Bihar, AIR 1988 SC 1782).

95.A most remarkable feature of this expansion of Art.21

is that many of the non-justiciable Directive Principles

embodied in Part IV of the Constitution have now been

resurrected as enforceable fundamental rights by the

magic wand of judicial activism, playing on Art.21 e.g.

(a) Right to pollution-free water and air (Subhash

Kumar Vs. State of Bihar, AIR 1991 SC 420).

(b) Right to a reasonable residence ( Shantistar

Builders Vs. Narayan Khimalal Totame AIR 1990 SC

630).

Page 100 100

(c) Right to food (Supra note 14), clothing, decent

environment (supra note 20) and even protection of

cultural heritage (Ram Sharan Autyanuprasi Vs. UOI,

AIR 1989 SC 549) .

(d) Right of every child to a full development

(Shantistar Builders Vs. Narayan Khimalal Totame

AIR 1990 SC 630).

(e) Right of residents of hilly-areas to access to

roads(State of H.P. Vs. Umed Ram Sharma , AIR 1986

SC 847).

(f) Right to education (Mohini Jain Vs. State of

Karnataka, AIR 1992 SC 1858), but not for a professional

degree (Unni Krishnan J.P. Vs. State of A.P., AIR 1993

SC 2178).

96.A corollary of this development is that while so long

the negative language of Art.21 and use of the word

‘deprived’ was supposed to impose upon the State the

negative duty not to interfere with the life or liberty of an

individual without the sanction of law, the width and

amplitude of this provision has now imposed a positive

Page 101 101

obligation (Vincent Panikurlangara Vs. UOI AIR 1987 SC

990) upon the State to take steps for ensuring to the

individual a better enjoyment of his life and dignity, e.g. –

(i) Maintenance and improvement of public health

(Vincent Panikurlangara Vs. UOI AIR 1987 SC 990).

(ii) Elimination of water and air pollution (Mehta

M.C. Vs. UOI (1987) 4 SCC 463).

(iii) Improvement of means of communication (State

of H.P. Vs. Umed Ram Sharma AIR 1986 SC 847).

(iv) Rehabilitation of bonded labourers (Bandhuva

Mukti Morcha Vs. UOI, AIR 1984 SC 802).

(v) Providing human conditions if prisons ( Sher

Singh Vs. State of Punjab AIR 1983 SC 465) and

protective homes (Sheela Barse Vs. UOI (1986) 3 SCC

596).

(vi) Providing hygienic condition in a slaughter-house

(Buffalo Traders Welfare Ass. Vs. Maneka Gandhi

(1994) Suppl (3) SCC 448) .

97.The common golden thread which passes through all

these pronouncements is that Art.21 guarantees

Page 102 102

enjoyment of life by all citizens of this country with

dignity, viewing this human rights in terms of human

development.

98.The concepts of justice social, economic and political,

equality of status and of opportunity and of assuring

dignity of the individual incorporated in the Preamble,

clearly recognize the right of one and all amongst the

citizens of these basic essentials designed to flower the

citizen’s personality to its fullest. The concept of equality

helps the citizens in reaching their highest potential.

99.Thus, the emphasis is on the development of an

individual in all respects. The basic principle of the dignity

and freedom of the individual is common to all nations,

particularly those having democratic set up. Democracy

requires us to respect and develop the free spirit of

human being which is responsible for all progress in

human history. Democracy is also a method by which we

attempt to raise the living standard of the people and to

give opportunities to every person to develop his/her

personality. It is founded on peaceful co-existence and

Page 103 103

cooperative living. If democracy is based on the

recognition of the individuality and dignity of man, as a

fortiori we have to recognize the right of a human being to

choose his sex/gender identity which is integral his/her

personality and is one of the most basic aspect of self-

determination dignity and freedom. In fact, there is a

growing recognition that the true measure of development

of a nation is not economic growth; it is human dignity.

100. More than 225 years ago, Immanuel Kant

propounded the doctrine of free will, namely the free

willing individual as a natural law ideal. Without going into

the detail analysis of his aforesaid theory of justice (as we

are not concerned with the analysis of his jurisprudence)

what we want to point out is his emphasis on the

“freedom” of human volition. The concepts of volition and

freedom are “pure”, that is not drawn from experience.

They are independent of any particular body of moral or

legal rules. They are presuppositions of all such rules,

valid and necessary for all of them.

Page 104 104

101. Over a period of time, two divergent interpretations

of the Kantian criterion of justice came to be discussed.

One trend was an increasing stress on the maximum of

individual freedom of action as the end of law. This may

not be accepted and was criticized by the protagonist of

‘hedonist utilitarianism’, notably Benthem. This school of

thoughts laid emphasis on the welfare of the society

rather than an individual by propounding the principle of

maximum of happiness to most of the people. Fortunately,

in the instant case, there is no such dichotomy between

the individual freedom/liberty we are discussing, as

against public good. On the contrary, granting the right to

choose gender leads to public good. The second tendency

of Kantian criterion of justice was found in re-interpreting

“freedom” in terms not merely of absence of restraint but

in terms of attainment of individual perfection. It is this

latter trend with which we are concerned in the present

case and this holds good even today. As pointed out

above, after the Second World War, in the form of

U.N.Charter and thereafter there is more emphasis on the

attainment of individual perfection. In that united sense at

Page 105 105

least there is a revival of natural law theory of justice.

Blackstone, in the opening pages in his ‘Vattelian

Fashion’ said that the principal aim of society “is to

protect individuals in the enjoyment of those absolute

rights which were vested in them by the immutable laws

of nature……”

102. In fact, the recognition that every individual has

fundamental right to achieve the fullest potential, is

founded on the principle that all round growth of an

individual leads to common public good. After all, human

beings are also valuable asset of any country who

contribute to the growth and welfare of their nation and

the society. A person who is born with a particular sex and

his forced to grow up identifying with that sex, and not a

sex that his/her psychological behavior identifies with,

faces innumerable obstacles in growing up. In an article

appeared in the magazine “Eye” of the Sunday Indian

Express (March 9-15, 2014) a person born as a boy but

with trappings of female ( who is now a female after SRS)

has narrated these difficulties in the following manner:

Page 106 106

“The other children treated me as a

boy, but I preferred playing with girls.

Unfortunately, grown-ups consider

that okay only as long as you are a

small child. The constant inner conflict

made things difficult for me and, as I

grew up, I began to dread social

interactions”.

103. Such a person, carrying dual entity simultaneously,

would encounter mental and psychological difficulties

which would hinder his/her normal mental and even

physical growth. It is not even easy for such a person to

take a decision to undergo SRS procedure which requires

strong mental state of affairs. However, once that is

decided and the sex is changed in tune with psychological

behavior, it facilitates spending the life smoothly. Even

the process of transition is not smooth. The transition

from a man to a woman is not an overnight process. It is a

“painfully” long procedure that requires a lot of patience.

A person must first undergo hormone therapy and, if

possible, live as a member of the desired sex for a while.

To be eligible for hormone therapy, the person needs at

least two psychiatrists to certify that he or she is mentally

sound, and schizophrenia, depression and transvestism

Page 107 107

have to be ruled out first. The psychiatric evaluation

involved a serious a questions on how Sunaina felt, when

she got to know of her confusion and need for sex change,

whether she is a recluse, her socio-economic condition,

among other things.

104. In the same article appearing in the “Eye”

referred to above, the person who had undergone the

operation and became a complete girl, Sunaina (name

changed) narrates the benefit which ensued because of

change in sex, in harmony with her emotional and

psychological character, as is clear from the following

passage in that article:

“Like many other single people in the

city, she can spend hours watching

Friends, and reading thrillers and Harry

Potter. A new happiness has taken seed

in her and she says it does not feel that

she ever had a male body. “I am a person

who likes to laugh. Till my surgery, behind

every smile of mine, there was a struggle.

Now it’s about time that I laughed for real.

I have never had a relationship in my life,

because somewhere, I always wanted to

be treated as a girl. Now, that I am a

woman, I am open to a new life, new

relationships. I don’t have to hide

anymore, I don’t feel trapped anymore. I

love coding and my job. I love cooking. I

Page 108 108

am learning French and when my left foot

recovers fully, I plan to learn dancing. And,

for the first time this year, I will vote with

my new name. I am looking forward to

that,” she says.

105. If a person has changed his/her sex in tune with

his/her gender characteristics and perception ,which has

become possible because of the advancement in medical

science, and when that is permitted by in medical ethics

with no legal embargo, we do not find any impediment,

legal or otherwise, in giving due recognition to the gender

identity based on the reassign sex after undergoing SRS.

106. For these reasons, we are of the opinion that even

in the absence of any statutory regime in this country, a

person has a constitutional right to get the recognition as

male or female after SRS, which was not only his/her

gender characteristic but has become his/her physical

form as well.

(2) Re: Right of TG to be identified and categorized as

“third gender”.

Page 109 109

107. At the outset, it may be clarified that the term

‘transgender’ is used in a wider sense, in the present age.

Even Gay, Lesbian, bisexual are included by the descriptor

‘transgender’. Etymologically, the term ‘transgender’ is

derived from two words, namely ‘trans’ and ‘gender’.

Former is a Latin word which means ‘across’ or ‘beyond’.

The grammatical meaning of ‘transgender’, therefore, is

across or beyond gender. This has come to be known as

umbrella term which includes Gay men, Lesbians,

bisexuals, and cross dressers within its scope. However,

while dealing with the present issue we are not concerned

with this aforesaid wider meaning of the expression

transgender.

108. It is to be emphasized that Transgender in India

have assumed distinct and separate class/category which

is not prevalent in other parts of the World except in some

neighbouring countries . In this country, TG community

comprise of Hijaras, enunch, Kothis, Aravanis, Jogappas,

Shiv-Shakthis etc. In Indian community transgender are

referred as Hizra or the third gendered people. There

Page 110 110

exists wide range of transgender-related identities,

cultures, or experience –including Hijras, Aravanis, Kothis,

jogtas/Jogappas, and Shiv-Shakthis (Hijras: They are

biological males who reject their masculinity identity in

due course of time to identify either as women, or ‘not

men’. Aravanis: Hijras in Tamil Nadu identify as ‘Aravani’.

Kothi: Kothis are heterogeneous group. Kothis can be

described as biological males who show varying degrees

of ‘feminity’. Jogtas/Jogappas: They are those who are

dedicated to serve as servant of Goddess Renukha Devi

whose temples are present in Maharashtra and Karnataka.

Sometimes, Jogti Hijras are used to denote such male-to-

female transgender persons who are devotees of Goddess

Renukha and are also from the Hijra community. Shiv-

Shakthis: They are considered as males who are

possessed by or particularly close to a goddess and who

have feminine gender expression). The way they behave

and acts differs from the normative gender role of a men

and women. For them, furthering life is far more difficult

since such people are neither categorized as men nor

women and this deviation is unacceptable to society’s vast

Page 111 111

majority. Endeavour to live a life with dignity is even

worse. Obviously transvestites, the hijra beg from

merchants who quickly, under threat of obscene abuse,

respond to the silent demands of such detested

individuals. On occasion, especially festival days, they

press their claims with boisterous and ribald singing and

dancing.( A Right to Exist: Eunuchs and the State in

Nineteenth-Century India Laurence W. Preston Modern

Asian Studies, Vol.21,No.2 (1987), pp.371-387).

109. Therefore, we make it clear at the outset that when

we discuss about the question of conferring distinct

identity, we are restrictive in our meaning which has to be

given to TG community i.e. hijra etc., as explained above.

110. Their historical background and individual scenario

has been stated in detail in the accompanying judgment

rendered by my learned Brother. Few things which follow

from this discussion are summed up below:

“(a) Though in the past TG in India was treated

with great respect, that does not remain the

scenario any longer. Attrition in their status was

Page 112 112

triggered with the passing of the Criminal Tribes

Act, 1871 which deemed the entire community of

Hijara persons as innately ‘criminal’ and ‘adapted

to the systematic commission of non-bailable

offences’. This dogmatism and indoctrination of

Indian people with aforesaid presumption, was

totally capricious and nefarious. There could not

have been more harm caused to this community

with the passing of the aforesaid brutal

Legislation during British Regime with the vicious

and savage this mind set. To add insult to the

irreparable injury caused, Section 377 of the

Indian Penal Code was misused and abused as

there was a tendency, in British period, to arrest

and prosecute TG persons under Section 377

merely on suspicion. To undergo this sordid

historical harm caused to TGs of India, there is a

need for incessant efforts with effervescence.

(b) There may have been marginal improvement

in the social and economic condition of TGs in

India. It is still far from satisfactory and these TGs

continue to face different kinds of economic

blockade and social degradation. They still face

multiple forms of oppression in this country.

Discrimination qua them is clearly discernable in

various fields including health care, employment,

education, social cohesion etc.

Page 113 113

(c) The TGs are also citizens of this country. They

also have equal right to achieve their full

potential as human beings. For this purpose, not

only they are entitled to proper education, social

assimilation, access to public and other places

but employment opportunities as well. The

discussion above while dealing with the first

issue, therefore, equally applies to this issue as

well.

111. We are of the firm opinion that by recognizing such

TGs as third gender, they would be able to enjoy their

human rights, to which they are largely deprived of for

want of this recognition. As mentioned above, the issue of

transgender is not merely a social or medical issue but

there is a need to adopt human right approach towards

transgenders which may focus on functioning as an

interaction between a person and their environment

highlighting the role of society and changing the stigma

attached to them. TGs face many disadvantages due to

various reasons, particularly for gender abnormality which

in certain level needs to physical and mental disability. Up

till recently they were subjected to cruelty, pity or charity.

Page 114 114

Fortunately, there is a paradigm shift in thinking from the

aforesaid approach to a rights based approach. Though,

this may be the thinking of human rights activist, the

society has not kept pace with this shift. There appears to

be limited public knowledge and understanding of same-

sex sexual orientation and people whose gender identity

and expression are incongruent with their biological sex.

As a result of this approach, such persons are socially

excluded from the mainstream of the society and they are

denied equal access to those fundamental rights and

freedoms that the other people enjoy freely.(See,

Hijras/Transgender Women in India: HIV, Human Rights

and Social Exclusion, UNDP report on India Issue:

December, 2010).

112. Some of the common and reported problem that

transgender most commonly suffer are: harassment by

the police in public places, harassment at home, police

entrapment, rape, discriminations, abuse in public places

et.al. The other major problems that the transgender

people face in their daily life are discrimination, lack of

Page 115 115

educational facilities, lack of medical facilities,

homelessness, unemployment, depression, hormone pill

abuse, tobacco and alcohol abuse, and problems related

to marriage and adoption. In spite of the adoption of

Universal Declaration of Human Rights (UDHR) in the year

1948, the inherent dignity, equality, respect and rights of

all human beings throughout the world, the transgender

are denied basic human rights. This denial is premised on

a prevalent juridical assumption that the law should target

discrimination based on sex (i.e., whether a person is

anatomically male or female), rather than gender (i.e.,

whether a person has qualities that society consider

masculine or feminine (Katherine M.Franke, The Central

Mistake of Sex Discrimination Law: the Disaggregation of

Sex from Gender, 144 U.Pa.Rev.1,3 (1995) (arguing that

by defining sex in biological terms, the law has failed to

distinguish sex from gender, and sexual differentiation

from sex discrimination). Transgender people are

generally excluded from the society and people think

transgenderism as a medical disease. Much like the

disability, which in earlier times was considered as an

Page 116 116

illness but later on looked upon as a right based approach.

The question whether transgenderism is a disease is hotly

debated in both the transgender and medical-psychiatric

communities. But a prevalent view regarding this is that

transgenderism is not a disease at all, but a benign normal

variant of the human experience akin to left-handedness.

113. Therefore, gender identification becomes very

essential component which is required for enjoying civil

rights by this community. It is only with this recognition

that many rights attached to the sexual recognition as

‘third gender’ would be available to this community more

meaningfully viz. the right to vote, the right to own

property, the right to marry, the right to claim a formal

identity through a passport and a ration card, a driver’s

license, the right to education, employment, health so on.

114. Further, there seems to be no reason why a

transgender must be denied of basic human rights which

includes Right to life and liberty with dignity, Right to

Privacy and freedom of expression, Right to Education and

Empowerment, Right against violence, Right against

Page 117 117

Exploitation and Right against Discrimination. Constitution

has fulfilled its duty of providing rights to transgenders.

Now it’s time for us to recognize this and to extend and

interpret the Constitution in such a manner to ensure a

dignified life of transgender people. All this can be

achieved if the beginning is made with the recognition

that TG as third gender.

115. In order to translate the aforesaid rights of TGs into

reality, it becomes imperative to first assign them their

proper ‘sex’. As is stated earlier, at the time of birth of a

child itself, sex is assigned. However, it is either male or

female. In the process, the society as well as law, has

completely ignored the basic human right of TGs to give

them their appropriate sex categorization. Up to now, they

have either been treated as male or female. This is not

only improper as it is far from truth, but indignified to

these TGs and violates their human rights.

116. Though there may not be any statutory regime

recognizing ‘third gender’ for these TGs. However, we find

enough justification to recognize this right of theirs in

Page 118 118

natural law sphere. Further, such a justification can be

traced to the various provisions contained in Part III of the

Constitution relating to ‘Fundamental Rights’. In addition

to the powerful justification accomplished in the

accompanying opinion of my esteemed Brother, additional

raison d’etre for this conclusion is stated hereinafter.

117. We are in the age of democracy, that too

substantive and liberal democracy. Such a democracy is

not based solely on the rule of people through their

representatives’ namely formal democracy. It also has

other percepts like Rule of Law, human rights,

independence of judiciary, separation of powers etc.

118. There is a recognition to the hard realty that without

protection for human rights there can be no democracy

and no justification for democracy. In this scenario, while

working within the realm of separation of powers (which is

also fundamental to the substantive democracy), the

judicial role is not only to decide the dispute before the

Court, but to uphold the rule of law and ensure access to

justice to the marginalized section of the society. It cannot

Page 119 119

be denied that TGs belong to the unprivileged class which

is a marginalized section.

119. The role of the Court is to understand the central

purpose and theme of the Constitution for the welfare of

the society. Our Constitution, like the law of the society, is

a living organism. It is based on a factual and social realty

that is constantly changing. Sometimes a change in the

law precedes societal change and is even intended to

stimulate it. Sometimes, a change in the law is the result

in the social realty. When we discuss about the rights of

TGs in the constitutional context, we find that in order to

bring about complete paradigm shift, law has to play more

pre-dominant role. As TGs in India, are neither male nor

female, treating them as belonging to either of the

aforesaid categories, is the denial of these constitutional

rights. It is the denial of social justice which in turn has the

effect of denying political and economic justice.

120. In Dattatraya Govind Mahajan vs. State of

Maharashtra (AIR 1977 SC 915) this Court observed:

Page 120 120

“Our Constitution is a tryst with

destiny, preamble with luscent

solemnity in the words ‘Justice – social,

economic and political.’ The three

great branches of Government, as

creatures of the Constitution, must

remember this promise in their

fundamental role and forget it at their

peril, for to do so will be a betrayal of

chose high values and goals which this

nation set for itself in its objective

Resolution and whose elaborate

summation appears in Part IV of the

Paramount Parchment. The history of

our country’s struggle for

independence was the story of a battle

between the forces of socio-economic

exploitation and the masses of

deprived people of varying degrees

and the Constitution sets the new

sights of the nation…..Once we grasp

the dharma of the Constitution, the

new orientation of the karma of

adjudication becomes clear. Our

founding fathers, aware of our social

realities, forged our fighting faith and

integrating justice in its social,

economic and political aspects. While

contemplating the meaning of the

Articles of the Organic Law, the

Supreme Court shall not disown Social

Justice.”

121. Oliver Wendlle Holmes said: “the life of law has

been logical; it has been experience”. It may be added

that ‘the life of law is not just logic or experience. The life

of law is renewable based on experience and logic, which

Page 121 121

adapted law to the new social realty’. Recognizing this

fact, the aforesaid provisions of the Constitution are

required to be given new and dynamic meaning with the

inclusion of rights of TGs as well. In this process, the first

and foremost right is to recognize TGs as ‘third gender’ in

law as well. This is a recognition of their right of equality

enshrined in Art.14 as well as their human right to life with

dignity, which is the mandate of the Art.21 of the

Constitution. This interpretation is in consonance with new

social needs. By doing so, this Court is only bridging the

gap between the law and life and that is the primary role

of the Court in a democracy. It only amounts to giving

purposive interpretation to the aforesaid provisions of the

Constitution so that it can adapt to the changes in realty.

Law without purpose has no raison d’etre. The purpose of

law is the evolution of a happy society. As Justice Iyer has

aptly put:

“The purpose of law is the

establishment of the welfare of

society “and a society whose

members enjoy welfare and

happiness may be described as a

just society. It is a negation of

Page 122 122

justice to say that some members,

some groups, some minorities,

some individuals do not have

welfare: on the other hand they

suffer from ill-fare. So it is

axiomatic that law, if it is to fulfil

itself, must produce a contented,

dynamic society which is at once

meting out justice to its members.”

122. It is now very well recognized that the Constitution is

a living character; its interpretation must be dynamic. It

must be understood in a way that intricate and advances

modern realty. The judiciary is the guardian of the

Constitution and by ensuring to grant legitimate right that

is due to TGs, we are simply protecting the Constitution

and the democracy inasmuch as judicial protection and

democracy in general and of human rights in particular is

a characteristic of our vibrant democracy.

123. As we have pointed out above, our Constitution

inheres liberal and substantive democracy with rule of

law as an important and fundamental pillar. It has its own

internal morality based on dignity and equality of all

human beings. Rule of law demands protection of

individual human rights. Such rights are to be guaranteed

Page 123 123

to each and every human being. These TGs, even though

insignificant in numbers, are still human beings and

therefore they have every right to enjoy their human

rights.

124. In National Human Rights Commission vs. State of

Arunachal Pradesh (AIR 1996 SC 1234), This Court

observed:

“We are a country governed by

the Rule of Law. Our Constitution

confers certain rights on every human

being and certain other rights on

citizens. Every person is entitled to

equality before the law and equal

protection of the laws.”

125. The rule of law is not merely public order. The rule

of law is social justice based on public order. The law

exists to ensure proper social life. Social life, however, is

not a goal in itself but a means to allow the individual to

life in dignity and development himself. The human being

and human rights underlie this substantive perception of

the rule of law, with a proper balance among the different

rights and between human rights and the proper needs of

society. The substantive rule of law “is the rule of proper

Page 124 124

law, which balances the needs of society and the

individual.” This is the rule of law that strikes a balance

between society’s need for political independence, social

equality, economic development, and internal order, on

the one hand, and the needs of the individual, his personal

liberty, and his human dignity on the other. It is the duty

of the Court to protect this rich concept of the rule of law.

126. By recognizing TGs as third gender, this Court is not

only upholding the rule of law but also advancing justice to

the class, so far deprived of their legitimate natural and

constitutional rights. It is, therefore, the only just solution

which ensures justice not only to TGs but also justice to

the society as well. Social justice does not mean equality

before law in papers but to translate the spirit of the

Constitution, enshrined in the Preamble, the Fundamental

Rights and the Directive Principles of State Policy into

action, whose arms are long enough to bring within its

reach and embrace this right of recognition to the TGs

which legitimately belongs to them.

Page 125 125

127. Aristotle opined that treating all equal things equal

and all unequal things unequal amounts to justice. Kant

was of the view that at the basis of all conceptions of

justice, no matter which culture or religion has inspired

them, lies the golden rule that you should treat others as

you would want everybody to treat everybody else,

including yourself. When Locke conceived of individual

liberties, the individuals he had in mind were

independently rich males. Similarly, Kant thought of

economically self-sufficient males as the only possible

citizens of a liberal democratic state. These theories may

not be relevant in today’s context as it is perceived that

the bias of their perspective is all too obvious to us. In

post-traditional liberal democratic theories of justice, the

background assumption is that humans have equal value

and should, therefore, be treated as equal, as well as by

equal laws. This can be described as ‘Reflective

Equilibrium’. The method of Reflective Equilibrium was

first introduced by Nelson Goodman in ‘Fact, Fiction and

Forecast’ (1955). However, it is John Rawls who elaborated

this method of Reflective Equilibrium by introducing the

Page 126 126

conception of ‘Justice as Fairness’. In his ‘Theory of

Justice’, Rawls has proposed a model of just institutions for

democratic societies. Herein he draws on certain pre-

theoretical elementary moral beliefs (‘considered

judgments’), which he assumes most members of

democratic societies would accept. “[Justice as fairness

[….] tries to draw solely upon basic intuitive ideas that are

embedded in the political institutions of a constitutional

democratic regime and the public traditions of their

interpretations. Justice as fairness is a political conception

in part because it starts from within a certain political

tradition. Based on this preliminary understanding of just

institutions in a democratic society, Rawls aims at a set of

universalistic rules with the help of which the justice of

present formal and informal institutions can be assessed.

The ensuing conception of justice is called ‘justice as

fairness’. When we combine Rawls’s notion of Justice as

Fairness with the notions of Distributive Justice, to which

Noble Laureate Prof. Amartya Sen has also subscribed, we

get jurisprudential basis for doing justice to the Vulnerable

Groups which definitely include TGs. Once it is accepted

Page 127 127

that the TGs are also part of vulnerable groups and

marginalized section of the society, we are only bringing

them within the fold of aforesaid rights recognized in

respect of other classes falling in the marginalized group.

This is the minimum riposte in an attempt to assuage the

insult and injury suffered by them so far as to pave

way for fast tracking the realization of their human rights.

128. The aforesaid, thus, are my reasons for treating TGs

as ‘third gender’ for the purposes of safeguarding and

enforcing appropriately their rights guaranteed under the

Constitution. These are my reasons in support of our

Constitution to the two issues in these petitions.

…………………….J.

(A.K.Sikri)

129. We, therefore, declare:

(1) Hijras, Eunuchs, apart from binary gender, be

treated as “third gender” for the purpose of

safeguarding their rights under Part III of our

Constitution and the laws made by the

Parliament and the State Legislature.

Page 128 128

(2) Transgender persons’ right to decide their self-

identified gender is also upheld and the Centre

and State Governments are directed to grant

legal recognition of their gender identity such

as male, female or as third gender.

(3) We direct the Centre and the 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 are directed to

operate separate HIV Sero-survellance Centres

since Hijras/ Transgenders face several sexual

health issues.

(5) Centre and State Governments should seriously

address the problems being faced by

Hijras/Transgenders such as fear, shame,

gender dysphoria, social pressure, depression,

suicidal tendencies, social stigma, etc. and any

insistence for SRS for declaring one’s gender is

immoral and illegal.

(6) Centre and State Governments should take

proper measures to provide medical care to TGs

in the hospitals and also provide them separate

public toilets and other facilities.

Page 129 129

(7) Centre and State Governments should also take

steps for framing various social welfare

schemes for their betterment.

(8) Centre and State Governments should 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 should also

take measures to regain their respect and place

in the society which once they enjoyed in our

cultural and social life.

130. We are informed an Expert Committee has already

been constituted to make an in-depth study of the

problems faced by the Transgender community and

suggest measures that can be taken by the Government to

ameliorate their problems and to submit its report with

recommendations within three months of its constitution.

Let the recommendations be examined based on the legal

declaration made in this Judgment and implemented within

six months.

131. Writ Petitions are, accordingly, allowed, as above.

Page 130 130

…..………………………J.

(K.S.

Radhakrishnan)

………………………….J.

(A.K. Sikri)

New Delhi,

April 15, 2014.