On 15 April 2014, in a judgment which has been widely praised by equal rights activists around the world, the Supreme Court of India held that recognising only two gender identities (male and female) violated constitutional rights. In National Legal Services Authority v Union of India and others, the Court found that the right to self-identify one’s gender, including as “third gender”, was an important part of the constitutional right to live with dignity. Further, the state was required to take affirmative action measures in order to achieve equality for transgender people. The decision – its tone and approach in stark contrast to the Court’s recent regressive decision in Suresh Kumar Koushal and another v NAZ Foundation and others – should offer inspiration to courts in the many countries which continue to recognise only a gender binary. The case was brought on behalf of a number of groups who do not identify clearly as male or female when a biologically determined binary approach to gender is applied. These groups include Hijras, Kothis, Aravanis and other transgender people (“the represented groups”). The Court was asked to consider whether the recognition of only the binary genders of male and female under Indian law and the lack of legal measures to cater for the needs of the represented groups contradicted a number of constitutional rights including the rights to a dignified life, equality before the law, non-discrimination and freedom of expression. In arguing that these rights were being violated, the petitioners noted that the gender a person is assigned at birth determines his or her rights in relation to marriage, adoption, inheritance, succession, taxation and welfare and that the absence of legislation protecting transgender people means they face discrimination in various areas of life. In a judgment which drew heavily from international human rights principles and standards, the Court found violations of a number of fundamental rights under the Indian Constitution. Specifically, the Court stated that:
- The right to choose one’s gender identity is integral to the right to a life with dignity and therefore falls within the scope of the right to life under the Indian Constitution (Article 21).
- The right to equality before the law under Article 14 of the Indian Constitution applies to all persons, including transgender persons, who are thereby entitled to equal protection of the law in all spheres including employment, health care, education and civil rights.
- The prohibition of sex discrimination under Articles 15 and 16 of the Constitution is a prohibition against all forms of gender bias and gender based discrimination including discrimination against transgender people.
- The state is obliged to take affirmative action to advance “socially and educationally backward classes” and this includes transgender people, who have faced centuries of injustice (Article 15(4)).
- Expressing one’s identity through words, dress, action or behaviour is included in the right to freedom of expression (Article 19). The values of privacy, self-identity, autonomy and personal integrity are also fundamental rights under Article 19 and these rights belong to transgender people as well as others.
On this basis the Court rejected the biologically determined binary of male or female gender. It declared that India’s centre and state governments should grant legal recognition of a transgender person’s identity as male, female or third gender in accordance with that person’s self-identification. It also declared that centre and state governments should take positive measures to fully realise the rights of transgender people including by: ensuring that transgender people benefit from reservations for educational institutions and public appointments; making available focused medical care and social welfare schemes; and conducting public awareness raising campaigns to reduce society’s ostracisation of the represented groups.
ERT strongly welcomes the judgment of the Court as an important step in the advancement of the equal rights of transgender and intersex persons. ERT urges the Indian central and state governments to act swiftly to implement the decision. Furthermore, ERT is hopeful that other states may draw inspiration from the judgment and act to ensure that the right of every person to legal recognition of their self-identified gender is respected.