Rights of transgendered persons in India

In Context

• The ruling in National Legal Services Authority (NLSA) v. Union Of India, famously known as the NALSA Case, has far-reaching implications. 

The judgement of the NALSA Case:

• Legal Recognition for Third Gender: 
  • The Court directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third-gender.
    • Further, it declared that hijras and eunuchs can legally identify as “third gender”.
• Fundamental Rights:
  • In recognizing the third gender category, the Court recognized that fundamental rights are available to the third gender in the same manner as they are to males and females. 
• Self-identification:
  • The Court upheld the right of all persons to self-identify their gender.
  • Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.
• Public Health and Sanitation: 
  • Centre and State Governments have been directed to take proper measures to provide medical care to transgenders in hospitals and provide them with separate public toilets and other facilities. 
  • Further, they have been directed to operate separate HIV/Sero-surveillance measures for transgender people.
• Socio-Economic Rights: 
  • Recognising third gender persons as a “socially and educationally backward class of citizens”, entitled to reservations in educational institutions and public employment.
• Stigma and Public Awareness: 
  • These are the broadest directions – Centre and State Governments were asked to:
    • Take steps to create public awareness to better help incorporate transgender individuals into society and end treatment as untouchables;
    • Take measures to regain their respect and place in society; and 
    • Seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma.

Significance of the ruling:

• First of its kind:
  • This is a landmark decision because it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender persons in India. 
    • The Court held that transgendered persons should not be compelled to declare themselves as either male or female.
• Access to facilities:
  • The court acknowledged that the lack of recognition of their gender identity curtails their access to education, health care and public places, and results in discrimination in the exercise of their right to vote and secure employment, driving licenses and other documentation where eligibility is contingent on declaring oneself as either male or female.
• Broad definition of transgender:
  • An outstanding feature of the decision is that the judges accepted the broad definition of transgender as including persons whose gender identity, gender expression or behaviour did not conform to their biological sex, and more importantly, those who did not identify with the sex assigned to them at birth.
    • They referred to each person’s experience of gender, which may involve a freely chosen modification of bodily appearance or functions by medical or other means. 
• Recognition of international judgments:
  • While the decision is largely based on the protection of fundamental rights, the Court also relied on a host of UN human rights provisions as well as the 2006 Yogyakarta principles.

Challenges faced by Transgender Community:

• Discrimination and ostracisation:
  • They face discrimination in employment, educational institutes, and within families which severely affects their overall wellbeing.
• Identity crisis:
  • They are often forced to identify with a gender with which they are not associated at the workplace despite the government passing the Transgender Persons (Protection of Rights) Act, 2019 which allows the community the right to self-perceived gender identity.
• Social Stigma:
  • They often face difficulty in property inheritance or child adoption. Because of being socially ostracised, they are compelled to take up menial jobs despite good qualifications or forced into sex work.
• Unemployment:
  • The community has limited avenues of employment and faces severe discrimination at work because of the associated social stigma.
• Lack of public amenities:
  • They face issues with the accessibility of public toilets and public spaces. They often face problems in prisons, hospitals and schools.

Way Forward:

• The judgement and the following legislations has been a welcome step to mainstream the community in society and increase the sense of respect for the transgender community. 
  • But it still lacks many rights like marriage, adoption, surrogacy etc. which gradually, if not sooner should be granted to the community.