NALSA V. Union Of India

NALSA V. Union Of India (2014): Case Analysis

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This article on ‘NALSA V. Union Of India (2014): Case Analysis‘ was written by Shruti Pandey an intern at Legal Upanishad.

INTRODUCTION

India’s society has historically shown a lack of gender awareness, evident in its general attitude and legal framework. Specific legislation and provisions are essential to ensure the protection of individuals who identify outside the traditional male-female binary. The experiences of transgender individuals are marked by ongoing suffering and hardship. Society’s failure to embrace their differences has led to the denial of their rights and subjected them to continuous physical and psychological violence.

As a result, they are marginalized and excluded from various social, religious, and political activities, facing discrimination and ostracization. In India, the rights of these individuals are largely recognized from various Articles within Part III of the Constitution, as there is no dedicated legislation to safeguard their rights. This article deals with the landmark case of NALSA V. Union of India which deals with the recognition of the rights of the Transgender community under the legal framework of India.

FACTS OF THE NALSA V. UNION OF INDIA (2014) CASE

In contemporary times, individuals from the transgender community endure significant humiliation and disgrace. They are unjustly deprived of essential services such as medical and educational facilities. Moreover, they face exploitation and harassment from others, all of which directly violate the fundamental rights guaranteed by our country.

Strikingly, various laws concerning marriage, adoption, inheritance, succession, taxation, and welfare are contingent upon a binary classification of gender as male or female, which is typically determined at birth. This lack of legal provisions specifically catering to individuals of the third gender has resulted in widespread discrimination across various aspects of life.

As a result, two writ petitions were initiated to uphold and safeguard the rights of individuals belonging to the transgender community:

  1. The initial writ petition (writ petition no. 400 of 2012) was submitted by the National Legal Services Authority, which operates under the Legal Services Authority Act, 1997.
  2. Following that, another writ petition (No. 604 of 2013) was brought forward by Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered association committed to safeguarding the rights of the Kinnar (Transgender) community.

ISSUES

  • PROTECTION OF GENDER IDENTITY: The primary focus of the petitions revolved around addressing matters concerning gender identity and the imperative to safeguard the rights and welfare of individuals identifying as the third gender.
  • RECOGNITION OF GENDER IDENTITY: Among the queries raised was the matter of whether a person born male but identifying as female should have the legal right to be acknowledged as female. Similarly, the question emerged regarding individuals undergoing gender-affirming surgery and their entitlement to be recognized according to their transitioned sex.
  • RIGHTS OF NON-BINARY INDIVIDUALS: The petitioners also brought forth the issue of whether individuals who identify neither as male nor female should have the right to be officially recognized and classified under a “third gender” category.

LAWS INVOLVED

The petitioners in the NALSA V. Union Of India (2014) case strongly contended that the notion of binary genders directly impacts the fundamental rights of the Right to Equality (Article 14), the Right to Life and Personal Liberty (Article 21), and Freedom of Expression (Article 19). The Court rendered the judgment based on the stated Articles of the Constitution.

JUDGEMENT

LANDMARK RULING AND INTERNATIONAL INFLUENCE:

In the ruling of the NALSA V. Union Of India (2014) case, the court drew upon various judgments from foreign courts in New Zealand, Australia, Malaysia, Pakistan, and England. The ruling emphasized the importance of distinguishing between “Biological sex” and “Psychological sex” when identifying an individual’s gender.

It underscored the need to consider psychological sex rather than solely relying on biological sex for gender identification. To ensure alignment with international standards, the court mandated the recognition and adherence to all provisions of international conventions, including the Yogyakarta Principles, as long as they uphold the fundamental rights guaranteed by Part III of the Constitution.

CONSTITUTIONAL PROTECTION FOR TRANSGENDERS

The court’s ruling reaffirmed the protection of transgenders under the Indian Constitution, entitling them to all the rights guaranteed therein. Article 14 of the Constitution ensures equality to “any person,” including men, women, and transgender individuals, granting them equal protection of the law. This ensures their rights in various aspects of life, such as employment, healthcare, education, and civil liberties.

COMBATTING DISCRIMINATION AND UPHOLDING RIGHTS

The court decisively ruled that discrimination based on sexual orientation and gender identity constitutes a form of inequality before the law and contravenes Article 14 of the Constitution. Additionally, transgender individuals were recognized to have the freedom of expression under Article 19, allowing them to express themselves through speech, clothing, actions, and behaviour as they prefer. Moreover, Article 21 guarantees their right to live a life of dignity.

GOVERNMENT RESPONSIBILITIES AND DECLARATIONS

The court directed both the State and Central governments to grant full legal recognition to transgenders, ensuring their access to education and healthcare without facing any form of discrimination. As a significant step towards inclusivity, Hijras and Eunuchs were designated as the “third gender.”

The court issued specific declarations and directions to the governments, including the establishment of dedicated HIV Zero-Surveillance Centres, provisions for separate public toilets, and assurance of appropriate medical care in hospitals specifically catering to the needs of transgender individuals. These measures aimed to provide a safer and more supportive environment for the transgender community.

CONCLUSION

The ruling brought a renewed sense of hope for the transgender community, which has endured significant discrimination and social injustice for an extended period. While we must not be overly optimistic that this judgment alone will revolutionize society’s treatment of transgender individuals, it marks a crucial step towards rectifying the historic injustices they have faced. Achieving equal rights for transgenders in our socio-religious and socio-political spheres remains a formidable task, and there is still a considerable distance to cover. Presently, despite this landmark judgment, many transgender individuals find themselves either struggling to integrate into mainstream society or relegated to the fringes as outcasts.

REFERENCES

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