Shakespeare, Measures of Measures, Act 2, Sec.1.

Introduction

National Legal Services Authority v. Union of India[footnoteRef:2] (NLSA) case is a step forwards that recognizes the constitutional and other legal rights of transgender community and their gender identification as well as sexual orientation. The case is a milestone in the expounding of recognition of transgender as a person before the law and equal protection of the laws. The expression ‘person’ under Article 14 means and includes male, female and transgender community (TGC). This dimension disseminates a major psychological thinking as well as satisfaction or psychological boost to this third gender which gives much prominence in recognition of the sex identification.

This seeks to achieve the goals of equality and liberty encapsulated in Articles 14, 15, 16 and 21, viz., they can be categorized or grouped in the domain of classification for the purposes of benefits of affirmative action or preferential treatment or compensatory benefits for the advancement of this socially and educationally backward class of citizens that has remained neglected or underserved or underprivileged or marginalized weaker section of the society because of society’s moral failure and unwillingness to contain or embrace different identities and expressions.[footnoteRef:3] This SEBCs category needs preferential compensatory treatment so that they become better-off in all fields of life thus enjoying the fruits of reservation in educational institutions, employment inasmuch as that equality, life, liberty and dignity become meaningful. This is possible only if the people of India start realizing or caring to realize the trauma, agony and pain which the members of transgender community undergo or start appreciating their innate feelings and change their mindset by bringing such class of citizenry within the fold of We the People of India functionally. [2: MANU/SC/0309/2014; (2014) 5 SCC 438. ] [3: Id. p.2.]

Fact Situation

The TGC’s grievance was that non-recognition of their gender identity violates their fundamental rights to equality and life and liberty of the Constitution of India and as such sought a legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth so that they, too, could enjoy the equality of status and opportunity and right to life, liberty and human dignity enjoined in Articles 14 and 21. They also claimed legal status as a third gender with all legal and constitutional protection. The NLSA, constituted under the Legal Services Authority Act, 1997, to provide free legal services to the weaker and other marginalized sections of the society, has come forward to advocate TGCs’ cause.

Contentions

It was urged that the State cannot discriminate the TGC on the ground of gender bias violating Articles 14, 15, 16 and 21 of the Constitution of India. It was also contended that non-recognition of gender identity of the TGC violates the fundamental rights guaranteed to them as citizens of India. It was emphasized that various International Forums and UN Bodies have recognized the identity of transsexual persons on the basis of Yogyakarta Principles[footnoteRef:4] which have been recognized through legislations by many countries around the globe. It was also contended that TGC or transsexual persons be declared socially and educationally backward classes of citizens and must be accorded benefits — social, economic and educational — available to that class of persons, which are being extended to male and female genders SEBCs and as such the TG persons be afforded the right of choice to determine whether to opt for male, female or transgender community or transsexual persons classification. [4: Yogyakarta Principles have been drafted, developed, discussed and reformed by a distinguished group of human rights experts in a meeting held at Gadjah Mada University in Yogayakarta, Indonesia from 6 to 9 November, 2006, which unanimously adopted the Yogayakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. ]

Conceptual Approach of Transgender Community

Transgender is an umbrella term used for a wide range of identities and experiences including persons whose gender identity or gender expression or gender behavior does not conform to their biological sex — male or female. They are described as ‘third gender’ as an institution that includes and comprises of hijras or eunuchs or napunsaka or tritiya prakriti or kothis or aravanis or jogappas, etc. Either of the expressions used for third gender denote absence of procreative capability. TGC also includes 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. SRS are generally called transsexual persons. Besides, there are persons who like to cross-dress in clothing of opposite gender, viz., transvestites.

Historical Background of TGC

Before arriving at just exposition of law on the recognition of transgender persons, the Apex Court, besides examining the concept of TGC, equally revisited the historical background of transgender persons who could find a respectable as well as acceptable reference of prominence in the ancient literature because the prominent role played by them in the historical incidents. TGC, as a group, have had a strong historical presence in our ancient religious literature and other literature, viz., Vedic and Puranic literature make a mention of ‘tritiya prakriti’ or ‘napunska’ for TGC, Ramayana (Lord Rama’s benediction to TGC to confer blessings on people on auspicious occasions, which is believed to set a stage for the custom of badhai), Mahabharata (The incident of Aravan, the son of Arjuna and Nagkanaya in Mahabharata, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandvas in Kurukshetra and the hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis; and another prominent reference is to ‘Shikhandi’ encountering Bhishma in Kurukshetra), Jain textual literature make a detailed reference to the concept of ‘psychological sex’ which is a reference mentioning about TGC, hijras were kept in the courts of Mughal rulers in Medieval India.

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On the question of arbitrariness and bad classification, the Apex Court expounded, and rightly so, that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. … A miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last 150 years less than 200 persons have been prosecuted for committing offences under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

Conclusion

Justice confronts TGs with concepts of ‘justice with fairness’ inasmuch as it confronts all persons and citizens. It is not a question of ‘ethics/morals and religious’ affairs that is a notion of private matters; it is a matter of ‘law and morality’ that is a matter of public as well as legal regime as a question of policy. TGs case rests on two perceptions — one about freedom and equality, and the other about their welfare. People should not be oblivious to the sufferings of TGs. While recognizing TGs rights to sex identification, the Supreme Court has done it with “virtue argument”. Virtue argument is a virtue direction to the State to do justice to TGs through its policy directives so that equality, justice (justice as fairness, distributive justice, and affirmative action justice), freedoms, life, liberty, fraternity and dignity become meaningful.

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