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Supreme Court of India recognizes transgender as third gender .

Supreme Court of India recognizes transgender as third gender .

Supreme Court of India.

National Legal Services Authority V. Union of India & Others.

Writ Petition (Civil) No. 400 of 2012 with Writ Petition (Civil) No.604 of 2013.

Before: Radhakrishnand and A.K. Sikri, JJ.

15th April, 2014.

Reported by Linda Awuor and Diana Kerubo.

Brief facts.

The petitioner in this case, an institution constituted under the Legal Services Authority Act, 1997 sought reliefs in respect of Kinnar ,a transgender community highlighting the traumatic experiences they faced. The petition was supported by the life experiences of a member  of the Hijra community(Laxmi Narayan Tripathy) and a eunuch(Siddarth Narrain) who were impleaded  to put across  the cause of the members  of the  of the transgender community.

The petitioner argued that every person of the transgender community had a legal right to decide their sex orientation and to espouse and determine their identity. And that since the transgenders were neither treated as male or female, nor given the status of a third gender, they were deprived of many of the rights and privileges which other persons enjoy as citizens of the country. They were also 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.

It was also pointed out that the community faced discrimination to contest election, right to vote, employment, to get licenses and, in effect, treated as outcasts. This according to the petitioner amounted to discrimination on grounds of gender, violating Articles 14 to 16 and 21 of the Constitution of India.

Transgender.

Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. Transgender also takes in persons who do not identify with their sex assigned at birth, and they do not identify as either male or female.

Transgenders also include 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. The term is used to describe wide range of identities and experiences, including but not limited to pre-operative, postoperative and non-operative transsexual people, who strongly identify with the gender opposite to their biological sex; male and female.

In India there is a perceived wide range of transgender related identities, cultures or experiences which are:

Hijras- do not identify with their sex assigned at birth, 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).

Eunuchs-They refer to emasculated male and intersexed to a person whose genitals are ambiguously male-like at birth.

Aravanis and ‘Thirunangi-biological male who self-identifies himself as a  woman trapped in a  male’s body.

Kothi – They are a heterogeneous group. They are described as biological males who show varying degrees of ‘femininity’ which may be situational. Some have bisexual behavior and get married to women.

Jogtas/Jogappas: The term’JogtiHijras’ 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 woman’s attire when they worship the Goddess. Also, that term differentiates them from ‘Jogtis’ who are biological females dedicated to the Goddess.

Shiv-Shakthis: These are 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.

Issues:

  1. Whether transgenders have a right to be identified third gender.
  2.  Whether persons born male with predominantly female orientation (or vice versa), or having undergone operational procedure to change sex have a right to be recognized as per their choice.

International Human Rights Law-gender law–-gender identity and sexual orientation- transgenders-right to personal liberty-whether an individual is at liberty to choose their gender identity and sexual orientation- Constitution of India article 21.

International Human Rights Law -fundamental rights-freedom from discrimination-transgender as ‘third gender’-whether recognition of the binary (male and female) genders with the exclusion of the transgender as a ‘third gender’ amounts to discrimination as to sex- constitution of India article 15 and article16 (2).

International Human Rights Law -fundamental rights-equality before the law-whether non-recognition of transgenders as ‘third gender’ under legislation denies the right to equal protection before the law- constitution of India article 14.

The Constitution of India.

Article 14

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the 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.

Article16 (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 of, any employment or office under the State.

Article 21

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Held:

  1. Determination of gender to which a person belonged to, was left to the decision of the person concerned. In other words, gender identity was found to be integral to the dignity of an individual and at the core of personal autonomy and self-determination.The protection offered by Article 21 of the Constitution was that of the right to self-determination of the gender to which a person belongs. Thus the Hijras/Eunuchs, were considered as the third gender, over and above binary genders under the Constitution and the laws.
  2. Articles 14, 15, 16, 19 and 21of the Constitution of India, did not exclude Hijras/Transgenders from its ambit, but Indian law as a whole recognized the paradigm of binary genders of male and female,based on one’s biological sex. The binary notion of gender had for instance been reflected in the Indian Penal Code, and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations. Non-recognition of the identity of Hijras/Transgender in the various legislations denied them equal protection of law and they as a result faced wide-spread discrimination.
  3. The Constitution of India under Article 14 used the expression “person” and Article 15 used the expression “citizen” and “sex” same to Article 16. Article 19 also used the expression “citizen”. Article 21 used the expression “person”. All these expressions were held to be “gender neutral” which evidently referred to human-beings. This covered Hijras/Transgenders who are not limited to male or female gender.
  4. Gender identity according to the court formed the core of one’s personal self, based on self- identification, not on surgical or medical procedure. Gender identity was thus held as an integral part of sex and that no citizen could be discriminated on the ground of gender identity, including those who identified as third gender.It further held that discrimination on the basis of sexual orientation or gender identity included any discrimination, exclusion, restriction or preference, which had the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under the Constitution, and hence the court was inclined to give various directions to safeguard the constitutional rights of the members of the transgender community.
  5. If a person changed his/her sex in tune with his/her gender characteristics and perception, a procedure that became possible due advancement in medical science, and if that was permitted in medical ethics with no legal embargo, the court posed no impediment, legal or otherwise, in giving due recognition to the gender identity based on the reassign sex after undergoing SRS. It was for this reason that even in the absence of a statutory regime in the country, a person had a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but became his/her physical form as well. Transgenders thus had a right to be identified and categorized as “third gender”.
  6. The term transgender was used in the wider sense. Even gay, lesbian, bisexual were included by the descriptor ‘transgender’. Etymologically, the term ‘transgender’ was derived from two words, namely ‘trans’ and ‘gender’. The former being a Latin word meaning ‘across’ or ‘beyond’. The grammatical meaning of ‘transgender’, therefore, is across or beyond gender. This came to be known as the umbrella term which included Gay men, Lesbians, bisexuals, and cross dressers within its scope. However, while dealing with the issue, the court was not concerned with the wider meaning of the expression transgender.
  7. Transgender in India assumed a distinct and separate class/category which was not prevalent in other parts of the World except in some neighbouring countries. The transgender community comprises of Hijras, eununch, Kothis, Aravanis, Jogappas, Shiv- Shakthis etc.  [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].Thus on the question of conferring distinct identity, the court restricted the meaning that was to be givento the transgender community such as the Hijra etc.
  8.  The historical background of transgenders was that they were treated with respect, a scenario that did not apply anymore. The attrition in their status was triggered with the passing of the Criminal Tribes Act, 1871 which deemed the entire community of Hijra persons as innately ‘criminal’ and ‘adapted to the systematic commission of non-bailable offences’. Further injury was caused by, Section 377 of the Indian Penal Code which was misused and abused as there was a tendency, in British period, to arrest and prosecute transgenders under Section 377 merely on suspicion.
  9. There could have been marginal improvement in the social and economic condition of transgenders in India. This was however still far from satisfactory as the transgenders still faced different kinds of economic blockade and social degradation. They still faced multiple forms of oppression. Transgenders were thus citizens with the equal right to achieve their full potential as human beings and further entitled to proper education, social assimilation, access to public and other places but employment opportunities.
  10. Recognizing transgender as third gender meant that, they would be able to enjoy their human rights, to which they were largely deprived of for want of the recognition.
  11. Gender identification was  an essential component required for enjoying civil rights by the community. It was only with the recognition, that many rights attached to the sexual recognition as ‘third gender’ would be available to the community more meaningfully such as 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.
  12. There was no reason as to why a transgender would be denied of basic human rights which include right to life and liberty with dignity, right to privacy and freedom of expression, right to education and empowerment, right against violence, right against exploitation and right againstdiscrimination. The Constitution fulfilled its duty of providing rights to transgender and it was now time for the court to recognize and interpret it in a manner that ensured dignified life for transgender people.
  13. In order to translate the rights of transgenders into reality, it was imperative to first assign them their proper ‘sex’. Sex  was assigned at the time of birth of the child as either male or female. In the process, the law and society completely ignored the basic human right of transgenders to give them the appropriate sex categorization. They as a result have been treated as either male or female. This has in dignified the transgenders and amounted to a violation of their human rights.
  14. Though there was no statutory regime recognizing ‘third gender’ for the transgenders. There was however enough justification to recognize this right in the natural law sphere. This was traced to the various provisions contained in Part III of the Constitution relating to‘Fundamental Rights’.
  15. The term rule of law did not merely mean public order. It also connoted social justice based on public order.The law existed to ensure proper social life. Social life was  a means to allow an individual the right to life in dignity and development. The Court had duty to protect this concept of the rule of law.By recognizing transgender as third gender; the Court not only upheld the rule of law but also advanced justice to the class, so far deprived of their legitimate natural and constitutional rights. This was the only solution that ensured justice not only to transgenders but to the society as well.

The court declared that:

  1.  Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of the Constitution and the laws made by the Parliament and the State Legislature.
  2. Transgenders had the right to decide their self-identified gender and the Centre and State Governments were directed to grant legal recognition of their gender identity such asmale, female or as third gender.
  3. The Centre and the State Governments 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 operate separate HIV Sero-surveillance Centres since Hijras/ Transgenders face several sexual health issues.
  5. Centre and State Governments were directed to seriously address the problems faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidaltendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoraland illegal.
  6. Centre and State Governments take proper measures to provide medical care to transgenders in the hospitals and also provide them separate public toilets and other facilities.
  7. Centre and State Governments also take steps in framing various social welfareschemes for their betterment.
  8. Centre and State Governments take steps to create public awareness so that transgenders feel that they are also part and parcel of the social life and be not treated as untouchables.
  9. Centre and the State Governments take measures to regain their respect and placein the society which once they enjoyed in our cultural and social life.

Kenyan Context.

Kenya through the Constitution and legislation has impliedly only recognized two genders: male and female.

Transgenders as per the wide definition that includes gays lesbian and bisexuals are not recognized.

For instance Article 45 provides that every adult has the right to marry a person of the opposite sex based on the free consent of the parties. There are issues that arise from this provision.

  1. What is the opposite gender for purposes of marriage?
  2. Whether the opposite gender includes transgenders i.e persons who have undergone Sex Re- Assignment Surgery. 

Legislation has in fact criminalized acts that would be considered unnatural and prescribes a sentence of fourteen years imprisonment and considers a felony act of gross indecency between two males prescribing a sentence of five years imprisonment.

The Penal Code under Section 162 provides for unnatural offences and Section 165 provides for acts of gross indecency.

The Constitution of Kenya however like India, provides for certain rights and freedoms and guarantee protection to all persons without discrimination as to sex.

Constitution of Kenya.

Under Article 20(3)(b),the court is to adopt the interpretation that most favours the enforcement of a right or fundamental freedom.

Article 27 provides for equality and freedom from discrimination. Every person is equal before the law and has the right to equal protection and equal benefit of the law. Equality includes the full and equal enjoyment of all rights and fundamental freedoms.

It further states that  the State or a person shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.

Article 43 provides for economic and social rights such that, every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education. And that a person shall not be denied emergency medical treatment.

There is no legislation setting out rules for dealing with transgender and ensure their protection from discrimination.

There are no institutions, facilities for transgenders i.e toilets, cells, schools, trained personnel some of their rights are violated such as the right to movement and participation in democratic process as they are not provided for in statutory forms in application of passports, identity cards etc.

Andrew Mbugua Ithibu v. Attorney General& Another.

An ongoing case to watch out for.

 

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