National Legal Services Authority v. Union of India

Transgender persons asked the Supreme Court to recognise a gender identity (a person's own sense of being male, female or transgender) other than the male or female recorded at birth. Hijras and eunuchs asked for legal status as a third gender. Two judges wrote separate opinions and agreed on the result. They declared a third gender, upheld self-identified gender and directed the Centre and States to give legal recognition, reservations and welfare measures.

Quick Revision

Read the full judgment: Supreme Court of India (sci.gov.in)

Parties

National Legal Services Authority — petitioner in Writ Petition (a petition asking the court to issue a formal order) (Civil) No. 400 of 2012. A body constituted under the Legal Services Authority Act, 1997 to give free legal services to weaker and marginalised sections (para 3).

Poojaya Mata Nasib Kaur Ji Women Welfare Society — petitioner in Writ Petition (Civil) No. 604 of 2013. A registered association that sought similar reliefs for the Kinnar community, a transgender community (para 3).

Laxmi Narayan Tripathy — a Hijra who was impleaded (added as a party) to put forward the cause and life experiences of the community (para 4).

Applicant in I.A. No. 2 of 2013 — appeared through Shri T. Srinivasa Murthy and asked that transgender persons be declared socially and educationally backward classes (groups for whom the Constitution allows special provision) (para 7).

Union of India and others — respondents. The Union acted through the Ministry of Social Justice and Empowerment (MOSJE). Various States and Union Territories also explained the steps they had taken (paras 9-10).

Procedural History

The petitions were filed directly in the Supreme Court. The judgment records no decision of any lower court. Paragraph numbers run continuously through both opinions (Radhakrishnan, J. paras 1-77; Sikri, J. paras 78-128).

1. The National Legal Services Authority filed Writ Petition No. 400 of 2012 (para 3).
2. The Poojaya Mata Nasib Kaur Ji Women Welfare Society filed Writ Petition No. 604 of 2013. The two petitions were heard together (para 3).
3. Laxmi Narayan Tripathy was impleaded (para 4).
4. An applicant appeared in I.A. No. 2 of 2013 (para 7).
5. The Union told the Court that MOSJE had set up an Expert Committee on Issues relating to Transgender. It also said applicants would be given representation before the Committee (para 9).
6. The Court heard counsel for various States and Union Territories on the steps they had taken (para 10).
7. The Court delivered the judgment on 15 April 2014 at New Delhi. It allowed both writ petitions (para 131).

Facts

1. Members of the transgender community asked the Court for a legal declaration of a gender identity other than the male or female assigned at birth. They said non-recognition violated Articles 14 and 21 (para 2).
2. Hijras and eunuchs asked for legal status as a third gender, with all legal and constitutional protection (para 2).
3. The National Legal Services Authority filed Writ Petition No. 400 of 2012 to advocate their cause. The Poojaya Mata Nasib Kaur Ji Women Welfare Society filed Writ Petition No. 604 of 2013 for the Kinnar community (para 3).
4. Laxmi Narayan Tripathy said non-recognition of Hijras as a third gender denied them equality before the law and equal protection of law under Article 14. It also violated their rights under Article 21 (para 4).
5. Tripathy, in an affidavit, said the following (para 10):
   1. Tripathy was born male, felt different from boys of the same age and was feminine in ways.
   2. From an early age, Tripathy faced sexual harassment, molestation and abuse inside and outside the family, and was abused as chakka and hijra.
   3. Tripathy started dressing in women's clothing in the late teens, did not identify as a woman, and later joined the Hijra community in Mumbai, where for the first time Tripathy felt at home.
   4. Tripathy said non-recognition of Hijra identity by the State violated most of the fundamental rights.
6. Siddarth Narrain, an eunuch from Namakkal, Tamil Nadu, said the following (para 10):
   1. Narrain always identified as a woman and, in class 10, decided the only way to be comfortable was to join the Hijra community.
   2. The family learned that Narrain met Hijras in the city. Narrain's brother, encouraged by their mother, beat Narrain with a cricket bat.
   3. Narrain locked the room, was later brought out by relatives and given Rs. 50 by an uncle, and then went to live with a group of Hijras in Erode.
7. Sachin, a 23-year-old transgender person, said the following (para 10):
   1. As a child Sachin liked make-up such as vibhuti or kum kum. Sachin's parents saw Sachin as a girl.
   2. Sachin is male but has only female feelings, did the housework and was teased by neighbours and mocked by relatives.
   3. Sachin felt ashamed and even suicidal. The parents did not protest, as they were helpless.
8. The Court was told of similar life experiences of other members of the community (para 10).
9. A 2010 UNDP (India) report on Hijras/transgenders recorded the following (para 45):
   1. The estimated size of men who have sex with men (MSM) and male sex workers in India was 2,352,133 and 235,213.
   2. HIV prevalence among the MSM population was 7.4%, against 0.36% for adult prevalence overall.
   3. Studies reported very high prevalence of 17.5% to 41% among Hijras/transgender women.
   4. A NACO report of 5.5.2011 showed that transgender persons are extremely vulnerable to HIV.
10. The Court noted that female-to-male transgender persons are less visible in public. They too face violence and discrimination (para 46).
11. The petitioners showed that Hijras/transgender persons face the following (para 55):
    1. Harassment, violence and sexual assault in public spaces, at home and in jail, including by police.
    2. Discrimination in employment, education, healthcare, and access to restaurants, cinemas, shops and malls.
    3. No separate public toilets, so they use male toilets where they are prone to assault and harassment.
12. The State of Punjab had treated all transgender persons as male. The State of Tamil Nadu had taken many welfare measures. Kerala, Tripura and Bihar referred to them as third gender or sex. Certain States recognise a third category (para 70).
13. The Union of India said MOSJE's Expert Committee was studying the problems of transgender persons (para 9).

Issues Raised

1. Does non-recognition of the gender identity of transgender persons, and of Hijras/Eunuchs as a third gender, violate Articles 14 and 21 of the Constitution (paras 2, 77)?
2. Does a person who is born male with predominantly female orientation (or the reverse) have a right to be recognised as female as per choice, more so after an operational procedure changes the sex (para 79(a))?
3. Do transgender persons, who are neither male nor female, have a right to be identified and categorised as a third gender (para 79(b))? The Court said this second question is the one it was primarily concerned with (para 80).
4. Are transgender persons entitled to be treated as socially and educationally backward classes and to receive the related benefits (paras 7, 60, 129)?

Arguments Contended

The judgment records submissions of counsel for the petitioners and interveners. It records no argument opposing the claim by the Union or the States (see the second list).

For the petitioners and interveners:

1. Shri Raju Ramachandran, senior counsel for the National Legal Services Authority: every person of the community has a legal right to decide their sex orientation and to determine their identity (para 5).
2. Ramachandran: because transgender persons are not treated as male, female or third gender, they lose many rights. They are deprived of social and cultural participation and face restricted access to education, health care and public places. They also face discrimination in contesting elections, voting, employment and licences, and are treated as outcasts (para 5).
3. Ramachandran: the State cannot discriminate on the ground of gender, in violation of Articles 14 to 16 and 21 (para 5).
4. Shri Anand Grover, senior counsel for the Intervener: he traced the history of the third gender in India, in Hindu mythology, Vedic and Puranic literature, and in the royal courts of the Islamic world (para 6).
5. Grover: he referred to the repealed Criminal Tribes Act, 1871 and the inhuman treatment under British colonial rule (para 6).
6. Grover: various international forums and U.N. bodies, and the Yogyakarta Principles, recognise gender identity. Some countries have legislation recognising trans-sexual persons (para 6).
7. Grover: non-recognition of gender identity violates the fundamental rights of citizens of the transgender community (para 6).
8. Shri T. Srinivasa Murthy, counsel in I.A. No. 2 of 2013: transgender persons must be declared socially and educationally backward classes and given all benefits that go to that class (para 7).
9. Srinivasa Murthy: the right to choose one's gender identity is part of the right to live with dignity under Article 21. Subject to rules, regulations or protocols, transgender persons may choose male, female or transgender classification (para 7).
10. Shri Sanjeev Bhatnagar, counsel for the petitioner in Writ Petition No. 604 of 2013: the Kinnar community is the most deprived group of transgender persons. It needs constitutional and legal protection for its identity and for socio-economic benefits given to male and female genders (para 8).
11. Laxmi Narayan Tripathy: non-recognition of Hijras as third gender denies equal protection under Article 14 and violates Article 21 (para 4).

For the respondents (Union of India and States):

1. Shri Rakesh K. Khanna, Additional Solicitor General for the Union: the problems raised are a sensitive human issue that calls for serious attention (para 9).
2. Khanna: MOSJE has formed an Expert Committee for an in-depth study and recommendations. Due representation would be given to the applicants before it (para 9).
3. Counsel for various States and Union Territories explained the steps they had taken to improve the condition and status of the transgender community (para 10).

Court's Reasoning

The judgment has two opinions. Radhakrishnan, J. wrote the first and Sikri, J. the second. Sikri, J. said he agreed entirely with the first opinion (para 78). The paragraph numbers run on continuously.

Justice K.S. Radhakrishnan (paras 1-77)

1. Noted: Society seldom realises the trauma of transgender persons. They are ridiculed, sidelined and treated as untouchables in public places. The moral failure lies in society's unwillingness to embrace different gender identities, and this mindset must change. (para 1)
2. Noted: The case concerns transgender persons who seek a legal declaration of a gender identity other than male or female. Their plea is that non-recognition violates Articles 14 and 21. Hijras/Eunuchs claim legal status as a third gender. (para 2)
3. Noted: The National Legal Services Authority filed Writ Petition No. 400 of 2012. The Society filed Writ Petition No. 604 of 2013 for the Kinnar community. (para 3)
4. Noted: Laxmi Narayan Tripathy was impleaded to put across the cause of the community. (para 4)
5. Noted: The submissions of Shri Ramachandran, Shri Grover, Shri Srinivasa Murthy, Shri Bhatnagar and the Additional Solicitor General are summarised under Arguments. (paras 5-9)
6. Noted: The Court heard the States and Union Territories. It recorded the accounts of Tripathy, Siddarth Narrain and Sachin. (para 10)
7. Noted: Transgender is an umbrella term for persons whose gender identity, expression or behaviour does not conform to their biological sex. (para 11)
8. Noted: Hijras/Eunuchs describe themselves as third gender. They are not men by anatomy and not women, as they have no female reproductive organ or menstruation. They are among emasculated (castrated, nirvana) men, non-emasculated men (akva/akka) and inter-sexed persons. (para 11)
9. Noted: The term also covers persons who intend to undergo or have undergone Sex Re-Assignment Surgery (SRS) (transsexual persons) and cross-dressers (transvestites). It now describes pre-operative, post-operative and non-operative transsexual persons. (para 11)
10. Noted: The community includes Hijras, eunuchs, Kothis, Aravanis, Jogappas and Shiv-Shakthis. It has a strong historical presence in Hindu mythology and religious texts. The idea of tritiya prakrti or napunsaka is part of Vedic and Puranic literature, and napunsaka denotes absence of procreative capability. (para 12)
11. Noted: In the Ramayana, Lord Rama asked his followers to return to the city. The Hijras alone stayed with him. He gave them the power to bless people on auspicious occasions, which set the stage for the custom of badhai. (para 13)
12. Noted: In the Mahabharata, Aravan offered to be sacrificed to Goddess Kali and asked to spend his last night in marriage. Krishna took the form of Mohini and married him. The Hijras of Tamil Nadu regard Aravan as their progenitor and call themselves Aravanis. (para 14)
13. Noted: Jain texts refer to transgender persons and the idea of psychological sex. Hijras played a prominent role in the royal courts of the Islamic world, the Ottoman empire and Mughal rule. The Court refers to Gayatri Reddy's book on Hijra identity. (para 15)
14. Noted: Colonial rule from the 18th century changed the position. The Criminal Tribes Act, 1871 treated the whole community as innately criminal and addicted to the systematic commission of non-bailable offences. (para 16)
15. Noted: The Act provided for registration, surveillance and control of eunuchs. It penalised registered eunuchs who appeared dressed or ornamented like a woman in public, or danced or played music in public. They could be arrested without warrant and jailed for up to two years, or fined, or both. (para 16)
16. Noted: Local governments had to register the names and residences of eunuchs reasonably suspected of kidnapping or castrating children, or of offences under Section 377 IPC. (para 16)
17. Noted: Keeping a boy under 16 in the charge of a registered eunuch was an offence punishable with up to two years or a fine. The Act also denied their civil rights: they could not be guardians of minors, make a gift deed or will, or adopt a son. The Act was repealed in August 1949. (para 16)
18. Noted: Section 377 IPC (in force before the Criminal Tribes Act) criminalised penile-non-vaginal sexual acts, and transgender persons were typically associated with them. In Queen Empress v. Khairati (1884) ILR 6 All 204, a transgender person was prosecuted under Section 377 as a habitual sodomite and acquitted on appeal. (para 17)
19. Noted: The Khairati case shows that Section 377 was used to harass Hijras and transgender persons. (para 18)
20. Held: The Court expresses no opinion on the constitutionality of Section 377 IPC. A Division Bench had already decided it in Suresh Kumar Koushal v. Naz Foundation, and this case concerns a different issue. (para 18)
21. Noted: Gender identity is one of the most fundamental aspects of life. It is a person's intrinsic sense of being male, female or transgender or transsexual. (para 19)
22. Noted: A person's sex is usually assigned at birth. A small group may be born with bodies that combine aspects of both male and female physiology. Some persons' innate perception differs from the sex assigned at birth. (para 19)
23. Noted: Some persons undergo surgery and other procedures to align their bodies with their gender perception. This leads to legal and social complications because the birth record differs from their identity. (para 19)
24. Noted: Gender identity is each person's deeply felt internal experience of gender. It may or may not correspond with sex assigned at birth. It includes freely chosen modification of appearance or functions, and expressions such as dress, speech and mannerisms. (para 19)
25. Noted: Sexual orientation is an enduring physical, romantic or emotional attraction to another person. It is a different concept from gender identity. (para 20)
26. Held: A person's self-defined sexual orientation and gender identity is integral to their personality. It is a basic aspect of self-determination, dignity and freedom. "no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy". (para 20)
27. Noted: The United Nations has advocated the rights of sexual minorities. Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognise the right to recognition everywhere as a person before the law. Article 17 of the ICCPR protects privacy, family, home and correspondence. (para 21)
28. Noted: Human rights experts met at Gadjah Mada University, Yogyakarta, Indonesia from 6 to 9 November 2006 and adopted the Yogyakarta Principles on sexual orientation and gender identity. (para 21)
29. Noted: The Court sets out parts of the Yogyakarta Principles. They are summarised in the next six items. (para 22)
30. Noted: Principle 1 says persons of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights. States must embody universality of rights in law, amend legislation, run education programmes and adopt a pluralistic approach. (para 22)
31. Noted: Principle 2 gives the right to equality and non-discrimination. States must embody these principles in law, repeal criminal provisions on consensual same-sex activity, prohibit discrimination in the public and private spheres, and take measures for advancement that are not discriminatory. They must also address intersecting discrimination and prejudicial attitudes. (para 22)
32. Noted: Principle 3 gives the right to recognition before the law. Each person's self-defined gender identity is integral to personality. No one shall be forced to undergo medical procedures for legal recognition, and marriage or parenthood cannot bar recognition. States must ensure legal capacity, recognise self-defined identity, and make identity documents reflect it through efficient, fair procedures. (para 22)
33. Noted: Principle 4 protects the right to life and bars the death penalty on the basis of consensual sexual activity or orientation. Principle 6 protects privacy, including the choice to disclose or not to disclose one's orientation or identity. (para 22)
34. Noted: Principle 9 requires humane treatment in detention, medical care, protective measures and independent monitoring. Principle 18 bars forced medical or psychological treatment, and says orientation and identity are not medical conditions. (para 22)
35. Noted: Principle 19 protects freedom of opinion and expression, including expression of identity through speech, deportment and dress. Public order (peace and safety in society) and morality may not be used to restrict it in a discriminatory way. (para 22)
36. Noted: U.N. bodies, regional human rights bodies, national courts and commissions have endorsed the Yogyakarta Principles. The 2009 report of the U.N. Committee on Economic, Social and Cultural Rights says gender identity is a prohibited ground of discrimination. (para 23)
37. Noted: The Court also refers to General Comment No. 2 of the Committee against Torture (2008) and General Comment No. 20 of the CEDAW Committee. (para 24)
38. Noted: Various countries have recognised gender identity, mostly after sex reassignment surgery. In Corbett v. Corbett (1970) 2 All ER 33, Ormrod, J. applied chromosomal, gonadal and genital tests. He said the biological sex of a person is fixed at birth and surgery must be ignored. (para 25)
39. Noted: R v. Tan (1983) QB 1053 applied Corbett in criminal law. Gloria Greaves, a post-operative male-to-female transsexual, remained in law a man. (para 25)
40. Noted: Other countries, such as New Zealand and Australia, did not follow Corbett, and the medical profession criticised it. In Attorney-General v. Otahuhu Family Court (1995) 1 NZLR 603, Ellis, J. saw no social advantage in refusing to recognise the marriage of a transsexual person in the reassigned sex. He held that an adequate test is whether the person has undergone surgical and medical procedures that effectively gave the physical conformation of a specified sex. (para 26)
41. Noted: In Re Kevin (2001) Fam CA 1074, Chisholm, J. said there is no formulaic solution. All relevant matters, including life experience and self-perception, must be considered. The Full Court in 2003 approved this. It held that the words man and woman take their ordinary contemporary meaning, so man includes a post-operative female-to-male transsexual. It also held that transsexualism has a biological basis and there is no reason to exclude the psyche as a factor in determining sex and gender. (para 26)
42. Noted: Lockhart, J. in Secretary, Department of Social Security v. SRA (1993) 43 FCR 299 and Mathews, J. in R v. Harris and McGuiness (1988) 17 NSWLR 158 reviewed the decisions. Gender is not merely chromosomes. It is partly psychological (self-perception) and partly social (how society sees the person). (para 27)
43. Noted: In A.B. v. Western Australia (2011) HCA 42, the majority agreed with Lockhart, J. The Gender Reassignment Act, 2000 allowed a recognition certificate under Section 15. (para 28)
44. Noted: In Bellinger v. Bellinger (2003) 2 All ER 593, the House of Lords rejected Mrs. Bellinger's claim that her marriage was valid, and the psychological factor was not given much prominence. (para 29)
45. Noted: In Re JG, JG v. Pengarah Jabatan Pendaftaran Negara (2006) 1 MLJ 90, the High Court of Kuala Lumpur granted a post-SRS woman's request for a female identity card. It applied Corbett but noted her psychological aspect. (para 30)
46. Noted: In Norrie v. NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145, the Court held the Registrar was not limited to registering only male or female. The Registrar had made an error of law and the matter went back to the Tribunal. (para 31)
47. Noted: In Christine Goodwin v. United Kingdom (28957/95, 11 July 2002), the European Court of Human Rights held that the position of post-operative transsexuals in "an intermediate zone as not quite one gender or the other is no longer sustainable". It grounded this in respect for human dignity and personal autonomy under Article 8. (para 32)
48. Noted: In Van Kuck v. Germany (35968/97, 12 September 2003), the European Court held that private life covers gender identification, name and sexual orientation. Personal identity is protected. (para 33)
49. Held: For transsexual persons who have undergone SRS, the test is the Psychological test, not the Biological test. The psychological factor gets primacy over the binary notion of gender. (para 34)
50. Noted: Their rights are to be protected irrespective of chromosomal sex, genitals, assigned birth sex or implied gender role. The rights of Hijras and eunuchs, including the right to remain a third gender, also have to be examined. (para 34)
51. Noted: Many countries have laws for transsexual persons, including the United Kingdom, the Netherlands, Germany, Australia, Canada and Argentina. The UK Act that the judgment calls the General Recommendation Act, 2004 followed Goodwin. It gives recognition to acquired gender and sets out its effect on marriage, parentage, succession, social security and pensions. A person need not have undergone or be undergoing SRS to apply. (para 35)
52. Noted: The Equality Act, 2010 (UK) lists gender reassignment as a protected characteristic. It consolidated, repealed and replaced about nine anti-discrimination laws and bars less favourable treatment on a protected characteristic. It imposes duties on public bodies to eliminate discrimination, harassment and victimisation. It protects only transsexual persons who propose to undergo, are undergoing or have undergone reassignment. (para 35)
53. Noted: Australia has the Sex Discrimination Act, 1984 and the 2013 Amendment Act. The Court reproduces Sections 5A, 5B and 5C on discrimination for sexual orientation, gender identity and intersex status. (para 36)
54. Noted: Recital 3 of Directive 2006/54/EC of the European Parliament says equal treatment also covers discrimination arising from gender reassignment. (para 37)
55. Noted: The European Parliament passed a resolution on 12 September 1989. Hungary passed the Equal Treatment and the Promotion of Equal Opportunities Act, 2003. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, 2009 covers offences motivated by gender identity. About 15 States and the District of Columbia ban gender identity discrimination. (para 38)
56. Noted: South Africa passed the Alteration of Sex Description and Sex Status Act, 2003. (para 39)
57. Noted: Argentina's 2012 law recognises the right to gender identity. It does not require proof of surgery, hormonal therapy or medical treatment. Article 12 provides dignified treatment and use of the adopted first name. (para 40)
58. Noted: Germany's law in force from 5 November 2013 allows a child with intersex variation to be registered with sex not specified. (para 41)
59. Noted: The law also adds a category X, apart from M and F, in passports. (para 42)
60. Noted: The Court refers to these judgments and laws to show that recognition of gender identity and non-discrimination on that ground is growing in international law. It says this should therefore be applied in India as well. (para 43)
61. Noted: Transgender persons were once treated with respect in India. The Court lists identities: Hijras (Kinnars in Delhi, Aravanis in Tamil Nadu), Eunuchs, Aravanis and Thirunangi, Kothis, Jogtas/Jogappas and Shiv-Shakthis. (para 44)
62. Noted: Hijras are biological males who reject their masculine identity. They may earn through badhai, blessing new-born babies or dancing, and some do sex work. Kothis are biological males showing varying degrees of femininity. (para 44)
63. Noted: Jogtas or Jogappas serve Goddess Renukha Devi (Yellamma), whose temples are in Maharashtra and Karnataka. Shiv-Shakthis are males close to a goddess with feminine expression, and are married to a sword in a ceremony. (para 44)
64. Noted: Transgender people face multiple forms of oppression, especially in health care, employment and education. The UNDP report of December 2010 and the NACO report show extreme vulnerability to HIV. (para 45)
65. Noted: The UNDP report made eight recommendations. Key ones are HIV surveillance and prevention, training of health providers, free SRS services in public hospitals, stigma reduction, consultation on legal recognition of gender identity, open welfare schemes and involvement in policy. (para 45)
66. Noted: Social exclusion on the ground of not conforming to binary gender exists in India. Discussion mostly focuses on persons assigned male at birth. The concerns of female-to-male persons are often not addressed. (para 46)
67. Noted: International conventions and norms are important for interpreting gender equality. Article 1 and Article 3 of the UDHR speak of dignity and equality, and of life, liberty and security. Articles 5 (UDHR) and 7 (ICCPR) bar torture and cruel treatment. Article 12 (UDHR) and Article 17 (ICCPR) protect privacy. (para 47)
68. Noted: Article 6 of the ICCPR protects the inherent right to life. Para 21 of the UN Convention against Torture instrument of 24 January 2008 obliges States to protect all persons from torture regardless of sexual orientation or transgender identity. (para 47)
69. Noted: These instruments aim to protect transgender persons, who face harassment in workplaces, hospitals, markets, theatres, railway stations and bus stands. (para 48)
70. Noted: Indian law recognises only the binary of male and female, based on sex assigned at birth. This is so in marriage, adoption, inheritance, succession, taxation and welfare laws. India has no legislation on the rights of the transgender community. (para 49)
71. Held: Because there is no suitable legislation, the Court must follow international conventions to which India is a party. It must give due respect to other non-binding conventions and principles. (para 49)
72. Held: Article 21 protects such rights, and a constitutional court cannot be a mute spectator when they are violated. (para 49)
73. Noted: Article 253 gives Parliament power to legislate to implement treaties. Generally legislation is needed to implement international conventions. In the United States, Article VI, clause 2 of the Constitution makes treaties the supreme law of the land. (para 50)
74. Noted: The Constitution has no such supremacy clause. Courts in India apply international law by comity of nations (the courtesy by which one country respects another's law), unless clear rules of domestic law override it. (para 51)
75. Noted: The Court cites Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984) 2 SCC 534, Tractor Export v. Tarapore & Co. (1969) 3 SCC 562 and Mirza Ali Akbar Kashani v. United Arab Republic (1966) 1 SCR 391. It also cites Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360, which applied this to the ICCPR and the UDHR. (para 51)
76. Held: India has ratified the Covenants. Municipal courts can use them as an aid in interpreting statutes by the Doctrine of Harmonization. If Indian law does not conflict with them, domestic courts can apply them. Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 1969 govern interpretation. (para 51)
77. Noted: Article 51 of the Directive Principles of State Policy (Part IV) says the State shall endeavour to promote international peace and security, maintain just relations between nations, foster respect for international law and treaty obligations, and encourage settlement of disputes by arbitration. (para 52)
78. Noted: Article 51 is read with Article 253. If Parliament makes a law in conflict with international law, Indian courts give effect to the Indian law. Without contrary legislation, courts respect international law. (para 53)
79. Noted: Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 said the Constitution must be read in the light of the U.N. Charter, given Article 51. Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 said courts must have due regard to international conventions where there is a void in domestic law. (para 53)
80. Noted: The Court also refers to Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228, R.D. Upadhyay v. State of Andhra Pradesh (2007) 15 SCC 337 and People's Union for Civil Liberties v. Union of India (2005) 2 SCC 436. In Vishaka v. State of Rajasthan (1997) 6 SCC 241, the Court used Article 141 to lay down guidelines relying on CEDAW. (para 53)
81. Held: Any international convention not inconsistent with fundamental rights and in harmony with their spirit must be read into Articles 14, 15, 19 and 21. The Yogyakarta Principles are not inconsistent with fundamental rights and must be recognised and followed. (para 53)
82. Held: Article 14 says the State shall not deny to any person equality before the law. Equality is a basic feature of the Constitution. Article 14 puts a positive obligation on the State to bring in social and economic changes so everyone, including transgender persons, has equal protection. (para 54)
83. Held: Article 14 does not limit the word person to male or female. Hijras/transgender persons fall within it. They are entitled to legal protection in all spheres of State activity, including employment, health care, education and civil and citizenship rights. (para 54)
84. Held: Non-recognition of the identity of Hijras/transgender persons denies them equal protection and leaves them vulnerable. Discrimination on the ground of sexual orientation or gender identity impairs equality before law and violates Article 14. (para 55)
85. Noted: Articles 15 and 16 prohibit discrimination on grounds including sex. Both prohibit all forms of gender bias and gender based discrimination. (para 56)
86. Noted: Article 15 bars discrimination on the ground of sex in access to shops, public restaurants, hotels and public entertainment. It also covers use of wells, tanks, bathing ghats, roads and places of public resort maintained by State funds or dedicated to the public. It allows affirmative action (positive steps for a disadvantaged group) for backward classes. (para 57)
87. Noted: Article 16 gives equality of opportunity in public employment. Article 16(2) says no citizen shall be ineligible for or discriminated against in any employment or office under the State on grounds only of religion, race, caste, sex, descent, place of birth or residence. It also puts a duty on the State to treat all citizens equally. (para 58)
88. Held: Sex in Articles 15 and 16 is not limited to biological sex of male or female. It includes people who consider themselves neither male nor female. Gender and biological attributes are both components of sex, so discrimination on the ground of sex includes discrimination on the ground of gender identity. (para 59)
89. Held: Transgender persons have been denied rights under Article 15(2). They have also been denied special provision under Article 15(4) as socially and educationally backward classes, which they are. They are also entitled to enjoy economic, social, cultural and political rights without discrimination. Discrimination on the ground of gender violates fundamental freedoms and human rights. (para 60)
90. Held: The State is bound to take affirmative action so the injustice of centuries is remedied. They have been denied rights under Article 16(2) and are entitled to reservation in appointments under Article 16(4). (para 60)
91. Noted: Articles 15(2) to (4) and 16(4), read with the Directive Principles and international instruments, call for social equality. Transgender persons can realise it only if facilities and opportunities are extended to them to live with dignity and equal status. (para 61)
92. Noted: Article 19(1) rights are available only to citizens. Article 19(1)(a) includes the right to express one's self-identified gender through dress, words, action or behaviour. No restriction can be placed on personal appearance or choice of dressing, subject to Article 19(2). (para 62)
93. Noted: In City of Chicago v. Wilson, 75 Ill.2d 525 (1978), the Illinois Supreme Court struck down a municipal law banning cross-dressing. It said State control of personal appearance is inconsistent with values of privacy, self-identity, autonomy and personal integrity. (para 63)
94. Noted: In Doe v. Yunits, 2000 WL 33162199 (Mass. Super.), the Court upheld the right of a person to wear school dress matching her gender identity as protected expression. (para 64)
95. Held: Freedom of expression under Article 19(1)(a) includes the freedom to express one's chosen gender identity through expression, speech, mannerism and clothing. (para 65)
96. Held: Gender identity lies at the core of personal identity and is protected under Article 19(1)(a). The State cannot prohibit, restrict or interfere with a transgender person's expression of personality. (para 66)
97. Held: "values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a)". The State must protect and recognise these rights. (para 66)
98. Noted: Article 21 says no person shall be deprived of life or personal liberty except according to procedure established by law (the procedure the law lays down). It is the heart and soul of the Constitution. It protects the dignity of human life, personal autonomy and privacy. (para 67)
99. Noted: In Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608, the Court held that the right to dignity includes expressing oneself in diverse forms and moving about and mixing with other human beings. (para 67)
100. Held: Recognition of gender identity lies at the heart of the right to dignity. Legal recognition of gender identity is part of the right to dignity and freedom. (para 68)
101. Held: Article 21 protects personal autonomy. In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1, the Court held that autonomy includes the negative right against interference and the positive right to make decisions about one's life. Self-determination of gender is part of personal autonomy and falls within personal liberty. (para 69)
102. Held: Self-identified gender can be male, female or third gender. Hijras do not identify as female or male, and consider themselves a third gender. They form a distinct socio-religious and cultural group and have to be considered a third gender. (para 70)
103. Held: The State of Punjab's treatment of all transgender persons as male is not legally sustainable. Tamil Nadu's welfare measures are acknowledged. Kerala, Tripura and Bihar use third gender or sex, and certain States recognise a third category. Certain other States have extended a few benefits. Neighbouring countries have also upheld their fundamental rights and right to live with dignity. (para 70)
104. Noted: Neighbouring countries also uphold their rights. In Sunil Babu Pant v. Nepal Government (Writ Petition No. 917 of 2007, 21 December 2007), the Supreme Court of Nepal held that third gender people have the same fundamental rights and cannot be discriminated against. (para 71)
105. Noted: In Dr. Mohammad Aslam Khaki v. Senior Superintendent of Police (Operation) Rawalpindi (Constitution Petition No. 43 of 2009, 22 March 2011), the Supreme Court of Pakistan held that eunuchs are citizens with protected rights to life and dignity. (para 72)
106. Noted: The Court reminds itself of the historical presence of the third gender in India and in neighbouring countries. (para 73)
107. Held: Article 21 protects one's right of self-determination of the gender to which a person belongs. That determination is for the person concerned. Gender identity is integral to dignity and at the core of personal autonomy. (para 74)
108. Held: Hijras and Eunuchs have to be considered as Third Gender, over and above the binary genders, under the Constitution and the laws. (para 74)
109. Held: Articles 14, 15, 16, 19 and 21 do not exclude Hijras/transgender persons. Indian law does recognise only binary genders based on biological sex. The Court does not accept the Corbett Biological Test. It prefers the Psychological Test. (para 75)
110. Noted: The binary shows in the IPC (Sections 8 and 10) and in laws on marriage, adoption, divorce, inheritance, succession and welfare laws such as NAREGA, 2005. Non-recognition denies equal protection and causes discrimination. (para 75)
111. Held: Articles 14, 15, 16, 19 and 21 use gender-neutral expressions (person, citizen, sex), so they cover Hijras/transgender persons and are not limited to male or female. (para 76)
112. Held: Gender identity rests on self identification, not on surgical or medical procedure. "Gender identity, in our view, is an integral part of sex". No citizen can be discriminated against on that ground, including those who identify as third gender. (para 76)
113. Held: Discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference that nullifies equality before law or equal protection of laws. The Court is inclined to give directions to safeguard the rights of the transgender community. (para 77)

Justice A.K. Sikri (paras 78-128)

1. Noted: Sikri, J. agrees entirely with Radhakrishnan, J. on all cardinal issues. As the issues are of seminal importance, he writes his own thoughts. (para 78)
2. Noted: The petitions raise the core issue of gender identity. It has two facets. (para 79)
   1. (a) The choice of a person born male with female orientation, or the reverse.
   2. (b) Whether transgender persons who are neither male nor female may be identified as a third gender.
3. Noted: The Court is primarily concerned with the second issue, though the first is inter-related and has come up in the discussion. (para 80)
4. Noted: Choice of gender identity has the trappings of a human right. Not giving the status of a third gender deprives the community of many rights and social and cultural participation, and blocks access to education and health services. (para 81)
5. Noted: Sikri, J. recalls the umbrella meaning of transgender in the first opinion and the Criminal Tribes Act, 1871. He does not intend to repeat the first opinion, with which he agrees with every word. (paras 81-82)
6. Noted: At birth a sex is assigned, male or female. A few persons are born with bodies incorporating aspects of both. A person born male may have a female innate perception, and the opposite may also happen. (para 82)
7. Noted: In earlier times the reasons for such behaviour were not known. Research has made the causes discernible, and society has slowly begun to accept such behaviour as not abnormal. (para 83)
8. Noted: Medical science can change physical appearance by surgery. Many countries have legislated to recognise gender identity based on the reassigned sex after SRS, as the first opinion discussed with the Yogyakarta Principles and UDHR. (para 83)
9. Noted: Recognition rests on the right of choice, which is part of human rights. The 20th century is often described as the age of rights. (para 84)
10. Noted: After the Second World War, governments realised the need to protect human dignity. The U.N. Charter, 1945 and the UDHR (1948) mention dignity as a core value. (para 85)
11. Noted: Respect for human rights is the root of human development and of realising each person's full potential. Empowerment through human development is the aim of human rights. (para 86)
12. Noted: Human rights belong to every person and do not depend on the specifics of the individual or on the right-grantor. They exist whether or not the legal system grants them. They are moral, pre-legal rights. (para 87)
13. Noted: In international human rights law, equality rests on two principles: non-discrimination and reasonable differentiation. Discrimination occurs by arbitrary denial of opportunities, for example when public facilities are set beyond the reach of transgender persons. (para 88)
14. Noted: Equality goes beyond preventing discrimination. It includes remedying systematic discrimination against groups through positive rights, affirmative action and reasonable accommodation. (para 88)
15. Noted: The judgment then refers to the UDHR and the Covenant. It says persons with disabilities are entitled to the full range of rights, and Article 2 of the Covenant covers other status without discrimination. (para 89)
16. Noted: India attained independence within two years of the U.N. Charter. Part III (fundamental rights), especially Articles 14, 15, 16 and 21, and Part IV (Directive Principles) are relevant. (para 90)
17. Noted: Dr. Ambedkar described the Directive Principles as instruments of instructions to the legislature and the executive. Whoever holds power must respect them. (para 90)
18. Noted: The basic spirit of the Constitution is to give every person equal opportunity to grow, whatever their race, caste, religion, community or social status. Granville Austin described three strands: national unity, democracy and social reform, as a seamless web. (para 91)
19. Noted: The most important gift of the Constitution to a common person is fundamental rights, which may be called human rights. The Constitution was given by the people to themselves, in the opening words We the People. There can be no social reform until every citizen can use their potential to the maximum. (para 91)
20. Noted: Article 14 equality and the words life, liberty and law in Article 21 have been enlarged by judicial decisions. Anything that is not reasonable, just and fair is not equal and violates Article 14. (para 92)
21. Noted: In State of Karnataka v. Rangnatha Reddy (AIR 1978 SC 215), Krishna Iyer, J. said the social philosophy of the Constitution shapes creative judicial vision, and Parts III and IV must be read together. (para 93)
22. Noted: The Court lists cases in which Article 21 covers children in jail, pollution, housing, drugs, speedy trial, handcuffing, medical aid, starvation, right to know, open trial and after-care homes. The list names Sheela Barse, M.C. Mehta, Kalidas, Vincent Panikurlangara, Reghubir Singh, Aeltemesh Rein, Parmanand Katara, Kishen, Reliance Petrochemicals, Kehar Singh and Vikram Deo Singh Tomar. (para 94)
23. Noted: Many non-justiciable Directive Principles have become enforceable rights through Article 21. (para 95)
    1. Pollution-free water and air (Subhash Kumar) and residence (Shantistar Builders).
    2. Food, clothing, environment and cultural heritage (Ram Sharan Autyanuprasi).
    3. Child development, and road access for residents of hilly areas (Umed Ram Sharma).
    4. Education (Mohini Jain), but not for a professional degree (Unni Krishnan).
24. Noted: Article 21 was once a negative duty on the State not to interfere with life or liberty. It now imposes a positive obligation to ensure better enjoyment of life and dignity, for example public health, pollution control, communication, bonded labour rehabilitation (Bandhua Mukti Morcha), prison conditions (Sher Singh), protective homes and hygienic slaughter-houses (Buffalo Traders). (para 96)
25. Noted: The common golden thread is that Article 21 guarantees enjoyment of life with dignity, viewing human rights as human development. (para 97)
26. Noted: The concepts of justice, equality of status and opportunity, and dignity of the individual in the Preamble (the Constitution's opening statement of its goals) recognise the right of all citizens to the essentials that let their personality flower. (para 98)
27. Noted: Democracy is based on recognition of the individuality and dignity of a human being. It follows that a person has the right to choose their sex or gender identity. This is integral to personality and one of the most basic aspects of self-determination, dignity and freedom. (para 99)
28. Noted: The true measure of a nation's development is human dignity, not economic growth. (para 99)
29. Noted: Immanuel Kant stressed the freedom of human volition. His idea of free will is a natural law ideal. (para 100)
30. Noted: Two interpretations of the Kantian criterion of justice developed. One stressed maximum individual freedom, and was criticised by utilitarians like Bentham who stressed welfare. (para 101)
31. Noted: Here there is no conflict between individual freedom and public good. Granting the right to choose gender leads to public good. The second trend, freedom as attainment of individual perfection, applies. After the Second World War, the U.N. Charter put more emphasis on individual perfection, so there is a revival of the natural law theory of justice. Blackstone also said society exists to protect absolute rights of individuals. (para 101)
32. Noted: Every individual's right to reach their fullest potential rests on the principle that all-round growth leads to common public good. A person forced to identify with the sex assigned at birth faces many obstacles. (para 102)
33. Noted: Sikri, J. quotes a March 2014 article in the Sunday Indian Express Eye magazine. A person born a boy said other children treated the writer as a boy but the writer preferred to play with girls, and dreaded social interaction. (para 102)
34. Noted: A person with a dual identity faces mental and psychological difficulties. Deciding on SRS needs a strong mental state. The transition is long, and needs hormone therapy and certification by at least two psychiatrists. (para 103)
35. Noted: The article's subject, called Sunaina (name changed), describes the happiness that followed her change of sex. She no longer felt trapped and was looking forward to voting with her new name. (para 104)
36. Held: If a person has changed sex in tune with gender characteristics, and medical ethics allow it with no legal bar, there is no impediment in recognising the gender identity based on the reassigned sex after SRS. (para 105)
37. Held: Even without a statutory regime, a person has a constitutional right to be recognised as male or female after SRS. This is not only the gender characteristic but the physical form. (para 106)
38. Noted: Transgender is used widely in the present age and may include gay, lesbian and bisexual persons. It comes from the Latin trans (across or beyond) and gender. The Court is not concerned with this wider meaning. (para 107)
39. Noted: In India, transgender persons form a distinct and separate class, not prevalent elsewhere except in some neighbouring countries. The community comprises Hijras, eunuchs, Kothis, Aravanis, Jogappas and Shiv-Shakthis. Sikri, J. repeats the descriptions of these groups. (para 108)
40. Noted: Their life is difficult because they are neither men nor women, which is unacceptable to most of society. He also refers to an article by Laurence W. Preston on the Hijra begging on festival days. (para 108)
41. Held: On the question of a distinct identity, the term TG community is used restrictively, meaning Hijras and similar groups. (para 109)
42. Noted: He sums up three points from the first opinion. (a) Once respected, the community declined after the Criminal Tribes Act, 1871, and Section 377 IPC was misused to arrest them on suspicion. (para 110)
43. Noted: (b) There is only marginal improvement, and the community still faces economic blockade and social degradation in health care, employment, education and social cohesion. (c) Transgender persons are citizens with an equal right to reach their full potential, and to education, social assimilation, public access and employment. (para 110)
44. Held: Recognising them as a third gender will let them enjoy human rights that they are deprived of for want of recognition. The issue is not merely social or medical, and a human rights approach is needed. (para 111)
45. Noted: There has been a paradigm shift from cruelty, pity or charity to a rights-based approach. Society has not kept pace. Public knowledge of same-sex orientation and non-conforming gender identity is limited, so such persons are socially excluded. A human rights approach looks at the interaction between a person and their environment, the role of society and the stigma attached. Gender abnormality may at some level amount to physical and mental disability. (para 111)
46. Noted: Common problems include police harassment, harassment at home, entrapment, rape, abuse in public places, lack of education and medical facilities, homelessness, unemployment, depression, substance abuse and problems in marriage and adoption. (para 112)
47. Noted: They are denied basic rights because the law targets discrimination based on sex (anatomy) and not gender (qualities society sees as masculine or feminine). Sikri, J. cites Katherine Franke's article on the disaggregation of sex from gender. (para 112)
48. Noted: Whether transgenderism is a disease is hotly debated in the transgender and medical-psychiatric communities. A prevalent view is that it is not a disease at all. It is a benign normal variant of human experience akin to left-handedness. This is compared with disability, which moved from an illness view to a rights-based approach. (para 112)
49. Held: Gender identification is an essential component for enjoying civil rights. With recognition as third gender, they would get, for example, the right to vote, to own property, to marry, to claim a formal identity through a passport, ration card and driver's licence, and rights to education, employment and health. (para 113)
50. Noted: There is no reason to deny transgender persons basic human rights, including life and liberty with dignity, privacy and expression, education and empowerment, and freedom from violence, exploitation and discrimination. The beginning is recognition as third gender. (para 114)
51. Held: The first step is to assign them their proper sex. Society and law ignored their right to appropriate categorisation and treated them as male or female. This is improper, indignified and violates their human rights. (para 115)
52. Held: Though no statute recognises a third gender, there is enough justification for this right in the natural law sphere and in Part III of the Constitution. (para 116)
53. Noted: The Court is in an age of substantive and liberal democracy. It rests on the rule of law (the law applies equally and protects individual dignity), human rights, an independent judiciary and separation of powers (the division of governmental functions between legislature, executive and judiciary). (para 117)
54. Noted: Without protection of human rights there is no democracy. Within separation of powers, the judicial role is to uphold the rule of law and ensure access to justice for marginalised sections. Transgender persons are marginalised. (para 118)
55. Noted: The Constitution is a living organism based on changing social reality. Sometimes law precedes social change and stimulates it. To bring a paradigm shift, law must play a more predominant role. Treating transgender persons as male or female denies their constitutional rights and social, political and economic justice. (para 119)
56. Noted: In Dattatraya Govind Mahajan v. State of Maharashtra (AIR 1977 SC 915), the Court said the three branches must remember the promise of Justice – social, economic and political and the Supreme Court shall not disown social justice. (para 120)
57. Held: The Constitution must be given a new and dynamic meaning that includes the rights of transgender persons. The first and foremost right is to recognise them as third gender. This recognises their equality under Article 14 and their right to life with dignity under Article 21. (para 121)
58. Noted: This is purposive interpretation (reading provisions in line with their purpose). The Court bridges the gap between law and life, and law without purpose has no reason to exist. Sikri, J. quotes Justice Iyer on the purpose of law being the welfare of society, and mentions Oliver Wendell Holmes on the life of law. (para 121)
59. Noted: The Constitution is a living character and its interpretation must be dynamic. The judiciary is the guardian of the Constitution. Granting the legitimate right due to transgender persons protects the Constitution and democracy. (para 122)
60. Noted: The Constitution has an internal morality based on dignity and equality. Rule of law demands protection of individual human rights. Transgender persons, though insignificant in numbers, are human beings with every right to their human rights. (para 123)
61. Noted: National Human Rights Commission v. State of Arunachal Pradesh (AIR 1996 SC 1234) said every person is entitled to equality before the law and equal protection of the laws. (para 124)
62. Noted: The rule of law is not merely public order. It is social justice based on public order. It balances society's needs with the individual's liberty and dignity, and the Court must protect this rich concept. (para 125)
63. Held: Recognising them as third gender upholds the rule of law and advances justice for a class deprived of natural and constitutional rights. It is the only just solution. Social justice means translating the Preamble, fundamental rights and Directive Principles into action. (para 126)
64. Noted: Aristotle said treating equals equally and unequals unequally is justice. Kant's golden rule is to treat others as you would want everybody to treat everybody else. Locke and Kant had only self-sufficient males in mind, so their bias is now obvious. (para 127)
65. Noted: In post-traditional liberal democratic theories, humans have equal value. John Rawls's Justice as Fairness, introduced through Nelson Goodman's method of Reflective Equilibrium, together with distributive justice as subscribed to by Amartya Sen, gives a basis for justice to vulnerable groups. Transgender persons are among them. (para 127)
66. Held: Bringing them within the rights recognised for other marginalised classes is the minimum response to the insult and injury they have suffered. (para 127)
67. Noted: These are Sikri, J.'s reasons for treating transgender persons as third gender to safeguard and enforce their constitutional rights on the two issues. (para 128)

Authorities

• Queen Empress v. Khairati ((1884) ILR 6 All 204): a transgender person prosecuted under Section 377 IPC and acquitted on appeal. It shows how the section was used against Hijras (paras 17-18).
• Suresh Kumar Koushal v. Naz Foundation ((2014) 1 SCC 1): decided the constitutionality of Section 377. The Court expressed no opinion on it (para 18).
• Corbett v. Corbett ((1970) 2 All ER 33): biological test for sex; not accepted (paras 25, 75).
• R v. Tan ((1983) QB 1053): applied Corbett in criminal law; criticised with Corbett (paras 25-27).
• Attorney-General v. Otahuhu Family Court ((1995) 1 NZLR 603): recognised the marriage of a transsexual in the reassigned sex (para 26).
• Re Kevin (Validity of Marriage of Transsexual) ((2001) Fam CA 1074) and the Full Court decision Attorney-General for the Commonwealth v. Kevin and Jennifer ((2003) Fam CA 94): no formulaic solution; the psyche is relevant (para 26).
• Secretary, Department of Social Security v. SRA ((1993) 43 FCR 299) and R v. Harris and McGuiness ((1988) 17 NSWLR 158): reviewed the cases and rejected a purely biological test (para 27).
• A.B. v. Western Australia ((2011) HCA 42): majority agreed with Lockhart, J. in SRA (para 28).
• Bellinger v. Bellinger ((2003) 2 All ER 593): House of Lords rejected the claim; psychological factor not prominent (para 29).
• Re JG, JG v. Pengarah Jabatan Pendaftaran Negara ((2006) 1 MLJ 90): Kuala Lumpur High Court allowed a change of gender on the identity card (para 30).
• Norrie v. NSW Registrar of Births, Deaths and Marriages ((2013) NSWCA 145): the Registrar can register a sex other than male or female. It cites Collector of Customs v. Pozzolanic Enterprises Pty. Ltd. ((1993) 43 FCR 280) and Hope v. Bathurst City Council ((1980) 144 CLR 1) (para 31).
• Christine Goodwin v. United Kingdom (Application No. 28957/95, 11 July 2002): ECHR held the post-operative intermediate zone unsustainable. It cites Pretty v. United Kingdom (no. 2346/02) and Mikulic v. Croatia (no. 53176/99) (para 32).
• Van Kuck v. Germany (Application No. 35968/97, 12 September 2003): private life covers gender identification (para 33).
• Gramophone Company of India Ltd. v. Birendra Bahadur Pandey ((1984) 2 SCC 534), Tractor Export v. Tarapore & Co. ((1969) 3 SCC 562) and Mirza Ali Akbar Kashani v. United Arab Republic ((1966) 1 SCR 391): Indian courts apply international law by comity of nations (para 51).
• Jolly George Varghese v. Bank of Cochin ((1980) 2 SCC 360): applied the principle to the ICCPR and the UDHR (para 51).
• His Holiness Kesavananda Bharati Sripadavalvaru v. State of Kerala ((1973) 4 SCC 225): the Constitution is read in light of the U.N. Charter, given Article 51 (para 53).
• Apparel Export Promotion Council v. A.K. Chopra ((1999) 1 SCC 759): courts must have due regard to international conventions where domestic law has a void (para 53).
• Githa Hariharan v. Reserve Bank of India ((1999) 2 SCC 228), R.D. Upadhyay v. State of Andhra Pradesh ((2007) 15 SCC 337) and People's Union for Civil Liberties v. Union of India ((2005) 2 SCC 436): referred to on the use of international norms (para 53).
• Vishaka v. State of Rajasthan ((1997) 6 SCC 241): guidelines under Article 141 on the basis of CEDAW (para 53).
• City of Chicago v. Wilson (75 Ill.2d 525 (1978)): struck down a cross-dressing ban (para 63).
• Doe v. Yunits (2000 WL 33162199 (Mass. Super.)): school dress matching gender identity is protected expression (para 64).
• Francis Coralie Mullin v. Administrator, Union Territory of Delhi ((1981) 1 SCC 608): right to dignity (para 67).
• Anuj Garg v. Hotel Association of India ((2008) 3 SCC 1): personal autonomy (para 69).
• Sunil Babu Pant & Ors. v. Nepal Government (Writ Petition No. 917 of 2007): third gender persons have fundamental rights (para 71).
• Dr. Mohammad Aslam Khaki v. Senior Superintendent of Police (Operation) Rawalpindi (Constitution Petition No. 43 of 2009): eunuchs are protected citizens (para 72).
• State of Karnataka v. Rangnatha Reddy (AIR 1978 SC 215): social philosophy of the Constitution (para 93).
• Sheela Barse v. Union of India ((1986) 3 SCC 596); M.C. Mehta v. Union of India ((1987) 4 SCC 463); Kalidas v. State of J&K ((1987) 3 SCC 430); Vincent Panikurlangara v. Union of India (AIR 1987 SC 990); Reghubir Singh v. State of Bihar (AIR 1987 SC 149); Aeltemesh Rein v. Union of India (AIR 1988 SC 1768); Parmanand Katara v. Union of India (AIR 1989 SC 2039); Kishen v. State of Orissa (AIR 1989 SC 677); Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay Pvt. Ltd. (AIR 1989 SC 190); Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC 1883); Vikram Deo Singh Tomar v. State of Bihar (AIR 1988 SC 1782): illustrate the expanded scope of Article 21 (para 94).
• Subhash Kumar v. State of Bihar (AIR 1991 SC 420); Shantistar Builders v. Narayan Khimalal Totame (AIR 1990 SC 630); Ram Sharan Autyanuprasi v. Union of India (AIR 1989 SC 549); State of H.P. v. Umed Ram Sharma (AIR 1986 SC 847); Mohini Jain v. State of Karnataka (AIR 1992 SC 1858); Unni Krishnan J.P. v. State of A.P. (AIR 1993 SC 2178): Directive Principles turned into enforceable rights under Article 21 (para 95).
• Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802); Sher Singh v. State of Punjab (AIR 1983 SC 465); Buffalo Traders Welfare Association v. Maneka Gandhi (1994 Supp (3) SCC 448): positive obligations under Article 21 (para 96).
• Dattatraya Govind Mahajan v. State of Maharashtra (AIR 1977 SC 915): the Supreme Court shall not disown social justice (para 120).
• National Human Rights Commission v. State of Arunachal Pradesh (AIR 1996 SC 1234): equality before the law for every person (para 124).

Provisions mentioned

• Article 14: the State shall not deny to any person equality before the law or equal protection of the laws (paras 54-55).
• Article 15: no discrimination against a citizen on grounds including sex. Clause (2) covers access to public places, and clause (4) allows special provision for socially and educationally backward classes (paras 56-57, 60).
• Article 16: equality of opportunity in public employment. Clause (2) bars discrimination on grounds including sex, and clause (4) allows reservation (paras 58, 60).
• Article 19(1)(a): freedom of speech and expression, which includes expression of self-identified gender. Article 19(2) allows restrictions (paras 62, 65-66).
• Article 21: no deprivation of life or personal liberty except according to procedure established by law. It includes dignity and personal autonomy (paras 67-69, 74).
• Article 51: the State shall endeavour to foster respect for international law and treaty obligations (paras 52-53).
• Article 141: law declared by the Supreme Court is binding, cited for the Vishaka guidelines (para 53).
• Article 253: Parliament may make laws to implement treaties (paras 50, 53).
• Part III (fundamental rights), Part IV (Directive Principles) and the Preamble (paras 90-98, 116, 126).
• Section 377 IPC: criminalises certain sexual acts; the Court expressed no opinion (paras 16-18, 110). Sections 8 and 10 IPC: binary gender expressions in the IPC (para 75).
• Criminal Tribes Act, 1871: treated Hijras as criminal; repealed August 1949 (paras 6, 16, 81, 110).
• Legal Services Authority Act, 1997: constituted the National Legal Services Authority (para 3).
• NAREGA, 2005 (as named in the judgment): an example of binary welfare legislation (para 75).
• UDHR 1948 (Articles 1, 3, 5, 6, 12) and ICCPR 1966 (Articles 6, 7, 16, 17) (paras 21, 47).
• International Covenant on Economic, Social and Cultural Rights, 1966; the Convention against Torture; CEDAW (paras 24, 47, 49, 53).
• Vienna Convention on the Law of Treaties, 1969 (Articles 31 and 32) (para 51).
• The Yogyakarta Principles (paras 21-23, 53).
• Article VI, clause 2 of the U.S. Constitution (paras 50-51).
• Articles 6, 8, 12, 13 and 14 of the European Convention for Protection of Human Rights and Fundamental Freedoms: Article 8 protects private life, including gender identification and personal identity (paras 32-33).
• Articles 11 and 24 of CEDAW, with general recommendations 22, 23 and 24: relied on in Vishaka to lay down guidelines (para 53).
• Section 55 of the Family Law Act, 1986 (UK): the section under which Mrs. Bellinger asked for a declaration that her marriage was valid (para 29).
• Section 15 of the Gender Reassignment Act, 2000 (Western Australia): the Board must be satisfied that the applicant believes their true gender is the reassigned gender (para 28).
• Section 32DC of the Births, Deaths and Marriages Act, 1995 (New South Wales): the power to register a change of sex (para 31).
• Sections 5(A), 5(B) and 5(C) of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 (Australia): discrimination on the ground of sexual orientation, gender identity and intersex status (para 36).
• Article 22, Section 3 of the German Civil Statutes Act: a child who can be assigned to neither the female nor the male sex is named without a specification (para 41).

Judgement

The Court allowed the writ petitions. It declared the following (para 129):

1. Hijras and eunuchs, apart from binary gender, are to be treated as third gender. This is for safeguarding their rights under Part III of the Constitution and the laws made by Parliament and State Legislatures.
2. Transgender persons' right to decide their self-identified gender is upheld. The Centre and State Governments are directed to grant legal recognition of their gender identity as male, female or third gender.
3. The Centre and State Governments are directed to take steps to treat them as socially and educationally backward classes of citizens. They must extend all kinds of reservation in admission to educational institutions and in public appointments.
4. The Centre and State Governments must operate separate HIV Sero-surveillance Centres, since Hijras/transgender persons face several sexual health issues.
5. The Centre and State Governments should seriously address problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies and social stigma. "any insistence for SRS for declaring one’s gender is immoral and illegal".
6. The Centre and State Governments should take proper measures to provide medical care in hospitals and separate public toilets and other facilities.
7. The Centre and State Governments should take steps to frame various social welfare schemes for their betterment.
8. The Centre and State Governments should take steps to create public awareness so transgender persons feel part of social life and are not treated as untouchables.
9. The Centre and State Governments should take measures to regain their respect and place in society, which they once enjoyed in cultural and social life.

Further directions and the order:

10. An Expert Committee has been constituted to study the problems of the transgender community. It must submit its report with recommendations within three months of its constitution. The recommendations are to be examined in light of the legal declaration in this judgment and implemented within six months (para 130).
11. The writ petitions are allowed as above (para 131).
12. The judgment records no order on costs.

Legal Principle / Ratio

Gender identity, including the identity of persons who are neither male nor female, is protected by Articles 14, 15, 16, 19(1)(a) and 21. Each person decides their own gender, and this cannot depend on surgery. Hijras and eunuchs are to be treated as a third gender, apart from male and female.

"Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws." (para 74)

Subsequent Treatment

Three later Supreme Court judgments refer to this case. Each is described only as its own text states.

K.S. Puttaswamy v. Union of India — Writ Petition (Civil) No. 494 of 2012 with other matters; Supreme Court of India (nine-judge Bench); 24 August 2017. The references below are in the opinion of Dr. D.Y. Chandrachud, J., and use his paragraph numbers.

• Para 84: the Court describes this case as a decision of a Bench of two judges on the rights of transgender persons. It records that the two judges used international conventions to read the fundamental rights in Articles 14, 15, 19 and 21 in harmony with India's obligations.
• Para 84 (extracts): it reproduces the holding of Radhakrishnan, J. on Article 19(1)(a), and passages on Article 21, dignity and personal autonomy. It adds that this case grounds a right to privacy in gender identity within Article 15. Privacy comes from the intersection of Article 15 with Article 21 as an expression of autonomy, dignity and identity.
• Paras 87, 91, 103 and 132: the Court lists this case among decisions that built the doctrine of privacy. It lists the right of transgender persons among the contexts of privacy claims. It says that dignity finds expression in this case. It also records that this Court found the international conventions not inconsistent with fundamental rights and said they must be recognised and followed.

Navtej Singh Johar v. Union of India — Writ Petition (Criminal) No. 76 of 2016; Supreme Court of India (Constitution Bench); 6 September 2018. The references are in the opinion of Dipak Misra, C.J.I. (for himself and A.M. Khanwilkar, J.).

• Petitioners' reliance (paras 10, 11, 18, 20, 29, 33): the petitioners relied on this case for gender identity and sexual orientation, for privacy and autonomy, and for the right to express self-identified gender under Article 19(1)(a). They said that, after this case and Puttaswamy, Section 377 IPC could not be enacted by Parliament today.
• Para 5: the Court says the eminence of identity is stated in this case, which dealt with the status of identity of transgender persons. It reproduces the Radhakrishnan, J. observations on gender identity.
• Para 90: the Court calls this case a recent illustration where the rights of transgender persons as a third sex were recognised. It reproduces the passage that the Constitution is a living character and its interpretation must be dynamic.
• Para 253(i): the first conclusion says this case connects human rights with the constitutional guarantee of life and liberty with dignity. The concept of identity cannot be confined to one's orientation.

Kaushal Kishor v. State of UP — Writ Petition (Criminal) No. 113 of 2016; Supreme Court of India (Constitution Bench); 3 January 2023. The reference is in the opinion of B.V. Nagarathna, J.

• Para 15: the Court says Article 19(1)(a) is a multi-faceted freedom. It includes the right to gender identity as a facet of freedom of expression, citing National Legal Services Authority v. Union of India, (2014) 5 SCC 438. It gives it with other facets, such as the right of the press to interview and the right to fly the national flag.

Other later cases (not summarized): the scan of the saved judgments also found citations of this case in Joseph Shine v. Union of India (decided 27 September 2018) and Janhit Abhiyan v. Union of India (decided 7 November 2022). They are only named here.

Critical Analysis

Analysis based on the judgment text.

The two opinions define transgender differently. Radhakrishnan, J. uses transgender as an umbrella term, wide enough to include pre-operative, post-operative and non-operative transsexual persons and cross-dressers (para 11). Sikri, J. says he uses the term restrictively for Hijras and similar groups when he discusses a distinct identity (paras 107-109). The declaration in para 129(1) is confined to Hijras and eunuchs. Para 129(2) refers to transgender persons generally. The judgment does not say how the two scopes fit together.

No test or criteria for the reservation direction. Para 60 says transgender persons are socially and educationally backward classes. Para 129(3) directs that they be treated as such and given reservations in admissions and public appointments. The judgment does not set out a process, a percentage or a test for identifying who qualifies. It leaves that to the Centre and States.

The self-identification right and the SRS passages sit side by side. The Court says gender identity rests on self-identification and not on surgery (para 76). It also says a person has a constitutional right to be recognised as male or female after SRS (para 106). It treats insistence on SRS as immoral and illegal (para 129(5)). The judgment does not spell out what proof, if any, a person must give to obtain recognition under para 129(2).

Section 377 is deliberately left open. The Court notes that Section 377 was misused against Hijras (paras 17-18). It still expresses no opinion on its validity, because a Division Bench had decided it (para 18). The link between recognition of identity and the criminal law was left for another case.

Significance

National Legal Services Authority v. Union of India is the first Supreme Court judgment to declare a third gender in law. It gives constitutional protection to gender identity that does not fit the male-female binary.

Articles 14, 15, 16, 19(1)(a) and 21 are read to include gender identity. The Court held that sex in Articles 15 and 16 covers gender identity (para 59). It also held that gender identity is protected as expression under Article 19(1)(a) (paras 65-66). It further held that self-determination of gender is part of dignity and autonomy under Article 21 (paras 68-69, 74).

The judgment also shows how the Court uses international law where Indian law is silent. It reads the ICCPR, the UDHR and the Yogyakarta Principles into the fundamental rights so long as they are not inconsistent with them (paras 49-53).

The directions on reservations, health, toilets, welfare and awareness show a positive obligation on the State. The Court said the State must act to remedy centuries of injustice (paras 60, 129).

Exam-Important Points

• Facts in one line: the National Legal Services Authority and the Poojaya Mata Nasib Kaur Ji Women Welfare Society asked for recognition of transgender persons' gender identity. The Court declared Hijras and eunuchs a third gender.
• Bench: two judges, K.S. Radhakrishnan and A.K. Sikri, JJ. They wrote separate opinions and reached the same result. Paragraph numbers run on continuously: Radhakrishnan, J. paras 1-77; Sikri, J. paras 78-128; directions paras 129-131.
• Sex in Articles 15 and 16 includes gender identity (para 59). Discrimination on the ground of gender identity is barred. Articles 14, 15, 16, 19 and 21 use gender-neutral words (para 76).
• Article 19(1)(a) protects expression of self-identified gender through dress, words and behaviour (paras 62, 65-66). Article 21 protects dignity and personal autonomy, so self-determination of gender falls within personal liberty (paras 68-69, 74).
• The Court preferred the Psychological Test over the Biological Test of Corbett v. Corbett (paras 34, 75).
• Exam trap: the Court expressly did not decide Section 377 IPC. It said it was concerned with a different issue (para 18).
• International law: Indian courts apply it by comity of nations unless overridden by clear domestic law (para 51). Article 51 is read with Article 253 (para 53). Conventions not inconsistent with fundamental rights are read into Articles 14, 15, 19 and 21 (para 53).
• Directions (para 129): third gender status; legal recognition of male, female or third gender; treatment as socially and educationally backward classes with reservation; separate HIV surveillance centres; medical care and separate toilets; welfare schemes; awareness; and restoration of respect. SRS cannot be insisted on. The Expert Committee's recommendations were to be implemented within six months (para 130).
• Sikri, J. framed two questions: the right to the gender of one's choice and the right to be a third gender. The second was the primary concern (paras 79-80).

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.