Scribd
Upload
20 views2 pages

(Nalsa) vs. Union of India

Uploaded by

noxmisser
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
20 views2 pages

(Nalsa) vs. Union of India

Uploaded by

noxmisser
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 2

N AT I O N A L L E G A L S E R V I C E S A U T H O R I T Y ( N A L S A ) V S .

U N I O N
OF INDIA

SUPREME COURT OF INDIA


judges:
K S RADHAKRISHNAN & A K SIKRI
KEY FACTS:
This case was filed by the National Legal Services Authority of India (NALSA) to legally
recognize persons who fall outside the male/female gender binary, including persons who
identify as “third gender”.
ISSUES & DECISION:
The Court had to decide whether persons who fall outside the male/female gender binary can be
legally recognised as “third gender” persons. It deliberated on whether disregarding non-binary
gender identities is a breach of fundamental rights guaranteed by the Constitution of India. It
referred to an “Expert Committee on Issues Relating to Transgender” constituted under the
Ministry of Social Justice and Empowerment to develop its judgement.
This was a landmark decision where the apex court legally recognised “third gender”/transgender
persons for the first time and discussed “gender identity” at length. The Court recognised that
third gender persons were entitled to fundamental rights under the Constitution and under
International law. Further, it directed state governments to develop mechanisms to realise the
rights of “third gender”/transgender persons.
Defining “Third Gender”
The Court upheld the right of all persons to self-identify their gender. Further, it declared
that hijras and eunuchs can legally identify as “third gender”.
The Court clarified that gender identity did not refer to biological characteristics but rather
referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons
should be subjected to any medical examination or biological test which would invade their right
to privacy.
Fundamental Rights
The Court interpreted ‘dignity’ under Article 21 of the Constitution to include diversity in self-
expression, which allowed a person to lead a dignified life. It placed one’s gender identity within
the framework of the fundamental right to dignity under Article 21.
Further, it noted that the right to equality (Article 14 of the Constitution) and freedom of
expression (Article 19(1)(a)) was framed in gender-neutral terms (“all persons”). Consequently,
the right to equality and freedom of expression would extend to transgender persons.
It drew attention to the fact that transgender persons were subject to “extreme discrimination in
all spheres of society” which was a violation of their right to equality. Further, it included the
right to express one’s gender “through dress, words, action, or behaviour” under the ambit of
freedom of expression.
Under Articles 15 and 16, discrimination on the ground of “sex” is explicitly prohibited. The
Court held that “sex” here does not only refer to biological attributes (such as chromosomes,
genitalia and secondary sexual characteristics) but also includes “gender” (based on one’s self-
perception). Thus, the Court held that discrimination on the ground of “sex” included
discrimination on the basis of gender identity.
Thus, the Court held that transgender persons were entitled to fundamental rights under Articles
14, 15, 16, 19(1)(a) and 21 of the Constitution. Further, the Court also referred to core
international human rights treaties and the Yogyakarta Principles to recognise transgender
persons’ human rights.
Further Directions
The Court held that public awareness programs were required to tackle stigma against the
transgender community. It also directed the Central and State Governments to take several steps
for the advancement of the transgender community, including:
1. Making provisions for legal recognition of “third gender” in all documents
2. Recognising third gender persons as a “socially and educationally backward class of citizens”,
entitled to reservations in educational institutions and public employment.
3. Taking steps to frame social welfare schemes for the community
SIGNIFICANCE:
This is a landmark decision because it is the first to legally recognise non-binary gender
identities and uphold the fundamental rights of transgender persons in India. The judgement also
directed Central and State governments to take proactive action in securing transgender persons’
rights.

You might also like