In a historic move, the Supreme Court on Tuesday granted legal recognition to transgenders as ‘third gender’ as a mandate of social justice. The apex court ordered the Centre and the states to recognise transgenders as a class apart from male and female.
According them the legal recognition as the “third gender”, the Supreme Court ruled that transgenders will be treated as a socially and economically backward class for being given various special rights.
A bench led by Justice K S Radhakrishnan said that transgenders shall be considered as a class apart from male and female since they had a right to choose their gender based on self-identification of their sex.
The bench directed the Centre and state governments to identify them as a third gender and frame various social welfare and educational schemes for their upliftment. The court said that for the purposes of identification as the third gender, psycholical and not biological test was to be applied.
It noted that one’s right to self-identify his sex was a facet of the basic priciple of dignity and manifested free spirit of a human being.
The bench added that identification of transgenders did not require a statutory regime and their rights were inherent in the Indian Constitution. It said a “human right approach was required to change the social stigma attached to them.” It held that granting transgenders a legal recognition was a move towards social justice.
The court order came on a PIL by the National Legal Services Authority (NALSA). The NALSA has asserted that fundamental rights guaranteed to every citizen would inevitably include transgenders and so these rights could not be denied or taken away because of their sex orientation or since they did not have a developed genital.
Seeking a legal recognition for transgenders, the petition stated that considering them as a “legal non-entity” was violative of the Constitutional provisions and they were entitled to basic necessities of life, including nutrition, shelter, medical facilities, education, right to work.
“Every person has the right to decide their sex orientation and to espouse and determine their identity, including trans-sexuals, transgenders, transvestites and they are entitled to be considered as a third and equal sex…Citizenship Act of India uses the expression ‘person’ without reference to sex. Transgenders, being citizens of India, ought to be entitled to vote and to contest elections as they are natural persons,” said the plea.
Demanding equal protection and rights to transgenders as being made available to the male and female citizens, the plea requested the court to pass appropriate orders for the Centre and states to “include the category ‘Transgender’ as a third category in providing various opportunities or facilities, including election card, passport, driving licence, ration card, admission to institutions, medical treatment”.
NALSA has sought reservations for transgenders in job opportunities in public and private sectors, either as a separate category or as being a backward class.
The government however refused to acknowledge them as a separate or a backward class for reservation in jobs. “It is submitted that transgenders are not denied rights like food, shelter and marriage,” said the Ministry of Social Justice and Empowerment affidavit. “The existing schemes for OBCs do not specifically mention transgenders,” said the Ministry.
The government maintained that transgenders and eunuchs were eligible to be enrolled as voters and the Election Commission of India had already issued directions relating to their enrollment specifying ‘Other’ against the gender column. “Further, the Commission directed the Chief Electoral Officers of all States/UTs to make necessary modifications in the Electoral Roll,” said the affidavit.
The ministry said during population enumeration, three codes were provided, Male-1, Female-2 and Others-3. “In case any respondent wished to be recorded neither 1 nor 2, then the enumerator was to record sex as ‘others’ during census,” it said.
The Centre, choosing not to respond to a specific request to create separate wards and mechanism for treatment in hospitals, simply said government hospitals provided free treatment to all without discrimination.
The Ministry pointed out that as per ‘Allocation of Business Rules,’ work relating to transgenders and eunuchs had not been allocated to any ministry or department until 2012, as it would require time to be familiar with.