NALSA Judgment: Critique of the Indian Perspective Beyond the Adams-and-Eves Worldview

By: AASTHA KHANNA and DIVESH SAWHNEY 

Aastha Khanna, LL.B. student, Law Centre-1, Faculty of Law, University of Delhi; aasthakhanna0204@gmail.com
Divesh Sawhney, LL.B. student, Law Centre-1, Faculty of Law, University of Delhi; divesh.sawhney2@gmail.com

     Fifty Eight… Beyond the man-woman binary, there are as many 58 gender variants.[1]. Transgender persons’ lives are no longer footnotes in the law books, their identities are no longer uniformly bound to surgical requirements. The Judicial ken on the subject has come out of the valley of shadows to bask in the glistening sunlight of liberty — from Corbett’s[2] heretic ‘biological test’/’gender dysphoria’ era to the unstinted ‘psychological aspect’/ equality principle gaining ground in recent dicta of U.S Supreme Court,[3] African Court[4] and Malaysian Court[5], among others.

     From India’s perspective, NALSA judgment[6] is a monumental step in the right direction. It has unclipped the wings of an egalitarian society; and the apostles of gender-binary heresy are not so much beaten as overawed. The Court drew an analogy between trans-community and untouchables — both wracked and ostracized by the society. The wails of untouchables in India have been somewhat atoned, and the time is ripe to follow the same course for the rights of trans-community.

TERMINOLOGY & SEMANTICS

     A court of law is a house of semantics. It settles the deep meaning of terminology employed in legislations, rules and what not. The NALSA Court also endeavored to expound the widely used terms attributed to the trans-community — though the Court’s propriety is another aspect. Even the sky-high intellects conflate these terminologies, but a Court can never afford to be enmeshed. For it is upon the Court to decide and accord rights based on the categorization it employs.

Women- gender; Female- Sex[7]

     To phrase it mildly, the Court committed an error in tangling the most basic conceptual difference between the foregoing terms. It employed the terms interchangeably rendering the judgment less scrutable. Eschewing from further dwelling on this, let’s consider the Court assumed male, female to be genders not sex.

     The Apex court, to some extent, drew an understanding of trans terminology, especially the terms ‘sexual orientation’ and ‘gender identity’ inter alia. 

     The judgment neglected the grammatical aspect of the word ‘transgender’ by employing it at various places as noun instead of adjective. This term is analogous to the adjectival ‘female’ and ‘male’, therefore, its usage as a noun is derogatory to the people belonging to trans-community and reduces them to a mere object.[8]

     Further, the Court defined ‘transgender’ as an umbrella term for persons whose gender identity lies outside the pigeonhole compartments of sexual binary. The Court eloquently categorized the Indian trans-community under the set of Hijras[9]. It also entailed male-to-female transgender persons. But then the question poses — what about female-to-male transgender persons (trans-men)? More so, a bare perusal of the directions issued in the judgment further obscure the point. ‘Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for purpose of safeguarding their rights under part III of our Constitution…’[10] Now, this circumscribes rights to Hijras and Eunuchs, while already categorizing the whole community under the rubric of Hjras.

     Interestingly, whilst the categories of ‘male’ and ‘female’ are viewed through the lens of sex, it is only the ‘transgender’ category that is viewed through the lens of gender. As a corollary, transgender should be recognized as the first gender as opposed to third gender. [11]      Indeed, something to ponder over.

CONSTITUTIONAL RECOGNITION TO TRANSGENDER PERSONS

‘It is the business of the state… to maintain the conditions without which free exercise of the human faculties is impossible.’[12]

     And what possibly can surpass the liberty to express your ‘individualism.’ Ergo, Justice K.S.P Radhakrishnan. grandiloquently reflected the interplay between Articles 14, 15, 16, 19(1)(a), and 21 of the Constitution. The ensuing paragraphs delineate this interplay.

  • ARTICLE 14[13]: The major argument of the Court revolved around the fact that Article 14 employs the word ‘person’, which, as per the purposive interpretation given by the Court in the instant case, includes not only the Victorian era genders, viz., men and women but also genders outside binary. The Court, therefore, declared that transgender persons enjoy as much equal protection of law and equality before law as other genders.
  • ARTICLES 15[14] & 16[15]: The Court interpreted the word ‘sex’ under Article 15 and 16 so as to entail prohibition on gender bias and gender-based discrimination. It went a step ahead and emphasized that Constitution makers intended to prevent direct or indirect discrimination among people for not being in conformity with stereotypical generalizations of gender binary. It further recognized that transgender persons are legally entitled safe access to public places under Article 15(2); and benefits of reservation in educational institutions and public appointments as socially and educationally backward classes under Article 15(4), and for that matter under Article 16(4) as backward classes.[16]

     Given the foregoing explication by the Court, can it be inferred that a trans-woman will be entitled to the same special provisions under Articles 15 and 16 as a cisgender woman? The answer to this question is nowhere to be found in the judgment.

     Apart from this, the Court, though in tune with the ‘separation of powers’, passes the buck to the legislature for delineating a reservation policy for this ostracized community. Now, transgender persons may be layered under different caste identities, what if there is a prepossession in favor of a cisgender woman over a transgender woman, when both fall under the same caste reservation bracket? The Court could have glossed on this issue by dealing with horizontal reservations cutting across the vertical categories of caste, but it eschewed from doing so.[17] This, invariably, would lead to further litigation as instantiated in Grace Banu Ganesan v. State of Tamil Nadu & Ors.[18]

  • ARTICLE 19[19]: ‘Outside gender binary, there are only pathology and disability’[20], this endemic perception has always been repugnant to the moral precepts; and the NALSA judgment discredited all these fallacious norms by extending constitutional rights and protection to transgender persons. The Court unequivocally held that no restriction, save and except those mentioned in Article 19(2), can be placed on one’s personal expression, mannerism and clothing. It relied heavily on two foreign judgments, viz., City of Chicago v. Wilson et al.[21] and Doe v. Yunits et al.[22] which talk about the values of privacy, self-identity and gender expression through cross dressing.[23]
  • ARTICLE 21[24]: Wealth and opulence may be possessions of few, but liberty must be bestowed upon everybody. With this object in mind, the makers of the Constitution drafted Article 21- the heart and soul of Indian Constitution. It entitles every person — which is again a gender-neutral word and thus equally applies to man, woman and transgender persons — not only the right of mere existence but to live with dignity. Concomitantly, self-perceived gender identity and expression — a linchpin of dignified life — falls within the ambit of right to life under Article 21.

     The Hon’ble Supreme Court, while displaying panoply of transformative constitutionalism, in NALSA judgment emphasized the need to read the Constitution as a ‘living document’[25] in light of the present socio-political scenario. The judgment impresses upon the fact that legal recognition of gender identity is a part of right to dignity and freedom; and self-determination of gender is an integral part of personal autonomy, self-expression and personal liberty guaranteed under Article 21. Hence, any restriction on any person’s liberty to decide zir[26] lived gender,[27] gender identity or expression[28] infracts Article 21.

     Fundamental Rights not only protect individuals and minorities from the whims and vagaries of State action, rather they have also been shaped to protect individuals against transgressions by private citizens. For instance, Article 15(2) foils restriction or disablement of any citizen from accessing to public places on account of zir[29] religion, race, caste, sex, or place of birth; Article 17[30] abolishes untouchability; Article 23[31] proscribes forced labor. Thus the State, in addition to conforming to the Constitution’s injunctions not to fetter citizen’s liberties, must also fulfil its duty to protect citizen’s rights from being encroached by the society. This principle is of cardinal importance in case of transgender persons who are constantly subjected to society’s virulent deportment.

     Are fundamental Rights the only safeguard etched in the Constitution? The pat answer is no. If the Fundamental Rights are an edifice, the Directive Principles of State Policies (‘DPSPs’) are the scaffolding that lays a sturdy foundation. One delineates the negative obligations, whereas the other pens down the positive duties of the State. The Hon’ble Supreme Court in NALSA judgment also referred to DPSPs — especially Article 51 dealing with international law — while directing the States to fulfil their obligations. Though DPSPs are not justiciable, they are of equal, if not more, pertinence.[32] Hence the NALSA judgment manifests the Court’s overarching and expansive intendment to tip the scales in favor of equity — which perforce is of first importance.

     This sweeping interpretation of rights can also be witnessed in the rather recent judgment of K.S. Puttaswamy v. Union of India[33] wherein the rotten law of ADM Jabalpur[34]was purged. In an eloquent passage, Lord Mansfield opined ‘I care not for the supposed dicta of judges, however eminent, if they be contrary to all principle.’

DIRECTIONS

     The directions given by the Court obscure more than they illuminate. As mentioned previously, the independent reading of first and second direction renders them diametrically opposite. While the first direction recognizes hijras as third gender, the second direction gives transgender persons the right to choose between being ‘female, male or third gender.’ The question is whether hijras also have the right to choose from the binary.[35]

     Other directives like separate toilet facilities, HIV sero-surveillance centers, recognition as socially and educationally backward,[36] medical care facilities, inclusion of transgender persons in society by spreading awareness, and framing of various welfare schemes are impressive and applaud-worthy. However, implementation of such embracing directions will be a herculean task. The orders are so broad and vague, that it would be difficult to hold anyone accountable for their non-compliance.

     Despite the fervent criticism displayed in this article, the judgment has decidedly provided some perspective for discourse over transgender rights in India. And, it is not an end, but only a springboard to travail further. 

THE EVOLVING INDIAN PERSPECTIVE

     The melancholic tale of Khairati,[37] the tragic victim of rigid gender binary, speaks volumes of the absence of empathy in the colonial courts to comprehend what Khairati experienced. Unfortunately, this absence continued into independent India. The language and dimensions of Constitution never applied to the lives of transgender persons.

     Only when the NALSA Court cracked open this legal mold and refused to categorize humans into an orthodox quagmire of societal identities, formulating an eclectic theory of transgender rights, that the Courts and wider public (NALSA Judgment & Beyond’- survey[38]) began to see transgender community through the lens of dignity. Now that gender identity- the gatekeeper to other rights – has been recognized, the other set of monolithic heresies on same-sex marriage, consensual cohabitation, among other things,[39] must be scotched. No democracy can blossom when contraries are labeled heretics. Now, the onus is upon us to help this downtrodden community to vault from the cavernous depths of marginalization, and soar in the sky of tranquility and contentment, which can only be achieved through social reforms.[40]

     This Internationally hailed case and the resultant legislation[41] are beginning of an end, of the dilemma of a transgender person’s life, beautifully expressed by the illustrious author Arundhati Roy in the following words:

 

“She, who never knew which box to tick, which queue to stand in, which public toilet to enter (Kings or Queens? Lords or Ladies? Sirs or Hers?)

She, who knew she was all wrong, always wrong.

She, augmented by her ambiguity.”[42]


[1] Arun Kumar and Anr v. Inspector General of Registration and Ors, (2019) SCC OnLine Mad 8779, ¶17; Following the policy of inclusivity, social media platforms like Facebook and Tinder now allow users to choose from 58 and 37 gender identities respectively while signing up.

[2] National Legal Services Authority v. Union of India, (2014) 5 SCC 438, ¶81.

[3] Bostock v. Clayton County, Georgia, 590 U.S. ____ (2020)

[4] Motshidiemang v. Attorney General, MAHGB-000591-16; see also, EG v. Attorney General, Petition Nos. 150 and 234 of 2016.

[5] Muhamad Juzaili Bin Mohd Khamis v. State Government of Negeri Sembilan, N-01-498-11/2012.

[6] National legal Services Authority v. Union of India (hereinafter, ‘NALSA’), (2014) 5 SCC 438

[7] GLAAD Media Reference Guide- Transgender, https://www.glaad.org/reference/transgender (Last visited on June 25, 2020); see also, Gender Definitions, World health Organisation, Regional Office for Europe, available at https://www.euro.who.int/en/health-topics/health-determinants/gender/gender-definitions (Last visited on June 25, 2020);  Mikkola, Mari, “Feminist Perspectives on Sex and Gender”, The Stanford Encyclopedia of Philosophy (Fall 2019 Edition), Edward N. Zalta (ed.), available at, https://plato.stanford.edu/archives/fall2019/entries/feminism-gender. (Last visited on June 25, 2020); Office of National Statistics (UK), What is the difference between sex and gender?, available at https://www.ons.gov.uk/economy/environmentalaccounts/articles/whatisthedifferencebetweensexandgender/2019-02-21 (Last visited on July 3, 2020),

[8] HUMAN LAW RIGHTS NETWORK, People’s Inquiry into the status of the implementation of the NALSA judgment (November 2016), available at http://reproductiverights.hrln.org/wp-content/uploads/2017/04/nalsa-ipt-report.pdf (Last visited on June 25, 2020); see also, VIDHI CENTRE FOR LEGAL POLICY, Comments on the Transgender Persons (Protection of Rights) Bill, 2016, available at, https://vidhilegalpolicy.in/wp-content/uploads/2019/05/SubmissionsontheTransgenderBill2016.pdf (Last visited on June 25, 2020)

[9] NALSA, at ¶47

[10] NALSA, at ¶135.1

[11] VIDHI CENTRE FOR LEGAL POLICY, Queering the Law: Making Indian Laws LGBT+ Inclusive (July 2019), available at https://vidhilegalpolicy.in/wp-content/uploads/2019/07/Queering-the-Law_Introduction.pdf. (Last visited on June 25, 2020)

[12] THOMAS HILL GREEN, LIBERAL LEGILATION AND FREEDOM OF CONTRACT 9-15 (1861)

[13] Article 14: Equality before law.

[14] Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

[15] Article 16: Equality of opportunity in matters of public employment

[16] NALSA, at ¶¶63-68

[17] Tarunabh Khaitan, NALSA v. Union of India: What Courts Say, What Courts Do, UK Constitutional Law Association (April 24, 2014), available at https://ukconstitutionallaw.org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-courts-say-what-courts-do/ (Last visited on June 25, 2020)

[18] W.P. 6052/2019 (CNR Number: HCMA01-031907-2019)

[19] Article 19: Protection of certain rights regarding freedom of speech, etc.

[20] PAUL B. PRECIADO, COUNTER-SEXUAL MANIFESTO 5 (2018)

[21] 75 III.2d 525(1978)

[22] 2000 WL33162199 (Mass. Super.)

[23] NALSA, at ¶¶ 70.1, 70.2.

[24] Article 21: Protection of Life and Personal Liberty

[25] The doctrine of ‘Living Tree’, a Canadian law doctrine describes Constitution as a living document, which keeps evolving with the changing times. The meaning of the Constitution may not be frozen to the perspective when it was adopted.

[26] Gender neutral pronoun used for a person existing outside the binary.

[27] “lived gender” refers to each person’s gender identity and its public expression over a sustained period of time, See Gender Identity, Gender Expression and Sex Characteristics Act, 2015 (Republic of Malta) Cl. 2.

[28] “gender expression” refers to each person’s manifestation of their gender identity, and, or the one that is perceived by others, see Gender Identity, Gender Expression and Sex Characteristics Act, 2015 (Republic of Malta) Cl. 2.

[29] Supra note 25

[30] Article 17: Abolition of Untouchability

[31] Article 23: Prohibition of traffic in human beings and forced labour.

[32] NALSA, at ¶ 102 (per Dr. A.K. Sikri J.)

[33] Justice (Retd.) K.S. Puttaswamy v. Union of India (2017) 10 SCC 1

[34] (1976) 2 SCC 521

[35] Tarunabh Khaitan, NALSA v. Union of India: What Courts Say, What Courts Do, UK Constitutional Law Association (April 24, 2014), available at https://ukconstitutionallaw.org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-courts-say-what-courts-do/

[36]  John W. Armour, Compenatory Discrimination: The Indian Constitution and Judicial Review, (16) MELBOURNE UNIVERSITY LAW REVIEW 126, 135-136 (1987); See also, The Constitution of India, 1950, Art. 342A.

[37] Queen Empress v. Khairati I.L.R. 6 All 205. This was the first reported case of the use of Section 377 against a person described by the Court as a ‘eunuch’. This case goes back to 1884 when a person named Khairati was arrested and tried under section 377 on the grounds of habitually wearing women’s clothes and committing sodomy. Although Khairati was ultimately acquitted by the Court due to the lack of evidence, the key point in the case was the violence and brutality she was subjected to during the legal proceedings.

[38] A survey, ‘NALSA Judgment & Beyond’, was conducted in June 2020 to study the public attitude towards transgender persons post NALSA judgment. The graphical representation of the inference drawn is available at https://drive.google.com/file/d/12TP-uAxMcv6uGVjwbtetnBGCqMVNXkBe/view?usp=sharing

[39] Uttarakhand High Court in Madhu Bala v. State of Uttarakhand [Habeas Corpus Petition No. 8 of 2020] interpreted the consensual cohabitation between two adults of same sex within the ambit of Article 21(Right to life and Personal Liberty); see also, a Writ Petition filed in Kerala High Court in Jan 2020 wherein the petitioner has prayed for recognition of same-sex marriage under Special Marriage Act, 1954 available at https://www.livelaw.in/pdf_upload/pdf_upload-369544.pdf (Last visited on June 25, 2020); Madras High Court in Arun Kumar and Anr v. Inspector General of Registration and Ors, (2019) SCC OnLine Mad 8779 held that a transwoman is a ‘bride’ under Hindu Marriage Act, 1955.          

[40] The Noida Metro Rail Corporation (NMRC) has recently decided to dedicate Noida’s Sector 50 Metro Station to transgender community by renaming it to ‘Rainbow Station’; Ministry of Home Affairs (MHA) recently sought views of paramilitary forces on recruiting transgender people in central paramilitary forces and Indian Army.

[41] Transgender Persons (Protection of Rights) Act, 2019, 40 of 2019

[42] ARUNDHATI ROY, THE MINISTRY OF UTMOST HAPPINESS 122 Penguin Books 2018.

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