November 08, 2018

Male. Female. Other. India Requires Legal Recognition of a Third Gender

Mark E. Wojcik

A landmark judgment issued in April 2014 by the Supreme Court of India provides for legal recognition of a “third gender” apart from male and female. The judgment upholds the right of transgender persons “to decide their self-identified gender” and directs the national and state governments in India “to grant legal recognition of their gender identity” as male, female, or a third gender. The India Supreme Court also directed national and state governments to extend special consideration to transgender persons in admission to educational institutions and for public appointments. Government units were also directed to establish separate HIV centers for transgender persons, “to take proper measures to provide medical care” to transgender persons in hospitals, and to provide transgender persons with “separate public toilets and other facilities.”

National Legal Services Authority v. Union of India was decided on April 15, 2014, by a two-judge panel of the India Supreme Court. The decision examines human rights treaties and foreign case precedents in finding that the Constitution of India required legal recognition of a third gender. And the decision was also seen as a curious answer to another two-judge panel decision of the India Supreme Court rendered in December 2013, Suresh Kumar Koushal v. Naz Foundation, which reinstated India’s colonial-era sodomy law that a lower court had declared unconstitutional in 2009. Although some conservative leaders in India welcomed that decision reinstating India’s colonial-era sodomy law, the decision was widely criticized and provoked street demonstrations against it.

The recognition of transgender persons under the Indian Constitution was a separate issue from the constitutionality of India’s colonial-era sodomy law, however, and having separate decisions from different two-judge panels of the India Supreme Court presents an interesting opportunity to study comparative judicial procedure and jurisprudence.

The National Legal Services Authority, which served as petitioner for the transgender rights case, highlighted traumatic discrimination suffered by transgender persons in India and argued that all transgender persons in India had “a legal right to decide their sexual orientation and to espouse and determine their identity.” And because transgender persons in India “are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens” of India. It was also argued that “the right to choose one’s gender identity is integral to the right to lead a life with dignity,” a right “undoubtedly guaranteed” under the Indian Constitution.

The Supreme Court decision reviewed the historical background of transgender persons in India and included an interesting discussion of hijras, eunuchs, kothis, aravanis, jogappas, Shiv-shakthis, and other groups. It also referenced Lord Rama in the epic Ramayana, who, upon being banished from the kingdom for 14 years, turned to his followers and asked all the “men and women” to return to the city. The hijras, however, did not feel bound by this request and stayed with him during his exile. Impressed with their devotion, Lord Rama gave them the power to confer blessings on people during auspicious occasions such as childbirth or marriage.

The India Supreme Court also reviewed more contemporary human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the 2006 Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, as well as endorsements of the Yogyakarta principles by various UN committees, regional human rights bodies, national courts, and government commissions.

The India Supreme Court also examined other national courts’ decisions on various aspects of recognizing transgender rights. A 2013 decision from the New South Wales Court of Appeal in Australia, for example, held that a lower court “erred in determining that the current ordinary meaning of the word ‘sex’ is limited to the character of being either male or female.” Another decision cited was from India’s neighbor, Nepal, where the Supreme Court of that country held in 2007 that Nepal “should recognize the existence of all natural persons including the people of the third gender other than the men and women.”

The India Supreme Court also considered legislation from other countries, including Argentina, Australia, Canada, Germany, the Netherlands, and the United Kingdom. In reviewing cases and national legislation, it took particular note of authorities that did not require persons to have undergone or to be in the process of undergoing any hormonal therapy or sexual reassignment surgery. Under the Gender Identity Law passed in Argentina in 2012, for example, persons have the right to “recognition of their gender identity as well as free development of their person according to their gender identity and [they] can also request that their recorded sex be amended along with the changes in first name and image, whenever they do not agree with the self-perceived gender identity.” To exercise those rights, it is not necessary to prove that any surgical procedure or other psychological or medical treatment has taken place. Additionally, the Argentine law also provides that “whenever requested by the individual, the adopted first name must be used for summoning, recording, filing, calling, and any other procedure or service in public and private spaces.” And under new German legislation that entered into effect in November 2013, parents of children with intersex variation can register the sex of their children as “not specified.” The German law also created an additional category of classification for passports: “M,” “F,” and “X.”

The India Supreme Court found that transgender people face multiple forms of discrimination and oppression in India, especially in the fields of health care, employment, and education. They also face serious human rights violations and harassment in places of public convenience, marketplaces, theatres, bus and railway stations, hospitals, and workplaces. India has no legislation dealing with transgender rights and the Court further concluded that Indian law recognizing only male and female genders denies transgender persons certain rights under laws relating to marriage, adoption, inheritance, succession, taxation, and welfare legislation. The India Supreme Court said that under the Indian Constitution, it could not be “a mute spectator when those rights are violated.”

The Indian Supreme Court applied several constitutional provisions to the rights of transgender persons. Under Article 14 of the Indian Constitution, the state cannot deny to “any person” equality before the law or the equal protection of the laws within the territory of India. The Court found that Article 14 did not apply only to males or females and that nonrecognition of hijras/transgender persons denies them equal protection of the law and leaves them “extremely vulnerable to harassment, violence, and sexual assault in public spaces, at home, and in jail, also by the police.”

Several other provisions of the Indian Constitution also applied to transgender rights. Article 15 of the Indian Constitution prohibits discrimination against any citizen on the basis of sex in access to shops, public restaurants, hotels, or places of public entertainment or in the use of wells and places of public resort maintained with any state funds. Article 16 prohibits employment discrimination on the basis of sex and “imposes a duty on the State to ensure that all citizens are treated equally in matters relating to employment and appointment by the State.” Article 19 guarantees that all Indian citizens have the right to freedom of speech and expression, “which includes one’s right to expression of his self-identified gender.”

The India Supreme Court also cited Article 21, described as “the heart and soul of the Indian Constitution,” which provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Court found that Article 21 covers “all those aspects of life which go to make a person’s life meaningful” and that it “protects the dignity of human life, one’s personal autonomy, one’s right to privacy,” and other rights. Because gender “constitutes the core of one’s sense of being as well as an integral part of a person’s identity,” the India Supreme Court found that legal recognition of gender identity was “part of the right to dignity and freedom guaranteed” under the Indian Constitution.

The Court finally ruled that the determination of the gender to which a person belonged “is to be decided by the person concerned.” The Court rejected any biological test and instead decided to “follow the psyche of the person in determining sex and gender.” The India Supreme Court thus recognized a “third gender” and the right of transgender persons to self-identify their gender.

Considering the sources cited by the India Supreme Court from nations as diverse as Argentina, Germany, and Nepal, it should be clear that the issues of transgender rights are wide and varied. This groundbreaking decision gives legal recognition to a third sex without requiring prior medical treatment as a condition of receiving those legal rights. Employers, educational institutions, prisons, and government units at all levels have much to consider about changes that will be necessary, not only in India but around the world.

Mark E. Wojcik

Mark E. Wojcik is a law professor at the John Marshall Law School in Chicago. He is senior advisor to the Section’s Sexual Orientation and Gender Identity Issues Network and a former commissioner on the ABA Sexual Orientation and Gender Identity Commission.