Today’s landmark case spotlight shines on the Indian Supreme Court’s National Legal Services v. Union of India & Ors decision (colloquially known as the NALSA decision), which granted extensive rights and protections to transgendered persons. This 2014 decision stunned not only because it was the one of the first of its kind internationally, but it also because it stood in stark contrast to the Indian Supreme Court’s 2013 decision in Naz Foundation v. Govt. of NCT of Delhi, which had effectively recriminalized homosexuality and had seemed to indicate a return to more conservative judicial perspective on LGBT issues.
The NALSA case was brought to the Indian courts by members of the transgender community who sought a legal declaration of their gender identity. The claimants alleged that since transgendered persons “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 this country.” The claimants argued that such deprivation effectively violated Articles 14 (guaranteeing equality before the law) and 21 (guaranteeing protection of life and personal liberty) of the Indian Constitution.
The Supreme Court agreed. The 113 page decision detailed the strong historical presence that transgendered persons had played in Indian culture, mythology and religious text, the plethora of international instruments which demand protection of the rights of transgendered persons, and the foreign judgments and legislation which had given recognition to the gender identity of transgendered persons. The Court then went on to catalogue the multiple forms of oppression suffered by transgendered persons in India, including discrimination, stigma and high rates of HIV infection.
Turning next to India’s constitutional guarantees, the Court found that the current oppression and discrimination faced by members of the transgendered community lay at odds with the protections embedded in Articles 14 (equality before the law), 15 and 16 (prohibition of discrimination based on sex), 19 (guarantee of certain fundamental rights) and 21 (protection of the dignity of human life, personal autonomy and the right to privacy) of the Indian constitution. In order for transgendered persons to enjoy these constitutional guarantees, the Court held that their self-determined gender identity must be protected by the state.
The Court therefore directed that, inter alia, the government treat transgendered persons as a “third gender” in order to safeguard their rights and extend certain reservations for admission into education institutions and public appointments to third gender persons. The Court also ordered the government to specifically address the social and health problems faced by members of the third gender, including by providing targeted medical care, welfare schemes, separate public toilets and other facilities.
All in all it was a sweeping judgment which has reverberated through Indian society and may necessitate changes to the Indian criminal, marital, and civil codes. Taken hand in hand with the 2013 Naz Foundation judgment, however, the NALSA judgment raises at least as many questions as it answers. Primarily the tension is this: if members of the third gender (as well as homosexuals) can still be prosecuted for engaging in “carnal intercourse against the order of nature” (interpreted by the Naz Foundation court to include anal sex), and if such criminalization encourages the stigmatization of non-heterosexuals, how can the State hope to carry out its mandate to protect the constitutional rights of the members of the third gender?
For more information on the NALSA case, click here. For more information on the Naz Foundation case, click here.