(CIVIL) NO. = 604 OF 2013)


In the year 2012, the National Legal Service Authority was formed under Legal Service Authority Act,

1997 as to provide the recognition to the exclusion and disempowerment members of the society by filing

a Writ Petition Number 400 of 2012 in the Supreme Court of India. The petitioner side was also

composed of the non-government organization who was representing the transgender society and a person

who recognized himself as a Hijra. Also, Writ Petition Number 604 of 2013 was filed by Women Welfare

Society, Poojaya Mata Nasib Kaur Ji asking same consolation for the members of transgender society.

The petition filed in the Supreme Court of India was to find the legal gender identity of transgender

people that one is given during the time of birth. The petition also states that the non-identification of

their gender recognition infringes Article 14 and 21 of the Constitution of India. They also state that they

are being excluded from the equal protection of laws and social welfare programmes. The transgender

community states that the pre-existing laws were relating to the males and females only thus ignoring the

people belonging to the transgender community.


The division bench, composed of two judges, Justice K.S. Radhakrishnan followed by Justice A.K. Sikri,

who gave the judgement in the present case. The Supreme Court of India stated that the members of the

transgender community are taken as most disadvantaged groups among all other groups and they are

being excluded from the public gatherings including workplaces, education sector, hospitals which further

creates the feeling of distress among them. Transgender community face social discrimination since the

18th century. And to avoid the above situation of transgender people and to give them equal protection of

their legal rights, the centre and the state government need to take some steps. So as per the judgement,

the person coming outside the category of male and female should be considered in the category of the

third gender.

Giving equal opportunities to the transgender people in all aspects as compared to the other citizens of

the country protects the Article 15 (non-discrimination) and Article 16 (equal opportunities in public

employment) of the Indian Constitution. The court also mentions that since Article 19 of the Constitution

guarantees the right to expression therefore, every citizen including transgender has the right to choose

their words, the way of dressing, or their behaviour. Personal integrity is something safeguarded under

Article 19 of the Indian Constitution. As choosing the gender is somewhat personal characteristic so it

should be taken under Article 19 of the Constitution and stopping an individual from adopting a gender

would infringe their principle right under Article 19.

On the above basis, they concluded that transgender personality shown through their behaviour cannot

restrict their expressions. The court held that members of the transgender community should be given

their identity. The government should treat all the citizens of the country equal without any

discrimination. The bench also added that members of the transgender community are also entitled to the

principle rights under Article 14, 15, 16, 19, and 21 of the Indian Constitution. They are to be treated as

‘third genders’ for the reason of safeguarding their rights under Part III of the Constitution and the laws

enforced by the Parliament. The court also stated that the personal issues faced by transgender related to

education, healthcare facilities should be taken into consideration by both state and centre government.

Also, the government should take some steps for the development of transgender like reservations in the

employment sector and educational areas. The bench also suggested the core international human rights

treaties and Yogyakarta Principles give identity to the rights of transgender.

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