By Akshay Sharma
Citation - AIR 2014 SC 1863
This case concerns with the legal gender recognition of transgender people, and whether the lack of legal measures to cater for the needs of persons not identifying clearly as male or female contradicts the Constitution. Previously only recognised the binary genders of male and female, and did not have any law with regard to the rights of transgender people, which advocates in India have also defined as “third gender”. The gender of a person has been assigned at birth and would determine his or her rights in relation to marriage, adoption, inheritance, succession, taxation and welfare. Due to the absence of legislation protecting transgender or “third gender” people, the community faced discrimination in different phases of their life.
Whether persons who fall outside the male/female gender binary can be legally recognized as “third gender” persons and Whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution of India.
This was a landmark decision where the apex court legally recognized “third gender”/transgender persons for the first time and discussed “gender identity” at length. Also the Hon’ble Court recognized that third gender persons were entitled to fundamental rights under the Constitution and under International law and directed state governments to develop mechanisms to realize the rights of “third gender” or transgender persons.
The Hon’ble court further held that public awareness programs were required to tackle stigma against the transgender community. It also directed the Central and State Governments to take several steps for the advancement of the transgender community, including:
1. Making provisions for legal recognition of “third gender” in all documents
2. Recognizing third gender persons as a “socially and educationally backward class of citizens”,
entitled to reservations in educational institutions and public employment.
3. Taking steps to frame social welfare schemes for the community