- On April 15, 2014, the Supreme Court passed the judgement in NALSA v. Union of India that that the right to gender identity is inherent in one’s right to life, autonomy and dignity. SC held that transgender persons have the right to identify their gender as male, female or transgender irrespective of medical sex reassignment and the right to expression of their chosen gender identity.
- NALSA for the first time gave public recognition to the violence and discrimination that the trans community faces in India and declared unequivocally their entitlement to constitutional fundamental rights.
It was in the background of Suresh Koushal v. Union of India where the Supreme Court held that Section 377 could not be read down and it was for Parliament to decide on decriminalisation of homosexuality.
Challenges faced by Transgender :-
Transgender persons have been
- Facing discrimination
- Deprived of access to education and employment
- Faced sexual and physical violence
- Even getting killed due to their gender choices.
Biggest Challenge to Transgender Community :-
One of the biggest challenges that the transgender community faces is for recognition of their chosen names and gender marker in their birth certificates, educational certificates, PAN cards, passports and identity documents because no norms or guidelines have been laid down for such change of legal identity.
- While NALSA VS Union of India mandates the right to identify one’s gender even without medical intervention.
Government authorities do not allow change of name and gender identity unless medical certificates show that the person has undergone sex reassignment surgery, thus completely nullifying what the Supreme Court aimed to protect.
What was the Supreme Court Order ?
The apex court directed the Central and State governments
- To grant legal recognition of gender identity of male, female or transgender.
- To provide reservations to transgender persons in admission in educational institutions and in public appointments.
- To provide medical care to transgender persons in hospitals and provide them separate public toilets and other facilities.
- To frame social welfare schemes for their upliftment
- To create public awareness.
Even Justice Chandrachud reiterated the stand of the Supreme Court in the privacy judgement, reaffirming that the Right to sexual orientation and gender identity are some of our most intimate life decisions and need to be protected.
Governance Issues :-
- The proposed Transgender Persons Bill, 2016 failed to even define transgender persons adequately and was rejected by the trans community.
- Government forms have included the ‘TG’ option in the gender category, but till date there is no law in place providing for a change in one’s name and gender identity.
Kerala & Karnataka Instance :-
While Kerala and Karnataka have introduced State Policies for Transgender Persons but
- There are no schemes for reservation of transgender/intersex persons in educational institutions and public employment.
- They are not included in any of the reserved categories, making education and public employment out of bounds for them due to their transgender and gender non-conforming status.
- Even within schools, universities and public institutions there are no gender neutral public toilets.
What can be done to push reforms ?
- Need of a Gender Identity Law, that would provide for a person to change name and gender.
- We can also take inspiration from Argentina, which introduced a law based on self-determination and provides full recognition of a person’s self-defined gender identity.
- Law needs to hold clearly that transgender persons will not need to prove they have had surgical procedures, hormonal therapy or other psychological treatment and should clearly separate medical interventions from legal recognition of their chosen name and gender.