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Legal Recognition of Gender Identity & Sexual Orientation

Legal Recognition of Gender Identity & Sexual Orientation


About the Author:
Bonani Goswami
LL.M (Constitutional Law), Gauhati University, Guwahati, Assam.

Progressive social changes in society represent the development of any nation. These changes are measured through various mediums like legislative frameworks, judicial attitude, attitudinal changes in the implementing machinery and mindsets of people. Indian Constitution, in its inception, included the fundamental rights under Part III. These fundamental rights form the basic structure and lifeline for the people. For any violation of the fundamental rights, there are remedial measures under Article 32, i.e. the Right to Constitutional Remedies by the Hon’ble Supreme Court of India. In Dr B.R. Ambedkar’s view, Article 32 is the very heart and soul of the Constitution.

The concept of Gender Identity and Sexual Orientation took years to get recognized as significant subjects of the society in India. Judiciary has significantly provided legal recognition of gender identity and sexual orientation through a series of explicit discussions in the last two decades. It acknowledged the unnoticed socio-economic and civil-political violation of rights faced by the marginalized community based on gender & sexual orientation. In 2014, the Hon’ble Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438[i], has not only discussed the violation of rights faced by transgender but also has established a clear demarcation between Gender Identity & Sexual Orientation. A person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most fundamental aspects of self-determination, freedom, and dignity.

Gender identity is a fundamental aspect of one’s life, which refers to a person’s intrinsic sense of being a male, female, or a transgender person. A person’s sex is usually assigned at birth. However, a relatively small group of persons may be born with bodies which incorporate certain aspects of both male and female physiology. Gender identity refers to a person’s internal and individual experience of gender. Gender may or may not correspond with the sex assigned at birth. These include a personal sense of the body that may be freely chosen, or a modified bodily appearance or function via medical, surgical or other means or expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category.

Sexual orientation is an inclusive and expanding concept which refers to an individual’s enduring physical, romantic and emotional attraction to another person. Sexual orientation includes gender-variant people with heavy sexual orientation, that may or may not change during or after gender transmission. We can broadly categorize these sexual orientations as LGBTQIA (Lesbian, Gay, Bisexuals, Transgenders, Queer, Intersexed & Asexuals).

Indian Judiciary has created miracles at times. In order to have a better legal understanding of the subject matter, let us move through the journey of Indian Judiciary. Chronologically, Naaz Foundation case of 2009 comes first. Naaz Foundation v. Govt. of NCT Delhi, (2009) 111 DRJ 1, Naaz Foundation is an NGO working for issues of HIV Aids and health rights. The issue, in this case, was the health rights of transgender persons, especially Men having sex with Men (MSM). Non-disclosure and non-recognition of their gender identity and sexual orientation made them more prone to sexual harassment, sexual abuse, police torture and deprivation from health and medical rights. Removal of Section 377 IPC came into question here. Hon’ble Delhi High Court viewed that Section 377 was violative of Article 14, 15 & 21 of the Constitution. In view of Article 21, the Hon’ble Court said that without dignity and privacy, nobody could enjoy the Right to life. Hon’ble Court added that Section 377 IPC is violative of Article 14 & 15 because it promotes unreasonable discrimination and discriminates homosexuality as a way of life. Hon’ble Court interpreted the word ‘sex’ under Article 15 as ‘sexual orientation’. Hence, Section 377 IPC was declared unconstitutional, and the scope of the amendment was left further for the legislature.

The different judicial attitude was seen in 2013 by the Hon’ble Supreme Court’s decision in the case of Suresh Kumar Koushal v. Naaz Foundation, (2014) 1 SCC 1[ii]. The Hon’ble Court laid that homosexuality is a criminal offence and only Parliament has the power to decriminalize Section 377 IPC and Courts have no power of interference. Moreover, Right to privacy cannot be extended in such a manner in order to cover homosexuality. This decision closed all doors of hope for the LGBTQIA community.

The year 2014 will be counted as a historic year for the milestone judicial decision passed by the Hon’ble Supreme Court in case of NALSA v. UOI, (2014) 5 SCC 438i. Hon’ble Court made one of the finest research and interpretation in this case. This case is all about legal recognition of gender identity. Through various case studies, the vulnerability faced by Trans Genders has been revealed. Instances show that most Trans Genders had to flee from homes due to different societal stigmas. Since there is no legal recognition, they fail to express their identity. Transgender people suffer discrimination on education, employment, health rights and also Right to participate in the election process. In this case, the historical significance of Transgenders in Indian society was discussed. After the advent of British and adoption of Criminal Tribes Act, 1871 the conditions of the community deteriorated and they had to suffer inhuman treatment by the State. Still, after the repeal of Criminal Tribes Act, 1871 the conditions of third genders were not up to the mark. The Court here states that the term ‘Trans Gender’ is an umbrella term for several identities like Hijras, Eunuch, Kothis, Aravanis, Jogappas and Shiv Shaktis. The Hon’ble Supreme Court here discussed the multi-faceted rights of Trans Gender Community. With regards to Article 14, the Hon’ble Court said that Article 14 lays the equality principle for men, women and Trans Genders. As Article 15 & 16 deals with Prohibition of gender-based discrimination in education and employment, it applies to Trans Gender Community. Hon’ble Supreme Court very well interpreted that privacy, gender identity and integrity are part of Right to expression and hence shall be protected under Article 19 (1) (a) of the Constitution. Furthermore, with regards to Article 21, the Court said that Right to dignity includes right to gender identity. The Court further asks the legislature to formulate laws which focuses on present-day need.

In Justice K.S. Puttuswamy v. UOI, 2017, AIR 2017 SC 4161[iii], a nine-judge bench of Hon’ble Supreme Court said that Court has a responsibility to rectify the mistake of Court in Suresh Koushal case. The Court further opined that Sexual Orientation is an essential attribute of privacy and is protected by Article 14, 15 and 21 of the Indian Constitution.

In 2018 in the case of Navtej Singh Johar v. UOI, AIR 2018 SC 4321[iv], The Hon’ble Supreme Court through its Constitutional bench headed by the then Chief Justice of India Deepak Misra, Justice Chandrachud, Justice Nariman, Justice Indu Malhotra and Justice Khanwilkar provided a landmark judgement in favour of LGBTQIA recognizing sexual orientation as an essential attribute of life. Hon’ble Supreme Court decriminalized consensual sex among consenting adults of the LGBTQIA community. With regards to Article 14, the Court said that sexual acts between consenting adults is not an intelligible differentia having a rational nexus, on the grounds of homosexuality. Hon’ble Supreme Court here supported the Delhi High Court’s interpretation for term ‘sex’ under Article 15 which connotes sexual orientation. Supreme Court further said that privacy and autonomy form part of Article 19. Article 9 provides Right to Freedom of Expression to every individual and expressing self-identity forms an essential part of it. Concerning Article 21, Hon’ble Supreme Court stated that Right to Life and Personal Liberty includes right to dignity, privacy and autonomy.

Based on the Supreme Court’s urge upon the legislature in the remarkable judgement of NALSA v. UOI, (2014) 5 SCC 438i, the Indian legislature finally enacted the “The Transgender Persons Protection of Rights Act, 2019”. The Act is a step towards legal recognition of gender identity. This Act aims to establish the rights and welfare of transgender persons. This Act provides for the protection of educational, employment and health rights of the community. It lays down extensive penal provision for the violators.

Towards the end of this decade, we can say that our country has taken significant steps in favour of humanity. In a country like India, with such a large population and varied demographics, several factors would be responsible for proper implementation of any legal framework and judicial decisions. A progressive societal attitude is an essential factor in this regard, and this would be possible by extensive awareness and sensitization programmes. It becomes reflective of society’s efforts to undertake the responsibility of making this a better place to live in for every human being irrespective of their gender identity and sexual orientation.

Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.