Author: Asmi Basu, JIS University
To the Point
Recognition of Third Gender under the constitutional framework. Psychological gender identity supersedes biological sex for legal recognition. Fundamental rights apply fully right to equality, dignity, free expression, and personal liberty. Mandates to the State for formal recognition, reservation opportunities, healthcare, sanitation, awareness initiatives.
Abstract
In National Legal Services Authority v. Union of India [(2014) AIR 2014 SC 1863], a two-judge bench Justices K. S. Radhakrishnan and A. K. Sikri recognized transgender individuals as a “third gender,” holding that this recognition is intrinsic to fundamental constitutional rights. By prioritizing psychological gender identity over biological sex, the Court affirmed rights under Articles 14, 15, 16, 19(1)(a), and 21, and directed the State to implement legal recognition, affirmative measures, and welfare support for transgender persons.
Use of Legal Jargon
Writ Petition (Art 32): Judicial remedy to enforce protected rights.
Psychological Sex: Innate, experienced gender identity, central to legal personhood.
Biological Sex: Physical attributes assigned at birth.
Third Gender: A distinct constitutional category besides male or female.
Ultra Vires: Any act beyond legal authority—applied here to denial of gender recognition.
Affirmative Action [Arts. 15(4), 16(4)]: Measures to uplift disadvantaged groups, now inclusive of transgender persons.
Right to Dignity (Art. 21): Protects autonomy, especially in matters like gender identity and body integrity.
The Proof (Judicial Reasoning)
Facts:
Two writ petitions were filed: No. 400 of 2012 by NALSA and No. 604 of 2013 by Poojya Mata Nasib Kaur Ji Women Welfare Society and which was supported by activist Laxmi Narayan Tripathy. Petitioners argued that classification limited to male/female infringes Articles 14, 15, 16, 19(1)(a), and 21. The State informed the Court of an Expert Committee under the Ministry for issues relating to transgender persons.
Issues:
Should transgender individuals be legally recognized as “third gender”?
Does denying legal recognition based on psyche violate constitutional rights?
Ratio decidendi:
The Court distinguished between biological and psychological sex, affirming that gender identity must be determined by individual psychology. International precedents- Corbett v. Corbett (UK), Otahuhu (NZ), Christine Goodwin (ECHR) and statutes from Australia, Canada, and Argentina, plus the Yogyakarta Principles, were cited to support gender self-identification.
Constitutional interpretation:
Art. 14: “Any person” must include transgender persons—exclusion violates equal protection.
Art. 15: Discrimination on “sex” includes gender identity, enabling affirmative action.
Art. 16: Right to public employment mandates their inclusion.
Art. 19(1)(a): Protects gender identity as part of speech/expression.
Art. 21: Ensures dignity, autonomy over gender identity, and non-coercion in medical decisions.
The Court mandated that Central and State Governments:
Accept male, female, or third gender on legal documents. Treat transgender persons as socially and educationally backward for reservation schemes. Provide healthcare access, HIV surveillance, separate sanitation facilities. Launch welfare measures and public awareness to end stigma.
Case Laws
Corbett v. Corbett (UK): Initial reliance on biological markers was rejected; self-identity paramount.
Attorney-General v. Otahuhu & Christine Goodwin (ECHR): Recognized post-transition legal gender change.
Puttaswamy v. Union of India (2017): Affirmed Right to Privacy by extending gender identity under Article 21.
Navtej Singh Johar (2018): Decriminalized consensual same-sex relations, reinforcing LGBTQ+ constitutional protections.
Conclusion
NALSA v. Union of India is a precedent-setting ruling that recognized transgender individuals as a constitutional “third gender,” emphasizing that psychological gender identity prevails over biological classification. By interpreting Articles 14, 15, 16, 19(1)(a), and 21 expansively, the Court affirmed self-identification, prohibited medical gatekeeping, and imposed affirmative state obligations to secure dignity and inclusion. This judgment spurred legislative reform most notably the Transgender Persons (Protection of Rights) Act, 2019 and has become a pillar in the broader struggle for LGBTQ+ rights and constitutional morality in India.
FAQs
Q1: What does “third gender” refer to legally?
A: A legally recognized category beyond male or female, acknowledging those whose gender identity does not align with binary classifications.
Q2: Is surgery required to change legal gender?
A: No. The Court ruled that psychological test should prevail; invasive medical procedures cannot be mandated.
Q3: Which constitutional rights were found applicable?
A: Articles 14, 15, 16, 19(1)(a), and 21 ensuring equality, non-discrimination, expression, dignity, and liberty.
Q4: What directed the State to do following NALSA?
A: Legal gender recognition, reservation in education/employment, healthcare access, sanitation, HIV support, welfare schemes, and public sensitization
Q5: How did subsequent judgments carry forward the directive?
A: Puttaswamy affirmed privacy rights integral to gender identity; Navtej Johar furthered LGBTQ+ civil liberties—both reinforcing NALSA’s foundation.
Q6: How has legislation responded to the ruling?
A: The Transgender Persons (Protection of Rights) Act, 2019, codified legal recognition, welfare provisions, anti-discrimination protections, and procedural guidance on gender identity documentation.
