http://lex-warrier.

in/2010/08/human-rights-
under-indian-constitution/

Fundamental Rights and Transgender Community- Part III

http://www.desikanoon.co.in/2014/04/supreme-court-on-transgender-
community.html

http://www.desikanoon.co.in/2014/04/supreme-court-on-transgender-
community_17.html

http://indiatoday.intoday.in/story/supreme-court-right-to-privacy-judgment-bats-for-
homosexuality/1/1032940.html

LGBT Pride Parade

In the last two parts (Part I and Part II), we understood the manner in which court appreciated the difference between
gender identity and sexual orientation. We also understood the meaning of the term ‘transgender’, their history during
the British Raj, HIV Prevalence, Constitutional Provisions and Important Case Laws relating to this topic. Let us now
understand the view of the court with respect to the Fundamental Rights of the Transgender Community.

Article 14 and Transgenders

The court said that the petitioners gave sufficient facts and records to show that, despite constitutional guarantee of
equality, Hijras/transgender persons have been facing extreme discrimination in all spheres of the society.

I found some of these reasons to be particularly compelling.

1. Non-recognition of identity of Hijras /transgender persons results in them facing extreme discrimination in all
spheres of society, especially in the field of employment, education, healthcare etc.

2. Hijras/transgender persons face huge discrimination in access to public spaces like restaurants, cinemas,
shops, malls etc.

3. Further, access to public toilets is also a serious problem they face quite often. Since, there are no separate toilet
facilities for Hijras/transgender persons, they have to use male toilets where they are prone to sexual assault and
harassment.

The Court finally said that discrimination on the ground of sexual orientation or gender identity impairs equality before
law and equal protection of law and violates Article 14 of the Constitution of India.

Article 15 & 16 and Transgenders

We know that Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex
discrimination is a historical fact and needs to be addressed. The court said that both gender and biological
attributes constitute distinct components of sex. Biological characteristics, of course, include genitals,
chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological
or emotional sense of sexual identity and character.The discrimination on the ground of ‘sex’ under Articles 15
and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in
Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who
consider themselves to be neither male or female.
The court also said that TGs have been systematically denied the rights under Article 15(2) that is not to be
subjected to any disability, liability, restriction or condition in regard to access to public places. The court
also believed that TGs are extremely poor and shunned from the society and hence are legally entitled and eligible to
get the benefits of SEBC (Socially and Educationally Backward Classes).

The court drew the analogy that since TGs are a socially and educationally backward class, they must be given
reservation in the matters of appointment under article 16 (4). Article 16 (4) stipulates that the State can make any
provisions for the reservation of appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State.

Article 19 and Transgenders

The court said that Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech
and expression, which includes one’s right to expression of his self-identified gender. The court quoted following
excerpts from some foreign judgments to explain its thoughts on this issue.

1. “the notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures
whatsoever, is fundamentally inconsistent with “values of privacy, self-identity, autonomy and personal integrity that
….. the Constitution was designed to protect.[1]”.

2. “by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her
identification with the gender. In addition, plaintiff’s ability to express herself and her gender identity through dress is
important for her health and well-being. Therefore, plaintiff’s expression is not merely a personal preference but a
necessary symbol of her identity.[2]”.

The Court further said that Self-identified gender can be expressed through dress, words, action or behaviour or any
other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the
restrictions contained in Article 19(2) of the Constitution. A transgender’s personality could be expressed by the
transgender’s behaviour and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression
of such personality, which reflects that inherent personality.

The court finally held that the freedom of expression guaranteed under Article 19(1) (a) includes the freedom to
express one’s chosen gender identity through varied ways and means by way of expression, speech,
mannerism, clothing etc.

Article 21 and Transgenders

In Francis Coralie Mullin v. Administrator, Union Territory of Delhi [3], the Supreme Court held that the right to
dignity forms an essential part of our constitutional culture which seeks to ensure the full development and
evolution of persons and includes “expressing oneself in diverse forms, freely moving about and mixing and
comingling with fellow human beings”.

In the present case, the Court said that “recognition of one’s gender identity lies at the heart of the fundamental right
to dignity. Gender, as already indicated above, constitutes the core of one’s sense of being as well as an integral part
of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed
under our Constitution.”

Legal Recognition of the Third Gender

After providing the above-mentioned reasoning, the court said that Articles 14, 15, 16, 19 and 21 indicate that our
Constitution does not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognizes the
paradigm of binary genders of male and female, based on one’s biological sex.

Binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related
to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Non-
recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of
law and they face wide-spread discrimination.

We also see that article 14, 15, 16, 19 and 21 use either the term “person” or “citizen” or “sex”. All these
expressions, which are “gender neutral” evidently refer to human-beings.

Finally, the court held that Gender identity as already indicated forms the core of one’s personal self, based on self-
identification, not on surgical or medical procedure.

To be Continued....

[1] The Supreme Court of the State of Illinois in the City of Chicago v. Wilson et al., 75 III.2d 525(1978).

[2] The Superior Court of Massachusetts in Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.).

[3] (1981) 1 SCC 608 (paras 7 and 8).

“Women empowerment” :

https://blog.ipleaders.in/supreme-courts-on-womens-rights/

http://www.livelaw.in/womens-day-special-15-judgments-that-made-india-a-better-place-for-women/

http://www.legalservicesindia.com/article/article/judicial-activism-in-the-area-of-women-
empowerment-1154-1.html

http://www.indiacelebrating.com/social-issues/women-empowerment/

https://indialawyers.wordpress.com/category/women-empowerment/

Laws That Every Indian Women must Know

| Women Protection at Workplace | Part 1|
15,375 views

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Lawyer Ujjawal Anand Sharma

Published on Jul 31, 2016

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In this video we gonna discuss , laws that every Indian Women know. And
Protection of women at work Place. Vishaka and others v State of
Rajasthan Sexual harassment includes such unwelcome sexually
determined behaviour (whether directly or by implication) as: a) physical
contact and advances; b) a demand or request for sexual favours; c)
sexually coloured remarks; d) showing pornography; e) any other
unwelcome physical verbal or non-verbal conduct of sexual nature. Where
any of these acts is committed in circumstances where under the victim of
such conduct has a reasonable apprehension that in relation to the victim’s
employment or work whether she is drawing salary, or honorarium or
voluntary, whether in government, public or private enterprise such conduct
can be humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to
believe that her objection would disadvantage her in connection with her
employment or work including recruiting or promotion or when it creates a
hostile work environment. Thus, sexual harassment need NOT involve
physical contact. Any act that creates a hostile work environment - be it by
virtue of cracking lewd jokes, verbal abuse, circulating lewd rumours etc.
counts as sexual harassment. The creation of a hostile work environment
through unwelcome physical verbal or non-verbal conduct of sexual nature
may consist not of a single act but of pattern of behaviour comprising many
such acts. Thus, it is important that the victim report such behaviour as
soon as possible and not wait for it to become worse. In some cases, the
psychological stigma of reporting the conduct of a co-worker might require
a great deal of courage on the part of the victim and they may report such
acts after a long period of time. The guidelines suggest that the complaint
mechanism should ensure time bound treatment of complaints, but they do
not suggest that a report can only be made within a short period of time
since the incident occurred. Often, the police refuse to lodge FIRs for
sexual harassment cases, especially where the harassment occurred some
time ago.
10 Legal Rights Every Indian Woman
Should Know - Women Justice Fight Back!
6,459 views

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Infocaps

Published on May 20, 2016

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Subscribe to this channel and stay tuned: http://bit.ly/Infocaps Every Indian woman
should know about the legal rights they have for their own protection. Women in India
face a lot of social inequalities ranging from gender specific abortions, mistreatment by
their spouses, to eve teasing. Most women aren’t aware of women rights in India and
other times their legal rights are not protected as they should be. Time doesn't matter
"Rape is a horrifying incident for any woman, and sometimes the victim doesnot want to
report it immediately. She may also fear for her safety and the reputation and dignity of
her family. For this reason, the Supreme Court has ruled that the police must register an
FIR even if there has been a gap between the report and the occurrence of the incident"
Email to the rescue she can send a written complaint through an email or registered
post addressed to a senior police officer of the level of Deputy Commissioner or
Commissioner of Police. The police can then come over to the residence of the victim to
take her statement. Cops can't say no In Sexual harassment cases, she has the right to
lodge an FIR at any police station in the city under the Zero FIR ruling. (mention zero
FIR) No arrests after sunset "Even if there is a woman constable accompanying the
officers, the police can't arrest a woman at night. In case the woman has committed a
serious crime, the police has to get it in writing from the magistrate explaining why the
arrest is necessary during the night," You can't be called to the police station Under
Section 160 of the Criminal Procedure Code. "The police can interrogate a woman at
her residence in the presence of a woman constable and family members or friends,"
So, the next time you're called to the police station for queries or interrogation, quote
this guideline of the Supreme Court to exercise your right and remind the cops about it.
Protect your identity Under Section 228-A of the Indian Penal Code makes the
disclosure of a victim's identity a punishable offense. This is done to prevent social
victimisation or ostracism of the victim of a sexual offense. she can only described as
'victim' Employers must protect It is the duty of every employer to create a Sexual
Harassment Complaints Committee within the organisation. According to a guideline
issued by the Supreme Court, it is mandatory for all firms, public and private, to set up
these committees to resolve matters of sexual harassment. It is also necessary that the
committee be headed by a woman and comprise 50% women as members. Also, one of
the members should be from a women's welfare group. The doctor can't decide A case
of rape can't be dismissed even if the doctor says rape had not taken place. A victim of
rape needs to be medically examined as per Section 164 A of the Criminal Procedure
Code, and only the report can act as proof. "A woman has the right to have a copy of
the medical report from the doctor. Rape is crime and not a medical condition. It is a
legal term and not a diagnosis to be made by the medical officer treating the victim. The
only statement that can be made by the medical officer is that there is evidence of
recent sexual activity. Whether the rape has occurred or not is a legal conclusion and
the doctor can't decide on this,

“”senior citizen rights”””

https://blog.ipleaders.in/rights-senior-
citizens/

http://www.dignityfoundation.com/Righ
ts-Of-Senior-Citizen.aspx
http://www.crpc.in/rights-duties.php