Supreme Court Verdict about Transgender and Criticism of Nalsa Judgement

Back to: Gender, School and Society- Unit 2

In general, transgender is an umbrella term for people whose gender expression, identity, or behavior does not conform to their biological sex. It may also include people who do not identify with their sex assigned at birth. This includes Hijras/Eunuchs who, in this writ petition, describe themselves as the “third gender”. They identify as neither male nor female. Hijras are not psychologically women and they are also not men by anatomical appearance despite being like women but with no female reproductive organ and no menstruation.

As per studies, India has an estimated two million transgender people. A few common terms used to describe transgender people in India are transsexuals, cross-dressers, eunuchs and transvestites is a hijra. Campaigners state that they live on the fringes of society, often in poverty because they are ostracised due to their gender identity. Singing, dancing, begging, and prostitution are some of the most common professions they pursue to make money.

A District Screening Committee was established in Section 6 of the 2018 Bill for the recognition of transgender people. The Screening Committee consisted of a chief medical officer and a psychologist/psychiatrist, indicating that medical and psychological tests would be carried out for a change of gender identity. The Bill does not permit gender change without medical or psychological treatment.

The Supreme Court made its judgment in NALSA v. Union of India that transgender and intersex people hold a constitutional right to self-identify as male, female, or transgender without any medical intervention. In the words of the Supreme Court, “Each person’s self-defined gender identity and sexual orientation is integral to their self-determination, dignity, and freedom, and no one shall be forced to undergo medical procedures or hormonal therapy to obtain legal recognition.”

Since the colonial era, the abominable state of the third gender has been prevalent. When the legislature enacted the Criminal Tribes Act, 1871, to supervise the deeds of the hijras/TG community, it was deemed by the entire community of Hijras persons as innately ‘criminal’ and ‘addicted to the systematic commission of non-bailable offenses. The Act stressed the registration, control, and surveillance of certain criminal tribes and eunuchs and had penalized eunuchs, who were registered, and appeared to be dressed or ornamented like a woman, in a public street or place. Such people also could be arrested without a warrant and even be sentenced to imprisonment up to two years or a fine or both.

The National Legal Services Authority, constituted under the Legal Services Authority Act, 1997, was enacted to provide free legal services to the weaker and other marginalized sections of society, and this Act advocated the cause of the third gender.