Gender Expression, Hate Speech
The Commissioner for Protection of Equality v. AA
Closed Expands Expression
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The Supreme Court of India allowed a petition on behalf of the country’s transgender community and held that the right to express one’s identity in a non-binary gender was an essential part of freedom of expression. It directed the government to give legal recognition to the third gender, such that individuals would be able to identify themselves as male, female or third gender. It also ordered the government to take necessary steps to remove the social stigma, promote transgender-specific health programs, and grant them equal legal protection. In reaching its decision the Court discussed in detail progressive jurisprudence of other countries, such as the United Kingdom, Australia, New Zealand, and the United States towards recognizing the basic rights of transsexual persons. It found it necessary for India to follow international human rights conventions and non-binding principles as the country lacks “suitable legislation protecting the rights of the members of the transgender community.” Therefore the Court proceeded to interpret the Constitution of India in light of human rights conventions and principles. It referred to Article 14 which states that “the State shall not deny to ‘any person’ equality before the law or the equal protection of the laws within the territory of India.” The Court held the article affords protection to ‘any person,’ “transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.”
In 2012, the National Legal Services Authority, an Indian statutory body constituted to give legal representation to marginalized sections of society, filed a writ petition with the Supreme Court of India. The petition was joined by a non-governmental organization representing the Kinnar transgender community, and an individual who identified himself as a Hijra.
The term Hijra is used to describe the transgender community in South Asia. It usually includes hermaphrodites, and castrated men as well as non-castrated men. The latter usually do not have functional reproductive organs of either sex. The transgender community in South Asia, however, is used to describe a wider range of gender non-conformity. It serves as an umbrella term that includes people who do not identify with the biological gender they were born with, as well as people who may identify as neither gender. This includes hermaphrodites, pre-operative and post-operative transsexuals, as well as transvestites.
The petition sought a legal declaration of their gender identity than one assigned at the time of birth and that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. The transgender community urged that their inability to express themselves in terms of a binary gender denies them the equal protection of law and social welfare schemes. They also prayed for legal protection as a backward community, as well as the right to be able to express their self-identified gender in government forms.
The Additional Solicitor General, representing the government, recognized that the matter represented a serious social issue. He informed the Court that an Expert Committee had already been established by the government to address various problems facing the transgender community.
Justice Radhakrishnan delivered the majority opinion of the Supreme Court of India.
After discussing a historical background of transgenders in India, the Supreme Court affirmably recognized that gender identity and sexual orientation include trans genders and that “[e]ach person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures […] as a requirement for legal recognition of their gender identity.” [para. 20] It then referred to relevant international human rights standards, particularly Yogyakarta Principles, which provides: “Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.” [para. 22]
In addition, the Court discussed in detail progressive jurisprudence of other countries, such as United Kingdom, Australia, New Zealand, and the United States towards recognizing the basic rights of transsexual persons. It found it necessary for India to follow international human rights conventions and non-binding principles as the country lacks “suitable legislation protecting the rights of the members of the transgender community.”
The Court then proceeded in interpreting the Constitution of India in light of human rights conventions and principles. Under Article 14, “the State shall not deny to ‘any person’ equality before the law or the equal protection of the laws within the territory of India.” The Court held the article affords protection to ‘any person,’ “transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.” [para. 54] It also held that Articles 15 and 16’s prohibition of discrimination against any citizen, inter alia, on the ground of sex equally apply to transsexual persons. According to the Court, the use of word ‘sex’ in the articles “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.” [para. 59]
As to the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution, the Supreme Court ruled that it “includes one’s right to expression of his self-identified gender,” and notwithstanding legitimate exceptions pursuant to Article 19(2) of the Constitution, “[n]o restriction can be placed on one’s personal appearance or choice of dressing.” [para. 62] It concluded that a transgender’s personality “could be expressed by the transgender’s behavior and presentation [and the government] cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.” [para. 66]
Lastly, the Court referred to Article 21 of the Constitution, which says “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law.” It interpreted that this provision broadly protects “those aspects of life, which go to make a person’s life meaningful,” including one’s right of self-determination of the gender to which a person belongs. Accordingly, the Court held that “Hijras/Eunuchs, therefore, have to be considered as third Gender, over and above binary genders under our Constitution and the laws.” [para. 74]
Based on the foregoing analysis, the Supreme Court declared, inter alia, transgenders “apart from binary gender, be treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.” [para. 129] It also directed the state governments ‘to grant legal recognition of their gender identity such as male, female or as third gender.” [para. 129]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Being a decision of the Supreme Court of India, it has persuasive value in common law jurisdictions. This is also because it has tackled an area of law that hasn’t been conclusively determined in most parts of the world.
An example of this is the Na decision of a Malayasian Court regarding the rights of Muslim men to cross-dress, in Muhamad Juzaili Bin Mohd Khamis, et al v. State Government of Negeria Sembilan, et al.
These are written submissions filed by the NGO, Lawyers’ Collective who represented one of the petitioners.
Let us know if you notice errors or if the case analysis needs revision.