## Facts

- A statutory legal-services authority filed a constitutional writ petition seeking recognition and enforcement of transgender persons’ fundamental rights, including recognition beyond the male/female binary.
- A connected petition and intervenors representing Hijra/Kinnar communities described widespread exclusion and abuse in education, employment, healthcare, family life, and access to public services.
- Government administration and many legal regimes largely operated on a male/female binary for identity documents and civil-status matters, leaving transgender persons without consistent legal recognition and access to benefits.
- Petitioners sought recognition of self-identified gender (including “third gender”) and challenged discrimination as violating equality, non-discrimination, expression, and life/liberty guarantees.
- The court heard the petitions in its original constitutional jurisdiction and issued a final judgment with nationwide directions.

## Issues

1. Whether transgender persons are entitled to legal recognition of their self-identified gender, including recognition as a “third gender.”
2. Whether denial of recognition and resulting discrimination violate constitutional guarantees of equality, non-discrimination, equal opportunity, expression, and life and personal liberty.
3. Whether the state must adopt affirmative measures, including reservations and welfare schemes, for transgender persons as a socially and educationally backward class.
4. Whether gender identity determination should follow biological criteria or psychological self-identification, and whether medical/surgical procedures may be required for recognition.

## Decision

- The court ruled for the petitioners and recognized transgender persons as a “third gender” for constitutional and legal purposes.
- It held that transgender persons are covered by constitutional terms such as “person” and “citizen” and are entitled to equal legal protection in all spheres of state activity.
- It affirmed a right to self-identify gender as male, female, or third gender and rejected conditioning recognition on sex-reassignment surgery or other medical procedures.
- It interpreted constitutional prohibitions on discrimination to include discrimination based on gender identity and held that denial of recognition and unequal treatment violate fundamental rights.
- It directed central and state governments to treat transgender persons as a socially and educationally backward class for purposes of reservations in education and public employment.
- It ordered governments to implement measures for legal recognition in identity documents, targeted welfare schemes, access to healthcare and education, and sensitization and anti-stigma efforts, and to review laws and practices that perpetuate discrimination.

## Legal Principles

- Constitutional equality and equal protection extend to transgender persons; the state bears a positive obligation to secure effective equality through legal and administrative action.
- Non-discrimination “on the ground of sex” includes discrimination based on gender identity, not merely biological male/female classifications.
- Freedom of speech and expression protects the right to express one’s self-identified gender through name, appearance, and presentation, subject only to constitutionally permitted restrictions.
- The right to life and personal liberty includes dignity, privacy, autonomy, and self-determination of gender identity.
- Legal recognition of gender identity must be based on self-identification (a psychological/self-identified standard), and compulsory medicalization as a precondition for recognition is impermissible.
- Where legislation is absent or inadequate, constitutional interpretation may consider international human rights norms to protect recognized fundamental rights.

## Conclusion

The court held that transgender persons have a constitutional right to legal recognition of self-identified gender, including as a third gender, and that discrimination based on gender identity violates equality, non-discrimination, expression, and dignity-based liberty guarantees; it also ordered governments to implement recognition, reservations, and welfare measures to remedy entrenched exclusion.


Nat’l Legal Servs. Auth. v. Union of India, Writ Petition (Civil) No. 400 of 2012 (India Apr. 15, 2014)