The National Legal Services Authority (NALSA) v. Union of India is a landmark judgement of the Supreme Court of India and has been distinguished as a major step towards gender equality in India. Decided on April 15, 2014, this judgement of the Supreme Court of India declared transgender people the ‘third gender’.
It affirmed that the fundamental rights granted under the Constitution of India would be equally applicable to them. The judgement also gave them the right to self-identification of their gender as male, female, or third gender. The Supreme Court in the same National Legal Services Authority v. Union of India judgement also said, “because transgender people were treated as socially and economically backward classes,” as equal citizens of the country, they will be granted reservations in admissions to educational institutions and jobs.
After years of this judgement, there are still hiccups that show that not all departments in the country are adhering to this Supreme Court. As recently as last week, a transgender individual had to go to court to get their passport, as the passport department claimed that, as per their rules, they require a transgender person to produce a certificate of gender reassignment surgery for the issuance of a passport.
The individual, through advocates, filed the petition, claiming that the requirement for a sex-change certificate was “illegal and unconstitutional” as per the NALSA judgment. They also mentioned that this particular “rule” has in the past prevented several transgender people from getting their passports to reflect their self-identified gender.
Thankfully, a bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla said: “You should change your rule…. Who are you to say get the certificate of surgery? This is violative of Article 21 (of the Constitution) right? Come back in a week and please advise your client to have flexibility in this rule.”
While the passport issuing authority was taken to court, in another incident in Tripura a couple of months back, four transgender individuals were arrested by the local police. They were made to strip in a police station to “prove” their gender. The information came to light as one of them complained, and they were also made to write an undertaking that they would never cross-dress and, furthermore, if they were found in such attire in the city, the cops would arrest them.
The four individuals were charged with extortion and were taken to the West Agartala women’s police station. In that station, they were made to strip while in the presence of both male and female police officers. This incident was a gross violation of transgender rights as well as basic human rights.
In almost a decade since the National Legal Services Authority (NALSA) v. Union of India, a landmark judgement of the Supreme Court of India, there are gross mishaps of justice that happen daily that transgender individuals face.
In most legal cases, the courts have always aligned their decisions with the norms of NALSA v. UOI, but what happens outside the court of law can be quite horrific and traumatic.
While some of these might be from a place of lethargy and some other actions from apathy, the transgender community, which already doesn’t always have the legal and systemic resources, suffers time and again. It is unfair to expect the community to step into the court for the enforcement of their fundamental rights.