Identifying Gender: Thoughts on Implementation of the NALSA judgment

May 17, 2014

The National Legal Services Authority  v Union of India  has the potential to play a transformative role in altering the discourse on the State, citizenship and the transgender community.By recognizing the third gender, and most importantly, an individual’s choice to decide one’s own gender, the Supreme Court has recognized in theory, what has been denied in practice: the equal rights of the transgender community as citizens of India. Their rights are now grounded in the Constitution in the form of Article 14, 15, 16, 19 and 21. The following blog post, aims to trace the evolution of this discourse beginning from Naz and Koushal and then will go on to examine the possible mechanisms by which this judgment could be implemented.


Nalsa, speaks of gender and its relation to conduct and hence expressing oneself in relation to Article 19(1)(a). While including ‘sex’ to also also entail ‘sexual orientation’ different from what one was biologically accorded with, the Court said that one’s ‘identity’ means nothing if one cannot express it. For the first time, the Court has recognised the freedom of minority communities to express their gender through varied means such as speech, mannerism and even clothing. The Nalsa judgment held one’s identity as being “integral to a person’s personality and is one of the most basic aspects of self-determination, dignity and freedom.” Hence, the Court established a link between gender, identity and conduct, and the freedom of expression that it envisions for individuals irrespective of their sexual orientation.


The Supreme Court, while declaring the rights of the transgender community, has remained silent on how this process of interaction between the State and the transgender community is to be materialised. With regard to the transitioning between the male/female binary, the institutional processes and mechanisms have not been charted out. Relying on the report of the Ministry of Social Justice and Empowerment, the Court ruled that its own recommendations are to be read in conjunction with that of the Ministry’s report and that is how this landmark judgment is to be implemented.


The judgment stated explicitly that India would follow a system where not only the third gender would be recognized but also, individuals would be allowed to choose within any of the three genders, that is, male, female or transgender. However, such a model poses its own set of problems, mostly at the implementation level. For instance, how will a community of individuals scattered across the male, female and transgender groups avail of benefits provided by the State to only one category of individuals, namely transgender. Further, the Supreme Court also directs that the transgender community should be regarded as a ‘socially and educationally backward class’ and would be entitled for reservation. However, this could be an administrative nightmare given that the transgender community will have intersecting caste lines.


Administrative difficulties aside, there is larger issue of identification. The UNDP report framed by Arvind Narrain and Venkatesan Chakrapani suggests three basic models of implementation. One is the certification model wherein, an individual wishing to alter his/her gender submits the necessary documents and a gender certification panel set up by the government, will designate the same. This system is in operation in United Kingdom and even closer home, in Tamil Nadu in the form of Aravanis Welfare Board. However, what procedures will be followed by this certifying authority is unspecified. In the absence of any proper guidelines, it remains to be seen what procedures are actually adopted. This is also the method that has been adopted by the Ministry of Social Justice and Empowerment in their report. What would be the criterion or test for qualifying a person as transgender? Secondly, the report does away with the simpler model of providing an affidavit of declaring one’s gender and adopts a more bureaucratic procedure. Instead, it adopts the model where a certificate that a person is transgender would be issued by a state level authority duly designated by the state on the recommendation of a district level screening committee headed by the District Magistrate/ Collector and comprising of District Social Welfare Officer, psychologist, psychiatrist, a social worker and two representatives of transgender community and such other person or official as the State Govt/UT Administration deems appropriate.


Such a mechanism raises several doubts since it might not be in full conformity with the self- identification model mandated by the Supreme Court. It is entirely possible that the State will interpret such procedures differently and no two states may follow the same procedure. Secondly, such a procedure may lead to gender policing and might end up complicating the entire process making it cumbersome, corrupt and arbitrary.


One hopes however, that the government while implementing the mechanisms for recognition of transgender rights will use the Supreme Court judgment to inform its processes rather than apply the procedure laid out by the Ministry in a mechanical manner. The certifying authority model is not inherently flawed, but a lot will depend on how it is carried forward and what processes are adopted for identification. The judgment only represents a starting point and a lot of how this discourse is shaped will depend upon the legal framework set up and executed by the State.

This a guest blog has written by two CLPR interns – Diksha Sanyal from National University of Juridical Sciences and Tanvi Pillai from School of Law, Christ University.