National Legal Services Authority V. Union of India - Football
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National Legal Services Authority V. Union of India

In 2012, the National Legal Services Authority, an Indian body set up to legally represent marginalized sections of society, filed a written petition with the Supreme Court of India. The petition was joined by a non-governmental organization representing the Kinnar transgender community and a person who identified himself as Hijra. From 6 to 9 November 2006, a group of experts in Yogyakarta, Indonesia, adopted the Yogyakarta Principles on the Application of International Human Rights Law on Sexual Orientation and Gender Identity. In summary, the Yogyakarta principles, as adopted, are as follows: the right to dignity, the right to privacy, the right to personal autonomy, etc., have been guaranteed and guaranteed by article 21 of the Constitution. Legal recognition of gender identity is part of the constitutional right to dignity and liberty. The people of the third community have every right to live their lives with dignity and nobly. Article 6 of the Universal Declaration of Human Rights of 1948 and article 16 of the International Covenant on Civil and Political Rights of 1966 declare that every born person has the right to live and to be protected by the law, and that no authority has the power to deny this right to a person. Much of this analysis focuses on people moving from one sex to another; What about the third gender as a distinct identity? Here, the Court takes a big step towards articulating legal rights for people who do not fall into the male/female binary, which is a significant change from most pre-existing comparative laws. After discussing the historical context of transgender people in India, the Supreme Court confirmed that gender identity and sexual orientation include transgender people and that “a person`s self-defined sexual orientation and gender identity are integral to their personality and constitute one of the most fundamental aspects of self-determination, dignity and freedom, And no one should be forced to undergo medical procedures.

[…] as a precondition for the legal recognition of their gender identity.” [para. 20] She then referred to relevant international human rights standards, in particular the Yogyakarta Principles, which state that “persons of all sexual orientations and gender identities have the right to the full enjoyment of all human rights”. [para. 22] This landmark decision was a new ray of hope for the transgender community, which has long suffered from silence in the face of widespread discrimination and social injustice. This landmark decision is the first to legally accept non-binary gender identities and defend the human rights of transgender people in India. And equal rights in our socio-religious and political activities. The decision sets a strong binding precedent to discourage social injustice against marginalized and disadvantaged segments of society. The petition demanded a legal declaration of her gender identity as attributed at the time of her birth and that the non-recognition of her gender identity violated Articles 14 and 21 of the Indian Constitution. The transgender community has insisted that their inability to express themselves in terms of binary gender deprives them of equal protection by law and social welfare. They also prayed for legal protection as a backward community, as well as the right to express their self-identified gender in forms of government.

This case was filed by the National Legal Services Authority of India (NALSA) to legally recognize people who do not fall under the male/female gender binary, including people who identify as “third gender”. NALSA v. Union of India & Ors concerns both national and international laws and conventions. The petitioners` main motive was to put an end to exploitation, abuse and harassment of the community. Facilitate their access to basic facilities such as medical, educational, legal, etc. In epics like the Ramayana and Mahabharata, transgender people like Hijaras and Kinnars have enjoyed the utmost respect and admiration. After colonial rule in India, their status in society deteriorated. Based on the foregoing analysis, the Supreme Court stated, among other things, that transgender people “other than the binary gender are treated as a `third gender` in order to protect their rights under Part III of our Constitution and the Acts of Parliament and the State Legislature.” [para. 129] It also called on state governments to “legally recognize their gender identity as male, female or third gender.” [para. 129] The court had to decide whether people who do not fall under the binary male/female gender binary can be legally recognized as “third sex.” It was debated whether disregard for non-binary gender identities constituted a violation of fundamental rights guaranteed by the Indian Constitution.

She referred to an “expert committee on transgender issues” under the Ministry of Social Justice and Empowerment to develop her judgment. As I mentioned earlier, it is not only Kushal`s legal illogic that is opposed to this decision, but also to his apathy. From Justice Radhakrishnan`s introductory lines, which speak of the moral failure of society`s reluctance to contain or adopt different gender identities and expressions, to Judge Siri`s recognition of the painful process of transition from one gender to another, it is a text imbued with empathy. The Court upheld the right of every person to identify his or her own sex. In addition, he said hijras and eunuchs can legally identify themselves as a “third sex.” In Kumbha Melas, there are Kinner Akharas who are well accepted, but society never accepts the rights of transgender people living among them. Moreover, it treats them inhumanely and oppresses them. In the face of the physical, mental and social torture that transgender people face every day, the Supreme Court in NALSA v. The UOI[1] declared them “third gender” and granted them the fundamental rights enshrined in the constitution. In addition, the Honorable Court declared sex reassignment surgery (SRS) illegal as a sex reassignment condition. The court also noted public health and hygiene, socio-economic rights, and stigmatization of transgender people in the decision.