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Beyond Male And Female, The Right To Humanity - UPSC Current Affairs

Jul 11, 2022

Beyond Male And Female, The Right To Humanity - UPSC Current Affairs

Here’s our today’s edition of Current Affairs Dialog box wherein we will discuss Beyond Male And Female, The Right To Humanity in detail.

Navigate through the article to get useful insights on the topic and enhance your UPSC CSE preparation.

For Prelims: NALSA Judgment

For Mains: Issues Related to Transgenders, Institutions and Bodies constituted for the protection and betterment of vulnerable sections


  • Recently, a young transgender pilot was barred from flying on the grounds that he is unfit as he is on hormone therapy. 
  • In this context NALSA judgment becomes important which recognised third gender persons as entitled to fundamental rights under the Constitution.

Probable Question

What is the significance of the NALSA vs Union of India judgment by the Supreme Court? Do you think it is being followed in true letter and spirit?

About NALSA Judgment

Observations of the Court 

  • The Court held that non-recognition of gender identity violates the rights to equality and life.
  • The transgendered persons should not be compelled to declare themselves as either male or female. 
  • It recognises the human rights of sexual minorities, and which were adopted to counter discrimination on the basis of gender identity and sexual orientation. 
  • The judges accepted the broad definition of transgender as including persons whose gender identity, gender expression or behaviour did not conform to their biological sex.
  • They accepted a vast array of identities and experiences that constitute the category of transgendered persons, culturally and socially. 
  • Gay, lesbian, bisexuals are included in the description ‘transgender’” and that it was an umbrella term. 
  • The Court further held that sex discrimination in Indian constitutional law includes discrimination on the grounds of gender identity and rejected the view that it was limited to biological sex. 
  • The Court has clearly articulated that transgendered person should no longer be treated with cruelty, pity or charity. 

Sex Discrimination

  • The lack of recognition of gender identity of LGBTQ curtails access to education and results in discrimination in the exercise of their right to vote and secure employment.
  • A binary understanding of gender denied hijras and transgendered persons equal protection of law and constituted the basis for widespread discrimination. 
  • There needs to be a paradigm shift towards a rights-based approach where they are accepted as fully human. 

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Significance of the Judgment 

  • The NALSA judgment affirms that there is no place in the Constitution for a hierarchy of super-humans, lesser humans and non-humans.
  • It is a courageous decision that embeds the rights of transgendered persons primarily within the right to equality in the Indian Constitution. 
  • It is a more dynamic decision than the Delhi High Court ruling regarding Section 377. 
  • Many rights attached to sexual recognition as ‘third gender’ would be available to this community viz.
    • The right to vote
    • The right to own property
    • The right to marry
    • The right to claim a formal identity through a passport and a ration card
    • A driver’s license
    • The right to education, Employment and Health 
Additional Information 

There is a series of judgments, through which LGBTQ community has fought and continues to fight for their due rights. 

Naz Judgment, 2009In Naz Foundation v Government of NCT Delhi for the first time Delhi High Court declared Section 377 to be unconstitutional.

NALSA Judgment, 2014

In National Legal Services Authority vs Union of India, Transgender people were recognised as citizens of this country, all the Fundamental Rights were extended to them, and they were given the identity of Third Gender.

The court laid a comprehensive set of guidelines that every State must follow to bring Transgenders into public spheres and provide remedies for their marginalization.

Puttaswamy Judgment, 2017

In Justice (Retd) K S Puttaswamy vs Union of India, Article 21 of Constitution of India which grants Right to Life and Liberty was expanded to include Right to Privacy.

Right to Privacy was also extended to every individual irrespective of their gender and sex.

Recognition of privacy for members of the LGBTQIA community as an inalienable grants them autonomy and protection from State action while exercising their right to choose their partners.

  Navtej Johar, 2018

Navtej Singh Johar v Union of India judgement decriminalized homosexuality in India. The court struck down Section 377 to the extent that it criminalized sex between two consenting adults.

The Supreme Court further held that Section 377 violates Article 14, 15, 16 and 19 1 (a) of Constitution of India. It recognized that every individual irrespective of their gender identity and sexual orientation have the right to live with dignity, autonomy and make personal and private decisions without State interference.

Arun Kumar Judgment, 2019

Arun Kumar v Inspector General of Registration, Tamil Nadu is a case from the Madras High Court which reads into the category of brides to include transwomen. Under Hindu Marriage Act, 1955 the definition of marriage only includes men and women. This judgement expands the category of women to include transgender people to identify as women to be brides as well. It takes the clause of self-identification as has been mentioned in the NALSA judgment, where a person can identify as any gender identity without needing a State or external body to verify their identity. 

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