Responding to forceful plea for ending the discrimination being meted out to transgender people and recognizing their constitutional rights, the Supreme Court Tuesday asked the government to spell out whether it would recognize them as third sex or give them the choice of being identified as male or female.
A bench of Justice K.S.Radhakrishnan and Justice A.K. Sikri, hearing a plea seeking direction for equal protections and rights to transgenders as was available to male and female citizens, was told the right to live under Article 21, available to all, should also be also available to transgenders to live with dignity and equality.
The court is hearing a petition by the National Legal Services Authority which is seeking the recognition of transgenders as third category so that they could apply for election cards, passports, driving licence, ration card, admission to educational institutions, medical treatment, hospitalization and toilet facilities.
Appearing for NALSA, senior counsel Raju Ramachandran told the court that under Article 14 that provides for equality before law and Article 16 that guarantees equal opportunities in the matter of public appointments, non-recognition of third sex of transgender for availing benefits, facilities and amenities was violative of these articles.
The court was told that considering transgender a legal non-entity was violative of Articles 14, 15, and 16.
"By interpreting the constitution's Article 15 and Article 21 and taking judicial notice of this (transgender) category of persons (then) all enabling provisions (of the constitution) can be made applicable to them. That is all the benefits extended to social and economically weaker sections of society," said counsel T. Srinivasa Murthy.
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Murthy appeared for NGO Centre for Legal Aid and Rights represented by its president Laya Vasudevasn, a transgener woman and activists Ernest Noronha and independent consultant working on sexual orientation and gender identity issues, Gauri Suresh Sawant.
Advocating that the transgender person should, subject to medical examination, have a choice whether he wants to live and identified as male or female, he contended focus on sexual identification is a negation of Article 15 which is sex-blind.
"You are saying that under Article 21 I have a right to live with dignity. It should also recognize my right to choice of sexual identity," Justice Sikri said summing up the submission of Murthy.
However, Ramachandran cautioned that in such a situation, there will be practical difficulties and a transgender may face hostilities in using public conveniences in the event of choosing to be recognized as a female.
Hearing will continue on Oct 29.