Towards a Universal Construction of Transgender Rights: Harmonizing Doctrinal and Dialogic Strategies in Indian Jurisprudence

Author:Spence Jones
Position:The Human Rights Law Network's Humjinsi Initiative
Pages:91-121
SUMMARY

This paper intends to critically examine the juridical process by which members of the transgender community in India became the subjects of rights. This process reached its apotheosis in the passing of a landmark judgment, NALSA v. Union of India, by the Supreme Court of India that granted legal recognition to transgender citizens and affirmed their fundamental right to constitutional... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2017 e Institute for Migrant Rights Press
TOWARDS A UNIVERSAL CONSTRUCTION
OF TRANSGENDER RIGHTS
HARMONIZING DOCTRINAL AND DIALOGIC STRATEGIES
IN INDIAN JURISPRUDENCE
Spence Jones
e Human Rights Law Network’s Humjinsi Initiative
E-mail: bsjones01@email.wm.edu
is paper intends to critically examine the juridical process by which members
of the transgender community in India became the subjects of rights. is pro-
cess reached its apotheosis in the passing of a landmark judgment, NALSA v.
Union of India, by the Supreme Court of India that granted legal recognition to
transgender citizens and armed their fundamental right to constitutional pro-
tections, guarantees, and entitlements. is jurisprudence, I argue here, relies
upon a dialogic nexus between human rights and development advanced by the
Court, one which allows for the deployment of an innovative doctrinal approach
that interprets the civil and political rights envisaged in Part III of the Constitu-
tion of India harmoniously with the social and economic rights in Part IV. e
Court’s approach, it is further argued, is centered on the usage of international
and comparative law as mechanisms for informing constitutional inter preta-
tion, as well as facilitating and enabling constitutional choice. In doing so, the
Court harmonizes universal human rights standards with a deep national com-
mitment to an inclusive society. is paper, therefore, uses this jurisprudence as
a case study to problematize extant conceptual models for understanding how
human rights law may be used as an instrument for development.
Keywords: Human Rights to Equality, LGBT’s Human Rights, International Law,
Constitutional Law, Queer eory, Comparative Law.
IV Indonesian Journal of International & Comparative Law 91-121 (January 2017)
92
Jones
I. INTRODUCTION
On April 15, 2014 the Supreme Court of India passed a landmark judg-
ment in the case of National Legal Services Authority (NALSA) v. Union
of Ind ia and Others that armed the constitutional rights and free-
doms of transgender persons. A two-judge bench of the Apex Court
ruled that transgender individuals have the right to self-determination
of gender—whether male, female, or “third gender”—and legal recog-
nition thereof. Transgender citizens, the Court further declared, were
to be entitled to the full protection of the right to equality, non-dis-
crimination, freedom of expression, and dignity as enumerated in the
chapter on fundamental rights in the Constitution of India. Of most
consequence to the judgment, though, were the Court’s binding legal
obligations placed upon the Centre and State Governments, which di-
rected them to take several armative steps to safeguard the rights of
transgender persons.1 Lauded by activists, lawyers, and community
1. A full list of the directions issued by the Supreme Court to the Centre and State
Governments is as follows:
It is declared that:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gen-
der” for the purpose of safeguarding their rights under Part III of our
Constitution and the laws made by Parliament and the State Legisla-
ture.
(2) Transgender persons’ right to decide their self-identied gender
is also upheld and the Centre and State Governments are directed to
grant legal recognition of their gender identity such as male, female or
as third gender.
(3) We direct the Centre and the State Governments to take steps to
treat them as Socially and Educationally Backward Classes of citizens
and extend all kinds of reservation in cases of admission in educational
institutions and for public appointments.
(4) e Centre and State Governments are directed to operate separate
HIV serosurveillance centres since [H]ijras/[T]ransgenders face sever-
al sexual health issues.
(5) e Centre and State Governments should seriously address the
problems being faced by [H]ijras/[T]ransgenders such as fear, shame,
gender dysphoria, social pressure, depression, suicidal tendencies, so-
cial stigma, etc. and any insistence for SRS for declaring one’s gender is
immoral and illegal.

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