34 Gender Equality under the Constitution

Ms. Neenu Suresh

1. Learning Outcome

The purpose of this chapter is to:

1. Introduce the concept of gender equality with respect to LGBT Rights as enshrined in the constitution and interpreted by the courts in India.
2. To familiarize the students to the idea that the Constitution is sex and gender blind while guaranteeing fundamental rights to its citizens.

2. Introduction

It is pertinent to understand the distinction between sex and gender. It has been understood that sex is biologically determined and gender is socially constructed. However, there is also a suggestion that there is no real distinction between sex and gender and that from the very outset one becomes the other. In this module, we will function with the understanding that sex is biologically determined and gender is a social construct. We have a binary understanding of sex and gender as male and female / man and woman. There is also an inherent assumption that a person’s sex determines his or her sexual orientation i.e. it is assumed that men are attracted only to women and vice versa. This is the assumption of heteronormativity which assumes that everyone is heterosexual. Thus, a binary understanding of sex and gender coupled with heteronormativity pushes LGBT persons to the margins. This chapter will look into some of these ideas and the ways in which the constitution has been invoked to challenge these norms.

3. Gender and Sex

Gender and sex are understood in a binary of man-woman and male-female. People are assigned female at birth or male at birth and this determination is primarily based on a biological determination. It is assumed that persons assigned female at birth would conform to socially prescribed gender roles, gender expressions and gender performance of a woman. Gender is constructed socially through many ways. For instance, it is determined that boys like to play with cars and girls play with dolls similarly a man is expected to be the breadwinner and the woman runs the house. These preset roles construct gender. However some people do not confirm to the gender that their sex is expected to follow and are broadly classified as transgender persons. A working definition of Transgender has been provided in the Report of the Expert Committee on Issued of Transgender persons as, “All persons whose own sense of gender does not match with the gender assigned to them at birth. They will include trans-men & trans-women (whether or not they have undergone sex reassignment surgery or hormonal treatment or laser therapy, etc.), genderqueers and a number of socio cultural identities, such as kinnars, hijras, aravanis, jogtas, etc.”

The Supreme Court has recognized gender identity as one of the most fundamental aspects of life and has upheld the rights of transgender persons in the case of National Legal Services Authority v Union of India.

4. Gender equality under the constitution

Part III of the Constitution guarantees fundamental rights. All these rights are guaranteed to ‘persons’ irrespective of their gender or sex. Article 14 guarantees equality before law to all persons. Articles 15(1), 15(2) and 16(2) vehemently prohibit discrimination on grounds of sex. Article 19 (1) ensures the right to freedom of speech and expression to all citizens. Article 21 guarantees a life of dignity to all persons. The fundamental foundation of equality before law and equal protection rests on the constitutional premise that the sex of the person is irrelevant save where special provision is made within the Constitution for a section (like for women in Art 15(3)). Therefore, the Constitution in all its essence is “sex blind”.

Articles of the Indian Constitution

Article 14 – Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

• (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them
• (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
• (a) access to shops, public restaurants, hotels and palaces of public entertainment; or
• (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
• (3) Nothing in this article shall prevent the State from making any special provision for women and children
• Article 19(1) – Protection of certain rights regarding freedom of speech etc
• (1) All citizens shall have the right
• (a) to freedom of speech and expression
• Article 21 – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

5. Sexual orientation as analogous to sex

It has been laid down in Naz Foundation Vs NCT of Delhi, “Sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”

6. Sex as gender identity

In National Legal Service Authority v. Union of India (NALSA v. UOI), the court held that gender identity which lies at the core of one’s personal identity, gender expression and presentation will have to be protected under Article 19 (1)(a) of the Indian Constitution. The court held, “Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.” The court further went on to state that both gender and biological attributes constitute distinct components of sex. The discrimination on grounds of ‘sex’ under Article 15 and 16 thus includes discrimination on the grounds of sexual identity. Furthermore, the court in NALSA v. UOI held that ‘the expression ‘sex’ used in Article 15 and 16 is not limited to biological sex of male or female but intended to include people who consider themselves male or female.’

7. Conclusion

The Constitution safeguards the rights of the minorities. However small in number they are. Further, discrimination on the basis of sexual orientation and gender identity ought to recognized under the constitution.

Reference

• Ministry of Social Justice and Empowerment, REPORT OF THE EXPERT COMMITTEE ON ISSUES RELATED TO TRANSGENDER PERSONS, January 2014.
• National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
• Naz Foundation v. NCT of Delhi, (2010) Cri LJ 94 (Delhi)