The third gender and gender self-identification in India: A review

In a historic ruling on April 15, 2014, the apex court of India, in the case of NALSA v UoI, (NALSA, 2014) declared that Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights and that these persons have the right to decide their self-identified gender. Interestingly, this ruling came in the wake of another January 2014 ruling, wherein another SC bench had “turned the clock back” on homosexuals by withdrawing the legal protection granted to them by the Delhi High Court in 2009. The judgment does give some brilliant and original jurisprudential interpretations of the intentions of the framers of our Constitution with respect to sex stereotyping and gender self-identification while reaching their conclusions. This paper seeks to analyse the Constitutional bases for recognition of the rights of this community to gender self-identification as well as make an attempt to highlight the importance of the aforesaid ruling for Indian law making and social justice aims.