Subhashis Mittra
Placing India in league of modern societies as far as transgender rights go, the Supreme Court has recognised India’s long marginalised community as a third gender. In a landmark judgment, lauded by human rights groups, the apex court directed the government to ensure their equal treatment.
There are hundreds of thousands of transgenders in India but because they are not legally recognised, they are ostracised, discriminated against, abused and often forced into prostitution.
“Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue,” the Supreme Court said in its ruling, observing, “Transgenders are also citizens of India.
The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”
Justice Radhakrishnan and Justice A K Sikri said any nation can progress only after it grants all the rights and human rights to its citizens.
A person who is transgender does not identify with the gender stated on their birth certificate.
Before this ruling, millions of transgender persons in the country were forced to identify themselves as either male or female in official documents.
The court ruling – which came after hearing a petition filed by a group of transgenders demanding equal rights – recognised the community as a marginalised group and directed authorities to implement policies to improve their socio-economic status.
The apex court’s observation goes well with with the modern understanding that gender, which is rigidly defined in terms of male and female, is a social construct.
The petitioners’ lawyers said this would mean that all identity documents, including a birth certificate, passport and driving licence would recognise the third gender, along with male and female.
Sans official recognition, transgender persons hitherto aced enormous difficulties in even acquiring basic documents such as passports and driving licences.
The court has sought to rectify this by stressing that continued discrimination against transgender persons was against the spirit of the Constitution and impressed upon the Government to erase stigma and provide equal opportunity to the community.
The government will also have to allocate a certain percentage of public sector jobs, seats in schools and colleges to third gender applicants, an activist explained.
Due to their lack of access to jobs and education, many male-to-female transgenders – also known as “hijras” – are forced to work as sex workers or move around in organised groups begging or demanding money.
Hate crimes in the conservative country are common, say activists, yet few are reported partly due to a lack of sensitivity by authorities such as the police.
The court order will go a long way towards ending the discrimination and social stigma that transgender persons face on a daily basis – often leaving them feeling margialised and forcing them into hiding.
Their right to work is among the most affected rights as they are often pushed into either prostitution, forced to earn their living out of dancing at weddings and births or beg at traffic signals.
The verdict is, however, applicable only to eunuchs. It does not apply to gays, lesbians and bisexuals who also come under the umbrella term ‘transgender’. The criminalization of homosexuality under Section 377 of Indian Penal Code already leaves the LGBT community vulnerable to discrimination.
The Supreme Court was slammed by human rights activists in December when it reinstated a ban on gay sex, following a four-year period of decriminalisation that helped bring homosexuality into the open. The court said only Parliament could change the law.
Human rights groups said they hoped the ruling on transgenders would encourage the new Parliament to repeal the anti-homosexuality law as one of its first actions.
After championing the rights of tansgender persons, activists feel the SC must recognize the gender identity of gay, lesbian and bisexual individuals as well. They want abolishing of Section 377 IPC from the statute books.
In fact, the Supreme Court verdict leaves the door open on whether the larger LGBT community will benefit from the judgement to end discrimination on the basis of sexual orientation and gender identity.
The judgement came on a petition filed by National Legal Aid Services Authority (NALSA), which through its then secretary Sarat Chandran had approached the court in 2012 to ensure fundamental rights for transgenders. Mata Nasib Kaur Ji Women Welfare Society, working for Kinnars, and transgender Laxmi Narayan Tripathy had joined NALSA in seeking the rights for hijras.
After the apex court ruling, Tripathy said, “The progress of the country is dependent upon human rights of the people and we are very happy with the judgement as the Supreme Court has given us those rights.”
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