SOCIAL ISSUES SOCIAL JUSTICE

TRANSGENDERS

Gender justice
The Supreme Court judgment recognising the third gender,
while restricting itself to the concerns of transgender persons,
links development with human dignity. By SAGNIK DUTTA
AS an ebullient Laxmi Narayan Tripathy emerged out of the packed courtroom on
April 17, she could not hold back her tears. While waving a victory sign to a team of
reporters waiting outside, she said: This is the real moment of independence for
transgender persons across the country. It will end years of humiliation and
oppression by an unsympathetic society. Laxmi, one of the interveners in the
National Legal Services Authority (NALSA) case, was referring to the Supreme Court
judgment delivered by Justices K.S. Radhakrishnan and A.K. Sikri recognising a
third gender and upholding the fundamental right of a person to identify with a
gender that does not correspond to the sex assigned at birth.
This landmark judgment, while restricting itself to the concerns of transgender
persons, makes important comments and observations on development itself by
drawing links between development and human dignity. Against the backdrop of a
countrywide wave in favour of corporate-led majoritarian development, the
judgment articulates the constitutional obligations of the state to provide welfare
measures for sexual minorities. It also comes close on the heels of a hearing of a
curative petition in the Supreme Court challenging the Suresh Koushal verdict. The
Suresh Koushal verdict, delivered on December 11 by Justices G.S. Singhvi and S.J.
Mukhopadhyay, upheld the constitutionality of the draconian Section 377 which
penalises certain sexual acts against the order of nature between consenting adults.
The curative petition challenging this judgment is listed for hearing on April 22.
The judgment comes in response to a writ petition filed by NALSA in September
2012 seeking equal rights and protection for transgender persons, including legal
recognition as a third gender in voter ID cards, passports, driving licences and ration
cards and for admission in educational institutions and hospitals. An intervention
application was filed in the case by the Lawyers Collective on behalf of Laxmi
Narayan Tripathy, a transgender activist, seeking recognition of the self-identified
gender of persons either as male or female or the third gender on the basis of choice.
Senior advocate Anand Grover, appearing on behalf of Laxmi, argued that the state
had a constitutional obligation to recognise the self-identified gender of all persons
and should take necessary legal and administrative steps to accord such recognition
in all identity documents, whether issued by the state or private entities, which
indicate a persons gender. Interestingly, in contrast to the Naz Foundation case for
declaring Section 377 of the Indian Penal Code (IPC) as unconstitutional, the NALSA
case has been away from the media glare until recently. In its Cover Story in the
edition dated January 10, Frontlinehighlighted this case as part of the larger struggle
of transgender persons for legal recognition and access to state benefits.
The judgment emphasises the notions of social justice and equality by
linking gender identity to the larger public good. It recognises hijras and
eunuchs as the third gender for the purpose of safeguarding their
rights under Part III of the Constitution and the laws made by

Parliament and the State legislatures. Transgender persons are also

given the right to decide their self-identified gender.
The larger emphasis on social justice is also evident. The judgment notes,
In fact, the recognition that every individual has fundamental right to
achieve the fullest potential is founded on the principle that all-round
growth of an individual leads to common public good. After all, human
beings are also valuable asset of any country who contribute to the
growth and welfare of their nation and the society. It states that the
recognition of the third gender is based on the right to equality under
Article 14 and the right to life under Article 21 of the Constitution.
Speaking to Frontline, Tripti Tandon of the Lawyers Collective explained,
Though the judgment restricts itself to transgender persons, there is a
larger emphasis against discrimination on the basis of sexual
orientation. It recognises the right of persons outside of the universe of
binary genders to develop their personality.
The larger emphasis of the judgment on social justice is evident in its
recognition of how society treats sexual minorities. It says, There
appears to be limited public knowledge and understanding of same-sex
sexual orientation and people whose gender identity and expression are
incongruent with their biological sex. As a result of this approach, such
persons are socially excluded from the mainstream of the society and
they are denied equal access to those fundamental rights and freedoms
that the other people enjoy freely.
Larger implications
The judgment mandates a set of responsibilities for the Centre and the
State governments as welfare measures to be adopted for transgender
persons. It directs the Centre and the State governments to take steps to
treat them as a socially and educationally backward class of citizens and
extend to them reservation in educational institutions and public
appointments. It also instructs the governments to provide access to
health care and social welfare schemes.
This judgment is expected to have far-reaching implications. The
recognition of the constitutional obligations of the state towards
minorities comes against the backdrop of the constant clamour for
economic growth as the sole indicator of the success of the nation. The
judgment states, In fact, there is a growing recognition that the true
measure of development of a nation is not economic growth, it is human
dignity.
With the notable exception of the southern States of Tamil Nadu and
Karnataka, most State governments have failed to enact any social
welfare measures for the betterment of the lot of transgender persons. In
a detailed article in its July 12, 2013, issue, Frontline noted the
inadequacy of pension schemes designed for transgender persons.
Rudrani, a transgender activist, felt that this decision would pave the
way for equality of opportunities. It is inhuman to deny a person basic
rights to education, employment and health on the basis of their gender

identity. This judgment will also be a big step towards removing

transphobia in several sections of society.
Though the judgment steers clear of directly engaging with the
constitutionality of Section 377, the broad thrust of the judgment goes
against the grain of the Suresh Koushal judgment. Speaking to Frontline,
a senior advocate, who did not wish to be named, highlighted the links
between the two judgments: The NALSA judgment emphasises the right
to equality and also repudiates any discrimination on the basis of sexual
orientation. The criminalisation of certain intimate sexual acts between
consenting adults, as is envisaged by Section 377, is clearly
discrimination on the basis of gender. The broad thrust of the NALSA
judgment can be used to prove the unconstitutionality of 377. The
NALSA judgment, therefore, is expected to strengthen the larger
struggles of the LGBT community towards a life of dignity, respect and
equal rights. It remains to be seen whether the apex court rethinks its
approach towards 377 and hence the struggle for Lesbian, Gay, Bisexual
and Transgender (LGBT) rights following this landmark judgment.