In a precarious position over its stand on the LGBT community, the NDA government has moved the Supreme Court, raising several objections against the historic April 15 judgment that granted constitutional recognition to transgenders as a third gender and gave them the right to have a family.
The Narendra Modi government has sought clarifications, besides questioning the “political” and “practical” ramifications of the judgment, which put personal autonomy and right of choice on par with human dignity.
The judgment had directed the government to treat transgenders as a socially and educationally backward class, entitled to quotas like OBCs in educational institutions and for public appointments. It held that transgenders, as a distinct “third gender” category, will have all rights under the law, including the right to marry each other, adopt, divorce, succession, inheritance and also to claim benefits under welfare programmes such as MGNREGA.
The government’s application, settled by Attorney General Mukul Rohatgi, however, has resisted the direction to classify all transgenders as OBCs in a “suo motu” exercise. It said that they could be granted OBC status and consequent benefits only if the National Commission for Backward Classes (NCBC) decides so.
“For inclusion of transgender as OBCs, the matter has to be first referred to the NCBC. This is an intricate question and clubbing all of them together as one category of OBC may pose problems, both practically and politically,” it contended.
It said that some of the transgenders may already belong to the backward classes and clubbing them as one class may not be “prudent”. The government put forth this “practical” problem although it admitted there was an assumption that transgenders did not maintain caste or community identities.
This may be seen by a section of society as an attempt by the government to entrap the issue of granting OBC status to transgenders in typical bureaucratic red tape, considering the usual long-drawn procedure at the NCBC.
Another serious objection flagged by the government pertains to the judgment underscoring that the term ‘transgender’ can be construed in wider sense to connote the entire Lesbian, Gay, Bisexual and Transgender (LGBT) community.
The Centre has refused to accept such a wide definition of ‘transgender’ and sought a declaration that lesbian, gay and bisexual would be kept out of this class. Pointing out a distinction between the sexual orientation of a person and a sense of gender identity, the plea said that the “ambiguity” created by the judgment required a clarification.
Dimming the glimmer of hope offered by the April verdict, the government has asked the court to issue appropriate orders, which means that the authorities would not be obligated to provide benefits of the social welfare and intensive health care programmes that the SC had directed to be granted to the entire LGBT community.
The government also said that the term ‘eunuch’ is not an equivalent of ‘transgender’ or a variant of the latter and hence it has to be left out.
It added that an expert committee, set up by the government, had submitted its report in January 2014, months before the SC judgment, but this fact could not be informed to the court due to a “communication gap”.
The government said all the recommendations by the committee cannot be completed within six months from the date of the judgment, as ordered by the court, and asked for more time. However, the applications did not give any time line to implement the recommendations, nor specified the types of recommendations.
The government has also proposed a clear-cut definition of ‘transgender,’ pleading for an approval. The definition, as proposed, defines transgender as: “All persons whose own sense of gender does not match with the gender assigned to them at birth. They will include trans-men and trans-women (whether or not they have undergone sex re-assignment surgery or hormonal treatment or laser therapy etc)… and a number of socio-cultural identities, such as kinnars, hijras, aravanis, jogtas, etc.”