In a historic judgement that put personal autonomy and right of choice on par with human dignity, the Supreme Court Tuesday granted constitutional recognition to transgenders as a third gender and also gave them the right to have family.
The court 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.
A bench of Justices K S Radhakrishnan and A K Sikri 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 MNREGA.
“We 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 recognise those rights,” the court said.
Maintaining that “self-defined sexual orientation and gender identity is integral to their personality,” the bench asked authorities to frame social welfare schemes and intensive health care programmes for transgenders, after underlining that an estimated 23.5 million men have sex with men (MSM) in India.
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The bench gave the Centre, states and union territories six months to implement its judgement.
It noted that since transgenders in India were neither male nor female, treating them as any of these categories was “denial of their constitutional rights and social justice”. The court said “moral failure lies in the society’s unwillingness” to embrace such gender identities and expressions…”a mindset which we have to change” in the wake of “new social needs”.
The bench said the discrimination faced by transgenders, also known as Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis, among others, was “unimaginable” and their rights had to be protected, “irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role” to ensure a dignified life for them.
It said a psychological test and not a biological test has to be used to identify transgenders and by recognising them as a third category, the SC was “only bridging the gap between the law and the life”. The court added that any insistence to undergo a sex re-assignment surgery was “immoral and illegal”.
Significantly, the verdict also opens a window of hope for the other three categories of what is called the LGBT community, comprising lesbians, gays, bisexuals and transgenders.
Four months ago, 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 high court had decriminalised gay sex by holding that Section 377 of the Indian Penal Code, by criminalising consensual sexual acts of adults in private, violated the principles of equality and non-discrimination in the constitution.
Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal,” is punishable with imprisonment from 10 years to life.
Withdrawing the legal protection to what it called a “minuscule fraction of the country’s population,” the SC had ruled that Section 377 will continue making gay sex – “irrespective of age and consent” – a crime and also rejected the argument on discrimination against this class.
However, Monday’s verdict asserted that any “discrimination on the ground of sexual orientation or gender identity” impaired equality before the law and hence violated Article 14 of the Constitution.
“Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom,” the bench said.
It emphasised that a constitutional court cannot be a mute spectator when these rights are violated and it is rather expected to safeguard them, acknowledging the pulse and feeling of that community, “though a minority”.
The court also pointed out that the term “transgender” will include gay, lesbian and bisexual. But it stopped going further on this by saying: “While dealing with the present issue we are not concerned with this aforesaid wider meaning of the expression transgender.”
A curative petition against the re-criminalisation of gay sex is likely to be listed in the SC soon and Monday’s judgement is expected to come handy for legal arguments since sexual activity, including carnal intercourse and oral sex, among transgenders is no more a crime after their identification as a third gender while it remains a crime for lesbians, gays and bisexuals.
Senior advocate Anand Grover, who represents the LGBT community in the fight against Section 377, told The Indian Express that he was encouraged by the judgement stressing that non-discrimination due to the “sexual orientation” of a person violated human rights.
The verdict on transgenders came on a PIL by the by the National Legal Services Authority, which asked for ending social, political and cultural ostracism of transgenders by granting them legal status of a third and equal sex.