Opinion The third option

The right to gender identity was implicitly recognised in the Delhi High Court’s Naz Foundation judgment,where the court decriminalised homosexuality. In this decision,the judges held that the right to privacy,recognised under Article 21 of the Constitution,includes the right to gender expression. The court said “For every individual,whether homosexual or not,the sense of gender and sexual orientation of the person are so embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. A person cannot leave behind his sense of gender or sexual orientation at home.”

Any legal reform that is aimed at rights for the transgender community needs to take into account the spectrum of gender identities in India. Within this,we find reference to multiple categories. These include persons who are born female but identify as male,that is,transmen or female to male transsexuals (FTMs); those who are born men,want to transition to women and don’t want to identify as a third gender; and then there are the concerns of intersex persons with sexual characteristics of both men and women or ambiguous sexual characteristics,who do not fall clearly into the biological category of male or female.

Across the world,the law is changing to reflect some of these concerns. In Germany,the law now allows for parents to leave the sex of their babies blank to avoid labelling intersex children,who can choose their sex when they grow up. In Argentina,a gender identity legislation has generated far-reaching legal change,allowing persons to self-authenticate their gender identity and even letting minors choose their gender identity with informed consent or under supervision. From these developments,it is clear that the question of who qualifies as transgender should be settled by self-attestation,as far as possible. The definition of transgender should not depend on whether a person has had surgical intervention or physically transitioned. The state needs to facilitate a change in the legal sex of individuals while ensuring that this change does not prejudice their existing rights of inheritance or property.

In the US,the Senate recently voted to move forward with the legislative process in enacting the Employment Non Discrimination Act (ENDA). For the first time,transgender persons will be included in federal anti-discrimination legislation in the country. Closer home,the supreme courts of both Nepal and Pakistan have recently recognised the status and rights of transgender persons.

There have been a number of developments in India through which the transgender community has been gradually recognised. For instance,in Tamil Nadu,the government has set up a Transgender Welfare Board,which includes members of the transgender community and focuses on the welfare of transgender persons in the state. The Tamil Nadu government provides sex reassignment surgeries free of cost in state hospitals. In Karnataka,the state government has passed an order on benefits for “gender minorities”,a broad spectrum of transgender persons that includes jogappas and FTMs. This was based on recommendations of the state’s backward classes commission,which held a public hearing for Karnataka’s transgender community. In Kerala,the state government’s Right of Children to Free and Compulsory Education Rules define a child belonging to a disadvantaged group as a male,female or transgender child of 6-14 years who belongs to a Scheduled Caste,Scheduled Tribe or a family engaged in traditional means of livelihood. The Election Commission of India and the Passport Authority recognise a third gender category. The 2011 Census had an “other” category and the UIDAI includes a third gender option.

The petition before the Supreme Court highlights the lack of educational or employment opportunities and health facilities for transgender persons. This exclusion stems from the law being limited to a gender binary. The demand for the recognition of a “third gender” questions the way laws and policies are framed in India. It opens up fundamental questions that we need to address. Can the word person gradually replace “man” and “woman” in the text of legislation? Why are there so few gender-neutral toilets? The Supreme Court has the opportunity not just to address the immediate concerns of the transgender community,but also to radically change the way we think of gender.

The writer is with Alternative Law Forum,Bangalore

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