In a climbdown from its earlier stand, the NDA government on Thursday withdrew its objections to the Supreme Court’s 2014 order that granted constitutional recognition to transgenders as a third gender and gave them the right to have a family.
The government told a Supreme Court bench led by Justice A K Sikri that it was not pressing for modification of the judgment, which had directed the government to treat transgenders as a socially and educationally backward class. This could pave the way for providing quota benefits, like OBCs, in educational institutions and public appointments to transgenders.
Months after the court’s landmark order in April 2014, the government had moved the bench and resisted the direction to classify all transgenders as OBCs in a “suo motu” exercise.
Questioning the “political” and “practical” ramifications of the judgment, that put personal autonomy and right of choice on par with human dignity, Attorney General Mukul Rohatgi had claimed transgenders could be granted OBC status and consequent benefits only if the National Commission for Backward Classes (NCBC) decided to do so.
However, on Thursday, Additional Solicitor General Maninder Singh submitted that the government would not seek modification of the court’s order. “We are not pressing for any other prayers in our application… we are confining ourselves to only one clarification, that this judgment confines to transgenders and no direction would be applicable to lesbians, gays and bisexuals,” Singh told the bench.
The law officer cited a paragraph from the 2014 judgment underlining that the term ‘transgender’ can be construed, in a wider sense, to indicate the entire Lesbian, Gay, Bisexual and Transgender (LGBT) community. Singh said the government’s objection was now confined to such a wide definition of ‘transgender’ and asked for a clarification that lesbians, gays and bisexuals would be kept out of this class.
The bench retorted that the judgment has clarified that it is confined to transgenders, and it does not include lesbians, gays and bisexuals. “Our judgment is self-clarificatory…why should we not dismiss your application with cost?” the bench asked Singh. It then disposed of the government’s application, stating that no formal order of clarification is required to state that lesbians, gays and bisexuals are not transgenders.
In its historic order in 2014, the court had held that transgenders, as a distinct “third gender” category, would have all rights under the law, including the right to marry each other, adopt, divorce, succession, inheritance and claim benefits under welfare programmes such as MGNREGA.