By recognising the third gender, Supreme Court takes a big step forward for human rights.
Transgendered citizens have won a long-denied right, as the Supreme Court formally acknowledged a “third gender” status for them. Responding to a PIL that appealed for greater mainstreaming and recourse against discrimination for transgenders, the court has declared that they should be given priority in education and employment, and recognised their status as socially and economically backward. It has asked the Centre to work out this change, and directed states to devise welfare schemes, create special facilities and run awareness campaigns to counter social stigmatisation.
It also acknowledged that Section 377 of the Indian Penal Code was being used by the police against trans individuals — treading on delicate territory since the same Supreme Court has recently upheld that law, which is intended to punish “carnal intercourse against the order of nature” and ends up being the blunt tool with which LGBT citizens are harassed. In this judgment, the court drew a distinction between transgenders and gay, lesbian and bisexual individuals, a line that is far from self-evident when it comes to constitutional rights against discrimination and for equality.
There have been smaller interventions in favour of trans individuals, at least in terms of the state’s enumerating instruments. In 2005, the Centre introduced the “E” category for eunuchs in the passport form and other documents. The Election Commission has “O” for others, Aadhaar included “T” for transgenders and Census forms also now acknowledge gender-variant identities. But apart from a recognition of formal citizenship, and the strength in numbers that this brings, they also need policy action to fight the discrimination, and even violence, that they face.
While states like Tamil Nadu have set progressive examples, with a dedicated transgender welfare board, separate public facilities, preferential admissions, ration cards and so on, there needs to be comprehensive action across India to give them their due in healthcare, housing, workplace opportunities. The court’s decision to treat them as socially and educationally backward is an acknowledgement of the persistent prejudice that has held them back.
Such progressive interventions to uphold minority rights can only be made by the court. And in turn, the court’s progressive intentions can only be realised by governments that share its concern. State governments must act immediately to set up departments for transgender integration and welfare, and make amends for the decades of indifference to their cause.