Transgender rights

How the Supreme Court’s transgender judgement contradicts its own stance on gay sex

The judgement is at odds with the December 11 ruling that chose to re-criminalise homosexuality.

On Tuesday, a Supreme Court judgement formally created the “third gender” category for transgenders, recognising them as a socially and economically backward class. Members of the transgender community are jubilant, because the country’s highest court has directed the government to ensure they get job quotas, admission in educational institutions, health benefits, separate public toilets and a host of other safeguards against discrimination.

The judgement – in response to a public interest litigation filed by the National Legal Services Authority – is a beautifully articulated 111-page document in which Justices KS Radhakrishnan and AK Sikri delve into the essential meaning of gender identity and sexual orientation. The ruling repeatedly acknowledges the discrimination and abuse suffered by transgenders and invokes the spirit of the Indian Constitution to make a passionate case for the rights of transgender people.

But even as they celebrate it, lawyers and activists point out that this judgement glaringly contradicts the December 11 judgement, by a different bench of the Supreme Court, which upheld the controversial Section 377 of the Indian Penal Code that criminalises “sex against the order of nature”. That judgement has been a huge blow to lesbian, gay, bisexual and transgender people.

Though yesterday's judgement makes a number of references to Section 377, it is only for the benefit of only the transgenders. “The December judgement claimed that Section 377 does not have an impact on the lives of LGBT people, despite affidavits submitted by many about the torture and violence they have faced,” said Arvind Narrain, a lawyer from the Alternative Law Forum.

The NALSA judgement, on the other hand, quotes from several such testimonies of suffering by transgenders, and acknowledges the role that Section 377 has played in facilitating discrimination against them. “The judgement does not hesitate to make a point about the negative impact of Section 377, but does not say anything about its constitutionality,” said Narrain.

Instead, yesterday's judgement states: “A Division Bench of this Court...has already spoken on the constitutionality of Section 377 IPC and, hence, we express no opinion on it since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.”

However, even as it leaves out a commentary on the validity of Section 377, the NALSA judgement says a great deal about the nature of sexual orientation (“an individual’s enduring physical, romantic and/or emotional attraction to another person”) and gender identity (“each person’s deeply felt internal and individual experience of gender”). “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 judgement reads.

It also refers to sections of the Indian Constitution to support its case for transgender rights – Article 14 (equality), 15 (not discriminating on the grounds of sex), 16 (equal opportunities for employment), 19 (freedom of expression) and 21 (protection of life and personal liberty).

“These are the very articles that we had invoked to demand a repealing of Section 377,” said LGBT rights activist Ashok Row Kavi, referring to the case filed by the non-profit Naz Foundation to decriminalise homosexuality. “The judgement is such a paradox.”

By side-stepping the previous Supreme Court ruling on Section 377, the new judgement poses a grave constitutional dilemma for the court, says Delhi-based advocate Menaka Guruswamy. “Can you have non-discrimination, protection, treatment as equals, recognition of inherent dignity and legal cognizance of harassment and abuse of the same community by a colonial law – while at the same time finding that same law to be constitutional?” asked Guruswamy.

However, activist Gautam Bhan feels that it is important to value the NALSA judgement for the extraordinary step it has taken for transgender people. “This judgement is about the rights of transgenders, and we need to stop and celebrate it,” said Bhan.

 
We welcome your comments at letters@scroll.in.
Sponsored Content BY 

Changing the conversation around mental health in rural India

Insights that emerged from discussions around mental health at a village this World Mental Health Day.

Questioning is the art of learning. For an illness as debilitating as depression, asking the right questions is an important step in social acceptance and understanding. How do I open-up about my depression to my parents? Can meditation be counted as a treatment for depression? Should heartbreak be considered as a trigger for deep depression? These were some of the questions addressed by a panel consisting of the trustees and the founder of The Live Love Lough Foundation (TLLLF), a platform that seeks to champion the cause of mental health. The panel discussion was a part of an event organised by TLLLF to commemorate World Mental Health Day.

According to a National Mental Health Survey of India 2015-16, conducted by the National Institute of Mental Health and Neurosciences (NIMHANS), common mental disorders including depression, anxiety disorders and substance use disorders affect nearly 10% of the population, with 1 in 20 people in India suffering from depression. The survey reported a huge treatment gap, a problem that is spread far and wide across urban and rural parts of the country.

On 10th of October, trustees of the foundation, Anna Chandy, Dr. Shyam Bhat and Nina Nair, along with its founder, Deepika Padukone, made a visit to a community health project centre in Devangere, Karnataka. The project, started by The Association of People with Disability (APD) in 2010, got a much-needed boost after partnering with TLLLF 2 years ago, helping them reach 819 people suffering from mental illnesses and spreading its program to 6 Taluks, making a difference at a larger scale.

Play

During the visit, the TLLLF team met patients and their families to gain insights into the program’s effectiveness and impact. Basavaraja, a beneficiary of the program, spoke about the issues he faced because of his illness. He shared how people used to call him mad and would threaten to beat him up. Other patients expressed their difficulty in getting access to medical aid for which they had to travel to the next biggest city, Shivmoga which is about 2 hours away from Davangere. A marked difference from when TLLLF joined the project two years ago was the level of openness and awareness present amongst the villagers. Individuals and families were more expressive about their issues and challenges leading to a more evolved and helpful conversation.

The process of de-stigmatizing mental illnesses in a community and providing treatment to those who are suffering requires a strong nexus of partners to make progress in a holistic manner. Initially, getting different stakeholders together was difficult because of the lack of awareness and resources in the field of mental healthcare. But the project found its footing once it established a network of support from NIMHANS doctors who treated the patients at health camps, Primary Healthcare Centre doctors and the ASHA workers. On their visit, the TLLLF team along with APD and the project partners discussed the impact that was made by the program. Were beneficiaries able to access the free psychiatric drugs? Did the program help in reducing the distance patients had to travel to get treatment? During these discussions, the TLLLF team observed that even amongst the partners, there was an increased sense of support and responsiveness towards mental health aid.

The next leg of the visit took the TLLLF team to the village of Bilichodu where they met a support group that included 15 patients and caregivers. Ujjala Padukone, Deepika Padukone’s mother, being a caregiver herself, was also present in the discussion to share her experiences with the group and encouraged others to share their stories and concerns about their family members. While the discussion revolved around the importance of opening up and seeking help, the team brought about a forward-looking attitude within the group by discussing future possibilities in employment and livelihood options available for the patients.

As the TLLLF team honoured World Mental Health day, 2017 by visiting families, engaging with support groups and reviewing the successes and the challenges in rural mental healthcare, they noticed how the conversation, that was once difficult to start, now had characteristics of support, openness and a positive outlook towards the future. To continue this momentum, the organisation charted out the next steps that will further enrich the dialogue surrounding mental health, in both urban and rural areas. The steps include increasing research on mental health, enhancing the role of social media to drive awareness and decrease stigma and expanding their current programs. To know more, see here.

This article was produced by the Scroll marketing team on behalf of The Live Love Laugh Foundation and not by the Scroll editorial team.