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.

 
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