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Apex Court Recognises Transgenders; Now They Can Enter Mainstream
Apr 17, 2014

In a historic judgement that put personal autonomy and right of choice on par with human dignity, the Supreme Court granted constitutional recognition to transgenders as a third gender and also gave them the right to have family. The court directed the government to treat transgenders as a socially and educationally backward class, entitled to quotas like OBCs in educational institutions and for public appointments.

A bench of Justices K.S. Radhakrishnan and A.K. Sikri held that transgenders, as a distinct third gender category, will have all rights under the law, including the right to marry each other, adopt, divorce, succession, inheritance and also to claim benefits under welfare programmes such as MNREGA.

The court hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the constitution of India and the state is bound to protect and recognise those rights.

Maintaining that self-defined sexual orientation and gender identity is integral to their personality,” the bench asked authorities to frame social welfare schemes and intensive health care programmes for transgenders, after underlining that an estimated 23.5 million men have sex with men (MSM) in India.

The Supreme Court's order giving hijras and eunuchs Third Gender identity and ordering their inclusion among Other Backward Class (OBC) communities to avail 27% reservation in government educational institutions has put India on the world map as a country which is sensitive towards sexual minority. The apex court observed that the recognition of "sex identity gender" of persons, and "guarantee to equality and non-discrimination" on the ground of gender identity or expression was "gaining acceptance in international law and, therefore, be applied in India as well".

Last year, Germany came out with a new law which allowed the parents to register the sex of the children as not specified in the case of children with intersex variation. In 2012, the Senate of Argentina passed a law on Gender Identity that recognizes right by all persons to the recognition of their gender identity as well as free development of their person according to their gender identity. It also allowed a person to request that their recorded sex be amended along with the changes in first name and image, whenever they do not agree with the self-perceived gender identity. The same year, the Supreme Court of Pakistan also held that transgenders be given equal basic rights as all citizens.

Highlights of the Order

  • The third gender people will be considered as OBCs. They will be given educational and employment reservation as OBCs.
  • States and the Centre will devise social welfare schemes for third gender community and run a public awareness campaign to erase social stigma.
  • States must construct special public toilets and departments to look into their special medical issues.
  • If a person surgically changes his/her sex, then he or she is entitled to her changed sex and cannot be discriminated.
  • The apex court expressed concern over transgenders being harasssed and discriminated in the society and passed a slew of directions for their social welfare. 
  • Trangenders were respected earlier in the society but situation has changed and they now face discrimination and harassment. 
  • Section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory. 

A Landmark Judgment

By recognising the transgender community as a third gender entitled to the same rights and constitutional protection as all other citizens, the Supreme Court has put in place a sound basis to end discrimination based on gender, especially gender as presumed to be assigned to individuals at birth. Further, beyond prohibiting discrimination and harassment, the Court has extended global principles of dignity, freedom and autonomy to this unfairly marginalised and vulnerable community. The verdict lays down a comprehensive framework that takes into its fold not merely the negative right against discrimination, but also “the positive right to make decisions about their lives, to express themselves and to choose which activities to take part in.” 

In particular, its direction that they should be treated as ‘socially and educationally backward’ and given reservation in education and employment, is a far-reaching contribution to their all-round development. The jurisprudential basis for the judgment is that sex identity cannot be based on a mere biological test but must take into account the individual’s psyche. The Court has noted that Indian law treats gender as a binary male/female concept, with sections of the Indian Penal Code and Acts related to marriage, adoption, divorce, succession, and even welfare legislation, being examples. The Court has also relied on the Yogyakarta Principles—norms on sexual orientation and gender identity evolved in 2006 at Yogyakarta in Indonesia—to bolster its reasoning.

The separate, but concurring, opinions of Justice K.S. Radhakrishnan and Justice A.K. Sikri contain some subtle criticism of the Supreme Court’s earlier ruling in Suresh Kumar Koushal upholding Section 377 of IPC that criminalises even consensual same-sex activity. While conscious that they cannot depart from the ruling of a Division Bench, both Judges have highlighted the fact that misuse of Section 377 is one of the principal forms of discrimination against the transgender community. By noting that Section 377, despite being linked to some sexual acts, also highlights certain identities, Mr. Justice Radhakrishnan sees a link between gender identity and sexual orientation, something that the Koushal formulation missed when it concluded that the provision criminalised the act and not any identity or orientation.

This judgment will help in bringing the transgenders in the mainstream. It has made it easier for them to get jobs, education, like any other sex without discrimination. What still needs to change is the mindset of people and the judgement is a good start. The bench gave the Centre, states and union territories 6 months to implement its judgment. 


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