Beyond male and female, the right to humanity

Importantly, the Supreme Court accepted the broad definition of transgender as including persons who did not identify with the sex assigned to them at birth

The Supreme Court judgment recognising the rights of transgendered persons is a landmark ruling and restores faith in the Court’s ability to recognise gross injustice. The Bench comprising Justices K.S. Radhakrishnan and A.K. Sikri has also restored the image of the Court as capable of bold moves when it comes to addressing the denial of the right to be human simply on the basis of one’s sexual status and conduct. The Court’s progressive image was in tatters after the Suresh Kumar Kaushal v. NAZ Foundation ruling in December 2013 that re-criminalised gays and lesbians, and overruled the 2009 Delhi High Court’s decision that Section 377 of the Indian Penal Code was not applicable to consensual sexual relations between adults.

Dynamic decision

The ruling in National Legal Services Authority (NLSA) v. Union Of India has far-reaching implications. It is a courageous decision that embeds the rights of transgendered persons primarily within the right to equality in the Indian Constitution. In this sense it is a more dynamic decision than the Delhi High Court ruling regarding Section 377, which was largely based on the right to privacy. The Court held that non-recognition of gender identity violates the rights to equality and life, and that transgendered persons should not be compelled to declare themselves as either male or female. The lack of recognition of their gender identity curtails their access to education, health care and public places, and results in discrimination in the exercise of their right to vote and secure employment, driving licenses and other documentation where eligibility is contingent on declaring oneself as either male or female.

While the decision is largely based on the protection of fundamental rights, the Court also relied on a host of UN human rights provisions as well as the 2006 Yogyakarta principles, which specifically recognise the human rights of sexual minorities, and which were adopted to counter discrimination on the basis of gender identity and sexual orientation. Moreover, unlike the Bench in the Kaushal case, the judges heard with approval a host of foreign judgments relating to the rights of transgendered persons, without throwing a nationalist anti-western hissy fit.

An outstanding feature of the decision is that the judges accepted the broad definition of transgender as including persons whose gender identity, gender expression or behaviour did not conform to their biological sex, and more importantly, those who did not identify with the sex assigned to them at birth. They accepted a vast array of identities and experiences that constitute the category of transgendered persons, culturally and socially, and also accepted the fact that gender identity was not necessarily biologically determined. They referred to each person’s experience of gender, which may involve a freely chosen modification of bodily appearance or functions by medical or other means. Gender identity is about self-identification. Justice Sikri went so far as to state that “even gay, lesbian, bisexual are included in the description ‘transgender’” and that it was an umbrella term. The idea of male and female are not regarded as natural, but as normative categories by the Court. The NLSA decision thus recognised the social construction of not only gender but also of sex as something that is performed rather than biologically determined. This argument places this decision at the cutting edge of progressive, feminist and queer thinking on issues of gender and sexuality.

The Court further held that sex discrimination in Indian constitutional law includes discrimination on the grounds of gender identity, and rejected the view that it was limited to biological sex. It held that a binary understanding of gender denied hijras and transgendered persons equal protection of law and constituted the basis for widespread discrimination. The Court has clearly articulated that transgendered persons should no longer be treated with cruelty, pity or charity. There needs to be a paradigm shift towards a rights-based approach where they are accepted as fully human. As Justice Sikri stated: “It is only with this recognition that many rights attached to sexual recognition as ‘third gender’ would be available to this community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a drivers license, the right to education, employment, health and so on.”

The Court also addressed the arguments regarding Section 377 but expressed no view on the Kaushal case, currently the subject matter of a curative petition. The Justices did however recognise the misuse of Section 377 to harass transgendered persons. The fact that a transgendered person may be having sex with a man also implies that homosexuals or men having sex with men or transgendered perons would also be subject to such harassment, undermining a key finding in the Kaushal decision that there was no sufficient evidence on record of police harassment.

Gaps in Kaushal case

The NLSA judgment is a hugely significant and potentially transformative decision. It affirms that there is no place in the Constitution for a hierarchy of super-humans, lesser humans and non-humans. This decision is informed, coherent, and demonstrates a familiarity with the literature as well as acute attentiveness to counsel’s arguments.

It now remains to be seen whether the obvious contradictions and gaps in the Kaushal case will be remedied by the Court in a direction that ensures that homosexuals are not only accorded the same rights as citizens as transgendered persons have been accorded, but also the right to humanity.