Guest Post by SIDDHARTH NARRAIN
The Supreme Court, in the National Legal Services Authority (NALSA) judgment delivered today has recognized the legal and constitutional rights of transgender persons, including the rights of the hijra community as a ‘third gender’. In judgment of immense breadth and vision, Justices K.S. Radhakrishnan and A.K. Sikri have brought hope and a promise of citizenship to a community that has largely been outside the legal framework.
NALSA filed this petition in 2012. In 2013, this matter was tagged together with a petition filed in the Supreme Court by the Poojaya Mata Nasib Kaur Ji Women’s Welfare Society, an organization working for kinnars, a transgender community. Laxmi Narayan Tripathi, a well-known transgender rights activist from Mumbai also intervened in this case.
In this piece, I will point to the highlights of this judgment and why it will go down in history as one of the most rights enhancing decisions in the Court’s history. I cannot but remark on the irony of this judgment being delivered just a few months after Koushal, in which the Supreme Court recriminalized LGBT persons and upheld the constitutionality of section 377 of the IPC. The Court acknowledges this, but makes it clear that while it recognizes that section 377 is used to harass and discriminate against transgender persons, this judgment leaves Koushal undisturbed, and instead focuses specifically on the legal recognition of the transgender community.
Relying on the definition in the Yogyakarta Principles and clarifies the distinction between gender identity and sexual orientation. The court engages with both these categories, but focusing only on the transgender subject. Transgender is seen as an umbrella category that includes those who identify as male to female, female to male, intersexed, and transsexual persons as well as those who identify as hijras, kothis, kinnars, aravanis/thirunangis, jogappas/jogta, shivshakthis and eunuchs. Significantly, the Court says says the term transgender includes ‘pre-operative, post-operative and non-operative’ transsexuals who strongly identify with persons of the opposite sex. Thus the court’s judgment is not limited to post operative transsexuals, and the court emphasizes that to limit itself to such a view is unacceptable.
There are two central questions that the court addresses. The first is the recognition of a third gender category for hijras or equivalent cultural identities in order to facilitate legal rights. The second is that transgender persons, for the purposes of the law, should be able to identify in the gender of their choice, which could be male, female or a third gender category. In the operative part of the judgment, the court the Court held that hijras and eunuchs be treated as a “third gender” to safeguard their fundamental rights. The Court also held that and transgender persons have the right to decide their self identified gender.
The Court builds on a recent history of central and state government recognition of the third gender category in state social welfare benefits, national election identification cards, passport forms and the UID form. In making it legal binding on central and state governments to begin moving away from a legal system based purely on a binary system, this judgment has revolutionary implications for the current laws related to marriage, adoption, inheritance, succession, welfare legislations like the NREGA labour laws, etc, all of which are based on a binary classification of gender.
Specifically dealing with the issue of Sex Reassignment Surgery (SRS), the Court relies on judgments from jurisdictions across the world to direct the government to move away from the now discredited Corbett test i.e. to move away from a biological to psychological evaluation of gender for purposes of the law. In fact the court has held that insistence on SRS as a precondition for legal recognition is immoral and illegal. This will facilitate the legal recognition of all those who undergo an SRS, and clarify any existing grey area in the law.
From the point of view of constitutional developments, the NALSA judgment is path breaking. The courts rely on Articles 14 (right to equality), 15 and 16 (right to non discrimination, 19 (right to freedom of speech and expression), 21 (right to live with dignity and right to autonomy), Article 51 (Directive Principle of State Policy (fostering respect for international law and treaty obligation) and the words Justice- social, economic and political in the Preamble to the Constitution.
The right to equality in Article 14 has been read to apply to transgender persons including those who identify as a third gender. The court says that non-recognition of identity denies transgender persons equal protection of the law. In a move reminiscent of the Delhi High Court’s ruling in the Naz Foundation case, the Court reads the term ‘sex’ in the non-discrimination clauses of Articles 15 and 16 to include ‘gender identity’ (In Naz, the High Court had read sex to include sexual orientation). The court does this by stating that the intent behind the framing of the term ‘sex’ in these sections was to prevent the direct or indirect attitude to treat people differently, for not being in conformity with stereotypical generalizations of binary genders.
The Court held that the expression ‘sex’ in Articles 15 and 16 is not limited to male or female but includes people who consider themselves neither male nor female. The court’s ruling prohibits discrimination against transgender persons in public spaces like hotels, public restaurants, roads, shops and places of public entertainment.
Building on this analysis, the Court directed the Central and state governments to take steps to treat transgender persons as a socially and educationally backward class entitled to reservations in educational institutions and public appointments. It also directed the Central and state governments to provide access to healthcare for transgender persons and provide them separate public toilets. The court observes that the denial of rights to transgender persons is based on the prevalent juridical assumption that law should target discrimination based on sex (i.e. whether a person is anatomically male or female) rather than gender (whether a person has qualities that are masculine or feminine).
One of the most innovative parts of the judgment is the Court’s reading of Article 19 (1) a, the right to freedom of speech and expression to include the right to expression of one’s self identified gender. No person can be told how to dress subject to restrictions in Article 19(2) (which include ‘public order, decency and morality). This is a bold move and identifies the link between gender identity and dress, words, action and behaviour. This is especially important in the context of discrimination against transgender persons who challenge accepted binary forms dressing, and behaviour.
In this judgment, the court builds on a long line of cases where the right to life has been recognized in claims from marginalized communities. The Court stressed that the right to life includes the right to live with dignity and the right to human development. Article 21, the court says, not only provides a negative right, but also places a positive obligation on the state to ensure that the transgender community is able to live a life with dignity. This can be connected with the larger framing of the court of the social justice as the prevailing dharma of the Constitution. The Court observes that by giving force to the right to dignity guaranteed by the Constitution, the court is bridging the gap between law and life, which is the primary purpose of the Constitution.
A recurring theme that runs through the judgment is that of the idea of justice. Justice Sikri explains the idea of justice that animates the Indian Constitution as being influenced by the Kantian categorical imperative, the Rawlsian notion of Justice as Fairness and Amartya Sen’s idea of distributive justice.
Another thread running through the judgment is that the Constitution has to keep up with the move from the colonial to post colonial dispensation. Transgender persons were criminalized by the British by section 377 IPC, (1861) and an amendment to the Criminal Tribes Act (1871). Section 377 remains on the statute book, and the court has not dealt with it here. The Criminal Tribes Act was repealed in 1951, but there are state legislations modeled on this Act that remain in force in the country even today. The court highlights the indigenous roots of hijra culture and the rich Indian tradition of mythology and history with references to persons of the third gender.
In stark contrast to the judges in Koushal, the Bench in this case relies extensively on international human rights principles and comparative law. They quote extensively from the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (2006), the Universal Declaration of Human Rights (1950), the International Covenant on Civil and Political Rights (ICCPR), 1976, and comparative law from the United Kingdom, the E.U., Germany, Argentina, South Africa, the United States, Hungary, Australia, Malaysia and New Zealand.
The most interesting use of comparative law is the court’s reference to recent Supreme Court decisions in Pakistan (Dr. Mohammad Aslam Khaki v Sr Superintendent of Police, Rawalpindi, 2011) and Nepal (Sunil Babu Pant & Ors v Nepal Government, 2007) where these courts in these countries have recognized a third gender category in law. The judges in this case refer to the historical presence of a third gender in the subcontinent. This reference holds out the possibility of developing a unique South Asian jurisprudence on transgender rights that can contribute to the existing international human rights framework.
Again, in stark contrast to the judges in Koushal, the Court observed that the role of the judiciary is not only to decide disputes but also to uphold the rule of law and ensure access to justice to marginalized sections of society, to which transgender persons clearly belong. The court says, “Our Constitution, like the law of society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. …When we discuss about the rights of TGs in the constitutional context, we find that in order to bring about a complete paradigm shift, law has to play a more predominant role.”
Moments of legal and constitutional change that engender a complete paradigm shift are far and few in between. This is a moment that needs to be celebrated and applauded. It is now up to the legislature and Indian citizenry in general to translate these constitutional norms into laws, policies and regulations. This significant victory has to go hand in hand with a renewed political struggle for transgender rights. If not, the social revolution that this judgment portends will remain a dream etched on legal paper.