Transgender, a New Gender: Recognizing the T in LGBT

On 15th April 2014 the Supreme Court of India gifted India with the recognition of a new gender – Transgender. By allowing the petition filed by National legal Services Authority, the Court held that trans-genders have the right to equality under Article 14 and the right to live with dignity under Article 21.

The Court defined Transgender to mean a person whose gender identity, gender expression or behavior does not conform to their biological sex. Transgender are persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs and they do not identify themselves as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional “third gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites). Transgenders also include persons who intend to undergo Sex Re-Assignment Surgery (SRS) or have undergone SRS to align their biological sex with their gender identity in order to become male or female. Further, there are persons who like to cross-dress in clothing of opposite gender, i.e transvestites.

Gender Identity and Sexual Orientation

The Court differentiated between gender identity and sexual orientation. Gender identity refers to each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body which may involve a freely chosen, modification of bodily appearance or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms. Gender identity, therefore, refers to an individual’s self-identification as a man, woman, transgender or other identified category. While sexual orientation refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. It includes within its ambit transgender and gender-variant people with heavy sexual orientation and their sexual orientation may or may not change during or after gender transmission which also includes homosexuals etc.

By keeping in mind the above difference and identifying the need to adhere to international obligations under the UDHR, ICESCR, ICCPR and Yogakarta Principles the Supreme Court of India recognized the need to protect the rights of transgenders.  Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles. Constitution makers could not have envisaged that each and every human activity be guided, controlled, recognized or safeguarded by laws made by the legislature the Court relied on the following points while guaranteeing the much needed rights:

Article 14: Article 14 of the Constitution of India ensures equal protection and therefore imposes a positive obligation on the states to ensure the same. Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.

Article 15 & 16: prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’. In fact, both the Articles prohibit all forms of gender bias and gender based discrimination. Both gender and biological attributes constitute distinct components of sex. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.

 Article 19: Provides that all persons have the freedom of speech and expression. Therefore no restriction can be put on the basis of appearance, dressing, words or any other form. However this is subject to Article 19(2). Gender identity lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India.

Article 21: Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans. Recognition of gender forms the essence of human dignity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.

Keeping in mind the above points the Supreme Court held that Hijras, Eunuchs, be treated as “third gender” for the purpose of safeguarding their rights under Part III of Constitution of India. The Court directed the Central and State Governments to recognize this new gender identity, treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Further steps must be taken operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues and steps must be taken to address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal. Lastly, the Court insisted on proper steps should be taken measures to provide medical care to Transgenders in the hospitals and also provide them separate public toilets and other facilities.

In our opinion this is a remarkable judgment and addresses the need of the hour – recognition of alternate genders. This judgement, understandably contains a disclaimer stating that the issue of constitutionality of Section 377 of IPC is finally settled in NAZ foundation and therefore reserves its opinion on the same. It is interesting to note that the Supreme Court in its judgement in NAZ relied on a binary understanding of the term ‘gender’ while categorizing homosexual intercourse as “against the order of nature”. This presumption of the existence of only two genders must affect the understanding of the Court as to the true meaning of the “order of nature”.