Right to Life and Transgenders- Opinion (Part VII)

In the last post, I discussed about right to Equality of transgenders. Now, I will share my opinion on Article 21 and Transgenders. You can read more about the judgment in my other posts (Part I, Part II, Part III, Part IV and Part V).

I agree with the court’s reasoning that recognition of one’s gender identity (You can more about gender identity here) lies at the heart of the fundamental right to dignity. Gender Identity definitely constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, a part of right to dignity and freedom guaranteed under our Constitution.

Presently, there are many laws in our country that endorse the binary notion of gender. Most of our laws relating to marriage, adoption, divorce, inheritance, succession do not recognize the ‘third gender’. Even welfare legislations like MGNREGA have provisions only for male and female. ‘Third gender’ needs to be incorporated in all such legislations.

If we see the language used in our Constitution, we will find that our fundamental rights use either the term “person” or “citizen” or “sex”. This clearly shows that our Constitution is gender neutral and the terms used above refer to human beings. This should include transgenders as well.

The court did all it could to explain why ‘third gender’ needs to be recognized in order to safeguard the fundamental rights of the transgenders. The court said that, over the years, it has read various rights into the right to life under article 21 such as right to food, right to education, right to pollution free water, right to know, right to speedy trial etc. I agree with the court’s reasoning that constitutional problems cannot be studied in a socio-economic vacuum, since socio-cultural changes are the source of the new values, and sloughing off old legal thought is part of the process the new equity-loaded legality. It is very important to understand that Article 21 guarantees enjoyment of life by all citizens of this country with dignity.

There are many people in our society who treat transgenderism as a disease or an illness. Previously, Gender Identity Disorder was thought to be an illness. However, the current trend suggests that it is no longer recognized as a disorder by the medical communities of a vast number of countries. Medical Communities and governments of various countries have issued clarifications that transsexualism is not a mental illness. It is a benign normal variant of the human experience akin to left-handedness.

This reminds me of the Buck v. Bell Judgment. In that case, Justice Oliver Wendell Holmes (A man who once said "the life of the law has not been logic; it has been experience") permitted forced sterilization on the premise that an offspring of a mentally retarded will also be a mentally retarded person. When Buck v. Bell verdict came, it was hailed as a progressive and a modern judgment. But, today we know that it was not a progressive judgment. Being disabled is not a disease and Right to bodily Integrity is one of the basic human rights that everyone has. One century’s magic is next century’s science.

In the next and final post, I will share my opinion relating to the directions passed by the Court in this judgment.