Transgenders and Right to Equality – My Opinion (Part VI)

Yin-Yang-Yuan Butterfly Triality

I personally feel that it is a very welcome verdict by the Supreme Court of India. Transgenders have always existed in the Indian society. It is not surprising that reference to the Transgenders has been made in various mythological texts and religions. In fact, if we look at history, transgenders were never a problem to the society. They were and are normal human beings. The real deterioration in the perception of common people towards the transgenders came when the British came to India and enacted the Criminal Tribes Act, 1871. This institutionalizing of the criminality of transgenders has played a major role in the long term decline of living standard of the transgenders. Today, the situation is such that a lot of people treat them as untouchables.

Coming to the verdict of the Supreme Court, one of the main issues before the court was that of the fundamental rights of the transgenders. This post is in no way a summary of the Supreme Court Judgment on the Transgenders. The views presented here are my own. For more information on the judgment you can visit the other posts on this blog (Part I, Part II, Part III, Part IV and Part V). I will try to dissect my reasoning article-wise.

1. Article 14- It is a known fact that access to Public Toilets is a major problem faced by the transgenders. Institutionalizing the concept of ‘third gender’ will definitely go a long way in addressing this problem. Once people start accepting that there is a ‘third gender’ and start looking beyond the common and traditional notion of duality (male and female), things will definitely improve in the long run for this community. Now, apart from access to public toilets, transgenders definitely face discrimination in the fields of employment and healthcare. If they write their gender as male, it is often contested that they are female or vice versa, the result being that transgenders are unable to avail the benefit of employment or healthcare. Article 14 definitely gets invoked here. State cannot discount a particular class of persons by excluding their gender. The least the state could is to recognize them and that is exactly what the Supreme Court has said in this case.

2. Article 15- With respect to Article 15, the main question before the court was as to what constitutes ‘sex’. It is important to understand the concept of Gender Identity and Sexual Orientation before appreciating the answer to this question as given by the court.

A person’s sex is usually assigned at birth but some people are born with both or certain aspects of both male and female physiology. Even genital anatomy becomes hard to differentiate in some of these cases. Also, the innate perception of such people about themselves, is not in conformity with the sex assigned to them at birth. Gender identity refers to an individual’s self-identification as a man, woman, transgender or other identified category. Some people go for Sex Reassignment Surgery to realign their gender characteristics of the sex which conform to their own perception of gender.

On the other hand, Sexual Orientation simply refers to an individual’s enduring physical, romantic and/or emotional attraction to another person. Thus, even though Gender Identity and Sexual Orientation are conceptually different, they are more like two sides of the same coin. Both, Gender Identity and Sexual Orientation are integral to our personality and it definitely forms one of the most basic aspects of self-determination, dignity and freedom of an individual. No one should be forced to undergo Sex Reassignment Surgery or other such invasive medical procedures to change their sexual orientation or gender identity.

With this, the court said that 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. I fully subscribe to and endorse this reasoning. The concept of Gender Identity and Sexual Orientation has to be read with while construing the meaning of ‘sex’ for the purposes of article 15. Interpreting ‘sex’ in isolation and without taking into account, the basic physiological, psychological and biological factors relating to sex, is definitely a futile exercise. I am glad that the court did not adopt such reasoning.

3. Article 16- The petitioners in the present case showered various data and statistics that presented the dreadfulness and destituteness of the conditions in which transgenders are living. It clearly showed that Transgenders are a socially and educationally backward class. Hence, asking the government to extend reservation to them was definitely not overarching or overstepping by the Judiciary into the Executive’s domain. The transgenders have long been neglected. Subsequent governments simply maintained the status quo and did nothing for their upliftment. If it is proven that transgenders are a socially and educationally backward class, I do not see any harm in extending reservation to them. This becomes more relevant in the light of the fact that in all these years, government has done nothing for them. Action on the part of the Judiciary in this regard was definitely called for.

I do not wish to make this a very long post so that people might find it tiresome to read. Rest of my opinion on this verdict will be given in the next post. Till then stay tuned.