Third, but not insignificant

The Supreme Court in National Legal Services Authority vs Union of India, in a  sweeping, rights-affirming judgment for the first time in its institutional history, recognised that transgender persons are full and equal citizens of India. By rendering this historic verdict, the Supreme Court seeks to transform the lives of those on the fringes of Indian society and in the process give new meaning  to the Constitution. 

To get a sense of how revolutionary the judgment is, one has only to note that historically the transgender community has been at the receiving end of brutal violence and sexual abuse. They have been treated by the legal system as non-citizens who were not entitled to possess identity documents which were congruent with their chosen gender. This history of discrimination and violence was coded into law in the form of the Criminal Tribes Act introduced by the British under which the ‘eunuchs’ were considered a social group who were criminal. The transgender population has also been subjected to a history of violence under Section 377 of the IPC. 

This community which has been reviled and shunned both by society and by the law has for the first time been granted recognition by law. The Supreme Court has affirmed and clarified that the right to recognition before the law is  a basic right which cannot be denied to citizens merely because their chosen gender does not match their physical appearance. 

The Supreme Court has laid down that transgender persons are entitled to be recognised as persons before the law as men, women or third gender. In this key operative part of the order, the judgment is ahead of progressive laws from around the world as it basically allows transgenders to self-determine what their identity may be. 

Thus a person born a man could in accordance with his ‘ deeply felt sense of gender’ decide to identify as a woman or as a third gender, with both choices being valid and legal. In other parts of the world like the UK, Argentina and Germany a transgender person has only the choice of transitioning from female to male or male to female. The third gender is not an option.

In yet other parts of the world such as Pakistan and Nepal, the court recognises what it calls the rights of the third gender. However, the Indian Supreme Court in a historic first, takes the principle of self-determination of gender to its logical end by noting that persons can identify as either male, female or third gender. By doing so it recognises the complexity of gender identity and makes space for a  range of possible ways of identifying oneself.

What constitutes the sympathetic heart of the judgment is the deep internalisation by the Court of what gender identity is and what it means for those who have to live their lives with a different gender identity. By skilfully weaving in the narratives of pain, loss and hope of those who do have a different gender identity, the Court exhibits a deep empathy for the needless suffering inflicted on transgender persons.  

Basing itself on an empathetic reading of the plight of the transgender person,  the judgment puts in place a comprehensive regime of rights. The constitutional framework was applied for the first time to the transgender community and the right to live with dignity, the right to equality and the right to freedom of expression were seen as inalienable rights which could not be denied to transgender persons. 

Perhaps, the most remarkable of the articulations of the Court was the expansive reading of the freedom of expression in Article 19(1) (a) which the Court read to include the freedom to express one’s self-identified gender through, ‘dress, words, action or behaviour’. By doing so, the Court recognised  that expressing one’s gender identity was as valuable a part of freedom of expression as was the right to freely express one’s opinions, thereby giving a new dimension to this right. 

By emphasising freedom of expression, the Supreme Court also recognised that this right was organically linked to the core freedom under Article 21, namely the right to personal liberty. The right to life with dignity included the freedom to make ‘decisions about their life, to express themselves and to choose which activities to take part in’. 

The Court also clearly noted that discriminating against a person on grounds of gender identity was prohibited under Article 15 and violated Article 14. This leads to the conclusion that transgenders are a ‘socially and educationally backward class’ and are entitled to the benefits of affirmative action as well.  The state is thus mandated to ensure equality by implementing affirmative action policies for those who have been historically marginalised on grounds of their gender identity. 

As wide as the charter of rights articulated in the NALSA judgment is the limitation that it does not include the right of transgender persons to form intimate attachments with those of their choice. These choices run afoul of Section 377. Even more egregious is the fact that Section 377 authorises violence and discrimination which threaten the right to life with dignity of the transgender population. However, this is a limitation the judges are not able to directly question as they are bound by the decision of the Supreme Court in Koushal which affirmed that Section 377 is Constitutional.

Unless this roadblock is cleared and the Court re-looks its decision in Koushal, the right to life with dignity will continue to be in peril for transgender people as well as gay, lesbian and bisexual persons. 

Koushal by consciously ignoring the rights of  miniscule minorities, sets in place a dangerous precedent for a constitutional democracy like India. One hopes that it is NALSA and not Koushal which becomes a road map to the future. The message of the NALSA judgment, that the promise of the Constitution must reach out to even the smallest minorities, must be heeded. It is only then that  we will begin to embrace the true meaning of what it means to be an egalitarian democracy.

The author is a lawyer with the Alternative Law Forum