Nalsar Hyderabad student Anindita Mukherjee analyses today’s Supreme Court judgment recognising the “third gender” and points out what the apex court may have missed.

The Supreme Court’s decision in National Legal Services Authority v Union of India and Others, reserved for judgement in November 2013, has been awaited as an opportunity for the Court to revisit the manner in which we think of gender and demolish the binaries in which gender identity is conceived and discussed.

However, with Suresh Kumar Koushal and Another v Naz Foundation and Others upholding Section 377 of the Indian Penal Code using the shoddiest legal reasoning possible, and the review petition in the case being dismissed, it became increasingly difficult to hope for a strong challenge to heteronormativity from the Supreme Court. In such a climate, one has reason to bask in the warmth of a clearly empathetic judgement, which unambiguously recognises and seeks to remedy the exclusion caused by the male-female categorisation that pervades law and society. 

It is clear, from the sources referred to and the general tone of the judgement, that the Bench was gunning for an interpretation that did justice to the petitioners before it.

Having noted that there exists a legal vacuum on the subject, the Court cited Vishaka and Others v State of Rajasthan and Others, Geeta Hariharan v RBI, etc. to insist that our international obligations under the ICCPR, as well as the Yogyakarta Principles must inform Constitutional interpretation in this case.

On the question of equality, the Court held that, while Article 14 of the Constitution (equality before law) mandates, gender neutrally, that no person shall be denied equality before the law or equal protection of the law, facts indicate that the non-recognition of trans* identity has caused trans* persons to perennially be denied equal protection of the law.

The discrimination faced by trans* persons in all spheres of life, as well as their vulnerability to harassment and violence are in stark contravention of their right to equality.

Some terms and definitions:

Binary Gender: a traditional and outdated view of gender, limiting possibilities to “man” and “woman”

Binary Sex: a traditional and outdated view of sex, limiting possibilities to “female” or “male”

Cisgender: a description for a person whose gender identity, gender expression, and biological sex all align

Fluid(ity): generally with another term attached, like gender-fluid or fluid-sexuality, fluid(ity) describes an identity that is a fluctuating mix of the options available (e.g., man and woman, gay and straight)

Third Gender: (1) a person who does not identify with the traditional genders of “man” or “woman,” but identifies with another gender; (2) the gender category available in societies that recognize three or more genders

Transgender: a blanket term used to describe all people who are not cisgender; encompasses many identities - transsexual persons, gender queer persons, cross-dressers, persons belonging to certain cultural communities like hijras, kothis, etc.

Transsexual: a person whose gender identity is the binary opposite of their biological sex, who may undergo medical treatments to change their biological sex, often times to align it with their gender identity, or they may live their lives as the opposite sex 

Intersex: a person with a set of sexual anatomy that doesn’t fit within the labels of female or male (e.g., 47,XXY phenotype, uterus, and penis)

Source: Itspronouncedmetrosexual

Recognising the fact that gender expression is an integral part of a person’s identity, the Court also emphasised the need to guarantee the freedom of speech and expression to all trans* persons.

Most importantly, the judgement, following the line of reasoning taken by the Delhi High Court in Naz Foundation, states categorically that Article 21 (protection of life and personal liberty) protects each person’s right to dignity and personal autonomy, and gender identity falls squarely within this protection.

Murky

Having dealt with Articles 14, 19 (freedom of speech) and 21 in a relatively unproblematic manner, the judgement wades into murky water with Articles 15 (discrimination on grounds of religion, race, caste, sex or place of birth) and 16 (equality of opportunity in public employment).

The legal difficulty arises due to the wording of the provisions, which use sex not gender as prohibited grounds for discrimination.

While Justice Radhakrishnan seems cognisant of the fact that he cannot fit trans* identity unproblematically into the mould of sex, and that gender and sex connote different things, his solution leaves much to be desired.

The judgement asserts that “both gender and biological attributes constitute distinct components of sex.” This runs counter to the reigning understanding of both the terms: sex, as the biological or physiological features of a person, and gender as the socio-cultural construction of what it means to be masculine or feminine.

Similar questions have come up before courts across the globe (given how rare it is that older legislations and constitutions speak of gender) and have been addressed in myriad ways. One route that the Court could have adopted in this instance is the decision in Price Waterhouse v Hopkins (490 US 228 (1989)) where, in order to accommodate a gender related complaint in an anti-discrimination statute that dealt with sex, the US Supreme Court held that discrimination on the basis of sex-stereotyping was prohibited.

Given that much of gender roles are sex-based stereotypes, such a definition has been used successfully, since, by trans* persons to challenge discriminatory practises.

Sikri J: Limits?

While the benefits for the named communities in the judgement are clear (benefits like being recognised as a socially and educationally backward community in order to received affirmative action), for the broader trans* community, the position is somewhat unclear.

Justice Sikri, in his opinion, states that the decision is limited to the communities identified in the judgement (that is, the Hijras, Kothis, Shiva-Shaktis, Aravanis and Jogappas), and any reference to ‘transgender’ is thus restricted to these communities. Through the rest of the judgement, however, ‘transgender’ is used as an umbrella term, and it is hoped, given the tone of the judgement and the fact that Justice Sikri prefaces his opinion by agreeing with everything in Justice Radhakrishnan’s opinion, that the term will be broadly interpreted.

On a more specific concern, Justice Sikri opines that only those individuals who undergo sex re-assignment procedures could seek to have their changed identities recognised by the State.

The operative part of the judgement, however, reads: “[t]ransgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”
It seems that they are, in the second instance, only speaking of intersexed persons as any other reading would pit Justice Sikri’s opinion at odds with the rest of the judgement (which he endorses).

In such a case, the right of other trans* persons (who are born unambiguously sexed but have non-conforming gender identities) to self-identify and be legally recognised without medical intervention is yet uncertain.

377: No comment, of sorts

Interestingly, Justice Radhakrishnan also seems to have done his best to make his stance on Koushal clear, noting that Section 377 has been used to harass trans* persons, and including ‘sexual orientation’ as a prohibited ground of discrimination.

At a more conceptual level, while maintaining that he will not comment on Koushal, he debunks the basis of the decision in a few brief paragraphs.
He recognises the intrinsic link between expression and identity in his discussion on Article 19(1)(a), demolishing the false dichotomy that Koushal played on to argue that Section 377 only punishes an act, not an identity, hence does not fall afoul Article 14.

This is evidently uncharted terrain, for the Court, and discomfiture with language and terminology is evident. I would hope that the future sees greater clarity on matters of gender fluidity. Nonetheless, in refusing to let the Court be a ‘mute spectator’, this decision does much to reinstate one’s belief in the Supreme Court’s ability to care, and to take progressive stances in the face of glaring injustice.

Anindita Mukherjee is a student at Nalsar Hyderabad.

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Like +3 Object -1 Haaaalo 16 Apr 14, 00:08
Great piece, bachcha!
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Like +1 Object -1 Anon 16 Apr 14, 09:29
Nicely written
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Like +2 Object -1 Bruh 16 Apr 14, 16:09
The Supreme Court can't decide for itself if it is homophobic or not.
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Like +1 Object -0 Bruh 19 Apr 14, 22:52
What does this do for trans people who identify themselves as being of the gender opposite to the one assigned by birth?
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Like +1 Object -1 Law School Student 17 Apr 14, 03:35
Sikri, J., basically drew a distinction between people who are considered a third gender and those who have a different sexual orientation. Quoting from the judgement, per Sikri, J.,

". There exists wide range of transgender-related identities,
cultures, or experience –including Hijras, Aravanis, Kothis,
jogtas/Jogappas, and Shiv-Shakthis


Further, Sikri, J., argues that this is a restrictive definition. He does so, in my opinion, because he wants to distinguish those people who are homosexual or bisexual and transgendered. Per Sikri, J.,

"At the outset, it may be clarified that the term ‘transgender’
is used in a wider sense, in the present age. Even Gay, Lesbian,
bisexual are included by the descriptor ‘transgender’.
Etymologically, the term ‘transgender’ is derived from two words,
namely ‘trans’ and ‘gender’. Former is a Latin word which means
‘across’ or ‘beyond’. The grammatical meaning of ‘transgender’,
therefore, is across or beyond gender. This has come to be known
as umbrella term which includes Gay men, Lesbians, bisexuals,
and cross dressers within its scope. However, while dealing with
the present issue we are not concerned with this aforesaid wider
meaning of the expression transgender."

and

"we are restrictive in our meaning which has to be given to TG community
i.e. hijra etc., as explained above."

This is a brilliant judgment, no doubt. But the definition of transgenders remains very very vague.
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Like +0 Object -0 wirefire 17 Apr 14, 07:33
there is definitely a contradiction between the restrictive reading and the broader definition of transgender generally deployed in the rest of the judgment. this is not taking into account when transgender is made to include gays and lesbians (which is a bit ridiculous actually) but other places where it is defined as - "Transgender is generally described as an umbrella term for
persons whose gender identity, gender expression or behavior does not conform to their biological sex." (Radhakrishnan) Or when it includes female to male transgender (para 46), or transgender not limited to hijras, jogappas, kothis etc., or not requiring SRS to establish transgender identity.

Its unclear who the judgment applies to eventually and there seems to be a difference between Radhakrishnan and Sikri's definition of transgender, while the latter's obiter provides a ridiculously large definition but limits it to hijras, aravanis etc. actually and the former gives a clearer definition, the one i've quoted above.
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Like +0 Object -0 Agree 22 Apr 14, 12:37
I agree with their comments on s. 377. We're lawyers here, let's not get emotional. The law criminalizes an act irrespective of gender or sexual orientation. If that law is used to specifically target a certain category of people, that is a law enforcement issue. Misuse of a law like s. 377 does not make it unconstitutional. Separately, s. 377 needs to change because it is outdated, idiotic and archaic, but that is the prerogative of the legislature. The Supreme Court has precious little to do in this case.
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Like +0 Object -1 Anindita 22 Apr 14, 21:38
Or you could try to look at it the other way and figure that the very fact that s.377 does not draw a distinction between consensual and non-consensual sex, makes it an arbitrary criminal law provision (given that the aim of criminal law is to prohibit/prevent some public harm from occurring). Further, the Government's own stance on the objective behind s.377 was that of punishing child sexual abuse (for which there is now a whole legislation--with problems of its own) and public health (which is empirically debunked, as criminalisation has ensured that the most HIV-vulnerable communities have least access to healthcare). Furthermore, with Cooper and Coleman, it is manifest that a fundamental rights challenge simply must also account for the direct effect of the law being in the books--in this case, that is the criminalisation of a certain community's expression of sexuality. It is immaterial that the provision also has certain other effects.
Presuming, of course, that you still believe that Article 14 is not violated by s.377, it is close to impossible to argue that Article 21 is not (and this was not even addressed by the SC) given that the right of an entire community to privacy and life with dignity is compromised by a criminal law provision. Surely you cannot then argue that it's alright to do so, just so long as others' right to privacy and life with dignity too is in a position to be compromised on an equal level because the provision is ostensibly sexuality-neutral!?
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