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SC landmark transgender judgment: What it says, what is good and what it muddled up

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Binary Gender: a traditional and outdated view of gender, limiting possibilities to “man” and “woman”

Binary Sex: a traditional and outdated view of sex, limiting possibilities to “female” or “male”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