A Rainbow of Identities

The SC ruling that recognizes transgenders as a third gender category is historic — if not a little late in the day — but the long struggle for equal rights for all has only just begun
Souzeina S Mushtaq Delhi



At the age of seven, Kajal, 30, realized she was different. Born biologically a boy, and the eldest of three siblings, Kajal says she loved wearing her sister’s frocks. Cast out by her family when she began to dress like girls, Kajal, who had nowhere to go, joined the hijra community. She started dancing at weddings and begging on roads to support herself. She also worked as a sex worker to earn some money.

The Supreme Court judgment on April 15, 2014, which recognized transgenders as the third sex, has come as a huge relief for Kajal. Wearing a heavily-embroidered, jewelry-adorned colourful sari, Kajal said she had mixed feelings. “The judgment has opened one door for us, but there are other doors that need to be opened,” she said, as many in the crowd exchanged greetings, hugging and congratulating each other.

The court, in its ruling,  said that the recognition of transgenders as a third gender was not a societal or medical issue, but a human rights one. Justice KS Radhakrishnan, who headed the two-judge Supreme Court bench, said that society often ridicules and abuses people who do not identify with either fixed genders, and does not realize the trauma, agony and pain that transgender people go through. “Society treats them as outcasts and untouchables, forgetting that the moral failure lies in society’s unwillingness to contain or embrace different gender identities and expressions, a mindset, which we have to change,” the court noted.

Welcoming the judgment, a song-and-dance meet was organized at Jantar Mantar, which saw the participation of many transgender people. Laxmi Narayan Tripathi, a transgender activist, addressed the gathering with a resounding, “Jai Hind. Now India belongs to us as well.” As the crowd swelled to celebrate the LGBT rainbow, Tripathi thanked the Supreme Court for the decision protecting the rights and freedom of all transgender persons in the country.

Prominent human rights lawyer Anand Grover said it was a historic day. “Suppression of transgenders was a loophole in our system,” he said. Swami Agnivesh of the Arya Samaj was also present to lend his support to the community. “We welcome the judgment. It has opened new possibilities and vision for the transgender community and has given a new hope to people,” he told Hardnews.

The writ petition that sought equal rights and protection for transgenders, including the recording of one’s chosen gender identity in documents as well as non-discrimination in employment, was filed by the National Legal Services Authority (NALSA) in 2012. In its judgment, the Supreme Court acknowledged the rights of transgenders under Articles 14, 15 and 16 of the Constitution, which ensure equality and non-discrimination before the law.

Abhina Aher, a transgender activist, said the judgment was a turning point for transgender freedom and equality in India. “It is particularly heartening that the judgment allows people to self-identify as male, female or of a third gender, based on their choice. We feel this ruling will have significant implications for the wider LGBT rights in India,” she said.

Simran Shaikh, another transgender activist, said the judgment had created a new wave. “The mythological reality has been accepted by the court. We are thankful to the SC for giving equal status to us,” said Shaikh, who is doing a PhD on transgender rights.

Calling it a “fabulous decision, and a great step forward for the LGBT community”, Shaleen Rakesh, who manages the ‘207 against 377’ campaign at India HIV/AIDS Alliance, said, “The government needs to decide if all Indians deserve the protections enshrined in our Constitution. The LGBT community must be allowed to enjoy the basic rights of citizenship.”

According to an estimate, India has about two million transgender people who are discriminated against and ostracized by society because of their fluid gender identity; they often live in poverty, making a living through begging, dancing and prostitution.

PUCL (K), in its 2003 report titled “Human Rights violations against the transgender community”, said there is a significant lack of understanding of transgender people as human beings whose lives encompass a complexity that goes beyond the normative correlation between biological sex on the one hand and gender identity and sexual orientation on the other.

Legal scholar Upendra Baxi, in the foreword to the report, said, “The dominant discourse on human rights in India has yet to come to terms with the production/ reproduction of absolute human rightlessness of transgender communities.”

But the Supreme Court judgment has recognized them as citizens of India “who must be provided equal opportunity to grow.” The judges said that the transgender identity should be treated on a par with other minorities officially categorized as “socially and economically backward”, to enable them to get quotas in jobs and education.

Monika Singhal, an advocate with the Supreme Court of India, said the identity of a person is as important as their rights. She called the judgment a “mere recommendation, as the whole process needs the help of legislation to implement”. Singhal has been involved with research on transgender rights and has written extensively on the subject.

This story is from the print issue of Hardnews: MAY 2014