Happenings, Apr '14 (update 2)
The judgment was pronounced in National Legal Services Authority (NALSA) Vs. Union of India and Others [Writ
Petition (Civil) No. 400 of 2012 (‘NALSA’)] by a Division Bench of Justices K. S.
Radhakrishnan and A. K. Sikri. Filed in September 2012 by NALSA, the writ
petition had sought several directions from the Supreme Court, including
granting of equal rights and protection to transgender persons, inclusion of a
third category in recording one’s gender or sex in identity documents like the voter
identity card, passport, driving license and ration card, and for ensuring no
denial of admission of transgender persons into institutions like schools,
colleges and hospitals. Lawyers Collective had filed an intervention on behalf
of co-petitioner Laxmi Narayan Tripathy, a Hijra activist.
Significantly, the Supreme Court also
declared that no one can be discriminated against on grounds of sexual
orientation (which is about one’s sexual and romantic attraction, that is, which biological sex or gender one is attracted to).
Quite expectedly, the Supreme Court’s verdict was greeted with joy and celebrations among the queer communities and their allies throughout India. After the Section 377 letdown, this development was a welcome relief. But along with a sense of elation was the worry about how the Supreme Court’s verdict would be implemented on the ground. Fortunately, some headway was already made in this regard. Based on advocacy carried out by queer activists in the last few years, in August 2013, the Ministry of Social Justice and Empowerment in collaboration with several civil society organizations and individual activists set up an Expert Committee to assess and document the health and development concerns of transgender communities. The committee submitted its report to the ministry in January 2014 with recommendations that could help actualize the Supreme Court's directions.
A community event organized by several
civil society organizations and individuals working on gender and sexuality in
Kolkata on April 16, 2014 to protest gender-based violence half turned into a
celebration of the Supreme Court verdict. The event, organized on a roadside in
the Kadapara area near Swabhumi, witnessed a street play Ichhe Dana performed
by members of Amitie’ Trust and speeches by a number of queer and women’s
rights activists, lawyers and other supportive individuals. Among the speakers
were Saswati Ghosh from Nari Nirjatan Pratirodh Mancha; lawyer Kaushik Gupta;
Indrani Kar, a gender and sexuality activist; Minakshi Sanyal from Sappho for Equality;
Suchandra Ganguly from Civilian Welfare Foundation; and Dr. Santosh Giri from
Kolkata Rista.
Speaker after speaker emphasized the point
to an audience of 60-70 people, including a number of passersby, that the
Supreme Court verdict meant that transgender people in India now had a tool in
their hands to demand equality and respect from the public at large and
institutions engaged in health services, education or other developmental
activities. In an evocative speech, Minakshi Sanyal said that it would take
time, but eventually society would learn to shed its inhibitions and treat
transgender persons as any other individual.
Pawan Dhall aspires to be a rainbow
journalist and believes in taking a stand, even if it’s on the fence – the view
is better from there!
Madhuja Nandi is a trans woman with 17
years of experience as an LGBT activist.
Pawan Dhall and Madhuja Nandi report on the
historic Supreme Court verdict on transgender identities and rights, and
happenings around the verdict
Kolkata, April 16, 2014: Bengali New Year
day on April 15, 2014 lived up to its ‘new’ factor in true spirit of the word
when the Supreme Court of India declared that every citizen of India had the
right to determine and express their gender, even if it was beyond the binary
of man and woman. According to a media release issued by human rights agency Lawyers Collective, in a path-breaking judgment, the Supreme Court affirmed the
constitutional rights and freedoms of transgender persons, that is, those who
identify with a gender different from their biological sex (for example, a
person assigned male at birth who identifies as a woman or vice versa) as well
as those who do not identify as either man or woman but as ‘third gender’ (for
example, a Hijra person).
 |
| A community event in Kadapara area of Kolkata on April 16, 2014 celebrates the Supreme Court verdict. All photo credits: Pawan Dhall |
The judgment’s reasoning rested on two
broad strands of human rights – freedom and equality. Underscoring the right to
personal autonomy and self-determination under Article 21, the Supreme Court
observed that “the gender to which a person belongs is to be determined by
the person concerned”. The decision recognises the right of a person to
identify in the gender that they relate to, that is, male, female or third gender,
irrespective of medical or surgical intervention by health care providers and
the family members of the person to assign them a particular gender at any
point of time in their life.
The Supreme Court also protected one’s
gender expression by invoking the freedom of speech and expression under
Article 19(1)(a) and held that “no restriction can be placed on one’s personal
appearance or choice of dressing, subject to the restrictions contained in
Article 19(2) of the Constitution”. In addition, the Supreme Court firmly
secured the right to equality and equal protection for transgender persons
under Articles 14, 15 and 16 by prohibiting discrimination on the grounds of
gender identity. It broadened the scope of the term ‘sex’ in Articles 15 and
16, which till recently meant biological sex of male and female, to include
‘psychological sex’ or ‘gender identity’.
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| Madhuja Nandi narrates her struggles and successes as a trans woman at the Kadapara community event |
Freedom and equality were further
strengthened by the Supreme Court’s observations on dignity, privacy,
personhood and the free spirit of the human being, which are necessary for the “human
personality to flower to its fullest”. The verdict emphatically noted that
dignity could not be realized if a person was forced to grow up and live in a
gender that they did not identify with or relate to. This was in sharp contrast
to the Supreme Court’s earlier verdict in December 2013 on Section 377 of the
Indian Penal Code where it upheld the constitutionality of Section 377, in
letter criminalizing non penile-vaginal sexual acts irrespective of sexual
orientation or gender identity, but in spirit or actual impact criminalizing the
very personhood of lesbian, gay, bisexual, transgender and other queer persons.
The implications of the NALSA judgment
are far-reaching. With legal status accorded to identifying with a gender of
one’s choice (man, woman or third gender) irrespective of one’s biological sex,
a person’s sense of gender can now match their official gender identity,
without any certificate from a doctor or proof of having undergone sexual
reassignment surgery (SRS), as the Supreme Court clarified that “any insistence
for SRS for declaring one’s gender is immoral and illegal”.
The decision will go a long way in stopping
inhuman police practices of stripping, feeling up breasts and genitals and
subjecting transgender persons to intrusive body searches or medical
examination to ascertain their gender. Discrimination in the areas of public
employment, health care, education and access to services will be open to
challenge and redress. Trans women (males who identify as women) may be able to
seek protection under gender-specific laws for women. Affirmation of gender
identity by the highest court in the land may also lead families to embrace
gender non-conforming members.
See
inset for the Supreme Court’s declaration and series of directions given to the
central and state governments for action within six months.
Quite expectedly, the Supreme Court’s verdict was greeted with joy and celebrations among the queer communities and their allies throughout India. After the Section 377 letdown, this development was a welcome relief. But along with a sense of elation was the worry about how the Supreme Court’s verdict would be implemented on the ground. Fortunately, some headway was already made in this regard. Based on advocacy carried out by queer activists in the last few years, in August 2013, the Ministry of Social Justice and Empowerment in collaboration with several civil society organizations and individual activists set up an Expert Committee to assess and document the health and development concerns of transgender communities. The committee submitted its report to the ministry in January 2014 with recommendations that could help actualize the Supreme Court's directions.
On the other side of the coin, critical
voices were also heard and as the initial euphoria around the judgment dies
down, they would only get stronger. Sample a few questions doing the rounds on
Facebook and in queer circles: Who exactly would be in charge of implementing
the verdict? Are more reservations really the answer? Didn’t the Supreme Court
contradict itself through contrasting stands on Section 377 and the NALSA
petition? In the first it criminalized queer people (including transgender
persons) on grounds of their sexual preferences and in the second it stated
that sexual orientation and gender identity couldn’t be grounds for any
discrimination! Equally, why did the Supreme Court stop short of throwing open
the gender option even further – what if some people did not identify as either
man, woman or third gender?
 |
| Street play Ichhe Dana depicted the day-to-day violence faced by transgender people |
 |
| A section of the audience at the community event in rapt attention |
In
the meantime, as a queer activist pointed out at the event, the media needs to
get its act together and not confuse itself and the public on what transgender
as a term means and the diversity that it encompasses of people whose gender does
not match the usual definitions of man or woman.
Please visit this link for an explanation of
what ‘transgender’ means and the health and development concerns of transgender
people in India: http://socialjustice.nic.in/pdf/introduction.pdf
(introduction to the report submitted by the Expert Committee to the Ministry
of Social Justice and Empowerment)
Videos of short interviews with members of
the audience at the community event in Kadapara, Kolkata mentioned above can be seen
here:
1. Parvati Giri, mother of transgender
activist Dr. Santosh Giri, speaks about her relationship with her ‘son’: https://www.facebook.com/photo.php?v=10203599171802558&set=o.522633814515580&type=2&theater
2. Koel Chatterji, an entrepreneur, speaks
about her opinion on the Supreme Court NALSA judgment: https://www.facebook.com/photo.php?v=10203599256124666&set=o.522633814515580&type=2&theater
3. A child who lives in the Kadapara area
airs his views about transgender people: https://www.facebook.com/photo.php?v=10203599307605953&set=o.522633814515580&type=2&theater
All video credits: Madhuja Nandi and Pawan
Dhall
Amazing.
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