Gender identity is one of the most fundamental aspects of life: Supreme Court

Gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transsexual, the Supreme Court said on Tuesday.

“The transgender people, as a whole, face multiple forms of oppression in this country. Discrimination is so large and pronounced, especially in healthcare, employment and education, leave aside social exclusion. Now, it is time for us to recognise the rights of transgenders as a separate category and to extend and interpret the Constitution in such a manner as to ensure a dignified life for them,” observed a Bench of Justices K.S. Radhakrishnan and A.K. Sikri.

“All this can be achieved if a beginning is made with the recognition of transgenders as the third gender. By doing so, this court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to transgenders but also to society as well.”

Expressing its anguish at the plight of transgenders, the Bench said: “Seldom, our society realises or cares to realise the trauma, agony and pain which members of the transgender community undergo.” Nor did it appreciate their innate feelings, especially of those whose mind and body disowned their biological sex. “Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities.”

The Bench said: “Social justice does not mean equality before law on paper but translating the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy, into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the transgenders which legitimately belongs to them.”

The Bench gave a series of directions for enforcement. “Transgender 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 third gender.”

It directed the Centre and State governments to operate separate HIV Sero-surveillance Centres as transgenders faced several sexual health issues. “The Centre and State governments should seriously address the problems being faced by them such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence on Sex Reassignment Surgery (SRS) for declaring one’s gender is immoral and illegal.

The Centre and State governments should provide medical care to transgenders in hospitals and also provide separate public toilets.

The Bench said: “We are informed an expert committee has already been constituted to make an in-depth study of the problems faced by the transgender community and suggest measures that can be taken by the government to ameliorate their problems and to submit its report with recommendations within three months of its constitution. The recommendations [should] be implemented within six months.”

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