By recognising the transgender community as a third gender entitled to the same rights and constitutional protection as all other citizens, the Supreme Court has put in place a sound basis to end discrimination based on gender, especially gender as presumed to be assigned to individuals at birth. Further, beyond prohibiting discrimination and harassment, the Court has extended global principles of dignity, freedom and autonomy to this unfairly marginalised and vulnerable community. The verdict lays down a comprehensive framework that takes into its fold not merely the negative right against discrimination, but also “the positive right to make decisions about their lives, to express themselves and to choose which activities to take part in.” In particular, its direction that they should be treated as ‘socially and educationally backward’ and given reservation in education and employment, is a far-reaching contribution to their all-round development. The jurisprudential basis for the judgment is that sex identity cannot be based on a mere biological test but must take into account the individual’s psyche. The Court has noted that Indian law treats gender as a binary male/female concept, with sections of the Indian Penal Code and Acts related to marriage, adoption, divorce, succession, and even welfare legislation, being examples. The Court has also relied on the Yogyakarta Principles — norms on sexual orientation and gender identity evolved in 2006 at Yogyakarta in Indonesia — to bolster its reasoning.
The separate, but concurring, opinions of Justice K.S. Radhakrishnan and Justice A.K. Sikri contain some subtle criticism of the Supreme Court’s earlier ruling in Suresh Kumar Koushal upholding Section 377 of IPC that criminalises even consensual same-sex activity. While conscious that they cannot depart from the ruling of a Division Bench, both Judges have highlighted the fact that misuse of Section 377 is one of the principal forms of discrimination against the transgender community. By noting that Section 377, despite being linked to some sexual acts, also highlights certain identities, Mr. Justice Radhakrishnan sees a link between gender identity and sexual orientation, something that the Koushal formulation missed when it concluded that the provision criminalised the act and not any identity or orientation. The sentence that transgenders “even though insignificant in numbers… have every right to enjoy their human rights” is a fitting rebuttal to the claim in Koushal that because the LGBT community is a minuscule minority, it could not be held that the Section is invalid. Constitutional protection ought to be made available to a particular group regardless of its size. The verdict on the transgender community now provides one more reason why Section 377 ought to be amended to de-criminalise gay sex.