The Union Social Justice Ministry’s >move to seek clarifications and modifications to the Supreme Court’s April 15, 2014 judgment that directed that the transgender community be formally >recognised as the ‘third gender’ and accorded backward class reservation in education and employment has some validity, but it also indicates some misunderstanding of the landmark ruling. The Court had directed that the recommendations of an expert committee, formed earlier to study the problems of the transgender community, be implemented within six months in the light of its legal declaration. The government now says the committee had submitted its report on January 27 itself — months before the verdict — and that it would require more than six months to implement the recommendations. The Court would have noted its contents, more crucially, the panel’s comprehensive definition of ‘transgender’ in a manner that would not leave out anyone from that marginalised section, had it been brought to its notice in time. The Ministry has also sought to make an issue out of some observations regarding ‘transgender’ being used as an umbrella term to include lesbian, gay and bisexual individuals too. The government is right when it says giving a wider sense to the term ‘transgender’ may create needless complications, but it has failed to note that the judgment unequivocally states, not once but twice, that it is restricting itself to hijras and other variants of the term, excluding categories such as lesbian and gay.
The judgment essentially dealt with two major aspects — one, that gender identity is not a mere binary concept; and two, that a section of society is vulnerable to discrimination based on apparent non-conformity to such a binary notion of gender as well as sexual orientation. In principle, it has made non-discrimination against the entire marginalised community a constitutional norm. The Ministry may require some more time or feel entitled to a clarification or two, but it is difficult to believe that it finds the references to the LGBT community and the term ‘eunuch’ in the judgment to be major obstacles to complying with the directions. Also, it has raised a doubt whether transgenders can be straightaway declared backward when such classification is within the province of the National Commission for Backward Classes. This is hardly an insurmountable difficulty. The Commission may be approached for such an enquiry and recommendation, as the reasons to consider them backward are already set out in the judgment. The clarification petition may be an opportunity for the Court to marry its own legal declaration with the expert panel’s conclusions so that the transgender community gets the constitutional relief it is entitled to.