In this election din, between empty slogans and personal slandering, has come one of India’s proudest moments as a nation — one that values equality, justice and freedom of even its most marginalised. On April 15, 2014, >the Supreme Court gave a landmark judgment granting India’s transgender community the right to be recognised as a third gender category. Additionally, it ruled that it was every human being’s right to choose one’s own gender.
Challenging the dominant view With this judgment, the Court has challenged the dominant view of gender identity. In a society that has focused on a binary, this is revolutionary. In this judgment, the court recognises that “individual experience” of gender is one of the most fundamental aspects of “self-determination, dignity and freedom.” Further the judgment relates the right to freedom of expression to one’s right to express one’s self-identified gender. Thus, the idea of gender is transformed from social acceptability to individual choice and experience.
The judgment is significant in many other ways as well. By ending the gender binary, the Court has opened the discussion on the rights of marriage, adoption and inheritance for the transgender community. The judgment also recognises the community’s position as a socially and economically backward category, and directs the state for appropriate affirmative action. More specifically, it directs the state to provide the community access to health services and even separate toilets.
For India’s transgender community, it is their first encounter with equality in a democratic framework. At the same time, this thoughtful, inclusive judgment is significant for all Indians, especially minorities. It comes at a time when India’s political parties are engaged in a vitriolic confrontation over minorities and their rights. The Court’s interpretation — of justice, equality, freedom and dignity and the role of the state — should remind our political class that the rights of Indian citizens, irrespective of gender or sexual orientation, are safeguarded by the Constitution. The judges quote Aristotle, Kant, Rawls and Amartya Sen to create a broader narrative on justice — something extremely relevant to this election.
Despite the euphoria, the judgement is not without problems. A broad sweep of identities neglects many identities. Also, the procedures for implementation lie with the States and the Centre. Interestingly, it also evades extensive comment on Section 377 which criminalises sex between homosexuals, which the judges term as a “colonial legacy.” It remains to be seen how this judgment will interact with the petition on Section 377, to be considered soon. Rationally, it will be difficult to give citizens the right to choose their gender but not the right to choose who they love. The Court’s decision on Section 377 will tell us whether the highest court in the land can live with deeply contradictory ideas of justice, freedom, and equality.
Yet, the process of change will now be irreversible. Just as law can manufacture intolerance, it can also create gradual social acceptance. Social attitudes may not transform overnight but Indian society only needs to look at its own history of inclusiveness. The transgender community was, until the advent of colonialism, a respected section of society. The Hindu Right should note that transgenders are mentioned in the Ramayana, and that it is Ram who gives them the power to bless important occasions such as childbirth and marriage. Also, Shiva’s Ardhanarishwar form is well-known and widely worshipped.
The role of the British The tradition is not limited to Hinduism alone. Islamic, Jain and other cultures have also included the transgender community and other sexual minorities. The famous Sufi saint, Bulle Shah, dressed as a woman to please his master and often danced with eunuchs. Yet all this changed when India was colonised. The Indian Penal Code enacted by the British recognised only two genders, creating a binary that never existed.
Over time, these constructs were absorbed in Indian society. The community has since faced extreme forms of violence for not conforming to socially dictated gender identities. This violence often happens within families and communities, where transgenders face abuse, discrimination, disinheritance and abandonment. This judgment will hopefully begin to alter this in some measure.
Despite its many flaws and the incremental nature of this change, this is a moment of celebration not just for India’s transgender community or its sexual minorities but for all minorities. In a deeply fractured democracy, the Court has safeguarded the right to individual choice and freedom. It is reassuring for every Indian that despite our debasing politics, justice, equality and individual liberty — ideas that define India — will be safeguarded, and the right to choose our identity will go beyond the binary.
(Chapal Mehra in an independent New Delhi-based writer.)