A two-judge panel of the Supreme Court of India ruled on Tuesday that the country’s constitution and international human rights law demand that the state recognize an individual’s self-identified gender and take steps to address discrimination and harassment of transgender people.
“We … hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community … and the State is bound to protect and recognize those rights,” wrote Justice K.S. Radhakrishnan. In a concurring decision, the other judge on the panel, A.K. Sikri, wrote, “If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral his/her personality and is one of the most basic aspect of self- determination dignity and freedom.”
The judges not only ruled that the government must recognize individuals’ chosen genders on official documents, but also ordered that it allow people to identify as third gender if they feel neither male nor female applies to them. It also ruled that the “State is bound to take some affirmative action for [transgender] advancement so that the injustice done to them for centuries could be remedied,” including access to government benefits reserved for what are known as “socially and educationally backward classes.”
The ruling recognizes a broad diversity under the umbrella of “transgender,” including several communities that have centuries of history in India. This includes hijras, individuals born male who live as women and belong to a community with special initiation rites and social structure; kothis, individuals born male who display a variety of degrees of femininity and may only sometimes dress as women; and devotees of certain religious orders who live outside the gender binary.
The ruling, National Legal Services Authority v. Union of India and Others, comes as LGBT advocates are making one last try to overturn the Supreme Court’s December ruling upholding India’s sodomy law, known as Section 377. They have filed for what is known as a curative petition, asking the Supreme Court’s most senior judges to review the decision that was handed down by a two-judge panel on the grounds that the ruling violated protections for fundamental rights.
The judges in Tuesday’s ruling were very careful to state that they “express no opinion on” the 377 decision in their ruling. However, they invoke many principles to protect transgender rights that the 377 decision rejected as protecting the rights of other gays and lesbians, including the rights to privacy and equality before the law. The decision’s broad language about self-determination and self-expression as fundamental rights that protect transgender people also implies a very different view of the Indian constitution than the ruling in the 377 case, which partly rejected the notion that criminalizing same-sex intercourse was discriminatory against a class of people because “lesbians, gays, bisexuals or transgenders” constitute a “miniscule fraction of the country’s population.”
The judges also declared: “Section 377 … does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offense.”
It is not clear whether Tuesday’s decision will have a direct impact on the 377 case when it comes before the full court. But it could be an avenue for mitigating some of the worst abuses under 377 even if it is allowed to stand. The provision is often used as a pretense for extortion or police abuse of LGBT people, and transgender people are frequently targeted. This ruling would appear to be grounds for challenging this kind of harassment.