Landmark ruling

The Supreme Court’s judgement giving full recognition to transgender persons as a separate third gender category is a landmark decision. It legally accepts transgenders as equal citizens and prescribes a number of practical measures to help them secure their rights.

Their human rights and civic and political rights will be protected by the judgement, which may also be seen as a forceful endorsement by the court of the rights of minorities of all types. The transgender community has been fighting a long battle, in courts and outside, to secure equal rights and fair treatment.

The government and the Election Commission had created categories in official forms to recognise the citizenship status of transgenders but had stopped short of giving them full justice. Now they will be able to record their gender in documents like passports, driving licences, ration cards and electoral rolls. The judgment has clearly created a constitutional and conceptual basis for their full and equal status.

An important observation made by the court is that it is an individual’s right to choose his own gender identity. This is a right of self-expression that goes beyond assumed biological stereotypes and conforms to the new thinking about gender freedom.  India had lagged behind other countries in legally accepting the right of transgenders to declare their identity.

Neighbouring countries like Pakistan, Bangladesh and Nepal have already done this. The judgment also gives hopes for a reversal of last year’s judgement by another bench of the court upholding the validity of the archaic Section 377 of the penal code which criminalises homosexuality. The idea of choice of gender identity which the court has now accepted will be complete only when the choice of sexual orientation and the citizen’s right to it are also accepted.

The court’s directive to the Central and state governments to give the transgender community priority and special facilities in  areas of education, employment and health and to consider it socially and economically backward for purposes of reservation should help the members to improve their opportunities. It also marks a change from the common notion of only caste as a criterion of backwardness.

But it should be noted that a legal acceptance of rights alone will not improve their status. An entrenched tradition of stigma, social exclusion, discrimination and harassment will take time to change. The judgement will hopefully create better awareness, remove the prejudices and help to integrate transgenders into the mainstream.