In a historic decision, a two-judge bench of the Supreme Court of India, ruling on a petition brought by the National Legal Services Authority on behalf of members of the transgender community, has declared that among the human rights protected by the Indian Constitution are the rights of individuals to State recognition of their gender identity and sexual orientation, and to be free of official discrimination on these grounds. The original petitioner was joined by several others, resulting in a consolidated decision issued on April 15, 2014. Although the petition was brought specifically to gain redress from the outcast status of transgender people in India, the court’s expansive language appeared to take in as well, at least to some extent, the social inequities endured by gay people.
The court mentioned in passing the recent ruling in the Naz Foundation case, rejecting a constitutional challenge to Section 377 of the Indian Penal Code, which criminalizes gay sex, but said it was expressing no opinion on that issue “since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.” A different panel of the court recently signaled willingness to examine a “curative petition” that had been filed by the government in the Naz Foundation case, so it is possible that a new opinion may issue on the sodomy law question. If it is consistent with the ruling in this case, it would be a reversal of the retrogressive opinion from the other panel.
Each of the judges sitting on this case – Justice K. S. Radhakrishnan and Justice A.K. Sikri – wrote an extended opinion, although Justice Raqdhakrishnan’s far longer opinion set forth historical background and a thorough review of the treatment of transgender and gender identity issues in the statutes and court rulings of other English-speaking countries. After reviewing the various forms of discrimination and exclusion that transgender people suffer in India, Justice Radhakrishnan wrote, “Discrimination faced by this group in our society is rather unimaginable and their rights have to protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. Rights of transgenders, pure and simple, like Hijras, eunuchs, etc., have also to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity.”
Interestingly, the court came to this conclusion — that some individuals are entitled to be recognized under the law as other than male or female, or “third sex” — just shortly after Australia’s highest court came to the same conclusion, allowing an individual who identified as neither male nor female to have an official gender identity of “not specified.” Evidently the recent Australian high court ruling came too late to be included in this opinion, but the court did cite to an earlier ruling in that case by the New South Wales Court of Appeal from 2013, whose ruling the Australian high court had affirmed to this effect.
The court took particular note of legislation in the U.K., Australia and other places by which those governments had adopted a formal mechanism for dealing with issues of gender identity, and especially changes of status sought by individuals who did not identify with the gender they were assigned at birth based on their genitals. The court quotes at length from the 2013 amendment enacted by Australia to address discrimination on the ground of sexual orientation, gender identity, or intersex status, and in passing regretted the lack of such legislation in India, leaving it to the courts to ensure that transgender individuals can enjoy full legal and social equality.
Perhaps the most fascinating part of Justice Radhakrishnan’s opinion is a brief review of the history of transgender people in India, where it seems they had a rather exalted status prior to the British colonial period, with its introduction of the sex-negative baggage of 19th century British imperial jurisprudence, leaving behind the unfortunate legacy of Section 377 that has lingered throughout the former British colonies.
After finding that international conventions and norms of gender equality provide the appropriate reference for dealing with the petitions in this case, the court argued that the absence of suitable Indian legislation left it open to the court to “respect the rules of international law,” but the court also found several Indian constitutional provisions to be sources of authority upon which to draw. “Article 14 of the Constitution of India states the State shall not deny to ‘any person’ equality before the law or the equal protection of the laws within the territory of India,” wrote Radhakrishnan. “Article 14 does not restrict the word ‘person’ and its application only to male or female,” the judge continued. “Hijras/Transgender persons who are neither male/female fall within the expression ‘person’ and, hence, [are] entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.” Furthermore, “Non-recognition of the identity of Hijras/Transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police.” The court concluded, “Discrimination on the ground of sexual orientation or gender identity, therefore, impairs equality before law and equal protection of law and violates Article 14 of the Constitution of India.”
The court also found a violation of Articles 15 and 16, which enumerate forbidden grounds for discrimination, including “sex.” Without noting the source, the court then described a mode of analysis — sex stereotyping as sex discrimination — similar to that adopted by the U.S. Supreme Court in 1989 in the Hopkins case, which has since been embraced by the U.S. Equal Employment Opportunity Commission in its ruling that discrimination because of gender identity is a form of sex stereotyping contrary to the requirements of modern sex discrimination law. Indeed, going further beyond where the EEOC has gone, the court wrote, “State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights.”
“Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation, and, therefore, it will have to be protected under Article 19(a)(a) of the Constitution of India,” wrote the judge. “A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, there, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the Transgender community under Article 19(1)(a) of the Constitution of India and State is bound to protect and recognize those rights.” The court also found protection for transgender rights in Article 21, an analogue of the U.S. Due Process Clause, which has been held to protect the dignity of the individual, just as the U.S. Supreme Court held last year in U.S. v. Windsor that the Due Process Clause of the U.S. 5th Amendment protects the dignity of married same-sex partners.
Finally, Justice Radhakrishnan focused on the “third gender” individuals who do not identify as male or female, asserting that the government must respect their gender identity as well and adapt policies and official forms to acknowledge the existence of third gender individuals. “Article 14 has used the expression ‘person’ and Article 15 has used the expression ‘citizen’ and ‘sex’; so also Article 16. Article 19 has also used the expression ‘citizen.’ Article 21 has used the expression ‘person’. All these expressions, which are ‘gender neutral’, evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender.”
“We therefore conclude,” wrote Radhakrishnan, in a point on which Justice Sikri stated full agreement, “that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restrict or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.”
Justice Sikri’s opinion focused on the development of international human rights principles and their application to the question before the court, observing that “there is thus a universal recognition that human rights are rights that ‘belong’ to every person, and do not depend on the specifics of the individual or the relationships between the right-holder and the right-grantor.” Just as they are “not granted by the people, nor can they be taken away by them.” And, “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 to his/her personality and is one of the most basic aspects of self-determination, dignity and freedom.”
After the two separate opinions, the justices joined in a declaration binding the State to recognize transgender and third gender individuals, to protect them from discrimination and take affirmative steps to improve their conditions and opportunities. Among other things, they directed the government to “provide them separate public toilets and other facilities.” There is a practical solution to the question frequently raised in gender identity discrimination debates – the restroom question. The Indian Supreme Court says we should abandon the shackles of binarism when it comes to public facilities. The court noted that the government had already established an Expert Committee “to make an in-depth study of the problems faced by the Transgender community and suggest measures that can be taken by the Government to ameliorate their problems and to submit its report with recommendations within three months of its constitution.” The Court stated that those recommendations should “be examined based on the legal declaration made in this Judgment and implemented within six months.”
The court singled out for particular commendation in its decision the “learned senior counsel” who presented the case for the Petitioner National Legal Services Authority, Shri Raju Ramachandran, and lead counsel for the other intervening parties, Shri Anand Grover, Shri T. Srinivasa Murthy, and Shri Sanjeev Bhatnagar. The court noted appearances of counsel for the government, who informed the court about steps the government was already taking to address the issue, which led to the court’s concluding deadline for implementation of such a process.