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Posts Tagged ‘transgender rights in India’

Supreme Court of India Eloquently Rules for Gay Rights, Striking Criminal Penalties for Gay Sex

Posted on: September 6th, 2018 by Art Leonard No Comments

The Supreme Court of India ruled on September 6 that the Victorian-era Section 377 of the Indian Penal Code, the ban on “unnatural sex” that has been used to penalize same-sex activity, violates the fundamental rights of LGBT people. Building on a pioneering ruling by the Delhi High Court, and repudiating a decision by a two-judge panel of the Supreme Court that had reversed the High Court ruling, a five-judge panel of the 31-member Supreme Court, led by Chief Justice Dipak Misra, called upon the jurisprudence of numerous other countries to interpret the Constitution of India as a bastion for human rights, locating personal sexual freedom for LGBT people as a fundamental part of such rights.

As is customary in the high courts of British Commonwealth countries, the Supreme Court’s ruling is not embodied by any single opinion. In this case, the five-judge panel produced four substantial written opinions.  Chief Justice Misra’s 166-page opinion was joined in full by Justice A. M.  Khanwilkar.  Each of the other justices on the panel produced their own opinions, amounting in total to an extraordinary outpouring of human rights rhetoric, totaling 495 pages in the pdf file released by the Court.

India did not have any sex crimes statutes before the British colonization of the country beginning early in the19th century, imposing imperial rule atop the existing structure of local governments and eventually insisting that the India enact a Penal Code drafted by British lawyers, modeled on English penal law, itself derived from the sexual prohibitions imposed by the Catholic Church when it was the established English Church prior to the English Reformation during the reign of Henry VIII.

Section 377 of that colonial Code, enacted in 1860, was actually engrafting a foreign legal concept onto Indian society, making it ironic that the present-day defenders of Section 377, pointing to the decriminalization of gay sex in the great western democracies, now protest that the plaintiffs were attempting to impose foreign western concepts of individual sexual freedom on Indian society!

The road to the September 6 ruling was a long one. More than a decade ago, an non-profit AIDS services and advocacy organization, NAZ Foundation, filed a lawsuit in the Delhi High Court, making a powerful argument that the existing sodomy law was an impediment to confronting the AIDS crisis in India.  After lengthy proceedings and much deliberation, the High Court issued its ruling in 2009, finding that Section 377 was inconsistent with guarantees of liberty and privacy in the Indian Constitution.

Unlike the United States, where the right to appeal a trial court ruling is limited to the litigating parties, in India anybody affronted by a court decision can petition to appeal it. The Naz Foundation ruling, greeted by jubilant street demonstrations and waves of LGBT people “coming out” for the first time, provoked the forces of religious orthodoxy in India to file a petition with the Supreme Court.  Interestingly, the government, which had declined all efforts to repeal or modernize Section 377, did not seek the appeal, and was reluctantly dragged into the case.  The Supreme Court normally hears appeals in panels of just two judges.  The appeal seemed to take forever, but it resulted in a ruling in 2014, under the title Koushal v. NAZ Foundation, which reversed the lower court, refusing to invalidate what had become a venerable statute that the new state of India after World War II had deliberately decided to keep, while amending or repeal various other provisions of the colonial penal laws.  The court minimized the significance of what it was doing, by claiming that only a tiny portion of the population identified as gay, so the constitutional claim was trivial, almost beneath the attention of the court.

The ruling threw fear into the LGBT community, as many had come out in reaction to the trial decision, and were worried that they were now open to police harassment, employment and housing discrimination, shunning by their families, and violence on the streets. All of these fears were realized to some extent, but the massive celebrations and new openness of the LGBT community in the wake of the High Court opinion, which was generally well-received in the press, had begun to move public opinion toward more acceptance of LGBT rights.  In fact, the current government, much more conservative than its predecessors on many issues, has not made defending Section 377 a priority.  As attempts were made to get first the two-judge panel and then the larger court to reconsider the Koushal ruling, the government did not spring to defend.  There are various procedural devices in Indian law for seeking review of a Supreme Court ruling, and ultimately what succeeded was a deluge of petitions to the Court from various prestigious groups and famous individuals, putting their reputations on the line.

A panel of the Supreme Court headed by Chief Justice Misra heard arguments in January 2018 about whether to convene an enlarged panel of judges to reconsider the Koushal decision. They were spurred on by other recent developments, including important Supreme Court decisions recognizing the equality rights of transgender people and the privacy rights of all Indians that were put in danger by the government’s adoption of new technology to track the identity of India’s 1.3 billion people.  The privacy decision, by a super-large nine-judge panel of the court, had included biting comments by several of the judges who criticized the Koushal decision as inconsistent with basic precepts of the Indian Constitution.

It was not surprising, when Chief Justice Misra appointed himself to head a new five-judge panel to hear this case, now titled Navtej Singh Johar & Others v. Union of India, that commentators all agreed that the court would definitely overrule Koushal and strike down the application of Section 377 to private, consensual adult sex, and such was the case. The only suspense, after gleeful press reports of the oral arguments held in July, was how wide-ranging the opinion would be.  Indeed, the government pleaded with the court to limit its ruling narrowly to the application of Section 377 to sexual acts, and to refrain from making any rulings about other kinds of anti-LGBT discrimination or same-sex marriage.

It is impossible in the scope of this article to provide extensive discussion of the four opinions. Chief Justice Misra’s opinion is like to be the most quoted and influential, for obvious reasons. Much of it is taken up with a philosophical treatment of the nature of the Constitution of India and theories of constitutional interpretation.  Misra fervently rejects any contention that a Constitution is a static document with a meaning and reach fixed at the time of its adoption.  In sometimes flowery language, he asserts a dynamic approach to constitutional interpretation that requires the courts to take account of changing knowledge and social attitudes, extending the broadly phrased principles of freedom, liberty and equality to ensure maximum protection for individual rights.

He sounds at times like recently-retired U.S. Supreme Court Justice Anthony Kennedy, quoting extensively from the Obergefell (marriage equality) and Lawrence (gay sex) decisions of the Supreme Court, and embracing Justice Kennedy’s favorite term for interpreting the liberty guaranteed by the U.S. Constitution: human dignity. Just as the word “dignity” recurs frequently in Kennedy’s gay rights opinions, Misra uses the term frequently.  For example, he wrote, “we have no hesitation to say that Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizenry, howsoever small.  As sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual, including that of the LGBT, to express their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.”

Misra emphasizes the theme of individual autonomy, just as Justice Kennedy did in striking down the Texas sodomy law in 2003. “The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty,” he wrote.  “When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and the living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.”

The judge took special note of how Section 377 has been oppressive to the transgender community. “We must realize that different hues and colours together make the painting of humanity beautiful and this beauty is the essence of humanity.  We need to respect the strength of our diversity so as to sustain our unity as a cohesive unit of free citizens by fostering tolerance and respect for each others’ rights, thereby progressing towards harmonious and peaceful co-existence in the supreme bond of humanity.  Attitudes and mentality have to change to accept the distinct identity of individuals and respect them for who they are rather than compelling them to ‘become’ who they are not.  All human beings possess the equal right to be themselves instead of transitioning or conditioning themselves as per the perceived dogmatic notions of a group of people.  To change the societal bias and root out the weed, it is the foremost duty of each one of us to ‘stand up and speak up’ against the slightest form of discrimination against transgenders that we come across. Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life – as the herald of a New India – to a more inclusive society.”

One could go on at great length, quoting inspiring language by Misra and his colleagues in their three opinions, but the point is made. This five-judge panel unanimously agrees that constitutional concepts of privacy, autonomy, human dignity and equality are inconsistent with Section 377 as it applies to private, adult consensual activity.  Justice Misra explained that other sections of the penal law, include some recently enacted as part of a more general law reform, have combined to ensure that sexual activity falling outside this protected sphere could be still be prosecuted, especially noting provisions protecting minors from sexual exploitation and clarifying the application of the rape law in a wide range of non-consensual cases than had previously been covered.  Although the court refrained, as requested by the government, from ranging beyond the direct question presented to it, there was language in the opinion which might be exploited later to attached anti-LGBT discrimination and bans on same-sex marriage.

This ruling may have profound consequences well beyond India, which is the world’s second largest county by population after China (which repealed its laws against gay sex in 1997) and until September 6, 2018, was the largest democracy to maintain criminal penalties for gay sex. As a result of this ruling, 18% of the world’s LGBT population has in one giant leap been liberated from criminalization of their sexuality.

The persistence of Section 377 or provisions derived from it as part of the penal codes imposed by Britain on its far-flung 19th century colonial empire continue to haunt the lives of LGBT people in many former British colonies.  The Indian Supreme Court’s action, relying on phrases and concepts that are common in the post-colonial constitutions of many of these countries, may prove a powerful example leading to similar rulings elsewhere. In the meantime, of course, new celebrations broke out in India as word of the decision quickly spread.

India’s Highest Court Declares Equal Rights for Members of India’s Transgender Community

Posted on: April 15th, 2014 by Art Leonard No Comments

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.