- April 15, 2014
Post submitted by Tushar, HRC Global Engagement Project
In a landmark ruling for the LGBT community, the Indian Supreme Court earlier today granted full legal recognition to transgender individuals as a “third gender.” This encompasses all male-to-female, female-to-male, intersex, hijras, and other social minorities of transgender individuals that are part of South Asian societies. On further reading of the judgment it is also clear that discrimination on the basis of gender identity or sexual orientation is now illegal across India.
Following the shocking re-criminalization of consensual same-sex activity in December 2013, this verdict comes as a sign of hope for India’s LGBT community, especially in its mention of the right to privacy and its call to ensure that necessary legislative, administrative, and other measures are taken in India to ensure the rights of citizens, irrespective of their gender identity and sexual orientation. This ruling also provides for self-determination of gender identity and sexual orientation, regardless of whether an individual has had sex reassignment surgery or not.
In other provisions that are seen as a first in the world, the Supreme Court has now called for reservations in employment, education, and other fields for transgender people, in an attempt to negate the ill effects of social ostracism that the transgender community in India has faced for centuries. The hijra community, a social community of transgender and intersex people in South Asian regions, has been well documented for over three millennia in India’s culture. Until recent years, transgender individuals were subject to extreme social ostracism, and lack of education and job opportunities led many into begging or sex work.
Part of the judgment also notes that India should “Repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different-sex sexual activity,” which could be the lead in to overturn Section 377 of the Indian Penal code that still criminalizes consensual same-sex conduct, a remnant from an 1860 British Colonial Era law that exists in many constitutions across the Commonwealth countries even today.
This recognition will ensure that transgender individuals have the right to self-identify as male, female, or other, and apply for passports, voter ID cards, driving licenses, and other important documents with the gender by which they identify. The ruling also protects individuals against discrimination on the basis of gender expression, such as dressing, mannerisms, and speech, making it one of the broadest rulings in favor of the LGBT community across the world in recent years.