Transgender Vs Gay
- Hueiyen Lanpao Editorial :: April 17, 2014 -
In what has been described as a landmark judgment that put personal autonomy and right of choice on par with human dignity, the Supreme Court of India on Tuesday granted constitutional recognition to the population of transgender in the country as a third gender and also gave them the right to have family, adopt, succession, inheritance as well as to claim benefits under the various welfare programmes of the Government such as MGNREGA.
The verdict on transgender has come following a Public Interest Litigation (PIL) filed by the National Legal Services Authority (NLSA), which sought for ending the social, political and cultural ostracism of the transgender population in the country by granting them legal status of a third and equal sex.
Delivering the verdict, a bench of the apex court comprising Justices K S Radhakrishnan and A K Sikri maintained that 'Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.'
So, "We 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 the state is bound to protect and recognise those rights," the bench said.
Along with giving six months' time, the apex court has also directed the Centre, the States and Union Territories to implement the judgment in letter and spirit.
What is interesting in this judgement is that four months back, another bench of the Supreme Court had turned the clock back on homosexuals in India by withdrawing the legal protection granted to them by the Delhi High Court in 2009.
The high court had decriminalised gay sex by holding that Section 377 of the Indian Penal Code, by criminalising consensual sexual acts of adults in private, violated the principles of equality and non-discrimination in the constitution.
However, Tuesday's judgement on transgender has asserted that any 'discrimination on the ground of sexual orientation or gender identity" impaired equality before the law and hence violated Article 14 of the Constitution.
Apart from emphasising that a constitutional court cannot be a mute spectator when these rights are violated and it is rather expected to safeguard them, acknowledging the pulse and feeling of that community, "though a minority", in the wake of "new social needs", the judgement has also pointed out that the term "transgender" will include gay, lesbian and bisexual.
But it stopped from going further by saying: "While dealing with the present issue we are not concerned with this aforesaid wider meaning of the expression transgender."
Nonetheless, the important point here is the reaffirmation that discrimination of people due to "sexual orientation" is violation of their human rights and this is exactly what the LGBT community in the country has been crying for all along.
So, looking at the two different judgments over the same issue, we can't help but be wondered at the working of the minds of the learned judges, who it seems are increasingly putting not just themselves but also the highest judicial body in the country 'at the risk of being blamed either for ideological bias or cherry-picking issues to champion'.
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