New Delhi: In a landmark verdict, the Supreme Court Tuesday granted legal recognition to transgenders or eunuchs as third category of gender and directed New Delhi and all states to treat them as socially and educationally backward classes to extend reservation in admission in educational institutions and for public appointments.
Paving the way to bring the transgender in national mainstream, the apex court directed governments to take steps to remove problems faced by them such as fear, shame, social pressure, depression, and social stigma.
A bench of justices K S Radhakrishnan and A K Sikri held that discrimination faced by transgenders, also known as Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc, is “unimaginable” and their rights have to be protected as they are citizens of the country and having all rights under the Constitution like the male or the female have.
“Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role,” it said.
“We, therefore, declare Hijras, eunuchs, apart from binary gender, be treated as third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature,” it said.
The bench said that mindset of society towards the transgender has to be changed and it’s time for court to recognize their rights and to extend and interpret the Constitution to ensure a dignified life of transgender people.
“We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments,” the bench said.
“Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of transgender community undergo, nor appreciates the innate feelings of the members of the transgender community, especially of those whose mind and body disown their biological sex.
“Our society often ridicules and abuses the transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change,” it said.
Transgender or Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation, the court noted.
Referring to various religious text, it said that historically, transgenders(TGs) played a prominent role but with the onset of colonial rule the situation changed “drastically” with the British virtually declaring them as criminals.
“Unfortunately we have no legislation in this country dealing with the rights of transgender community. Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles,” it said.
The bench also said that there are many countries including Nepal and Pakistan, where the rights of the transgenders are recognised and are being protected by state authorities.
“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.
“Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities,” it said.
It said social justice does not mean equality before law in papers but to translate the spirit of the Constitution into action.
“Rule of law demands protection of individual human rights. Such rights are to be guaranteed to each and every human being. These TGs, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights,” the bench said.
“By recognizing TGs as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to TGs but also justice to the society as well,” it said.
Holding that gender identity is an integral part of sex and no citizen can be discriminated on this ground, the apex court also clarified that transgenders have right to be recognised as male or female after SRS(Sex Assignment Surgery).
“We are of the opinion that even in the absence of any statutory regime in this country, a person has a constitutional right to get the recognition as male or female after SRS, which was not only his/her gender characteristic but has become his/her physical form as well,” it said.
It also said state of Punjab which is treating all TGs as male is not legally sustainable.
“TGs have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. State is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied,” the apex court said.
The bench also referred to recent studies which indicated that Hijras/TG women have a very high HIV prevalence (17.5 to 41 percent) and directed the Centre and State governments to operate separate HIV Sero-survellance Centres for them.
“Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities,” it said adding “they should also take steps for framing various social welfare schemes for their betterment”.
It said that section 377 of IPC is being misused by police and other authorities against them and their social and economic condition is far from satisfactory.
The bench clarified that its verdict pertains only to eunuchs and not other sections of society like gay, lesbian and bisexuals who are also considered under the umbrella term ‘transgender’.
The apex court passed the order on a PIL filed by National Legal Services Authority (NALSA) urging the court to give separate identity to transgenders by recognising them as third category of gender.
Welcoming the Supreme Court decision, Lakshmi Narayan Tripathi, transgender rights activist said, “the progress of the country is dependent upon human rights of the people and we are very happy with the judgement as the Supreme Court has given us those rights.”—PTI