Once I was travelling by train. The train was nearing Kolkata station and all my friends including me, instead of getting ready to hop out of the train, pulled our bed sheets up to hide our faces. We did this every time, we travelled back to college after vacations.
The reason was a bunch of cross dressers, who used to come to all the passengers and ask for money. It was funny the way they used to address us, they would call us by the names of film stars and ask for money. We were young and were not earning, so we did not shell out more than fifty bucks in total. But, on my way back to hostel from the station, I would always wonder, as to how do these people earn? How would they run their homes?
It would be so difficult for them to get a respectable job in society, little did I know that only few years down the line, the Supreme Court of India will take a historic decision and grant legal status to recognize the right to humanity and erase one section’s status as lesser mortals forever.
In 2011, UN came out with its first report on LGBT community, the report read that, violence against LGBT persons tends to be especially vicious compared to other bias-motivated crimes,” the report noted, citing data indicating that homophobic hate crimes often include “a high degree of cruelty and brutality. However, the good part is that the report cited that some countries including India had made it easier for the transgender and intersex persons to obtain legal recognition of a change of gender or to indicate a gender other than male or female. The report can be accessed here: http://www2.ohchr.org/english/bodies/hrcouncil/docs/19session/A.HRC.19.41_English.pdf
And now in 2014, with this landmark judgment, National Legal Services Authority vs. Union of India, the Supreme Court of India has taken a giant leap to hold that “It is the right of every human being to choose their gender,” it held that, it is the right of the people to identify themselves as neither male nor female. The two judge bench of Justice KS Radhakrishnan and Justice A K Sikri, who delivered this decision held that “Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue.” They further held that, “Transgenders are also citizens of India” and they must be “provided equal opportunity to grow”. “The spirit of the Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.”
The judgment can be accessed from here. http://hostb.org/15D
Much before this decision, the Election Commission of India had taken a very important decision and had allowed transgenders to choose their gender as “other” on ballot forms. This was in the year 2009.
However, the current decision is only a baby step to further reforms and transforming the perspective of society. The next issue to be addressed is the Section 377 of the Indian Penal Code, wherein, consensual gay sex is still defined as a crime and guilty of punishment.
Para 53 of the judgment reads as follows:
Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions eg: Articles 14, 15, 19 and 21 of the Constitution to enlarge the meaning and content thereof and to promote the object of constitutional guarantee. Principles discussed hereinbefore on TGs and the International Conventions, including Yogyakarta principles, which we have found not inconsistent with the various fundamental rights guaranteed under the Indian Constitution, must be recognized and followed.
In this lengthy decision, the Court has talked about Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment and the International Covenant on Economic, Social and Cultural Rights. Reading all these International principles together with fundamental rights specially the Right to Equality as enshrined in Part III of our Constitution, the Supreme Court has come to a conclusion that the requirement of taking affirmative action for the advancement of any socially and educationally backward classes of citizens is the foremost duty of the highest court of the country and that it is high time it made a bold move.
Finally the honorable court concluded
“We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction 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.”
I want to end by quoting Joss Whedon (American Screenwriter). The original intent was to promote equality for women but I believe this is apt for everyone:
“Equality is not a concept. It’s not something we should be striving for. It’s a necessity. Equality is like gravity. We need it to stand on this earth as men and women, and the misogyny that is in every culture is not a true part of the human condition. It is We need equality. Kinda now.”