NEW DELHI — Today, India’s highest court has directed that transgender people be recognized as the third sex, besides male and female and be accorded social acceptability and an equal standing under Indian law, reports GayAsia News.com.
“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,” said a Supreme Court bench comprising Justice KS Radhakrishnan and Justice AK Sikri.
The judges directed the federal and state governments to identify transgender people as a third gender and run a public awareness campaign to erase social stigma as well as passed a list of directives for their welfare.
Governments now have to construct special public toilets and departments to look after the social and medical welfare of transgender people and if a person surgically changes his/her sex, then he or she is entitled to her changed sex and cannot be discriminated against, the judges ruled.
This landmark ruling will change the fate of transgender people in India, who till now were never assigned to any federal government department nor part of the welfare, economic, cultural or political decision process that every Indian should be part of.
Despite having a recorded history of more than 4,000 years they were barred from receiving driver licenses, national tax system registration and ration cards.
The court expressed concern over such discrimination and ruled that an absence of law recognizing the third gender could not be continued to keep them from availing of equal opportunities in education, employment and social welfare.
It said transgender people shall be considered as a class apart from male and female since they had a right to choose their gender based on self-identification of their sex.
One’s right to self-identify was a facet of the basic principle that governs human beings, it said. Hence, identification of transgender men and women did not require a statutory regime as their rights were inherent in the Indian Constitution.
Moreover, it ruled that transgender men and women be treated as a socially and economically backward class and be eligible to various quotas accorded to other marginalized sections of society.
The Supreme Court clarified that Section 377 of the Indian Penal Code that it recently upheld to criminalize same-sex relations as “unnatural” was not to be used against transgender men and women.
However, the colonial-era law mandating a jail term of up to life imprisonment for same-sex relations was still applicable to gays, lesbians and bisexuals, it said.
Transgender people known as hijras, were once a firmly accepted group in Indian culture. The Vedas, the oldest scriptures of Hinduism, recognize them with both male and female characteristics.
That status changed in the British colonial period and they were since legally marginalized with limited access to healthcare, employment or education.
