dna edit: The lesser citizens

The Supreme Court’s landmark judgment giving legal sanctity to the transgender community’s  longstanding demand for acceptance as the third gender is an important milestone in the development of minority rights in the country. In holding that not medical intervention, but rather the individual’s personal right to choice guaranteed by the Constitution will henceforth decide gender identity, the Supreme Court has struck a powerful blow against State intervention into the personal lives of its citizens. More importantly, it raises questions about the validity of Section 377 of the Indian Penal Code, criminalising homosexuality, that the Supreme Court upheld on grounds of constitutionality some months ago, when viewed through the right to choice that this judgment espoused.

A number of benefits will flow to the estimated five-lakh strong transgender community, for long marginalised and discriminated, from this paradigm shift initiated by the judiciary. The most obvious being the mandatory third column that will have to be introduced in government forms to accommodate transgenders, besides the male and female sexes they were slotted into despite their reservations. Welfare schemes and separate government departments can no longer be denied them. Even those who opt for surgical sex-change operations must be entitled to their changed sex. But the whole hog that the apex court chose to go with in this judgment is evident in its provisioning of  several affirmative actions: separate public toilets, classification as a socially and economically backward community, and eligibility for OBC reservation in employment  and educational opportunities.

Western education has been a double-edged sword for many minority communities in India. A culture of Victorian morality dovetailed modernity and pressured transgenders and others to conform to gender stereotypes, abjure their gender preferences, and encounter the ceaseless and unremitting violence of the State and a male-dominated society. Such entrenched prejudices may not abate just by the pronouncement of this progressive judgment. The onus has now been placed firmly on the government and the country at large to end this climate of discrimination. The choices that the Supreme Court has now endowed the transgender community is a wake-up call to Parliament and society to play catch-up. The dangers of society regressing back to its old ways must not be condoned. The Court’s assertion of self-identification as the criteria for gender identity merits a recall of the shameful treatment of Asian Games gold-medallist Pinki Pramanik. Despite her insistence that she was a woman, those eager to peg her a man came close to destroying her.

But viewing this judgment in isolation would be to forget the progress achieved by transgender activists in years passed. In 2008, Tamil Nadu became the first state to set up a transgender welfare board. The 2011 Census of India initiated the first headcount of the transgender community, albeit in the “Others” category. The 10 directions issued by Justices Sikri and Radhakrishnan to state and central governments on providing transgenders’ identity, equality of opportunities, addressing their health-care concerns, and ridding the social stigma is a firm reminder of our unfinished human rights agenda. The Supreme Court has reaffirmed that the essence of democracy was freedom, where human beings can grow, develop and realise their full potential. The right to choice now granted to the transgender community is the same right that the lesbian, gay and bisexual community have also been fighting for. The shadow cast by Section 377 upon the Constitution’s Article 14 promising equality before law to all citizens, rests uneasily on us all.