In an historic ruling, India’s Supreme Court has for the first time given recognition to India’s “third gender” population. This provides us with a great opportunity to look at why recognizing a third gender is so important.
Estimates suggest that India has around 2 million people who would fall under the bracket of “hijra.” This term can include people who identify as transgender, transexual, gender nonconforming, or those who do not feel it necessary or applicable to identify their gender at all. It should be noted, however, that not all trans people identify as third gender. For those who do not fit the gender binary or society’s expectations of their gender, life in India has until now been very difficult. Often, hijra would be forced into extreme poverty, given little to no government assistance and would frequently have to turn to prostitution in order to make a living. Hijra have in the past also often been denied the right to vote. But not anymore.
India’s Supreme Court ruled this week that gender nonconformity and the right to choosing a gender identity is guaranteed under India’s constitution. In so doing, the court made a number of important declarative statements that, campaigners say, could lead to lasting change in how India’s so-called third gender population is treated.
“Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice KS Radhakrishnan, one of the judges who presided in this case, said in the ruling. “Transgenders are also citizens of India,” the court noted, and as such, 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 ruling further noted, and in a remarkably progressive manner, that third gender people do not identify as either male or female and so forcing them into that bracket is a “denial of their constitutional rights and social justice.” The court also hit out at the “moral failure” that “lies in the society’s unwillingness” to accept an evolving understanding of gender.
As a result, the Court has ordered India’s government to officially recognize India’s trans population as a disfavored class. This in turn will mean the government must now provide official recognition for those who want to identify as third gender, therein allowing identity documents to reflect this fact, while also allowing those who identify as third gender/trans to access government assistance programs that are designed to lift disadvantaged classes from poverty and, for instance, aid them in securing employment and ensuring they receive an education.
This ruling furthers work that has already been started in the country. For instance, the elections commission recently moved to include an “other” or third gender category for the elections that are currently taking place. This meant that, for those who had access to voting stations, many trans people in the country have been able to vote for the first time since being open about their gender identity.
To be sure, this change will not immediately eradicate discrimination against India’s trans community. There still remains a great deal of stigma surrounding being gender nonconforming in many areas of Indian life, but it points a way forward in very clear terms.
This ruling comes after the Supreme Court shocked the gay community and wider human rights groups when it chose to overturn a lower court ruling striking India’s Penal Code provision (377) against homosexuality, essentially making it illegal to be gay in India once more. While at the time leading government voices reacted strongly against the move, they have since gone quiet and, as of this month, it appears the presiding party will not be taking action on this problem. The Supreme Court had been asked to overturn the ruling itself, but it has declined to rehear the case.
There has now been some speculation that with the Court’s ruling on third gender Indians, there is a path forward. The Court has recognized that gender nonconformity does not allow society to strip away rights. As such, LGB people may find that they can make a sex discrimination appeal that will be more palatable to the Court. The logic used about the innateness of gender may also be useful in convincing the court about the immutable quality of sexual orientation and the necessity of striking 377 to allow LGBT people the full plethora of rights they deserve as equal citizens.
It remains to be seen precisely how the court’s decision on third gender rights will translate into government action, but it is undeniable that Tuesday’s ruling could be a massive step forward for India’s trans — and LGB — populations.
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