ny discussion on the Third Gender must begin with the distinction between the much ignored or maybe deliberately underplayed the difference between the concepts of "gender identity" and "sexual orientation."
Gender identity refers to a person's deeply felt internal and individual gender experience, which may or may not correspond with the sex assigned at birth. Sexual orientation, on the other hand, refers to the individual's enduring physical, romantic, and emotional attraction to another person. These are integral to one's personality and are aspects of self-determination, dignity, and freedom. Unfortunately, by defining individual identity purely in biological terms, most of the literature before the 1960s failed to distinguish sex from gender and sexual differentiation from sex discrimination.
The author opines that the sexual orientation, which lies at the core of "private space," is expressed through sexual relations and ought to be viewed as a core part of individual identity and an inalienable component of the Right to Life. Therefore, the prohibition of certain private, consensual sexual relations under section 377 unreasonably abridges privacy and dignity within the ambit of Right to Life and Liberty under Article 21 of the Indian constitution. In a similar wave of thought lies the observation of Heureux, who notes that at the root of dignity, lie the autonomy of the private will and a person's freedom of choice of action.
Justice V.R. Krishna Iyer, in Prem Shankar Shukla v. Delhi Administration[i], observed that human dignity is concerned with physical and psychological integrity and empowerment. He added that this dignity is enhanced by laws sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.
In Francis Coralie Mullin v. Administrator, Union Territory of Delhi[ii], the Supreme Court argued that the "Right to dignity includes expressing oneself in diverse forms, …all of which is essential for the complete development and evolution of persons."
In this background, the current article attempts to highlight the exploitation that the victims of injustice with alternative identities have been subjected to, both socially and legally. Postulating a repressed and homogenized identity, efforts have been made to discover, acknowledge, and represent their fundamentally concealed identity. However, the author is conscious that by claiming an independent identity, we can reverse or struggle with an oppressive gaze. However, we cannot back out of it and replace our muted or distorted identities with a real and authentic one. Further, fixing an autonomous identity always presumes a fixation of the "interpolating other" and responds to a request in which the moment of subjection necessarily implies oppression. The person-as-subject in such a situation is defined by the other, and the person recognizes themselves as an image or reflection of the other.
Given this background, the Ministry of Social Justice and Empowerment in its 2013 Expert Committee Report observed that a lack of recognition before the law is itself a human rights violation. This presents a major barrier to the transgender in realizing other basic rights. The report noted, "Article 5 of the Constitution identifies the person who is entitled to India's citizens. None of the conditions specified therein require determinate sex or gender identity as a pre-condition of acquiring citizenship." Though there is no articulate mention of transgenders in either India's statutes or the legislation, leaving them invisible and dependent on how general clauses relating to their human rights protection are interpreted. However, there are some legal provisions which passively provide rights to them.
Further, India has ratified most of the international treaties with specific reference to the broad purview of human rights, be it be about children, women, disabled or the elderly but since long there has been a disconnect between the plight of the transgenders and the Yogyakarta Principles, which were developed by a coalition coordinated by the International Service for Human Rights and the International Commission of Jurists and were formally adopted by a panel of leading international law experts way back in November 2006.
These provide authoritative guidance on the human rights of LGBTIQ and the obligations of states to promote and protect these rights, ensuring full equality, and addressing discrimination. Because of this disconnect, the perpetuation of human rights violations, on the grounds of sexual orientation and despite the ratification, on the ground of gender identity, is a common practice and is entrenched in India, to the point of being systematic. In contrast, discrimination on the same ground is institutionalized. About the domestic laws, Article 51 of the constitution of India, strives to promote international peace and security and foster respect for international law and treaty obligations in the dealings for international law and treaty obligations and is supplemented by Article 253, which necessitates the state to create legislation for giving effect to an international agreement. While reading the two together, we understand that municipal courts in India would respect the rules of international law in the absence of contrary legislation.
Therefore, any international convention not inconsistent with the Fundamental Rights and in harmony with its spirit must be read into these provisions, for example, articles 14, 15, 19, and 21 of the constitution. Article 14 states that the state shall not deny "any person" equality before the law or equal protection of the law. The article does not limit the term "person" to just male or female. Article 15 prohibits discrimination by the state on the ground of "sex" about access to shops, hotels, or use of well, tanks, and other public places. Article 16 guarantees equal opportunity for employment irrespective of sex, but unfortunately, India still has discriminatory laws that contravene international human rights law despite these articles.
Further, though the articles do address and attempt to redress sex discrimination, transgenders are still systematically denied rights under articles 15(2) and 15(4), with almost the entire onus on the state. Under Article 19(1) (a), certain basic freedoms, which constitute human rights, are granted as natural rights to all India's citizens, including the right to freedom of speech and expression of his self-identified gender and the right to choose one's appearance.
Though the values of privacy, self-identity, autonomy, and personal integrity are guaranteed to the transgender community members under it and the state is bound to protect and recognize these rights. However, in many cases, there is a disassociation between their gender, their social name, and their identification documents, which dehumanizes them and denies them their civil and legal status. The greatest and most inclusive constitutional provision is Article 21, which states that no person shall be deprived of life or personal liberty except according to the procedure established by law commonly understood as "Right to life," which includes within its self-determination of gender which is an integral part of personal autonomy.
However, somehow, we have failed in letting the people with alternate sexualities live a life with respect and dignity While the crowd in America is celebrating the decision of the US Supreme Court in Obergefell v. Hodges[iii], we, despite being world's largest constitutional democracy, are still grappling in the heteronormative caves of undermining alternative sexualities.
In 2009, the fundamentals behind the Fundamental Rights seemed to accomplish a triumph for the alternate sexualities when the Delhi High Court held section 377 of IPC, which categorized any penile non-vaginal activity as an unnatural offence, in violation of the Fundamental Rights enshrined in the Constitution of India, insofar as criminalizing consensual sexual acts of adults in private. It was further stated that "Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination."
However, this celebration was short-lived as the Supreme Court in Suresh Kumar vs. Naz Foundation[iv], in 2013, set aside the decision of the High Court declaring "that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity." It was further held that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary, and the Supreme Court subsequently dismissed the review petition against the verdict.
This re-institution of Section 377 resulted in deep unrest amongst the society with various debates being held across the country and influencing people of high offices such as a former Minister of foreign affairs, India, calling for the arrest of American diplomats in India having same-sex companions. The US Supreme Court, in its above mentioned 2015 majority judgment had argued that the Fundamental Rights of a citizen are beyond the whims of the majority and the bondages of the Parliament, which empowered the members with alternate sexualities to directly invoke their right to constitutional protection before a court when curtailed. Though, in this case, it was specifically in the background of recognizing same-sex couples' marriages. However, it should be seen as an essential component of a life with dignity by expansive interpretation.
The road to the legal recognition of transgenders as a third gender has been and continues to be a long and difficult one. It is essential to invoke judicial activism, resulting in a shift in constitutional meaning rather than initiating an amendment and being cautious of not treating court as a majoritarian institution. With a history of reverence but a reality of discrimination, it is almost unimaginable how it is taking the state and the society so long to legally recognize them as dignified alternate sexualities so that they no longer have to resign to a life that forces them to identify themselves either as a male or female.
Appointments of people like Manabi Banerjee, who strike at the walls of stereotypes and voyeuristic prying about alternative sexualities, will be hailed all triumph of broad-mindedness. Like her, she and many others like her are a blow to the cloud of ignorant stereotypes, which see transgenders merely as beggars, hecklers, and sex workers. Unfortunately, this mass rejection of their individuality renders so many of them unfit for any employment, turning them into a life of abuse.
Symbiosis Law School, Noida
[i] 1980 SCR (3) 855
[ii] 1981 SCR (2) 516
[iii] 576 U.S. 644 (2015)
[iv] Civil Appeal No. 10972 OF 2013