April 15 is celebrated as ‘transgenders day’ in some parts of India (especially Tamil Nadu) in view of setting up of a Transgenders board in 2008 and for the landmark judgement that recognised the third gender in the NALSA judgment.

Judicial scenario in India

The legal framework governing sexual minorities in India revolves around Immoral Traffic Prevention Act of 1956 (with major amendments in 1986) & Sec. 377 of Indian Penal Code (IPC), 1860. The first achievement was in 1994 when transgenders were granted voting rights. However issuance of voter identity cards got caught up in the male/female question. In 2009, the Delhi High Court in Naz Foundation v Govt. of NCT of Delhi held that Sec 377 was not constitutionally valid. On December 12, 2013 in Suresh Kumar Kaushal v Naz Foundation (Kaushal) the Supreme Court upheld constitutional validity of Sec. 377 and reversed the verdict of Delhi High Court. Interestingly, state chose not to prefer an appeal which was preferred by a citizen. The review petition against Kaushal was summarily dismissed. On April 3, 2014, a curative petition was agreed to be heard in an open court and recently on February 2, 2016 its validity with other incidental questions was referred to a Constitution Bench. Immediately after upholding validity of Sec 377, another bench of the Supreme Court in National Legal Services Authority v Union of India (NALSA) granted legal status to the third gender. After NALSA, Centre sent out notices to the States to implement a five step agenda and distribution of funds accordingly. A writ petition was filed in early 2015 before the Delhi High Court seeking mandamus to the Union Public Service Commission (UPSC) to add a third gender in all forms as due to lack of positive space many candidates are unable to appear. The Delhi High Court however observed that it will await disposal of the Naz Curative. Contrary to the developing trend, on September 15, 2015 the Supreme Court while granting leave in State of Gujarat v Kirankumar Devmani declined in an interim order to observe homosexuality not to be akin to “social evils”. On October 5, 2015 in Shivani Bhat v State of NCT of Delhi, the Delhi High Court in a petition preferred by a transgender ordered that she must not be subjected to any harassment by state and be allowed to visit US for pursuing her course in neurobiology. On November 3, 2015 the Madras High Court in K.Prithika Yashini v The Chairman, Tamil Nadu Uniformed Services Recruitment Board, allowed candidature of a transgender to Tamil Nadu Police Services as a Sub Inspector. The Court also directed Tamil Nadu government to include third gender as a separate category. In a matrimonial dispute, Justice N Kiirubakaran of the Madras High Court noticed the Centre to respond as to why can India not decriminalize homo sexuality through referendum like other countries. On February 4, 2016 the Madras High Court (Madurai Bench) held that Transgenders applying for jobs as noon meal organisers can be treated as women for the purpose of recruitment.

Global scenario

Globally speaking, the US Supreme Court on June 26, 2015 in Obergefell v. Hodges (5:4 majority) approved same sex marriages as a right guaranteed by both the ‘due process’ clause and the ‘equal protection’ clause of the US Constitution (14th Amendment). On November 4, 2015 the Constitutional Court of Colombia approved full adoption rights for same-sex couples. Oklahoma Supreme Court on November 17, 2015 held that a non-biological parent in a same-sex relationships have custodial and visitation rights. The Court said that it recognizes those unmarried same sex couples who, even before the same-sex marriage was legalized in the state, entered into committed relationships. Dr Victoria McCloud, formerly known as Dr Jason Williams, became the first transgender judge to be appointed in the High Court in the United Kingdom. The Senate in Italy approved the bill allowing civil unions for same-sex and heterosexual couples on February 26, 2016 but removed a provision that would have allowed gay adoption, much to the disappointment of gay rights activists. Italy was the only major European country to have so far given no legal rights to same-sex couples. On March 5, 2016 The Supreme Court of Alabama ruled in affirmative, upholding the right of same sex marriage unions. Unfortunately, the Nigeria senate voted down a gender equality bill due to religious beliefs in March 2016. The Constitutional Court of Columbia on the other hand allowed same sex Marriage in April 2016. In South Asia, China is currently hearing its first trangender employment discrimination case wherein the allegation pertain to non-disclosure of gender to gain employment.

Legislative scenario in India

Along with judiciary’s active involvement, the executive and legislature have also taken keen interest in social upliftment of the differently oriented. In May 2014, National Commission for Backward Classes (NCBC) recommended that transgenders should be given reservation under Central List of OBCs in educational institutions and public appointments. In April 2015, Rajya Sabha passed a private member’s Rights of Transgender Persons Bill, 2014 by MP Tiruchi Siva. On 27 February, 2016 this bill was taken up for discussion in the Lok Sabha and is presently kept pending for further discussion while it was decided to address the same issue after correcting infirmities of the previous bill. In the Factories Amendment Bill 2015, the labour ministry has reportedly introduced a new section (Sec 66A) on employing transgender persons to ensure “equality and dignity of work” for them in Indian factories. In 2015, NALSAR University of Law became the first educational institution to grant a gender neutral degree titled Mx. when the recipient objected to the use of Ms. Last year IIMs made provisions for giving equal rights to transgenders. Similarly, Delhi University also added a section for sexual minorities in the postgraduate admission process. Earlier, the University Grants Commission (UGC) sought affirmative action from higher educational institutions in favour of the transgender community. India’s first transgender college principal Manobi Bandopadhyay was appointed in Krishnagar Women’s College in West Bengal’s Nadia district. Chhattisgarh Government in September granted 2% quota to transgenders in allocations of government shops to public through urban bodies. For the first time, a state government (Karnataka) chose a transgender for the Karnataka Rajyotsava Award. Akkai Padmashali bagged the award in the field of social service. Tamil Nadu has a provision for changing transgender people’s birth name and sex in official gazette and official identity documents either after realising their gender identity or undergoing sex transition surgeries. The State of Bihar extended government jobs to transgenders in March 2016. In a notable political event, a transgender Devi will contest elections against the sitting Chief Minister Jayalalitha in Tamil Nadu from R.K.Nagar Constituency in Tamil Nadu. In West Bengal, where assembly elections are going on, many transgenders have registered themselves under electorate and have voted as such. Though a large number of states have not yet implemented the NALSA judgment guidelines, slow progress is visible.

Conclusion

It is a democratic misfortune that even after accepting independence for over 65 years, minorities have to still suffer from existential crisis. The openness and awareness about having LGBTs in society and not discriminating based on anatomical differences must reach epidemic proportions including the Supreme Court. The referring bench in Curative Petitions challenging vires of Sec 377 did not deliberately lay down any questions of reference so as to enable the larger bench to frame questions of law and admissibility and decide them. It is the final and golden chance for the Supreme Court to set the record straight. In case, legalisation of private consensual sex is not deemed fit by the Supreme Court, at least it must be de-criminalized. Sec 377 even if the only provision in the statute book for punishing sexual offences apart from rape, violates the principles of permissible criminalizable harm. Similarly, the pending Rights of Transgender Persons Bill, 2015 if passed with concrete improvements by the Lok Sabha will be a landmark move for civil liberties in India. Minister of Social Justice and Empowerment, Thaawar Singh Gehlot has recently proposed a draft cabinet note titled ‘Rights of Transgender Persons Bill, 2016’ and asked for comments from ministries. Although the government seems to restrict itself to rights of transgenders only and ignore other sexual minorities, yet things are in motion; a legislative or judicial push may end an era of exploitation and sufferings.

(The writer is an advocate at the Supreme Court)

Latest News

NAMIT SAXENA