The Supreme Court Tuesday recognised transgenders as the third gender, directed the government to extend them reservations in the backward classes category in jobs and education and provide them healthcare and held that they enjoyed all the rights under the constitution.
The court gave transgenders the right to decide their gender identity, and directed the central and state governments to take steps to “treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments”.
Justice K.S. Radhakrishnan said the fundamental rights speaks of “citizen”, “sex”, “person” and all these expressions, which are gender neutral as they refer to human beings, thus take into their fold hijra/transgenders and are not limited to male or female gender.
“Article 14 has used the expression ‘person’ and article 15 has used the expression ‘citizen’ and ‘sex’ so also article 16. Article 19 has also used ‘citizen’, while article 21 has used ‘person’.
“All these expressions, which are ‘gender neutral’ evidently refer to human beings. Hence, they take within their sweep hijras/transgenders and are not as such limited to male or female gender,” said Justice Radhakrishnan.
In a concurrent but separate judgment, Justice A.K. Sikri said: “By recognising transgenders as third gender, this court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights.”
Justice Radhakrishnan said discrimination on the basis of sexual orientation or gender identity “includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution”.
Justice Sikri said it was “the only just solution which ensures justice not only to transgenders but also justice to the society as well”.
“Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action,” and to give this recognition to the transgenders “which legitimately belongs to them”.
Stating that gender identity was the core of one’s personal self, and not based on surgical or medical procedure, Justice Radhakrishnan said “gender identity was an integral part of sex and no citizen can be discriminated on the grounds of gender identity, including those who identify as third gender”.
Justice Sikri, however, said transgenders in the instant case would not encompass its wider usage to include gay, lesbians and bisexuals.
“It may be clarified that the term ‘transgender’ is used in a wider sense, in the present age. Even gay, lesbian, bisexual are included by the descriptor ‘transgender’. However, while dealing with the present issue, we are not concerned with this aforesaid wider meaning of the expression transgender,” clarified Justice Sikri.
The court issued nine directions for protecting their fundamental rights under the Constitution and laws framed by the centre and the states.
It said the governments would take steps to address the problems faced by hijras/transgenders “such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma”.
The court said the governments would operate separate HIV survellance centres “since hijras/transgenders face several sexual health issues”.
The governments should provide medical care in hospitals and also provide separate public toilets, it said.
Stating that the governments would frame various social welfare schemes for the betterment of transgenders, the court directed the governments to take measures and create public awareness so that transgenders “regain their respect and place in society” and are “not treated as untouchables”.