On 15 April, a two-judge bench comprising Justices A.K. Sikri and K.S. Radhakrishnan delivered a landmark judgement that accorded third-gender identity to transgenders. It also held that gender identity was a matter of personal liberty, and thus a constitutionally guaranteed fundamental right. Put simply, all Indians have the right to choose their gender—as man, woman, transgender—irrespective of the sex they were assigned at birth, or medical intervention.

The second part of the verdict held that transgenders are socially and economically discriminated against, and that they have every right to benefits and privileges like education, employment, property and marriage.

Though historic, the judgement presented a contradiction. While the right to self-determine gender identity was acknowledged, another bench of the Supreme Court had, four months previously, upheld the constitutionality of Section 377, which criminalizes all forms of intercourse that are not penile-vaginal. Thus, while the court scored a major victory for the personal liberty of transgenders and gender-queer persons, it failed to address the criminalization of sexuality.

Anand Grover, a senior counsel and founder of the Lawyers Collective, was one of the lawyers on the transgender rights case. The original petition in this case was filed in 2012 by the National Legal Services Authority (Nalsa), a government-run free legal-aid organization. The petition argued that the rights of transgenders were being denied to them. Grover filed an intervention application on behalf of transgender rights activist Laxmi Narayan Tripathy, and the New Delhi-based Centre for Legal Aid and Rights was a co-petitioner in the case.

I argued that we need to look at them as a third gender, and that the third gender has been recognized historically in our culture. I had also fought on behalf of Pinki Pramanik, getting the criminal case of rape against her squashed. Hers was a case of an intersex person.

Grover spoke to us about the intricacies of the judgement. Edited excerpts:

What does the Nalsa judgement say?

The judgement says that a transgender is a person in law, and she has the right to not be treated cruelly. They should be recognized in whichever gender they adopt. When I began arguing, the judges were only looking at this matter as a binary—transgenders as either men or women. I argued that we need to look at them as a third gender, and that the third gender has been recognized historically in our culture. I had also fought on behalf of Pinki Pramanik (a national athlete who was accused last year of raping a woman), getting the criminal case of rape against her squashed. Hers was a case of an intersex person. How does one describe intersex people within categories of man or woman, without taking into account self-identification?

The judgement has been criticized for only looking at the welfare of ‘hijras’ and leaving out transmen. Do you agree?

I don’t agree with the critique that the judgement doesn’t deal with transmen. I think the judgement is misunderstood. It allows you to decide who you are. That is the biggest change. You decide you’re a woman, you’re a man, or you’re neither, and for that, there’s a rubric called transgender, which goes against the very nature of binary identities. It doesn’t depend on certificates. In fact, the point is that if you’ve transitioned to man, you’ll be recognized as a man if you want to be. Or you’ll be recognized as a transman if you want to be.

There is a clarification being sought by the government on whether OBC status can be given to transgenders, and on the definition of transgenders.

The petition insisted on granting other backward classes (OBC) status and called for reservation, as this is one of the methods of granting benefits in India. A large number of hijras don’t get employment, whereas historically, they have been known to occupy premier positions. Under law, the Backwards Classes Commission can recognize, say, hijras as OBC, thus allowing them to fall into the category for purposes of reservation in public services, education, employment, etc. It’s the affirmative action taken by states that will determine how other trans groups access reservations; the judgement leaves this unclear.

But this is not a difficult bridge to cross. The court can only provide justice incrementally, it cannot decide everything. It cannot go to every community and say this judgement applies to you. Once the beneficiaries are decided state-wise, then they will get provisions. This is a battle that still has to be fought. The judgement doesn’t exclude anyone. There is movement at the Central level. The (Union) ministry of social justice and empowerment is looking into how to take things forward and implement the directive of the court. Hopefully, things will get more definite by the end of the year. It hasn’t stalled like the 377 case.

Does the Nalsa judgement help the case on Section 377?

That Nalsa judgement didn’t want to talk about the 377 case, which is currently before the Supreme Court as a curative petition. However, the Nalsa judgement can be utilized to challenge Section 377. It opens a door for us. The moment you concede that there is another identity, you also recognize that their sexual practices differ. To say that one is criminalized when you have recognized their identity is actually inconsistent and contradictory.

You can’t disallow 377 for one group of people, but uphold it for another. That is why I intervened—because I knew that this would be an inroad to strike at the root of the judgement of the Supreme Court. In any case, every heterosexual couple also has oral sex. I have to still come across a couple who’ve said I don’t like oral sex.

What to expect from the committee formed to implement the directives of the Nalsa judgement

Anoop Kumar Srivastava, special secretary in the Union ministry of social justice and empowerment, says an inter-ministerial standing committee has been formed to implement the directives issued by the Supreme Court Nalsa judgement on third-gender rights. He clarified that though the ministry has sought clarifications from the court on the definition of transgender, among other issues, work is on in full swing.

The committee, comprising senior officials from the ministries of health and family welfare, human resources, education, labour and employment, was formed in April, shortly after the judgement was delivered. It has met thrice and is looking into the measures suggested by another expert committee on trans-genders that was constituted last year, comprising academicians, members of the trans community, and government officials. The expert committee, chaired by Srivastava, had released a detailed report in January.

The inter-ministerial committee has suggested an “umbrella scheme" that will benefit the transgender community, which will include scholarships to students, cash incentives to parents of transgender children, and skill training. “Transgenders are isolated from society and family and have to deal with stigma. Education is the first step to addressing this," he says. Transgenders who are entitled to welfare benefits under other categories would be able to access benefits under the umbrella scheme. “The ministry of rural development has already included transgenders under the Indira Awaas Yojana for subsidized housing," he says.

A pension fund for transgenders above the age of 40 and below the poverty line, and a sensitization campaign, are also planned.

The inter-ministerial committee is considering the Tamil Nadu Transgender Welfare Board’s district-level model to “screen" transgenders. The psychological test gauges a person’s sense of gender identity. “We have made it clear that whether a person has undergone sexual reassignment surgery or not, if their deep sense of gender isn’t what was assigned to them at birth, then they are liable to welfare," says Srivastava.

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