Mumbai: The Supreme Court on Tuesday recognized transgenders as the third gender in a landmark ruling, saying it was addressing a “human rights issue".

“Transgenders are also citizens of India. 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," said justices K.S. Radhakrishnan and A.K. Sikri in their ruling.

A person who is transgender does not identify with the gender identity assigned to them at birth.

The judgement, which was celebrated by human rights activists, also made medical intervention to determine gender identity unnecessary. Self-identification as man or woman, irrespective of sexual reassignment surgery, is now protected by law.

“Equality not only implies preventing discrimination..., but goes beyond in remedying discrimination against groups suffering systematic discrimination in society," the verdict stated.

In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation."

“Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue," the court said.

The judges said rights such as the right to vote, own property, marry and to “claim a formal identity" would be made available “more meaningfully" to the transgender community as a result of the ruling.

The court ruling, which came after it heard a public interest litigation filed by National Legal Services Authority (Nalsa) demanding equal rights, is being seen as a major victory for human rights in India.

The petitioners’ lawyers said the ruling would mean that all identity documents, including a birth certificate, passport and driving licence would recognize the third gender, along with male and female.

There is very limited data or information on the estimated size of the transgender population in India. A United Nations Development Programme study says the number could be more than 160,000 but anecdotal evidence puts it at between half a million and a million.

The judgements said that non-recognition of gender identity amounts to discrimination under Article 15, which prohibits discrimination on the basis of sex.

The judges directed the centre and states to treat the transgender community as socially and educationally backward classes of citizens, and ensure that they are not discriminated against in healthcare, employment and education.

“We... conclude that 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, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG (transgender) community," said justice Radhakrishnan.

“This opens immense possibilities for the community to address rampant discrimination from many spheres," said queer rights activist Lesley Esteves.

Laya Vasudevan, director at the Centre for Legal Aid and Rights, which was a co-petitioner in the case, said that in addition to providing legal recourse, the judgment sends out a signal that fundamental human rights—civil, political, socio-economic and cultural—belong to everyone.

Transgender activist Laxmi Narayan Tripathy, who filed the second intervention application in the case, said, “This is a golden day for the transgender community of India. We have received independence in the proper sense today. Everything from discrimination faced by the transgender community to access to education and health has been addressed. The Supreme Court has given us much more than we had ever hoped for."

However, with the judgements, sexual minorities of the lesbian, gay, bisexual and transgender communities find themselves in the peculiar position of being both legally recognized and protected by the Constitution and also criminalized for having consensual sex.

The Supreme Court was slammed by human rights activists in December when it reinstated a colonial era ban on same-sex intercourse, following a four-year period of decriminalization that helped bring homosexuality into the open.

“ Can you have non-discrimination protection, treatment as equals, recognition of inherent dignity and also have legal cognizance of harassment and abuse of the same community by a colonial law while at the same time finding that same law to be constitutional?" said Supreme Court advocate Menaka Guruswamy, who lauded the judgment, calling it “far reaching and revolutionary".

While this implication of the verdict still remains to be clarified, Anand Grover of the Lawyers Collective, who represented Tripathy, said the judgments can be used to argue for an open hearing in the curative petition against Section 377 that was filed in the Supreme Court on 31 March.

Reuters contributed to this story.

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