Photo: Mint
Photo: Mint

Transgenders file petition against Section 377 in Supreme Court

The writ petition follows one filed by members of the LGBT community last month; both have been referred to the chief justice of India

In a first, a petition filed by members of the transgender community that challenges the constitutionality of Section 377, which criminalizes adult same-sex consensual intercourse, was heard before a two-judge bench of the Supreme Court on Friday.

Justices A.K. Sikri and R.K. Agarwal directed the petition to be listed before the chief justice of India.

The new petition filed by Bengaluru-based transgender activists Uma Umesh and Akkai Padmashali, who identifies as a woman, and transwoman journalism student Suma, sought to declare Section 377 as unconstitutional.

On 29 June, a similar petition against Section 377 filed by members of the LGBT community, including Sangeet Natak Akademi awardee Navtej Singh Johar, his partner of two decades, journalist Sunil Mehra and renowned chef Ritu Dalmia was also referred to chief justice T.S. Thakur.

A set of seven curative petitions challenging the constitutionality of Section 377 of the Indian Penal Code (IPC) are pending before a constitutional bench of the apex court. Justice Thakur will decide whether these two writ petitions filed by members of the LGBT community should be heard alongside the pending curative petitions.

Also read: My orientation is different and that is no crime: Navtej Singh Johar

The petition filed on 8 July brings up the paradox faced by the transgender community, whose sexual orientation is criminalized by Section 377, though there is now legal recognition of their gender identity.

“In the case of transgender persons, their gender identity may not be the same as their biological sex, they may have had sex reassignment or not. This Hon’ble Court has held that one’s gender identity is not limited to one’s biological sex. Hence, if transgender persons were to have intercourse with their partners, the same would fall foul of the section and would amount to a criminal offence," the petition states.

It refers to the NALSA (National Legal Services Authority) judgement of February 2014, which recognized transgender as a gender identity and ruled that the community deserved immediate remedial action because of the innumerable contraventions to their right to life, liberty and equality.

“The Petitioners are challenging the constitutional validity of Section 377 of the Indian Penal Code as it violates their fundamental rights to life, autonomy and dignity guaranteed under Article 21, their right to equality under Article 14 and their right to expression and freedom under Article 19," the petition states.

The writ petition comes at a time when the Transgender Persons (Protection of Rights) Bill 2016 has received the cabinet’s nod, and is slated to come up for discussion in the Lok Sabha. The bill is expected to protect the rights of transgenders and address the physical and psycho-social violence the community faces. It penalizes offences against the community, and is expected to address inequalities in education and employment opportunities.

However, whether the bill says anything on sexual orientation—currently penalized by section 377—right to marriage and adoption remains to be seen.

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