The apex court’s observation goes well with the modern understanding that gender, which is rigidly defined in terms of male and female, is a social construct. The court order, delivered on a PIL filed by the National Legal Services Authority, will go a long way towards ending the discrimination and social stigma that transgender persons face on a daily basis, often leaving them feeling marginalised and forcing them into hiding. Their right to work is among the most affected rights as they are often pushed into either prostitution, forced to earn their living out of dancing at weddings and births or beg at traffic signals.
Going a step further, the SC directed the Centre and states to treat trangender people as a socially and economically backward class and include the community in all welfare programmes for the poor. That said, a caveat is in order. The verdict is only applicable to eunuchs and not other sections of society like gays, lesbians and bisexuals who also come under the umbrella term ‘transgender’. The criminalisation of homosexuality under Section 377 of the Indian Penal Code already leaves the LGBT community vulnerable to discrimination.
Any debate on gender identity is incomplete without taking sexual orientation into account. Discrimination on the basis of an individual’s sexual orientation is also gender discrimination as an individual is expected to assume the gender role — a man should marry a woman and vice versa — socially assigned at the time of birth. Throwing gender binary out of the window, Facebook, the social networking giant, has added a slew of customisable gender options —from bi-gender to transvestites— for gender-non-conforming people to be identified the way they want to be.
Now after championing the rights of transgender persons, the SC must recognise the gender identity of gay, lesbian and bisexual individuals as well.