Barely five months after upholding Section 377 of Indian Penal Code, which criminalises gay sex, the Supreme Court (SC) confirmed transgender rights, calling any discrimination against the “third gender” a violation of the Constitution. The judgment assumes additional importance since it agrees that the “choice” of gender identity cannot be discriminated against.
While most queer people are susceptible to institutional violence, trans-people receive a disturbing majority of the abuse due to their open “gender-deviance”. Born outcast, society denies them any avenues except sex work and begging. They face an alarmingly high risk of HIV/AIDS and brutal sexual violence. The case of Kokila, who was tortured by the police with a burning coir rope after being raped by 10 men, stands testament to this. Schemes for their welfare, including education and employment, are therefore a welcome step.
Indian society is notorious for dictating personal choices — from marriage to the sex of an offspring. Any attempt to deviate from the normative is dealt with brute force, as the cases of khap panchayat killings and Dalit violence in Tamil Nadu prove. Contrary to popular belief, the thread of discrimination runs deep even in the urbane, educated class. Minorities, especially those challenging our notions of “acceptable”, are subjugated, be it someone from the Northeast being called “Chinki” in top universities or homosexuality being a taboo topic in an otherwise “progressive” home. The judgment will be rendered useless if we don’t let go of our prejudices against all minorities.
Worryingly though, relief for minorities comes from the judiciary and not the government. Mired in the numbers game, political parties increasingly stay away from contentious issues if there is the risk of offending the majority. Take, for example, AAP, which sacrificed its principled stand against Section 377 this month, scared that it may offend the conservative majority.
In this context, the SC’s previous reasoning, asking thousands of queer people to go to Parliament, invokes disbelief. While the jury is out on ‘judicial activism’, for minorities, at least, courts offer the only escape from oppression. There will be those who’ll feel this judgment burdens them with another trans-quota. But for others whose idea of development values human dignity over roads, this was truly a watershed day.