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SC recognises transgenders as third gender

Ridiculed for their different sexual identity and orientation, transgenders were on Tuesday granted the status of third gender by the SC in a landmark ruling that will entitle them to benefits of the Centre and state government welfare schemes. Will the SC ruling end discrimination against transgenders in the country?

india Updated: Apr 16, 2014 08:25 IST
Satya Prakash

Ridiculed for their different sexual identity and orientation, transgenders were on Tuesday granted the status of third gender by the Supreme Court in a landmark ruling that will entitle them to benefits of the Centre and state government welfare schemes.

Upholding their right to decide their self-identified gender, a bench of justice KS Radhakrishnan and justice AK Sikri directed the Centre and the state governments to treat them as socially and educationally backward classes of citizens and provide them reservation in admissions in educational institutions and government jobs.

About 2 million transgenders live in India, where the term hijra is commonly used to describe eunuchs, transgender people, transsexuals, cross-dressers and transvestites. Most of them face discrimination and abuse in the society.

"By recognising them as third gender, this court is not only upholding the rule of law but also advancing justice to the class that has so far been deprived of its legitimate natural and constitutional rights," it said.

The court, however, clarified its verdict pertained only to eunuchs and not other sections of the society such as gays, lesbians and bisexuals, who are also considered under the umbrella term, transgender.

Watch: Big day for India's transgenders as SC recognises third gender

The verdict came on a bunch of petitions, filed by National Legal Services Authority (NALSA) and transgender activists, highlighting the problems faced by the hijra community across India.

Treating the problems faced by transgender community as a human rights issue, the bench said, "The Centre and state governments should seriously address the problems being faced by hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc...."

The court observed the third gender status would help transgenders "enjoy their human rights, which are deprived to them for want of this recognition".

It said rather than merely looking at the issue of transgenders from medical or social perspectives, a human rights approach might come a long way in removing the stigma attaching to them and better orient the society towards their problems.

Lakshmi Narayan Tripathi, a transgender rights activist and one of the petitioners in this case, welcomed the verdict, saying, "The progress of the country is dependent upon human rights of the people and we are very happy with the judgment as the Supreme Court has given us those rights."

The court noted that Section 377 of the Indian Penal Code was being misused by police and other authorities against transgenders them and their social and economic condition was far from satisfactory.

The court noted the government has constituted a committee to study in-depth the problems faced by the transgender community and suggest within three months the measures to ameliorate them.

The government was told to examine the recommendations to be made by the committee in light of today's judgment and implement them within six months.

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

The government will also have to allocate a certain percentage of public sector jobs, seats in schools and colleges to third gender applicants, said lawyer Sanjeev Bhatnagar.

Due to their lack of access to jobs and education, many male-to-female transgenders – also known as hijras – are forced to work as sex workers or move around in organised groups begging or demanding money.

Hate crimes in the conservative country are common, say activists, yet few are reported partly due to a lack of sensitivity by authorities such as the police.

The SC was criticised by human rights activists in December when it reinstated a ban on gay sex, following a four-year period of decriminalisation that helped bring homosexuality into the open. The apex court said only Parliament could change the law.

Gay sex had been effectively legalised in 2009 when the Delhi high court ruled that a section of the penal code prohibiting "carnal intercourse against the order of nature" was an infringement of fundamental rights.

Human rights groups said they hoped the ruling on transgenders would encourage the new Parliament to repeal the anti-homosexuality law as one of its first actions.

(With agency inputs)