Pride Matters | Beyond Sec 377, the call for trans equality reaches a crescendo
As women's rights are under attack, the precariousness of constitutional rights is brought to the fore. Often forgotten in these conversations — despite two watershed moments guaranteeing the rights of the queer community — are the unmet demands of the trans community
Reiterating our constitutional rights has never seemed more urgent, with the recent United States Supreme Court decision overturning Roe v Wade and developments at home where human rights defenders are being arrested with impunity.
Pride Month and the fight against discrimination on the grounds of one’s sexual orientation, gender identity, and gender expression are not disconnected from this fight. It is, in fact, deeply entrenched in our battles for women’s autonomy over their bodies and the protection of human rights activists. Thus, as we think of Pride Month, we need to keep in mind the precariousness of our constitutional rights in context with these developments and also rethink whether pride has just become another corporate campaign or whether it can be more meaningful.
In India, there were two main watershed moments for the legal recognition of the rights of the LGBTQIA+ community. The first came in 2014 when the Supreme Court in NALSA v Union of India recognised the right to self-determination of one’s gender identity. This led to the second landmark judgment, in Navtej Johar and Others v Union of India, when the Supreme Court decriminalised Section 377 of the Indian Penal Code (IPC) for same-sex relationships between consenting adults.
The Navtej litigation started, and was conceptualised in the backdrop of the NALSA judgment, which was the impetus for filing it. Soon after the NALSA decision, when the trans community was celebrating the decision while trying to grapple with its implications, three well-known voices of the trans movement in Bangalore — Dr Akkai Padmashali, Umi, and Sana — had quite a different plan. They wanted to go back to the Supreme Court and challenge Section 377 again.
The fight against Section 377 has been a long battle that started in the 1990s in India. The Supreme Court had dismissed a constitutional challenge to Section 377 in 2013, holding that it was for Parliament to repeal it, and that the court would not interfere as it concerned the rights of a "minuscule minority".
Though this decision in 2013 came as a blow to everyone working on LGBTQI+ rights, the NALSA judgment brought new hope. It gave us a new peg of the right to gender self-determination, to challenge Section 377 again on these grounds. The unique nature of the second round of the 377 litigation in the Supreme Court, at least for me, was that it had the active voice and participation of the trans community, a voice that was not at the forefront in the earlier efforts in the litigation. The petition filed by Dr Akkai Padmashali and others gave the Supreme Court the real and lived experiences of how the trans and intersex community faced violence and discrimination on account of section 377 and how it impacted them.
The judgment, therefore, reflected the stigma faced by the trans community. Justice Dipak Misra held in his separate opinion as follows:
“Bigoted and homophobic attitudes dehumanise the transgenders by denying them their dignity, personhood and above all, their basic human rights. It is important to realize that identity and sexual orientation cannot be silenced by oppression. Liberty, as the linchpin of our constitutional values, enables individuals to define and express their identity and individual identity has to be acknowledged and respected... The ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in the social mainstream and in the journey towards achieving equality in all spheres, equality of opportunities in all walks of life, equal freedoms and rights and, above all, equitable justice. This can be achieved only by the inclusion of all and exclusion of none from the mainstream.”
This judgment also laid the ground for the trans community to take up litigation in several high courts for the protection of their constitutional rights to equal opportunity in public employment, access to welfare schemes, and, especially during the pandemic, equal access to health care and rations.
But the fight for trans equality, or as well-known author Shon Faye prefers, "trans-liberation" is far from being realised, and, in fact, it is just starting. The demands of the trans community – full autonomy over one’s bodies, equal opportunity in work and employment, affordable housing for all, access to free and universal health care, non-discrimination in education and freedom from violence – are not different from what all other marginalised communities are fighting for.
Thus, everyone needs to join the battle for trans rights, because the systemic changes required to put these basic rights in place would benefit everyone. Transgender rights do not just demand the equality of the LGBTQI community, but are deeply linked to equal rights for women, farmers, Dalit, Adivasi, and Bahujan communities, persons with disabilities, religious minorities, and the poor. And it is only when we work together that we will achieve meaningful social change.
Jayna Kothari is a senior advocate, Supreme Court of India
This is part of a special HT Premium series, spanning personal essays, reportage and analyses, to mark Pride Month
The views expressed are personal