India’s Supreme Court ruling expands possibilities for realization of transgender rights

Bookmark and Share

Feature story

India’s Supreme Court ruling expands possibilities for realization of transgender rights

16 May 2014

Celebrated Indian dancer, actress and prominent transgender activist Laxmi Narayan Tripathi has been working for transgender rights for more than two decades. Nevertheless, the recent decision by the Indian Supreme Court to grant hijras and other transgender people the right to formal recognition as a third gender took her by surprise. “We’ve been fighting for it,” she said “but I personally never thought this judgement would ever be made in my lifetime.”

Underlining how the transgender community had long endured discrimination and ignorance in India, Ms Tripathi welcomed the ruling. “It’s wonderful. These days I feel very proud to be an Indian,” she said.

Prior to the ruling, members of the transgender community in India were forced to classify themselves as either male or female on identification documents. However, the landmark ruling of 15 April 2014 not only introduces the third gender recognition, but also stipulates that transgender people have access to the same rights to social welfare schemes as other minority groups in the country. 

While handing down the landmark ruling, Justice K.S. Radhakrishnan, who headed the two-judge Supreme Court bench said, “Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue.”

The decision will apply to all individuals whose present physical characteristics do not correspond with their sex at birth. With a population of over 1.2 billion and an estimated 0.5–1 million transgender people, India has joined the list of other countries in the region, to formally recognize the rights of the third gender. In addition, the Indian Election Commission introduced an “other” category on voter registration forms for this year’s election, so transgender people could register.

The HIV Sentinel Surveillance (HSS) for 2010–2011 found that transgender people had the highest HIV prevalence among all surveyed populations in the country, with 8.8% estimated HIV prevalence nationally, compared with 0.3% among the general population. However, in India, as in Asia and the Pacific as a whole, focused programmes and initiatives for transgender people are largely lacking in national responses to HIV.

Despite the progress on gender identity recognition for transgender people, significant challenges lie ahead. Activists warn that there is still a long way to go to ensure hijras and transgender community members are able to gain equal access to education, housing, employment and health services, including HIV services.

The ruling is clouded by the Supreme Court decision at the end of 2013 to reinstate Section 377 of the Indian Penal Code, which recriminalizes adult consensual same-sex sexual conduct. In 2009, the Delhi High Court had found unconstitutional the application of the 150-year-old law criminalizing “carnal intercourse against the order of nature” between consenting adults. Now, again in India, gay and other men who have sex with men, lesbian, bisexual and transgender people face the possibility of criminal prosecution. Activists and communities of key populations at higher risk have reported an increase in cases of blackmail and criminal activities against gay men after Section 377 was reinstated into law. Fear of discrimination, identification and legal repercussions dissuade people from accessing health and HIV services, hampering HIV prevention and treatment efforts.

“The transgender identity ruling is certainly to be welcomed and represents a significant step forward for India. But we want governments and civil society to support all people to be able to exercise their rights and access HIV information and services, including gay and other men who have sex with men, and lesbian, bisexual and transgender people, and for them to be able to do this without fear of criminalization,” said UNAIDS India Country Director Oussama Tawil, echoing the messages from a statement made by UNAIDS in late 2013 calling for India and all countries to repeal laws that criminalize adult consensual same-sex sexual conduct.

For Laxmi Narayan Tripathi, her commitment to the movement for equal rights and access to services for transgender people in India and across the world continues. “It will take a lot of effort on our part. We are championing having education on transgender issues as part of the education system so that young minds are made aware of transgender issues from an early age. The governments of respective countries should acknowledge transgender people and implement legislation to facilitate acceptance of transgender people—just as we are.”