It is a matter of great relief, satisfaction and jubilation that India’s Supreme Court has directed the government to consider a ‘third gender’- those who are neither males nor females and have hitherto been categorised as eunuchs. It is an historic judgement decided upon from a petition filed by Lakshmi Narayan Tripathi, a so-called eunuch. This long, drawn-out battle was being waged by a ignored and mocked minority community who desired to be recognised as a third gender. As a result, eunuchs will be treated as a ‘third gender’ in India with all accompanying benefits.
Discarding the dominant view
With this judgement, India’s top court has challenged the dominant view of gender identity in Indian society, which has long been defined by binarism. This is, in fact, revolutionary. In the decision, the court recognised that “individual experience” of gender is one of the most fundamental aspects of “self-determination, dignity and freedom.” Further, it relates the right to freedom of expression to one’s right to express one’s self-identified gender. Thus, the idea of gender is transformed from social acceptability to individual choice and experience.
The ruling is significant in many other ways. By redefining gender identity, the court has opened the discussion on rights of marriage, adoption, and inheritance for the transgender community. It also recognises the community’s position as a socially and economically backward category and directs the state for appropriate affirmative action. More, specifically, it directs the state to provide community access to health services and even separate facilities. For India’s transgender community, it is their first encounter with equality in a democratic framework.
Simultaneously, this thoughtful, inclusive decision is significant for all Indians, especially minorities. It comes at a time when India’s political parties are engaged in a vitriolic confrontation over minorities and their rights. The court’s interpretation of justice, equality, freedom, dignity, and the role of the state should remind our political leaders that the rights of Indian citizens, irrespective of gender or sexual orientation, are safeguarded by the constitution. The justices quoted the wisdom of great scholars, such as Aristotle, Kant, Rawls, and Amartya Sen, to create a broader narrative on justice - something extremely relevant to Indian society. And why should they not?
Same blood and heart
Eunuchs are made of the same blood and flesh, with the same heart and brain, which arouses the same feelings and desires as in a male or female: Why would they not be granted the same rights and opportunities available to all men and women in India? Further, why would they not be provided the same dignity and honour all others enjoy in the modern, liberal, progressive democracy that defines our country?
And the same holds true in the light of Article 14 in the Indian Constitution, which stands for equality of all with few reservations. In fact, they ought to have been granted such rights and opportunities, on equal footing, much earlier because ours is an age of democracy, which still echoes well in our minds, as the immortal words of a legendry scholar, writer, and thinker George Orwell. In fact, this right has already been granted to the so-called ‘third gender’ by several liberal, progressive, and modern democratic countries like Australia and Germany.
Despite the euphoria, the ruling is not without its difficulties. A broad sweep of identities neglects many identities. Also, the procedures for implementation lie with Indian states. Interestingly, it also evades extensive comment on Section 377 which criminalises sex between homosexuals, which the justices term as a “colonial legacy.” It remains to be seen how this decision will interact with the petition on Section 377, to be considered soon.
Rationally, it will be difficult to give citizens the right to choose their gender but not the right to choose who they love. The court’s decision on Section 377 will tell the nation whether the highest court in the land can live with deeply contradictory ideas of justice, freedom, and equality. Yet, the process of change will now be reversible. Just as law can manufacture intolerance, it can also create gradual social acceptance. Social attitudes may not transform a society overnight, but Indian society only needs to look at its own history of inclusiveness.
The transgender community was, until the advent of colonialism, a respected section of society. In fact, the people at large should note that transgender people are mentioned in the holy epic Ramayana and that it was Lord Ram who gave them the power to bless important occasions of celebrations in families, such as childbirths and marriages. Also, Lord Shiva’s Ardhanarishwar form, perhaps depicts the same spirit, is well-known and widely worshipped all across the country. The tradition is not limited to Hinduism alone. Islamic, Jain, and other cultures also include the transgender community and sexual minorities. The famous Sufi saint, Bulle Shah, dressed as a woman to please his master and often danced with eunuchs.
Yet all this changed when India was colonised. The Indian Penal Code enacted by the British recognised only two genders, establishing a binary that never previously existed. Over time, these constructs were absorbed by the Indian society. The community has since faced extreme forms of violence for not conforming to socially dictated gender identities.
This violence often happens within families and communities, where transgender people are abused, discriminated against, disinherited or abandoned. This judgement will hopefully begin to alter this in some measure.
Despite its many flaws and the incremental nature of this change, this is a moment of celebration not just for India’s transgender community or its sexual minorities, but for all minorities throughout the world. In a deeply fractured democracy, India’s Supreme Court has safeguarded the right to individual choice and freedom. It is reassuring for every Indian that despite our debasing politics, justice, equality, and individual liberty the ideas that define India will be safeguarded, and the right to choose our identity will go beyond the binary.
Now it is high time that the government should immediately take up the issue, albeit it has busy with parliamentary elections, and frame laws that will speedily bring these people back into the country’s mainstream. It can do so by encouraging education and a modern means of subsistence, as well as ensuring their socio-economic and political uplift. By securing them jobs both in the public and private sector, in proportion to their population as suggested by the supreme court, it will de-categorise Indian society.
This is not difficult and it is in the interest of not only transgender people, but for the entire nation and world. Their talent and merit will surface and will benefit Indian society, as well as humanity at large.