Gay, lesbian and bisexual (persons) cannot be included in the category of a gender or transgender: Centre to apex Court

Centre has communicated its stand on the LGBT community to the Supreme Court, raising several objections against the historic April 15 judgment that granted constitutional recognition to transgender as a third gender and gave them the right to have a family. The Centre has argued that gay, lesbian and bisexual people cannot be categorized as transgender.

The Centre has refused to accept such a wide definition of ‘transgender’ and on Wednesday filed an application, seeking a modification of the apex Court’s order and clarification of the definition of “transgender”.

Centre contended that the verdict has led to some confusion, reportedly asserting, "Universally, the term LGBT is used for lesbians, gays, bisexuals and transgenders. While it may be possible for some transgender persons to also be gay, lesbian or bisexual, that is only an individual's sexual orientation and would not result in a lesbian, gay or bisexual by themselves per se becoming a transgender.... Gay, lesbian and bisexual (persons) cannot obviously be included in the category of a gender or transgender. The concept of gay, lesbian and bisexual is based strictly on sexual orientation while the term ‘transgender’ has to do with the person’s own deep sense of gender identity.”

It also asserted that all transgenders can't be included in the backward castes category as it would generate practical and political problems.

The Hindustan Times quotes from the government's appeal as follows: "Asking the court to modify its order, it added, “Caste is determined by birth. It is an intricate question and clubbing them all as one category may pose problems both practically and politically. They (transgenders) may be separated from their families and living in groups but that does not mean they have converted to other castes.”

The Supreme Court, in a landmark judgment in April, directed the Centre and the State Governments to recognize transgender as the third sex and also to provide the benefits of socially and economically backward class. The Supreme Court bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri observed that the nonexistence of law recognizing transgender as third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.

Earlier, the Supreme Court on 29th October, 2013 had reserved its judgment on the question of recognition of identity of transgender persons in India. The Division Bench was hearing public interest litigation, National Legal Services Authority (NALSA) v. Union of India &Ors.  [Writ Petition (Civil) No. 400 of 2012] filed in October, 2012. Read the Live Law story here.

Civil society activists have called the Centre’s modification plea regressive. Advocate Kranti, executive director of Human Rights Law Network reportedly supported the Civil society’s stand and stated “Instead of understanding the spirit of the judgment and proposing reservation for transgenders, the government has indicated which way it wants to go as far as the rights of minorities are concerned”. He also accused the Centre of acting unilaterally, without taking into account, the civil society’s views.

The government’s application, settled by Attorney General Mukul Rohatgi, however, has resisted the direction to classify all transgenders as OBCs in a “suo motu” exercise. The Centre maintained that the inclusion of castes in the OBC category was done on the recommendation of the National Commission for Backward Classes. It also urged to know if it could execute the court’s verdict without going to the commission. It contended that it wasn’t possible to realize the court’s directions within the six-month deadline fixed by it.

Read the directions issued by the apex Court in the case of National Legal Services Authority (NALSA) v. Union of India to protect the rights of Transgender community, here.

The Centre's move comes as the civil society and rights groups are eagerly awaiting the decision on an ongoing case challenging the ban on gay sex in India.

In December, the Supreme Court had set aside a Delhi High Court judgment lifting a colonial era ban on gay sex in India, and left it to Parliament to change the law. The court later agreed to hear a petition challenging its decision in open court. Read the entire news coverage by Live Law here.

Read: “While LGBT community celebrates 5th-anniversary of the historic Delhi HC judgment, road ahead still remains unclear”, here.

Also read: whether the transgender rights judgment might be considered as having sown seeds for a positive judgment in Section 377 curative petition, here.

In a census conducted this year, the official count of transgenders was calculated at 4.9 lakh, though activists have said that the real number was six times the official number. In a report submitted to the UNDP by the Centre for Sexuality and Health Research and Policy and the Alternative Law Forum, it was noted why the transgenders continue to be exploited in the society. It says, " A primary reason (and consequence) of the exclusion is the lack of (or ambiguity in) legal recognition of the gender status of hijras and other transgender people. It is a key barrier that often prevents them in exercising their civil rights in their desired gender."

It also notes, "It is a key barrier that often prevent them in exercising their rights related to marriage with a person of their desired gender, child adoption, inheritance, wills and trusts, employment, and access to public and private health services, and access to and use of social welfare and health insurance scheme."

The report links this lack of legal recognition to the escalating incidents of HIV+ among the transgender community as they not only face poverty and have to turn to sex work for survival they are routinely sexually abused, leading to diseases.

The apex Court’s stand on the Centre’s objections, will now determine the status of the transgenders.