The Tuesday Column: Right To Equality From The Prism Of The Third Gender

Socio-economic rights under our Constitution have been relegated to the non-justiciable category of the Directive Principle of State Policy. And yet, the harsh reality is that freedom of speech and expression, guaranteed under Article 19 of our Constitution, which though technically justiciable, remains purely theoretical unless you have the social and economic means to truly express yourself with dignity and security.

This is as true for persons of the third gender as it is for any other marginalised group or minority. It is in this context, I applaud, the Hon’ble Supreme Court of India, that in the historic judgment of National Legal Services Authority vs. UOI, not only, held the state obliged under Article 14 & 19 of the Constitution to recognise a third gender, but also held the state liable to recognise the third gender as socially and economically backward and entitled to all state policies as were applicable for the benefit of the socially and economically backward sections of society.

The recognition by the bench of Justice Sikri and Justice Radhakrishnan that without economic empowerment and social inclusion, the mere recognition of the third gender would not guarantee them a life of dignity and self-expression is the truly dynamic aspect of this judgment, which has made the Directive Principles of State Policy the foundation for the enjoyment of fundamental rights.

The Hon’ble Supreme Court, by way of this historic judgment, gave the following directions:

(1) Hijras, eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as a third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV sero-surveillance centres since hijras/transgenders face several sexual health issues.

(5) 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., and any insistence for SRS (sex reassignment surgery) for declaring one’s gender is immoral and illegal.

(6) Centre and state governments should take proper measures to provide medical care to transgenders in the hospitals and also provide them with separate public toilets and other facilities.

A recent spate of incidents in the posh environs of South Delhi, the capital city of the promised “New India”, widely circulated as videos on WhatsApp, shows groups of the third gender forced to prostitute themselves as the state has failed, despite the passage of some years from the NALSA judgment to implement directions 3, 5 & 6 in letter or spirit. As if being forced to prostitute yourself for want of any skill or resource ownership that enables sustenance isn’t bad enough, the videos circulated on WhatsApp also reflect some persons of the third gender expressing their anger by taking off their clothes and dancing on a car that had banged into one of them. The comments of the men, making the video, reflect lust, disrespect and enjoyment of the anger and protest by a group of helpless people. Unfortunately, this video rather than turning into a cry for the empowerment of persons of the third gender turned into a clamouring by the residents to have them arrested.

Without reservation in jobs and education, the promise of the Constitution to make persons of third gender equal even to the female sex is far from realisation. The journey to find equality with the male sex may take even longer. It is time to revisit the judgment of NALSA vs. UOI and demand that the state fully implement all of the directions of the Hon’ble Supreme Court to ensure that persons of the third gender are not just re-nomenclature but are truly empowered.”

Nandita Rao is an Advocate at Delhi High Court.

[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]