Courts And The Sexual Minorities: Transgender Day Of Visibility 2022

In India, the National Legal Services Authority v. Union of India ("NALSA judgment") was the first milestone for the transgender community, when the Supreme Court of India laid down comprehensive guidelines while recognizing third gender. The court directed the Union and state government to "seriously address the problems being faced by Hijras/Transgenders", which included fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal.

"Constitution has fulfilled its duty of providing rights to transgenders. Now it's time for us to recognize this and to extend and interpret the Constitution in such a manner to ensure a dignified life of transgender people. All this can be achieved if the beginning is made with the recognition that TG as third gender." the court held

Right to privacy as a fundamental shield

The LGBTQ community has been facing many hurdles within the society, like discrimination, non-acceptance and worst was invasion of their private space. In 2017, the Supreme Court in K.S Puttaswamy v. Union of India held that right to privacy is a fundamental right (which is an integral part of Article 21 of the Indian Constitution)

The majority opinion authored by Justice Chandrachud on behalf of Chief Justice Khehar and Justices Agrawal, Nazeer and himself reads: "A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions."

The court significantly observed that the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance "does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection."

Section 377: A societal barrier

In 2018, the Supreme Court in Navtej Singh Johar v Union of India struck down section 377 of the Indian penal code which had penalized homosexuality or sexual intercourse between two consenting adults.

The court significant held that Section 377 of the Penal Code, criminalises consensual sexual conduct between adults of the same sex, and held it to be unconstitutional and held that members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.

Justice DY Chandrachud held that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.

"Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law." held Supreme Court

Birth of an intersex child is not a matter of embarrassment or sham

In Arun Kumar v. Inspector General of Registration, 2019, while dealing with a issue whether the 'term' bride under Hindu Marriage Act included transgender or not, the Madras High Court observed that any intersex child is entitled to and must stay within the folds of its family. Significantly the court stressed over the fact that a birth of an inter-sex child is not a matter of embarrassment or sham:

"The running away from the family to the margins and beyond is a fatal journey that must be arrested. Time has come when they are brought back from the margins into the mainstream. This is because even though the transgender community is having its own social institutions, the stories we hear are horrendous. The parents must be encouraged to feel that the birth of an intersex child is not a matter of embarrassment or shame. It lies in the hands of the Government to launch a sustained awareness campaign in this regard." the court held

The court also directed the state to issue a G.O prohibiting the performance of sex reassignment surgery on intersex infants and children.

Fight against prejudices: Woke Judge from Madras High Court

It would be pertinent to point out how Justice N Anand Venkatesh accepted that his upbringing treated "Homosexual", "Gay", "Lesbian" as Anathema' and later he overcame the prejudice against the LGBTQ community. Justice Anand himself took a self-imposed "psycho-education" to understand same-sex relationships as well as interacting with members of the LGBTQ community.

In doing so, single judge bench of Justice Anand issued several important directions to protect gay couple from police atrocities. The LGBTQIA+ community could not be left to feel vulnerable with no guarantee for their protection and safety, a single-judge bench of Justice N.Anand Venkatesh said

Transgender cannot be clubbed under women quota: Madras High Court

In Saratha vs Member Secretary, Tamil Nadu Uniformed Services Recruitment Board, the Madras High Court held that clubbing Transgender persons who self-identified as females under the quota for women is unconstitutional.

In Rina Kumar and Anr v. State of Uttar Pradesh, the Allahabad High Court said that for adopting a child, a marriage certificate is not a sina-quo-non and even a single parent can adopt a child under the Hindu Adoption and Maintenance Act, 1956.

In Ganga Kumari v. State of Rajasthan, the Rajasthan High Court directed the state government to take steps to treat the transgender community as socially and educationally backward class of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments.

"It has been categorically directed to the Central Government as well as State Government to take steps to treat transgenders as socially and educationally backward classes of citizens and extend all kinds of reservations in cases of admission in educational institutions and for public appointments. Such a direction clearly casts an obligation on the part of the State to work out reservation in such manner and to such extent as it may decide on the basis of relevant data available," the court held

In Kabeer C v. State of Kerala, the Kerala High Court directed the Central government to furnish the steps taken for providing reservation to the transgender community in cases of admission in educational institutions and for public appointments.

In November 2021, the National Council for Education Research and Training (NCERT) had removed from its website a teacher-training manual towards increasing the inclusion of transgender children in school education following outrage on social media. Raising concern over the issue, the Madras High Court expressed its dismay and anguish on the taking down of National Council Of Educational Research And Training (NCERT) Report.

"This Court is unable to understand the need for such a knee jerk reaction within hours of the material getting uploaded on the website. If someone really had a grievance, the same should have been addressed in a proper manner through proper consultation and meetings, and no one can be allowed to arm twist a State-run council into forcibly withdrawing a material that came out after a long study by a committee" the court said

The most important facet(s) of a democratic society are inclusion, non-discrimination and equality in terms of employment, education and sexuality. Although, there are many judicial decisions which have been discussed above, but in reality the implementation is yet another challenge which we have been facing across the country.

It is pertinent to point out that Karnataka Government had took an initiative by deciding to provide 1 percent of vacancies to be filled in any services or post by the State government from among the transgender candidates in each category of General merit, SC,ST and in each of the OBC categories.

To tackle the challenge, we as citizens need to be more aware, tolerant and open about each other. As the Supreme Court observed in Tehseen Poonawalla v. Union of India that, "It has to be remembered that the unique feature of 'Unity in Diversity' inculcates in the citizens the virtue of respecting the opinions and choices of others."

It would be pertinent to conclude with an extract from Kahlil Gibran's, The Prophet [Rupa & Co: 17^th Edition: 2006].

"Your children are not your children. They are the sons and daughters of Life's longing for itself. They come through you but not from you, And though they are with you yet they belong not to you. You may give them your love but not your thoughts, For they have their own thoughts. You may house their bodies but not their souls, For their souls dwell in the house of tomorrow, which you cannot visit, not even in your dreams. You may strive to be like them, but seek not to make them like you. For life goes not backward nor tarries with yesterday. You are the bows from which your children as living arrows are sent forth. Let your bending in the Archer's hand be for gladness;"

(Areeb Uddin Ahmed is an Advocate at Allahabad High Court and former legal journalist)