It's not all about Section 377: Giving the SC transgender ruling its due
The Supreme Court ruling on transgenders as a third gender is revolutionary for India. But not just because of what it might mean or not mean for Section 377.
"Supreme Court recognises third gender, glimmer of hope for gays."
The Indian Express headline inadvertently reveals more than it intends to.
Transgenders cut across all classes. As do gays and lesbians. But in popular imagination, reinforced by the images in the media, there is a clear-cut class divide between the groups.
In the media lens, gays are urban, metropolitan, perhaps a bit westernized, middle and upper middle-class, marching in Rainbow Pride marches, organizing queer film festivals and comfortable about appearing on English language television talk shows. In short, People Like Us.
In that same narrative, transgenders are lower down the class hierarchy. They are hijras who knock on the rolled up windows of the cars of PLUs, panhandling for money, when our vehicles are stalled at traffic lights. They might work in the sex trade, come from some mysterious opaque world with its own esoteric rituals, and are more comfortable spitting out colourful gaalis than arguing in human rights lingo. They are kinnars, aravanis, jogtas, hijras. People NOT Like Us.
Perhaps that's the reason why even before the ink has dried on the landmark ruling by the Indian Supreme Court that recognizes transgenders as a legitimate “third gender”, some of the discourse and debate in the media has shifted to what it means for the fight over Section 377.
After all, many of the arguments in this case were based on some of the same Articles of the Constitution – right to equality, non-discrimination, speech and expression, autonomy – that cut no ice with another bench of the Supreme Court just a few months ago. Is the Supreme Court at odds with itself, we wonder.
It’s not an invalid question and one must look for hope where one can find it but it’s worth remembering that transgenders have been in the trenches fighting this fight out in the open much longer than most gays and lesbians have. This Supreme Court ruling is in some ways an acknowledgment of all the blood, sweat, tears and police lathis that have gone into that fight and it deserves to be appreciated and savoured for that.
While LGBT has become the umbrella term for everything that is not heterosexual, this ruling underscores the fact that gay is about sexuality and transgender is about gender. While we often fuzzily conflate the two, they are really very distinct ways of grouping and classifying people. There is no way to dismiss transgenders as a negligible miniscule fraction because they are so visible and the discrimination against them is so overt. Gays and lesbians, on the other hand, can pass if they so desire and thus it makes it easier for a court to pass over their rights as well.
Ashok Row Kavi, the founder of Humsafar Trust once said “When I say there are 50 million gays in India, my colleagues laugh and say, ‘Fifty million? All we see is you.’ The idea of visual counting is so strong that the government can’t help if we won’t stand up.” But the transgender community has never had the choice not to stand up because it’s easier to stuff sexuality into the closet but gender issues tend to be in your face.
Gay men often view transgenders with some nervousness and embarrassment, afraid that their loud ways and clapping hands are too overt and in your face. Recently, a privately organized gay party at a Kolkata nightclub caused a stir when they sent out an invite that read “Please be well dressed & maintain the Club Rules(CD's & transgender are not allowed, personally we don't have any issue but we have to follow the Club Rules).” The group eventually backtracked and apologized.
A gay man does not face a passport problem the way a transgender person does. Or for that matter a bathroom problem. A gay man who chooses to not come out at work because of fear of discrimination will always have a tougher case to prove than the hijra sex worker who has to live with the reality of discrimination, roughed up and abused on the streets by both goondas and cops alike.
The harsh reality of these problems has actually made it easier to push for solutions in this regard in the most unlikely places. While the ruling by India’s Supreme Court is being hailed as “historic”, in this case it’s history repeating itself. India’s court is actually following in the footsteps of its neighbours. India has been pipped to the post by both Nepal (2007) and Pakistan (2011). Nepal’s Sunil Pant, founder of the Blue Diamond Society is famous for being the first openly gay MP in the subcontinent. But Blue Diamond’s first landmark achievements were around gender, for example, getting the Election Commission to mention Third Gender in the voter form. That foundational work eventually allowed Pant to become an MP from the Communist Party of Nepal (United) in a country where Maoists had dismissed gay people as “the product of capitalism”.
Even in India, as lawyer Siddharth Narrain points out in Kafila this ruling which has “revolutionary implications” for laws related to marriage, adoption, inheritance, NREGA etc does not come out of the blue.
The Court builds on a recent history of central and state government recognition of the third gender category in state social welfare benefits, national election identification cards, passport forms and the UID form.
The gay movement actually owes much to the trans rights movement. Even now when gay activists in India want to prove that gay issues have been part of our cultural traditions, they borrow from what are essentially transgender stories whether it’s the story of Shikhandi or Ayyappa. When the current chief justice P. Sathasivam slammed Section 377 in 2011, calling it a law that has been “grossly misused” and dubbing it “repressive and oppressive”, he was speaking at the Tamil Nadu State Judicial Academy about the “Rights of Transgender People”. Though he talked both about homosexuals and transgenders, the cases he used to make his point were about transgenders who had been arrested wrongfully or sexually abused in the police station.
In the current ruling, the justices made it clear they were not talking about Section 377 but they also cracked open that door when they said the Centre should “repeal criminal and other legal provisions that prohibit… consensual sexual activity among people of the same age who are over the age of consent.” This judgement will rightly be cited by those fighting Section 377 if they get a chance to argue a curative petition before the court. And many are lamenting the luck of the draw that 377 went before Justices Singhvi and Mukhopadhyaya instead of Justices Radhakrishnan and Sikri.
But perhaps it’s not inappropriate that the people who have been discriminated against the most and had to fight the hardest for very basic rights have had their right to dignity reaffirmed first by the highest court of the land.
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