Rights of the Differently Oriented — Changing Scenario

Human population can broadly be divided genderwise into man, woman and the differently oriented. The differently oriented are sexual minorities; subcategories of whom are gays, lesbians, bisexuals, transgenders, transsexuals, intersexes, etc. Undeniably, the differently oriented have faced violent discrimination and societal pressure to hide their identities since time memorial. After immense struggle, recently a section amongst them has gained recognition rights and a ray of hope can be sensed for others.

The legal framework governing sexual minorities in India revolves around Immoral Traffic (Prevention) Act of 1956 (with major amendments in 1986) and Section 377 of the Penal Code (IPC), 1860.[1] The first achievement was in 1994 when transgenders were granted voting rights. However, issuance of voter identity cards got caught up in the male/female question. In 2009, the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi[2] held that Section 377 was not constitutionally valid. On 12-12-2013 in Suresh Kumar Koushal v. Naz Foundation[3] the Supreme Court upheld constitutional validity of Section 377 and reversed the verdict of Delhi High Court. Interestingly, State chose not to prefer an appeal which was preferred by a citizen. The review petition against Koushal was summarily dismissed.[4] On 3-4-2014, a curative petition was agreed to be heard in an open court[5] and recently on 2-2-2016 its validity with other incidental questions was referred to a Constitution Bench.[6] Immediately after upholding validity of Section 377, another Bench of the Supreme Court in National Legal Services Authority v. Union of India[7] granted legal status to the third gender. After NALSA Centre sent out notices to the States to implement a five step agenda and distribution of funds accordingly. Contrary to the developing trend, on 15-9-2015 the Supreme Court while granting leave in State of Gujarat v. Kirankumar Devmani[8] declined in an interim order to observe homosexuality not to be akin to “social evils”. On 5-10-2015 in Shivani Bhat v. State of NCT of Delhi[9], the Delhi High Court in a petition preferred by a transgender ordered that she must not be subjected to any harassment by State and be allowed to visit US for pursuing her course in neurobiology. On 3-11-2015 the Madras High Court in K. Prithika Yashini v. Tamil Nadu Uniformed Services Recruitment Board[10], allowed candidature of a transgender to Tamil Nadu Police Services as a Sub-Inspector. The Court also directed Tamil Nadu Government to include third gender as a separate category. On 4?2?2016, the Madras High Court (Madurai Bench) held that transgenders applying for jobs as noon meal organisers can be treated as women for the purpose of recruitment.[11]

Globally speaking, the US Supreme Court on 26-7-2015 in Obergefell v. Hodges (5:4 majority)[12] approved same sex marriages as a right guaranteed by both the “due process” clause and the “equal protection” clause of the US Constitution (14th Amendment). On 4-11-2015 the Constitutional Court of Colombia approved full adoption rights for same sex couples.[13] Oklahoma Supreme Court on 17-11-2015 held that a non-biological parent in a same sex relationships have custodial and visitation rights. The Court said that it recognises those unmarried same sex couples who, even before the same sex marriage was legalised in the State, entered into committed relationships.[14] Dr Victoria McCloud, formerly known as Dr Jason Williams, became the first transgender Judge to be appointed in the High Court in the United Kingdom.[15] The Senate in Italy approved the bill allowing civil unions for same sex and heterosexual couples on 26-2-2016 but removed a provision that would have allowed gay adoption, much to the disappointment of gay rights activists.[16] Italy was the only major European country to have so far given no legal rights to same sex couples. On 5-3-2016 the Supreme Court of Alabama ruled in affirmative, upholding the right of same sex marriage unions.[17]

Along with judiciary’s active involvement, the executive and legislature have also taken keen interest in social upliftment of the differently oriented. In May 2014, National Commission for Backward Classes (NCBC) recommended that transgenders should be given reservation under Central List of OBCs in educational institutions and public appointments.[18] In April 2015, Rajya Sabha passed a private member’s Rights of Transgender Persons Bill, 2014.[19] On 27-2-2016 this bill was taken up for discussion in the Lok Sabha and is presently kept pending for further discussion.[20] In the Factories (Amendment) Bill, 2015, the Labour Ministry has reportedly introduced a new section (Section 66-A) on employing transgender persons to ensure “equality and dignity of work” for them in Indian factories. Last year IIMs made provisions for giving equal rights to transgenders. Similarly, Delhi University also added a section for sexual minorities in the postgraduate admission process. Earlier, the University Grants Commission (UGC) sought affirmative action from higher educational institutions in favour of the transgender community. India’s first transgender college Principal Manabi Bandopadhyay was appointed in Krishnagar Women’s College in West Bengal’s Nadia District.[21] Chhattisgarh Government in September granted 2% quota to transgenders in allocations of government shops to public through urban bodies. For the first time, a State Government (Karnataka) chose a transgender for the Karnataka Rajyotsava Award. Akkai Padmashali bagged the award in the field of social service.[22] Tamil Nadu has a provision for changing transgender people’s birth name and sex in Official Gazette and official identity documents either after realising their gender identity or undergoing sex transition surgeries. Though a large number of States have not yet implemented the Nalsa judgment guidelines, slow progress is visible.

It is a democratic misfortune that even after accepting independence for over 65 years, minorities have to still suffer from existential crisis. The openness and awareness about having LGBTs in society and not looking them down based on anatomical differences must reach epidemic proportions including the Supreme Court. The referring Bench in curative petitions challenging vires of Section 377 did not deliberately lay down any questions of reference so as to enable the larger Bench to frame questions of law and admissibility and decide them.[23] It is the final and golden chance for the Supreme Court to set the record straight. In case, legalisation of private consensual sex is not deemed fit by the Supreme Court, at least it must be decriminalised. “Even if it is considered that Section 377 is the only provision in the statute book under which penetrative sexual offences against men and differently oriented can be punished, it overreaches the permissible limits of criminalisable harm.” Similarly, the pending Rights of Transgender Persons Bill, 2015 if passed with concrete improvements by the Lok Sabha will be a landmark move for civil liberties in India. Although the Government seems to restrict itself to rights of transgenders only and ignore other sexual minorities, yet things are in motion; a legislative or judicial push may end an era of exploitation and sufferings.

* Namit Saxena is an Advocate practicing before Supreme Court and High Courts. He is also an Author.

[1]  377. Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

    [2]  2009 SCC OnLine Del 1762 : (2009) 111 DRJ 1 (DB) : (2009) 160 DLT 277 (DB).

    [3]  (2014) 1 SCC 1.

    [4]  Naaz Foundation (India) Trust v. Suresh Kumar Koushal, (2014) 3 SCC 220.

    [5]  Naaz Foundation (India) Trust v. Suresh Kumar Koushal, Curative Petition (Civil) Nos. 88?102 of 2014.

    [6]  Naaz Foundation (India) Trust v. Suresh Kumar Koushal, Curative Petition (Civil) Nos. 88?102 of 2014.

    [7]  (2014) 5 SCC 438.

    [8]  Civil Appeal No. 7208 of 2015.

 [9]  WP (Criminal) No. 2133 of 2015, Siddharth Mridul, J. available at <http://lobis.nic.in/ddir/ dhc/SID/judgement/05-10-2015/SID05102015CRL W21332015.pdf>, last accessed on 7-3-2016 from India.

  [10]  2015 SCC OnLine Mad 11830.

[11]<http://www.deccanchronicle.com/nation/current-affairs/060216/call-transgender-for-woman-s-job-interview-court-rules.html>, last accessed on 7-3-2016 from India.

  [12]  <http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf>, last accessed on 7-3-2016 from India.

  [13]  <http://elpais.com/elpais/2015/11/05/inenglish/1446725045_773780.html>, last accessed on 7?3-2016 from India.

  [14]  <http://law.justia.com/cases/oklahoma/supreme-court/2015/113778.html>, last accessed on 7?3-2016 from India.

  [15]  <http://www.dailymail.co.uk/news/article-3435412/All-rise-UK-s-transgender-judge.html>, last accessed on 7-3-2016 from India.

  [16]  <http://www.nytimes.com/2016/02/26/world/europe/italian-senate-approves-civil-unions-for-gay-couples-but-not-adoptions.html?_r=1>, last accessed on 7-3-2016 from India.

[17]<http://www.usatoday.com/story/news/2016/03/07/supreme-court-gay-lesbian-adoption marriage/78760574/>, last accessed on 7-3-2016 from India.

  [18]  <http://www.tehelka.com/2014/05/ncbc-recommends-reservation-for-transgenders/>, last accessed on 7-3-2016 from India.

  [19]  <http://www.prsindia.org/media/articles-citing-prs/rs-passes-pvt-members-bill-on-transgender-rights-first-time-in-45-years-3760/>, last accessed on 7-3-2016 from India.

[20]  <http://www.ndtv.com/india-news/lok-sabha-takes-up-bill-to-end-transgender-discrimination-1281768>, last accessed on 7-3-2016from India.

[21]<http://www.thehindu.com/news/national/other-states/manobi-bandopadhyay-indias-first-transgender-college-principal-takes-charge/article7298708.ece>, last accessed on 7-3-2016from India.

[22]<http://www.thehindu.com/todays-paper/in-a-first-transgender-chosen-for-rajyotsava-award/ article7825149.ece>, last accessed on 7-3-2016 from India.

  [23]  Naaz Foundation (India) Trust v. Suresh Kumar Koushal, Curative Petition (Civil) Nos. 88?102 of 2014.

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    “Human population can broadly be divided genderwise into man, woman and the differently oriented.” What’s the sense of this genderwise categorization? Do you mean to say that the “differently oriented” belong to some unearthly gender?

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