India’s highest court ruled Tuesday that a person can be legally recognised as gender-neutral, a landmark judgement that raises hopes of an end to discrimination against several million transgenders and eunuchs.
The Supreme Court also said transgenders should be included in government welfare schemes offered to other minority groups in a bid to pull them out of the impoverished margins of Indian society.
“Transgenders are citizens of this country and are entitled to education and all other rights,” Justice K.S. Radhakrishnan told the court while handing down the ruling.
“Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue,” said Radhakrishnan, who headed a two-judge bench on the case.
The case was filed in 2012 by a group of petitioners including prominent eunuch and activist Laxmi Narayan Tripathi seeking recognition for the transgender population and equal rights under the law.
Transgenders and eunuchs or hijras — a term for cross-dressers and men who have been castrated — often live on the extreme fringes of India’s culturally conservative society.
Transgenders are often seen as inauspicious and even cursed in traditional Hindu culture. Many resort to prostitution, begging or menial jobs that leave them mired in poverty.
The ruling, hailed as landmark by activists, comes just months after the same court reinstated a ban on gay sex and sparked accusations it was dragging the country back to the 19th century.
– ‘Proud to be Indian’ –
“Today, for the first time I feel very proud to be an Indian,” activist Tripathi told reporters outside the court.
“Today my sisters and I feel like real Indians and we feel so proud because of the rights granted to us by the Supreme Court.”
Australia’s top court also ruled earlier this month that a person can be legally recognised as gender-neutral, ending a long legal battle by a sexual equality campaigner.
Germany last year passed a law allowing babies born with characteristics of both sexes to be registered as neither male nor female. Several countries including Australia, Germany and Nepal also allow people to have an X on their passport rather than male or female.
In its judgement, the court in India instructed state and federal governments to allow transgenders to identify themselves on official documents as a third gender.
It also ruled governments should include transgenders in “socially and economically backward” groups that are given quotas in jobs and education, said the lawyer for the petitioners Sanjeev Bhatnagar.
Transgenders also have the right under the constitution to be given access to medical care and other facilities regardless of their gender, the court said.
“Direction has been given to all the state governments and the central government to comply with the direction of the court to give them reservations and to identify them and give them their rights,” Bhatnagar told reporters.
Some state governments, such as southern Tamil Nadu, and official bodies already recognise transgenders, including the Election Commission which ruled in 2009 that they could be listed as “others” on electoral rolls and voter identify cards.
Official estimates for India’s transgender population are not known but they are thought to number several million.
Transgenders are classified as people who have either had sex change operations or who regard themselves as the opposite of their born gender, according to Sanjay Srivastava, professor of sociology at the Institute of Economic Growth in New Delhi.
However only 28,341 are registered with the Election Commission for the parliamentary elections currently taking place, highlighting the fear and stigma many face.
The ruling comes after the court’s decision in December banning gay sex. Gay sex had been effectively legalised in 2009 when the High Court ruled that the colonial-era penal code prohibiting “carnal intercourse against the order of nature” was an infringement of fundamental rights.
Gay sex has long been a taboo subject in India, where homophobic tendencies abound and many still regard being gay as a mental illness.