This post reflects on a recent clarification sought by the Indian government regarding whether or not the term ‘transgender’ — as used in NALSA v Union of India — covers lesbian, gay and bisexual (LGB) people.
NALSA was delivered by a Division Bench of Radhakrishnan, J and Sikri, J. The two judges signed off on a nine-point agenda for the empowerment of the transgender community requiring, inter alia, that transgender people be given the option of being identified as the ‘third gender’, and that the State give due recognition to ‘self-identified gender’ instead of biological sex (§129). They also directed the State to grant trans people the benefit of affirmative action and ordered the drafting and implementation of a comprehensive programme of social and medical support (§129). This judgment was lauded for its bold rejection of the gender binary and its empathetic understanding of the lived experience of trans communities.
At the time of delivery, an Expert Committee was already in place to implement the order (§130). Two years later, the judgment remains unimplemented. The Government was awaiting clarifications from the Court before implementation, though senior advocate Anand Grover suggests this was an excuse for non-implementation. The point of confusion was whether LGB people were understood to be trans persons.
It is curious that implementation should lag by two years for something that was amply clear from the text of the judgment. Radhakrishnan, J held that sexual orientation and gender identity are “different concepts” (§20), and Sikri, J held (at §107):
“The grammatical meaning of ‘transgender’, therefore, is ‘across or beyond gender’. This has come to be known as [an] umbrella term, which includes Gay men, Lesbians, bisexuals, and cross dressers within its scope. However, while dealing with the present issue we are not concerned with this wider meaning of the expression transgender.”
Besides this, there seems no logical reason why sexual orientation should be confused with gender identity. As pithily stated by Sandip Roy, “A [cis] lesbian does not worry about whether her passport matches her gender identity. A [cis] gay man does not think twice about which public bathroom he can use.” It is no wonder that the application for clarification was sternly dismissed by the Supreme Court, with a threat to impose costs on the Government.
Even so, the call for a clarification in all likelihood stems from the confusion created by India’s LGBT-related jurisprudence. In Suresh Kumar Koushal v Naz, the Supreme Court upheld the criminalisation of “carnal intercourse against the order of nature” (section 377, Indian Penal Code 1860). A petition to revise this judgment was dismissed and a curative petition against it is now pending. Since a curative petition succeeds only in narrow circumstances where “very strong reasons exist” (§50 of Rupa Hurra v Ashok Hurra), it is dubious that this one will succeed (see here, here and here; cf Samuel 2016). The Legislature too has rejected multiple attempts made by Shashi Tharoor to decriminalise consensual same-sex activity between adults.
NALSA has upset a long-established order of heteronormative sexual control — we can no longer regard only penile-vaginal intercourse as ‘natural’ because we have now expressly recognised the dignity of intersex people, and queer people. Does it still make sense to say, as Koushal does, that section 377 “regulates sexual conduct regardless of gender identity and orientation” (§38)? Roy gives the example of a trans woman who has not undergone sex reassignment surgery and chooses to have sex with a cis man — how does this fit with section 377? Already, the Koushal decision gives scant guidance on how to interpret this vexatious provision beyond saying it is “difficult to prepare a list of acts which would be covered by [section 377] (§38). With NALSA, the difficulty has increased manifold.
Recently, India abstained from voting on a Human Rights Council Resolution, which requires States adopt an independent watchdog to examine wrongdoing against LGBT people. India abstained on account of the ‘legal reality’ in the country. This seems to be a euphemism for the legal mayhem that has been set in motion by a single progressive judgment of the Supreme Court. A reform to section 377 would be a useful starting point to resolve these contradictions.