Today, in NALSA v. UoI, the Supreme Court issued a landmark ruling recognising transsexuals as a third gender, and upholding their rights to equality (Article 14), non-discrimination (Article 15), expression (Article 19(1)(a) and autonomy (Article 21). The judgment involves a wide-ranging discussion of international law and domestic legislation in other countries, engages reams of evidence of actual discrimination against transsexuals in Indian society, and discusses the idea of human rights. It also, as I shall argue, entirely destroys the foundation of Koushal v. Naz, last December’s decision on LGBT rights.
In Paragraph 11 of the case, Justice Radhakrishnan defines “transgender” as an “umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex.” After a brief historical excursion into the history of the transgender community in India, he observes, in Paragraph 17, that S. 377 was brought in at at time when transgenders were thought to come within its ambit, and then, in paragraph 18, he notes that “Section 377, though associated with specific sexual act, highlighted certain identities, and was used as an instrument of harassment and physical abuse…” In the same paragraph, he also holds that in light of Koushal v. Naz, the Court will here “express no opinion on [its constitutionality].” As we will see, however, the matter is not quite so simple.
Indeed, issues of gender identity and sexual orientation are inextricably bound up with each other through the judgment, and the Court – wisely – makes no effort to separate them. Immediately after his analysis of S. 377, in a section titled “Gender Identity and Sexual Orientation”, Justice Radhakrishnan begins by noting that “gender identity is one of the most fundamental aspects of life… it refers to each person’s deeply felt internal and individual experience of gender… including the personal sense of the body which may involve a freely chosen modification of bodily appearances or functions by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms.” (Para 19)
Notice here how gender identity and expressing that identity through conduct, such as dress and speech, are inseparable. This is a point we shall return to.
Justice Radhakrishnan then observes that “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.” (Paragraph 20) This sets the tone for the rest of his judgment, where the two concepts – although distinct – are run together for the purposes of claims to rights.
After referring to international legal principles and foreign judgments, that are deeply solicitous of transgender rights (paras 21 – 42), Justice Radhakrishnan cites evidence (ironically, of a similar nature to that cited in Koushal) of widespread oppression against transgenders in India. (Paragraphs 45 – 46) He follows this up with an account of India’s obligations to follow international human rights law – and, in the absence of Indian legislation, engages in a kind of incorporation by reference, to argue that the international conventions ought to be read into Articles 14, 15, 19 and 21 (Paragraph 53). Armed with this, he has no trouble in holding that the “non-recognition of Hijras/transgender persons denies them equal protection of law… thereby leaving them extremely vulnerable to harassment, violence and sexual assault.” (Paragraph 55) Similarly, he argues that the point of Article 15’s non-discrimination guarantee is to prevent differential treatment of persons “for the reason of not being in conformity with stereotypical generalizations of binary genders… therefore, the discrimination on the ground of sex under Articles 15 and 16 includes discrimination on the ground of gender identity.” (Paragraph 59) Because of the historic discrimination against transsexuals, he also holds that the State must provide them with affirmative action under Article 16(4) of the Constitution.
The most interesting part of the judgment, however, is Justice Radhakrishnan’s analysis of Article 19(1)(a). He holds that “Article 19(1)(a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender.” (Paragraph 62) After citing a few American cases on point, we come to the heart of the judgment, that is, Paragraph 66:
“Gender identity… lies at the core of one’s personal identity, gender expression and presentation and therefore, it will have to be protected under Article 19(1)(a) of the Constitution. A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality.”
“The values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to the members of the transgender community under Article 19(1)(a)… and the State is bound to protect and recognize those rights.”
A standard Article 21 analysis follows (Paragraph 67 onwards), but this would be the ideal point of departure to discuss NALSA v. UoI and Koushal v. Naz.
Recall that in Koushal v. Naz, it was argued that S. 377, insofar as it criminalises same-sex intercourse between consenting adults, violates their rights under Articles 14 and 15. In Paragraph 42 of Koushal, the Court rejects that argument. Let us excerpt the paragraph in full:
“Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.”
The Court’s argument here rests upon a tight conceptual distinction between conduct and identity. Under a normal Article 14 analysis, the Court would have had to examine the classification, examine the rational nexus to a State purpose, and then examine the legitimacy of that purpose. The Court dodged that entire chain of argumentation by holding that all S. 377 did was to classify not persons, but acts – acts of carnal intercourse against the order of nature, and those in accordance with the order of nature. Hence, Article 14 was never attracted. This also allowed the Court to dodge the Article 15 argument, and engage with the Delhi High Court’s analysis of “sexual orientation” coming within the meaning of the word “sex”, because there was no classification of persons at all. In one fell swoop, therefore, the Supreme Court saved itself the trouble of analysing S. 377 on the touchstone of either Article 14 or 15, and this entire edifice rested upon its distinction between a person’s acts/conduct, and her identity.
Only, this distinction is deeply flawed, and NALSA v. UoI exposes the flaw in stark and glaring terms. When it comes to sex and sexual orientation, your “identity” means nothing if you can’t express it. A law that targets conduct, conduct that is the very expression of identity, thereby targets identity itself. When, therefore, S. 377 outlaws homosexuals from engaging in same-sex intercourse, it doesn’t just criminalise a set of acts – in outlawing the most basic expression of one’s sexuality, it criminalises sexuality – and thereby, identity – itself. As Justice Kennedy observed in Lawrence v. Texas:
“When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.”
Similarly, in Elane Photography, the Supreme Court of New Mexico observed, just last year, that:
“… when a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.”
Once the conduct/identity distinction collapses, the entire edifice upon which Koushal v. Naz was raised collapses along with it. The Court cannot now dodge either Article 14 or Article 15. It must, if it wants to uphold S. 377, provide a legitimate state purpose and a rational nexus for a law criminalising homosexuals as a class, and it must expressly engage with the Delhi High Court’s argument.
And lastly, as NALSA v. UoI shows, there is a further issue of Article 19(1)(a) to be considered (incidentally, 19(1)(a) was argued before the Delhi High Court in Naz, but the Court felt it sufficient to decide the case on grounds of 14, 15 and 21). To the extent that Article 19(1)(a) protects core expressions of our identity – including our sexual identity – as the Court holds today, it must necessarily protect homosexuals in expressing their identity. So even if the Court doesn’t wish to collapse conduct and identity – even if it wishes to hold the two to be separate – the logic of NALSA v. UoI leads inexorably to the conclusion that at the very least, in criminalising conduct, S. 377 criminalises the expression of homosexual identity, and therefore suffers from a 19(1)(a) problem.
In sum: if the conduct/identity distinction dissolves, S. 377 violates Article 14 and 15, because in criminalising conduct, it criminalises identity. If the conduct/identity distinction remains, S. 377 violates Article 19(1)(a), because it criminalises conduct that is the expression of identity. Either way, under the logic of NALSA, it is unconstitutional.
All this, of course, does not touch the Court’s holding that gender identity is “integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”, and is therefore also protected by Article 21. (Para 74) This, as well, is inconsistent with the analysis in Koushal v. Naz.
The operative paragraph – with its directions – can be found at the end of the judgment, Paragraph 129. Today’s judgment is progressive in the best sense of the term, and is to be lauded. Equally important, however, today’s judgment is based upon reasoning that is fundamentally at odds with the reasoning in Koushal v. Naz. If NALSA is rightly decided, then Koushal is wrong. Surely, then, the time is now right to rehear Koushal before a Constitution Bench, redeem the promise of full moral membership for all persons, regardless of their sexual orientation, that the Delhi High Court affirmed so eloquently five years ago, and turn the page on one of the darker chapters in the Supreme Court’s civil rights history.