Category Archives: Sexuality

Guest Post: The Trans Bill and Its Discontents – II

(In this Guest Post, Vasudev Devadasan concludes his analysis of the Transgender Bill.)

In the last post (here) we defined transgender persons as individuals who experience a conflict between the ‘gender identity’ assigned to them at birth, and ‘gender identity’ they develop through the course of their lives. Thus, an individual may be designated ‘male’ or ‘female’ at birth, but over time may come to identify with the opposite sex, or even outside the male-female binary as a transgender. In NALSA v UoI (NALSA) the Supreme Court affirmed both the right of the individual to choose their own gender and the existence of a third gender (transgender). The Court also ruled that discrimination against transgender persons for failing to conform with gender stereotypes (by choosing an alternative ‘gender identity’) amounted to discrimination on the grounds of ‘sex’ and was prohibited by Articles 15 and 16 of the Constitution. Lastly the Court held that transgender persons were members of ‘backward classes’ deserving of reservations under Articles 15(4) and Articles 16(4) of the Constitution.

When making these statements the Court had the benefit of speaking in the abstract. In implementing these guarantees the government faces the task of conferring benefits on a group whose membership is based on a subjective determination of conflicting ‘gender identity’ experienced only by the individual in question. How does the government provide reservations to ‘transgender persons’ when the only way to know whom a ‘transgender person’ is, is an internal conflict experienced by the transgender person?

In this post, I examine the anti-discrimination provisions in the new Transgender Persons (Protection of Rights) Bill and explore the difficulty of securing equality and affirmative action for a group whose membership cannot be objectively determined. I also examine the current Bill’s provisions on begging and residence (prohibiting transgender persons from being separated from their families) and question whether they are in tune with the developing concept of ‘autonomy’ under the Constitution.

Non-Discrimination

The current Bill provides a procedure for the ‘Recognition of Identity of Transgender Persons’. While we discussed the shortcomings of this procedure on the last post, the rationale for having a recognition procedure is clear. Non-discrimination rights arise when citizens belong to a class or category of citizen as distinguishable from other citizens. A claim to non-discrimination will be acknowledged when a citizen can demonstrate belonging to this class or category and then show that such belonging is the “ground” for the discrimination in question. Therefore, the current Bill provides a definition of ‘transgender person’, provides a procedure to recognise a ‘transgender person’, and then Section 3 of the Bill states, “No person shall discriminate against a transgender person…” by denying education, unfair treatment in employment etc. The provision thus protects individuals who are recognised as transgenders under the scheme of the Bill.

Before moving on, two points should be noted. Firstly, the Bill does not create reservations for transgender persons in education or employment. While the National Commission for Backward Classes did formally recommend that transgender persons be included in the category ‘Other Backward Class’, and while these recommendations are ordinarily binding on the Government, the current Bill does not create reservations for transgender persons. Secondly, the Bill does not define the term “discrimination”. By not defining “discrimination” the Bill is silent on how and when the protection guaranteed by Section 3 would be violated. In contrast, the 2014 Rajya Sabha Bill defined discrimination as “any distinction, exclusion or restriction on the basis of gender identity and expression which [restricts the exercise of human rights] on an equal basis with others.” Just as the Supreme Court did in NALSA, this definition states that where a person is treated differently because of their ‘gender identity or expression’, and such different treatment affects their enjoyment of rights, discrimination is deemed to have occurred.

The problem facing the government is that by creating a recognition procedure that the State controls, they have severely restricted the individual’s ability to self-identity with the gender of their choice (a choice the Court in NALSA held to be protected by Article 21). There are two seemingly conflicting goals here: (a) to fix and regulate the categories of sex (male, female and transgender), and (b) to allow individuals to freely move between these categories by choosing their own ‘gender identity’. The current Bill seeks to filter the subjectivity so essential to the transgender identity through a lens of legal certainty. The question is therefore whether the actual or potential mobility of ‘gender’ that NALSA and the very definition of transgender espouse can be accommodated within a regulatory non-discrimination framework.

Victoria and New South Wales for example dispense with the requirement of having a fixed legal identity when determining whether transgender persons have been discriminated against. The Victorian legislation (the Equal Opportunity Act) prohibits discrimination on the grounds of ‘gender identity’ which is defined as:

…the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such):

  1. by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
  2. by living, or seeking to live, as a member of the other sex.

Thus, what matters is not whether the individual is recognised in law as a transgender person. Rather, whether they are perceived by society as being a transgender person. Thus, rather than the law having to recognise an immutable characteristic of ‘transgender’ which both violates the principle of self-identification and aims to ‘normalise’ transgender persons by creating a fixed gender/legal identity, discrimination occurs when an individual is discriminated against because they are perceived to be transgender, irrespective of whether they are actual transgender. For example, if an individual is denied employment on the ground that they are perceived to be transgender, a valid claim for discrimination can be made against the employer. Sharpe terms this the “interplay of performance and gaze” and this provides a framework within which the law is able to comprehend the fluid nature of the transgender identity and yet protect transgender persons from discrimination. Conferring rights without requiring a fixed legal identity.

While this solution may work for non-discrimination simpliciter, it still leaves the question of affirmative action open. Where legal benefits are positively conferred on a group, the State has a legitimate interest is ensuring that the individuals who are availing of these benefits belong to the group. The current Bill creates a ‘screening committee’ which includes medical personnel to verify and recognise an individual as a transgender person. This is likely to expose individuals to unwanted and intrusive scrutiny. Thus, a balance needs to be struck between the State’s interest to curb the abuse of affirmative action benefits, and an individual’s freedom to change genders with dignity.

In Secretary, Department of Social Security v HH, Justice Brennan moves the needle away from biological verification, to a slightly more holistic test. In determining an individual’s gender, he notes, “the respondent’s psychological and social/cultural gender identity are the matters of primary importance not sex chromosomal configurations or gonadal or genital factors…” The understanding that ‘sex’ is not a determinant factor, and that “psychological, social and cultural” factors can determine gender seems to be a step in the right direction. This ties in with the Indian Supreme Court’s understanding that an individual’s psyche is part of ‘sex’ within the meaning of Articles 15 and 16. If the ‘screening committee’ that the Bill creates was to examine this, a balance maybe struck.

Provisions on Residence

The current Bill also seeks to secure the right of transgender persons to stay in their own home. Section 13(1) states that, “No transgender person shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court…” Sub-clause 3 of the same Section goes on to note, “Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall […] direct such person to be placed in a rehabilitation centre” The framework created by the Bill compels a transgender person to either continue living with their family, or be placed in a rehabilitation centre. The section makes no distinction between a ‘minor’ and an adult and creates a rather intrusive mechanism of regulation where a transgender person cannot choose where to live.

The Parliamentary Standing Committee raised concerns that the two options provided by the Bill would not guarantee protection given the realities present on the ground. Several transgender persons face significant abuse at the hands of their own families who deny them the right to self-identity with a gender of their choosing and restrict their gender expression. The nature of the rehabilitation centres is also unknown. The Committee noted that several transgender persons choose not to live at home, but rather within transgender communities where they form an alternative network of friends and family.

The Committees observations on Section 13 raise interesting constitutional questions given the understanding of ‘autonomy’ articulated in the Right to Privacy (Puttaswamy) earlier this year. At the core of the Court’s rationale in Puttaswamy was the idea that privacy protects an individual’s liberty by securing ‘dignity’ and ‘autonomy’. Privacy in the Court’s articulation is the right to determine how one should exercise the freedoms guaranteed by the Constitution. Thus, ‘autonomy’ guarantees the right of every person to make essential choices which affect the course of life.” (⁋113) The State cannot interfere with an individual’s decisions concerning several core areas that the Court describes (non-exhaustively) as including family, marriage, procreation, and even what to eat and drink.

By compelling transgender persons to either live at home or in a State run rehabilitation centre Section 13 seems to deny them the right to choose the community they wish to live in. Deciding to live at home or not would fall within an ‘essential choice’ relating to ‘family’. And by denying transgender persons the third alternative (of living within a transgender community) the case could be made that the State is interfering with their ‘autonomy’ as protected under Puttaswamy.

Provisions on Begging

Lastly, Section 19(a) of the Bill makes it an offence to ‘compel or entice a transgender person’ to commit the act of ‘begging’. Transgender persons have a well-documented history of suffering abuse at the hands of anti-vagrancy provisions such as this, simply because begging is often the only choice of income generation available. As the Standing Committee noted, transgender persons are often booked under analogous ‘begging’ provisions merely because they are present in public places. While the provision only penalises the offence of compelling a transgender person to beg, there is a thin line between criminalising an individual for begging out of their own volition and compelling another to beg, with the latter often being used against the former.

In Ram Lakhan v State, Justice Ahmed examined this distinction in the context of the implicit defences to the offence of ‘begging’. He noted that when an individual begs out of the sheer compulsion to stay alive, he is protected under the defence of ‘necessity’. Where an individual is compelled to beg he does so under threat of violence and even death and is thus protected under the defence of ‘duress’. In both cases, the individual has no real choice, and it is this involuntariness that provides the basis for both the defence of ‘necessity’ and ‘duress’ making it a “distinction without a relevant difference”. In the course of practical policing there may be obvious benefits to the distinction between a begging racket and a person begging to prevent the onset of starvation. However, the inclusion of the legislative provision as it is currently framed may be counter-productive, especially given the existence of parallel anti-begging laws.

Conclusion

We have seen how the current Bill fails to understand the core principle of ‘self-identification’ in defining a transgender person, how it struggles with the question of non-discrimination, and takes an approach to residence and begging that doesn’t appreciate the nuances of the law and its relationship with the ground realities faced by transgender persons. Creating a regulatory framework for transgender persons is undoubtedly a complex and delicate task. Certain questions, such as legal recognition for transgender persons, and the prevention of discrimination pose questions that expose the limits of law as crafted within the male-female binary. On the points of residence and begging however, the Bill seems to lack an understanding of ground realities required to upturn generations of neglect towards transgender persons. Even in their best possible forms, these provisions would require sensitive administration to have a meaningful impact in the long run. Perhaps what is most troubling is that none of the criticisms raised in this piece or the last are new. Given the excellent platform created for the government with the NALSA verdict, the original Rajya Sabha Bill and the various committee reports, the fact that the Bill remains in its current form is lamentable.

 

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Filed under Article 21 and the Right to Life, Bodily Integrity, Bodily Privacy/Integrity, Decisional Autonomy, Equality, Non-discrimination, Privacy, Sexuality

Guest Post: The Trans Bill and its Discontents – I

(This is a guest post by Vasudevan Devadasan.)

This week the Transgender Persons (Protection of Rights) Bill is up for vote in the Lok Sabha. The Bill has had a comparatively short but turbulent history. On the back of the National Legal Services Authority v UoI (NALSA) judgement and an Expert Committee Report by the Ministry of Social Justice and Empowerment (here) the Bill was first introduced and passed as a Private Member Bill by the Rajya Sabha in 2015. A year later however, the Ministry introduced a modified version of the Rajya Sabha Bill and referred it to committee. The Standing Committee (whose report can be found here) lambasted the Bill on several points that we will discuss here and on subsequent posts. Despite the Standing Committee’s report, the provisions of the bill have not been modified and continue to raise some troubling constitutional issues.

Beginning with the distinctions of ‘sex’ and ‘gender’, as well as ‘gender identity’ and ‘gender expression’, this post examines the interpretation of Articles 19 and 21 in NALSA. While there are a host of practical and legal ramifications of introducing such legislation, this post focuses on the constitutional issues raised by the definition of “transgender” in the current Bill and the ‘screening process’ that individuals have to undergo to secure legal recognition of their gender identity.

The constitutional framework

Before looking at the multiple definitions of “transgender” that have been used by the bills in parliament, its crucial to understand the constitutional framework created by NALSA and Article 19 and 21. (There are other judgements before and after that contribute to this framework, but the relevant principles are discussed contextually in NALSA.) Firstly, the Court distinguishes between ‘sex’ and ‘gender’. The former is determined by biological characteristics such as chromosomes and internal and external sex organs, and is assigned to individuals at birth while the latter is constituted by an individual’s own experience, developed through innate belief, upbringing, society and culture. In the case of a transgender person there is a conflict between their “gender identity” assigned to them at birth, and the one they develop through the course of their life. Secondly, while ‘gender identity’ refers to an individual’s internal experience of gender, ‘gender expression’ refers to their outward expression, as perceived by society.

It is the right of transgender persons to choose their gender identity that the Supreme Court upheld in NALSA. In the Court’s own words, “self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed by Article 21”. Additionally, the Court held that ‘gender expression’ by way of dressing, speaking, or behaving was protected under Article 19. The invocation of ‘personal autonomy’ and ‘self-expression’ is crucial, because this means that the decision of a transgender person in choosing a gender (whether male, female) is made is made by the individual, as an expression of personal choice. In fact, the Court explicitly rejected an objective ‘medical’ or ‘pathological’ standard to determine an individual’s gender (¶75) The Court also recognised that “transgender” constituted its own, standalone, gender for individuals who did not wish to associate themselves with either the male or female gender. In summary, a transgender person could choose to be recognised as either male or female based on their choice, or alternatively could choose to be recognised as transgender.

Self-identification is a promising idea in principle and may work in practice as well. For example, Argentina passed a statute that recognises an individual’s right to gender identity, and allows a person to change their sex in public records by filing an affidavit. However, this is clearly more helpful to individuals who want to change their gender identity than individuals who wish to identify outside the male-female binary. Additionally, the Court in NALSA sought both non-discrimination and affirmative action to be taken for transgenders. To secure these goals, there needs to be some practicable process or method by which the State can identify transgender persons. The crux of the matter then becomes the suitable level of State-scrutiny over an individual’s decision to identify with a gender, be it male, female, or transgender. It is important to note that the purpose of scrutiny must not reach a level so as to interfere with the individual’s autonomy to choose a gender, but sufficient to enable recognition and efficient governance.

The (current) Transgender Bill

The primary issue with the current bill stems both from its definition of the term “transgender person”, but also from the fact that to be recognised as a “transgender person”, one must undergoe a ‘screening process’ conducted by, inter alia a medical officer and a psychologist/psychiatrist. Section 2(i) defines a “transgender person” as one who is:

  • Neither wholly female nor wholly male; or
  • a combination of female or male; or
  • neither female nor male; and

whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.

The use of the word “and” after clause (c) makes the definition conjunctive. Thus, to fall under the definition both the sexual characteristics and the gender characteristics of the definition must be met. By adding a pathological aspect to the definition of transgender, the Bill continues to view transgender as a medical or biological anomaly outside the normal duality of male and female. As we noted earlier, sex and gender are two distinct concepts; yet the definition in the Bill conflates them, both narrowing the scope of people who fall under the Bill’s protection, and distorting the definition of a transgender person in the national discourse. The definition also runs contrary to the rationale espoused in NALSA which explicitly ruled out the use of a ‘biological test’ to determine if a person is transgender. When looked at in contrast to the definition provided by the Expert Committee Report and the Rajya Sabha Bill, the conflation of ‘sex’ and ‘gender’ is apparent. They specifically dispensed with the male/female binary, and defined “transgender person” as:

a person, whose gender does not match with the gender assigned to that person at birth and includes trans-men and trans-women (whether or not they have undergone sex reassignment surgery or hormone therapy or laser therapy etc.), gender-queers and a number of socio-cultural identities…

In addition to the definition, the current Bill sets up a ‘screening procedure’. Section 4 states that a transgender person “shall have a right to self-perceived gender identity”. However, the recognition of this freely chosen gender identity is only possible when the procedures that the Bill stipulates are completed. Under Sections 5 through 7, a transgender person must approach a District Magistrate, make an application for issuing a ‘certificate of identity as a transgender person’. The application shall be evaluated by the ‘District Screening Committee’ which as noted above includes medical personnel. The inclusion of medical personnel as part of the identification procedure again hints at the legislature’s conflation of ‘sex’ and ‘gender’. By not specifying the criteria upon which the ‘Screening Committee’ shall grant or reject an application, the Bill risks the identification procedure, (a deeply personal choice originating in an individual’s internal experience of gender) morphing into an objective medical assessment. In NALSA the Court also grounded the principle of self-identification in an individual’s dignity. The Bill runs the risk of violating this principle by subjecting transgender persons to unnecessary medical scrutiny.

The Bill also makes the State (through the ‘Screening Committee’), as opposed to the individual, the final arbiter on an individual’s gender identity. Under the Bill, the Screening Committee acts as a gatekeeper to an individual being able to fully experience their self-perceived gender identity in society. This runs against the rights of ‘self-expression’ and ‘personal autonomy’ that Article 19 and 21 confer on citizens. As ‘gender expression’ is protected under Article 19(1) and the Supreme Court has recognised that individuals have a ‘positive right to make decisions about their life’ under Article 21 the constitutional validity of the ‘Screening Committee’ will certainly raise some constitutional questions as it poses a restriction on the legal recognition of an individual’s gender identity.

Lastly, Section 7 allows the District Magistrate to grant a “certificate of identity as [a] transgender person…” seeming to negate the possibility that a transgender person may choose to identify as a male or female. At its core, the idea self-identification would allow a transgender person to choose to identify with either the male, female, or transgender identity. Section 7 seems to relegate transgender persons as explicitly and eternally outside the male female binary that Indian society deems normal.

Conclusion

The current version of the Bill has received a lot of criticism on a wide range of issues. Since its inception it has seen the loss of several prominent aspects including exclusive courts for transgenders, reservation in educational institutions and incentives to the private sector to employ transgender persons. While these are notable lapses, far more troubling is that the Bill seems to misunderstand the very individuals it seeks to protect. By conflating the concepts of ‘sex’ and ‘gender’, and imposing an opaque recognition procedure, the Bill does little to uphold the core principle of self-identification and dignity as articulated in Article 19 and 21.

 

 

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Notes from a Foreign Field: The Supreme Court of Belize Strikes Down its Anti-LGBT Law

Two days ago, in Caleb Oroczo vs The Attorney-General of Belize, the Supreme Court of Belize struck down Section 53 of the country’s Criminal Code, which penalised “carnal intercourse against the order of nature.” The Supreme Court found that Section 53 violated the claimant’s constitutional rights to dignity, privacy, and non-discrimination. The judgment stands out for the brevity of its reasoning, its close attention to evidence of LGBT discrimination, and its humanity, three qualities which, experience has taught us, cannot be taken for granted in cases of this kind.

The Court began its scrutiny of the Section by a quick foray into the history of anti-sodomy laws. In paragraph 9, it observes that the antecedent of sodomy laws in the Caribbean was Section 377 of the colonial Indian Penal Code, brought into force in 1860. The Belize Criminal Code of 1888 penalised “unnatural carnal knowledge”, but only if it was non-consensual. By an amendment of 1944, the requirement of non-consent was removed, and the Section was given its present form.

The Court then went into the question of the interpretation of Section 53. Before the Supreme Court, a number of Churches had also impleaded themselves in support of the Section. These Churches argued that Section 53 did not only apply to homosexuals, but also covered anal sex as well as oral sex between men and women. On a consideration of the evidence, however, the Court found that Section 53 had been primarily used to target male homosexuals, and therefore, despite its ostensibly gender-neutral language, was unevenly applied to men.

The Claimant before the Court was a homosexual man. From paragraphs 27 to 33, the Court considered his evidence, extracting two paragraphs from it to demonstrate “constant harassment, mocking and stigmatisation”, as well as taking note of the fact that he had been subjected to abuse and threats of violence on multiple occasions. The Court also recorded his evidence to the effect that members of the LGBT community often shun tests for HIV/AIDS because of the stigma involved, as well as the threat of criminal prosecution. This evidence was buttressed by formal reports that had reached the same conclusion, as well as UNIBAM, an NGO representing LGBT persons.

After considering the Claimant’s personal evidence, the Court then took notice of expert reports by psychiatrists, which pointed out that homosexuality is not a mental disorder (it was removed from the American Psychiatric Association’s list of mental disorders), and that “conversion therapy” was damaging and dangerous. It also took notice of a report filed by Executive Director of the Belize Family Life Association, which showed that criminalisation had the effect of driving LGBT people underground, and was consequently a threat to their health (paragraph 38). This was corroborated by two other expert reports.

With the help of this evidence, the Court was able to find that the Claimant had locus standi to pursue this case, since by engaging in same-sex intercourse, he ran the “perpetual risk” of being charged and prosecuted under Section 53. The Court also swiftly disposed off another preliminary objection, based upon the separation of powers. Rejecting the argument that this was an issue best left to the Parliament, the Court clarified that “the Supreme Court is the designated guardian of the rights conferred under the Constitution. It cannot shirk from such responsibility by by asserting that any change to legislation is a matter best left to the legislature. To do so would be to act in defiance of the mandate of the Constitution itself.” (paragraph 53) The Court also addressed the issue of strong religious sentiments against homosexuality, noting that “[while] the respect and influence of the Churches in Belize cannot be ignored… Belize is a secular state that with a written Constitution that provides for the protection of fundamental human rights and freedoms.” (paragraph 56)

With these preliminary objections out of the way, the Court proceeded to consider the merits of the argument. Starting with the right to dignity, it adopted the language of the Canadian Supreme Court in understanding dignity as being about “self-respect” and “self-worth” (paragraph 63). Evidence of stigmatisation had already been placed on record earlier, and in light of this, the Court found that Section 53 violated the claimant’s constitutional right to dignity (paragraph 67). The Court made a similar finding with respect to the right to privacy which, it held “emanated” from the right to dignity (paragraph 68). Under the Constitution of Belize, the right to privacy could be curtailed under certain circumstances, one of which was public morality. The State argued that Section 53 legitimately curtailed the right to privacy on the basis of public morality. However, this argument was rejected by the Court, on the basis that it was “a bald assertion not supported by any evidence.” (paragraph 69) The Churches also raised “public health” as a ground, citing a study about the Belize Central Prison that had found that men having sex with men (MSM) led to a higher risk of HIV-AIDS. However, on considering the balance of evidence, the Court held that there was enough professional scientific material on record (referred to above) that demonstrated the opposite. It therefore rejected the public health argument on grounds of evidence as well (paragraph 73). Finally, the Court considered the public morality argument made by the Churches, who claimed, in detailed affidavits, that homosexuality went against the moral sentiments of the majority of the people of Belize. In paragraph 81, the Court rejected this argument in the following terms:

There can be no doubt that the Reverend gentlemen deposed to views that that they sincerely and conscientiously hold, and that are representative of a majority of the Christian community and perhaps of the population of Belize. However, from the perspective of legal principle, the Court cannot act upon prevailing majority views or what is popularly accepted as moral. The evidence may be supportive but this does not satisfy the justification of public morality. There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. No evidence has been presented as to the real likelihood of such harm. The duty of the Court is to apply the provisions of the Constitution.”

In other words, the Court rejected the notion of a free-standing, pure “moral harm”, contained solely in hurt feelings or outraged sentiments. Mere moral outrage could not be a sufficient ground for restricting basic rights, unless an accompanying harm could be demonstrated. Although the Court did not elaborate upon what it understood the term “harm” to mean, it was clear about what it did not mean.

Lastly, the Court held that Section 53 violated the right to non-discrimination on grounds of sex. Citing the famous Toonen vs Australia, that had interpreted “sex” in the non-discrimination clause of the ICCPR to include “sexual orientation”. The Court held that since Belize had ratified the ICCPR, it was bound by the authoritative interpretation of that instrument by the UN Human Rights Committee (paragraph 94). Consequently, “sex” under the non-discrimination clause of the Belize Constitution included “sexual orientation”, and Section 53 was therefore unconstitutional. As I have argued before, there are two ways of understanding this contention: one (which I find unconvincing) is that sexual orientation is an “analogous” ground to “sex”, and is therefore read into a non-discrimination clause as a separate right altogether. This seems to me to be textually insupportable. However, the other way of understanding this is that discrimination on the basis of sexual orientation has its origins in sex: it is precisely the non-conformity to sexual roles that open up LGBT persons to legal and social persecution. Consequently (as has been argued by certain American scholars), discrimination on grounds of sexual orientation should be considered as part and parcel of sexual discrimination, since both are caused by the same set of underlying stereotypes.

Having found multiple constitutional violations, the Court then finished by reading down Section 53, stipulating that “this section shall not apply to consensual sexual acts between adults in private” (paragraph 99).

At 38 pages, the judgment of the Supreme Court of Belize is a model of crisp, lucid, and tightly-reasoned legal prose. There are a few salient features that I would like to quickly recap (and attentive readers will note that the structure of reasoning is virtually a mirror image of the judgments of other constitutional courts that have upheld sodomy laws as constitutional):

  • Although the language of the section is ostensibly gender neutral, the Court holds that it admits of uneven application, and has indeed been unequally applied; consequently, it gives rise to a constitutional cause of action
  • The Court rejects the argument that this is a matter best considered by Parliament, reasoning that its constitutional mandate is to uphold fundamental rights
  • The Court rejects justifications based purely on grounds of religion, on the basis that the Constitution commits the nation of Belize to being a secular polity. In other words, religious justifications for curtailing fundamental rights do not count as constitutionally admissible reasons
  • After the claimant has demonstrated prima facie infringement of his rights, the Court places the burden of justifying the curtailment upon the State. It engages with the evidence on record (especially with respect to the medical evidence), and finds that on its own terms, the State has failed to discharge the evidentiary burden upon it
  • In considering the public morality argument, the Court refuses to constitutionalise hurt moral sentiments, and insists upon demonstration of actual harm
  • The Court engages throughout with comparative constitutional jurisprudence in order to determine the meanings of fraught terms such as “dignity”.

In terms of legal clarity, intellectual rigour, and of course, in terms of humaneness, sensitivity, and empathy in dealing with the so-called rights of the minuscule minority, one probably could not ask for more. The Supreme Court of Belize has joined numerous other judiciaries in upholding one of the most basic human rights that there is. One can only hope that other constitutional courts will eventually follow it.

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Guest Post: Sex, Sexual Orientation, and the Courts

(In this guest post, Vansh Gupta explores a recent ruling of the US Equal Opportunity Commission that speaks directly to the Indian debate over the constitutionality of s. 377)

The U.S. Equal Employment Opportunity Commission recently issued a ruling (available here) recognising discrimination on the basis of sexual orientation as discrimination on the basis of sex. Its immediate impact is that employees can invoke the Civil Rights Act (Title VII) when they are discriminated against on the basis of their sexual orientation, even though sexual orientation is not an explicitly prohibited basis for making employment decisions. As an interpretive exercise, however, the decision has wide-ranging ramifications. It affirms the position that ‘sex’ can be read to include ‘sexual orientation’ in statutory material.

The Commission considers that sexual orientation cannot be defined or understood without reference to sex (a gay man is gay precisely because he attracted to males). The Commission finds that there is ‘an inescapable link’ between sexual orientation discrimination and sex discrimination as discrimination on the basis of orientation is premised on ‘sex-based preferences, assumptions, expectations, stereotypes or norms’. It describes this link in the following 3 ways-

  • Sexual orientation discrimination is sex discrimination because it will require a person’s sex to be taken into account, for instance when a lesbian woman is reprimanded for speaking about her female partner in the workplace, but a straight man isn’t.

The treatment of the person is different precisely because the employee’s sex is different. The equivalence therefore that is drawn here is not between gay men and lesbian women (i.e. both would be reprimanded for demonstrating same-sex affection), but rather between a woman (who happens to be lesbian) and a man, for engaging in the same conduct (speaking about a female affectionately).

  • There is also the understanding that sexual orientation discrimination is associational discrimination on the basis of sex (sex must be taken into account when an employee is treated differently for associating with a person of the same sex). This follows from a line of rulings concerning interracial marriage or friendship. (A white man being punished for marrying a black woman, necessarily takes into account his race), but the EEOC expands the reasoning to apply to sex discrimination as well.
  • And finally, the third rationale is that sexual orientation discrimination is sex discrimination because it involves discrimination on the basis of gender stereotypes, which has already been held to prohibited by the term ‘sex’ in the Civil Rights Act. Courts have already held that claims against gender stereotyping can be brought by lesbian, gay and bisexual individuals if they are treated adversely for being inadequately ‘masculine’/’feminine’, based on their appearance, mannerisms or conduct. The EEOC also recognises however that discrimination of LGB individuals on the basis of gender stereotypes is about more than assumptions about what behaviour is masculine or feminine; there is also an element of enforcing ‘heterosexually defined gender norms’. Real men are not just masculine, but also straight.

India does not have an omnibus Civil Rights Act as in the US or an Equality Act as in the UK, but reference to the principle of sex(ual?) equality is found in statute (see S.4 and 5 of the Equal Remuneration Act) and A. 15 of the Constitution prohibits discrimination which is only on the basis of sex.

Readers will recall that the Delhi High Court had invoked A. 15 in its analysis while deciding the now-overturned Naz petition. Although the court read down S. 377 of the IPC on the basis of a web of reasoning concerning A. 14 (equal protection of laws), 15 and 21 (privacy), the intent and the result insofar as A. 15 is clear: the term ‘sex’ in A. 15 must be read to include ‘sexual orientation’.

“104. We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights.”

While the Court has dealt with A. 14 and 21 extensively, its A. 15 analysis is limited to the a few paragraphs, relying primarily only on the conclusions of a number of foreign judgements. The High Court does however make an effort at explaining how an unenumerated ground can be the basis for holding discrimination. (“There will be discrimination on an unspecified ground if it is based on an attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner”, following from the South African constitutional Court’s decision in Harksen v. Lane.”)

The difference between the treatment of the matter by the Delhi High Court and the EEOC is that the EEOC relies on an understanding and interpretation of ‘sex’ to determine that sexual orientation discrimination is sex discrimination, whereas the High Court considers discrimination on the basis of sexual orientation to be analogous to sex discrimination.

This difference is not trivial. A. 15 specifically enumerates prohibited categories of discrimination. By including an analogous ground, the Court opened the way for A. 15 to be read expansively vis-à-vis other grounds as well. But the Civil Rights Act can only be used for the grounds that it specifies (necessitating Americans with Disabilities Act to be enacted to provide similar protections for persons with disabilities).

There is also the consideration that A. 15 is a constitutional provision, and is more amenable to expansive interpretation than a statutory term. EEOC-like reasoning would perhaps be necessary for interpreting ‘sex’ in statutory provisions such as S. 4 and 5 of the Indian Equal Remuneration Act.

Naz offered a promising start to a new way of dealing with A. 15 altogether in terms of both its method and result. Since its total reversal by Suresh Kumar Koushal, this possibility is now gone as Naz losing all its precedential value. It is another matter that in doing so the Supreme Court did not rule or comment on the High Court’s treatment of A. 15 at all, choosing to notice only that the High Court struck down S. 377 inter alia on the basis of 15, recording the contentions of the parties on its applicability, and after a (shoddy) analysis of only 14, concluding that the High Court was unjustified in finding S. 377 to be ultra vires both A. 14 and 15. The curatives pending before the Supreme Court highlight this glaring omission, but for the moment, sexual minorities remain a ‘miniscule fraction of the country’s population’ undeserving of the protection of their so-called rights.

(Vansh is a law researcher with Justice Ravindra Bhat at the High Court of Delhi)

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Foucault, Rubenfeld, Naz Foundation, and Article 15(1)

In Naz Foundation vs NCT, the Delhi High Court famously held that the word “sex” in Article 15 included “sexual orientation” as a prohibited ground of discrimination. Unlike the South African Constitution, there is no support for this proposition within the four corners of the text. What, then, justifies this interpretation? Clearly, it must be shown that sexual orientation is in some way analogous to the stipulated Article 15 grounds: religion, race, caste, sex and place of birth. One popular argument is that Article 15 – and, more broadly, Part III of the Constitution, through other provisions such as Article 25 – protects personhood: i.e., it stipulates that one’s equal moral membership in society (or, one’s right to be treated with equal concern and respect) must not be made contingent upon those characteristics most fundamental to one’s sense of personhood, or the most basic markers of one’s identity: religion, race, sexual orientation etc.

The argument from personhood is a popular one. In the United States, it was used to uphold abortion laws in Planned Parenthood vs Casey,  and subsequently invoked by Justice Kennedy in Lawrence vs Texas, the American Supreme Court case which held that criminalising homosexuality is unconstitutional:

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In National Coalition for Gay and Lesbian Equality vs Minister of Justice, the case which struck down South Africa’s sodomy law, the Constitutional Court – speaking through Ackermann J., held:

The group in question is discriminated against because of the one characteristic of sexual orientation. The measures that assail their personhood are clustered around this particular personal trait.”

There is, of course, something intuitively attractive about the personhood argument. It is, for one, closely connected with other, similarly attractive ideals, such as autonomy and dignity. The idea that there is a core set of beliefs, practices and world-views that define who a person is, and must therefore be held inviolable and subjected to no interference by the State, seems a powerful one, and speaks deeply to our conceptions about what freedom means.

There may, however, be good reasons not to advocate a personhood-based justification for Naz Foundation, or, for that matter, for the philosophy underlying Article 15 and/or Part III in too facile a manner. One set of arguments to this effect are grounded in the work of the philosopher Michel Foucault.

In his three-volume series, The History of Sexuality, Foucault argues against what he called the “repressive hypothesis”; i.e., the idea that, in the eighteenth and nineteenth centuries, sexuality was systematically “repressed” through a practice of official censorship, legal prohibition (including the criminalisation of sodomy), and the dull compulsion of social relations – and that this repression is only now beginning to be shaken off. Foucault contends, on the other hand, that a closer look at historical evidence demonstrates that the eighteenth and nineteenth centuries witnessed a proliferation of discourses about sexuality:

“Under the authority of a language that had been carefully expurgated so that it was no longer directly named, sex was taken charge of, tracked down as it were, by a discourse that aimed to allow it no obscurity, no respite… rather than a massive censorship, beginning with the verbal proprieties imposed by the Age of Reason, what was involved was a regulated and polymorphous incitement to discourse.”

This happened through numerous practices of surveillance, taxonomy, the re-classification of sins as medical aberrations, religions confessions, and so on (the complete argument may be found in chapters two and three of Volume 1). Foucault then lists four ways in which there was an “incitement” to sexualised discourse. In the second category, which he calls “a new specification of individuals”, he deals with homosexuality. In an extended passage, that deserves quoting, Foucault observes:

“As defined by the ancient civil or canonical codes, sodomy was a category of forbidden acts; their perpetrator was nothing more than the juridical subject of them. The nineteenth-century homosexual became a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form, and a morphology, with an indiscreet anatomy and possibly a mysterious physiology. Nothing that went into his total composition was unaffected by his sexuality. It was everywhere present in him: at the root of all his actions because it was their insidious and indefinitely active principle; written immodestly on his face and body because it was a secret that always gave itself away. It was consubstantial with him, less as a habitual sin than as a singular nature. We must not forget that the psychological, psychiatric, medical category of homosexuality was constituted from the moment it was characterized – Westphal’s famous article of 1870 on “contrary sexual sensations” can stand as its date of birth – less by a type of sexual relations than by a certain quality of sexual sensibility, a certain way of inverting the masculine and the feminine in oneself. Homosexuality appeared as one of the forms of sexuality when it was transposed from the practice of sodomy onto a kind of interior androgyny, a hermaphrodism of the soul. The sodomite had been a temporary aberration; the homosexual was now a species.”

But this is precisely the personhood argument writ small. What Foucault is describing (and perhaps, at the same time, warning us against) is the dangers of allowing a set of acts or practices to become the full measure of human beings.

And because of this, Foucault goes on to write, “scattered sexualities rigidified, became stuck to an age, a place, a type of practice.” What is crucial to understand, ultimately, is that subordination must depend, primarily, upon classification and definition: and there is no more effective way of classifying than by holding that a certain set of actions define, or constitute, what a person is. Seen this way, personhood suddenly becomes less of an emancipatory tool, and more of a trap. It also, as Foucault points out, both ossifies and excludes: by holding that one, defined set of practices constitutes the core, immutable being of an individual, it denies the possibility of the practice itself being malleable (for instance, by excluding other forms and conceptions of sexuality) and open to change, as well as denying the same to the “individual”.

We may pause here to notice a moment of irony: in Koushal, when the Supreme Court overturned Naz Foundation, it rejected the Article 14 argument on the ground that S. 377 classified between acts and not between persons. This reasoning was excoriated on the ground that the Court simply ignored how central sexuality and sexual acts are to persons. But, as Foucault points out here, it is the acts-to-persons shift that is precisely what we should be wary about embracing too uncritically!

The application of the arguments in A History of Sexuality to personhood-based claims in constitutional law has not gone unnoticed. In a 1989 article called The Right of Privacy, Jed Rubenfeld subjected personhood-based definitions of privacy to a Foucauldian critique. As Rubenfeld reads Foucault:

“In Foucault’s description, the decision to give medical treatment to homosexuals, which became institutionalized medical practice in the nineteenth century, in fact created the “disease” of homosexuality. It generated a division be-tween homosexuals and heterosexuals that had never been absolute before, and at the same time created new institutional practices through which individuals would more and more sharply identify themselves, be identified, and be processed as homosexuals.

In a brilliant series of passages, Rubenfeld then explains the connection between classification and subordination, and how the personhood argument – by engaging in the former – undercuts its own emancipatory potential by facilitating the latter.

“Those who engage in homosexual sex may or may not perceive themselves as bearing a “homosexual identity.” Their homosexual relations may be a pleasure they take or an intimacy they value without constituting at least qua homosexual relations something definitive of their identity. At the heart of personhood’s analysis is the reliance upon a sharply demarcated “homosexual identity” to which a person is immediately consigned at the moment he seeks to engage in homosexual sex… thus, even as it argues for homosexual rights, personhood becomes yet another turn of the screw that has pinned those who engage in homosexual sex into a fixed identity specified by their difference from “heterosexuals.

Of course, it might be argued that there is no necessary connection between classification and subordination, and that identities, if put to emancipatory purposes, need not become the trap that Foucault describes them to be. To that, Rubenfeld says:

These two “moments,” [of classification and subordination] however, are not really distinct. Or rather, if we call them distinct, the impulse toward hierarchy actually precedes and produces the differentiation in identities. Obviously, differences of sexuality, gender, and race exist among us. These are not, however, differences in identity until we make them so. Moreover, it is the desire to count oneself “superior” to another, or even to count oneself “normal,” that converts such differences into those specified identities in opposition to which we define ourselves. To protect the rights of “the homosexual” would of course be a victory; doing so, however, because homosexuality is essential to a person’s identity is no liberation, but simply the flip side of the same rigidification of sexual identities by which our society simultaneously inculcates sexual roles, normalizes sexual conduct, and vilifies “faggots.” Thus personhood, at the instant it proclaims a freedom of self-definition, reproduces the very constraints on identity that it purports to resist. Homosexuality is but one instance of this phenomenon. The same flaw can be shown in the context of interracial marriage: once again, for the parties directly involved, to say that the challenged conduct defines their identity, and therefore should be protected, as-sumes that marrying out of one’s race is in some way the cataclysmic event its opponents pretend; it thus repeats the same impulse toward rigid classification presupposing the discrimination sought to be undone. Interracial marriage should be protected because it is no different from intraracial marriage, not because it is so different.”

A caveat is perhaps important here: this is not, by any means, an argument for “colour-blindness” – i.e., a legal system that ignores socially-constructed markers of identity altogether. Whether we like it or not, it is a simple truism that sexual orientation, race, caste, religion, sex and so on have been historical (and present) sites of oppression and subordination; and that subordination cannot be resolved by now ignoring their existence altogether. This is a well-worn argument in the affirmative action debate in the United States: the key, in reading Foucault, however, is the insight that in attempting to philosophically ground our anti-discrimination law in a manner that is sensitive to historical, group-based injustices, we should not fall into the trap of using “personhood” in a way that only entrenches and rigidifies group markers which – in the last analysis – cannot ultimately be the tools of emancipation.

If personhood is not the basis of Article 15, or other aspects of Part III, then what is? In his article, Rubenfeld advances what he calls the “anti-totalitarian argument“. Continuing within the broad, Foucauldian framework, he argues:

“The distinctive and singular characteristic of the laws against which the right to privacy has been applied lies in their productive or affirmative consequences. There are perhaps no legal proscriptions with more profound, more extensive, or more persistent affirmative effects on individual lives than the laws struck down as violations of the right to privacy. Anti-abortion laws, anti-miscegenation laws, and compulsory education laws all involve the forcing of lives into well-defined and highly confined institutional layers. At the simplest, most quotidian level, such laws tend to take over the lives of the persons involved: they occupy and preoccupy. They affirmatively and very substantially shape a person’s life; they direct a life’s development along a particular avenue. These laws do not simply proscribe one act or remove one liberty; they inform the totality of a person’s life.

Anti-totalitarianism, as a grounding for a right to privacy, is an interesting suggestion; for non-discrimination, it might not work so well. Another option – broadly on the lines of the South African Equality Act, is to simply identify the historic sites of discrimination, and prohibit practices that perpetuate such discrimination (South African hate speech law is expressly based on this premise), without any further assumptions about personhood. In this context, it might also be interesting to see what the Constitutional Assembly Debates have to say about historically-oppressive markers of identity, such as caste and sex, and their remedies for amelioration.

In any event, given the central place occupied by the idea of “personhood” in judicial decisions world-over (including India), this is a debate that will continue; nor is it a purely academic concern, because the philosophical ground if rights is, ultimately, what determines their reach and their limitations.

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NALSA v. UoI and Koushal v. Naz: Acts against the order of nature?

In the last post, I argued that after NALSA v. UoIKoushal v. Naz ought to be reconsidered, since in rejecting the distinction between sexual conduct and sexual identity, NALSA removes the intellectual foundation upon which the entire Koushal decision was based. In conversation with Danish since then, it seems to me that we might not even need to go that far. Here is how.

While Koushal v. Naz is commonly understood to have recriminalized homosexual intercourse in India, it did not actually do quite that. The Delhi High Court, in Naz Foundation v. NCT, held that insofar as S. 377 criminalizes same-sex intercourse between consenting adults, it is unconstitutional. Recall, however, that S. 377 does not criminalize homosexual intercourse in so many words. It criminalizes “carnal intercourse against the order of nature.” The conceptual middle-step, of course, requires associating homosexual intercourse with carnal intercourse against the order of nature.

And, interestingly, that is a finding that the Supreme Court in Koushal never made. Let us go back to the notorious Paragraph 42:

“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.”

So there is nothing in Paragraph 42 that indicates what “carnal intercourse against the order of nature” is, and the Court makes no finding on the point. True, the Court refers to precedents on what constitutes “sodomy”, and so on, but it does not incorporate any prior definition into its verdict. Now consider Paragraph 51:

“Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section.”

Here again, it’s not so much as what is stated, but what is omitted, that is significant. The Court specifically refers to the LGBT community, and again refuses to rule on whether the LGBT community is covered by the ambit of 377.

Indeed, if there is one thing that emerges out of all the precedents that the Court cites, it is that there’s no consensus on what the term means. One case holds that all non-procreative sex is against the order of nature, while another holds that that particular theory is outdates. Another finds oral sex to fall within the ambit of 377. Indeed, in paragraph 36, the Court specifically observes:

“The understating of acts which fall within the ambit of Section 377 has changed from non-procreative (Khanu v. Emperor) to imitative of sexual intercourse (Lohana Vasantlal v. State AIR 1968 Guj 352) to sexual perversity (Fazal Rab v. State of Bihar AIR 1963, Mihir v. Orissa 1991 Cri LJ 488).”

So, is homosexuality “perverse”? Again, the Court refuses to make a finding on point.

Consequently, the upshot of Koushal v. Naz is that although it is no longer the case that S. 377 expressly excludes homosexuals, it is also not the case that S. 377 includes them. That judgment is one to be made by later courts.

NALSA v. UoI is the judgment that does so.

The NALSA Court understands this, because in paragraph 18, it holds that because of Koushal, it will not rule on the constitutionality of S. 377. That, however, leaves it entirely free to interpret 377.

Now, in paragraph 20, the NALSA Court notes:

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.”

Notice that this paragraph is not limited to transsexuals. It refers to sexual orientation as such (especially because it uses the phrase in conjunction with “gender identity”). Now if sexual orientation is integral to personality, and a basic aspect of self-determination (and nobody – presumably not even the Koushal bench – would deny that same-sex intercourse is expressive of sexual orientation) – in what sense can we say that expressing your personality and self-determination is “against the order of nature”?

The Court then cites a number of international conventions and legal instruments, all of which prohibit discrimination on the basis of gender identity as well as sexual orientation. In paragraph 55, it holds that discrimination on grounds of sexual orientation or gender identity violates the equal protection of laws. And in paragraph 77 – the last paragraph of Justice Radhakrishnan’s judgment, he holds that:

We, therefore, conclude that discrimination on the basis of
sexual orientation or gender identity includes any discrimination, 
exclusion, restriction or preference, which has the effect of
nullifying or transposing equality by the law or the equal protection
of laws guaranteed under our Constitution.”

Now admittedly, Justice Radhakrishnan makes it clear that the scope of his judgment is limited to the rights of transsexuals. But surely it defies logic to argue that discrimination on the basis of sexual orientation is prohibited in the case of transsexuals, but allowed in all other cases? In other words, the logic of the NALSA judgment seems to make it clear – even if it does not say so in express terms – the “sexual orientation”, per se, is a protected category. And once again, recall that Koushal made no finding on that specific point.

In this sense, NALSA v. UoI can be taken to be a clarification of KoushalKoushal holds that it is constitutional to criminalise carnal intercourse against the order of nature. NALSA holds that sexual acts that are characterised purely in terms of the sexual orientation are not acts against the order of nature. In effect, this is the same as the holding of the Delhi High Court. However, while the Delhi High Court held that 377 is unconstitutional insofar as it criminalises same-sex intercourse between consenting adults – the logic of NALSA requires the conclusion that 377 is constitutional only because it does not criminalise same-sex intercourse between consenting adults. In that case, then – because NALSA is not a case about homosexuals, and therefore not precedent on that point – perhaps the next step is to approach the Court for a judgment clarifying the scope of S. 377 as applied to homosexuals.

None of this, of course, is an endorsement of anything in Koushal, or anything that Koushal stands for. The act/identity distinction in Koushal remains flawed and indispensable. Its cavalier treatment of the “so-called rights of a minuscule minority” remains indefensible. But insofar as we’re considering the present state of law, it is perhaps arguable that, reading Koushal and NALSA together, same-sex intercourse between consenting adults can no longer be criminal in India.

 

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NALSA v. UoI: The Supreme Court on transsexuals, and the future of Koushal v. Naz

Today, in NALSA v. UoIthe 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 identitiesand 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… thereforethe 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.” 

Consequently:

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.

 

 

 

 

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