Guest Post: Because of Sex(uality) [and Gender]

[This is a guest post by Surya Rajkumar.]


Introduction

The United States Supreme Court last week delivered its opinion in Bostock v. Clayton County, where it held that protection against discrimination under Title VII of the U.S. Civil Rights Act, 1964 (‘Title VII’) was available to lesbian, gay and transgender individuals. This the court did using the ‘but for’ test to rule that discriminating against an individual for being lesbian, gay or transgender necessarily involved discrimination because of that individual’s sex––sex being a protected characteristic under Title VII. The decision has rightly been hailed as a victory for the gay rights movement especially in the backdrop of the fact that it was legal to fire employees for being lesbian/gay/transgender in more than half of the states in the U.S. However, as I shall argue in this piece, the logic employed by the court is inadequate to deal with discrimination based on gender identity and sexual orientation. As I will contend, the notions of gender and sexual orientation are fluid and as protected characteristics under anti-discrimination law, they will have to be treated distinctly and cannot be conflated with the notion of sex.

There are those who argue that the decision is not as broad in its scope as it left open the question of whether the right to religious freedom permitted individuals/organizations to circumvent their obligations under Title VII. This is of particular concern as the Court’s opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, delivered two years ago, held that it was legal for a person to not offer his services to gay individuals citing his religious convictions. On the other hand, as I shall attempt to demonstrate, the decision’s limited scope stems from extending the notion of sex to include sexual orientation and gender identity, as such an extension is accompanied by the exclusion of sexual orientations and gender identities such as bisexual and intersex individuals. It may be true that the Court has created a loophole in leaving open the question of religious freedom coming in conflict with Title VII. This however is beyond the scope of this piece. I shall also discuss the Indian approach to extending constitutional protections to sexual minorities, and how this may provide a viable model to treating discrimination based on gender and sexual orientation.

The logic of the Court

Title VII of the Civil Rights Act (Section 703) makes it unlawful to discriminate against an individual because of (among other grounds) such individual’s sex. With reference to this, the Court in Bostock held that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.” According to the Court, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court demonstrates this using two separate examples for homosexual and transgender individuals. In the context of homosexual individuals, the Court examines a situation where there are two employees, one female and one male, both attracted to men. Here, “[i]f the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Hence the employer discriminates against the male employee based on his sex. Similarly, for transgender individuals, the Court considers an example of “a transgender person who was identified as a male at birth but who now identifies as a female.” Here, “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Therefore, discriminating against someone for being trans necessarily involves a differentiation based on sex. Based on these examples, the Court, while agreeing that “that homosexuality and transgender status are distinct concepts from sex” holds that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The inadequacies of the Court’s logic qua sexual orientation and gender identity

To the extent that Title VII extends to lesbian, gay and transgender individuals, the Bostock opinion is indeed correct and welcome. But it should occur to one that sexual orientation and gender identity are more than homosexuality and transgender status respectively. When we consider sexual orientations and gender identities other than the ones considered by the Court, the opinion in Bostock comes across as inadequate. Notably, the majority opinion makes no mention of bisexuality or intersex status which form part of sexual orientation and gender identity respectively. Unsurprisingly, if these categories were replaced in the examples proffered by the Court, one would reach radically different results, where discrimination based on such characteristic does not involve considerations of sex at all.

For instance, let’s say there are two employees, one female and one male, and that the female employee who is bisexual and is at present partnered to a member of the opposite sex, is discharged by her employer for being bisexual. Here, the bisexual employee is not being treated any differently based on sex, as the employer is not intolerant of her relationship with a person of the opposite sex but intolerant to her identification as a bisexual individual. The same could be said of an asexual person who isn’t attracted to any sex at all! Hence, in the context of sexual orientation, the example offered by the Court is insufficient in its coverage of alternate sexualities such as bisexuality and asexuality. Similarly, the example offered by the Court qua transgender individuals is also inadequate to address discrimination faced by individuals with other gender identities. For example, in the case of an intersex individual, there may be no comparable ‘sex’ in the male/female sense.

The point I am seeking to make is that discrimination faced inter alia by gay, lesbian, bisexual, transgender and intersex individuals is sourced not to their sex but their identity informed by sexual orientation and gender identity, however incidental such discrimination is to sex. The issue with conflating certain forms of sexual orientation and gender identity with sex is that it risks the exclusion of other such forms. The problem is compounded by the fact that sexual orientation and gender identity are fluid notions that are ill-suited to be treated alongside sex especially when the latter is viewed rigidly as a male-female dichotomy. That sex cannot extend to mean sexual orientation and gender identity formed a large part of Justice Samuel Alito’s dissent in Bostock. Yet this cannot seek to invalidate the majority opinion, as Alito J’s argument in his opinion only reinforces what I am seeking to argue here, namely that the majority judgment is not incorrect, but inadequate to combat discrimination based on certain forms sexual orientation and gender identity. The only way, I argue, to address this inadequacy is to treat sexual orientation and gender identity as protected characteristics in their own right under anti-discrimination law. In this regard the Indian approach offers a viable alternative in addressing discrimination based on sexual orientation and gender identity.

The Indian approach as a viable alternative

Implementing protection against discrimination based on sexual orientation and gender identity through explicit statutory recognition, is in my view, the most suitable way to address the inadequacies discussed above. Had there been such statutory recognition, cases like Bostock would never come to be. It is in the face of such legislative reluctance, that the Indian approach shows the way in expanding the word ‘sex’ to include sexual orientation and gender identity, while also treating the latter categories distinctly. Two decisions of the Indian Supreme Court become relevant in this regard. They are NALSA v. Union of India and Navtej Singh Johar v. Union of India.

Using Article 15 of the Indian Constitution, which prohibits discrimination inter alia on the ground of sex, the Court in NALSA and Navtej has extended protection under Article 15 to gender identity and sexual orientation respectively. Justice K.S. Radhakrishnan in NALSA held that “discrimination on the ground of ‘sex’ … includes discrimination on the ground of gender identity.” He justified this on the basis that it was in line with the intent of the architects of the Indian Constitution who “gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders.”

Affirming the view mentioned above, Justice Indu Malhotra in Navtej held that ‘sex’ “is not merely restricted to the biological attributes of an individual, but also includes their “sexual identity and character”.” Given that sexual orientation is a ground analogous to ‘sex’ in light of the former’s immutable status and fundamental choice, Justice Malhotra held that the prohibition of discrimination based on sex encompasses “instances where such discrimination takes place on the basis of one’s sexual orientation.”

When compared to Bostock, one cannot overstate the amplitude of NALSA and Navtej in their coverage. Whereas Bostock extends anti-discrimination protection to gay, lesbian and transgender employees, NALSA and Navtej–using an evolutionary and emancipatory interpretation of constitutional text–extend such protection to gender identity and sexual orientation respectively as a whole. Consequently, those groups left out of Bostock’s ambit can claim protection under NALSA (ex: intersex individuals) and Navtej (ex: asexual and bisexual individuals).

Conclusion

The majority opinion in Bostock is remarkably precise in its conclusion that “[a]n employer who fires an individual merely for being gay or transgender defies the law.” For an employer who fires an individual for merely being bisexual or intersex or any other category of sexual orientation and gender identity excluding gays and transgenders, may not be defying the law. Therefore, it is not misplaced to say that Bostock only offers a limited protection from discrimination based on gender identity and sexual orientation. Instead, as we saw, the Indian approach in NALSA and Navtej offers a viable alternative to Bostock, as it treats gender identity and sexual orientation for what they are: not as incidental to sex but as distinct characteristics that merit seperate consideration however dependent they are on sex.

The Constitutional Challenge to the Transgender Act

On 5th December, the Transgender Persons (Protection of Rights) Act came into force. As is well-known, the Act – that had been in the pipeline for four years – was passed over sustained protests and objections by the trans and intersex community. Among other things, critiques of the Trans Bill (as it then was) focused upon its inadequate definitions, its reification of the gender binary, its failure to recognise different forms of sexual identity, the denial of the right to self-determination, its non-recognition of chosen families, the absence of affirmative action provisions, and so on.

Unsurprisingly, therefore, the Act has swiftly been challenged before the Supreme Court, by Assam’s first trans judge (Swati Bidhan Baruah). This post briefly examines the principal grounds of challenge. These can broadly be categorised into (a) the self-determination challenge (Article 21); (b) the equality challenge (Article 14); (c) the non-discrimination challenge (Article 14); (d) the affirmative action challenge (Article 16); and (e) the positive obligations challenge (Article 21).

The Self-Determination Challenge

Section 4 of the Act guarantees to transgender persons the “right to be recognised as such, in accordance with the provisions of this Act.” Section 5, however, stipulates that such recognition will be contingent upon application to a District Magistrate, “in such form and manner, and accompanied with such documents, as may be prescribed.” Section 6 requires the Magistrate to issue a “certificate of identity” following “such procedure … as may be prescribed.” It is only upon such recognition that the transgender person shall have the right to their “self-perceived gender identity” (Section 4(2)).

The petition challenges Sections 4 to 6 on the basis that making self-identification “subject to certification by the State” is unconstitutional. It relies primarily upon two judgments of the Supreme Court: NALSA v Union of India and Puttaswamy (I) v Union of India. In NALSA, the Supreme Court held that the right to gender identity was protected under Articles 19 and 21 of the Constitution. Puttaswamy held that the right to privacy protected the freedom to take intimate decisions regarding personhood and autonomy, decisions that brooked minimum interference from the State. The petition argues that certification process violates both rulings. It also violates the the proportionality standard laid down in Puttasawamy, by being neither suitable, nor necessary, for giving effect to the principle of self-identification.

Now of course, the State may argue in response that if it is to come out with schemes and policies to support the transgender community, some form of State-sanctioned ID is indispensable, as that will be the basis on which beneficiaries will be identified. In order to counter this argument on its own terms, the self-determination challenge may need to be supplemented with an excessive delegation challenge: Sections 4 to 6 make no mention of whether the Magistrate has any discretion to reject an application to be recognised as a trans person – and if so – what the scope of that discretion is. In compliance with NALSA and Puttaswamy, it would follow that the Magistrate has no substantive discretion in this regard, and the only documentation that can be required – at the highest – is a self-attested affidavit (anything more onerous would violate the principle of self-determination and self-identification). However, the Act is silent on that, leaving any such determination to rules “as may be prescribed” (see Section 22). As the matter concerns the fundamental rights of the transgender community, this clearly is an issue that cannot be “delegated” to the rule-making power of the executive.

The petition also challenges Section 7 of the Act, which provides that once a certificate of identity has been issued, and the transgender person wants to then change their gender, that is permissible only on submission of a certificate by the Chief Medical Officer of the institution where the applicant has undergone surgery. Here, again, the application must be made to the District Magistrate, who will then issue a “revised” certificate. As the petition correctly points out, this introduces a certification requirement specifically upon gender-affirming surgeries.

The Equality Challenge

Sections 4 to 7 are also challenged on the touchstone of equality. The first – straightforward – argument is that the Act imposes burdens upon transgender individuals (certification) that it does not upon non-trans individuals. While being straightforward, the argument is nonetheless a very important one, because it challenges the long-held assumption underlying our legal institutions, namely, that being cisgender is the “norm”, while being transgender is the “exception” (which, therefore, requires something additional to “prove”, such as a certification requirement). The assumptions, of course, run much deeper than merely in our legal institutions: the social norm of “assigning” a gender at birth is based on the assumption that there exists a “natural” gender that one is born into, and a transgender person is someone whose gender identity does not “match” that assignation (see, e.g., Section 2(k) of the Act, which defines “transgender person.”

As Albie Sachs pointed out once, however, the purpose of a Constitution is to transform “misfortunes to be endured” into “injustices to be remedied”. In recent judgments such as Johar, the Supreme Court has also engaged with how our unthinking affirmation of sedimented norms has the effect of entrenching and perpetuating existing patterns of discrimination. And if we take seriously NALSA‘s affirmation that gender identity is a fundamental choice protected by Articles 19 and 21, it is clear that at least as far as the Constitution goes, cis- and trans-identities are to be treated on an equal footing.

Now of course, the State may once again argue that Sections 4 to 6 are not about identity, but merely about setting out a form of identification that can then be utilised to determine beneficiaries for welfare schemes. Such an argument, however, is belied by the wording of Section 4(2), which states clearly that it is only after recognition under the provisions of the Act, that a transgender person shall have the right to their “self-perceived identity”. In other words, therefore, the Act makes identity conditional upon identificationinstead of the other way round (which is what was prescribed in NALSA). It should therefore be evident that the scheme of Sections 4 through 7 is constitutionally flawed.

The Non-Discrimination Challenge

Section 3 of the Act sets out the non-discrimination provisions; it prohibits discrimination against transgender individuals in various domains, such as provision of services, education, healthcare, housing etc. Strangely, however, the Act provides no penalty – or remedy – for breach of these provisions. As the Petition correctly points out, a right without a remedy is meaningless – and, indeed, is not a right at all. This argument is buttressed by the fact that two of the crucial “horizontal rights” provisions in the Constitution itself – Articles 17 (“untouchability”) and Article 23 (“forced labour”) specifically envisage that laws will be implemented to make breaches punishable. Thus, the Constitution understands that where you impose obligations upon private individuals to behave in certain (non-discriminatory) ways against other private individuals, there must exist an enforcement mechanism to make those obligations meaningful.

A second set of challenges flows from Section 18 of the Act, which prescribes punishment of upto two years imprisonment for a series of offences against transgender individuals, such as forced labour, denial of access to public spaces, abuse, and so on. As the petition points out, similar offences in other contexts (such as bonded labour in general, or rape) have much more severe penalties, in order to achieve deterrence. As the transgender community is already particularly vulnerable to these forms of coercion and violence, it is outrightly discriminatory to make the punishment lighter under this Act. The petition also impugns this Section on grounds of vagueness and arbitrariness.

The Affirmative Action Challenge

In NALSA, the Supreme Court made it clear that the transgender community was to be treated as a “socially and educationally backward class”, for the purpose of availing of reservation schemes under Articles 15 and 16 of the Constitution. Predictably, the government never acted on this, and under the Act, there is no mention of affirmative action.

Does the Act, therefore, breach Articles 15 and 16? The petition argues that it does, as reservation is a “facet of equality.” In other words – to explain further – once it is established that the transgender community is not on an equal footing with others, there exists a right to affirmative action under Articles 15 and 16, as the very meaning of substantive equality will be defeated by maintaining an unequal status quo.

Such an argument would flow naturally from the judgment of the Supreme Court in N.M. Thomas, where it was indeed held that reservations are a “facet” of equality (and not exceptions to it). In other words, reservations under Article 16(4) are specific manifestations of the right to equality of opportunity under Article 16(1). Continuing with this logic, reservations – then – are not simply something the government may do, but indeed, is obligated to do after identifying relevant sections of society that stand in need of them (the “power plus duty” reading of Article 16, that we have discussed before on this blog). And in NALSA, the Court did a part of the government’s job by identifying the transgender community as a beneficiary class; bringing them under Article 16, then, is a necessary consequence.

While I agree with this argument as a matter of constitutional logic, it is also important to note that the pitch has been muddied somewhat in recent years, and the promise of N.M. Thomas has never entirely been fulfilled. The Court has refused to affirmatively hold that Article 16 imposes both a power and a duty upon the government, and the government itself filed clarification petitions on this point after NALSA. It is quite likely, therefore, that the government will resist the demand for affirmative action, and the Court will have to issue a ruling on whether NALSA was correct on this point (I believe it was).

The Positive Obligations Challenge

The final set of grounds hold that the beneficial provisions of the Act are insufficient to realise the fundamental rights of the transgender community. Section 15, for example, speaks of an insurance scheme, which – the petition argues – is insufficient to guarantee the right to health. This argument will test the limits to which the Court is prepared to go when it comes to enforcing positive obligations upon the government; to what extent will the Court be willing to substitute its judgment for the government’s on which measures are adequate to address positive obligations such as the right to health?

One way of framing the issue might be that had no legislation existed, and a challenge had been filed, then the Court could well have reprised its judgment in Vishaka, and laid down guidelines to fill in the legislative vacuum. While I retain my skepticism about what the Court did in Vishaka, one principle that flows from that judgment is that even in the case of positive obligations, there exist clear and judicially manageable standards, often drawn from principles of international law. Therefore, if there is an Act, the Court can certainly examine whether its implementational measures adequately provide for the effective fulfilment of a positive right (such as the right to health), or whether they fall short; and if they fall demonstrably short, to fashion an appropriate remedy.

Conclusion 

Swati Bidhan Baruah’s petition raises a series of crucial constitutional questions about the Transgender Act. As I have shown above, while some of the challenges are straightforward, others are more subtle and nuanced – and will require the Court, in particular, to engage with some of the more progressive stands of its jurisprudence in recent years. Such an engagement, however, also presents an opportunity – an opportunity to cement and even build upon that progressive jurisprudence, in the domain of social rights.

Civil Rights at the High Courts: Sedition and Transgender Identity

This month has seen two important civil rights judgments come out of the High Courts. The Kerala High Court reaffirmed the narrow scope of sedition, while the Madras High Court reaffirmed the right of self-determining one’s gender identity. Neither judgment broke new ground; but affirming – and entrenching – existing jurisprudence is often equally important, especially in circumstances where the possibility of erosion is ever-present.

The Kerala High Court, Sedition, and the UAPA

In Union of India v Shameer and Ors, a group of men were convicted of sedition (along with other provisions under the IPC and the UAPA). The gravamen of the offence, according to the Prosecution, was that in 2006, the accused organised a meeting where seditious pamphlets (of the banned SIMI organisation) were distributed, and seditious speeches were made. Two of the accused had stated that:

Indian army are killing Muslims who are doing jihad in Kashmir. Other Muslims are being tortured with oppressive laws like TADA, NSA etc., against which all of us should fight under the leadership of SIMI.

Present India was made by Britishers. Earlier, we were ruled by Nizams and Mughals. We should go back to that Old India for which we should fight through SIMI and no one else can destroy SIMI.

On the basis of this, the NIA Court convicted five out of the seventeen accused, of both sedition as well as membership of a banned organisation [SIMI] under the UAPA, and acquitted the rest. Both the convicted men, as well as the State, appealed. The Kerala High Court began by noting that if at all anyone had committed an offence, it was the two speakers – Accused No. 2 and 3. There was no evidence to demonstrate a larger conspiracy involving the people who had booked the hall, and therefore, at the threshold, the other convictions could not stand.

What this left, it will be seen, was a pure speech offence: the convictions of accused nos. 2 and 3 were purely on the basis of what they had said at the meeting. In this context, the bench of Shaffique and Menon JJ. held, reading S. 124A narrowly, that the offence of sedition had not been made out because the speech did not target the government established by law in India. The Court read the references to the Nizam and to the Mughals as expressing discontent with the way that India was governed, but that this, in itself, did not rise to the level of sedition. On the question of the UAPA, the Court held, following Arup Bhuyan, that the mere fact of holding a meeting – and even clapping and applauding through it – did not constitute the offence of “membership” of a terrorist organisation.

The High Court’s narrow reading of the substantive part of the definition – of both sedition and the UAPA – is welcome. Indeed, there has been very little judicial analysis of what, precisely, “government established by law” means in the context of S. 124A, and the High Court’s narrow interpretation does well by Article 19(1)(a) of the Constitution. To this we can add one further point: even if the Court had found, in this case, that the speech in question was against the “government established by law” (S. 124A), and that the accused did come to the meeting with the intention of “propagating SIMI ideology”, it would still not constitute either the offence of sedition, or of membership under S. 10 UAPA. After Shreya Singhal and Arup Bhuyan, it is clear beyond cavil that the appropriate legal standard to apply in these cases is that of “incitement to violence”; mere speech – including advocacy of revolutionary ideas – does not make out either offence. In this case, the High Court did not need to address that issue because of its findings on the content of the speeches, as well as on the nature of the meeting, but we should not lose sight of that larger point.

The Madras High Court and Transgender Identity 

Meanwhile, in Arunkumar & Sreeja v The Inspector-General of Registration, the High Court of Madras was called upon to decide whether a marriage between a man and a transwoman could be validly solemnised under the Hindu Marriage Act. G.R. Swaminathan J. held that it could, correctly noting that “by holding so, this Court is not breaking any new ground. It is merely stating the obvious.”

The dispute arose when the Registrar of Marriages refused to register the marriage, on the basis that Sreeja, as a transwoman, did not count as a “bride” within the meaning of the Hindu Marriage Act, as the scope of that expression was limited to “woman”. The Madras High Court held, however, that the Registrar’s actions were contrary to the ruling in NALSA v Union of India (subsequently upheld in Puttaswamy and Navtej Johar); at the heart of the NALSA ruling was the principle of self-determination as to gender identity. Consequently:

… the second petitioner herein has chosen to express her gender identity as a woman. As held by the Hon’ble Supreme Court this falls within the domain of her personal autonomy and involves her right to privacy and dignity. It is not for the State authorities to question this self-determination. (paragraph 9)

In view of this, Swaminathan J. held, the word “bride” in the Hindu Marriage Act had to be interpreted with the times, and in light of the principle of self-determination of gender identity.

It would … include an intersex person/transgender person who identifies herself as a woman. The only consideration is how a person perceives herself. (paragraph 15)

Interestingly, the Court then also went on to note the existence of multiple genders beyond the male/female binary, as well as going on to ban sex re-assignment surgery for minors (i.e., below the age of consent). As the Court noted:

A person who is in the Third Category is entitled to remain beyond the duality of male/female or opt to identify oneself as male or female. It is entirely the choice of the individual concerned. (paragraph 24)

 

There are a few important points to be noted about this judgment. This is perhaps the first time after NALSA that a Court has interpreted existing legislation in order to bring it line with the principle of self-determination of gender identity. It is, therefore, a landmark moment where the NALSA dictum has finally been given some kind of teeth, and a precedent has been set for future disputes involving the need for updating our existing laws that remain stuck within the male/female binary. This judgment constitutes the blueprint for doing so. Secondly, it is a judgment that moves beyond the rhetoric of self-determination of gender identity, and applies it to a situation where real consequences follow from that recognition (in this case, the right to marry). Of course, unlike affirmative action, marriage is not a situation involving identity-targeted distribution of scarce benefits; it is, therefore, a relatively easy case in which to affirm the principle of self-determination (it remains to be seen how the courts will navigate situations where distribution of scarce benefits does turn upon gender identification).

Perhaps most importantly, however, by placing the self-determination of gender identity – as well as the choice to opt out of the gender binary – upon a constitutional pedestal, Swaminathan J.’s judgment casts serious doubt upon the constitutional validity of the much-criticised Transgender Bill. Recall that that bill denies rejects self-determination of gender identity, as well as maintaining the gender binary and denying the primacy of choice. With the Madras High Court’s judgment, however, locating both these principles within Part III of the Constitution, it is evident that in its exiting form, the Transgender Bill will fail constitutional scrutiny.

Conclusion

The last few years have seen an unfortunate, top-heavy shift towards the Supreme Court, when it comes to constitutional cases. This has led to a gradual erosion of the High Courts as important forums for developing and articulating important constitutional principles. While I believe this has been a mistake, there does remain an important task for the High Courts, even under status quo: and that is to ensure that constitutional principles are entrenched through repeated and consistent application. Without that, Supreme Court pronouncements remain mere words, and can be very swiftly eroded or forgotten. And this is why the judgments of the High Courts of Kerala and Madras are significant additions to the struggle for a progressive civil rights jurisprudence in India.