Tag Archives: transgenders

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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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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The Supreme Court’s Judgment on Jat Reservations: Problems and Prospects

Yesterday, in Ram Singh vs Union of India, the Supreme Court overturned a government decision to grant reservations to the Jat community in nine states (by including them in the Central List of Backward Classes [“Central List”]). The judgment has created a significant political stir. As a legal matter, however – and subject to observations in two paragraphs, which will be discussed at the end – the case was decided on specific, narrow grounds, and breaks no new ground as far as constitutional issues are concerned. In fact, the case is probably best classified as an administrative law judgment rather than a constitutional one.

The factual matrix of the case stretched back eighteen years. In 1997, in response to numerous petitions, the National Commission for Backward Classes [“NCBC”] carried out a study, at the end of which it recommended the inclusion of Jats in the Central List only for two districts of Rajasthan. Subsequently, in response to numerous representations to review this decision, on 19.7.2011, the NCBC decided to approach the Indian Council of Social Science Research (ICSSR), asking them to conduct a survey in various states (UP, Haryana, Madhya Pradesh, Rajasthan, Himachal Pradesh and Gujarat), in order to determine the socio-economic status of Jats. By a subsequent Cabinet decision, the states of Bihar, Uttarakhand and NCT of Delhi were also referred to the NCBC.

The ICSSR submitted a report (but made no specific recommendations about inclusion/exclusion in the Central List). The report was discussed by the NCBC, which also held public hearings. At the end of this process, on 26.2.2014, the NCBC submitted a report to the government, stating that “the Jat Community had not fulfilled the criteria for inclusion in the Central List of OBCs.”  But on 2.3.2014, the cabinet rejected this report, on the ground that it did not take into account “ground realities.” Two days later, via a notification, Jats were placed in the Central List for the nine states.

At this point, it is important to note the status of the NCBC. It is a statutory body, established under the National Commission for Backward Classes Act, 1993. Under S. 9(2), it is provided that when it comes to inclusion or exclusion from the Lists, “the advice of the Commission shall ordinarily be binding upon the Central Government.” This closely followed the judgment of the Supreme Court in Indra Sawhney vs Union of India, where Justice Jeevan Reddy, commenting on the need for just such a specialised body, had observed that “its advice/opinion should ordinarily be binding upon the Government. Where, however, the Government does not agree with its recommendation, it must record its reasons therefore.

Judicial review of administrative or executive action follows certain well-settled principles. Judges may not substitute their wisdom for that of the authorised decision-making body, and nor may they intervene to correct what they perceive to be a mistake of policy, or a mistake in interpreting existing data. However, if the administrative decision is made in ignorance of relevant material, or is based upon patently irrelevant material (or, for that matter, is made mala fide), then the Court may set it aside. What the NCBC Act does is to statutorily mandate that the report of the NCBC constitutes “relevant material” that the government is bound to adhere to, unless there are good reasons for the contrary (presumably, other relevant material). As the Court correctly noted, in paragraph 26, “the advice tendered by the NCBC is ordinarily binding on the Government meaning thereby that the same can be overruled/ignored only for strong and compelling reasons which reasons would be expected to be available in writing.” Consequently, all the Court needed to do was to verify whether the government had actually provided relevant reasons for departing from the NCBC’s report.

This is exactly what the it proceeded to do. First, it extracted the state-wise summary of findings of the ICSSR. While acknowledging that elements of “backwardness” (in terms of representation in government jobs, school dropout ratio etc.) existed with respect to the Jat Community in some of the states, the ICSSR also clarified that only limited material was available before it, and declined to make specific recommendations. On the basis of the ICSSR Report, along with other reports available to it, the NCBC decided that the evidence did not justify the Jat Community’s claim to “social backwardness”, for the purposes of Article 16 of the Constitution.

After a detailed examination of the NCBC’s reasons, as well as its analysis of the primary material, the Court noted:

Undoubtedly, the report dated 26.02.2014 of the NCBC was made on a detailed consideration of the various reports of the State Backward Classes Commissions; other available literature on the subject and also upon consideration of the findings of the Expert Committee constituted by the ICSSR to examine the matter. The decision not to recommend the Jats for inclusion in the Central List of OBCs of the States in question cannot be said to be based on no materials or unsupported by reasons or characterized as decisions arrived at on consideration of matters that are, in any way, extraneous and irrelevant… It may be possible that the NCBC upon consideration of the various materials documented before it had underplayed and/or overstressed parts of the said material. That is bound to happen in any process of consideration by any Body or Authority of voluminous information that may have been laid before it for the purpose of taking of a decision. Such an approach, by itself, would not make either the decision making process or the decision taken legally infirm or unsustainable. Something more would be required in order to bypass the advice tendered by the NCBC… An impossible or perverse view would justify exclusion of the advice tendered but that had, by no means, happened in the present case. The mere possibility of a different opinion or view would not detract from the binding nature of the advice tendered by the NCBC.” (Paragraph 46)

Additionally, the government’s contention that Jats were on the State Lists of eight out of the nine states was rejected by the Court, on the ground that those lists were made more than a decade ago, and that “a decision as grave and important as involved in the present case which impacts the rights of many under Articles 14 and 16 of the Constitution must be taken on the basis of contemporaneous inputs and not outdated and antiquated data.” (Paragraph 48) The Court also found that the minutes of the Cabinet meeting held just before the Notification reflected a focus on the educational “backwardness” of the Jat community by highlighting school, college and graduate enrollment (Paragraph 49). The “backwardness” contemplated under Article 16, however, was social backwardness. Consequently, the Court held that the cabinet notification ignored relevant material (the NCBC report) and, in turn, based itself upon irrelevant material (educational parametres and decade-old data); consequently, following the well-established principles of judicial review that we have discussed above, it set aside the notification.

So far, so standard. However, there are three further issues, highlighted in paragraph 54 of the judgment, that call for specific comment. First, the Court notes:

“Though caste may be a prominent and distinguishing factor for easy determination of backwardness of a social group, this Court has been routinely discouraging the identification of a group as backward solely on the basis of caste. Article 16(4) as also Article 15(4) lays the foundation for affirmative action by the State to reach out the most deserving. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness.”

While these lines have garnered a fair degree of attention in the press, it is important to note that this is simply a reaffirmation of the Court’s consistent position, spanning the last fifty years. As fas back as M.R. Balaji vs State of Mysore, in 1963, the Supreme Court held that a purely caste-based policy of reservations would violate the Constitution. While this blanket position was undermined in N.M. Thomas and Indra Sawhney, the position remains that while castes, which are generally “socially and occupationally homogenous classes” (Indra Sawhney, para 84), can constitute a convenient starting point for a reservations, the ultimate criterion is class backwardness. This means that caste groupings do not exhaust the scope of reservations under the constitutional scheme; and conversely, to the extent that a caste wishes to claim the benefits of the reservation scheme, it must demonstrate that qua class, it suffers from the social backwardness that Article 16 envisages. The failure of the Jat Community to demonstrate this latter point was what prompted the Court to observe, in another statement that has been widely quoted over the last twenty-four hours, that “an affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandate.”

The former aspect – that castes do not exhaust the scope of reservations – leads to the second important observation in the paragraph: the Court’s invocation of last year’s NALSA judgment, on the rights of the transgender community. The Court observes:

“New practices, methods and yardsticks have to be continuously evolved moving away from caste centric definition of backwardness. This alone can enable recognition of newly emerging groups in society which would require palliative action. The recognition of the third gender as a socially and educationally backward class of citizens entitled to affirmative action of the State under the Constitution in National Legal Services Authority vs. Union of India is too significant a development to be ignored. In fact it is a path finder, if not a path-breaker. It is an important reminder to the State of the high degree of vigilance it must exercise to discover emerging forms of backwardness. The State, therefore, cannot blind itself to the existence of other forms and instances of backwardness.”

This is a crucial point, because after the judgment in NALSA, the Union of India filed a clarification petition asking whether the placement of the transgender community within the Lists would have to first go through the NCBC. Here, the Court seems to clearly state that as per NALSA, the third gender has been judicially recognised as a socially/educationally backward class, entitled to affirmative action. This would suggest that the NCBC does not need to make a separate finding on the point, since the Supreme Court has already done so. But even apart from this, in May 2014, the NCBC did make a finding that transgender persons ought to be provided reservations. In accordance with yesterday’s judgment, the NCBC’s finding will be binding upon the government, unless overriding reasons are demonstrated. Consequently, the clarification petition ought to be disposed off as soon as possible, with appropriate directions to the government to add the transgender community to the Central List.

Secondly, the Union also observed that transgender persons do not “maintain a caste or community identity”, but at the same time might belong to specific SC/ST/OBCs. Here is where the Court’s focus on “new yardsticks” to measure backwardness becomes crucial, as does its acknowledgment – also in paragraph 53 – that social classes might be “internally heterogenous” (and based on gender). In other words, both substantively and procedurally, paragraph 53 amounts to a strong endorsement of the right of the transgender community to affirmative action, and takes the promise of NALSA vs Union of India a significant step forward.

And lastly, in the penultimate paragraph (54), after affirming that “backwardness” ought not to be judged relative to other groups, but on absolute parametres, the Court observes:

“[the] inclusion of the politically organized classes (such as Jats) in the list of backward classes mainly, if not solely, on the basis that on same parameters other groups who have fared better have been so included cannot be affirmed.”

It is interesting that among all the adjectives that the Court might have chosen to describe the Jats, it picks “politically organised”. This opens up a plethora of fascinating questions, the first among which is: is political power, or access to political power, the main criterion for determining “social backwardness”? Is a politically organised group, just for that reason, no longer “socially backward”? And if not – recall that the very origins of judicial review lie in the understanding that “discrete and insular minorities“, who are likely to be sidelined or marginalised by the normal workings of the political process, need additional protection from the brute majoritarianism. Is there some conceptual connection with that idea, which is in the Court’s mind? Does the Court mean to say that groups who have managed to gain access to political power are expected to now leverage it in order to lift themselves out of their social backwardness? Or is the Court concerned that politically organised groups will use their clout to win reservations for themselves even when they don’t need it (a fear that is also visible in some US affirmative action cases)? The Court does not answer any of these questions here, but it will be interesting to see what importance – if any – it might accord to the political influence of groups claiming backward status, in the future.

 

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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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