India now has a third gender.
The Supreme Court has recognized the country’s transgender community as being in a third neutral category — neither male nor female.
In handing down the ruling, Justice K.S. Radhakrishnan said, “Transgenders are citizens of this country … and recognition as a third gender is not a social or medical issue but a human rights issue.”
Article 15 of India’s Constitution guarantees that no state can discriminate against citizens on the basis of religion, caste, race or sex.
The decision by the two-judge bench applies to what in India are traditionally known by the Hindi word hijras. The term is loosely used to include eunuchs and transvestites. The court stated, “transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex.”
Activists say because the transgender population has not been legally recognized, its members have been ostracized, abused and forced into prostitution. Many eke out an existence as sex workers or beggars.
India’s hijras are easily spotted on the street and can be found wending their way through traffic at intersections, clad in colorful saris and bright lipstick. They tap on car windows, begging or sometimes demanding a bit of change.
Estimated to number between 2 and 3 million, they have long been a prominent but marginalized part of Indian culture.
Hijras are deprived of jobs, education and health care; turned away at hospitals, limited by the practice of male and female wards. India had taken steps to ensure their recognition when India’s Election Commission earlier allowed a third gender of “other” on voter registration forms for the national elections now taking place.
But the Supreme Court on Tuesday expressed concern over transgenders being harassed in society and said “it was the right of every human being to choose their gender.”
It directed the government to bring them into the mainstream, ordering it to set aside quotas for jobs and education for transgender individuals, bringing them in line with the benefits already afforded other minority groups and lower castes. The court said hijras will be entitled to “all other rights,” including passports, voter cards and driving licenses.
The prominent transgender activist Laxmi Narayan Tripathi initially brought the suit in 2012 seeking equal rights. She said the decision was hard-won in this traditionally conservative country. “Today, I feel a proud citizen of India,” Tripathi said.
But while the court has declared discrimination against the transgender community illegal, whether the practice will end is far from certain. Formidable obstacles remain in the way sexuality is perceived in India.
As recently as December, India’s Supreme Court reinstated a ban on gay sex, a colonial-era law dating back to 1861. The widely criticized decision reversed the Delhi High Court, which had ruled the law prohibiting “carnal intercourse against the laws of nature” an infringement of fundamental rights. But the Supreme Court justices said the provision would hold until Parliament chose to amend it, as it was a matter left for legislators and not the judiciary.
Amnesty International praised Tuesday’s ruling as reaffirming “constitutional values of inclusion and equality” but said it “should provide the impetus for a new government to repeal” what it called the “absurd law” criminalizing sex between consenting same-sex partners.
Religious groups across India said the Supreme Court’s December ruling ought to be respected. A senior leader with the Hindu-nationalist BJP party argued that overturning it would be illegal, immoral and against the ethos of the Indian culture.
With polls predicting the BJP, the country’s main opposition party, on the verge of coming to power, transgender activists are not letting down their guard. They say the battle today may have been won, but the war is far from over.