The rights of India’s transgender population have been legally recognized for the first time by the country’s top court. India’s citizens now have a right to choose their gender, including a ‘third gender,’ which the government must include as a category in all its official documentation. The landmark ruling gives transgender citizens access to special government benefits and outlaws discrimination against the community.
The Supreme Court’s ruling comes as a surprise to some in light of the court’s judgment in December 2013 that upheld a colonial-era law banning same-sex intercourse--Section 377 of India's Penal Code. This judgment reversed an earlier Delhi High Court decision that was celebrated by the LGBT community for declaring that the law does not apply to relations between consenting adults. The Government of India opposed the Supreme Court's reversal of the earlier decision but its petition for a review was turned down.
India’s Supreme Court has multiple benches and the rulings from various benches can at times differ quite significantly. The recent judgment on transgender rights openly challenges the December decision when it notes, “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.”
Many had assumed that for Section 377 to now be struck down or amended, Parliament would have to pass a new law, which is unlikely to happen in the near future. Hope is not lost, however. The Supreme Court has agreed to hear the 377 case again, under a provision called a curative petition, which is the last recourse to challenge a decision by the court. This provision has existed only since 2002 and been successfully invoked in just two cases until now. Hearings are due to begin this week.