New Delhi: The Supreme Court’s ruling recognizing transgender people as the third sex might pave the way for decriminalizing same-sex relations in India, say gay-rights lawyers and activists in India.
In a landmark ruling on April 15, a Supreme Court bench comprising Justices KS Radhakrishnan and AK Sikri directed that transgender people be recognized as the third sex and be accorded equal standing under Indian law.
This ruing provides hope for the Indian gay rights movement that for the past 12 years has waged a legal battle to do away with the colonial-era “Section 377” law that describes same-sex relations as “unnatural” and punishable with life imprisonment.
Efforts by gay rights activists have resulted in a flip-flop with courts decriminalizing and then recriminalizing the Section 377 law.
The Supreme Court past December upheld the validity of Section 377, reversing the 2009 Delhi’s high court ruling that decriminalized it and gave the gay community broad protections and rights.
In January the Supreme Court dismissed a plea by the federal government, gay rights activists and organizations for reviewing its overarching verdict. Currently, a new Supreme Court bench has agreed to re-examine that decision.
Ironically, the April 15 Supreme Court ruling said that Section 377 it had earlier upheld to criminalize same-sex relations was not to be used against transgender people but still applicable to gays, lesbians and bisexuals.
Nonetheless, the new ruling “opens the door for us to challenge 377,” Anand Grover, lead lawyer in the Section 377 case told buzzfeed.com.
Their argument reads almost like a point-by-point take down of the logic that upheld Section 377, Grover said.
The Constitution states that one’s right to expression of his self-identified gender “can be expressed through dress, words, action or behavior or any other form,” the judges had ruled in the transgender case.
This definition is so expansive that it could include sexual activity with a partner of choice, said Grover.
In fact, Grover noted, that the argument seemed to owe a lot to the very judgment against Section 377 that was overturned.
The judges who decided the transgender rights case, Grover said, “have obviously gone very similar to the Delhi High Court judgment.”
Despite the language in the transgender case not weighing in on same-sex relations, the ruling for equality rebuts Section 377 “on no uncertain terms,” said Arvind Narrain, a lawyer who works on litigation for gay people.
Judge Radhakrishnan and his colleague in the transgender case ruling, Narrain pointed out, “say 377 is responsible for torture and abusive treatment” and hence a reason for concern at the very least.
“This is a ray of hope,” said Simran Shaikh, a rights activist who works for India HIV/AIDS Alliance. “Today is just a foundation stone” in securing gay rights. “[Now] we have to build the entire empire.”