Let’s acknowledge gender continuum

Supreme Court’s recognition of the ‘third gender,’ indeed the gender continuum, which does not depend on medical examination or certification but on self-identification, is a watershed moment in India’s halting march towards enshrining sexual and gender rights. The twin legislation, which gives a legal stamp on the rights of transgenders, hijras and those with hitherto indeterminate category, and grants them OBC status to improve access in educational institutions and government jobs, will surely go a long way in ensuring equality and bring in a semblance of social parity for the traditionally discriminated sexual minorities. The judgment by the SC bench, comprising Justices KS Radhakrishnan and AK Sikri, effectively paves the way for a sweeping tide of future reforms, particularly re-setting the foundation of the battle of jurisprudence against deeply discriminatory laws such as Section 377. This landmark verdict frees sexual and gender identity from medical imperatives and classificatory impulses and instead rests the case on essential fluidity of sexual expression, including public presentation. This not only enlarges the scope of gender rights substantially, but also works towards considerably lessening the social and bureaucratic discrimination against hijras and people who are unsatisfied with the sexual and gender binaries of male and female. The apex court, which passed the order on a public interest litigation filed by National Legal services Authority (NALSA) and Lakshmi Tripathy, a transgender activist, also includes under the ambit of third gender those who have undergone sexual reassignment surgeries, thereby allowing virtually anyone to pick their gender in government and identity documents such as passports, ration, PAN and voter cards, driving licences, among others. Moreover, this also allows the marginalised sections to have access to free and quality health services, and enhances the governmental and other civic interventions in matters pertaining to the transgenders.

However, the immediate effects of the judgment aside, entitling the systemically exploited to access the same set of rights as the gender and sexual conformists and majorities, there are far-reaching implications of the verdict which will have an enormous bearing on the quality of sexual and gender rights in the country. It will not only be limited to the pride marches and rituals of ‘cross-dressing’, but will have linguistic, social, cultural and economic repercussions, ushering in paradigm shifts in our understanding of the sexual and gender spectrum. The verdict does not only pertain to the hijras, kinnars, aravanis, jogtas, and other descriptions to demarcate the socially ostracised people, but to everyone. Evoking Articles 14 and 15 (equality and non-discrimination), 19 (fundamental freedoms) and 21 (right to life) of the Constitution to argue that transgenders are entitled to every right that is provided by the government,  the verdict has essentially made gender and sexual identity free of external markers and taxonomic repertoire, such as sex organs, gonadal features, or even chromosomal results, thus acknowledging the staggering fuzziness of gender and sexual expressions.