ANUSHA SHARMA, a transgender dancer who travels across the National Capital Region, was still nursing the injury she had suffered when a policeman hit her with a baton for “illegally” soliciting “customers” at a traffic signal at Moolchand in Delhi in November—she had to have six stitches on her forehead—when the bigger blow, in the form of the Supreme Court judgment upholding the validity of Section 377 of the Indian Penal Code, came on December 11.

The physical injuries transgenders suffer are part of the continuing harassment and humiliation they face at the hands of the police, which makes leading a life of dignity a distant dream. The court verdict seemed to have dashed all hopes for equal rights. The progressive judgment of the Delhi High Court had created an atmosphere conducive to a movement for legal recognition of a third gender identity, which would improve a social group’s access to education and health care and stop its harassment by law enforcement agencies. With Section 377 back in force, the future of this movement is uncertain. The criminalisation of penal, non-vaginal sexual practices under Section 377 has a direct impact on the transgender community. These practices, termed “unnatural” by the Supreme Court, are an integral aspect of their sexual identity. While the Supreme Court is yet to give its verdict on a public interest petition filed in September 2012 for legal recognition of a third gender, the reintroduction of a potent instrument of harassment and intimidation has only slowed down the movement for equal rights.

In September 2012, the National Legal Services Authority (NALSA) filed a public interest petition in the Supreme Court seeking legal recognition of a third category of gender in identity documents such as the voter identification cards, driving licences, passports and ration cards. This was the beginning of a movement towards equality of opportunity as fellow citizens and increasing sensitivity towards other genders in government policymaking.

Sanjana, an area officer working with the Society for People’s Awareness, Care and Empowerment (SPACE), pointed out, “In my experience of working with transgender persons, the lack of legal documents such as a voter identification card, an Aadhaar card, and a ration card impedes access to government services. The legal recognition of a third gender would be the beginning of a movement for employment opportunities in government services and greater sensitivity towards transgender persons in public health-care systems. Some members of the community are forced to take up sex work on account of lack of access to education and other employment opportunities.” A hijra sex worker, who works in Shastri Park in Delhi and has been in the city for five years, expressed similar sentiments: “I left my town, Bongaon on the outskirts of Kolkata, after being ostracised by my family. I would love to take up a job if the government can offer one. This is not a profession I have chosen on my own accord; the daily harassment by the police is humiliating.” Simran Shaikh, a programme officer with HIV/AIDS Alliance who has worked with transgenders across north India said, “The attitude of government hospitals has changed for the better over the past three years, yet a lot remains to be done.”

Following the filing of the public interest litigation (PIL) petition, a Bench consisting of Justices K.S. Radhakrishnan and Dipak Misra issued notice in October 2012 to the Union of India and all the State governments seeking their response to the petition. Two intervention applications were filed in the case by Laxmi Narayan Tripathi, founder-member of the Asia-Pacific Transgender Network and the Centre for Legal Aid and Rights. The final arguments in the case took place in October 2013. The Supreme Court is yet to deliver its judgment on the matter. On being contacted by Frontline, Laxmi Narayan Tripathi did not offer specific comments on the case. However, she highlighted the importance of equal rights across the spectrum of sexuality and gender: “There is a whole umbrella of sexualities which should be given equal respect by the state. Denial of access to proper health care, education and, at times, even a life of dignity is discriminatory.” The case has brought to the fore the need for the state to go beyond the binary of gender in formulating its welfare schemes and services. It has also highlighted important connections between the sexuality of an individual and her sense of self, and thereby the need to integrate gender with the discourse of Fundamental Rights. The Delhi High Court judgment had adopted a similar approach towards sexuality in its expansive reading of the right to equality (Article 14 of the Constitution), prohibition of discrimination (Article 15) and the right to life (Article 21). The Supreme Court judgment, however, adopted a narrow, restricted view of the rights and held that no constitutional infirmity was found in Section 377.

A Senior Advocate in the Supreme Court and the director of Lawyers Collective, Anand Grover, appearing on behalf of Laxmi Narayan Tripathi, pointed out to the Bench that gender was now understood as a range or continuum, which could be different from the person’s biological sex. A person can identify with the gender which does not correspond with the sex assigned at birth. Grover argued that a person’s experience of gender is integral to her sense of self, and the right to be recognised in one’s chosen gender constitutes one’s personal autonomy and freedom. In his submission, Grover said that a reading of Articles 14 and 15, Article 19 (fundamental freedoms), and Article 21, mandates the state to recognise the self-identified gender of all persons and take necessary legal and administrative steps to accord such recognition in all identity documents, including birth certificates, educational certificates, passports, ration cards and driving licences.

He noted that discrimination on the grounds of gender identity violated the constitutional guarantee of equality under Articles 14 and 15. He also argued that the legal recognition of gender identity should not be contingent on medical requirements such as the need to undergo hormonal therapy or sex-reassignment surgery. However, an individual who wants to undergo these services should have access to free and quality health services in public hospitals.

The Centre, through the Ministry of Social Justice and Empowerment, submitted that it was in agreement with the submissions regarding the legal recognition of transgender persons and proposed to set up an experts committee on the issue relating to transgender persons, taking into account all the concerns raised by the petitioners and the interveners.

With the Supreme Court verdict in the 377 case refusing to link LGBT (lesbian, gay, bisexual and transgender) rights with core constitutional principles of equality, non-discrimination and the right to life and liberty, the transgender community is apprehensive about the future of the movement for legal recognition and equal rights. As the reimposition of 377 in effect criminalises transgender, hijra and a range of gender identities, the Supreme Court has a tough call to take on the issue of legal recognition of these identities.

A regressive verdict will further marginalise these communities and impede a progressive movement initiated by the Delhi High Court in 2009.