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Sexuality, Gender Identity And Justice

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In 1970, Allwin Toffler used the term “Future Shock” to identify a state of psychological trauma resulting from too much change in too little time. Forty Four years on – for at least parts of the judiciary - this is the living reality. How else do you explain one bench of the Supreme Court saying that for a man to have penetrative sex with another man is a crime and for another bench to say that to mutilate your body and transform from one gender to another isyour constitutionally guaranteed right? What this is going to do to the HR departments of any corporation in Modi’s new conservative sirkaris of course a whole new can of worms!

To start with the gender bending, the issue as the bench in the National Legal Services Authority v UOI[CWP 400 of 2012 decided 15thApril 2014} so compassionately put it is simple:

“Seldom, our society realises or cares to realise the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of theTransgender community, especially of those whose mind and bodydisown their biological sex.”

On the contrary, confronted with the transgender issue, if we are not immediately reduced to jeering simians like a bunch of incurable patients in a loony bin, we probably end up sympathising with the traumatised parents of the transgenders. The question then is this: should Hirjras, Eunuchs and gender benders be granted status as a third gender with all legal protection? In other words, does every Indian have the right to determine his or her sex orientation and, more importantly, his or her gender identity?

The court thought so for three reasons. Noting that Asians in general have not traditionally had problem with the transgender identity, it observed that the British for the first time introduced laws to victimise those between genders (!!) by adding Hijras to the list of the Criminal Tribes Act 1871 and making sex “against the order of nature” a crime under Section 377 of the Penal Code. This marginalisation of transgender people means that they have few employment opportunities, forcing them into jobs that great increase their exposure to Sexually Transmitted Infections including HIV. A detailed 2010 study by the UN Development Program in India revealed that the incidence of HIV was 7.4 per cent amongst men who have sex with men as opposed to the overall adult HIV prevalence of 0.36%. For those who care about these sorts of things, the total number of transgender and Hijra male sex workers in India stands estimated at a mere 235,213 and for male sex workers at a similar figure.

That takes us to the second limb of the judgment. If you look at theUnited Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (dated 24 January, 2008), Para 21 obliges states to “protectfrom torture or ill-treatment all persons regardless of sexual orientation or transgender identity”. India signed this convention but its law is completely binary in its gender ideology including laws relating to marriage, adoption, inheritance, succession, taxation and welfare. In Indian law, what you are born as is what you are, and if no one can quite tell what you are when you are born, you don’t really exist and can now dance on red lights to survive. What should a court do when a country signs a convention but then does not align its laws with its international obligations? The court took the view that if Indian laws are not in specific conflict with such international covenant, the court will apply these covenants without parliamentary intervention.

Third and finally, the judgment draws upon constitutional principles. Since Article 14 speaks of persons generally, transgender persons too are entitled to the equal protection of the laws including employment,healthcare, education as well as equal civil and citizenship rights. Similarly, Article 16(2) prohibits discrimination “on grounds only of religion, race, caste, sex, descent, place of birth, residence orany of them”.So too the protection of personal liberty under Article 21.

We can immediately see the problem here. What is every citizen going to do with its right to determine its gender identity and its sexual orientation if Under 377 of the Penal Code, you will send a person to prison for giving any expression to that sexual orientation? This matter came up for consideration before the Supreme Court in SK Kaushal v Naz Foundation [CA 10972 of 2013 decided 11.12.2013) and the petitioners asked the court to declare that a law that criminalises consensualsexual acts of adults in private is unconstitutional. The court did not oblige, holding that this law did not

“criminalise a particularpeople or identity or orientation. It merely identifies certain acts which ifcommitted would constitute an offence. Such a prohibition regulates sexualconduct regardless of gender identity and orientation”.

The judgment has been widely criticised. Issues of gender identity and sexual orientation are inextricably intertwined and to criminalise one while singing odes to diversity of the other is incomprehensible. Many felt that the court had vented its prejudice by drawing this perfectly invalid distinction between identity and conduct in order to avoid dealing with a very substantial constitutional challenge to an archaic law from an ancient time created by an alien nation in search of cultural hegemony over a subject people. Now that the Supreme Court has agreed to hear a curative petition on this issue, we can hope that it the matter will soon be resolved.

The fallout of the Transgender judgment though is a matter that hasn’t yet started to become apparent, let alone begin to be resolved. The frame in which this judgment has been rendered is one where an individual either has no defined gender at birth or finds a conflict between its mental orientation and its gender at birth. At no stage is there a debate about a person who has a fickle view on what its gender identity is. I mean, do you feel like a girl today, or this month? If you are not condemned to endure the gender of your birth, what gender are you condemned to endure? I mean do you go to the Minister of Human Resources and mandatorily declare your gender at 18 years of age when you become legally an adult?

And what if further physical or psychological changes alter your orientation over time? I have a friend who decided he was terminally gay years after he was married. His wife was a beautiful, intelligent and compassionate girl too who everybody absolutely adored, so he must have really struggled. What if you go to therapy at age 40 and are cured of whatever made you think you were a guy at 18?When is your gender ever really final? I mean as a matter of law, your declaration at age 18 (or whenever) that you are this or that gender is perfectly arbitrary and cannot bear nexus with any objective that any law on this subject would try to achieve. Inevitably, when these issues get tested in court, the law will be pushed to be more flexible, more permissive, less certain.

Think of it in corporate terms. You hire a top lady banker for a CEO and next day she shows up as a guy. Or one that dresses like a lady one day and a guy the next. We already know of cases where breast implant surgeries are reversed because the extra weight is cumbersome and hard on the lower back. What if gender cross overs do the same from time to time? You can say that you don’t want to trap a person in its gender at birth: are you ready to trap that person in any gender at any time at all or are we all allowed to change our minds on a monthly basis? How are your armed forces even going to function?

Think of it in terms of gender sensitisation measures that India has instituted in recent years. As AAP’s law minister in Delhi belatedly discovered, you can’t arrest a women at night. Every damn accused faced with eminent detention is going to have this epiphany, grab his wife’s saree and try to disappear in the night like Baba Ramdev in the Ram Lila Maidan while the cops cool their heels outside his door waiting for the sun. Are Neanderthals going to come dressed as babes to interviews so that they may take advantage of a reservation quota for some government sinecure? Is everybody going to absolutely cease making all physical contact with absolutely everybody because it may be viewed as sexual harassment?

As for me, my concerns as a small town Hindu and the manager of a law firm are trivial but very pressing. Do I have space for an extra loo? If guys can change their orientation at will as part of their fundamental rights, how will I prevent fraudsters from becoming women to fulfilling their wildest fantasies? Are loos going the way of hair dressers: becoming Unisex? Heck, will there even be a gender anymore? Who is going to perform my last rites?

(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at [email protected]).