The 113-page decision orders state officials, the federal government in New Delhi and their various agencies to combat anti-trans discrimination in the world’s second most populated country. The ruling also calls for the inclusion of trans Indians in various social welfare and other state-run programs.
The decision includes hijras and eunuchs – those who do not identify as either male or female – in the definition of transgender.
These groups feature prominently in Hindu mythology and religious texts.
“Discrimination faced by this group in our society is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex or implied gender role,” writes Justice K.S. Radhakrishnan in the ruling. “Rights of transgenders, pure and simple, like hijras, eunuchs, etc., have also to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity.”
Indian LGBT rights advocates applauded the ruling.
The India HIV/AIDS Alliance posted a portion of the decision to its Facebook page that concluded it is the “right of every human being to choose their gender.”
“We applaud the Indian Supreme Court’s decision creating a third gender category for transgender Indians,” said Sapna Pandya, president of KhushDC, a group for LGBT South Asians who live in the Washington metropolitan area. “We support the court’s declaration that ‘all people have a right to choose their gender,’ and that the constitution guarantees ‘equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion or gender.’”
The justices issued their ruling slightly more than four months after India’s highest court re-criminalized homosexuality.
Radhakrishnan specifically references Section 377 of the Indian penal code that criminalizes sodomy in the ruling, but it only applies to trans Indians.
“We express no opinion on it since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation,” writes Radhakrishnan.
Pandya said she hopes the Indian Supreme Court will “use precisely the reasoning it utilized today” to strike down the country’s sodomy law.
“It is impossible to empower and protect transgender Indians while declaring the sexuality of so many of them to be criminal,” said Pandya.
Trans people in neighboring Nepal, Pakistan and Bangladesh have gained legal recognition as a third sex. Parents of intersex children in Germany have been able to designate the gender on their birth certificates as “indeterminate” since last November.
The India Supreme Court’s ruling also coincides with the country’s five-week national election that began on April 7.