SC Recognizes The Rights Of Transgenders, Why Can’t It Decriminalize Homosexuality?

Posted on April 19, 2014 in Society

By Amrita Roy:

In a landmark judgment, the Supreme Court has legally recognized transgenders as a third gender which provides them with the same rights to employment, education and other benefits. While the ruling may not eradicate all forms of social discrimination transgenders have to face today, it definitely is a step in the right direction. Above all, it instills some faith in the legal system of India and shows that it is willing to keep pace with change and do away with regressive laws. And yet ironically, it was only a couple of months previously that the same Supreme Court had imposed the primitive Section 377 which labelled ‘unnatural sex’ as criminal.

Section 377

On Tuesday, the court ruling stated that transgenders have been “sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.” Justice KS Radhakrishnan said that the “recognition of transgender people as a third gender is not a social or medical issue but a human rights issue.” Well, haven’t homosexuals been sidelined in our society? Hasn’t our society also failed in accepting their expression of sexuality? Shouldn’t our mindset towards homosexuals also change? Isn’t criminalizing people for merely their sexual orientation an important human rights issue?

While recognition of a gender and recognition of a sexual preference aren’t exactly parallel issues, one can’t deny the inherent attempt of these judgments in staying as close as possible to the “mainstream.” In many of our traditional stories, religious fables and myths, transgenders have held a special position. Many Hindu deities have seamlessly changed their genders in order to fulfill certain roles or purposes. Samba, son of Krishna, was a patron of eunuchs and transgenders. In the Mahabharata, Shikhandi (born as female Shikhandini) helped in the Pandavas’ victory over the Kaurava in Kurukshetra. Since centuries, they have always occupied the mind space of the mainstream. In popular culture, it is common for eunuchs to be welcomed into households to bless the newborn child or during weddings. Thus, granting rights to them is far more acceptable and also much easier than granting rights to gays.

Homosexuals are still not granted that space. In mass entertainment, gay characters are brought in only for comic relief. They are stereotypically believed to come from upper and upper middle class society that poses challenges to the conservative structure of the Indian society. Giving similar legal rights to homosexuals would mean a direct challenge to this structure. The same was seen with the Anti-rape Bill. It addressed many issues in detail like life term and even death sentence for rape convicts, reducing the age of consent from 18 to 16, and stringent punishments for offences like acid attacks and stalking. But it failed to address the issue of marital rape as it too would have been a direct aim at the structure of the Indian society and the inherent assumption that once married, a woman is a man’s “possession.”

There is much to be done before everyone in India gets the basic right to equality that our Constitution guarantees. It would mean that the legal jurisdiction of our nation would have to look beyond the social systems and hold the Constitution as the foremost guiding principle. With the recognition of transgenders as a third gender there comes new hope that sooner than later, the Supreme Court will revise its decision and do away with the archaic Section 377.

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