A recent Supreme Court verdict has empowered the transgender community by giving them not only the right to self-determination of gender but also cultural, social and political rights as guaranteed by the Constitution to all citizens. The lengthy verdict, however, fails to throw light on the sexual rights of the community. The judgment declined to delve into section 377 of the IPC, that calls homosexuality “unnatural” and makes it a criminal offence punishable upto life, despite acknowledging that the colonial law is widely used to harass transgender persons.
Though the apex court has ruled that each person has the right to determine one’s own sexual orientation and gender identity, it fails to talk about the right to choose one’s sexual partner. The third gender cannot be discriminated against under the statue now as far as general rights are concerned. However, the third gender’s sexual activities continue to remain not just unlawful but criminal offences. “Trans persons can now have their own public toilets but can still not have legitimate sex. A trans person would indulge in unnatural sex (under sec 377) as the partner would either be another trans or a man or woman,” said a transgender who did not wish to be named.
Lawyers and LGBT activists say that the case in question — National Legal Services Authority vs. UOI — dealt only with general rights of transgenders and not sexual rights. They, however, are of the view that the judgment has given a boost to the movement against section 377 and will definitely help in decriminalising homosexuality. In July 2009, the Delhi high court had decriminalised homosexuality by striking down sec 377 of the IPC. However, the HC verdict was quashed by the top court in December last year. Later, the SC dismissed a review plea and a curative petition is now pending before it.
Colin Gonsalves, senior advocate and founder of Human Rights Law Network said that “This SC judgment is basically inconsistent with another judgment of the SC (recriminalising homosexuality). This is contradictory. The two verdicts have taken totally different views. But the latest verdict will definitely have an impact on the curative petition (pending in SC) for decriminalising homosexuality,”