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Third Gender ‘Defined’

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The Supreme Court today, reiterated its previous stand that the term “third gender” categorically refers to transgender and not to gays, lesbians or bisexuals.

The purpose of the clarification was a plea by the Centre that it was unable to implement the 2014 directions of the Supreme Court as there was confusion in the judgment over whether third gender also included gays, lesbians and bisexuals. The Supreme Court had asked the Centre to create a third gender category in all its forms and extend the benefits of socially and educationally backward classes.    

In the 2014 case National Legal Services Authority vs Union of India and Ors, instances of discrimination and cruelty against transgenders were presented before the court. In addition to the Constitutional provisions which provide for equality and the right to life and liberty with dignity, many international provisions were cited.

One of them was the ‘Yogyakarta Principles’. These principles state: ‘All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights’. It specifically asks states to: ‘Undertake programmes of education and awareness to promote and enhance the full enjoyment of all human rights by all persons, irrespective of sexual orientation or gender identity’.  

In the 2014 judgment, the Supreme Court had clearly spelt out, “The basic spirit of our Constitution is to provide each and every person of the nation equal opportunity to grow as a human being, irrespective of race, caste, religion, community and social status.”

However, the court observed that transgender persons faced discrimination. Hence, the court gave directions to the state to add the third gender category on forms as well as to provide reservation for them in government jobs.  The court also directed the government to take many other steps including to ensure that third gender persons get proper medical care in hospitals, provided separate toilets and other facilities. SC also had directed the Centre to create public awareness so that transgender “will feel that they are also part and parcel of social life and not be treated as untouchables”.

India Legal Bureau 

 

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