#dnaEdit: Concerned or conservative?

The NDA government’s reported move questioning various aspects of the landmark Supreme Court judgment upholding the transgender community’s longstanding demand for acceptance as the third gender is most unfortunate. For one, many of the concerns raised by the Centre in its application, as reported by Indian Express, are already adequately dealt with in the judgment. The Centre has questioned the Supreme Court directive to grant transgender persons the benefits reserved for socially and educationally backward classes. It has also sought a clarification stating that lesbians, gays and bisexuals should not be included in the transgender class and that eunuchs must be classified separately. Further, it has cited an expert committee report submitted to the government in January, which it wishes to follow, rather than the court’s nine-point directives. To compound the apathy, the Centre has also expressed its inability to the implement the judgment’s six-month deadline.

Rather than responding favourably to a judgment that boosted human rights and upheld the individual’s right to personal choice in determining gender identity, it is surprising that the Centre has resorted to obfuscation of the issues involved. This appears to be nothing more than a go-slow tactic. In provisioning affirmative action to uplift the transgender community, the judgment had clearly elucidated the history of social discrimination and exclusion that has relegated the community to the margins. Page 93 of the judgment also clearly states that it is not concerned with a wider definition of transgender that also includes gays, lesbians and bisexuals. So the clarification sought on this count appears suspicious, or misinformed, considering that the BJP and the Sangh Parivar has toed an ambivalent, if not pessimistic, line to put it mildly, on LGBT rights and decriminalising homosexuality by repealing Section 377 of the Indian Penal Code. The government’s other poser, on differentiating eunuchs from transgenders, is mere technicality and superfluous, considering that eunuchs also are beset by the same problems facing transgenders.

The Centre’s apprehensions on according transgender persons OBC reservation has merit on procedural grounds considering that social and educational backwardness must be first certified by the National Commission for Backward Classes. But the government’s own expert committee, in a very progressive report, that closely mirrors the Supreme Court’s observations on the community’s plight, has clearly recommended affirmative action in education and involving transgenders in social welfare and employment schemes. In fact, the expert committee recommendations are more comprehensive, suggesting far-reaching social, economic, legal and administrative interventions to mainstream the community and mitigate the stigma facing them.

Eight months have elapsed since the expert committee report and five months since the Supreme Court judgment. In the interim, only a few state governments and central bodies like the UGC have notified the inclusion of the “third gender” in application forms. The UGC did so in July and Bihar became the latest state government to follow suit on September 9. If sincere in its intention to empower the third gender, the Centre must earnestly implement the expert committee recommendations without further delay. The Centre’s circumspect approach to the widely welcomed transgender judgment will dishearten and worry those who hoped for a legislative solution to the IPC Section 377 issue. But by not rejecting this judgment’s thrust on personal choice in gender identity, the NDA-BJP government has one reason less to deny the right to personal choice that those with differing sexual orientations are fervently pleading for.