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India's Supreme Court enshrines 'the right of every human being to choose their gender'
CC BY: R Barraez D'Lucca
CC BY: R Barraez D'Lucca

India's Supreme Court was roundly criticized for reinstating an 1861 ban on gay sex, so it may seem odd that the same high court just made India one of the foremost nations in recognizing transgender rights. The Indian Supreme Court not only created a legal "third gender" category, it also broadly declared that "it is the right of every human being to choose their gender."

The ruling applies only to transgender people, or hijra (a term that also encompasses transvestites/cross-dressers, and eunuchs), not gays and lesbians. But the justices asked the government to consider transgender Indians a "socially and economically backward" class — a classification that sounds like an insult but opens up the possibility of job and education quotas in line with other minority groups.

"Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue," Justice K.S. Radhakrishnan said in his ruling. "Transgenders are citizens of this country and are entitled to education and all other rights." India's estimated two to three million transgender citizens recently were able to check "other" on the gender section of the voter registration form — 28,000 did for the current election — and now they are entitled to the same option on all government forms, plus separate restrooms and equal rights.

How do you square India's conservative laws on homosexuality and liberal embrace of transsexuality? It's partly a cultural thing. Nepal started recognizing a third gender in 2007, and Bangladesh followed suit last year. In fact, the BBC's Geeta Pandey suggests that the current stigmatization of transgender Indians was a British import. "Members of the third gender have played a prominent role in Indian culture and were once treated with great respect," she writes:

Their fall from grace started in the 18th century during the British colonial rule when the Criminal Tribes Act of 1871 categorized the entire transgender community as "criminals" who were "addicted" to committing serious crimes. They were arrested for dressing in women's clothing or dancing or playing music in public places, and for indulging in gay sex. After Independence, the law was repealed in 1949, but mistrust of the transgender community has continued. [BBC News]

The ruling was a win for transgender advocate (and film actress) Laxmi Narayan Tripathi, one of the plaintiffs in the case:

But it was also a victory against trying to fit complex cultures into narrow ideological categories.

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