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Gender III ruling raises 377 hope

New Delhi, April 15: A transgender activist said today’s Supreme Court order made her “proud to be Indian” for the first time, and lawyers suggested the verdict would have a ripple effect on the law criminalising gay sex too.

Legally, today’s judgment does not affect the Indian Penal Code’s Section 377, and the court said the benefits it spelt out do not extend to gay people, lesbians or bisexuals.

However, rights lawyers are confident that the order — which includes a suggestion to repeal “criminal and other legal provisions” prohibiting consensual gay sex among adults — would end up benefiting the entire LGBT (lesbian, gay, bisexual and transgender) community.

Calcutta-based human rights lawyer Debojyoti Ghosh’s first reaction to today’s judgment was a “sigh of relief”.

“I was scared that this judgment would also go the Section 377 way,” said Ghosh, who is gay. “But this ruling is based on equality and human rights. It’s a great stepping stone.”

Last December, a Supreme Court bench had upheld the criminality of gay sex after it was decriminalised by Delhi High Court in July 2009, while saying the Centre was free to repeal the law.

In January, the Supreme Court dismissed a review petition against the December judgment but on April 3, it agreed to “consider” forming a Constitution bench to decide a curative petition against it in “open court”.

Anjali Gopalan of Naz Foundation, a petitioner in the 2009 case, said today’s judgment was “fantastically progressive”.

“I hope it will have a positive impact on later judgments on Section 377 and will be expanded to include others in the community. One cannot give rights to one section and deny it to the others.”

Lawyers said the apex court bench was legally correct not to bring the entire LGBT community under the ambit of its order as the petition was restricted to the transgenders’ case. However, they added, the judgment would help their case against Section 377.

“Now it is the Supreme Court’s job to reconcile the two conflicting judgments,” said Arvind Narain, counsel for the LGBT community who plans to quote from today’s verdict during the upcoming hearings on Section 377.

The parts of the judgment giving hope to gay activists come under a section on the right to privacy.

“Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation,” it says.

The court has said the “right to privacy” includes “the choice to disclose or not to disclose information relating to one’s sexual orientation or gender identity, as well as decisions and choices regarding both one’s own body and consensual sexual and other relations with others”.

It has asked the government to “repeal any law that prohibits or criminalises the expression of gender identity, including through dress, speech or mannerisms, or that denies to individuals the opportunity to change their bodies as a means of expressing their gender identity”.

“Today, for the first time, I feel very proud to be an Indian,” said transgender activist Laxmi Narayan Tripathi.

“Today my sisters and I feel like real Indians and we feel so proud because of the rights granted to us by the Supreme Court.”

For Piyush Saxena, whose NGO works with transgenders in Mumbai, “this is a first step in a thousand years”.

Earlier this month, Australia’s top court had said a person can be legally recognised as gender-neutral — a verdict seen as a victory by gender equality campaigners.

Germany passed a law last year allowing babies born with characteristics of both sexes to be registered as neither male nor female.