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Gender Identity: A Human Rights Issue

By: Mouli Kaushal Jain* |



Introduction


In April 2014, the Supreme Court of India in its landmark judgment National Legal Services v. Union of India (“NALSA”) granted rights and protections to the transgender community. The court recognizes transgender persons’ right to decide their gender as male, female or third gender. The court also directed central and state governments to take steps to treat them as Socially and Educationally Backward classes (“SEBC”) of citizens and extended reservations for them (Para 129, NALSA).


The court acknowledged that although fundamental rights do not explicitly exclude rights of the transgender community, Indian law as a whole recognizes the paradigm of binary genders which results in discrimination. In the absence of a statutory framework, the court looked upon the values of identity, dignity, and liberty which are also posited in the Indian constitution to grant recognition to the transgender community. The court held that the right to gender identity is not only limited to the exercise of choice of gender but the issue of gender identity has all the trappings of human rights.


After this judgment, many developments including “The Transgender Persons (Protection of Rights) Act, 2019” have taken place. Much has been said and written about this act. Activists have argued that the 2019 Act violates NALSA judgement. The author is in complete agreement with this claim. However, provided the vastness of the material available in this domain, the article will not analyse how the Trans Act violates NALSA judgement. Instead, it will focus on the NALSA judgement in itself. The author believes, given the recent developments, it becomes important to go back and analyse NALSA judgement in its entirety to understand how the Supreme Court has protected the rights of the transgender community.

Hence, in this article, the author will focus on the NALSA judgement itself and will argue that the court led to a fairer outcome by not viewing the issue of gender identity merely as a medical or social issue, but as a human rights issue. The author will root her arguments within John Rawls’s idea of justice as fairness. Given that Rawls’s theoretical contribution in the field is as vast as it is ground-breaking, this article is restricted to first, the idea of original position and principles agreed upon in that position, and second, the idea of reflective equilibrium. The author will particularly focus on the court’s direction of treating transgender persons as Socially and Educationally Backward Classes and extending reservations to them in all educational institutions and public appointments and will locate this affirmative action within the Rawlsian theoretical framework of the original position. Additionally, the author will also analyse the incorporation of transgender rights within fundamental rights from Rawls’s idea of reflective equilibrium.


The Principles of Justice


Rawls theorises his ideas with an aim to provide an alternative to the classical Utilitarian model that focuses on the greatest good of the greatest numbers.[i] Rawls rejects this idea because he believes that utilitarianism while focusing on the greater societal goods, tends to ignore the needs of the individuals and the distinctions among persons. According to Rawls, every human has certain rights, which are not subjected to political bargaining or “calculus of social interests”.[ii]


Rawls’s theory of justice provides that people in their original position are behind the veil of ignorance. In such a situation, they are unaware of their position in society with respect to their gender, class, abilities, intelligence, strength, etc. This would essentially imply that principles chosen behind the veil of ignorance would be of no one - advantaged or disadvantaged. Hence, the resulting principles would be neutral and fair. According to Rawls, people behind the veil of ignorance will naturally arrive at two principles of justice, first, each person has an equal right to basic liberty,[iii] and second, social and economic inequalities are to be arranged so that they provide the greatest benefit to the least advantaged, and they are attached to positions open to all under the condition of fair equality of opportunity.[iv]


In the first principle, basic liberties include political liberties, freedom of the person, freedom to speech and assembly, liberty of conscience, freedom from psychological oppression and physical assault, and freedom from arbitrary arrest and seizure. In the Indian context, each of these liberties is posited in law and is guaranteed to every individual. In the present case, the court acknowledged that the Indian constitution does not explicitly exclude transgender persons from the ambit of fundamental rights, however, non-recognition of their identity results in widespread discrimination. In addition to that, the court also acknowledges the fact that many rights flow from the choice of gender, hence it becomes more important to recognize their gender identity. It is argued that a just system as per Rawls will necessarily mandate recognition of gender identity as the same would help in exercising basic liberties to the transgender community.


The second principle essentially allows socio-economic inequalities only if they are advantageous to the least advantaged and requires that there must be “fair equality of opportunity”. Hence, it is not enough if all the offices and positions are left open to all, they must be arranged in such a manner, that they provide equal opportunities to everyone to attain those positions. This principle of Rawlsian theory is widely applied to justify various kinds of affirmative actions. At this juncture, it is important to identify who “least advantaged” is, as any law allowing benefits to the least advantaged would be a just law. Rawls introduces the idea of primary goods to identify the least advantaged. Primary goods are the goods that free and equal people need as citizens. Rawls provides five kinds of primary goods, first, the basic rights and liberties, second, freedom of movement and free choice of occupation, third, positions of authority and responsibility, fourth, income and wealth, and fifth, the social basis of self-respect.[v]


The author posits that in the present case, the transgender community is the least advantaged, hence any law benefitting them would be just as per Rawlsian perspective. It has been argued that the transgender community faces discrimination and oppression in all aspects of life and hence is devoid of primary goods. The court, in the present case, highlighted that the transgender community faces various kinds of economic blockade and social degradation. They face multiple forms of oppression in fields like health care, education, employment, etc. Thus, it has been argued that categorisation of transgender people as SEBC and extending them reservations in educational institutes and public appointments is just according to Rawlsian perspective.


Reflective Equilibrium

According to Rawls, even after the principles agreed upon by actors in their original position under the veil of ignorance are just, discrepancies may arise. For such cases, Rawls provides the idea of reflective equilibrium. The method of reflective equilibrium includes the process of going back and forth among considered judgments about particular instances and the theoretical considerations that have bearing on these considered judgments, revising some of these essentials in order to achieve coherence among them.


In his book, ‘Justice as Fairness’, Rawls identifies two kinds of reflective equilibrium, narrow reflective equilibrium, and wide reflective equilibrium. Narrow reflective equilibrium irons out minor incoherence in an individual’s belief system, in order to ensure no inconsistencies arise. A wide equilibrium can be achieved by challenging existing beliefs and by comparing them with the evolved, alternative moral positions.[vi] Rawls favours wide reflective equilibrium over narrow reflective equilibrium.


Rawls provides that Justice as fairness regards all our judgments as reasonable and rational. But as all individuals are different, certain conflicts among these judgments may arise. To resolve this conflict some of these judgments eventually have to be revised, suspended and withdrawn, if the aim to reach a reasonable agreement has to be achieved. Essentially, the position of wide reflective equilibrium is achieved after taking into consideration various alternative conceptions of justice and various arguments. Thus, Rawls, while advocating for wide reflective equilibrium believes that in such a position, a person’s convictions, principles, and judgments are in line and the reflective equilibrium is wide i.e. it has accommodated many changes that have preceded it.


In the present case, the author posits that looking at ‘sex’ not in a narrow sense in binary paradigm, (Para 59, NALSA) but looking at it more broadly as including gender identity and sexual orientation, is just and according to Rawls conception of wide reflective equilibrium. In this landmark judgment, the court, for the first time, recognises the right to gender identity of the transgender community. As highlighted above, the same has been done by widely interpreting fundamental rights and taking into account human rights. Thus, the court has reflected on the initial position and revised the same by considering alternative conceptions of justice. This process is just and led to a fairer outcome according to Rawls’s idea of wide reflective equilibrium.


Conclusion


The Transgender Persons Act, 2019, has gone wrong on many fronts. As mentioned above, how the act violates NALSA judgements is out of the scope of this article. However, the author posits, like the NALSA case, policymakers and the government should also look at the whole issue as a human rights issue. Using this perspective will help in a deeper understanding of the issue and thus would result in better policies.


***

* The author is a student at NLSIU, Bangalore.



[i] John Rawls, A Theory of Justice (first published 1971, revised edn, Harvard University Press) 20.

[ii] n(i) 4.

[iii] n(i) 53.

[iv] n(i) 72.

[v] John Rawls, Justice as Fairness: A restatement, (first published 2001, Harvard University Press) 58.

[vi] n(ii) 31.



Image Source: http://orinam.net/resources-for/law-and-enforcement/nalsa-petition-tg-rights-india/



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