International Transgender Day of Visibility: 9 years on, have we met the benchmark of the Supreme Court's NALSA judgment?

Nearly nine years ago in 2014, in a watershed moment for the entire Indian trans community, the Supreme Court recognised a “third gender” and the right to self-identification of gender for the first time. .The judgment both implicitly and explicitly prescribed a path for the Central and state governments to follow in order to address the plight of transpersons in the country.This International Transgender Day of Visibility, we look back on how successful we have been in bringing to life some of the top court’s most important and explicit directions in National Legal Services Authority v. Union of India (the NALSA judgment)..Here's a look at some of the specific directions in the judgment and the judicial and legislative steps taken to create a more inclusive society for transgender persons..1. "Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.".Among all the directions issued, the first one calling for the treatment of Hijras as a “third gender” instead of limiting them to the binaries of male and female has been best implemented. Applications and forms ranging from those pertaining to the Life Insurance Corporation of India to the Indian Railways, as well as identification documents like Passport, PAN and Voter ID have been made inclusive by accommodating the Supreme Court judgment and adding the option of a "third gender"..2. "Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.".While recognising the right to self-identify, the Supreme Court had said that Article 21 of the Constitution protects one’s right of self-determination of the gender to which they belong. However, provisions of the Transgender Persons (Protection of Rights) Act, 2019 have come under criticism for not recognising this right in its true essence. As per Section 4 of the Act, a transgender person has the right to be recognised only as a 'transgender' and not as male, female, transgender or other. The Act also requires one to undergo surgery to change their gender, followed by an application to the district magistrate, who will later issue a certificate indicating a change in gender of the person if satisfied with the “correctness of such certificate”.However, the Central government has maintained that the Act safeguards trans persons against discrimination. It was their stand before the Karnataka High Court that the law protects transgender persons by recognising self-perceived gender identity. How this will pan out in practice remains to be seen..3. "We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.".Despite the apex court's call for reservation to increase the participation of transgender people in public life, the Central and most state governments have not acted on the direction yet. In February this year, the Central government said in Parliament that there was no proposal for such reservation.As of now, only the Karnataka government provides 1 per cent horizontal reservation for transgender people in service..Contrastingly, High Courts have strongly advocated for transgender reservation. In the most recent of such decisions, the Bombay High Court asked the Maharashtra government to consider granting reservation to transgender persons in the areas of education and employment. In fact, the Court asked the Advocate General for Maharashtra why such a policy was not brought in the State.In October last year, the Madras High Court had held that transgender persons are entitled to reservation under the third gender category for admission to educational institutes. Justice R Suresh Kumar said that the State government was obligated to provide for special reservation in educational institutions for those belonging to the transgender or third gender category, irrespective of the number of such persons. .Similarly, in March last year, a single-judge of the Madras High Court strongly recommended the State government to provide a specific percentage of separate reservation for transgender persons in matters of future public employments.The Court held that the State's decision to combine trans persons who identified as females, with the 30 per cent vacancies reserved for women candidates without extending a special reservation for them, was violative of Articles 14 and 16(1) of the Constitution as well as the directions in the NALSA judgment..4. "Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/Transgenders face several sexual health issues.".This direction finds specific mention in the 2019 Act under provisions dealing with healthcare facilities for trans people. The Act calls for separate human immunodeficiency virus sero-surveillance centres to conduct sero-surveillance for trans people in accordance with the guidelines issued by the National AIDS Control Organisation..5. "Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities." .The 2019 Act has no mention of a provision for separate toilets for trans folk. However, High Courts have repeatedly urged governments to create infrastructure for the same.In February, the Madras High Court directed the Tamil Nadu government to respond to a plea seeking gender-neutral public toilets across the State for transgender persons. It also suggested that some of the existing public toilets be converted into gender-neutral ones. The Delhi High Court also asked the Delhi government for a status report disclosing the number of toilets it has built for transgender persons and whether all new public toilet facilities being built in the national capital have separate spaces for the community. A division bench of the High Court said that if the new facilities do not have separate spaces for transgender persons, then the government should immediately look into the aspect..A "trans"formation in progress in the legal community.Three years after the NALSA judgment, India got its very first transgender judge in West Bengal’s Joyita Mondal in 2017. Maharashtra’s Vidya Kamble and Swati Bidhan Baruah in Assam followed suit.While transgender persons entering the district judiciary is a definitive win for the community at large, restructuring the system by providing reservation and a conducive work environment is essential to prevent disproportionate barriers that prevent them from having fulfilling careers..In fact, Baruah, Assam's first transgender judge, challenged the constitutionality of the 2019 Act, stating that it was violative of transgender people’s rights to life, privacy, and equality and was also against the NALSA judgment.Baruah argued that the state mechanism for the identification of transgender people is an "unconstitutional concept" and that the provisions of the Act reinforce prejudice against the marginalised community instead of attempting to eliminate the same.While notice was issued in the case in 2020, arguments are yet to be heard by the apex court. As per the Supreme Court’s website, the case is listed for its next hearing on April 14. .Within the legal community itself, treatment of trans people continues to miss the mark in spite of changing attitudes, some (albeit, limited) representation and support in the form of judicial pronouncements. .This is evidenced in the fact that the State of Kerala only got its first transgender lawyer in Advocate Padma Lakshmi this month. .In fact, just last week, queer, non-binary lawyer Rohin Bhatt wrote to Supreme Court Judge Justice Hima Kohli requesting for gender-neutral bathrooms on every floor of the Supreme Court, wherever there are men's and women's bathrooms. The letter also requested infrastructural inclusivity in the Supreme Court and queer representation on the Supreme Court Gender Sensitisation and Internal Complaints Committee.Similarly, in November last year, Bhatt wrote to Chief Justice of India DY Chandrachud requesting a modification in Supreme Court appearance slips so as to include an additional column where lawyers' pronouns can be added..A marginalised community itself cannot be held responsible for its lack of participation in the profession. It is the duty and responsibility of all members of the legal fraternity, particularly those in positions of power, to ensure that systemic challenges do not prevent transgender lawyers and judges from engaging with the profession. In order to make this goal a reality, suggestions made by the trans community ought to be taken into serious advisement so as to ensure representation in the highest offices.