Mario Da Penha in Caravan (image Chandan Khana / AFP / Gety Images):
ON 15 APRIL, the hijra activist Laxmi Narayan Tripathi walked down the stairs of India’s Supreme Court, overwhelmed by what she had just heard. A division bench of Justices KS Radhakrishnan and AK Sikri had reversed a longstanding policy of actively excluding from public life those outside the male–female gender binary.
Since the colonial era, such individuals had been demeaned as eunuchs, dislodged from positions of political authority, dispossessed of their property and livelihoods, and finally criminalised. The justices sought to neutralise this legacy by recognising the fundamental right of citizens to choose their own gender. They asked the centre and the states to endorse these choices on birth certificates, passports, college application forms, ration cards, in public facilities and restrooms—in short, the range of services that gender our national belonging.
More radically, the judges insisted that elected representatives create plans to incorporate transgender people within India’s mammoth affirmative-action regime. “There is a growing recognition,” the court wrote in its judgement, “that the true measure of development of a nation is not economic growth; it is human dignity.”
Tripathi, who has spent 16 years working for transgender justice, was in tears after hearing the decision. “I felt that no other person of my gender would ever again go through what I have gone through,” she told me. “One of the tallest pillars of democracy in this world had given us back our rights.”
The watershed verdict in National Legal Services Authority vs. Union of India marks a fundamental shift in the country’s established norms for recognising and accommodating marginalised communities in the social and political mainstream. Affirmative action is largely pursued through reservations in educational institutions and in public employment, and these reservations are largely accorded on the basis of varna and jati. Generations of federal and state government programmes—as well as Supreme Court judgements—have confirmed the primacy of caste in the pursuit of affirmative action, even when beneficiaries are not legally Hindu. By recognising that transgender people are discriminated against because of their gender identity, and granting that such discrimination constitutes them as a distinct class, the court has unsettled this consensus. It now seems plausible that factors other than caste or ethnicity could become the basis for successful claims to affirmative action by different kinds of groups.
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