A two-judge panel of the Supreme Court of India got it right this week when it ruled that transgender people be treated as "third gender" and that their rights be safeguarded under the country's constitution. The panel also upheld transgender people's right to decide their self-identified gender.
"The center and state governments are directed to grant legal recognition of their gender identity such as male, female, or as third gender," the panel wrote in its lengthy decision.
The decision also stated that the government should "seriously address the problems being faced by Hijras/transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS [sexual reassignment surgery] for declaring one's gender is immoral and illegal."
That's a powerful decision coming from the same court �" but not the same judges �" that last year upheld a colonial-era sodomy law, overturning a ruling by the Delhi High Court that had found protections for LGBT rights under the country's constitution. While Tuesday's decision in the transgender rights case doesn't change the sodomy ruling, LGBT activists are cautiously optimistic.
Political leaders in the U.S. could take some lessons from another country's support for trans people. A similar high court decision in this country would help to wash away the endless squabbles in public schools about who can use what restroom and whom one is allowed to bring to a high school prom. Transgender people would be able to correct birth certificates, driver's licenses, and other documents to reflect their authentic gender presentation, without piecemeal legislation in the states, as is happening now, and they would have stronger rights in employment discrimination cases.
But instead of looking to the future where people can self-identify, Republican lawmakers in this country remain shackled to the outdated, scientifically unproven beliefs of religious conservatives whose fear-mongering hurts trans people every day. This ideology has prevented bills like the Employment Non-Discrimination Act from being voted on in the House of Representatives. And it infects the airwaves where it is perpetuated on talk shows by political and religious commentators. Just do a Google search to find which pastor is spewing hate. This week it was Kevin Swanson in Colorado, who likened LGBT families to cannibals and murderers. As if anyone honestly believes that.
And yet these homophobes and transphobes should be called out for their ill-advised remarks, and should be asked to provide evidence to back up their claims.
But as long as we have a high court with justices like Antonin Scalia, Clarence Thomas, and Samuel Alito, such a victory for trans people will be a long time coming. The same chief justice, John Roberts, who believes money in political campaigns is free speech, didn't rule for same-sex couples to receive the same federal rights when he joined the minority opinion in the United States v. Windsor case that struck down a provision of the Defense of Marriage Act.
We applaud the India high court's ruling, which delineates the myriad obstacles transgender people face. It's especially noteworthy that the judges noted social stigma, depression, and suicidal tendencies, which are experienced by many LGBT people in this country too. The justices here would be wise to look at India's ruling, but of course, Scalia doesn't believe any good can come from examining cases outside of this country.
Go figure.