'History owes an apology to the members of this community and their families ... for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.” with these words Justice Indu Malhotra, one of the judges of the Indian supreme court, held that section 377 of the penal code, which criminalises consensual sexual acts between adults of the same sex, was unconstitutional. The judiciary has come a long way, by applying biological test and psychological test, when it comes to transgenders' recognition as a separate gender, by giving wider meaning to the word 'gender' which is not confined to 'male' or 'female' gender binaries. Such step brought LGBTs in contention for legal recognition and consequential rights, infusing new life in LGBT movement.
The issue of transgender have been a matter of quest in both social and legal context where gender equality still remains a challenging factor towards the development of society because gender stratification is one of the barriers prevailing within the social structure of India. According to the World Health Organisation, 'transgender' is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth. For example, a person born as a man may identify with the opposite gender, as a woman.
However Long before the Supreme Court took up the transgender cause in NALSA in a most elaborative fashion, the High Court had already felt and articulated the pains and sufferings of the community and had made attempts to reduce their sufferings in whatever way they could, in absence of clear-cut Constitutional and Statutory provisions or the apex court guidelines. Supreme Court has repeatedly observed that 'Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives. The sexual manifestation of individuals is their own business and state-led intervention is unwarranted inside citizens' bedrooms” When the constitutional bench decriminalised the archaic section 377 of the Indian Penal Code, Justice Rohinton F. Nariman rightly concluded by saying 'The veil of social morality cannot be used to violate fundamental rights of even a single individual ... Section 377... has become an odious weapon for the harassment of the (lesbian, gay, bisexual, transgender) community by subjecting them to discrimination and unequal treatment. It is clear that Articles 14, 15, 19 and 21 have all been transgressed without any legitimate state rationale to uphold such provision." Having said that, India is a multilayered society. Conversation on same- sex orientation is still premature.
It is well understood that transgender are the people whose identities fall outside the other gender norms. Even after a long struggle till today Hijras undergoes multiple dimensional problem like social and cultural barriers apart from genetic factors due to which they live frustration and humiliation throughout their life which can indirectly bring a threat to some other issues and problem within the society. For a country like India where patriarchal society exists, it is indeed hard to accept the gender variants since it is considered as cruse and taboo in cultural norms.
Judiciary across globe has, thus, played a crucial role in taking the transgender movement closer to the fulfilment of its objective of getting an independent identity and full citizenry rights for the transgenders. This judicial benevolence has enabled trans-persons to ask for their due from the society and government more vigorously. The debate now is not on 'Whether transgenders deserve what they are asking for' but on ' When and how will the transgenders get their due?' The decisions taken as an attempt to undo injustices of the past have not only forced legislature and the executive to take note of the changing times and treat all citizens alike irrespective of their gender or sexual orientation but also exhort the society to change its mindset towards the LGBT community, in general, and transgenders in particular.