Transgender activist Dr. Akkai Padmashali is using recent legal advances in a first of a kind fight for the rights of all of India’s LGBT people. She is absolutely correct in her ideology, together we stand divided we fall.
The NDI government recently abstained from a UN vote to appoint an independent investigator to help protect the rights LGBT people worldwide, making it clear that they do not differentiate between the letters, LGBTIQ.
In a ruling that reverberated across the free world the Supreme Court of India on 12th December 2013 recriminalized same-sex relationships by reinstating the reviled Section 377. Previously ruled unconstitutional in 2009, the court overturned the ruling in 2013 saying that the issue could only be resolved through the legislative process.
After efforts failed to invalidate section 377 seven writs have been filed challenging its constitutionality which is now is under consideration by a Constitutional bench. Akkai Padmashali hopes that her petition will join that number.
“The Writ Petition by Dr. Akkai Padmashali and others, is similar to the Writ petition (Criminal) No. 76 of 2016 [Navtej Singh Johar v. Union of India] in challenging the constitutionality of Section 377, in the sense that the petitioners are directly affected by the Section” reports Orinam.net
“However, it makes the case more persuasive by arguing that the constitutional protections set out by the Supreme Court in National Legal Services Authority Union of India,(2014), protecting the fundamental rights of the Petitioners as transgender persons under Articles 14,15, 19 and 21, are violated by Section 377 of the IPC.”
Indian transgender people have been individually allowed certain legal rights since 2015. But this is granted on a case by case basis when a special governmental committee weighs the merits of an applicant based on the advice of medical personnel and two members of our community who must testify that the person is indeed transgender. While this law was an advancement for transgender people their individual rights to legally identify as transgender are contingent on a long and costly procedure that many of India’s trans people find prohibitive.
Transgender people worldwide will affirm the ability to legally express our gender doesn’t change our sexual orientation. So now many Indian transgender people could face a 100 year sentence for loving the same person they were partners with before transitioning.
From the Dr. Akkai Padmashali & Ors petition which can be read in full HERE
This Hon’ble Court held in NALSA that, “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom…” It held that, “Discrimination faced by this group in our society, is rather unimaginable and their rights have to be protected, irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender role. Rights of transgenders, pure and simple, like hijras, eunuchs, etc. also have to be examined, so also their right to remain as a third gender as well as their physical and psychological integrity.”
livemint.com reports that In a first, a petition filed by members of the transgender community that challenges the constitutionality of Section 377, which criminalizes adult same-sex consensual intercourse, was heard before a two-judge bench of the Supreme Court on Friday.
Justices A.K. Sikri and R.K. Agarwal directed the petition to be listed before the chief justice of India.
The new petition filed by Bengaluru-based transgender activists Uma Umesh and Akkai Padmashali, who identifies as a woman, and transwoman journalism student Suma, sought to declare Section 377 as unconstitutional.
On 29 June, a similar petition against Section 377 filed by members of the LGBT community, including Sangeet Natak Akademi awardee Navtej Singh Johar, his partner of two decades, journalist Sunil Mehra and renowned chef Ritu Dalmia was also referred to chief justice T.S. Thakur .
A set of seven curative petitions challenging the constitutionality of Section 377 of the Indian Penal Code (IPC) are pending before a constitutional bench of the apex court. Justice Thakur will decide whether these two writ petitions filed by members of the LGBT community should be heard alongside the pending curative petitions.