How Courts in India and the US Approach Transgender Rights

There is a need for judicial activism against outdated notions about the transgender community, and to uphold their rights to their own toilets.

It is interesting to contrast the opinion of the US district court about North Carolina’s ‘bathroom Bill’ – which was recently replaced with a problematic compromise on March 30, 2017 – with the decision of the Indian Supreme Court recognising transgender people as a third gender.

The North Carolina Bathroom Bill (HB 2) required transgender people to use bathrooms in state buildings corresponding to the gender on their birth certificate, not in accordance to their present gender identity. The Bill extended to all public-sector bathrooms such as in government buildings, public universities, public schools and libraries across the state. The Bill was an attempt to negate the anti-discrimination law passed by the North Carolina city of Charlotte that allowed transgender citizens to use the public bathrooms that matched their gender identity.

The US Justice Department sued the state to overturn the law as it discriminated against transgender people. The American Civil Liberties Union and other civil rights groups waged a legal war against North Carolina Republicans, calling the legislation “shame(ful) and devastating”. HB 2 led to severe economic losses in North Carolina, including recriminations, lost business, music boycotts and protest tours.

North Carolina Republican legislators offered justifications for the promulgation of the original Bathroom Bill, namely that a man entering a women’s bathroom would make other women uncomfortable, and that there are male perverts and pedophiles disguised as women who will troll women’s bathrooms and sexually assault women. These arguments cannot be validly considered since there are no statistics to indicate that gender neutral washrooms are a cause of sexual violence against women.

US district judge Thomas D. Schroeder of the US district court for the middle district of North Carolina wrote in an 83-page ruling barring the enforcement of the state’s so-called “bathroom Bill” as it inherently marginalised transgender people.

However, his decision was binding only on the three transgender people who had brought the legal challenge. The rest of the transgender community are still struggling for their basic rights. Nonetheless, the US federal judiciary have stressed the necessity to implement anti-discrimination laws in such a manner that it safeguards the right to privacy and safety of every citizen. This pathbreaking judicial order in North Carolina was a blow to the conservative sponsors of the bathroom Bill, who claimed it was crucial to public order and safety.

The judicial effort in North Carolina to dilute the stigma against transgender people did not, however, influence the rest of the US states. In the 2017 legislative session, 15 US states, including Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Missouri, New York, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington and Wyoming enacted the equivalent of the bathroom Bill.

The HB 2 bill has cost North Carolina more than $3.75 billion dollars. Paypal and Deutsche Bank cancelled expansion plans in North Carolina, leading to a loss of 400 job positions. An internet porn site decided to withdraw their services in North Carolina to indicate their disappointment with the bathroom Bill. Further, North Carolina faced a monetary loss of more than $500 million as the National Collegiate Athletic Association threatened to bar all championship sports events in North Carolina due to the enactment of HB 2. Additionally, CoStar, a real-estate research firm, was entering final negotiations to bring 732 jobs to Charlotte. It backed out due to the introduction of HB 2. This led to an estimated financial loss of $250 million over the next six years.

On top of this, some 90 major corporate CEOs, including those from Apple, Google, Facebook, Marriott International and Charlotte-based Bank of America, collectively addressed a letter to the then governor of North Carolina, Pat McCrory, stating their displeasure in his decision to sign such a discriminatory law.

This economic pressure and societal disapprovals led to the North Carolina legislature’s attempt to repeal HB 2. Governor Roy Cooper, Senate leader Phil Berger and House speaker Tim Moore claimed to have reached a “compromise” repeal of HB 2. However, this emerging compromise, under the disguise of removing the dangerous HB 2 bill, seems to disregard the basic human rights of the LGBTQ community.

The revised replacement of HB 2 imposed a three-year ban on local governments enacting any nondiscrimination ordinances until NC’s next gubernatorial election in 2020. It also prohibited local school boards and government agencies from enacting any provision on multiple occupancy bathrooms or shower stalls. This legislation was passed to suspend local nondiscrimination ordinances that had led to the enactment of HB 2.

Judicial decisions in India

In contrast to the US, Indian judges seem to have swiftly settled on the decision to offer gender-neutral washrooms for transgender people. In its National Legal Services Authority (NALSA) judgment, the Indian Supreme Court formally created the “third gender” category for transgender people, classifying them as a socio-economic backward classes. This decision directed the government to ensure they get job quotas, admission in educational institutions and health benefits. The court acknowledged the discrimination and abuse suffered by transgender people and provided several anti-discriminatory measures in their favour.

Diverging from the progressive judicial activism in the NALSA decision, the Indian judiciary seems to resist those who do not conform to the socially-constructed normative gender roles as male or female. This is evident in the Supreme Court judgment of Suresh Koushal vs Naz Foundation (2013), which re-criminalised homosexuality by upholding the constitutional validity of Indian Penal Code Section 377. This decision overruled the Delhi high court’s ruling that held Section 377 to be unconstitutional to the extent that it criminalises the consensual sexual intercourse between two adults of the same sex in private, which in turn violates their fundamental right to life, liberty and privacy. The Supreme Court further held that the challenged legal provision represented the will of the larger population and regulated the sexual conduct of individuals irrespective of their gender or sexual orientation. It criminalised consensual sexual activities between two adults of the same sex and heterosexual non-vaginal intercourse between consenting adults.

However, the more recent NALSA judgment specifically recognises the rights of the transgender community as a distinct marginalised community. It directs the central and state governments to construct separate washrooms for transgender people. Though the incorporation of this directive in India seems to be slow, third gender toilets have been constructed in Mysore and Bhopal. Bengaluru has introduced “e-toilets” for transgenders: These are single-seat automatic toilets that are made for one person at a time to use, rather than a public lavatory with multiple stalls. Once someone gains access, the doors cannot be forced open.

There seems to be a visible shift in the Indian judicial approach towards the transgender community as seen in the NALSA judgment, in contrast to the Suresh Koushal decision. There is a need for clear judicial activism in the US as well as India against orthodox and outdated notions about the transgender community, and to uphold their rights to their own toilets.

Armin Rosencranz is professor of law at Jindal Global University, Sonipat, where Mitakshara Goyal is a law student.