NALSA v. UoI: The Supreme Court on transsexuals, and the future of Koushal v. Naz

How the NALSA vs Union of India judgement affects the previous Koushal vs Naz judgement.

Indian Constitutional Law and Philosophy

Today, in NALSA v. UoIthe Supreme Court issued a landmark ruling recognising transsexuals as a third gender, and upholding their rights to equality (Article 14), non-discrimination (Article 15), expression (Article 19(1)(a) and autonomy (Article 21). The judgment involves a wide-ranging discussion of international law and domestic legislation in other countries, engages reams of evidence of actual discrimination against transsexuals in Indian society, and discusses the idea of human rights. It also, as I shall argue, entirely destroys the foundation of Koushal v. Naz, last December’s decision on LGBT rights.

In Paragraph 11 of the case, Justice Radhakrishnan defines “transgender” as an “umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex.” After a brief historical excursion into the history of the transgender community in India, he observes, in Paragraph 17, that S. 377 was brought in at at time…

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Is Sexual Preference Completely Natural?

“Hey, I just met you and this is crazy, but I am a natural top, so worship me may be?” Wait. What?

(This is in response to a friend’s statement that one can have a ‘natural’ preference for topping and that there’s not enough of patriarchy in homosexual relationships. Thoughts and comments are welcome.)

“What makes power hold good, what makes it accepted, is simply the fact that it doesn’t only weigh on us as a force that says no, but that it traverses and produces things, it induces pleasure, forms knowledge, produces discourse. It needs to be considered as a productive network which runs through the whole social body, much more than as a negative instance whose function is repression.”

– Michel Foucault; Truth and Power

Personal is political. Power flows through everything – the things you do, the people you like, the desires which define you. You are as much of a construct as a sentient, autonomous being.

Our preferences are not fashioned and altered in a vacuum chamber designed by ‘nature’ – our lived life and the social forces around us surround and shape most, if not all, aspects of the process. The self, the individual with which we identify ourselves, is conclusively a cross between the forces of ‘nature’ and society. Trying to separate their influences to trace the lineage of a tendency would then be a futile and misguided exercise. To put it in other words, a preference or a trait which can be used to define one’s self should not, cannot be considered exclusively ‘natural’.  Continue reading

What is “Sex”?

Let’s Learn

Get your mind out of the gutter! I am not talking about the physical act of sex. This post defines, in my words, what is biological sex.

“Sex” refers to the biological and physiological characteristics that define men and women.

– WHO “What do we mean by Gender & Sex

I feel that this definition is a bit too simple. Everyone knows that we can’t generalize stuff like that 😛 😀

So, here’s how I define biological sex –

Sex” refers to the biological and physiological characteristics such as anatomy, chromosomes, and hormones that defines a person as a male, an intersex person or a female.

– Color Me Gay!

If you compare the two definitions, you’ll notice the differences and similarities. I have kept the original “biological and physiological characteristics” because that is how sex determination occurs. I have also qualified those characteristics in a simple way – anatomy, chromosomes, and hormones. Some biologists further qualify those into primary and secondary sexual characteristics; but I won’t do so for the sake of simplicity.

Sex Spectrum

The second difference is that of the binary. WHO’s definition assumes a sexual binary; ie, there are only two sexes – male and female. It excludes intersex people and everyone else whose “biological and physiological” characteristics do not fall squarely into male/female. By including intersex people in my definition, I acknowledge that there are more than two sexes. I would also point out that sex, like any other identity, is a spectrum.

So, a penis (anatomy) isn’t the only thing that defines a person as a male; although, it is a pretty big indicator (pun intended). Similarly, facial hair, deep voice, etc (hormones)…also known as secondary sexual characteristics…aren’t a 100% way of pointing out a biological male. And finally, an XY 23rd chromosome set is also not a fool-proof way; although, like the penis, it is a good indicator. What I mean to say is, all three taken together are the only way to determine the biological sex of a person.

In most cases, doctors just look at one of the three characteristics and declare, “Congrats! It’s a xyz!” It just goes to show how the sexual binary and misinformation about sexes is deeply institutionalized. In cases of ambiguous genitalia, doctors even resort to sex assignment or genital mutilation. This may cause problems for the child later if their assigned sex does not align with their gender identity.

Now, of course, there is a difference between sex and gender. I will elaborate more on that in a separate post. Enough food for thought in this one post, already.