For a very long time, only two sexes were known to the world-male and female. Heterosexual relation was the rule. Homosexual relations were looked down upon and were considered illegal. Transgender people have a gender identity that differs from the one assigned at birth. The concept of gender identity differs from that of sexual orientation. Sexual orientation refers to a person’s romantic/sexual or emotional attraction to another person whereas gender identity refers to a person’s own identity as male or female. There is now a greater understanding and inclusivity of a third gender across the world- the transgender. It is no longer illegal in some countries whereas some countries are yet to open their minds and be progressive. The current issue is Zimbabwe HC’s judgement for transgenders.
CURRENT ISSUE (ZIMBABWE HC’s JUDGEMENT FOR TRANSGENDERS)
ZIMBABWE HC’s JUDGEMENT FOR TRANSGENDERS is a landmark judgement denouncing discrimination against them.
Zimbabwe is a country located in Southern Africa and has a population of roughly 14 million.
The name of the Zimbabwean case is RICKYNATHANSON v. FARAIMTELISO and Ors. The case raised issues regarding minority rights. The case was filed by a transgender woman over the abuse that she had to endure due to using a women’s restroom. It is pathetic to know that such incidents still occur in our world. Police in Zimbabwe arrested Ricky Nathanson after she used the women’s restroom. Nathanson is the founder of Trans Research, Education, Advocacy and Training (TREAT) which is a trans advocacy group in Zimbabwe. She had to remain in police custody for 3 days. She was treated inhumanely and was humiliated and tortured in the police custody. She was asked to remove her clothes to verify her gender in front of five male police officers. Ultimately Nathanson won her case and her victory has given hopes of a new country to people like Nathanson.
The Zimbabwean judgment was highly inspired by the judgment passed by the Supreme Court of India. The name of the Indian case was NAVTEJ SINGH JOHAR v. UNION OF INDIA. The judgment of the Supreme Court of India was a landmark judgment and it decriminalized all consensual sex among adults in private, including homosexual sex. According to Section 377 of the Indian Penal Code:
Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
The issue, in this case, originated in the case of Naz Foundation v. Govt. of N.C.T. of Delhi, where it was held that Section 377 is unconstitutional. In 2014, in another case named Suresh Kumar Koushal v. Naz Foundation overturned the decision of the Delhi High Court and the constitutionality of Section 377 was upheld. Thereafter, this petition was filed.
The petitioner, in this case, was Navtej Singh Johar, who was a dancer and belonged to the LGBTQ community. He challenged the constitutional validity of Section 377 and stated that right to sexual autonomy, right to choose a sexual partner etc. are part and parcel of Article 21 of the Constitution of India. He also argued that Section 377 violates Article 14 of the Constitution.
On 6th September 2018, the Supreme Court decriminalized homosexual sex and held that Section 377 is unconstitutional. The decision was hailed as a landmark judgment for LGBTQ rights in India. This decision has helped many other nations too, to change their laws and to promote inclusivity.
QUESTION OF LAW
The question of law that prevails is the right to equality and the right to privacy. The Supreme Court judges will be delivering judgments held that homosexuality is not an aberration but a variation of sexuality. History owes an apology to the members of the LGBTQ community for delaying such a judgment. The law must take positive steps to protect the rights of the LGBTQ community and make sure that they are included.
Even though progressive laws are being formed, the most important thing that needs to be changed is the stigma centring the transgender. Only when we as a society can inculcate progressive mentality, only then can the judgment be fully effective. Laws cannot fully change people until we change.