A victory for transgender rights in India’s Supreme Court on Tuesday [April 15] may have rescued the country’s LGBTI movement from the brink of legal disaster.
For the past 12 years, the Indian LGBTI rights movement had pinned its hope to a challenge to the country’s colonial-era sodomy law, known as Section 377. In December, a two-judge panel of the Supreme Court dealt the effort a crushing defeat, overturning a ruling by the Delhi High Court that had found broad protections for LGBTI rights under the country’s constitution.
Tuesday’s decision, though, could flip the dynamic for lawyers trying to get the Supreme Court to reconsider the ruling in a petition now under consideration. Before Tuesday’s ruling, the Supreme Court basically would have to say that two of its judges committed a gross miscarriage of justice in order to overturn the sodomy law ruling, with very little foundation in Supreme Court jurisprudence. But with the new ruling on the table — which directly contradicted the sodomy ruling on several key points— it is instead being asked to reconcile two wildly divergent opinions of its own justices.
This doesn’t make the petition lawyers have filed in the sodomy law case a slam dunk for LGBTI advocates, but it is a lot easier to make their argument with two judges of the court on their side. And it arrives just in time to factor into the decision on whether to consider the petition at all.
After the court upheld the sodomy law in December, the Indian legal system left lawyers two last-ditch ways to get the ruling overturned. The first, what’s known as a review petition, was summarily dismissed by judges on January 28. Advocates are now awaiting to hear whether a new five-judge panel will consider the lawyers’ curative petition, a filing used to challenge violations of fundamental rights. The court is expected to announce this week or next whether it will consider arguments for a curative petition.
For more information, read the full article in BuzzFeed: “How A Trans Rights Ruling Could Save Gay Rights In India.”
- Two slim chances to overturn India’s anti-gay law (76crimes.com)
- New court challenge to India’s anti-gay law (76crimes.com)
- India Supreme Court Will Reconsider Anti-Gay Ruling (bilerico.com)
- India Supremes Recognize Trans People as Third Gender (bilerico.com)
- India’s Supreme Court Recognizes Trans People as Third Gender (towleroad.com)