The Rule of Disgust?: Contemporary Transgender Rights Discourse in India

Abstract

The Supreme Court of India’s 2014 decision in National Legal Services Authority v. Union of India was a complex opinion coming at a complicated time for India’s LGBTQ community. Decided soon after the Supreme Court’s controversial 2013 decision to overrule the Delhi High Court’s 2009 decision invalidating Section 377 of the Indian Penal Code — criminalizing ‘unnatural sexual offences’ — National Legal Services Authority spoke to the empowerment of India’s transgender communities, if not India’s sexual minorities. Yet the Supreme Court’s seeming distinction between the rights and welfare of transgendered people in India, and the rights and welfare of sexual minorities, was not the only line-drawing that the Court engaged in with National Legal Services Authority. Indeed, the Court also seemed to draw a sharp distinction between transgendered people and cisgendered women and men, in the process not only cabining transgendered persons as a ‘third gender’ but also, perhaps, carving off trans activism from feminism. After this opinion, in fact, it would not be entirely wrong to characterize the ‘official view’ in India of gender, transgenderism, and sexuality as one positing conceptual and ontological differences between these ideas, rather than coalescences. This chapter aims to explore how something like disgust informed this set of legal line-drawing and, moreover, a kind of disgust which is difficult to sift out from other liberal legal practices. As a result, this is also a kind of disgust which will be hard to eradicate in liberal constitutional democracies devoted to the rule of law.