Fear and prejudice that have endured for generations in the collective social mind are difficult to dispel. But the fight for recognition of trans people in India, too, has endured for a long time, gaining momentum in recent years. It is a victory for them now that the Supreme Court has accorded legal recognition to “transgenders”, presumably including under this umbrella term the numerous identities that cannot, physically or psychologically, fit the gender mould that society offers them. The judgment strikes at the base of one of the oldest forms of discrimination. That is always welcome. But over-compensation is a dubious good. That trans people should be given a socio-legal ‘third’ space, together with certain facilities in public architecture, such as separate bathrooms, for example, is a step forward, but the accompanying instruction, that they would be entitled to reservations in jobs and education, raises thorny questions.
Reservation is also a form of discrimination, but of the positive kind, ideally employed for a limited period of time to level the field for those groups who have been traditionally denied access to certain rights. The use of quotas in India, however, has been far from ideal. Reservations have turned into a weapon in the hands of contesting politicians, who have no scruples in fragmenting society in order to enlarge their vote banks. Besides, quotas create dependence, expectation and rivalries among various groups for the biggest piece of the pie. Granting recognition to trans people is doing away with discrimination; giving them reservation would be starting a new form of it. Accommodating sexual difference in the vision of an inclusive society would mean that everyone — male, female and trans — is part of the mainstream: that is the source of the dignity and self-esteem of each member of that society. Anything else would undermine the pride of newfound acknowledgment. Besides, since the sense of identity alone would suffice for a person’s claim on the ‘third’ space, such reservations would be contentious from the very start. Instead of focusing on reservations, perhaps the notion and reality of “transgender” should be thought through in all its details. For example, can identity be divorced from practice? Given the present status of Section 377, this question has to be confronted to give the court’s recognition its full value.