Accepting the Unacceptable: Recognition and Rights of Transgender People in India
Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, “I am what I am, so take me as I am” and likewise, Arthur Schopenhauer had said, “No one can escape from their individuality”. In this regard, it is profitable to quote a few lines from John Stuart Mill: “But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”
The emphasis on the unique being of an individual is the salt of his/her life. Denial of individualism is inviting death. Irreplaceability of individuality and identity is grant of respect to self. One defines oneself. That is the magnificent form of individuality.
Meaning of LGBT:
L.G.B.T. is the term for Lesbian, Gay, Bisexual, and Transgender. Originally, this society was called as the Gay Community. But it was not adequate to include the ones who are different from normal human beings altogether in the gay community, as it refers basically to the men. So, the abbreviation LGBT was introduced in the middle of 1980s. LGBT people have different sexual orientation than a normal person where sexual orientation basically includes sexual fantasies, sexual attraction, sexual behaviour, social and lifestyle preferences and self-identification.
The term “Gay” is used to refer to the people attracted to people of the same gender. A lesbian is referred to a woman who is sexually attracted to woman only. They are not at all attracted to opposite genders. The other category that is bisexual, is a person who is sexually, romantically and emotionally attracted to both male and female sexes. They are not only fascinated to one gender but find a connection in both the genders. Persons who do not conform to their gender identity as compared to their gender by birth are transgender. Gender behaviour or expressions of transgender people do not match with their biological sex. ‘Transgender’ is a term which is not limited to persons whose genitals are intermixed. It is, in fact, an umbrella term for people whose gender expression, identity and behaviour differs from the standards which are expected from their biological gender at the time of birth.
Difficulties Faced by LGBT in Society:
The LGBT category individuals face innumerable difficulties in the society as the only accepted orientation is the heterosexuality while in the contrary homosexuality is regarded as abnormal. Cruel and inhumane treatment is faced by them almost every day. They are more probable to experience intolerance, discrimination, harassment, and threat of violence than the heterosexuals. They face inequality and violence at every step. They are tortured. People make them realize that they are different from others. It’s just because of whom they are and how they look. In many countries, the rights enjoyed by the couples of opposite sexes are not enjoyed by the same-sex couples. They are prohibited from those rights. As a result, they face discrimination at every step and cannot enjoy social protection schemes like health care and pensions. The LGBT people even hide their gender from the neighbour individuals and do not disclose it to the others due to the fear of losing their job. The young LGBT people face ragging and harassment in schools, colleges, and university which in many cases lead to depression, school drop-out and homelessness. They slowly develop low self-esteem and low self-confidence and become isolated from friends and family. The parents of heterosexual children don’t allow them to mix with the LGBT children acting completely out of care and concern without realizing that this leads to isolation for the other one. The gap in the communication between LGBT’s and their parents often leads to several conflicts in the family. Most of the LGBT adolescences or teens are thrown out of their houses and often forced to live the life on streets as a beggar. Most of the teens in this group have a very high risk of health and mental complications when they become adults because they are rejected by their parents and guardians. A survey discovered that about 40 percent of the homeless people constituted of LGBT. ‘Studies done by the Gay, Lesbian and Straight Education Network [GLSEN] report that nearby 9 out of 10 LGBT students face harassment. The 2007 National School Climate Survey found that LGBT students are not only harassed but 31.7% of LGBT students missed a class and 32.7% missed a day of school because of feeling unsafe. Moreover, LGBT people face poverty and racism daily. They suffer from social and economic inequalities due to continuous discrimination in the workplace. These people when thrown out of their house mostly get addicted to drugs, alcohol, and tobacco to get themselves discharged of stress and rejection and discrimination. LGBT adults face numerous problems. They cannot avail the opportunities which are received by other senior citizens. Most of them detach or isolate themselves. Very less is known about them because of widespread failure of researchers to include questions about sexual orientation and gender identity in their studies. They also become victims of hate crimes. In some countries, homosexuality is a crime. It is prohibited or illegal and is often met by imprisonment and fines.
This has resulted in discrimination, disrespect, downtrodden, Child nabbing, Prostitution, forced to leave parental homes, Unwanted attention, Rejection of entry, Rape, Verbal and Physical abuse, Lack of educational facilities, STDs and HIV AIDS, Human trafficking, Social exclusion.
Hardly ever, our society realizes or cares to realize the trauma, agony and pain which the Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often mocks at and abuses the Transgender community and treat them as outcasts, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace the diversity in humans and accepting different gender identities and expressions, a mindset which we have to change.
Situation in India
Every person of the LGBT community has a legal right to decide their sex orientation and to adopt and determine their identity. Since the Transgenders are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. Transgenders are deprived of social and cultural participation and hence constrained access to education, health care and public places which deprives them of their Constitutional right of equality before law and equal protection of laws. Additionally, the transgender community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable. The State cannot discriminate them on the basis of gender, violating their Article 14 to 16 and 21 of the Constitution of India. The right to choose one’s gender identity is integral to the right to lead a life with dignity, which is indisputably guaranteed by Article 21 of the Constitution of India.
Self-expression is one of the most important aspects of a human being. But in India self-expression of the LGBTQ community was denied under Section 377, Indian Penal Code, 1860. This section prohibited the same sex carnal relations of people with sentence of life or term of either description up to extend to 10 years with fine. Meaning that LGBTQ persons will have difficult lives in India because they would be committing a heinous crime according to Section 377, Indian Penal Code.
The natural identity of an individual should be treated to be unquestionably essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person, the inherent nature has to be respected and not despised or looked down upon. Non-acceptance of it by any societal norm or notion and punishment by law on some outdated idea and idealism affects the core of the identity of an individual. Destruction of individual identity would be equivalent to crushing of fundamental dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions.
Love is affection. Marriage is considered as a legal union of two individuals. People who do not believe in religion choose to get married in a registry office and not in church or a temple. Marriage is considered the strongest commitment that one individual can make to the other. LGBT are also human beings and have the similar needs and desires as heterosexual human beings. Getting into marital relationship is considered the ultimate way of showing one’s love and commitment to his partner, so why should gay people be deprived of this right. Same-sex marriages should be legalized. If people find same sex marriage contrary to their religious beliefs than it is up to them to refrain. Those individuals who do not disclose their religious opinions are free to make their own choice on this matter of concern.
Most of the people’s argument that same sex marriages should not be made legal "because they do not produce kids" is ridiculous. If two people are in love with each other and want to marry each other, unite their destinies and live collectively, then it is a beautiful thing which should be celebrated. Whether it is termed as ‘marriage’ or ‘life pact’ does not matter. Union of individuals belonging to same sex does not harm anyone; one's support or opposition to this is a matter of personal belief and morality, to which no one has any business to interfere.
There are five important judgements by the honourable judicial system of India which took the progressive steps in decriminalizing the Section 377 of Indian Penal Code and providing a gender identity to the third gender i.e. LGBTQ.
NAZ foundation case in 2009
Naz Foundation, an NGO filed a lawsuit in Delhi High Court seeking legalisation of homosexuality as criminalization of homosexuality led to hindrances in its initiatives. The Delhi High Court said that section 377 creates unreasoned classification and targets homosexuals. Public disgust is not an appropriate ground for criminalizing homosexuality. The word ‘sex’ under article 15 includes ‘sexual orientation’ as well and since article 15 prevents discrimination based on sex, section 377 is violative of article 15. Right to life under article 21 includes ‘right to health’ and section 377 is a hindrance to it as the homosexuals often hide their identity due to criminalisation of homosexuality. So, adequate treatment is not provided. Section 377 was declared unconstitutional insofar as it criminalises consensual sexual acts of adults in private.
Suresh Kumar Koushal v. NAZ Foundation in 2013
Suresh Kaushal (petitioner) challenged the decision of the Delhi High court in the Naz Foundation case wherein the Delhi High Court legalized homosexuality. The petitioner contended that the documentary evidence of the Naz foundation was non-reliable. The court can’t take over the work of the legislature. Section 377 is gender-neutral and there is no violation of Article 14. Right to privacy under article 21 doesn’t include elements of section 377. Finally, the petitioner said that if homosexuality is legalised, the institution of marriage and social structure would break down. The respondent re-stated the arguments concerning the violation of the fundamental rights of homosexuals under articles 14, 15, and 21 due to section 377 of I.P.C. The respondent also contended the need of flexible laws as per the changing needs of society. The apex court said that homosexuals are in minority in the country and laws need not be changed for their interests. Court said that section 377 was a pre-constitutional law and if it had been violative of any provision under Part III, it would have been struck down long ago. So, section 377 was held to be constitutionally valid.
NALSA v. UOI & Others in 2014
The next major step taken is by the National Legal Services Authority of India in the case of National Legal Services Authority v. Union of India & Others. The main outcome of this case is that the court recognised that all existing laws in our country are purely on basis of the two major binary genders male and female and the rights of the individuals belonging to the transgender community are not protected by any of the provisions and laws. Thus, the basis of discrimination with the transgender community has been established by our own law. In order to fulfil this loophole of our constitution the supreme court in its judgement recognised several laws of the transgender community which are as follows:
Art. 14, Equality before Law, here SC verdict states that the phrase “any person” in the article 14 includes not just only male and female but also transgender. Thus, transgender community should be seen as an ordinary people in the eyes of law. Art. 15 & 16, No discrimination on the basis of gender. Supreme Court laid down that if there is any kind of discrimination on the grounds of sexual orientation then it is the violative of the art. 15 and 16 and thus the individual whose right is infringed can directly approach to the supreme court because of the infringement of the fundamental right under art. 32 that is right to constitutional remedies. Article 19, Protection of rights regarding freedom of speech, etc. Supreme Court in its verdict laid down that privacy, gender identity, and integrity of the transgender community are also protected under the article 19(A) of the constitution of India. Art. 21, Right to live with dignity also includes the right to choose gender identity. This case lead to the legal recognition of self-identity and gender identity. That is of three major types: Male, Female and the Third gender.
Justice K.S. Puttaswamy v. Union of India 2017
The judgement laid down in this case affirmed that the right to privacy is one among the fundamental rights granted to the individuals by Constitution of India. This case was decided by a 9-judge constitutional bench headed by Chief Justice Khehar. Justice Chandrachud in his verdict laid down that the court realised the duty of the Supreme Court to rectify the mistake done by it in the Suresh Kumar Koushal case. He laid down in its judgement that sexual orientation is the attribute of the privacy which is mainly protected under Art. 14, 15, 21.
Navtej Singh Johar v. Union of India 2018
At last the completion of the landmark of the decriminalisation of section 377 was declared in the case of Navtej Singh Johar v. Union of India. The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition which was filed by dancer Navtej Singh Johar, challenged Section 377 of the Indian Penal Code on the ground that it violated the fundamental rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minute section of the population.
Transgender people are mistreated and discriminated in the society even after the decriminalization of Section 377 of Indian Penal Code, 1860. As we can see in the following case studies how the lives of the transgender people were before and after the decriminalization of Section 377. The names of the people may be slightly changed but the stories are true to the core. All transgender people having sexual relations or having unnatural sex were considered to be criminals in the territory of India according to Section 377 of Indian Penal Code, 1860. Decriminalization of the same has only made them free in the sense that they can now have relations with the same genders and has recognized them to be a third gender in the eyes of law. All facts aside, the society still sees transgender people as someone who does not belong to the society. Transgender Persons (Protection of Rights) Act, 2019 was passed by the Lok Sabha in India. The Act tends to protect the rights of transgender persons as it prohibits them from begging and has criminalized begging. Some transgender people depend upon begging as their livelihood while other do it as it is customary. Here, all transgender people will have to get a transgender person certificate issued which will be a declaration for their identity. This also states that the punishments given in Indian Penal Code shall be decreased for transgender people to uplift the community. A family-life is also promised to all transgender children, as a transgender child can only be separated from its family by a Court order, otherwise the families are prohibited to do so. Through all these provisions, this Act prohibits the discrimination faced by transgender in the society. The State is empowered under this Bill to create laws for the protection of transgender people and transgender children. According to most transgender people who are protesting against this Act say this Act is discriminatory and giving labels will make it worse. They say that this Bill should provide them with reservations to make them feel equal to other genders, not to give them special recognition. Transgender people already get enough special recognition, positive or negative, in the society that they are not looking for ways for the society to look at them differently. There are no provisions for transgender people to start families and have children. All transgender people ask for is to be treated as humans, not like some extra-terrestrial entity Transgender people want education, safe environment, no stereotypical attitude towards them, no discrimination and happiness.
Kamla Jaan became the first transgender to be elected as the mayor of an Indian city. Shabnam Mausi was also elected as a legislator from Gorakhpur around the same time.
Sathyasri Sharmila is India’s first advocate who pursued her law degree to fight against the injustice faced by transgender people in India and got enrolled in the Bar Council of Tamil Nadu.
Joyita Mondal is the first transgender Judge in India at the age of 29 years and still plans to fight the injustice against transgender people and to make organizations for the development of her community.
Prithika Yashini is the first transgender police officer in India and all due to her strong will and dedication, she could achieve this.
Manabi Bandhopadhyay is the first transgender to become a college principal and has obtained Doctor of Philosophy in India. She’s the principal of Krishnagar Women’s College. She has been a professor for a very long time.
Mumtaz was the first transgender to contest elections in India. She contested in Punjab from Bahujan Samaj Party.
Shabi joined the Indian Navy in 2011 but underwent sex reassignment surgery in 2016 and became the first transgender soldier in India.
Jiya Das is also India’s first transgender medical assistant.
They are transgender people who worked very hard, against all odds to reach where they are but all transgender people do not have this privilege. Transgender people face problems which shouldn’t be faced by any human being. Transgender people are also people who eat, walk and talk like the other humans. Literacy should eradicate and abolish such malpractices but even educated people participate in discrimination and make the lives of transgender people tough in India.
Alina Bradford - Live Science Contributor, What Does 'Transgender' Mean?(12:05:2019) https://www.livescience.com/54949- transgender- definition.html.
Transgender Persons (Protection of Rights) Act, 2019
Understanding the Transgender Community, (Oct 10 2020 at 10:30PM), https://www.hrc.org/resources/understanding-thetransgender-community.
Kamla Jaan to Kankar Munjare: Oddballs whose political legacy matters in Madhya Pradesh,(Oct 11 2020, 09:00PM) https://www.dailyo.in/politics/kamla-jaan-to-kankar munjare-eunuch-politicians-you-need-to-know-to-understand-what-s-at-stake-inmadhya-pradesh-assembly-elections-bjp-congress/story/1/27674.html.
Sathyasri Sharmila becomes India's first transgender lawyer, registers with Madras Bar Council
A Selvaraj, Transsexual woman sub-inspector Prithika Yashini complains o .. (Oct 11,2020,09:30PM) http://timesofindia.indiatimes.com/articleshow/64928151.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cp pst Ashis Poddar, Dr Manabi Bandyopadhyay Quit (Oct 11,2020,09:45PM) https://timesofindia.indiatimes.com/city/kolkata/transgender-college-principal-quits-says-facultyuncooperative/articleshow/56247180.cms.
Ramya Patelkhana, Indian Navy sailor Shabi facing termination for undergoing sex change, (Oct 12,2020, 11:00AM) https://www.newsbytesapp.com/timeline/india/10334/56584/navy-to-sack-india-s-first-transgender-soldier.
Suresh Kumar Koushal and another v NAZ Foundation and Others (2014) 1 SCC 1
National Legal Services Authority v. Union of India &Ors. AIR 2014 SC 1863.
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.
Navtej Singh Johar&Ors. v. Union of India (2018) 1 SCC 791
NAZ Foundation v. Government of NCT of Delhi &Ors. (2009) 111 DRJ 1 (DB)
Arun Kumar v. The Inspector General of Registration W.P. (MD) NO. 4125 OF 2019 AND W.M.P. (MD) NO. 3220 OF 2019.
Author: Moxita Verma
College: University Five Year Law College, University of Rajasthan, Jaipur, Rajasthan.
Course: BA.LL.B Hons.
Semester: IV Semester