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LEGAL POSITION OF TRANSGENDER IN INDIA


Transgender persons are those people whose identities are not similar to the stereotypical gender norms, which recognize genders only as either male or female. Then Indian society has failed to accept these persons’ gender identity because of which they have suffered from discrimination, social oppression and violence, both physical as well as mental . There are certain groups of transgender people available who are recognized as Hijras, jogappas, Sakhi, Aradhis etc. and there are people who do not belong to any of the transgender groups but are identified as transgender person separately. The fundamental rights are guaranteed under the Indian constitution to the transgender people as the constitution guarantees it to each and every Citizen of India.

Transgender person

Transgender persons are regarded as people whose gender identity is not similar to the gender they were considered to be at the time of birth. Transgender person can be defined as “a person whose gender does not matches with the gender that was assigned to them at their birth but they are the persons with intersex variation and gender queer”. They are the persons who are born with men or women anatomies but they feel different from their body category as their gender behavior differs from their birth recognised sex. Transgender people try to express their gender identity in many ways as like through their behavior, clothes or mannerism to represent them as the gender they feel is true for them and thus reject the traditional meaning of gender that is just male and female so they recognizes themselves as transgender or gender queer.

Transgender rights in India

Transgender people are those individuals who are different from the usual stereotypes related to existence of only two genders that is men and women in society; they possess different looks, personal features, and behavior. Being different from the stereotype of gender, transgender people have to suffer social oppression as society does not accept their true gender identity. The main issues from which they go through are lack of education, unemployment, homelessness, poor health care facilities, depression, alcohol abuse and discrimination throughout their life journey. To protect them and to issues, The Constitution of Indian has given them their own rights and The Supreme Court has provided them the right to be recognized as “Third Gender” and also provided them with some welfare measures.

Recognition as Third Gender

Transgender are the person who have gone through discrimination for years as earlier their gender identity was not identified either in law or by the society and they were pressurized to write male or female as their gender. The Supreme Court of India recognized them as the third gender to eliminate the discrimination suffered by transgender and to protect their rights.

In the landmark Judgment of National Legal Service Authority v Union of India transgender gained legal recognition as third gender in the eyes of law as the Hon’ble apex Court ordered that the fundamental rights should be provided to the third gender in the same manner as they were provided to the other two genders. The court provides the transgender with equal rights and protection under the Article 14, 15, 16 and 21. Thus the transgender are entitled to have legal protection of law in all the aspects of state activity including the field of education and employment.

The law is supreme in India and everyone is equal in the eyes of law. Even then, the transgender group is fighting a constant battle against oppression, abuse and discrimination, whether it’s coming from their own family, relatives and friends or society as whole. The life of transgender people is very difficult as there is no acceptance and ridiculed by the society.

However, the apex court in its landmark judgment National Legal Services Authority v. Union of India & Ors. recognized them as third gender along with other two known genders male and female.

The right to equality and equal protection of law is given under Article 14 and 21 of the Constitution. The right to chose one’s own gender identity is a significant part to provide a life with dignity which again comes under Article 21. The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held that “no restriction can be placed on one’s personal appearance or choice of dressing subject to the restrictions contained in article 19(2) of the Constitution”.

The Court recognized the right that as to how a person chooses to behave in his personal capacity is person’s individual choice. The Court further noted that a person will not feel his dignity if he is pressurized to mature in a gender to which he does not belong to or he cannot relate to which will undermine his development.

The Supreme Court has issued certain guidelines for the protection of the rights of the transgender community by including a third category in various documents like passport, driving license and ration card, and also for admissions in educational institutions, hospitals, amongst others.

Human rights are basic rights and it includes the right to life, liberty, equality, dignity and freedom of thought, belief and expression.

Rights under Indian Constitution

The preamble to the constitution necessitates every citizen of India Justice: – social, economic, political equality of status.

The Indian policy that earlier included only two gender i.e. only male and female and it has led to deprivation of the third gender from their various rights as being an Indian citizens, which are right to vote, the right to own property, the right to marriage, the right to have a formal identity through documents like a passport etc. and more significantly from the right to education, employment, health and such important rights. The rights which they were not given are their fundamental rights provided under Article 14, 15, 16 and 21. The rights of transgender were for the first time considered in the 2014 NALSA Judgment in which the Supreme Court laid emphasis on protecting the basic rights of the transgender person given under the Indian Constitution laid down under Article 14, 15,16 and 21.

In the case Navtej Singh Johar v. the Union of India, The Hon’ble Supreme court in this case held that Section 377 of IPC should be decriminalized and agreed that homosexuality is not an aberration but a variation of sexuality. The Court further held that discrimination on the basis of sexual orientation of a person is violation of fundamental right to equality and right to privacy given under constitution as sexual orientation forms an inherent part of private identity and denying these rights is violative of right to life.

Prohibition against discrimination

Transgender people have suffered from discrimination for years in the matters of health, education and employment. To protect the rights of transgender community and to protect them from the various type of discrimination, The Transgender Person (Protection of Rights) Act, 2019 consists of the provision for prohibition against discriminations which most significantly includes very important sectors like employment, education and health care, housing sectors.


Education

The education of transgender community is equally important for their development like other male or female gender but the social stereotype that transgender person faces prevents them from focusing towards their education and they eventually develop a feeling of being ignored and insulted and the transgender persons are usually denied admission in educational institutions. To protect their educational right, The Transgender Person (Protection of Rights) Act, 2019 states that the educational institution that are funded by government shall give education, recreational facilities and sports opportunities to transgender person without any discrimination.


Employment

The transgender persons have suffered a lot of workplace discrimination and discrimination in the sector of employment. They suffer discrimination usually in the form of privacy infringement, refusal to appointed and harassment which results in unemployment and poverty. To stop the discrimination faced by them the transgender person protection act provides that no government or even the private corporation can discriminate against them.

In the case of Nangai v the Superintendent of Police, the petitioner had applied for the post of a woman constable in police. Petitioner’s application succeeded and she got an offer of appointment from the Superintendent of Police at Karur district of Tamil Nadu. During the time of her training she underwent a medical examination for appointment purpose. The examination identified her as “transgender” based on the chromosomal pattern and genitalia. The results of the medical examination were opposite to her birth certificate, medical certificates, and educational certificates. Later on The Superintendent terminated her from the post of constable. The Hon’ble High Court said that the petitioner has freedom to choose a different gender choice as a third gender in future and the said termination order was set aside by the court to safeguard her right as a transgender person.

Health care

The health care services for the transgender people do not only mean the medical procedure involved in gender changing but health here refers to a overall state of completely physical, mental and social wellbeing of them. Health care also includes a range of primary and other health care facilities. As the transgender person have faced substantial health issues and prevention from availing appropriate health care facilities for years and it had led them to suffer depression, suicide attempts, violence and harassment and even the HIVs. To provide them safeguard and support them to have a happy life, The Transgender Person (Protection of Rights) Act, 2019 says that it is government’s duty to take proper measures to provide proper health care facilities to transgender community and Transgender persons should be given a comprehensive medical insurance.


Welfare measures

Transgender persons have suffered discrimination and neglection from the society for a long period of time and so to bring them back to the normal line of the society, several welfare steps have been taken for the them as in Andhra Pradesh, the State government had issued direction to the Minority Welfare Department to recognize “Hijras” as a minority group and to make some welfare measures for Transgender people. The transgender person Protection Act, 2019 has stated that the relevant government should take proper steps to ensure complete participation of transgender community in society and to make certain welfare schemes and measures to safeguard the right of the transgender person.

Violation of Human Rights

The transgender people are deprived of social and cultural participation and hence they have been given restricted access to education, health care and public facilities which further deprives them of their fundamental rights guaranteed by Constitution, the right of equality before law and equal protection of law. It has also seen that they also faces discrimination as regards to the rights like right to contest election, right to vote (Article 326), right to employment, right to get licenses, etc. and in consequences, they are treated as untouchable.

The transgender community suffers stereotype and discrimination in the society. They have fewer opportunities as against to other genders. There is hardly any educated transgender person as they are not accepted by the so called society and therefore do not receive an opportunity to get proper schooling and further high education. Even then if there are some who are enrolled in an educational corporation, they have to face harassment and are bullied daily and are asked & threatened to leave the school. It is because of these reasons that they are forced to take up begging and sex work.

It is very seldom does a skilled individual from this transgender community get into formal employment sector due to the policy prevalent of hiring only from either the male or female gender category.

They are forced to do the sex work which puts them at the highest risk of contracting HIV disease as they are forced to have unprotected sexual. They are recognised as ‘vectors’ of HIV in the society. Other sexually transmitted infections such as rectal gonorrhea, syphilis, rectal Chlamydia, etc., add to the risk of HIV in them.

Transgender persons are also humans and have feelings. There is no benefit of treating them as someone untouchable. Our constitution also provides them all rights equally. The constitution of India recognizes everyone as citizen of India and not as some gender superior while others as inferior. The situation is although improving. All the organs of Government are working towards making transgender community equal to other two recognised genders. For example the Immoral Traffic Prevention Act of 1956 which was amended in the year 1986 has proved to be gender neutral legislation in country. The jurisdiction of the Act now covers both male and female sex workers along with those people whose gender identity was indeterminate. With the new amendment both the male and hijra sex workers recognised as criminal subjects as this provides the police the legal base for arrest and intimidation of the transgender sex workers.

Salouni Choudhary

UILS, Panjab University Chandigarh

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