TRANSGENDER RIGHTS IN INDIA
The Oxford dictionary defines,the word "Transgender "as describing or relating to people whose sense of gender identity does not match their biological sex or does not easily fit in with the usual division between male and female.Thus, Trangender persons are individuals whose personalities are unique in relation to the cliché sexual orientation standards, which recognize sexes just as male or female. Society for a long time has neglected to acknowledge their gender identity because of which they have experienced segregation, social persecution and actual savagery. There are different communities of transgender individuals who are distinguished as Hijras, jogappas, Sakhi, Aravanis and so forth and there are individuals who don't have a place with any of the gatherings however are alluded to as transgender individual separately. The article manages the Transgender rights in India as they reserve the privilege to be perceived as a third sexual orientation and are qualified for lawful protection under the law.
Often attacked and blamed for the different sexual orientation ,which they identified for themselves, the transgender individuals have been subjected to social abuse and oppression.As society does not acknowledges their gender identity,they suffers the ill effects and actual savagery which is exacted upon them. The principle issues from which they continuously suffer are absence of proper education ,joblessness, absence of medical services , discouragement and humiliation,mental ,physical and other abuses,homelessness misuse and segregation from the society.
India is a country where the rule of law is supreme and the constitution of India guarantees all rights equally to the citizens of India. The preamble of Indian constitution itself guarantees to all citizens, Justice,Liberty and Equality . Justice i.e social, economical and political. Liberty of thought ,expression,belief,faith and worship, Equality of status and of opportunity.Yet the transgender persons of our country are in a continuous battle to get their rights addressed.They are in a day today fight against all the abuses, oppression , misuse and discrimination from the society. Article 14 of Indian constitution guarantees equality before law and equal protection of law and the constitution under Article 21 enshrines the right to live with dignity. Equality under Article14 , provides for the full and equal enjoyment of all the rights and equal protection enshrines the positive obligations on the part of authorities to provide lawful protection.Thus,any discrimination towards transgender community on the ground of gender identity amounts to the violation of fundamental rights. Article 15 &16 prohibits discrimination towards any citizen on the ground of religion,race,caste ,sex ,descent, place of birth or any of them.
Article 15 clearly prohibits discrimination against any citizen on any such grounds with regard to
Access to shops, public resturants hotels and places of public entertainment Or
use of wells,tanks,bathing ghats,roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of public .
It also provides for taking affirmative action for the socially and economically backward classes of people. Article 16 expressly prohibits the discrimination on such grounds for employment or appointment to any office under the state.Thus, denial of these rights and discrimination based on sexual orientation they posess amounts to the clear violation of these fundamental rights envisaged in the constitution.The transgender community is very well deserved to be treated as socially and economically backward class and for all the advancements of it and are entitled to reservation in employments , education and other services. Article 19 (1) ensures all citizen, the right to freedom of speech and expression,which includes ,the right of self Identified gender and expressing the way how someone feel about themselves,either by words , behavior ,dressing or by any such means.
Article 21 known to be the soal of the constitution ,provides with the right to life and personal liberty,which ensures to all citizens the right to live with dignity.Personal autonomy ,right to privacy, and many sch rights are being part of right to life,which cannot be taken away even by the state.Self Identified gender and it’s expression are integral part of right to life under Article 21.Thus all the citizens including the transgender community are entitled to these fundamental rights guaranteed by part three of the constitution and shall not be deprived of the same.Thus only by addressing and acknowledging their rights ,they can be remedied for all the oppression and discrimination historically inflicted upon them.
The first and foremost specific interference of the court into the problems of Transgender community can be traced back to the judgement in NALSA vs Union of India .Recognizing that Indian laws are narrow in nature, perceiving just male and female sexes, the Honorable Supreme Court of India in its landmark decision in National Legal Services Authority vs union of India (dated 15 April 2014, AIR2014SC1863, the 'Nalsa Judgment'), declared transgender people as the 'Third Gender' under the Indian constitution and for all laws enacted by the parliament and state legislatures. Trangender persons option to choose their Self distinguished sexual orientation was maintained and the centre and state governments were ordered to give lawful acknowledgment to their sex personality like male ,female or as third gender.The Supreme court maintained to give bearings to the centre and state governments to find ways to regard such people as socially and educationaly backwardclass of residents , extending a wide range of reservation in areas of education and jobs. The court also, ordered to take measures for constituting different welfare schemes,to improve their social accepabiility and to cater for more problems faced by the community.
Navtej Singh Johar v Union of India (2018), was a land mark decision of the supreme Court of India,decriminalizing section 377 of IPC, and whereby recognising the constitutional rights of the transgender community.Section 377 of Indian Penal code ,which criminalaizes consensual sexual conduct between persons within same sex has made unconstitutional as violative of fundamental rights guaranteed under Articles 14,19 and 21 in part three of constitution.The Supreme court held, “Homosexuality is not an aberration,but a variation of sexuality”
Non-acknowledgment of the Third Gender in the Indian societal structure has brought about precise disavowal of equivalent assurance of law and far reaching financial and other discrimination in the public arena everywhere just as in Indian working environments. In the wake of the Nalsa Judgment, the Indian parliament established the Transgender Persons (Protection of Rights) Act,2019 (the 'Act').
The rights are similarly ensured under the Indian constitution to transgender individuals as the constitution ensures equality and uniformity to every single Indian Citizen. The Government has established the Transgender Person (Protection of Rights) Act, 2019 to give preclusion against discrimination in the field of work, education and healthcare Services to the transgender persons and Welfare measures have been embraced to secure protection to the transgender community.The Act under section 2(k) defines "Transgender person" . According to which Transgender person means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-women(whether or not such person has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy), person with intersex variations,gender queer and person having such socio- cultural identities as kinner ,Hijra, Aravanis and Jogta.
The Act generally provides for prohibition against discrimination(chapter 2), recognition of identity of Transgender persons(chapter 3), obligations on the part of appropriate government towards Transgender person and the welfare measures to be taken by the government(chapter 4), obligations of establishments and other persons towards transgender persons(chapter 5), provisions for education, social security and health of transgender persons(Chapter 6). Chapter 7 of the Act ,under section 16&17 provides for, the formation of a National council for Transgender persons and provides in detail it's powes and functions.The 8th chapter describes the offences against Transgender persons and penalties.whereby,compelling a transgender person for forced labour or bonded labour,or any compulsory services for public purpose by government, denying the right of passage or obstruction of access to public place ,causing to leave house hold,village or any place of residence,endangering life, saftey ,health or well being whether mental or physical,acts of any abuse verbal , emotional, economical,physical or sexual amounts to offences by virtue of the Act and whoever commits such offences shall be punished with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.By virtue of chapter 9 of the Act,the central government shall credit grants to the National counsil for carrying out the purposes of the Act and also empowers the appropriate government to make rules for carrying out the provisions of the Act.
The Transgender Persons (Protection of Rights ) Act 2019 is the first statutory enactment made for the betterment of the transgender community. However the Act has been severally criticised by the transgender community itself as it doesnot recognise their basic rights such as personal autonomy,dignity etc and also directes them for scrutiny by many public authorities and which goes against the very purpose enunciated through the NALSA judgment.One of the major criticism arised was the public consultation procedure ,which should have been more inclusive ,which tend to address efficiently the voices of the transgender community and the penalties prescribed for the offences were not stringent.Another criticism was the Act was not catering to all forms of transgenders and the definition of “ transgender” is not exhaustive.But this piece of legislation definitely set a stepping stone towards progressive development.
Later the Union ministry of social justice and empowement issued Transgender persons ( Protection of Rights)Rules 2020.According to the Rules,an application to declare gender has to be made to the District Magistrate along with affidavit declaring gender identity for certification of the gender.Rules also directs the state government to constitute welfare boards to protect the rights and interests of transgender community and to review existing schemes in health facilities ,education system, employments etc and to make them inclusive for the transgender community.It also mandates to provide services with transgender- sensitive infrastructure and to constitute a transgender protection cell under the supervision of DGP and District Magistrate to deal with offences against the transgender persons and it’s timely disposal..However this Rules has also been criticised by the LGBTQ + community ,as that which entices away their dignity through the verification and certification of their gender by the District Magistrate ,a third person.
In a case Nangai vs Superintendent of police(2014),the petitioner was selected for the post of women police and while undergoing training the medical examination declared her to be transgender and she was terminated from the post.The Honorable Madras high court on writ petition,declared the petitioner as “female” for all purposes, assertaining the right to self identified gender and the order of termination from services has been set aside.
In Arunkumar &other vs Inspector General of registration(2019), Arunkumar married sreeja a transwoman as per Hindu rites,and at the time of registration the joint registrar refused to register the same and they challenged it before the district registrar and he confirmed to the decision of joint registrar.This was challenged before the Madras high court.The court declared the definition of “Bride “ under,Hindu Marriage Act to include Transgender persons and this is the first case where, right to marry under Article 21 has been ensured to transgender persons.Here the court ordered to register the marriage of the petitioners.
Through a recent decision in S. Sushma and another vs Commissioner of police(2021) ,Tamilnadu became the first state to ban conversion therapy of transgender community.The writ petition was filed by two lesbian women against police harassment and the court issued guidelines and directions to ensure protection to the transgender community.The writ petition was decided by single bench of Justice Anand Venkitesh,and the judge opened up about the fact that he had underwent phsychological counselling sessions with clinical psychologists and had interacted with persons in transgender community to study the problems they face in a better manner and to educate himself and to unlearn the prejudices he had ,which in turn deserves more praise. Through its decision Madras high court,directed Union &state governments to take steps to prohibit the attempts to medically “ cure” or change sexual orientation of LGBTQ + community.
All these judgements paves way for the better recognition and acknowledgement of the rights of transgender community.Transgender community ,who have historically been subjected to neglect and ostracism deserves to be treated with equality and acceptance.Undoubtly,such acceptance and compassion ,is the major step towards development.
References:
National Legal services Authority vs Union of India ( AIR 2014 SC1863)
Transgender Person (protection of rights)Act 2019
Transgender Persons (protection of rights) Rules 2020
Submitted by
Kavya Suresh ,May Intership @Bhambri Associates
3rd year ,BBA LLB(Hons), School Of Indian legal Thought