AN ANALYSIS OF TRANSGENDER AND THEIR RIGHTS IN INDIA

Author-Manorma Singh*

Introduction

Transgender, often a term not well recognized in our society because of their gender identity as they differ from stereotypical gender norms. Gender Dysphoria is the feeling which they go through, “It is a feeling of discomfort or distress that might occur in people whose gender identity differs from their sex assigned at birth or sex-related physical characteristics.”[1] Due to this feeling, they suffer severe health issues. Cases like Jayalakshmi vs. The state of Tamil Nadu[2] where the petitioner, who was a transgender person, was forced to have oral sex with the police officer, shows how oppressed they are in society. Indeed, judicial pronouncements like NALSA vs. Union of India[3] and Navtej Singh Johar’s[4] case proved to be outstanding for transgender. Despite these judgments, they face social boycotts, leading to their indulgence in prostitution or begging for survival[5]. The main focus of the article is to understand the meaning of transgender and their rights in India.

History of Transgender People

Transgender people, also known as Hijra or Kinnar, have a history of about 4000 years of being part of the sub-continent. India has a long list of evidence that showcases that this community has been a part of the culture. One such evidence is the Hindu text on human sexual behavior, the Kama sutra written between 400 BCE and 200 CE. Also, Transgender characters can be traced in some crucial texts of Hindus like Ramayana and Mahabharata[6]. They were treated as demi-Gods in Hindu scriptures and played a significant role as entrusted advisors in royal palaces.

In the Mughal period, transgender people played a significant role in the royal courts, especially in the Mughal rule and Ottoman empires in medieval India. They obtained good positions in the Islamic religious institutions, were close to queens and kings, and could influence state decisions.

During the beginning of the colonial rule, the situation changed when the European travelers did not like the attention given to the Transgender community in the royal courts[7]. In the second half of the 19th century, the Criminal Tribes Act, 1871 was enacted, and all such practices like dressing as women to dance in public places were illegalized[8]. India became independent in 1947, but homosexuality and indeed all these types of practices were illegal. One significant step towards transgender rights was decriminalizing “section 377 of Indian Penal Code, 1860.” So even after facing many problems in the colonial period the position of transgender people are better now as many states have introduced welfare policies for the transgender community[9]. Odisha was the first Indian state to introduce a welfare scheme for transgender people[10].

Third gender

The term third gender is often synonymized with third sex. By their will or social consensus, they are the individuals who do not fall in either of the categories of man or women. Also, these categories are present in those societies which recognize more than two genders. They are known to be a combination of both. India is probably known to be the most populous country for the third sex type. In different parts of India, this community is also known as Jogappa or Aravani. The Humsafar Trust, an organization, estimated that there are about 6 million Hijras in India[11].

The Meaning of the term “Transgender is generally described as an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to their biological sex. Transgender may also take in persons who do not identify with their sex assigned at birth, including Hijras/Eunuchs who, in this writ petition, describe themselves as the third gender and they do not identify as either male or female. Hijras are not men by anatomy appearance, and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation[12].

Decriminalization of Sec 377[13]- The first step towards freedom of transgenders

In the case of National Legal Services Authority (NALSA) v. Union of India[14], India's apex court on 15th April 2014 held that transgender people should be recognized as a separate gender. This was the first-ever step towards the empowerment of this community[15]. However, even after this judgment, they were not free due to the presence of sec 377 of IPC,1860 as it criminalized consensual sex with same-sex.

Now let us first understand what was Section 377 of the Indian Penal Code (hereinafter alluded to as IPC), 1860 and why it was necessary to decriminalize it?

Section 377- "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."[16] It was essential to remove this as it was a clear violation of the fundamental rights of people belonging to the LGBTQ community, which is guaranteed by our supreme law of the land. Being transgender is not a choice but is naturally granted to a person by mother nature from birth; therefore, treating them unjustly and not providing equal opportunities is a violation of people's right to live with dignity under Article 21 of the Indian constitution.

The apex court in the case of Navtej Singh Johar vs. Union of India[17] held that "consensual carnal intercourse among adults, homosexual, lesbians or heterosexuals, does not harm the public morality or decency, and therefore, Section 377 is in violation of Article 19(1)(a) of the constitution." In the judgment, it was also stated that the LGBTQ community are the citizens of the country even though having sexual minority, they could not be denied equal fundamental rights under Articles 14,15,19 and 21[18].

Rights available to Transgenders

The Constitution of India provides for certain fundamental rights for its citizens. If we talk specifically in the context of transgenders, then based on Article 14, 15 and 21 they can not be discriminated. Article 14 and 15 talk about “equality before law” and “prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth,” respectively. Article 21 ensures the right to privacy and to live with dignity to all its citizens.

Does the main question arise that whether these rights are just on paper or practically applied too? Transgender people are constantly discriminated against in various fields like education, health, social life, etc. is this what equality is? Also, they are constantly questioned about their sexual orientation then how come they are guaranteed the right to privacy? These are the questions that always arise concerning the rights of transgender people.

The Transgender Persons (Protection of Rights) Act, 2019

On realization that there is a need to protect their rights, in 2019, a bill was introduced in Lok Sabha by Mr. Thaawarchand Gehlot, the Minister for Social Justice and Empowerment, which came into effect on 10th  January 2020 as "The Transgender Persons (Protection of Rights) Act, 2019." The Act provides for the "protection of the rights of transgender persons, promotion of their welfare, and deals with other matters connected to them" [19] and extends to the whole of India. [20]

Recent Developments

In the case of Pallabi Chakraborty v. The State of West Bengal & Ors. [21], the Calcutta High Court was hearing Pallobi Chakraborty's plea, who claimed to be a transgender person and sought mandamus against police authorities to enable her to participate in the constable selection process conducted by the West Bengal Police Directorate. The writ petition was not allowed as the court noted that the petitioner was by birth male and has sworn an affidavit before Judicial Magistrate and after passing of The Transgender Persons (Protection of Rights) Act, 2019, she obtained employment as a lady civic volunteer and therefore can not turn around.

The court had directed the Chief Secretary of West Bengal to take immediate steps to set up a Grievance Redressal Forum and Mechanism under sec 11 of The Transgender Persons (Protection of Rights) Act, 2019, as it was noted that there was no such forum. The Calcutta High Court has ordered that in joint CSIR-UGC NET examinations, transgender people should be provided with reservations and benefits at all levels. The Bihar High Court also recently issued direction to the Bihar government to give reservations to the transgender community for constable and sub-Inspector posts. [22]

Conclusion

The Transgender Community every day faces many problems to tackle in this world, but still can move forward; as now they are backed by law. The families tend to disassociate themselves if they find such trait of being transgender in their child; thus, many such people either attempt suicide or are in depression. They are often discriminated against, and the classic example of which is public toilets; whenever a person visits public restrooms, only two options are there, male and female. They are constantly forced as social outcasts to the margins, and eventually, they beg and dance. [23]

Despite the enactment of the law The Transgender Persons (Protection of Rights) Act, 2019 which prohibits discrimination concerning education, employment or occupation, health care, right of movement, right to rent, purchase, hire, reside or occupy a property, standing for or holding of a public or private office, etc., its proper implementation will not be possible unless the mentality of people towards this community change. Now it's high time for the people to treat them as equal and look beyond just celebrating them religiously and spiritually. They have faced many social denials, harassment, discrimination, and every community deserves to be treated as equally as per the Indian constitution and the law of nature.

The existence of law would not work until and unless actions are being taken for its proper implementation. Various sectors like education, politics, health should be supportive towards these people. Awareness programs should be conducted to aware people regarding such a community. India is a progressive country. It is already facing issues of religion, poverty, etc.; gender should not be yet another problem for the country. Therefore, people should change their mindset to adapt to changes frequently for their countries' development.

REFERENCE

1.Gender Dysphoria, Mayo clinic, Gender dysphoria - Symptoms and causes - Mayo Clinic, Last

visited:02/24/21.

2 WP.No.24160 of 2006.

3 AIR 2014 SC 1863.

4 2018 SCC Online SC1350.

5 Anika Mittal, “Analyzing the legal status of the transgender society in light of Transgender persons (

Protection of Rights) Bill, 2016”, Law Audience Journal, Publication Date: 12/15/18, ANALYSING THE LEGAL STATUS OF THE TRANSGENDER SOCIETY IN LIGHT OF TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016. » (lawaudience.com), Last Visited:02/24/21.

6 Sridevi Nambiar, “A Brief History Of Hijra, India’s Third Gender”, Culture trip, Publication Date: 01/01/17, A Brief History Of Hijra, India’s Third Gender (theculturetrip.com), Last Visited:02/20/21.

7 M. Michelraj, “Historical Evolution of Transgender Community in India”, trp.org, ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf (trp.org.in), Last Visited: 02/24/21.

8 Zainab Salbi, “The History Of India’s Third Gender Movement”, Huffpost, Publication Date:11/22/16, The History Of Indias Third Gender Movement | HuffPost, Last Visited:02/20/21.

9 “Transgender Community in India”, Forum Ias, Publication Date:01/03/19, Transgender Community in India -ForumIAS Blog, Last visited: 02/24/21.

10 Thomson Reuters Foundation, “In a first, Odisha extends welfare schemes to transgender community”,Hindustan Times, Publication Date:06/02/21, In a first, Odisha extends welfare schemes to transgender community | Hindustan Times, Last Visited:02/24/21.

11 Third Gender, Academic room, What is Third gender | Definition of Third gender | Academic Room, Last Visited: 02/22/21.

12 Ramanuj, “The Third Gender and the Indian Law – a brief history”, Ipleaders, Publication Date: 05/30/14, The Third Gender and the Indian Law - a brief history - iPleaders, Last Visited: 02/22/21.

13 The Indian Penal Code, Act no. 45 of 18601, India Code.

14 AIR 2014 SC 1863.

15 Neha Mantri, “The Transgender Persons (Protection of Rights) Act, 2019: A Brief Overview”, BnW journal,Publication Date: 04/12/20, The Transgender Persons (Protection of Rights) Act, 2019: A Brief Overview - BnW Journal, Last Visited:02/22/21.

16 The Indian Penal Code, Act no. 45 of 18601, India Code.

17 2018 SCC Online SC1350.

18 The Legal State, “Navtej Singh Johar v. Union of India -Section 377”, Publication Date: 09/25/20, Navtej Singh Johar v. Union of India -Section 377 » Important case of 2021 (lawsuperior.com), Last Visited:02/22/21.

19 The Transgender Persons (Protection of Rights) Act,2019,Act no. 40 of 2019 , India Code.

20 Neha Mantri, “The Transgender Persons (Protection of Rights) Act, 2019: A Brief Overview”, BnW journal,Publication Date: 04/12/20, The Transgender Persons (Protection of Rights) Act, 2019: A Brief Overview - BnW Journal, Last Visited:02/22/21.

21 [W.P.A. 3962 of 2021]

22 Sparsh Upadhyay, “Take Immediate Steps To Set Up Grievance Redressal Forum In Compliance Of S. 11 Of The Transgender Act Of 2019: Calcutta High Court To Govt”, Livelaw.in, Publication Date:02/16/21, Take Immediate Steps To Set Up Grievance Redressal Forum In Compliance Of S. 11 Of The Transgender Act Of 2019: Calcutta High Court To Govt. (livelaw.in), Last Visited: 02/22/21.

23 Mohd. Aqib Aslam, “The Position of Indias Transgender - Third Gender”, legal service India, The Position of Indias Transgender - Third Gender (legalserviceindia.com), Last Visited:02/24/21.

*The Author is a 4th year B.A.LLB (Hons) student at Amity Law School, U.P. (Lucknow Campus)

Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article