NOXIOUS DISCRIMINATION AGAINST THE TRANSGENDER COMMUNITY-A CRITICAL ANALYSIS
AUTHOR- KANIMOZHI .T*
EDITOR- SIMRANN VASHISHT & MURTUZA GADYALI
ABSTRACT:
Prejudice in all forms is evident in day-to-day life when it comes to the plight of the transgender community who are surviving (and survived for decades ) in a highly misogynistic society. Various people who encounter incompatibility between the sex they were appropriated at birth could be shortly termed as "Transgender Community" (The community under its ambit includes transgender of diversified ethnicities, ages, and so on). These reactions of discrimination, hatred, or bigotry are rooted in a common misconception of what the transgender community is. The two strong terms, such as the freedom to one's sexual orientation and gender identity, could be brought under one umbrella, "Right to privacy," a built-in fundamental right laid down by the Supreme Court. This research paper highlights the prejudices and agony witnessed by the transgender community in the first part. The second part explores the constitutional perspectives, Supreme Court verdicts, and the conclusion part under one umbrella.
KEYWORDS: Prejudice, Transgender Community, Constitutional perspectives.
INTRODUCTION:
Be it the employment sphere or the social concept of marriage, adoption, etc., prejudices and other toxic reactions against the transgender have become very evident. Tracing the history could give one a better picture regarding these homosexual practices and their acceptance then. Few texts, such as Mahabharata and Kamasutra[1], show that they welcomed these practices. Unity in diversity is a familiar quotation or slogan that one gets reminded of when thinking of our beautiful country. One should ponder over the social transformations, especially when it comes to acceptance of the transgender community. The community of concern has three main divisions: activists, some are long-term engagers, and some are knowledge seekers.
The term "Transgender Community" is not new to us. It is from the Buggery act 1533 (sanctioned during the rule of King Henry VIII)[2]; one could unearth the background of punishing homosexuality. Then comes in the year 1828, the Offences against the Person Act replacing the Buggery Act, which paved the basis for section 377 of our Indian Penal Code. The Supreme Court of India later abolished the section on Sept 6, 2018. The beauty of our constitution is that it keeps transforming from time to time. It is imperative today in the current era that everyone showers transgender communities with a lot of support in whatever ways one could so that this arrogance and ignorance circumscribing transgender communities gets vanished.
PREJUDICES WITNESSED AND SURVIVED:
Highly prevalent is the societal discrimination against the targeted minority group living in agony and confusion[3]. How does it feel for one to be shunned from society completely? Prejudice could leave them hopeless without jobs, education, proper hospital care, and the list goes on. The most grueling form of prejudice must be highlighted here: the absence of job opportunities and abuse faced by the community and their family[4]. When it comes to discrimination, it doesn't necessarily start from outsiders. Still, most of the time, the insiders and their own family throw them out of their houses, leading to homeless for years and years [5].
The transgender group is a blanket term of diverse other terms like aravanis, hijras[6], and the list goes on. It is undoubtedly and sadly disheartening to see how much inequality and injustices someone should go through for something that they are not accountable for. The transgender community feels hatred everywhere as they find it challenging in all procures, whether family, education or employment, which prevents them from all possible basis of financial independence[7].
One could easily witness the discrimination survived by the transgender community at large, and that cannot be kept aside or ignore. It is significant to ponder how much inequality they go through in all spheres of life[8]. Though the transgender group faces discrimination in all spheres of life, they still face severe prejudices from their houses to workplaces. This shows that despite the laws being developed, society's acceptance is hard to find. As the famous saying goes, "Acceptance is the key" [9] to all issues and changes, one should not forget to apply the same saying in this specific context.
Everyone is aware of how much they have to go through to survive in this society and aware of certain surgical and sometimes medical procedures that the transgender group goes through. Prejudices to the transgender group include illegitimate bias against a worker by a matter of their gender specification, for example, providing them very little plausible treatment, discrimination in training, denying them employment on account of their gender, etc.[10]. Harassment of any kind is considerable prejudice against the transgender group, which attacks their dignity.
How much ignorance and humiliation should one go through for their identity? Can we highlight/quote any legal protection against any form of prejudice they face?[11] Another significant question is, do we regulate the existing laws properly or not? i.e., giving a broader interpretation of the Right of equality. Equality is irrespective of gender, and everyone has that right regardless of their gender identity. Huge thanks to the Naz Foundation Case[12], which turned out to be the real eye-opener in the society without which the humiliation, ignorance, cruelty, and prejudice faced for decades by the transgender community at large would not have come to the limelight. Prejudices start right from their family and travel through their life in every aspect and field.
In short, prejudices against the transgender community are under various categories, such as prejudice by the state in terms of the law, as earlier we had section 377 of the Indian Penal Code under which homosexuality was prosecuted. The army act under section 46 can also be highlighted, which states that An officer, who faces charges of homosexuality, will now not be tried under Section 46 of the Army Act, but under Section 46 of the Army Act, but under section 45 for "behaving in a manner unbecoming of his position and character expected of him." Section 46 prescribes punishment for "any disgraceful conduct of a cruel, indecent or unnatural kind."
When it comes to the violation of human rights, how much persecution or maltreatment the transgender community has to go through by the police in the country itself should be looked back at, such as illegal detention. The prejudices faced by the vulnerable transgender community does not stop here it goes on and on with them in all walks of their life[13]. To conclude, these prejudices faced by them leave with mixed thoughts and emotions as to whether or not they could live life equally without any humiliation as others or not.
What is required today primarily is societal understanding and acceptance. Acceptance must be taught in all levels of life, right from schools to colleges where one could learn values both theoretically and practically. As it is well known that moral values are the real education that every one of us should emphasize(Moral values must be taught so that the future generation doesn't come up and face such humiliations, ignorance, and hatred).
CONSTITUTIONAL PERSPECTIVE:
Our constitution lays emphasis clearly on the freedom, rights, and liberties to be bestowed upon every Individual without any regard to their gender, class, caste, and creed. But what should be looked into in specific is that "Are the transgender community achieves the freedoms bestowed by our constitution." Despite having constitutional rights and liberties, these are limited and restricted in reaching and achieving by the transgender community mainly due to people's misconception. To survive in the apprehension of persecution is not an easy task and all of the members of the LGBTQ group deserve a huge apology[14] for the way they have been treated for decades.
Outstanding judgment in Justice K.S.Puttuswamy(Retd) vs. Union Of India, it was emphasized that an Individual's Right to privacy(which is inclusive to the Right to sexual orientation[15] ) is deep-rooted under the Fundamental rights of our constitution in the purview of article 21[16]. In 2001, the real fight for LGBTQ Community rights began, where the lawyers in the Delhi high court on behalf of the Naz Foundation filed a petition challenging the constitutionality of section 377 of the Indian Penal Code[17]. A beam of faith came in through the Apex court judgment in a famous "National Legal Service Authority of India vs. Union Of India case wherein all the agony suffered so far by the transgender group was put to an end as it focused on the substance of gender specification[18].
Efforts were taken to look into the outlook and design that fundamental rights provide, which then interlinked it with the proposition of identity[19]. The prejudice witnessed by the community as a whole violates the very significant fundamental Right of the constitution, "Article 14," which provides equality as a fundamental right to all. Our constitution is a living document, and the duties, rights provided therein apply to every Individual without any discrimination. Under one umbrella of our constitution, Article 23, article 14, article 19, article 21, and article 15, protection for the transgender group could be brought in[20].
The fundamental rights can be contemplated and witnessed as a critical component in one's lives, and the same need to be fully realized without any hindrance/violation[21]. Moving on to Article 15, which the constitution provides and the Transgender Community it is significant to observe that just the unfair treatment and the agony survived is sufficient to attract violation under the purview of article 15 of the constitution as it forbids any discrimination having either race as their ground or other factors like caste, sex, religion or any of what is stated herein.
The provision dealing with the Right to life and personal liberty, which is again a significant fundamental right under Article 21[22], has been enlarged to a broader extent driven primarily by diverse judgments. The recognition and their acknowledgment as "Third Gender" came in only after the famous case "National Legal Services Authority vs. Union Of India which ultimately paved the route for the transgender group to live with dignity in society[23]. It is also important to note here that the Transgender Persons (Protection of Rights ) Act, 2019 does not go along with article 15, which forbids any discrimination based on sex[24].
Starting from the famous 2014 NALSA Judgment[25]to the latest supreme court verdict of section 377[26] of the Indian Penal Code, we have come very far and forward in providing equality and equal protection legally for the community that has been suffering agony for decades and decades[27]. When it comes to the legal provisions, it is significant to mention the famous bill called "Rights of Transgender Persons Bill, 2016[28]" which took efforts to contemplate who the transgender community is and forbidding prejudice against the transgender group. The same bill came up with a lot of issues in itself right from its contemplation to the incomprehension of self-identification(also there seems to be a death of proper provision for the concept of reservation as such) in itself as the same was overlooked as a vague one in the context of its definition[29].
COVID-19 AND THE TRANSGENDER COMMUNITY:
During these unusual times owing to covid-19, almost everyone in one way or another is affected, and the transgender group who have been living for decades with the apprehension of belonging to the minority group are no stranger to this. Some of the significant worries include a dearth of jobs, diminished access to care and protection of the transgender community, increased prejudice, and the list goes on.
Accessing medical care (concerning symptoms of Covid- 19 pandemic), legal aid, or approaching any organization for that matter has been complex since its already been a year ever since the country witnessed Covid-19. In strange and hopeless times like this, it is significant that everyone stays together and showers the transgender group with support, love, and guide them in legal aid, medical care, or any other that one can do away with.
CONCLUSION:
There are many ways which shall slowly reduce the discrimination against the transgender community, like the provisions mentioned above and judgments, and the list goes on. Increasing the representation of the transgender community in the entertainment and media such as film advertisements, increasing their job opportunities in all sectors could play a significant role in transforming society faster.
What we lack is societal transformation. It is as important as legal transformation. There are a lot of examples of transformative constitutionalism but what we lack today is social transformation. Steps and other significant measures should be taken, so that societal change travel together with the application of laws.
REFERENCES
[1]These shocking truths about LGBTQ+(phobia) show India doesn’t get that love is love, YKA, (Mar. 10,2021, 10:00AM), https://www.youthkiawaaz.com/2021/02/shocking-truth-of-lgbtphobia-in-india/
[2]The Legal Assistance, Transforming gender equality: A Constitutional Perspective, TLA, (Mar 27, 2021, 2:00pm), https://thelegalassistance.in/2020/07/28/transforming-gender-equality-a-constitutional-perspective/
[3]Responding to transgender victims of sexual assault, OFFICE OF JUSTICE PROGRAMS, (Mar. 21, 2021, 11:00AM),
[4]“Dont punish me for who Iam” Systemic Discrimination against Transgender Women In Lebanon, HUMAN RIGHTS WATCH, (Mar.21, 2021, 1:00 AM), https://www.hrw.org/report/2019/09/03/dont-punish-me-who-i-am/systemic-discrimination-against-transgender-women-lebanon
[5]Transgender Community In India, Forum IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[6] IPLEADERS, https://blog.ipleaders.in/legal-rights-of-transgender-india/ (Last visited Mar.21, 2021)
[7]Transgender Community In India, Forum IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[8] HUMAN RIGHTS CAMPAIGN, https://www.hrc.org/resources/understanding-the-transgender-community (Last visited Mar.21, 2021)
[9]Acceptance is the key to all change, OSHO TIMES, (Mar.21, 2021, 3:10 PM), https://www.oshotimes.com/insights/health/emotions/acceptance-is-the-key-to-all-change/
[10]Transgender Discrimination,UNISON, (Mar.21, 2021, 4:27PM), https://www.unison.org.uk/get-help/knowledge/discrimination/transgender-discrimination/
[11] HUMAN RIGHTS CAMPAIGN, https://www.hrc.org/resources/understanding-the-transgender-community (Last visited Mar.21, 2021)
[12]Advocatesunita,Discrimination of transgender at every turn, LSI, (Mar.21, 2021, 5:00PM), http://www.legalservicesindia.com/article/1813/Discrimination-and-Dilemma-of-Transgender-People.html
[13]Advocatesunita,Discrimination of transgender at every turn, LSI, (Mar.21, 2021, 5:00PM), http://www.legalservicesindia.com/article/1813/Discrimination-and-Dilemma-of-Transgender-People.html
[14] The Legal Assistance, Transforming gender equality: A Constitutional Perspective, TLA, (Mar 27, 2021, 2:00pm), https://thelegalassistance.in/2020/07/28/transforming-gender-equality-a-constitutional-perspective/
[15] The Legal Assistance, Transforming gender equality: A Constitutional Perspective, TLA, (Mar 27, 2021, 2:00pm), https://thelegalassistance.in/2020/07/28/transforming-gender-equality-a-constitutional-perspective/
[16] The Legal Assistance, Transforming gender equality: A Constitutional Perspective, TLA, (Mar 27, 2021, 2:00pm), https://thelegalassistance.in/2020/07/28/transforming-gender-equality-a-constitutional-perspective/
[17] The Legal Assistance, Transforming gender equality: A Constitutional Perspective, TLA, (Mar 27, 2021, 2:00pm), https://thelegalassistance.in/2020/07/28/transforming-gender-equality-a-constitutional-perspective/
[18]Transgender Rights: Historical, Constitutional, Legal Perspective and Critique, B&B ASSOCIATES LLP, (Mar 27, 2021, 5:00PM), https://bnblegal.com/article/transgender-rights-historical-constitutional-legal-perspective-and-critique/
[19]Transgender Rights: Historical, Constitutional, Legal Perspective and Critique, B&B ASSOCIATES LLP, (Mar 27, 2021, 5:00PM), https://bnblegal.com/article/transgender-rights-historical-constitutional-legal-perspective-and-critique/
[20]Transgender Community In India, Forum IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[21]Transgender Rights: Historical, Constitutional, Legal Perspective and Critique, B&B ASSOCIATES LLP, (Mar 27, 2021, 5:00PM), https://bnblegal.com/article/transgender-rights-historical-constitutional-legal-perspective-and-critique/
[22] Diva Rai, Transgender Protection and article 15 of the Indian Constitution of India, IPLEADERS, (Mar 28, 2021, 5:30 PM), https://blog.ipleaders.in/transgender-protection-article-15-constitution-india/
[23] Diva Rai, Transgender Protection and article 15 of the Indian Constitution of India, IPLEADERS, (Mar 28, 2021, 5:30 PM), https://blog.ipleaders.in/transgender-protection-article-15-constitution-india/
[24] Diva Rai, Transgender Protection and article 15 of the Indian Constitution of India, IPLEADERS, (Mar 28, 2021, 5:30 PM), https://blog.ipleaders.in/transgender-protection-article-15-constitution-india/
[25]Transgender Community In India, FORUM IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[26]Transgender Community In India, FORUM
IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[27]Transgender Community In India, FORUM IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[28]Transgender Community In India, FORUM IAS, (Mar 28, 2021, 6:00PM), https://blog.forumias.com/transgender-community-in-india/
[29]GazalaParveen, An analysis of the transgender persons(Protection of rights) bill, IPLEADERS, 2016, (Mar 28, 2021, 7:00PM),
*The Author is a law graduate from School Of Excellence, Chennai
.
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.
Comments