INTRODUCTION Transgender people are people whose identities vary from stereotypical gender stereotypes, which only accept male and female genders. They have experienced sexism, social injustice, and physical abuse as a result of society’s failure to recognise their gender identity. There are Hijras, Jogappas, Sakhi, Aradhis, and other socio-cultural groups of transgender people, as well as people who do not belong to any of the groups but are referred to as transgender people individually. The article addresses transgender rights in India, where transgender people have the right to be accepted as a third gender and have legal protection. The rights of transgender people are guaranteed by the Indian constitution in the same way as the constitution guarantees justice and equality to all Indian citizens. The government has passed the Transgender Person (Protection of Rights) Act, 2019, which prohibits discrimination in jobs, education, and health services for transgender people. Welfare programmes have also been put in place to protect transgender people’s rights.
MISCONCEPT OF WORD TRANSGENDER The word ‘transgender’ is confused. Transgender is a general concept that includes individuals whose gender orientation, identity, or action varies from the norms required by their birth sex. This group covers transgender male, transgender female, male-to-female (MTF), and female-to-male (FTM) identities (FTM). It also includes cross-dressers (people who dress in the clothing of the opposite gender), gender queer people (those who say they belong to all genders or neither), and transsexuals. In India, the term ‘Hijra’ is a Persian word that is translated as eunuch and is used to refer to the transgender community. Male-to-female transgender who undergo genital alteration by SRS (Sex Reassignment Surgery) or Nirwaan, a conventional form of castration, are referred to as ‘Aravani.’ Kothi is a term used to describe people who take on a feminine position in same-sex relationships but do not live in Aravani communes. Jogtas/Jogappas are male to female transgender people who dedicate their lives to serving a specific deity. They can be found in Maharashtra and Karnataka. Shiv Shakthis are males who are believed to be married to gods, especially Lord Shiva, and are found in Andhra Pradesh.
RECOGNITION AS THIRD GENDER The community of transgender are people who have suffered discrimination from ages as from the early times they have not been recognized as an independent gender community and their identity has always been forbidden, it has always been suppressed either in eyes of law or by the society and they were forced to write male or female against their gender. But ultimately the Supreme court of India recognized transgender as the 3rd gender to eradicate the discrimination suffered by them and to guard their rights. According to court the transgender community should be treated as socially and economically backward classes and allow them to get admission in the educational institution and the employment should be provided on the basis of their third gender category. The court provides the transgender with equal rights and protection under the Article 14,15,16 and 21, The Court stressed out on the importance of right to dignity and gave due recognition to their gender identity which was based upon reassigned sex after proceeding through sex reassignment surgery as the person has a constitutional right to get recognized as a male or female. Thus the transgender where entitled to legal protection of law in all the spheres of state activity including the education and employment. Recognizing diverse gender identities, the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is recognized by the society. “Recognition of transgender as a third gender is not a social or medical issue but a human rights issue”- Justice K.S Radhakrishnan told the Supreme Court while handing down the ruling. The right of equality before law and equal protection of law is guaranteed under 14 and 21 of the Constitution. The right to choose one’s gender identity is an essential part to lead a life with dignity which again falls under the ambit of Article 21. This rights cannot be discriminated against on the ground of gender as it is violative of Articles 14, 15, 16 and 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 Supreme Court in its final judgment declared that transgender apart from binary gender, should be treated as “third gender” for the purpose of safeguarding their rights under Part III of Constitution of India and the laws made by the Parliament and state legislature.
TRANSGENDER PERSON (PROTECTION OF RIGHT) ACT, 2019 The Government has enacted the Transgender Person (Protection of Right) Act, 2019 to provide prohibition against discrimination in the matters of employment, education and health Services to the transgender person and Welfare measures have been adopted to protect the rights of the transgender person. An Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto. The Transgender Persons (Protection of Rights) Act, 2019 is an act of the Parliament of India with the objective to provide for protection of rights of transgender people, their welfare, and other related matters. The act was introduced in the Lok Sabha, the lower house of the Parliament, on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot, in light of the lapse of the Transgender Persons (Protection of Rights) Bill, 2018. The president assented to it on 5 December 2019, upon which the act was published in the Gazette of India. It has been in effect since 10 January 2020 following a notification of the same in the Gazette on the same day. The Bill defines a transgender as someone whose gender does not match the one assigned at birth and prohibits discrimination against them in employment, education, housing, healthcare and other services. It also allows for certification after such a person undergoes surgery to change gender. The application and a certificate from a medical superintendent or chief medical officer of the medical institution where the surgery took place should be given to the DM for a revised certificate.
WHY TRANSGENDER COMMUNITY OPPOSESA BILL? The Bill was meant to be a consequence of the directions of the Supreme Court of India in the National Legal Services Authority vs. Union of India case judgment, mandating the Central and State governments to ensure legal recognition of all transgender persons and proactive measures instituted for their welfare. Activists harked back to this judgment of April 2014, chastising the Union government for failing to live up to the opportunity to ensure that fundamental rights are guaranteed to all people regardless of their sex characteristics or gender identity. Rejecting ‘Transgender’ as the nomenclature, they suggested instead that the title should be a comprehensive “Gender Identity, Gender Expression and Sex Characteristics (Protection of Rights) Bill”, and in definition, sought to introduce the distinction between transgenders and intersex persons upfront. Members of the community perceive transgender as different from intersex, and were insistent that the distinction be made in the Bill. It prohibits discrimination against them in employment, education, housing, healthcare and other services. The Bill allows self perception of gender identity. But it mandates that each person would have to be recognised as ‘transgender’ on the basis of a certificate of identity issued by a district magistrate. The Bill only allows for the certificate to identify a person as “transgender” till they under go a sex reassignment surgery and apply for another certificate. It enforces a minor’s right of residence compelling any transperson below 18 to cohabit with their natal family. The bill criminalises begging and it also strongly focuses on transwomen.
RIGHTS UNDER THE INDIAN CONSTITUTION The Indian Policy has recognized only two sexes, i.e. Male and Female. Transgender Community has deprived from their several rightswhich includes right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport etc. and more importantly their the right to education, employment, and so on. Article 14, 15 and 16 of Indian Constitution provides right to equality and Article 21 provides right to freedom for each and every Indian citizen but transgender community were deprived from their basic right to freedom and equality. Article 14 deals with Equality before the law or equal protection before the law within the territory of India. Article 15 deals with the prohibition of discrimination on the ground of religion, race, caste and sex includes the third gender under its ambit as being the citizens they have the right to not to be discriminated on the ground of their religion, caste race and sex. Article 16 deals with equality of opportunity in the matters of public employment. The transgender being the citizens of India has the right to employment and equal opportunity in the matters of employment and they should not be discriminated on the basis of their sexual orientation. Article 21 which deals with the protection of life and personal liberty states that no person shall be deprived of his life and personal liberty except according to the procedure of law.The transgender being the citizen of India should have full right to protect their right and personal liberty.
VIOLATION OF HUMAN RIGHTS They are deprived of social and cultural participation and hence they have restricted access to education, health care and public places which violates guarantee of equality before law and equal protection of laws. Section 377 of Indian Penal Code “voluntarily carnal intercourse against the order of nature with any man, woman or animal shall be with punished with imprisonment for life, or with imprisonment which may extend to ten years with a fine.” It violates right to privacy, equality, freedom of expression and protection against discrimination. The transgender persons have suffered workplace discrimination and discrimination in the matters of employment. They are forced into sex work which puts them at the highest risk of contracting HIV as they agree to unprotected sexual intercourse because they fear rejection or they want to affirm their gender through sex.
IMPORTANT CASE LAWS Navtej Singh Johar v. Union of India NAZ Foundation Case NALSA v. Union of India
AUTHOR - KIRAN ISRANI
2nd Year Student Of BACL, Nagpur
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