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  • Aditi Choubey

TRANSGENDER RIGHTS IN INDIA

As E.E. Cumming said, “It takes courage to grow up and become who you are”, and being

transgender is not an option that one chooses to suffer in the stereotyped society. Transgender people have the same appearance as men or women, gender which society accepts, but they vary with normal stereotype behavior or characteristics as men and women. The term transgender is an ‘umbrella’ word used to include all categories of people who vary from stereotype norms of society like lesbians, gays, bisexuals, transvestites but not limited to them. They have separate gender identities and sexual orientations. Other terms for transgender are ‘gender different’, ‘gender variant’. With various protests, they are now legally termed as LGBTQAI+. In India, orthodox people believe that transgender people should not live in normal society but with a socio-culture group of transgenders commonly termed as hijras/kinnars. Once a person declares himself/herself as transgender in Indian society, they were assumed to live a life full of discrimination, physical violence, and social oppression, as a society fail to accept this gender. In addition to this, they fail to meet necessities like education, home, health care, employment, etc., just because of their gender. All this results in dealing with a life full of abuse and discrimination. With time, there has been the introduction of laws to protect the rights of transgender people. The other focus of these laws was to solve problems that these people face daily. As far as India

is concerned, transgender people are recognized as ‘Third Gender’, as the Constitution of India provides the same too.


GLOBAL DYNAMICS OF TRANSGENDER PEOPLE

Given the range of globalism that suggests the influx of ideas, technology, movements, and

people, there persist an equivalent exchange of misconceptions from time and again. The

misconceptions instilled for a very long time become a popular trend that people blindly follow. Getting into the most sensitive issue that is the identity of transgender people in society, a misconstrued notion that cannot be denied exists in the environment.

The issue of Transgender paves its way to the limelight and is often under the light of critical investigation. Several arguments have shaped the idea of this community in the most sophisticated manner. Firstly, it has been conditioned that transgender people have a mental illness. Secondly, reparative mental abuse has come to be under usage for a long time. The conditioning of this false information based under the ambit of misconceptions has now come into “public knowledge”. The acceptance of this transmission of ambiguous and inaccurate knowledge eventually made the conditions of these people into suffering and Gender dysphoria. It is an experience that transgender people go through where there is a mismatch between physical sex and one’s gender identity. To understand the depth of this notion, it’s vital to realize why it started in the first place. Concepts such as homosexuality are easily identifiable by people whereas it’s pretty hard to get the meaning of gender dysphoria. Moreover, public ignorance is the foremost and blunt reason for such an attitude. For instance, David Reimer’s male genital organs have been mutilated at birth. It was accidental though his parents thought to raise him as a girl to escape the shame of this disorder. Furthermore, psychologist Milton Diamond found out that he suffered from gender dysphoria between 9 to 11 years of age and afterward transitioned back to male at 15. Hence, this instance portrays how transgender’s identity is kept a secret from the eyes of the public spectrum. There is a report published by Ipsos Public Affairs concerning the countries across the globe are reacting towards the recognition of these communities. With the changing norms, values, and mentality most of the countries are now being supportive of the cause of this sensitive issue. The influx of ideas and people has made it possible to at least have an acknowledgment of these people. It is noted that change starts at the recognition of the issue. Furthermore, it has to be taken into account that WHO in the year 2019 has updated the International Classification of Disease list. This is now a part of this list removing the earlier version that states as the “gender identity disorder”. This reclassification of the term was the step towards getting away with the stigma attached to transgender people. Nations are still in speculation and need to update their laws accordingly in congruence with the WHO guidelines (Wareham, 2020). Global scenario affects the state-nations in every way possible. Thereby to witness the desirable change it’s important that legal recognition is granted and given due

consideration.


Photo Courtesy: The Guardian


RIGHTS UNDER CONSTITUTION OF INDIA:

The Constitution of India is the basic foundation of our country. Its preamble clearly states to provide justice, equality to all its citizens. There are certain rights which are provided to all residents of India irrespective of citizenship status but there are also some rights which are as specify in Constitution is provided to its citizen only.

Earlier in India state policy recognized only two sex they were male and female, which

prohibited transgender people from many citizen rights under the Constitution of India, including the right to vote, right to employment, right to education, right to marry, right to own property, and many more. By this transgender people were deprived of fundamental rights as stated under Articles 14, 15, 16, and 21 of the Indian Constitution. This rights which were deprived where considered for very first time in a landmark case name, NALSA vs. Union of India (2014) (National Legal Services Authority vs. Union of India and others, 2014) where the supreme court focused on protecting the rights and lives of transgender people under the Constitution of India, as:

  • Article 14, states that every person has the right to equality before the law or equal protection before the law within the territory of India (Article 14 in The Constitution Of India 1949). The use of ‘person’ clearly states that this right is within the ambit of male, female as well as transgender people. And so transgender people have the right to equality, which means the right to educate, marry, owning property, and many other rights.

  • Article 15, says that there should not be any discrimination on the ground of religion, race, caste, and sex (Article 15 in The Constitution Of India 1949). And now that transgender is recognized as the third gender this means they come under the citizen of India and have this fundamental right too. Concluding that transgender people now have the right to not be discriminated against and to express their gender in form of their wearing and actions.

  • Article 16, deals with equal opportunity to citizens with respect to public employment, it also includes psychological sex and gender identity under the concept of sex (Article 16 in The Constitution Of India 1949). The word citizen now includes transgender people too and so they have the right to employment (equal opportunity for employment) in which they were discriminated against due to their gender.

  • Article 21, states that no person shall be deprived of his life and personal liberty except according to the procedure of law (Article 21 in The Constitution Of India 1949). The term here used is ‘person’ which means even before the reorganization of transgender as the third gender they had the right to life and liberty which means they have the right to live with dignity.


The Supreme Court of India in NALSA vs. Union of India has identified the same and made

it clear that gender identity comes under Article 21. Furthermore in 2018 under Navtej Singh Johar v. the Union of India, the constitutional validity of Section 377 of India Penal Code, 1860 was discussed. Section 377 of the Indian Penal Code stated that “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.” (Section 377 in The Indian Penal Code) The petition was filed with respect to violation of Articles 14, 15, and 21 of the Indian Constitution, which is a fundamental right and comes under ‘basic structure’. The Supreme Court in this case decriminalized Section 377, with the reason of a violation of the right to equality and privacy further leading to violation of fundamental rights and right to life.



LANDMARK CASES:

Privacy forms an intrinsic foundational stone for an individual’s liberty. When liberty is in

congruence with an expression that forms an essential asset in one’s whole life. The batter for equality and privacy for the LGBT communities in the long-drawn. Equality and dignity go hand in hand. Thus, there has been a continuous battle that was fought for the rights of these communities in the legal framework. The Indian Judiciary is bestowed with the obligation to ensure the personal liberty of individuals. The previous judgments stand witness to the series of changes in the legal diaspora of this sensitive subject. The year 2010 and the following decade marked the significant presence of LGBTQ rights. In the case National Legal Services Authority vs. Union of India, a two-judge bench held the acknowledgment of transgender as a third gender and a satisfactory matter of human rights issue (Supreme Court ruling on Transgender rights)eyebrows. The underlying issue behind the judgment was whether the people who are outside the binary norms of gender can be legally identified as third-gender persons. This contention raised several eye-brows of the people endured with false information as public knowledge in matters of the transgender community. The second major issue that was highlighted was whether the ignorance of their identity amounts to the curtailment of fundamental rights as enshrined in the Indian Constitution. All these contentions backed by authoritative arguments were presented before the Expert Committee on Issues Relating to Transgender”. Herein, for the very first time, the Supreme Court acknowledged the transgender people and the concept of gender identity of dealt in detail. The Apex Court identified the rights of all individuals equally. Furthermore, it was held that their right to privacy against medical examination was be prohibited. And accordingly, their privacy will be secured against any arbitrary infringement. However, it's pertinent to deduce that Article 21 of the Indian Constitution can be irresistibly applied. The term “dignity” under this provision has been construed by the court to mean self-expression for an individual to lead a dignified life. Moreover, this judgment qualifies to be termed as a landmark-decisions under the Indian Judiciary because for the first time the fundamental rights of transgender people have

been recognized and secured (NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS.

UNION OF INDIA). In the subsequent judgment, Justice (Retd) K S Puttaswamy vs Union of India, was another landmark decision that upheld that right to privacy is an integral part of the Constitution of India. The concept of the right to privacy was furthermore applied to all individuals recognizing every sex and gender. Hence, the adequate recognition of privacy has been extended to the LGBTQIA communities that circumscribe transgender too (CHAKRABARTY, 2020). Therefore, privacy is a matter of concern for individual dignity and liberty and should be ensured irrespective of any pre-conceived and misconstrued notions. In the political and social dynamics law in the contemporary era has started to give due recognition to these sensitive issues. Nevertheless, the stigma attached to such communities is still the root cause for their struggling survival. The psychological and social impact is undeniably immense that needs to be addressed with utmost sophistication.


Photo courtesy: The wire


THE TRANSGENDER PERSON (PROTECTION OF RIGHTS) ACT, 2019:

The Transgender Person (Protection of Rights) Act, 2019 was passed after the landmark

judgment of 2018, with the motive to safeguard rights and protect discriminations against

transgender people. The act focuses on removing discrimination against transgender in society with respect to sectors like education, health care, and employment as briefed below:


  • Education:

The typical stereotype act of people of Indian society towards transgender, make them

distract and reduces their interest towards learning and they develop the feeling of being ignored. Many transgender students are denied admission because of their gender

identities. This Act of 2019, states that educational institutions with government funds

should mandatory accept and provide education as well as sports facilities to transgender

without any discrimination. This had made education easy for transgender.


  • Health Care:

The health care here does not only include physical but also mental, social, and wellbeing.

It also includes being treated equally and with public acceptance. Transgender people

mainly suffer from depression, harassment, attempt to suicide, and HIV too. To maintain

regular health care of transgender people the Act of 2019 provide that state government

must take proper measure to make sure transgender people are provided with the proper

medical facility as well as medical insurance.


  • Employment:

Transgender people with their identity find it very difficult to secure jobs even if they

fulfill a job requirements. If they get hiredface, they faces issues like discrimination, harassment and not so welcoming environment, making them quit from their job. The Act of 2019 clearly states that no entity (whether government or private) has the right to discriminate against transgender with respect to matters like hiring, promotions.


Present Scenario:

It is often said people have the option to choose their life but in reality, people have to adapt their life according to social norms and if they do not follow the same, they are treated as outsiders. With the passage of time, people of the society should also try to change their mindset, as in present transgender has been recognized as the third gender and have been given legal position with rights too. As of present, they are even been thinking of being surrogate parents and live a normal happy life.

Transgender people have been separated and ignored by the general public for quite a while yet to take them back to the standard of the general public a few governments assistance measures have been taken for the transgender individual as in Tamil Nadu there was a case of Aravanis and in Andhra Pradesh, the State government had requested the Minority Welfare Department to consider "Hijras" as a minority for government assistance plans for Transgender. The department of social welfare board in Tamil Nadu set up Aravanigal/Transgender Women Welfare Board to address the social government assistance issues of Transgender individuals. The Transgender Person Protection Act, 2019 has given that important government should take gauge and guarantee the full investment of transgender people in the public area and to plan certain government assistance plans and measures to secure the right of the transgender person. Though the government has started taking certain measures for the welfare of transgender people, there should be a committee to look into matters related to transgender and how they are treated in public, this will ensure the safety. In addition to this police department should also be made to understand the need for the security of transgender and be asked to be transparent in these matters. There should be regular workshops related to transgender and their life, this will make people at the administrative level understand the struggle of transgender. People in society should be made aware of transgender life too. Let’s make society a better place for transgender to live normal life.

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