RIGHTS OF TRANSGENDER IN INDIA

Transgender persons are people whose identities are different from the stereotypical gender norms, which identify genders only as male or female. Society has failed to accept their gender identity due to which they have suffered from discrimination, social oppression and physical violence. There are certain socio-cultural groups of transgender people who are identified as Hijras, jogappas, Sakhi, Aradhis etc. and there are people who do not belong to any of the groups but are referred to as transgender person individually. The article deals with the Transgender rights in India as the transgender have the right to be recognized as a third gender and are entitled to legal protection under the law. The rights are equally guaranteed under the Indian constitution to the transgender person as the constitution guarantees justice and equality to each and every Indian Citizen. 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.

Transgender people are individuals who differ from the stereotypes and existence of only two genders that is man and women; they have different appearance, personal characteristics and behavior. Being different from the other gender, transgender people have been subject to social oppression as society does accept their gender identity and they suffer from the physical violence which is inflicted upon them. The main problems from which they suffer are lack of education, unemployment, homelessness, lack of health care facilities, depression, alcohol abuse and discrimination throughout their life. To protect their rights and to solve their problems, The Constitution of Indian has provided them with their own rights and The Supreme Court has given them the right to be recognized as “Third Gender” and provided them with some welfare measures.

Rights under Indian Constitution
The preamble to the constitution mandates every citizen Justice: – social, economic, political equality of status.

The Indian state policy that earlier recognized only two sex i.e. only male and female has deprived the third gender from their several rights as being an Indian citizens, which 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, health so on. The basic rights which they were deprived from are their fundamental rights under Article 14, 15, 16 and 21. The rights of transgender where for the first time considered under the 2014 NALSA Judgment where the supreme court laid emphasis on protecting and safeguarding the rights of the transgender person under the principles of Indian Constitution laid down in Article 14, 15,16 and 21.

Article 14, 15 and 16 provides right to equality and Article 21 which provides right to freedom for each and every Indian citizen but transgender person where 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 14 clearly falls within the expression “person” which includes the male, female and third gender within its ambit so the transgender are also entitled to legal protection under Indian constitution in all the spheres of state activity.

Article 15 which 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. They have the right to protect their gender expression which is majorly reflected through their dresses, action and behavior.

Article 16 deals with equality of opportunity in the matters of public employment as this article is used to broaden the concept of sex which includes “Psychological Sex” and gender identity within its ambit. 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. For ages transgender have been deprived of their life and personal liberty. The transgender being the citizen of India should have full right to protect their right and personal liberty. The Supreme Court has also recognized the right to dignity by recognizing gender identity within the ambit of Article 21.

The case Navtej Singh Johar v. the Union of India deals with the Decriminalization of Section 377 of the Indian Penal Code as the central issue of the case was the constitutional validity of the of Section 377 as it 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.” The petition was filed stating that Section 377 of the Indian penal code is in violation of right to privacy, equality, freedom of expression and protection against discrimination. The petitioner in the present case filed the writ petition to seek the recognition of right to sexuality, right to sexual autonomy and right to choose a sexual partner to be a part of right to which is guaranteed under Art 21 of the Constitution of India. The petitioner in the present case argued that Section 377 was violative of Article 14 as it was vague in the sense that is did not define “ carnal intercourse against the order of nature” and there was no intelligible differentia between natural and unnatural consensual sex. Section 377 was further violative of Article 15 as it discriminates on the basis of the sex of a person’s sexual partner and it was further violative of Article 19 as it denied the right to express one’s sexual identity.

The Hon’ble Supreme court in the present case held that Section 377 should be decriminalized and affirmed that homosexuality is not an aberration but a variation of sexuality. The Court further held that discrimination on the basis of sexual orientation is violative of right to equality and right to privacy as sexual orientation forms an inherent part of self identity and denying the following rights is violative of right to life and fundamental right cannot be denied.

Prohibition against discrimination

Transgender people have suffered from discrimination for ages in the matters of housing, health, education and employment. The discrimination suffered by them emanates from the social stigma and isolation that they suffer from lack of resource which were provided for Transgender people. To safeguard the rights of transgender people and to protect them from the discrimination, The Transgender Person (Protection of Rights) Act, 2019 includes the prohibition against discrimination which most importantly includes important sectors like employment, education and health care sectors.

Education

The education of transgender person is equally important like other male or female gender but the social stigma that transgender person faces breaks their interest and focus towards their learning and they develop a feeling of being avoided, ignored and disgraced and the transgender students are often denied to be admitted in educational institution as the educational institution does not recognize their gender identities. To protect their right, The Transgender Person (Protection of Rights) Act, 2019 provides that the educational institution that are funded or recognized by government shall provide education, recreational facilities and sports for transgender person without discrimination.

Employment 

The transgender persons have suffered workplace discrimination and discrimination in the matters of employment. They suffer discrimination mainly in the form of privacy violation, refusal to hire and harassment which leads to unemployment and poverty. To prevent the discrimination suffered by them the transgender person protection act states that no government or even the private entities can discriminate against transgender person in the matters of employment which includes recruitment and promotions and every establishment should designate a person to be a complaint officer to deal with the complaints in relation to the act.

In the case of Nangai v the Superintendent of Police, the petitioner in the present case had applied for the post of a woman police constable. The Tamil Nadu Uniformed Services Recruitment Board, Chennai conducted the application tests. Petitioner’s application was successful and she received an order of appointment from the Superintendent of Police at Karur district. During the course of her training at the Police Recruit School in Vellore, she underwent a medical examination. The examination declared that she was “transgender” on the basis of chromosomal pattern and genitalia. The result of the medical examination contradicted her birth certificate, medical records, and educational certificates. Later on The Superintendent ordered her termination from the post of woman constable. The Hon’ble High Court upheld that the petitioner has liberty to chose a different gender identity as a third gender in future based on the medical declaration and the impugned order of termination from service issued by the Superintendent of Police, was set aside by the Hon’ble court to protect her right as a transgender person.

Health care

The health care services for the transgender person does only refers to the medical procedure involved in transition but health refers to a overall state of complete physical, mental and social wellbeing. Health care also refers to a range of primary and other health care services which includes employment, housing and public acceptance of the transgender people. As the transgender person have suffered from substantial health disparities and barrier to appropriate health care services for ages had made them to suffer depression, attempted suicide, violence and harassment and even the HIV. To provide them protection and help them to lead a happy life The Transgender Person (Protection of Rights) Act, 2019 states that government should take proper steps to provide health care facilities to transgender person and it should include separate HIV surveillance centers and sex reassignment surgeries and Transgender persons should be provided with a comprehensive medical insurance.

Welfare measures

Transgender persons have been discriminated and neglected by the society for a long time but to bring them back to the mainstream of the society several welfare measures have been taken for the transgender person as in Tamil Nadu there was an instance where land was provided for Aravanis and in Andhra Pradesh, the State government had ordered the Minority Welfare Department to consider “Hijras” as a minority group and to develop welfare schemes for Transgender. The department of social welfare board in Tamil Nadu established ‘Aravanigal/Transgender Women Welfare Board to address the social welfare issues of Transgender person. The transgender person Protection Act, 2019 has provided that relevant government should take measure and ensure full participation of transgender person in society and to formulate certain welfare schemes and measures to protect the right of the transgender person.

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 further deprives them of the Constitutional guarantee of equality before law and equal protection of laws. It has also been noticed that the community also faces discrimination as they are not given the right to contest election, right to vote (Article 326), employment, to get licenses, etc. and in effect, they are treated as outcast and untouchable.

The transgender community faces stigma and discrimination and therefore has fewer opportunities as compared to others. They are hardly educated as they are nor accepted by the society and therefore do not receive proper schooling. Even if they are enrolled in an educational institute, they face harassment and are bullied every day and are asked to leave the school or they drop out on their own. It is because of this that they take up begging and sex work.

Seldom does a skilled individual from this community get into formal employment due to the policy of hiring only from either the male or female gender. Even if they do, they are ridiculed and ostracized and hence forced to leave their jobs.

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. They are viewed as ‘vectors’ of HIV in the society. Other sexually transmitted infections such as rectal gonorrhea, syphilis, rectal Chlamydia, etc., add to the risk of HIV.

Immoral Traffic Prevention Act of 1956 which was amended in 1986 has become a gender neutral legislation. The domain of the Act now applies to both male and female sex workers along with those whose gender identity was indeterminate. With the amendment both the male and hijra sex workers became criminal subjects as this gives the police the legal basis for arrest and intimidation of the transgender sex workers.

Section 377 of IPC criminalizes same sex relations among consenting adults. This is a colonial era law which makes the Transgender community vulnerable to police harassment, extortion and abuse. In Jayalakshmi v. State of Tamil Nadu, Pandian, a transgender, was arrested on charges of theft by the police. He was sexually assaulted in the police station which ultimately led him to immolate himself.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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