A STUDY ON THE LEGAL POSITION OF THE TRANSGENDER RIGHTS IN INDIA BY - SANDHYA ANBARASAN

A STUDY ON THE LEGAL POSITION OF THE TRANSGENDER RIGHTS IN INDIA

AUTHORED BY - SANDHYA ANBARASAN

LLM (Corporate Law, 2nd year)

Hindustan School of Law (HITS), Chennai

ABSTRACT

Our Indian Constitution recognizes the right to equality for all citizens which prohibits any sort of discrimination amongst people especially if the discrimination is based on gender. Despite of the fact that our constitution which is the suprema lex or the supreme law of the land which has recognised the concept of gender equality by prohibiting any form of discrimination on the basis of gender, still an essential group of our population known as the Transgender persons have been gravely discriminated because of their choice over their recognition of gender identity. As our country is progressively evolving in all spheres of laws it is of utmost importance that the protection is extended even to the transgender community people. The Supreme Court of India has paved the way for a new dawn of justice for the people of the transgender community by giving them the legal recognition of being the “third gender” in the landmark case of the National Legal Services Authority vs India. This article studies the conditions of the transgenders in India and the legal protection given to them.

Keywords: Indian Constitution, gender equality, discrimination, Suprema Lex, third gender, transgender.

I.INTRODUCTION

The people of the transgender community in India have suffered miserably in various walks of life and till now they are subject to the same differential treatments because of their choices over their gender identity. The people from the transgender community have been unfairly discriminated against as the society has not been able to accept their choice of gender identity. Transgender is a wide term which is used to denote those members whom have gone through changes in their gender identity from the initial sex which was assigned to them at birth. The person goes through a change in recognition of one’s own gender identity and such recognition of the gender identity must be different from what was assigned to them at birth.[1] The person usually are not able to accept the sex which was given to them at birth once they grow, and are unhappy with the physical characteristics of the gender which they already having, at this point of time, they usually go through a phase of gender dysphoria where a certain amount of distress is caused because of the change in their recognition of gender identity from their natal sex which was given to them at birth.[2] People often confuse the two terms gender and the sex in usage however both of the terms have entirely different meanings. The term sex refers to the biological and physical characteristics one possesses at the time of their birth while the term gender refers to the behaviour or attitude on how people identify themselves as and such identification usually deviates from the sex which was given to them at birth. Some may identify themselves within the framework of men or women while some may choose to identify themselves as intersex or not falling within any of the above-mentioned groups.[3] The people whom choose to identify themselves as male or females are often known to adopt the binary identities. While the other group of people whom choose to adopt the identities outside the purview of these two identities are known to adopt the non-binary identities where they may call themselves as gender non-conforming, gender diverse or agender.[4]

Sec.2 (k) of the Transgender Persons (Protection of Rights) Act, 2019 defines the term “transgender as a person whose gender does not match with the gender assigned at birth.”[5]

The society in India is modernising at a rapidly faster pace trying to be at par with the globalisation of cultures yet many people still see transgender as a different group of people and many and fail to accept them as a part of our society and such thinking should be clearly changed as we are coming from that part of society whom are educated and mature enough to understand that it is a natural process for a person to undergo psychological changes regarding one’s own gender identity.

II.DISCRIMINATION AGAINST TRANSGENDER PERSONS IN INDIA

In India, the people belonging from the transgender community are subjected to diverse forms of discrimination in various facets of life. The people from transgender community were discriminated from long before where in the Vedas there was a mention of ‘Napunsaka’ meaning absence of reproductive ability while the Jain scriptures gave them a name of ‘psychological sex’. During the British rule an act was passed known as ‘the Criminals Tribes Act’ in 1871 where the Hijras were considered as inherently criminal whom were prone to committing non-bailable offences but later on such law was repealed however the discrimination against the people belonging to the transgender community still continue to be in practice.[6]

II(A)VARIOUS FORMS OF DISCRIMINATION AGAINST THE TRANSGENDER PERSONS IN INDIA

1.Education Sector:

The children of transgender community are often more vulnerable to all sorts of abuses whether its social abuse from their peer groups, or verbal abuse from their parents, or psychological abuse from the society because of their uniqueness which the society couldn’t accept as one of their own. There still exists a huge load of population whom do not consider the people from transgender community as usual group of people and such thinking needs to be immediately changed as if such thinking persists for a prolonged period of time, it might become lethal for the people from transgender community to coexist with that of the people belonging from the binary identities. As the Indian society refuses to accept the people from the transgender community as one of their own, and at a place where huge amount of social pressure is put upon the children to fulfil their obligations of being only a male or female member for being in a society often causes psychological frustration for the parents when their children get in conflict with their gender identity. As the children are unable to meet with the society’s expectations of conforming only to the category of either males or female’s identities and performing their roles and duties, due to such huge social pressure and prestige, many parents loose interests over looking after the educational interests of their children. As a result, many children whom belong to the transgender community remain illiterate and are forced upon various menial professions the worst of them being the job of begging in the streets. As the cost of education is high in India, and due to such huge competition where the children are not able to complete their schools or graduate with a degree are forced into such low paid professions. And the poverty which is present in India is huge obstacle for survival of the transgenders in this harsh community.

And the people belonging to the transgender community whom are able join and pursue their studies in schools and colleges often go through various forms of bullying at such educational institutions such as social abuse, psychological abuse and verbal abuse is inflicted upon the transgenders.

2.Employment Sector:

Many people belonging from the transgender community are subject to discrimination at the time of recruitment itself, where due to their differential gender identity many of them are rejected for being recruited at good work places even though they hold the requisite educational qualifications that too on merit basis. Some people are recruited into the employment facilities but are subject to discrimination where they are not considered for promotions even though they are entirely eligible for such promotion, or are subject to social bullying at the workplace or at worst case scenario are sexually harassed at the workplace.

3.Access to Health Care System:

Many of the people belonging to the transgender community are subject to cruel discrimination even while accessing the medical facilities in the hospitals and clinics where due to their differential gender identities they are denied medical treatments. Even when the situation was of grave emergency, they were still denied of medical help because of the reason that they belong to the transgender community. And during the time of pandemic such unfair discrimination was practiced. Not only in hospitals and clinics but also in pharmacies various transgenders were denied the access to purchase of medicines. As the people from the transgender community are often not belonging to either of the binary identities of male and female during their medical treatment they are arbitrarily assigned to male or female wards as per the decision of hospital staff not respecting their choice of gender identity for availing the healthcare facilities.

4.Exclusion from Society

The people of the transgender community are perceived as differential people whom are treated with unfair discrimination because of the sole reason of them belonging to the transgender community. The transgender persons are excluded and shunned from the society especially in villages where illiteracy and superstitions functions at its peak. They are denied access to various public facilities and are often treated poorly. Where the society is not able to accept the members from transgender community, even the parents of other children impose restrictions on their own children from mingling and communicating with the children of transgender community thereby isolating them socially.

5.Abandonment by the Family

The Transgender people are usually abandoned by their families because of their failure to meet with the societies expectations in which they live in and because of the failure of the parents to understand the psychological and physiological changes that their own child goes through. They are shunned away by their own families instead of being more protected from this cruel world. The transgender persons suffer through homelessness because their families abandon them and have no one to take care of them.

6.Victims of hate-crime

The people of the transgender community are not accepted by many people from the society whom are reluctant to leave their narrow mindedness and are stubborn in accepting these people as one of their own communities. And because of this inability to accept the transgender, many often end up doing violence and performing hate-crimes against the transgender persons such as brutal murders, giving hate speech and inciting violence against them or forcing them to commit suicides at worst.

III.GLOBAL PROTECTION OF RIGHTS OF THE TRANSGENDER PERSONS

In the United Nations Declaration on Human, 1948, Article 1 provides that all people are born free with equal rights and dignity while Article 3 provides that every person has right to life, liberty and security of person. The International Covenant on Civil and Political Rights, 1966 also provides that all humans have inherent right to life protected by law where one cannot be arbitrarily deprived of his right to life. The United Nations Convention against Torture and Other cruel Inhuman degrading Treatment or Punishment of 2008, Paragraph 21 provides that the states have the duty to protect the people from ill-treatment or torture of all persons irrespective of their transgender identity or the sexual orientation.[7]

The Yogyakarta Principles on the application of Human Rights in law in relation to Sexual Orientation and Fender Identity lays down the standards for human rights and their uses in problems of gender identities and sexual orientation.

IV.LEGAL PROTECTION OF RIGHTS OF TRANSGENDER PERSONS IN INDIA

A. Constitution of India and Transgender Rights:

1.Article 14: Equality before law- Everyone has the right to be treated equally before the law and receive equal protection of law irrespective of their sexual orientation and gender identity.

2.Article15: Prohibition against discrimination on basis of sex- The word sex doesnt only include biological sex assigned but also includes the gender. It implies that no person shall be discriminated on the basis of gender identity or sexual orientation and neither should be restricted in access to places and public facilities maintained out of the state funds.

3.Article 16 clearly means that no person can be discriminated on the basis of their sexual orientation or gender identity for availing employment opportunities provided by the state.

4.Article19(1)(a) means that every person has a right to freedom of speech and expression which includes right to decide on what to wear and how to behave irrespective of their sexual orientation or gender identities or the sexual identity assigned to them at the birth.

5.Article 21 also means that right to choose ones gender identity is a part of right to live with dignity as well as right to life and also they recognise the right to privacy.

6.Article 51 of our Directive Principles of State policy provides for respecting the international law and treaty obligations.

7.Article 253: gives power for the parliament to make law for whole territory of India for purpose of implementation of agreement convention and treaties.[8]

In Francis Coralie Mullin V Administrator, UT of Delhi [9] it was held that right to life includes right to live with dignity which ensures the full development and evolution of people and recognises the right to express oneself in diverse forms.[10]

In the case of Anuj Garg V Hotel Association of India[11], the court held that Article 21 of Constitution guarantees the personal autonomy of an individual which includes both negative right of not being interfered by the others and the positive right of being able to choose one’s own gender identity.[12]

In the landmark judgement of National Legal Services Authority V Union of India[13], the supreme court recognised apart from the binary identities there existed a category of third gender or transgender persons. The court also held that all persons have right to self-identify their gender forms parts of right to live with dignity under right to life of Article 21 of our constitution. And further held that no third gender persons should be made to take biological tests and medical examination which invades their right to privacy under Article 21 of constitution.[14]

B.THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019[15]

This Act was passed to Protection of Rights of Transgender Persons and for their welfare in India. Various rights ensured for the transgender persons includes;

1.Protection against Discrimination in educational institutions, employments, healthcare services, or in access to and use of public facilities, or in right to movement, or right to reside, purchase, rent, or occupy any property, or in opportunities of holding public or private office, or unfair treatment in public or private establishments.

2.Welfare Measures to be taken by Appropriate government in taking welfare measures for protecting rights and interests of transgender persons, formulating welfare schemes and facilitating access of transgender persons into the schemes, taking steps for protection, rescue and rehabilitation of transgender persons and promoting the participation of the transgender persons in recreational and cultural events.

3. Establishment of the National Council for Transgender Persons which has the main function of advising the Central Government on formulation of policies, monitoring the impact of policies, reviewing and coordinating acts of various departments of government and Non-government Organisation and to redress the grievances of transgender persons.

B(A). DRAWBACKS IN THE TRANSGENDER PERSONS 2019 ACT:

1.The Sec.5 of the 2019 mandates every transgender person to make an application to the District Magisterate for issuance of certificate of identity as a transgender person together with prescribed documents. Such power of certification is entirely vested in the hands of the state.

2. At Sec.7 of the 2019 Act, the act again prescribes for the transgender persons to apply again in case of changing their gender after the issuance of the initial certificate to the District Magisterate with the evidence of the person undergoing medical intervention or surgery by a Chief Medical Officer or Medical Superintendent of the institution of undergoing surgery where the District Magisterate reaffirms and gives a revised certificate. Such act clearly involves unnecessary medical intervention which clearly forces the transgender persons to undergo medical intervention for being identified as male or female binary identities which clearly goes against the very foundation of the recognition of non-binary persons. And further such mandate of medical intervention expressly excludes the possibility of being recognised as transgender person with non-intervention of medical methods. [16]

C.The Transgender Persons (Protection of Rights) Rules, 2020 was enacted with the aim of reducing the drawbacks in the 2019 Act. One significant change can be seen in the inclusion of report of psychologist to be attached with the application to the District Magisterate being sufficient without any Medical Intervention. However, most of the rules have failed to address the issues of the 2019 Act. [17]

V. CONCLUSION

The Transgender persons are one of the vulnerable people who need more legal protection. The current legal protection extended by the acts and rules have been insufficient and have failed to redress the problems of the transgender persons in our country. Even till now the people from transgender community suffer from discrimination and humiliation of all sorts. There exists an urgent need to bring in legislation which can address all the problems of transgender persons and resolve their issues.

VI. BIBLIOGRAPHY:

1. https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression

2. https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria

3.https://www.medicalnewstoday.com/articles/232363#:~:text=Sex%20and%20gender%20are%20not,with%20no%20gender%20at%20all

4.https://www.nhs.uk/conditions/gender-dysphoria/#:~:text=Gender%20dysphoria%20is%20a%20term,harmful%20impact%20on%20daily%20life.

5. https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

6. https://unacademy.com/content/upsc/study-material/indian-society/transgenders-in-india/#:~:text=Transgenders%20face%20a%20lot%20of,equal%20rights%20as%20other%20genders

7.https://indiankanoon.org/doc/193543132/

8. https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

9. Francis Coralie Mullin V Administrator, UT of Delhi (1981) 1 SCC 608

10. https://indiankanoon.org/doc/193543132/

11. Anuj Garg V Hotel Association of India (2008) 3 SCC 1

12. https://indiankanoon.org/doc/193543132/

13. National Legal Services Authority V Union of India (2014) 5 SCC

14. https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/

15. https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

16. https://ohrh.law.ox.ac.uk/transgender-persons-rules-2020-a-halfhearted-attempt-at-redemption/

17.https://thc.nic.in/Central%20Governmental%20Rules/Transgender%20Persons%20(Protection%20of%20Rights)%20Rules,%202020.pdf

[1] https://www.apa.org/topics/lgbtq/transgender-people-gender-identity-gender-expression

[2] https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria

[3]https://www.medicalnewstoday.com/articles/232363#:~:text=Sex%20and%20gender%20are%20not,with%20no%20gender%20at%20all

[4] https://www.nhs.uk/conditions/gender-dysphoria/#:~:text=Gender%20dysphoria%20is%20a%20term,harmful%20impact%20on%20daily%20life.

[5] https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

[6] https://unacademy.com/content/upsc/study-material/indian-society/transgenders-in-india/#:~:text=Transgenders%20face%20a%20lot%20of,equal%20rights%20as%20other%20genders.

[7] https://indiankanoon.org/doc/193543132/

[8] https://www.indiacode.nic.in/bitstream/123456789/15240/1/constitution_of_india.pdf

[9] (1981) 1 SCC 608 (Para 7 and 8)

[10] https://indiankanoon.org/doc/193543132/

[11] (2008) 3 SCC 1 (Para 34-35)

[12] https://indiankanoon.org/doc/193543132/

[13] (2014) 5 SCC 438

[14] https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/

[15] https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf

[16] https://ohrh.law.ox.ac.uk/transgender-persons-rules-2020-a-halfhearted-attempt-at-redemption/

[17]https://thc.nic.in/Central%20Governmental%20Rules/Transgender%20Persons%20(Protection%20of%20Rights)%20Rules,%202020.pdf