Transgender: Society’s apathy and System’s response: Amit Kumar & Kashish Sahni

Transgender: Society’s apathy and System’s response

Author: Amit Kumar

LLM, Department of Law,  Kurukshetra University, Kurukshetra

Co-Author: Kashish Sahni

   B.A. LL.B. (Final Year), Institute of Law, Kurukshetra University, Kurukshetra

ISSN: 2582-3655 

Transgender : Society’s apathy and System’s response

To those who are gay, lesbian, bisexual, or transgender-let me say- you are not alone. You’re struggle, for the end to violence and discrimination, is a shared struggle.”- Ban-ki-moon, former Secretary-general of the United Nations.

Abstract

There is no doubt in the fact that transgender is a significant part of our society and deserve the same rights as any other person. However, the transgender community faces a lot of harassment, torture and discrimination by the same society they are a part of. And reading about the crimes against transgender still leaves me numb. In spite of all the legal and constitutional provisions, they have been fighting for their self-identity and rights for a long time and at this juncture, both humanity and our constitution demands that they should be treated at par with other individuals. The research paper attempts to establish the degradation of their position from ancient to contemporary times without any substantial reason. It is very disheartening to know about their struggles and the hurdles they face in every walk of life. But, at the same time, it’s a sigh of relief to know that the world has slowly but finally realized transgender’s problem and are working to resolve them.

The researcher hereby discusses transgender, the problems faced by them, constitutional and legal provisions that safeguard their rights and judicial decisions that paved the way towards the realization of their rights. Besides, the researcher has also put forward some suggestions that may prove helpful in raising the social status of the transgender community.

“It’s high time that we let the transgender be themselves but certainly not alone. Men, women or transgender; they are human first and therefore our humanity should stand first”.

Introduction

“Seldom, our society realizes or cares to realize the trauma, agony, and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex.”[1]

Article 14 of the Indian Constitution guarantees the right to equality and equal protection of law to every individual[2]. The word “person” is a comprehensive term that includes within its ambit- citizens as well as non-citizens whether they are male, female, or “transgender”. Article 15, on the other hand, prohibits discrimination on the grounds of race, religion, “sex”, caste, creed, etc.[3] Here, the term sex includes gender-based discrimination (irrespective of whether a person is male, female, or “doesn’t want to identify with either”) as well as sexual orientation.

“The third genders”, popularly known as transgender have subsisted in our society since the genesis of humans. They are an important part of our society and are entitled to the same rights and protection as any other citizen.

Constitutional provisions guarantee equality and protection to every person and it isn’t dependent on any other external factor. But is equality a reality or are we still far from this achievement?

In this research paper, we shall discuss transgender, their problems, international scenario and constitutional and legal provisions that protect their rights.

Who are Transgender?

Transgender are individuals whose gender aspect, behavior, manner, and other characteristics do not conform to our societal conceptions of “man and woman”. In our country, “Transgender” is a blanket term that includes Hijras, Kothis, Eunuchs, Shiv-Shaktis, Jogappas, etc. The term also includes within its ambit- trans-sexuals, transgender male, transgender female, male-to-female and female-to-male. Besides, it also includes cross-dresses, and individuals who identify themselves with either gender or with none.

Thus, transgender is individuals whose gender identity is distinct from common man and woman. They basically do not consider themselves as either male or female.

Historical background

Transgender has been an intrinsic part of our Indian society for centuries. There exists much historical evidence in writing regarding the recognition of a person not being either “men or women”. In Ancient Hindu mythology, epics like Ramayana and Mahabharata and various Puranas evidently talks about the concept of “tritiya prakriti” or “napumsaka”. The term “napumsaka” in Hindi precisely translates ‘to the absence of procreating ability’.

In Ramayana, when Lord Rama was leaving for the forest upon being banished from the kingdom for 14 years, he realized that his devotees were following him, so he turned to them and asked all the ‘men and women’ to return to the city. However, among his followers, the hijras (transgender) didn’t feel bound by his directions and decided to stay with him. Impressed with their loyalty and devotion, Lord Rama gave them the boon to confer blessings on people on auspicious occasions like the birth of a child, marriage, etc.

The epic “Mahabharata” also includes a related incident where “Aravan”, Arjuna and Nagakanya’s son, offered to sacrifice himself to Goddess Kali to secure his father’s victory in the Kurukshetra war but with the condition that he gets to marry before being sacrificed. No woman wanted to marry him at the cost of becoming a widow the next day. Then, Lord Krishna assumed the role of a woman named “Mohini” and married him. The Transgender Community of Tamil Nadu considered him their progenitor and call themselves the “Aravanis”.

During Medieval Times

Transgender played an important role in the royal courts of Mughals and other Sultanates during the medieval period too. They held positions of counselor, ministers, military generals as well as protectors of the harems. They were considered extremely sufficient, trustworthy and fiercely loyal, thereby played an important role in the politics of the Mughals too. Historically, it has been seen that they occupied important positions in Holy Islamic institutions as well, for example guarding Mecca and Madina. Being the person of trust they had a large influence in decision making and had become power centers.

During British Period

With the advent of colonial power and the enactment of colonial laws various benefits were provided to the transgender by some Indian provinces through entry into the transgender community, such as the provision of land, right of food, a smaller amount of money from agrarian households in the exact area was taken away because the inheritance was outside blood relations. This weakened them economically and resulted in a loss of their social security.

Criminalization of Transgender during Colonial Period

Since the advent of Colonial powers, there has been a noticeable decline in the social status of transgender. The Britishers’ policy started to shift towards criminalizing their acts and denied them basic human rights too.

They enacted The Criminal Tribes Act, 1871. Part II of the act dealt with Eunuchs and classified them as a “Criminal Tribe”. This classification subjected them to strict scrutiny, compulsory registration and stigmatizing[4]. Section 26 further provided that Eunuchs who appear in public, dressed as women, or who dance in public and are available for hire were to be imprisoned for up to 2 years.

This kind of differential treatment towards transgender laid the foundation of their vulnerable condition in contemporary times.

Criminalization of Transgender: Post- Colonial Period

In 1952, although the act of 1871 was repealed its essence can still be felt in the local laws where differential treatment towards certain tribes including the transgender was apparent. One such example is, “Karnataka Police Act, 1963” which was amended in 2012. The amendment inserted a new section (section 36A) which provides for the registration and surveillance of Hijras who were involved in the kidnapping of children, unnatural offenses and offences of that nature. This section was in consonance with the Criminal Tribes Act,1871, violating the right to privacy of an individual.

Problems faced by Transgender

Every human being is entitled to certain basic and fundamental rights, such as education, health facilities, employment, privacy, etc. However, in spite of all the constitutional and other legal provisions that “prima facie” seeks to ensure equality in treatment, dignity and protection to transgender; there still remains a huge gap between theory and practicality.

They face a handful of problems and hurdles at every step. To enlist a few, they are deprived of educational measures which are the means to social upliftment. And if they step forward to access the measures, they end up becoming an object of mockery for the society.

There is a huge lack of employment opportunities for them. There are very rare chances of them being employed in any skilled or formal employment. Lack of employment opportunities pushes them towards begging, stealing, dancing on the streets and often prostitution too. Further, they are deprived of health facilities which makes them more prone to sexual as well as other diseases.

They face discrimination on every other ground and most importantly they lack social recognition. They are refrained from taking part in social and cultural events of the society. Over the period of time, the societies of transgender have segregated from ours. Forget about society for once, their own families refrain from accepting them.

Crimes against Transgender- This indeed deserves a separate heading. A study once revealed that transgender is subjected to forced sex, physical and mental abuse, murders, and harassment. They are a marginalized section of our society and hence, are neglected sections too. More often, they fall prey to human trafficking as well. There have been cases where the “law protectors (the police)” themselves are said to abuse them.

“Jayalakshmi Vs. State of Tamil Nadu”[5]. It was just another case where a  transgender was subjected to harassment, torture and abuse. Pandian, a transgender was charged for theft. Instead of interrogating her, the police assaulted her physically and sexually for over a month which forced her to commit suicide. This case holds importance as the court recognized the gender identity and privacy of Pandian and held the police officers guilty.

Constitutional Provisions and Human Rights

The Protection of Human Rights Act, 1993 defines, Human rights as “rights relating to life, liberty, equality, and dignity of the individuals guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India”[6]. These rights aren’t provided to humans. These are natural rights and are inherent in humans from their birth itself. In India, these rights are embodied in Part III of the constitution (article 12-35). These basic fundamental rights are available to every person irrespective of any other consideration, whatsoever.

  1. Right to Equality- Article 14 of the Indian Constitution prohibits the state from denying “any person” equality before the law or equal protection of laws.[7] The word “any person” used in Article 14 isn’t restricted to male or female. Transgender are included within its scope and thus are entitled to equality in treatment.
  • Prohibition of Discrimination- Article 15 of the Indian Consitution prohibits discrimination of citizens on the grounds of race, religion, caste, “sex” and creed[8] with regards to use of public places. Article 16 provides for equality of opportunity in matters of employment[9] on the grounds enumerated above. The word “sex” used in article 15 and 16 isn’t limited to defined class of men and women. It seeks to prohibit discrimination of a person irrespective whether he belongs to typical binary gender. Thus, the word “sex” denotes male, female and transgender.
  • Right to freedom- Article 19(1) of the Indian Constitution provides various fundamental freedom to its citizens, and freedom of speech and expression is one among them[10]. The term “expression” includes one’s right to express gender identity which may be through dress, style, pattern or behaviour. Thus, transgender are entitled to such expression as the term “citizen” used is gender neutral.
  • Right to life and liberty- Article 21 of the Indian Constitution guarantees right to life and liberty to every person[11]. Article 21 includes within its realm, right to dignity, right to health care facilities, right to privacy, social recognition, right to choose one’s sexual orientation, and the list goes on. Article 21 is available to every person (male, female and transgender). Thus, transgender possess the right to privacy which includes their sexual orientation as well. Most importantly, article 21 guarantees transgender the right of gender identity which secures them their right of dignity and self-determination.

Role of Judiciary

Judiciary is known as the upholder and protector of people’s rights. Various decisions have been delivered by the courts that pave the way towards protection of transgenders’ rights. The most comprehensive among all is, “National Legal Services Authority V. Union Of India”[12]. The supreme court laid down the underneath principles-

  1. Recognizing the fact that gender identity is the most basic and fundamental aspect of one’s life, the apex court categorized transgender as the “third gender”. This step will surely provide “transgender” with a sense of recognition.
  2. The apex court held that determination of gender identity to which the person belongs should be decided only by that person. Further, it was reiterated that “psychological test” should be preferred over “biological test” to determine gender identity and sexual preferences.
  3. Article 14, 15, 16, and 21 of the Indian Constitution ensures certain basic and fundamental rights to every human being. These rights are available to them by virtue of them being “human” and aren’t affected by any other consideration. 
  4. The apex court also directed the government to treat “transgender” as a socially and educationally backward section of our community and to provide all means of reservations in educational institutions as well as employment opportunities.
  5. The court also asked the government to provide sufficient medical facilities to them and to make separate public toilets for them.
  6. Another direction was issued by the court to create awareness among them about their rights and take measures to help them gain social recognition.

Though quite late, this was a very comprehensive and progressive judgment in present times delivered with the sole purpose of protecting the rights of “transgender” (a marginalized but an equal community).

In the recent case of “Veera Yadav V. Chief Secy., Government of Bihar”, the division bench of Patna high court held that no person of the transgender community shall be deprived of ration only because the person belongs to that community and that possession of ration card isn’t sine qua non for availing ration under the said scheme[13].

International Law and Transgender

The United Nations, since its very inception has been a leading force in advocating the protection and upliftment of the sexual as well as other minorities which includes transgender persons as well. Article 6 of Universal Declaration of Human Rights, 1948 (also known as Bill of International Human Rights) and Article 16 of International Covenant on Civil and Political Rights, 1966 (ICCPR) comprehensively states that “every ‘individual’ possesses an inherent right to live and that this right ought to be safeguarded. It also states that no person shall be arbitrarily denied his/her right[14]”. ICCPR, further provides that ‘no person’ shall be subjected to arbitrary or unlawful interference with his privacy, family, home, nor any attack on his honour and reputation and that every human has the right to be protected by law against such intrusion[15]. It is very pertinent to mention here that the words “individual” and “person” used in these international covenants and charter are general neutral and thus, include male, female, and transgender within its scope.

Legislations in Other Countries on Transgender

In the United Kingdom, The Equality Act, 2010 was enacted which consolidated, repealed and replaced various anti-discrimination legislations. The said act obligates public authorities to eliminate all kinds of discrimination and harassment. The act enlists certain characteristics to be known as “protected characteristics” and states that no individual shall be discriminated against or harassed on account of the possession of such characteristics. Gender Reassignment has been recognized as one of the “protection characteristics” by virtue of which transgenders who are willing to undergo, are undergoing, or have undergone the process of reassignment shall receive protection under the act.

South Africa enacted the “Alteration of Sex Description and Sex Status Act, 2003”, which allows and recognizes the transgender persons’ right to undergo reassignment. However, there is one limitation of this act. It does not provide for an inclusive definition of transgender persons.

The Australian parliament enacted The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act, 2013 (which amended the Sex Discrimination Act, 1984). The act purposes to define gender identity on the basis of individual appearance, mannerisms, and other gender-related characteristics of a person without regard to the person’s sex determined at birth.

In Germany, a new law was enacted in 2013, which recognizes the indeterminate sex as it allows the babies born with intersex variation to be put on the birth register without any specific male or female classification.

Argentina also enacted a law on the subject of ‘gender identity’ in 2012. This act purported to respect and recognize the individuals’ rights to self-perceived identity and the free development of an individual according to that perceived identity itself.

Remarkable Judgments by Foreign Courts

  1. Sunil Babu Pant & Ors. Vs. Nepal Government[16]– In this case, the supreme court of Nepal recognized the rights of “third gender” and remarked that they are also human beings like us and thus, cannot be discriminated against and that their rights deserve to be protected like any other citizen.
  • Dr. Mohammad Aslam Khaki & Anr. Vs. Senior Superintendent of Police, Rawalpindi and ors.[17]– The supreme court of Pakistan observed in this case that eunuchs are very much citizens of our country and are entitled to all rights such as right to life, dignity, etc. and that discrimination should be levelled against them.
  • City of Chicago Vs. Wilson et. el[18]– The supreme court of Illinois held that the state cannot regulate or control one’s personal appearance or dressing as it is inconsistent with the right of privacy, self-identity which are protected by the constitution of the country. This judgment was is reference with the state law that prohibited cross-dressing.

This is indeed celebrating that the world as a whole has begun to realize the problems of the transgender community and are taking steps to resolve them. It is great that transgender is now recognized as the “third gender” throughout the world. This may help to reduce their suffering and pain.

The Transgender Persons (Protection of Rights) Act, 2019

The 2011 census revealed that 0.04% of the population consists of transgenders. However small their population may be, their rights need to be protected as well as respected and considering their present vulnerable conditions, this act was introduced in the lower house with the objective to provide for the protection of the rights of transgender and their welfare. It was passed by Lok Sabha and Rajya Sabha and received the president’s assent on 5th December 2019. It came into effect on 10th January 2020 and extends to the whole of India.

Let’s proceed to discuss some key provisions of this act.

Key Provisions of the act

  1. Definition of “transgender person”- The act provides for the definition of transgender person. It defines transgender as “a particular individual whose gender does not match to the gender that was assigned at birth. It also includes within its scope trans-men and trans-women (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy), persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar, hijra, aravani and jogata”[19].
  • Prohibition against Discrimination- The act specifically prohibits discrimination of transgender persons in educational institutions, employment opportunities and heath-care facilities. The act also prohibits any unfair treatment with regards to their opportunity to hold any public or private office, right of residence, right of movement, right of enjoyment of goods and other facilities[20].
  • Right of recognition- Self-identity is the core of one’s dignity. Keeping this aspect in mind, the act provides of transgender’s right of recognition as his self-determined gender identity. The act also provides for “Certificate of Identity” to be issued by the District Magistrate on an application being made by the person concerned. The act also contains the provision regarding issuance of revised certificate by the District Magistrate if the person has undergone a surgery to change the gender either as ‘male’ or ‘female’[21].
  • Welfare Provisions- Chapter IV of the act contains the Welfare measures to be adopted by the government for the good of the transgender community. The act obligates the government to take the necessary steps to ensure their full participation in the society. The government shall formulate effective welfare schemes to protect and preserve their rights and ensure that the schemes are accessible to them. The act also obligates the government to take adequate steps to rehabilitate and protect transgenders[22].
  • Right of Residence- The act prohibits the immediate partition of the child from his parents or family merely on the ground of being a transgender. However, this provision is subject to the order of the court keeping welfare of the child of paramount importance[23].
  • National Council for Transgender Persons- The act provides for the establishment of “National Council for Transgender Persons” to advise the central government on the formulation of various schmens with respect to transgender persons and to redress the grievances of such persons[24].
  • Offences and Penalties- The act recognizes various offences such as, forced or bonded labour, physical, sexual or emotional abuse, forceful removal from house or village, and denial to use public places and provides penalties for such offences[25].
  • Miscellaneous- The act provides that educational institutions that are either funded or recognized by the government shall provide inclusive education and other opportunities such as sports, recreation to transgender students without discrimination of any sort[26]. The act also provides that the government should take adequate steps to provide sufficient medical care facility including sex reassignment and hormonal therapy[27].

Loopholes in the act

  1. No provision regarding reservationThe act is silent with regards to the reservation that needs to be provided to this socially and educationally backward community to help them raise their social status.
  • The act does not provide any provision regarding marriage, succession, or adoption by transgender person.
  • Certificate of Identity- The act provides that transgender can obtain a certificate of identity by making an application to the District magistrate. However, we personally find this provision very discriminatory in the sense as no other person is required to obtain a certificate to establish his/her identity.
  • Meagre punishments- The act provides for very meagre punishment ranging between six months to two years for the offences.
  • Weak enforcement machinery- No doubt, the act contain measures for the welfare of the transgender community but it does not contain provisions regarding the implementation of the act and without effective enforcement the act is nothing but a waste.

Suggestions

The constitutional provisions and present legislative provisions aren’t enough to secure protection to transgender rights. There is an urgent need to take some steps to ensure the protection of transgender rights. It is high time that we realize that though they are a marginalized and backward community but are very much equal and important. We would like to put forward some suggestions to raise the social status of transgender community.

  1. The Transgender Persons (Protection of Rights) Act, 2019 should be amended to contain requisite provisions for providing reservations to them in educational institutions and employment opportunities.
  • The prescribed punishment for the offences in the act are very meagre. They should be enhanced and be made stringent so as to ensure strict compliance by every person.
  • The law enforcement machinery should be stringent enough to secure compliance with the laws. There should be a proper set-up at district, state and national levels to address the grievances of transgender persons and for carrying out other objectives of the act.
  • The act should also contain the provisions related to marriage and adoption by transgender persons. Besides, provisions related to succession of property should also be included in this act.
  • Sex-education should be made a part of school and college curriculum. This would help the raise awareness among students and to sensitize towards the needs of transgender community.
  • Financial assistance should be provided to transgender to help them avoid any kind of economical abuse. Vocational training should also be provided to them.
  • Effectives schemes must be chalked out to ensure full and effective participation and inclusion of transgenders in the society.
  • Awareness and literacy programmes must be carried out regularly to educate the society about the rights of transgender persons and that they are very much a part of our society.

Conclusion

Transgender, as discussed earlier are individuals who do not identify themselves as either male or female. This biological difference, because of no fault of theirs, segregates them from our society. I feel ashamed of recognizing the fact that even in the 21st century, our society needs to accept transgender a part of their own. They have already faced discrimination at the hands of our society for a long time. Protecting their rights, at any cost, is indeed the need of the hour. Recognizing them as the ‘third gender’ and protecting their constitutional rights will uphold the ‘rule of law’ as well as pave the way towards the advancement of justice.

“They are normal and are a part of our own society. Let’s not make them different anymore”[28]. With a little hope in our hearts, let’s make this world a better place to live for them too.


[1] National Legal Services Authority Vs. Union of India, W.P.(Civil) No. 400 of 2012

[2] Article 14, The Constitution of India, 1950

[3] Article 15, The Constitution of India, 1950

[4] Section 24, The Criminal Tribes Act, 1871

[5] (2007)4 MLJ 849

[6] Section 2(d), The Protection Of Human Rights Acts, 1993

[7] Article 14, The Constitution of India, 1950

[8] Article 15, The Constitution of India, 1950

[9] Article 16, The Constitution of India, 1950

[10] Article 19, The Constitution of India, 1950

[11] Article 21, The Constitution of India, 1950

[12] W.P.(Civil) No. 400 of 2012

[13] Civil Writ Jurisdiction No. 5627 of 2020

[14] Article 6, Universal Declaration of Human Rights, 1948; Article 16, International Covenant of Civil and Political Rights, 1966

[15] Article 17, International Covenant on Civil and Political Rights, 1966

[16] Writ Petition No. 917 of 2007

[17] Constitution Petition No. 43 of 2009

[18] 75 III.2d 525 (1978)

[19] Section 2(k), The Transgender Persons (Protection of Rights) Act, 2019

[20] Section 3, The Transgender Persons (Protection of Rights) Act, 2019

[21] Section 4,5,6 & 7, The Transgender Persons (Protection of Rights) Act, 2019

[22] Section 8, The Transgender Persons (Protection of Rights) Act, 2019

[23] Section 12, The Transgender Persons (Protection of Rights) Act, 2019

[24] Section 16,17, The Transgender Persons (Protection of Rights) Act, 2019

[25] Section 18, The Transgender Persons (Protection of Rights) Act, 2019

[26] Section 13, The Transgender Persons (Protection of Rights) Act, 2019

[27] Section 15, The Transgender Persons (Protection of Rights) Act, 2019

[28] Quoted by Laxmi Narayan Tripathi

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