Author: Mansi Jain
Sharda University, Uttar Pradesh
"My body does not define me who I am, I am a boy but my body may show different and I know who I am and yes I don’t need anyone to tell me or call me who I am not. All I know is I am a human being first and no matter what, I do love my gender and yes I am proud of that.”
Transgenders had been part of Indian Society for centuries. This type of gender is possibly the most well-known and popular third type of sex in the modern world. Because they are not only accepted by society, but they are also maltreated and oppressed socially. Even the families of transgender people disown them due to the fact that they are not considered normal human beings. They face a lot of criticism, get neglected, and are considered exclusive from society. In addition, India has never recognised the third gender while considering the census data for years. The first time ever to show the spatial distribution of the transgender population, the 2011 Indian Census collected and reckoned the data of transgenders in the category of "Others” under Gender with details related to their employment, caste, and literacy. It revealed the total population of transgender to be around 4.88 lakh and it is quite obvious that this is not the exact estimation, as there are many more transgender people in India who have not disclosed their identity due to social stigmas and fear of discrimination. In order to safeguard the rights of transgender, a bill has been passed in the Indian Parliament in 2019 which later declared an Act. Even the government introduced various policies and schemes, but the new law is inadequate on several fronts.
Transgender is basically those persons whose identities do not pertain to their biological / assigned sex. At the time of their birth, they have different sex but with the passage of time, they start assuming themselves opposite to their sex. They try to choose different aspects while describing their personalities. For example, at the time of birth-assigned male identifies as female, she might describe herself as a 'transwoman' or assigned female at birth who identifies as male is a 'transman'. Transgender after accepting their genuine identity through dress, behaviour, voice, or body characteristics try to convert them either in the form of a cross-dressers or some seek medical treatments such as hormone replacement therapy, sex reassignment surgery or psychotherapy. The reason behind their sex change is to accept their body, feel genuine and comfortable so that they can love their body and can seek respect in society. Most of them earn a living by prostitution or by performing a traditional ceremony or begging at the traffic signals.
HISTORICAL BACKGROUND OF TRANSGENDER
There was historical evidence of recognition of “third gender” or persons not confirmed to be male or female in near the beginning writings of ancient India. The transgender community comprises of Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakti's, etc.One of the forms of Lord Shiva is merged with Parvati known as Ardhanarai, a god that is half Shiva and half Parvati.
The word ‘Eunuch’ has derived from Greek mythology, which means "Keeper of the bed” and they have existed since 9th century BC. Hinduism, Jainism and Buddhism - and it can be inferred that Vedic culture recognized three genders. In Vedic astrology, the nine planets are each assigned to one of the three genders, "tritiyaprakriti” meaning the third gender, is associated with Mercury, Saturn and Ketu. In the Puranic literature, there are also references to three kinds of devas of music and dance: apsaras (female), Gandharvas (male) and kinnars (neuter). The term “napunsaka” meaning someone with the loss of procreative ability and the idea of third gender was established through therein.
The word ‘Hijra' appears to be derived from Persian word "hiz", another commonly used words in Kinnar, chhakka. Emergence related to the existence of transgender even existed in the epics of Ramayana and Mahabharata. In Ramayana, when Lord Rama was banished from the kingdom for 14 years and was leaving for forest, the residents of Ayodhya started following him because of their devotion to him, he asked all the 'men and women’ to return to the city. Since Hijras were also following him, they did not feel bound by his direction and decided to stay with him. As Rama got impressed with their loyalty, he sanctioned them the power to confer blessings on auspicious ceremonies like marriage and childbirth. That is why the "badhai" for Hijras were set in where they come on the inaugural occasions and sing, dance and music.Whereas in Mahabharata, the character of Shikhandi alias Shikhandini also points out the concept of hijras, at the time of birth he was assigned male but later on he changed to female.To ensure the victory of the Pandavas, Aravan (another character) who was a son of Arjuna and Nagakanya offered to sacrifice his life to Goddess Kali. But he had a last wish to spend the last night of his life in marriage. Krishna, who was with Pandava convert the form of a female called Mohini and married him because no woman was ready to marry him just for one night. Then thereafter Aravan sacrificed his life. In Tamil Nadu, Hijras considered Aravan their progenitor and call themselves Aravanis.
The Aravani during the festival reenacts a story of the wedding of Lord Aravan and Lord Krishna, tracked by Aravan's succeeding sacrifices.
During the Mughal rule in Medieval India, transgender received a lot of respect and are considered the person of trust and loyalty. In the Islamic world, they played a famous role in the royal courts, occupied high positions in the Islamic religious institutions and were also able to influence state decisions.
Whereas in the British period, they were denied civil rights especially in the provision of agricultural land through British legislation because the land was not inherited by them from their blood relations.Anti- Hijra laws were abolished, then they were placed under the "Criminal Tribes Act 1871" and labelled a separate caste i.e 'criminal tribe'. This Act was for compulsory registration, strict surveillance of some criminal tribes and eunuchs. Eunuchs were deemed to be a criminal community under this Act and various provisions were forced on them like they cannot go in a public place dressed like women, not even can sing or dance, cannot adopt, no power of will etc. It also included the whole Hijra community who kidnapped and castrated children. The punishment for such activities was up to two years imprisonment and fine or both. This shows the brutality of the British regime towards transgenders. But later on, in 1952( post-independence) this act was repealed after, even after quashing the act transgenders are still not given any respect.
The LGBTIQ group (Lesbian, Gay, Bisexual, Transgender, Inter-sex and Queer), constitute the marginalized section of the society in India and thus face legal, social as well as economic difficulties. Where most of the lesbians and gay people have been accepted in many parts of the world, then why transgenders are still suffering without any protection of their rights.
After a lot of discussion and consideration of all social as well as legal aspects, Indian Courts identified that trans people deserve the government’s recognition on their own without mandatory intervention or discrimination. On 15 April 2014, Supreme Court passed a landmark judgment in the National Legal Service Authority (NALSA) vs UOI which legally recognised persons who fall outside the Male / Female binary, to be a 'third gender'. Under this, it was recognised transgender persons for the first time and discussed their fundamental rights as they are available to male and female under Part 3 of the Indian Constitution. Further, it also declared that Hijras and Eunuchs can also be categorised as third gender.
A. The court noted that Article 14 is framed in gender-neutral terms. Transgender are also citizens of India and they must be provided equal opportunity to grow. Non-recognition of the identity of transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence, sexual assault and discrimination especially in the field of employment, education, healthcare. It is right of transgender people to declare their self-perceived gender identity without undergoing sex reassignment surgery and if anyone is forcing them to do so is highly immoral and illegal.
B. Under Article 15 & 16, no gender-based discrimination is allowed which also includes the ground of Sexual Orientation. It held that one's sexual orientation as an integral part of personality and autonomy. Even they will also be provided with reservations in educational institutions and government jobs because it is considered that they come under the socially and educationally backward classes (OBC).
C. Article 19(1)(a) include expressions to freely express their identity irrespective of the gender.
D. Article 21 The Court interpreted dignity to include the right to choose Gender Identity and integrity which allowed a person to lead a dignified life. The right to Self-identification of gender is a part of the Right to Privacy and autonomy.
Thus, the courts held that transgender persons were entitled to fundamental rights under Article 14,15,16,19(1)(a) & 21 of the Indian Constitution.The case was heard before a two-judge bench of the SC, composed of Justice K.S. RadhaKrishnan and Justice A.K Sikri.
In Para 21 Radhakrishnan stated “Gender identity is one of the most fundamental aspects of life which refers to a person intriguing sense of being male, female or transgender or transsexual person, a person sex is usually assigned at birth but a relatively small group of persons may be born with bodies of which incorporate both or a certain aspect of both male and female physiology. At times genital anatomy problems may arise in certain persons,their inmate perceptions of themselves is not in the conformity with the sex assigned to them at birth”
She also stated that“Recognition of transgenders as a third gender is not a social or medical issue but a human rights issue.”
After the NALSA Judgement, various court passed the favorable orders for the transgender community. In January 2014, while judicial pronouncement in the NALSA petition was still pending, a private member’s bill was introduced in the Rajya Sabha in the same context by Tiruchi Siva. The bill was named “Rights of Transgender Persons Bill, 2014” which thereafter unanimously passed by the Rajya Sabha in 2015. This bill was the first private member's bill to be passed by the Rajya Sabha in thirty-six years. The Government drafted its own version of the bill deleting the provisions and underwent significant changes of the 2014 bill and then passed another of it, which is known as the "Rights of Transgender Persons Bill, 2015". In 2016, where the 2014 bill passed by Rajya Sabha was still pending in Lok Sabha, the government tabled the 2015 bill. After recommendations and discussions from transgender people and Ministry of Law and Justice, the bill was introduced in the Lok Sabha in 2016 known as “The Transgender Persons (Protection of Rights Bill)” 2016, which invited criticism from the transgender and activists because it had various provisions which were reportedly regressive, inferior and more diluted.
The Lok Sabha tabled and passed the bill after a new version with 27 amendments on 17 December 2018. But the bill represents a failure of the government to listen to the voices of transgender and what they wanted despite sustained efforts by their community and allies. The definition of transgender persons in the bill was vague, no specific terms have been described like trans-men, trans-women, gender queers etc. It was uncleared that how such laws would apply to transgender persons who may not have an identity with either of the two genders hence these laws would need amendments. The key demand missing is that of reservation and employment. It lacks surveys, consultations, advice, recommendations from the transgender and standing committees which therefore invited hugs outcry and protests. It was a complete sigh of relief and peace that emanated from the community when the bill lapsed due dissolution of Lok Sabha.
The other final “The Transgender Persons (Protection of Rights) Bill, 2019” was introduced in Lok Sabha on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot. After receiving the assent of the president, it became an Act. Has been in effect since 10 January 2020. The bill seeks to provide a mechanism for social, economic, and educational empowerment of transgenders.
However, it fails to incorporate other principles and provisions lead down in the aforesaid judgement such as right of transgender people to declare their self-perceived gender identity without undergoing sex reassignment theory and reservations in jobs and educational institutions.
Provisions of the Bill:
1. Definition of a transgender person.
The new definition terms “a transgender person as one whose gender does not match the gender assigned to that person at birth”. It includes trans-men and trans-women, persons with intersex variations, genderqueers and persons with socio-cultural identities, such as kinnar and hijra.
2.Prohibition against discrimination
The 2019 Bill prohibits discrimination against a transgender person including denial of service or unfair treatment in relation to:
(i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of goods, facilities, opportunities available to the public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; (vii) opportunity to hold public or private office; and (viii) access to a government or private establishment in whose care or custody a transgender person is.
3. Right of Residence
Every transgender person shall have a right to reside and be included in his household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation centre, on the orders of a competent court. This is the most important provision provided to them because they mostly are thrown out of the family on the ground they are different.
Drawback - The enforcement of a minor's right of residence that compels any trans-person below 18 to cohabit with their natal family, failing which the child will be moved to a rehabilitation home. This outshines delinquent behaviour.
4. Health Care
The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centres and sex reassignment surgeries.
5. Employment and Education
The private or public entity cannot discriminate against a transgender in employment matters including promotion and recruitment. In education matters without discrimination, they should be provided sports and recreational facilities also.
Drawback- Bill does not give them opportunities or reservation in Three sectors i.e education, employment, and healthcare.
6. Certificate of Identity for a transgender person
For a certificate of identity, an application to the District Magistrate to be made by the transgender. A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.
Drawback - The biggest opposition is requisite for a screening committee to certify a person's trans status. Infraction of the historic NALSA Judgement and if they want to get a trans ID, they will have to approach a district Magistrate which can also lead to humiliation and harassment of the community. The surgery clause is arbitrary; it should only be the individual’s choice, not the government’s.
7. Welfare measures by the government
It shall be the duty of the government to ensure the full participation of transgender persons in society like rescue and rehabilitation, vocational trainings, promotion in cultural activities.
8. Offences and penalties
The Bill recognizes the following offences against transgender persons: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) removal from household, and village, (iv) physical, sexual, verbal, emotional or economic abuse.Penalties for these offences vary between six months and two years, and a fine.
Drawback - Bill's punishment clause that enforces a maximum of 2 years imprisonment in case of violence against transgender persons but such acts under IPC punish with a minimum of 7 years of punishment. So, this shows they are discriminated against on the basis of gender.
9. National Council for Transgender Persons (NCT)
The council will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of them.
Drawback - Bill is criminalizing trans people if they undergo begging.
Community activists from the community have alleged that the bill violated their fundamental rights instead of empowering them. They claimed that this does not adhere to the required concerns and very different from the intention stated in its title. They worry the bill has left them exposed at the mercy of law. Most of the transgender people consider the day of the passing of the Act as a "black day” and as "gender justice murder day”.
“Nature made a mistake, which I have corrected.”
Being a transgender is not a mental disorder. It cannot be “cured” with treatment, it is a human feeling character which is in itself unique and there’s nothing wrong in that. The golden thread that runs through the equality scheme of the Indian constitution (Articles 14,15,16, 19 and 21) is ‘enjoyment of life by all citizens and an equal opportunity to grow as human beings irrespective of their race, caste, religion, community, social status and gender.’ Instead of treating them as outsiders or untouchable, they should be treated as persons with a unique feature, everyone in this whole world is unique in their own way. Merely creating a law is not enough and appreciable as the awareness system is still lacking behind. In one stance they are provided with various rights and legal issues whereas at the same time the basic right is also snatched from them.