This article is written by Saumya Agarwal, from Amity Law School, Delhi, and Gourvika, from National University of Study and Research in Law.

Introduction

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 person

Transgender person are considered as people whose gender identity is different from the gender they were thought to be at birth. Transgender person means “a person whose gender does not matches with the gender that was assigned to them at their birth but they are the persons with intersex variation and genderqueer”. They are the people who are born with male or female anatomies but they feel different from their body structure as their gender expression, identity or behavior differs from their birth sex. Transgender people try to express their gender identity in many ways as some use their behavior, dress or mannerism to live like the gender they feel is right for them as they reject the traditional understanding of gender that is just divided between male and female so they identify themselves as transgender or genderqueer.

Misconception about the term ‘transgender’

Transgender is not a term limited to persons whose genitals are intermixed but it is a blanket term of people whose gender expression, identity or behavior differs from the norms expected from their birth sex. Various transgender identities fall under this category including transgender male, transgender female, male-to-female (MTF) and female to male(FTM). It also includes cross-dressers (those who wear clothes of the other), gender queer people (they feel they belonged to either both genders or neither gender) and transsexuals.

In India, there are a wide range of transgender related identities which includes the Hijras, Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis. In the past, they were treated with great respect.

‘Hijra’ is a Persian word translated as eunuch which is used in common parlance for transgender community in India.

‘Aravani’ is a term used for male-to-female transgender who undergo genital modification through SRS (Sex Reassignment Surgery) or perform Nirwaan which is a traditional mode of castration.

Kothi is used for those who adopt a feminine role in same sex relationships, but do not live in communes as Aravanis.

Jogtas/ Jogappas found in Maharashtra and Karnataka are male to female transgender who devote themselves to the service of a particular god.

Shiv Shakthis found in Andhra Pradesh are males who are considered married to gods particularly Lord Shiva. They usually work as spiritual healers or astrologers.

Transgender rights in India

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.

Recognition as third gender

Transgender are the person who have suffered discrimination for ages as earlier their gender identity was not recognized either in eyes of law or by the society and they were forced to write male or female against their gender. The Supreme Court of India recognized transgender as the third gender to eradicate the discrimination suffered by them and to safeguard their rights. The court asked the center to treat the transgender as socially and economically backward classes and to allow them to get admission in the educational institution and employment on the basis of their third gender category. In the landmark Judgment of National Legal Service Authority v Union of India the third gender gained legal recognition in the eyes of law as the Hon’ble Supreme Court ruled that the fundamental rights should be available to the third gender in the same way as they were provided to the male and females. The court provides the transgender with equal rights and protection under the Article 14, 15, 16 and 21. The court stressed out on the importance of right to dignity and gave due recognition to their gender identity which was based upon reassigned sex after undergoing Sex Reassignment Surgery as the person has a constitutional right to get recognized as a male or female. Thus the transgender where entitled to legal protection of law in all the spheres of state activity including the education and employment.

The rule of law is supreme and everyone is equal in the eyes of law in India. Yet, the transgender community is in a constant battle as they have to fight oppression, abuse and discrimination from every part of the society, whether it’s their own family and friends or society at large. The life of transgender people is a daily battle as there is no acceptance anywhere and they are ostracized from the society and also ridiculed.

However, the Supreme Court of India in its pioneering judgment by the division bench of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v. Union of India & Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)] recognized the third gender along with the male and female. By recognizing diverse gender identities, the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is recognized by the society.

“Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing down the ruling.

The right of equality before law and equal protection of law is guaranteed under Article 14 and 21 of the Constitution. The right to chose one’s gender identity is an essential part to lead a life with dignity which again falls under the ambit of Article 21. Determining the right to personal freedom and self determination, the Court observed that “the gender to which a person belongs is to be determined by the person concerned.” The Court has given the people of India the right to gender identity.

Further, they cannot be discriminated against on the ground of gender as it is violative of Articles 14, 15, 16 and 21.

The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held that “no restriction can be placed on one’s personal appearance or choice of dressing subject to the restrictions contained in article 19(2) of the Constitution”.

The Court recognized the right to as to how a person choose to behave in private, personhood and the free thought process of the human being, which are necessary for the fullest development of the personality of the individual. The Court further noted that a person will not realize his dignity if he is forced to mature in a gender to which he does not belong to or he cannot relate to which will again hinder in his development.

The Supreme Court has given certain directions for the protection of the rights of the transgender persons by including of a third category in documents like the election card, passport, driving license and ration card, and for admission in educational institutions, hospitals, amongst others.

Human rights are basic rights and freedoms which are guaranteed to a human by virtue of him being a human which can neither be created nor can be abrogated by any government. It includes the right to life, liberty, equality, dignity and freedom of thought and expression.

The Supreme court in National Legal Service Authority v the Union of India was concerned with the grievances and suffering of the Transgender Community as they seek a legal declaration of their gender identity rather than the identity of male/ female that was assigned to them at the time of their birth and their prayer was that non- recognition of their gender identity is violation of Article 14 and 21 of the Indian constitution. 

The Hon’ble court interpreted the meaning of Article 14 and held that the article provides protection to ‘any person,’ and “person” here includes the transgender person as well and hence, they are all entitled to legal protection of law in all the spheres of state activity like any other citizen of this country. The court also held that Article 15 and 16 is not just limited to biological sex of male or female but it intended to include those people too who consider themselves to be neither male nor female. Further the court referred to Article 19(1)(a) and 19(2) and concluded that transgender personality can be expressed by transgender’ s behavior and presentation and it cannot be restricted or prohibited. Lastly, the court referred to Article 21 and held that “Hijras/ Eunuchs have to be considered as third gender, over and above binary gender under our constitution and the laws”. 

The Supreme Court in its final judgment declared that transgender apart from binary gender, should be treated as “third gender” for the purpose of safeguarding their rights under Part III of Constitution of India and the laws made by the parliament and State legislature. The Court further directed the state government to grant legal recognition to their third gender identity. The Hon’ble apex court further ordered the government to remove social stigma and to promote specific heath programs and equal protection to the transgender person.

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.

Case studies

• Laxmi Narayan Tripathy, a Hijra, explained her trauma as growing up as a child, “I felt different from the boys (as I was born as a boy) of my age and was feminine in my ways. On account of her femininity, from an early age, I faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to my being different, I was isolated and had no one to talk to or express my feelings while I was coming to terms with my identity. I was constantly abused by everyone as a ‘chakka’ and ‘hijra’.”

Later, she joined the hijra community is Mumbai as she identified with other Hijras and for the first time in her life, she felt at home.

• Siddarth Narrain, an eunuch, has similar things to say. He expresses his feelings as when, “I was in the 10^th standard I realized that the only way for me to be comfortable was to join the hijra community. It was then that my family found out that I frequently met hijras who lived in the city. One day, when my father was away, my brother, encouraged by my mother, started beating me with a cricket bat. I locked myself in a room to escape from the beatings. My mother and brother then tried to break into the room to beat me up further. Some of my relatives intervened and brought me out of the room.”
• 22 years old Madhu (name changed), a transgender woman from Madurai explains why she no longer gets tested for the disease. She shares that “I no longer have the courage. What if they say that I have HIV and AIDS? Where will I go? And how will I learn? I hope to die if I ever get detected with HIV.”

Similar life experiences have been experienced by other members of the Transgender Community. Their vulnerabilities force them to compromise on their health and safety.

Directions to the central and state government

The court as issued certain directions to the central and state government which are:

• Hijras, eunuchs should be treated as third gender for the purpose of safeguarding their fundamental rights,
• Recognize the persons’ need to identify his own gender,
• Providing reservations in public education and employment as socially and educationally backward class of citizens,
• Making special provisions regarding HIV sero-survelliance for transgender persons and provide appropriate health facilities,
• Tackle their problems such as fear, gender dysporia, shame, depression, suicidal tendencies, etc.
• Measures should be taken to provide health care to transgender people in hospitals such as making separate wards and also provide them separate public toilets,
• Frame social welfare schemes for their all round development,
• To create public awareness so that the transgenders feels that they are part of the society and are not to be treated as untouchables.

The judgment has marked a break from otherwise paternalistic and charitable approach of the state towards the transgender community by framing their concerns as a matter of rights.

Right of Transgender Persons Bill, 2014

The Bill was introduced in Rajya Sabha on 12^th December, 2014 which is passed on 24^th April, 2015 unanimously, with cross-party support. This was a private member’s bill introduced by the MP from Tamil Nadu, Tiruchi Siva. 24^th April is celebrated as Transgender day following the passage of the Bill in the Rajya Sabha.

The rights guaranteed under the Bill are mostly substantive rights such as the right to equality and non-discrimination, life and personal liberty, free speech, to live in a community, integrity, along with protection from torture or cruelty and abuse, violence and exploitation. There is a separate clause for transgender children.

Education, employment and social security and health are also covered under the Bill. The chapter on education makes it mandatory for the Government to provide inclusive education for transgender students and provide adult education to them.

With the employment chapter, there are two separate clauses dealing with formulation of schemes for vocational training and self-employment of transgender persons by the Government. There’s a separate clause for non-discrimination against transgender persons in any establishment – public or private.

In the social security and health chapter, the Government is asked to propagate social security and health care facilities which are to be provided in the form of separate HIV clinics and free SRS. They should be given the right to leisure, culture and recreation. Basic rights like access to safe drinking water and sanitation must be provided by the government.

The Bill envisages setting up a number of authorities and forums – National and State Commissions for Transgender Persons. The Commissions work will be mostly in the nature of inquiry or recommendations in the inconsistencies in the application of the law or violations of right of transgender persons. The Commissions can issue summons to witnesses, receive evidence, etc. There is penalty by way of imprisonment for upto a year for hate speech against transgender people.

SOME DEFINITIONS ·         Transsexual: A medical term applied to individuals who seek hormonal ( often, but not always) and surgical treatment to modify their bodies so that they can live their life to the fullest members of the sex category opposite to the sex assigned to their at birth( including legal status). ·         Transgender: Literally “across gender”, sometimes interpreted as “beyond gender”, a community-based term that describes a wide variety of cross-gender behaviors and identities. ·         Binary Gender: A traditional and outdated view of gender, limiting possibilities to ‘man’ and ‘woman’. ·         Binary Sex: A traditional and outdated view of sex, limiting possibilities of ‘male’ and ‘female’. ·         Gender Identity: A person’s internal, deeply felt sense of being either man or woman, or something other or in between. Because gender identity is internal and personally defined, it is not visible to others. ·         Gender Expression: It is externally and socially perceived. It refers to all external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns and social interactions. This is also called gender presentation.

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