This article has been written by Ananya Kanjilal & Krupa Nishar.

Who are considered as transgender in the society? 

Transgender people are those whose mental – gender sensitivities are different from the innate gender sign. People with a gender identity that differs from their sex assigned at their birth. 

How transgender people are being deprived of their basic fundamental rights? 

The transgender community has been facing a lot of problems in the society over the years. If you ask people of our country about trans people, most of them may answer that trans people are known as HIJRA and they have seen them begging near traffic signals and inside the trains. But,  this is not the end, even some people complaining about their bad behaviour but at the same time they never want to find the reasons behind their bad behaviour. This is the harsh reality and the fact is – our society is most responsible for their condition because we never considered them as  a part of the society. 

They are being disowned by their own families and you would never found a trans person studying in the same school or same university as you are and also the harsh treatments from other people in the society leads to their so-called ‘bad’ behaviour. The lack of  access to education and non-availability of jobs often forces them to take to begging and prostitution. 

For example, there was an incident in Andhra Pradesh, where a transwoman named Sharma described her feelings and said – “When I started wearing a saree and become Trans, the people started to insult and make fun of me. I had several problems with my family too. We live out of begging and we have been doing it since antiquity. Our job is not something new. During the kingdom times, here in India, there were dancers who performed dances and people gave them money. That was a way of begging too and now we would not have a miserable life. We could keep dancing like before. Now everything is under government control, so it’s more complicated.  With time, everything’s changed. Now there are jobs like policeman, lawyer, doctor but HIJRA’s  job doesn’t exist anymore.” (Lofi, Third gender in India. Hijras, the Kinnars daughters, 2020) 

Another transwoman named Chitti, said – “Nowadays police don’t allow us to beg on the streets.  How we can survive then. We stopped begging for a while and tried to work in a clothes store, but people were discriminating us there. They were calling us, HIJRA – HIJRA or GOJJA – GOJJA,  how disgusting. These things hurt our feelings. We beg because god gave us this kind of life. We  have no other option.” (Lofi, Third gender in India. Hijras, the Kinnars daughters, 2020) 

These are two pieces of evidence that explain their life, the ways our society treats them, the ways our society hates them. We are the generation of the 21st century, but still, we don’t free ourselves for such barbarism. 

The need behind this landmark case

The basic need behind this petition is to raise an issue of “Gender Equality” in India:

• Whether a person who is born as a male with predominately female orientation (or vice versa),  has a right to get himself to be recognized as a female as per his choice more so, when such a  person after having undergone the operational procedure, changes his/her sex as well? 
• Whether transgender, who are neither males nor females, have a right to be identified and categorized as a “third gender”? 

Also raising a lot of social discrimination against transgender people violates basic fundamental rights in our Constitution of India. 

It violates Article 14 of the Constitution of India, which states that- the state shall not deny to  “any person” equality before the law and equal protection of the laws within the territory of India.

It violates Article 15 and 16, which prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’ and both the Articles prohibit all forms of gender bias and gender-based discrimination. 

It violates Article 21, which states that – “No person shall be deprived of his life or personal  liberty except according to procedure established by law.” (SOUTH ASIAN TRASLAW DATABASE) 

Description of NALSA vs. Union of India case

NALSA vs. Union of India was a famous case that was filed by the National Legal Service Authority of India and especially it was a landmark case that highlighted gender equality in India. The name of parties given below:

1) National Legal Service Authority of India (Primary petitioner) 

2) Pooja Mata Nasib Kaur ji (Women welfare society) 

3) Laxmi Narayan Tripathy 

4) Union of India (Defendant) 

The name of two-division bench before the honourable supreme court:

1) Justice K.S. Radhakrishnan, and 

2) Justice A.K. Sikri. (SOUTH ASIAN TRASLAW DATABASE) 

When did the process of acknowledging transgender as third gender begin? 

In 2009, the Election Committee decided that the transgender as a third will go ahead to vote for the election, which means they can acknowledge themselves neither as a male or a female but as a  third gender during the election, but this was only for election. 

So, this issue started in 2012, when a petition was filed by Pooja Mata Nasib Kaur ji and an activist Laxmi Narayan Tripathy along with NALSA and the case was filed to Supreme Court and two-judge bench of Supreme Court was formed and finally, in 2014, the famous judgment was announced that – The transgender people was acknowledged as a third gender. Now the  judgment of the Supreme Court is given below:

Legal recognition for third gender 

The transgender would be denoted as the third gender of India. That means men are denoted with M,  the women are denoted with F and transgender would be denoted as with X. 

The fundamental right recognition 

The Transgender community will be given all basic fundamental rights and there will be no  discrimination against them. 

Psychological test over biological test and forcing a person to go through the  surgery was considered illegal

As for how the actual procedure of recognition will happen, the court merely states that they  prefer to follow the psyche of the person and use the “Psychological Test” as opposed to the  ‘Biological Test.’ They also declare that insisting on Sex Reassignment Surgery (SRS) as a  condition for changing one’s gender is illegal. 

Public sanitation facility with separate washroom for transgender 

Centre and State Governments have been directed to take proper measures to provide medical care to transgenders in hospitals and provide those separate public toilets and other facilities.  Further, they have been directed to operate separate HIV/Sero-surveillance measures for transgenders. 

Awareness among masses to remove the stigma attached to transgender

These are the broadest directions- Centre and State Governments were asked to take steps to  create public awareness to better help incorporate transgenders into society and end treatment as untouchables; take measures to regain their respect and place in society, and seriously address 

the problems such as fear, shame, gender dysphoria, social pleasure, depression, suicidal tendencies and social stigma. 

The reservation and socio-economic rights for the welfare of the community 

According to the SC’s judgment, the Centre and State governments have been asked to provide various social welfare schemes to the community and they have been also asked to extend reservation in educational institutes for public appointments. (Sikri, 2014). 

This judgment is a major step towards gender equality in India. The honourable Supreme  Court held that transgender people were treated as socially and economically backward classes,  so they should be granted reservations in admissions to educational institutes and jobs and resulted the recognition of transgender persons as a third gender, but the reality is- after this landmark judgment, transgender people are still struggling and there is evidence of that – A  transwoman went to a local court in her city as a first step towards changing the sex listed on her official documents, because SC had recognized her right to identify as the gender in line with her self-discrimination, and made it illegal for authorities to refuse her identification based on whether she had surgery or not, but at the court, the officers insisted they could not help her without a medical certificate of ‘sex change’.  

In the year 2019, we came up with a law about transgender persons (Protection of Rights).  

The Transgender Persons Bill explanation 

The Transgender Persons (Protection of Rights) Bill, 2019 was passed by Parliament on  November 26, 2019:  

• The bill defines a trans person as someone whose gender does not match the one assigned at  birth. It prohibits discrimination against them in employment, education, housing, healthcare and other services.  
• The Bill also allows self-perception of gender identity. But it mandates that each person would have to be recognized as ‘transgender’ on the basis of a certificate identity issued by a  district magistrate.

A recommendation from the 2016 Standing Committee to have a screening committee was rejected. Opposition MPs have raised concerns about certain provisions in the Bill. The Trans  community has also rejected the Bill citing several clauses that are detrimental to their  fundamental rights: 

A) The Bill – States that transgender persons will have the right to “self-perceived” gender identity. 

Activists – Change of gender identity in documents cannot be done without a certification by the  District Magistrate after proof of a sex reassignment surgery is provided. 

B) The Bill – Enforces a minor’s right of residence compelling any transperson below 18 to  cohabit with their natal family. 

Activists – Families are often a source of gruesome violence against the Trans community  leading them to separate from the natal family. 

C) The Bill – Criminalizes begging. 

Activists – It does not offer reservations for employment and education. 

D) The Bill – Strongly focuses on transwoman and hijras. 

Activists – There is little emphasis on intersex, genderqueer and even transman. ( The  Transgender Persons Bill explained, 2019) 

Is it enough? Is it the ultimate legislation that we require in our country to give transgenders the ultimate right or acceptance of society? 

The answer is NO, because this act still has some drawbacks, and it also violates the NALSA’s judgment. 

Facts	NALSA judgment 2014	The Transgender Bill,  2019
Provision for Reservation	In 2014 SC gave the judgment  that it was important to make  reservations so that the people  in the transgender community  could be uplifted	No provision for reservation in  educational institutes and jobs.
Psychological and Biological  test	According to NALSA’s Judgment, the surgery should not be an essential requirement but the act again gave the importance to the surgery over the psychological test.	The Bill – States, requirement  for the surgery
Self – Identification	The NALSA judgment allowed self identification of gender.	Change of gender identity in documents cannot be done without a certification by the  District Magistrate after proof of a sex reassignment surgery is provided.
Criminalizing of begging	NALSA’s judgment didn’t criminalizes begging because according to Supreme Court’s  order the Centre and State governments have been asked to provide various social welfare schemes to the community and they have been also asked to extend reservation in educational institutes for public appointments.	Criminalizes begging, but It does not offer reservations for employment and education.

Shortcomings of the Transgender Protection Act, 2019

The 2019 Act gives the district magistrate the power to recognize a person as Trans, while the  NALSA judgment allowed self-identification of gender. The NALSA judgment had further said that any insistence on SRS (sex reconstruction surgery) was immoral and illegal. It stressed that self discrimination of gender is integral to one’s personality and dignity. The Act of 2019  states that to identify as male or as female, one must supply proof of surgery to the magistrate.  Activists say this gives immense power to the DM and leads to the possibility of misuses. This  is one of the most important pieces of proofs that show how the act of 2019 violates NALSA’s judgment  and also there are some proves given below:

• Inadequate punishment for crime against transgender persons. It means the punishment that has been stated in IPC (Indian Penal Code) is much higher compared to the punishment mentioned under The Transgender Act 2019. 
• Transgender person to be separated from the family only by the order of the court. If a  transgender person wants to be a part of the Transgender community, then this is only possible by the court, which means the transgender person can join the community if the court orders. So,  what if the court orders against it, then the person has to be with his own family and what happened if his family did not accept him well or discriminated against him in various ways, so again it is creating a problem in the society. (Transgender As The Third Gender in India | Legal Aptitude | CLAT |  LegalEdge, 2020) 

So, in the same year 2019, the entire act was again challenged by Swati Bidhan Baruah and the case is pending in Supreme Court. So, we have to wait for the judgment that is Supreme Court is removing the issues and making it unconstitutional or not? 

Now, this is the situation, so if we compare this modern age with the ancient age, one thing only I  can say that- during the ancient time these transgender people were not treated so rudely, but now we have changed a lot with the age, we have learned to be modern but we have not changed our negative attitude towards the transgender community yet. Will we ever be able to change this brutal attitude of ours? Is it possible? Or if this attitude has to be changed then what is the way?  What do we have to do? 

We all have to take responsibilities and give awareness to the society that do not separate transgender people from us, because they are also members of the society and the government should pass different plans and different schemes so that they can get their own rights and can educate themselves. 

In the Indian Constitution, Right to Equality is given under Article 14. It is one of the fundamental rights. It ensures the guarantees to every person the right to equality before the law and equal protection of the laws and according to Article 21- No person shall be deprived of his life or personal liberty except according to a procedure established by law, so we have to follow the law and give respect to every citizen (men, women and transgenders), because ultimately we are all humans, we are all Indians and there can be no better way to make India better.

References 

• The Transgender Persons Bill explained. ( 2019, November 30). 
• Anasuya, S. I. (2017, January 05). Scroll.in. Retrieved from Indian Transgender Community.  Bengani, S. (2017, December 24). NewsBytes. 
• Jain, A. (n.d.). IPLEADERS. 
• Lalwani, V. (2019, NOVEMBER 27). QUARTZ INDIA. 
• Lofi, A. ( 2020, April 04). Third gender in India. Hijras, the Kinnars daughters. Retrieved from  www.youtube.com: https://youtu.be/503gqFvhliU 
• Lofi, A. (2020, April 04). Third gender in India. Hijras, the Kinnars daughters. Retrieved from  www.youtube.com: https://youtu.be/503gqFvhliU 
• Mohan, G. R. (2020, June 05). Halt Implementation of the Trans Act 2019: Acyivists.  she. (2020). Retrieved from ANUREET. 
• Sikri, A. ( 2014). National Legal Services Authority v. Union of India. Retrieved from indiankanoon.org:  https://indiankanoon.org/doc/193543132 
• SOUTH ASIAN TRASLAW DATABASE. (n.d.). Retrieved from CENTRE FOR LAW & POLICY  RESEARCH: https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/ 

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: