This article is written by Tanya Sagar wherein she discusses the legal rights that are granted to the transgenders under The Indian Law and if transgender should be treated as a third gender or not.
Who is a transgender?
Transgender people are the one who feels sexually opposite according to their body structure or genitals. It means someone whose gender differentiates from the one they had when they were born, they may identify them as male or female, or they may feel that neither label fits them. Assigning someone’s sex is based on biology, chromosomes, anatomy and hormones. But a person’s gender identity the inner sense of being male, female or both, doesn’t always match their biology. Transgender people say they were assigned a sex that isn’t true to who they are.
National Legal Services Authority vs Union Of India:
“Justice Sikri” defined in his concurring judgment as follows that the term transgender is derived from two words namely, “trans” and “gender”. Former is a Latin word which means “across” or “beyond”. The grammatical meaning of transgender, therefore is across or beyond gender. The term transgender also refers to a person whose gender identity or expression does not conform to the social expectations for their sex assigned at their birth and because of which they are looked down by the society. They understand themselves as belonging to the other sex from what their genitals would suggest.
The United States Supreme Court has defined transgender as: “a rare psychiatrist disorder in which a person feels persistent uncomfortable about his or her anatomical sex and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change.” There is often confusion between certain terms that is sexual orientation and gender identity describing a transgender so to clear out this difference “Justice Radhakrishnan” has expressed his views under the head of Article 14 while giving right to transgender as third gender and laid down that “Gender Identity” refers to an individual’s self- identification as a man, woman, transgender, or any other identified category whereas sexual orientation, on the other hand, refers to an individual enduring physical, romantic and/or emotional attraction to some other person, sexual orientation includes transgender and their sexual orientation may or may not during or after gender transmission.
In India, the transgender community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shaktis, etc with their different culture and identities. To add more of detail to these types, Hijras are those who are biologically male and reject their masculine identity either as women or not men; and the other different types of transgender in different parts of the country.
Need of Recognition as a “Third Gender”
As discussed earlier Transgender is an umbrella term and covers many types of people including gay, lesbian, bisexual, transsexual, intersex, hijras, kothis and many others. Now because of technology advancement many transgender people reassign their sex and change their physical body and take steps to live their lives as the sex they desire to be and change their physical body from male-to-female or from female-to-male as they desire through Sexual Reassignment Surgery (SRS) to alter their body to reflect their gender identity. Therefore, the apex court broadens the term transgender to include both ‘pre-operative’, ‘post-operative’ and ‘non-operative’ transsexuals who strongly identify with persons of the opposite sex.
Laxmi Narayan Tripathy in one of his judgment says that non-recognition of the identities if Hijra, a TG community as a third gender, denies them the right to equality under Article 14 of the Constitution and violates the rights guaranteed under Article 21 of the Constitution of India. The need to identify transgenders as a third gender arose because of the stigma in the society relating to their orientation and they were forced to recognize themselves as either male or female because of only two genders in existence, they were not only looked down by what we call the right thinking members of the society but were also deprived of all their fundamental rights and to live with dignity as a citizen of the country. Even though the hijras are in existence since the ancient times they are still not accepted as a part of the society. They follow their tradition and culture and have strong social ties with their communities. The Hijras or eunuchs are feared, looked down upon, and sexually exploited as they have always lived on the fringe of the society and have integrated into it. They have always been subject to social stigma, segregation, ridicule, harassment, apathy and exploitation for centuries just because they do not identify as either of the sexes and are considered as queers, a situation of their natural beingness and gender dysphoria, over which they have no control. Even after this condition, few people have fought against this and only a few state governments like Tamil Nadu, Karnataka and Gujarat have done some efforts for the benefit of transgenders. Since Transgender community are neither treated as male or female nor given the status of a third gender and are deprived of many of the rights and privileges which other persons enjoy as a citizen of the country.
Despite the fact that the transgender is an umbrella term and covers many types still people only talk about the rights if the Hijras and no other community because they have a history of cultural acceptance. For instance, politicians are more likely to speak for the rights of the Hijras than the rights of gay and lesbians. Transgenders were facing blatant violence of every kind and were discriminated at every platform but situations changed after “The Hijra and Kothi Movement” in Bangalore an initiative of Sangama, a local NGO. One of the main issues of the movement was the fact that the law failed to recognize transgenders as individuals and was considered legally invisible and not given any legal status. Arrest without the warrant and physical torture were part of their lives. Through this movement there was decrease in the no. of crimes and they started living peacefully.
Another major problem for transgenders is Sec. 377 of IPC which criminally penalizes unnatural sex because of which transgenders have to face blatant torture and abuse in the past years. Some instances which illustrate the range and magnitude of exploitation faced by them under Sec. 377 is “The Bangalore Incident, 2004″. The victim of the torture was a Hijra from Bangalore who was at a public place dressed in female clothing. The person was subjected to gang rape, forced to have oral and anal sex by a group of hooligans. Later he was taken to a police station where he was stripped naked, handcuffed to a window, grossly abused and tortured because of his sexual identity.
Another major problem faced by the community is of education, employment and healthcare services, because of their orientation they are usually excluded from their families at young age because of which they don’t have access to education which leads to unemployment and they have to work as sex workers. They are often rejected by hospitals and sometimes remain uncured which result in their early deaths. These problems have been decreased to a large extent in the past years.
Recognition of Transgenders in India
The harassment faced by transgender people is blatant and they suffer physical and mental agony every day. The administration, as well as society treats them as unequal and therefore there is a need to identify them as a third gender and give them equal rights as any other person. Earliest UK case after which there was a need to recognize rights of transgenders as any other citizen because it laid down the ground for discrimination in the case of Corbett v. Corbett, the court held that the sex of a person is determined at the time of the birth in accordance with stated biological criteria and without any considerations of the person’s psychological sex.
The essential problem here is that law recognizes sexual identity purely on the basis of the biological definition of the sex they are born in. Similarly, civil laws too are in need of urgent reform. If transgenders are to have the same and equal rights as other citizens, there is a need for their recognition as third gender. This change in civil law will entitle them an entire gamut of rights available to all other citizens based simply on the fact that they now belong to a third gender. It was also argued in NALSA case that various International Forums and U.N Bodies have recognized their gender identity and referred to the Yogyakarta Principles and pointed out that those principles have been recognized by various countries around the world. Many countries have already recognized transgender as the third gender and India is in need of this development.
Earliest settled case in this context is the Naz Foundation judgement where the constitutional validity of Sec. 377 of Indian Penal Code, 1860 has been challenged, which criminally penalizes what is described as ‘unnatural sex’ to the extent the said provisions criminalizes consensual acts between adults in private. Sec. 377 of IPC reads out:
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable for fine”.
Explanation- “Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section”.
At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal intercourse. Since this section was based upon traditional moral standards and the IPC was formed in 1860 in British India thus this section is outdated according to modern times and should be decriminalized. Moreover, Section 377 serves as the weapon for police abuse; detaining and questioning, extortion, police harassment, forced sex and negative and discriminatory beliefs towards same sex relations and sexuality minorities which affect transgender people physically and psychologically. In Naz Foundation, it was held that Sec. 377 will not be repealed but ‘Doctrine of Severability’ applies in a sense that Sec. 377 IPC is only applicable to cases involving non-consensual sex. It was also declared that Sec 377 IPC violates Article 14, 15 and 21. The right to equality as defined in The Declaration of Principles on Equality states equality as- the right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on all equal basis with others in the area of economic, social, cultural, political or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law. Since Sec 377 is violative of Article 14 thus it means to give equal treatment to the transgender community and recognize them as equals.
But this decision was soon overruled in S.K Koushal v. Naz Foundation where it was held that the HC committed serious error in declaring Sec. 377 as unconstitutional because there was no tangible materials placed before the HC to show that Sec. 377 had been used for prosecution of homosexuals as a class. The SC declared that the section does not suffer from the vice of unconstitutionality and the declaration made by the division bench of High Court is legally unsustainable.
The most important case regarding the recognition of the Third Gender is NALSA case. TGs are also entitled to enjoy economic, social, cultural and political rights without discrimination because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. It was also held in this judgment that values such as privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community. The right to identify transgenders as a third gender comes under Article 21. The court held that TG have a right to identify them as any gender they like and is evident from the judgment in which the court said- “recognition of one gender lies at the heart of the fundamental right to dignity. Legal recognition of gender identity is therefore, part of right to dignity and freedom guaranteed under our constitution.” Transgenders were finally given their own recognition after NALSA case. The court held “Hijras are identified as persons of third gender and are not identified either as male or female. The distinction makes them separate from both male and female genders and they consider themselves neither man nor woman, but a ‘third gender’. Hijras, therefore, belong to a distinct socio-religious and cultural group and have, therefore, to be considered as ‘third gender’, apart from male and female. Many states in India have recognized TG as third gender like Tamil Nadu, Bihar, Kerala and Tripura and have taken many welfare measures to safeguard their rights and make them equals with the citizens of the country.
It is the effort of NGOs like Sangama that raised the issue of harassment faced by the transgender that now they are given similar rights as any other citizen of India. For instance, the Ministry of External Affairs which is in charge of both passport applications and online visa forms provides for transgender option in the ‘sex’ category and the Election Commission and UID enrollment have a similar option. At the state level, Tamil Nadu and Karnataka government have enacted orders that provide for socio-economic benefit to transgender persons. Moreover, it was clearly stated by the court in NALSA judgment that the states should take necessary measures to adopt transgenders as a third gender. It also laid down that the state should take necessary legislative, administrative and other measures to ensure that procedures exist whereby all state-issued identity papers which indicate a person’s gender/sex- including birth certificates, passports, electoral records and other documents- reflects the person’s profound self-defined gender identity.
Transgender Persons Bill, 2016
Transgenders have been clearly accepted as a legal entity in Transgender Persons Bill, 2016 whose preamble clearly states- “A bill to provide for protection of transgender persons and their welfare and for matters concerned therewith and incidental thereto”. Section 4 of the bill states about Recognition of identity of transgender person-
(1). A transgender person shall have a right to be recognized as such, in accordance with the provisions of the Act,
(2). A person recognized a transgender under sub section (1) shall have a right to self-perceived identity.
After this bill and NALSA judgment there was quite an upliftment in the status of transgenders as they were recognized as an legal entity and were not deprived of any fundamental rights. Some of the recommendations that find a place in the final draft include the rescue, protection and rehabilitation of transgenders. Educational institutions have been directed to adopt an inclusive approach that is gender neutral. The government has also formulated welfare schemes especially targeted towards their upliftment such as basic medical facilities including sex reassignment surgery. Vocational training programmes are also in the pipeline. However, the ambiguity in the bill about the definition of “third gender” has posed a serious problem as Sec. 377 draws them into its net. Therefore, the 2016 bill is to be re-introduced in winter session of Parliament (December 15, 2017)
Many states have worked towards the upliftment of Transgenders and even Central Government has adopted various laws and measure which have helped them to be on an equal footing with others. However, there is a need to change the mindset of society and till the time this narrow mindset is not changed and it is not willing to accept them as a part of it, no laws or measures adopted by the government can be effectively implemented.
 National Legal Services Authority v. Union of India and others (2014) 5 SCC 438
 Meghan Chrisner, “Transgender Marriage: Which Came First, The Marriage or The Transition?” Law School Student Scholarship (2012)
 Anoop Swaroop Das, NALSA Versus Union of India: The Supreme Court has Started the Ball Rolling, 5 Chankaya National Law University Law Journal, 142 (2015)
 Siddhartha Narain, Gender Identity, Citizenship and State Recognition, The Socio-Legal Review 106, 108 (2012)
 Prathima R. Appaji, The Hijra and Kothi Movement; a struggle for Respect, available at http://www.mindtext.org/view/118/The_Hijra_and_Kothi_Movement;_a_struggle_for_respect/, last seen on 06/09/2017
 Naz Foundation v. Govt of NCT of Delhi and others 2009 (111) DRJ 1
 PUCL-Karnataka (PUCL-K), September 2003 report, A study of Kothi and Hijra Sex workers in Bangalore, India.
 S.K. Koushal and another v. Naz Foundation and others (2014) 1 SCC 1
 Transgender Persons (Protection of Rights) Bill, 2016 (re-introduced on December 15, 2017)