This article has been written by Muskaan Sharma.
Table of Contents
Introduction
LGBTQ is the initial of Lesbian Gay Bisexual Transgender Queer, and they are the people who do not relate their gender from their biological gender and end up being a cliché. LGBTQ Community existed in our society since the very beginning. During early times, homosexual sex was considered “revolting”, and society did not accept transgender people the way they were. The Britishers criticized them and withdrew their civil rights, enforced an act against the transgender people, and called them “a tribe”. But during the Mughal period, the transgender people were given utmost respect and were also included in the decision making of the empire. Many problems were and still are faced by this community like discrimination, unemployment, depression, etc. Families do not support their child once they start behaving like transgender people.
They were denied identification cards and were also forbidden to choose the gender of their choice. Various reforms need to be enforced to improve the condition of the LGBTQ Community. The Constitution of India provides various provisions to prevent gender-based discrimination. Various provisions enshrined in the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights are also considered to avoid discrimination against the LGBTQ Community. While Decriminalizing Section 377 of the Indian Penal Code, the Court has directed the Centre and the State Governments to acknowledge legal recognition of gender identity whether they are a male, female or third gender. Protecting the rights of the community is not only the duty of the nation but the citizens also.
LGBTQ is a term that stands for Lesbian, gay, bisexual, transgender and queer. Their chosen gender usually addresses the transgender people like she/her/hers for a man turned into a woman, and he/him/his for woman turned into a man and those who do not wish to disclose their genders are addressed as “XE/XEM/XYR”, which is pronounced as “kse,ksem/ksire”.
A common culture and social movements unite them. The most “open-minded” community of people generally celebrates pride, diversity, and sexuality. June is called the “Pride Month”, in which people form rallies to educate others on the impact of the LGBTQ Community in the world. June is selected as the pride month to pay tribute to the Stonewall riots, which occurred at the end of June 1969. On 2 Jul. 1999, the first pride parade of the country took place in Kolkata. Since then, the pride parade has been held in more than 21 Indian states at present. Indian cities’ pride parade is held according to their interests.
In New Delhi, the pride parade is held on the last Sunday of November. The people of this community are those individuals who do not relate to their gender from their biological gender, and this is the reason why they are different from men and women. Transgender does not include sexual orientation, but it is more of a clinical term.
Thus, the LGBTQ community includes those individuals whose identity and behaviour do not cling to the stereotypical gender rule. LGBTQ community has existed since the beginning of humankind and is very much a part of our society. As a part of our society, they can also enjoy the fundamental rights our constitution offers. The basic idea of establishing fundamental rights is that every person has a basic right (also known as human rights or natural rights or birthrights), giving them a right to be treated with dignity & honour and equally. Anything that infringes this dignity honour precedes the way for discrimination and violates the law. Section 377 of the IPC 1860 was articulated unconstitutional as “The sexual orientation of an individual is natural and discrimination on this basis is a violation of freedom of expression” mentioned in Article 19(a) of India’s Constitution.
History
Dating back to the 1800s, Thomas Macaulay, the drafter of the Indian Penal Code, stated homosexual sex as “odious” and “revolting”. For a hundred years, many courts in India gave despicable names to the LGBTQ community and did not accept them the way they were. They were instead prosecuted for their acts. LGBTQ community has been a part of Indian society for centuries now. In ancient India’s beginning writing, the “third sex” has a shred of historical evidence and recognition. During the Mughal period, the transgender people (also known as the “hijras”) were considered trustworthy, loyal and clever and played a pivotal role in the politics of building the empire.
During the second half of the 19th century, when colonial rule was in play, the transgender community was criminalized, and the British also withdrew their civil rights. When the Europeans visited India, they were disgusted because transgender persons here are regarded in the royal courts. They were considered a different tribe, and so in 1871, The Criminal Tribes Act came into a force whose purpose was to defeat hereditary criminals. Around 200 tribes were affected by the enforcement of this Act. The Act was repealed in 1952, post-independence. Transgender people were ill-famed after colonization because they have been indulged in the kidnapping and sterilizing of children, begged on the streets, and dressed like women.
Problems faced by transgender people
The main issues faced by the transgender community includes discrimination, unemployment, lack of educational facilities, homelessness, lack of healthcare facilities: like HIV care and hygiene, hormone pill abuse, alcohol abuse, penectomy, and marriage and adoption problems.
In 1994, although transgender people were given voting rights, the task of issuing voter identity cards to them got caught up in the gender question. Several of them were denied cards after they specified their gender category.
The other fields where this community feels abandoned involve the inheritance of property or the child’s adoption. They are often pushed to the ambit as a pariah, and many may end up praying and tripping. This, by all means, spell out human trafficking. Sometimes after running out of all the alternatives to feed themselves, they even engage themselves as sex workers for survival.
Transgender people are provided with limited employment opportunities. They barely have admission to bathrooms/toilets and public spaces. The absence of access to bathrooms and public spaces entry exemplifies the discrimination faced by transgender people in availing each facility. They face related issues at various places, including schools, hospitals and jails. Most families do not even accept if their male child starts behaving in ways that are contradictory to their gender and are considered feminine or inappropriate to the expected gender role. Consequently, family members may assault, threaten or scold for behaving or dressing-up womanly.
Some parents may disown and evict their child for not following the “self-made” gender norms and for not justifying the roles expected from them. Parents may provide various reasons for their dissent, which may include dishonouring and bringing shame to the family, shrunk possibilities of their child getting married to a woman in the future and thus end of their generation (if they have only one male child); and presumed incapacity on the part of their child to take care of the family. Thus, later transgender women may find it difficult to claim their share of the property or inherit what would be lawfully theirs. Sometimes, the child/teenager may even decide to run away from one’s family, not endure the discrimination or not want to bring shame. Some of them may eventually find their way to Hijra communities.
Moreover, it is difficult to find jobs for Hijras/Transgender persons. Some members of society contempt gender-variant people for being different, and they may even be hostile. They face various challenges, including verbal and physical abuse, extortion of money and materials, forced sex and arrests on false allegations. The absence of police protection means hooligans find Hijras/Transgender people as easy targets for extorting money and sexual objects.
A study recorded in 2007 held that in the past year, the percentage of those MSM and Hijras who reported forced sex is 46%, physical abuse is 44%, verbal abuse is 56%, blackmail for money is 31%, and the threat to life is 24%. Hijras face discrimination even in healthcare facilities. Types of discrimination reported by Hijras/Transgender communities in the healthcare facilities comprise of the intended use of male pronouns, enlisting them as males and admitting them in male wards, embarrassment faced in having to stand in the male row, verbal harassment by the hospital staff and patients, and absence of such healthcare contributors who are trained and subtle to provide care to the transgender people and even rebuttal of medical facilities.
Discrimination against transgender people could be due to their status, sex work status or HIV status or a combination of these. Social welfare departments issue a diversification of their schemes for socially and economically deprived groups. However, so far, no particular system is available for Hijras except some golden cases where land was provided for Aravanis in Tamil Nadu. Lately, Andhra Pradesh has instructed the Department of Minority Welfare to consider Hijras as a minority and extend welfare schemes.
Rigorous and hefty procedures and requirement of address proof, identity proof, and income certificate frustrate people, including those deserving of using available methods. Also, most Hijras/Transgender communities are unaware of the social welfare schemes available for them. The Social Welfare Department in Tamil Nadu has established the Aravanigal/Transgender Women Welfare Board to address the social welfare issues of its transgender population, being the first state to take such action.
But now the time has changed, and so has the status of the LGBTQ Community. They are now happily accepted by society for who they are. The Transgender Person (Protection of Rights) Act, 2019 came into force on 5 Dec. 2019 to protect the rights and welfare of transgender persons. This Act lays down a clear distinction between identity-based recognition rights and the medical procedures some transgender persons might want. The interests of transgender people are promoted, and they are given employment opportunities with the Mahatma Gandhi National Rural Employment Government Act (MGNREGA). Specific welfare policies were also introduced, keeping in mind the status of the LGBTQ Community in the country, such as census, issuing citizenship I.D. Cards, issuing passports, social-economical development and constitutional safeguards.
Social acceptance
Transgender people are individuals irrespective of their age or sex whose appearance, personal characteristics, or behaviours vary from stereotypes about how men and women are ‘supposed to be. These people have existed in every culture, race, and class since the birth of human life. The newfangled term ‘transgender’ arose in the mid-1990s from the paramount community of gender-different people. In contemporary usage, transgender has become an ‘umbrella’ term which is used to classify a wide range of identities and experiences, including but not limited to transsexual people; male and female cross-dressers (sometimes referred to as ‘transvestites,’ ‘drag queens’ or ‘drag kings’), inter-sexed individuals, and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender atypical. In its broadest sense, transgender includes everyone whose identity or behaviour falls beyond stereotypical gender norms.
This includes persons who do not self-identify as transgender but who are perceived as such by others and thus are subject to the same social oppressions and physical violence as those who identify with any of these categories. Other current synonyms for transgender people are ‘gender variant,’ ‘gender different,’ and ‘gender non-conforming.’
In India, there is a host of socio-cultural groups of transgender people like hijras/ kinnars- and several other transgender identities such as – Shiv-Shaktis, Jogtas, Jogappas, Arachis, Sakhi, etc. However, these socio-cultural groups include transgender people and those who do not belong to any of the groups but are transgender persons individually.
Reforms needed to improve the situation
Legal Measures
- Every person must have the right to choose their gender expression and identity, including transsexuals, transgender people, transvestites, and hijras. They should also have the right to express their gender identity freely. This includes the demand for hijras to be considered female as well as a third sex.
- There must be special legal protection against this form of discrimination imposed by both the state and civil society, which is very similar to practising untouchability.
- The Immoral Trafficking Prevention Act, 1956, is used barely for preventing human trafficking than for daunting those who are majorly vulnerable, i.e., the individual sex worker as opposed to brothel keepers or pimps. This law needs to be reformed with a clear understanding of how the state deals with those engaged in sex work.
- Civil rights mentioned under the law, including the right to get a ration card, passport, inherit property, make a will and adopt children, must be available to all regardless of the change in gender/sex identities.
Police reforms
- The police administration should designate a standing committee including Station House Officers and human rights and social activists to expeditiously investigate reports of horrific abuses by the police against Kothis and hijras in public places and police stations, and the guilty be straight-away penalized.
- The police administration should adopt transparency in their dealings with hijras and kothis and ensure the availability of necessary information relating to procedures and penalties used in detaining kothis and hijras in public places.
- Protection and welfare should be ensured for hijras and kothis to avert sexual assault/ rape in police custody and prison. They must not be sent into male cells with other men to prevent harassment, abuse, and rape.
- The police at all levels must go through sensitization workshops by human rights groups/queer groups to break down their social prejudices and to train them to grant hijras and kothis the same courteous and civilized treatment as they should towards the general public.
Other measures
- An extensive sex-education program should be introduced as part of the school curriculum that modifies the heterosexist biases in education provides judgment-free information and fosters a liberal outlook about sexuality, which includes orientation, identity and behaviour of all sexualities. Vocational training centres must be entrenched to providing transgender people with novel vocational opportunities.
- The Press Council of India and various other ombudsman institutions of mixed popular media (including film, video and T.V.) must issue guidelines to ensure sensitive and respectful treatment of these issues.
Constitutional provisions
There are various provisions mentioned in India’s Constitution, which prevents discrimination on multiple grounds and persons. Article 14 provides the Right to Equality and states that every person has a right to equality irrespective of their nationality. Article 15 mentions the prohibition of discrimination on religion, race, caste, sex or place of birth. Article 19(a) bestows freedom of speech and expression to its citizens. It means every citizen has a right to express their views and opinions without any fear. Article 21 of the constitution mentions the Right to Life and Personal Liberty. This Article allows every citizen to live the life of his dreams without any intervention from any person. “Right to Life” does not include a mere human existence but a life of honour and dignity.
The judges said that the right to vote, right to own property, right to marry and right to claim a formal identity would be more meaningfully available to LGBTQ Community. Various provisions of International Law promotes fundamental human rights to all the people of the world. Article 6 mentioned in the Universal Declaration of Human Rights (UDHR) speaks that everyone has a right to be accepted as a person universally, and Article 16 of the International Covenant on Civil and Political Rights (ICCPR) talks about the right to be recognized as a person before the law.
This law states that every person has a right to acknowledge the Court as a human being/person. It allows everyone to get recognition irrespective of their gender, nationality, caste, religion. In 2016, the UNHRC passed a resolution to appoint an Independent Expert to find the reasons behind the discrimination against people due to their gender or sexual orientation and then discuss with the Government how to protect those people from that discrimination.
The Supreme Court judgment on transgender rights
This judgment comprises people who want to identify with the third gender and persons who wish to switch from one identity (gender) to another. The Court has directed the Centre and State Governments to concede legal recognition of gender identity whether they are a male, female or third gender.
Legal recognition
In recognizing the third category, the Court ruled out that fundamental rights will be accessible to the third gender in the same way they are to any other male and female persons. Additionally, non-recognition of the third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc., is unjust to transgender people.
Legal recognition for persons conversing within male/female binary
As for how the actual procedure of recognition will happen, the Court merely states they prefer to follow the person’s psyche and use the ‘Psychological Test’ instead of ‘Biological Test’. They also mention that insisting on Sex Reassignment Surgery (SRS) to change gender is illegal.
Public health and sanitation
The Centre and State Governments have been administered to take appropriate measures for the medical care of the transgender people in the hospitals and provide them with separate public toilets and other facilities.
Socio-economic rights
The Centre and the State Governments have been urged to provide several social welfare schemes to the community and treat the community socially and economically backwards.
Stigma and public awareness
These are the extensive regulations that the Centre and the state governments are urged to take steps on to create public awareness so that Transgender people does not feel alienated from the social life and not be treated as untouchables, take measures to regain their respect and place in the society.
Challenging Section 377
The judgment contradicts the Supreme Court’s findings in Suresh Kumar Koushal in various ways.
The main points include:
- The judgment notes that Section 377, though associated with specific sexual acts, highlighted particular identities, including Hijras. It also recognizes that Sec 377 of the Indian Penal Code, 1860 has been used as a tool for harassing and physically abusing the Hijras and transgender community. The judgment only expresses that this amounts to a misuse of the Section instead of what it dictates, thus refusing to apply the fundamental rights analysis to it meaningfully. Now we have a contradictory finding.
- It argues against Koushals infamous ‘minuscule minority’ argument considering that Transgenders, even though insignificant in numbers, are still human beings and therefore have every right to enjoy human rights.
Opinion
The Government of India should eliminate the blot, discrimination, human rights violation and provide their full support to the LGBTQ community. The members of this community are the citizens of the country and should be treated equally as others. The Government has taken the requisite measures, and now it’s time for the citizens of the country to support the LGBTQ Community. If all the country citizens stand united in support of the community, it will enlarge the growth of the LGBTQ Community in the country.
Conclusion
Each person in this Universe is unique in their way and is an integral part of our society. Thus, it would be erroneous to judge and discriminate against people contrasting to the stereotype. It is high time, and people must understand that every individual of India has been provided with equal rights and opportunities and follow the policy of “live and let live.” Though the transgender community was given top position in the building of the empire during Mughal times, they faced many problems during the British colonial period.
To ensure the safety of the LGBTQ Community in the country, the Government of India has taken an opportunity and introduced various welfare policies and schemes, keeping in mind the status of LGBTQ communities. These include census, issuing of the citizenship I.D. Cards, issuing passports, social-economical development, constitutional safeguards, housing, legal measures, police reforms to prevent the violation of human rights of the LGBTQ Community and institutional mechanisms to address the concerns of transgender people.
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