How Transgender Person (Protection of Rights) Bill, 2018 is Not Addressing the Actual Problems of Transgenders
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In this article, Yash Dahiya of Amity Law School, Noida analyses the landmark judgment, NALSA vs. Union of India. [(2014) 5 SCC 438]

Parties

1) National Legal Services Authority (Primary petitioner)

2) Poojaya Mata Nasib Kaur Ji Women Welfare Society

3) Laxmi Narayan Tripathy

Vs.

4) Union of India (Defendant)                                             

Coram

1) Justice K.S. Radhakrishnan

2) Justice A.K. Sikri

Procedural background

For long the transgender community or the TG community in which the term transgender is an umbrella term has been side-lined by the community and have been tormented and discriminated. [1]They continuously face abuse and violence just because they don’t come under the universally recognized genders i.e. male and females. They are tortured and do not enjoy the same freedom and rights which the citizens enjoy. They are shunned and defamed by society and are considered as untouchables. They are considered as a liability and pain for the nation.

So finally a petition was filed by the National Legal Services Authority who in this case was the primary petitioner which provides free legal aid to the disadvantaged and unprivileged sections of the society and resorts to solving their grievances. The organization works for the betterment of the society and thus the petition was filed so that Transgender can be recognized as a third gender in the eyes of the law other than the binary genders i.e. male and female. Poojaya Mata Nasib Kaur Ji Women Welfare Society and Laxmi Narayan Tripathy who is a renowned Hijra activist also filed a petition.

The petitions were filed because nonrecognition of the transgender community as a separate sexual and gender identity is a violation of many Fundamental and Human Rights, which are protected by the Indian Constitution and other International Human Rights documents.[2] Fundamental rights such as Article 14(Right to equality), Article 21(Right to life and liberty), etc. Transgender’s have the right to enjoy the same rights and freedoms which the binary genders male and female enjoy.

Historical background of transgenders

The concept of Hijras and other transgender’s is not a new concept. They were recognized in ancient India as well. Lord Rama, when in exile with Sita and Lakshman from the kingdom for 14 years, turns around his followers and asks all men and women to leave them alone and return back to the city. Among the followers, Hijras were also there who did not feel that they should follow this order. Lord Rama was very impressed by this and gave them the power to bless on auspicious occasions like childbirth and marriage.[3] Transgender’s which include Hijras, Kothis; Aravanis have a very strong presence in Hindu mythology and other religious texts.[4]

Hijra community has also been mentioned in the Kama Sutra, a text on human sexual behavior written sometime between 400 BCE and 200 CE which is a Hindu text[5] They have been called as ‘tritiyapakriti’ or third gender and have been an important part of Vedic and Puranic literature.The term ‘napunsaka’ has been used to show the absence of procreative capability of a person.[6] There are many forms of Shiva one of which is when he merges himself with his wife Parvathi to become Ardhanari a very important figure in the Hijra community.[7] In Mahabharata, Aravan son of Arjun and Nagakanya offers himself to be sacrificed to Goddess Kali so that the Pandavs can win the war. But it was in one condition that Aravan has to spend the last day of his life in matrimony. Unfortunately, Aravan could not find any woman who would agree to marry him as no woman wanted to marry a man who is going to die in the next day after marriage. Lord Krishna distressed by seeing this converts himself in the form of a woman called Mohini and marries him. The Hijras of Tamil Nadu consider Aravan their ancestor and call themselves Aravanis. [8]Hijras also held important positions in courts and posts in administration during the Mughal era in India from the 16th to the 19th century. They had religious authority and gave blessings in religious ceremonies. [9]A detailed analysis of the historical background of Hijras in Mughal era is there in the book of Gayatri Reddy, “With Respect to Sex: Negotiating Hijra Identity in South India” – Yoda Press (2006). The onset of colonial rule changed everything from the 18th century onwards. Early European travelers showed that they showed disgust by the sight of Hijras and could not understand why they were given so much respect in the royal courts and other institutions. In the second half of the 19th century, the British colonial administration tirelessly tried to criminalize the Hijra community and deny them civil rights. Hijras were considered to be separate caste or tribe in different parts of India by the colonial administration. The pre-partition stage changed the conditions of the transgender community. [10]


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Facts of the case

The transgender community face a lot of humiliation and disgrace in the present times. They are not allowed medical, educational facilities, etc. They are exploited and harassed by people. All these are violations of the fundamental rights of our country and several International Human rights documents which are given above. This eventually led to the filling of the petition. By virtue of the same, laws governing marriage, adoption, inheritance, succession, taxation, and welfare were all governed by whether or not you are male or female. Interestingly, this determination of gender is always done at birth. It is due to this lack of legal provisions for persons of the third gender that they faced discrimination across various walks of life. Thus the case came before the court when a Public Interest Litigation was filed by the National Legal Services Authority followed by other petitioners as well.[11]

Arguments and reasoning

The petitioners were joined by several interveners. They argued that only binary genders of male and female were recognized under Indian law and the lack of legal measures to cater for the needs of the represented groups contradicted several constitutional rights including the rights to a dignified life, equality before the law, non-discrimination and freedom of expression. [12]They are disrespected and exploited by people. The petitioners argued and reasoned how each fundamental right is being violated.  

According to Article 14 (right to equality) of the Indian Constitution, no person shall be discriminated based on sex, religion, etc. The State shall not deny to any person equality before the law within the territory of India.[13] It is not restricted to male and female.

According to Article 15 of the Indian Constitution

The State shall not on the ground of race, sex, religion, etc. be discriminated Also no person should be on the grounds of religion, race, sex, etc. be restricted to use wells, shops, public restaurants, etc. They should also not be restricted to use wells, roads, etc.  It should not prevent the State from making any special provision for children and women.[14]

Article 19 of the Indian Constitution which guarantees citizens freedom of speech, form associations or unions, to meet peacefully without any arms, etc. is also being violated over here and is perhaps one of the most important right which is being violated.[15] Many times we can see that transgender’s don’t get to dress the way they like as it’s against the culture of our country. This right includes the right to expression of one’s self-identified gender. This expression may be done through dress, words, action or behavior or any other manner.[16]

And finally, Article 21 of our Constitution which is the most extensive right guarantees citizens the right to personal life and liberty i.e. no person shall be deprived of his life and personal liberty except by law. Transgender’s have every right to live their life in a dignified and a respectful way. It also includes right to live with human dignity. Expression of oneself with respect to a gender which is self-recognized is an important part of Article 21.[17]

Article 16 is also being violated which says that there should be equal opportunities to all citizens. No person shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, etc. be discriminated. Transgender’s are not given equal job opportunities.

There are many international laws as well which are being violated according to the petitioners which are as follows

  • International Covenant on Civil and Political Rights (ICCPR).
  • Article 6 (right to life).
  • Article 7 (prohibition of torture or cruel, inhuman or degrading treatment).
  • Article 16 (recognition before the law),
  • Universal Declaration of Human Rights (UDHR)
  • Article 6 (right to life)
  • Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2 (rights to equality and non-discrimination), 3 (right to recognition before the law), 6 (right to privacy), 4 (right to life), 9 (right to treatment with humanity while in detention), 6 (right to privacy), 18 (protection from medical abuses)
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Articles 11 (discrimination in employment) and 24 (commitment of State parties)
  • Convention for Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights), Article 8 (right to respect for private and family life) and 14 (non-discrimination)

Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International Conventions)  [18]

So due to all these reasons transgender’s live a tough life. If their gender is recognized things would be much easier for them. It would be easier for them to fill forms and they won’t have any difficulty in choosing between sexes as they would have a separate gender in the form. They won’t have to under any operation to recognize themselves under particular sex. They would get to enjoy all the rights which male and female citizens get to enjoy.

The defendants, on the other hand, defended by saying that the state government has set up an “Expert Committee on Issues Relating to Transgender” and said that the petitioner’s views would be sought as part of the process. Various states and union territories have also argued that they have taken significant steps to improve the conditions and status of the transgender community.[19]

Judgment

It was a divisional bench. The judgment was given by Justice K.S. Radhakrishnan and Justice A.K Sikri. However, Justice A.K Sikri gave a separate opinion with some additional comments.[20] The judgment relied on many courts of foreign countries such as courts of Malaysia, Pakistan, New Zealand, Australia, and English courts as well.  Firstly the Court put emphasis on the psychological sex rather than the biological sex. The Court talks about the Corbett v. Corbett [21] with its complete emphasis on biological sex. It also talks about Attorney-General v. Otahuhu Family Court which talks about New Zealand’s standard requiring surgical and medical procedures to effect a transformation in. The Court says no to gender recognition based on biological way and gives full importance to recognition by psychological tests.

Before getting into the constitutional harms it is imperative to mention that Para 53 of the judgment: “Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into those provisions”.[22] It is also said that all those principles discussed on TGs and international conventions including Yogyakarta principles, which are consistent with the fundamental rights of the Constitution of India must be recognized and followed.[23] Transgender people are suppressed and are faced with discrimination in various aspects of life including health, employment, etc. The Court referred to Part 21 of the United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment, wherein it is stated that states are obliged to protect all persons regardless of their sexual orientation or transgender identity. The Court acknowledged the fact that there is an absence of legislation in the country and it was, therefore, necessary to follow International Conventions.[24]

 The Court held that transgender’s falls within the purview of the Indian Constitution and therefore should enjoy all the rights of the Constitution. These rights include Article 14 which guarantees the right to equality. Article 14 is a right enjoyed by “any person” (similarly, it applies equally to men, women and transgender people. Hence, transgender people are entitled to equal legal protection of the law. They have equal right in employment, health care, education, and civil rights.  Discrimination on the grounds of sexual orientation and gender identity represents inequality before the law and unequal protection of the law and violates Article 14.

 Article 15 requires the improvement of socially and educationally disadvantaged groups. The Court said that transgender has not been able to enjoy the provisions as under Article 15(4) for the advancement of the socially and educationally backward. They constitute such a group and the state is bound to take some proper action to remedy the injustice done to them for centuries. 

 The Court stated that a person’s right to show or express gender identity through words, dress, action or behavior is included in Article 19 (right to freedom of expression). Privacy, self-identity, autonomy, and personal integrity are fundamental rights protected by Article 19. 

The Court also held that the Transgender community has the right to Article 21. They have the right to live a dignified life and enjoy personal liberty.

The Court declared that the Centre and State governments must grant recognition of gender identity as male, female or third gender in the eyes of the law. It was observed that transgender’s require full recognition in the eyes of the law. They should get to enjoy health care, education, etc.

By this judgment, all government documents such as ration card, passports, etc. would recognize third gender.[25] The Court also held that the transgender’s are citizens of India and are fully entitled to get the benefit of all schemes and programs launched by the Government irrespective of their population. Now the Election Commission of India has also taken special measures to enroll.[26] In his judgment in the NALSA case Justice Radhakrishnan admits this fact in these words: “Seldom, our society realizes or cares to realize the trauma, agony, and pain which the members of the Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mind-set which we have to change”[27] . From Justice Radhakrishnan’s opening lines talking about the moral failure of society’s unwillingness to contain or embrace different gender identities and expressions, down to Justice Sikhri’s cognizance of the painful process of transitioning from one gender to another, this is a text that is shot through with empathy.[28]

The Court also decided that Hijras, Eunuchs are to be treated as “third gender”. It made various declarations and directions to the Centre and State Governments such as to operate separate HIV Zero-Surveillance Centres, Provision for separate public toilets and appropriate medical care in hospitals for transgender’s, frame various social welfare awareness schemes for the improvement of conditions of the TG community, to make the public aware about the atrocities against the TG community and to regain the respect and trust the TG community once enjoyed. [29]

Critical analysis

Well, we cannot ignore the fact that the TG community for long have suffered and gone through torture, humiliation, and pain. They kept quiet and suffered but finally through this judgment the condition of the transgender community has improved. This judgment has made an impact not only in India but throughout the world. The exclusion of the TG community from participation in the society is a major human rights issue. India follows democracy and democracy includes everyone irrespective of their deformation, condition, etc. Everyone should be treated equally and should get equal protection of law if we go by the 3 conditions of Rule of Law which includes equality.

However, there are flaws in the judgment as well. Transgender is an umbrella term for people whose gender identity is different from the gender given to them at birth, and in the case of India, there are a variety of identities, such as Kothi, Transman, etc. is not clearly outlined in the judgment.[30] A comprehensive list of replies by commentators and collectives has been posted by Orinam. In one of them, Gee Imaan Semmalar offers an analysis of the text of the judgment and its possible implications. He terms the judgment “confusing,” and it combines several transgender identities, for example referring to all Hijras as ‘third gender’. [31] Dutta points out that at one aspect it tries to promote self-identification but in another way, it is trying to promote more psychological tests. 

The Yogyakarta Principles was not accepted in its true spirit and letter.[32] The issue of sexual intercourse too wasn’t looked deep into. [33]The need for separate detention facilities was not taken into consideration. [34]It also doesn’t check on the atrocities by the Transgender community by the police who do not listen and solve the grievances of the TG community[35]. Thus the judgment does not look into the long term and extensive solution to the problems faced by the transgender community.[36]

Well in the end 15th April 2014 is a crucial day for the transgender community. It’s a very important step and plays a very important role in protecting human rights.[37]

Conclusion and the author’s personal view

It is great that now that there is a verdict which makes transgender a separate gender then the binary gender however all is not over now. The transgender community still has a long way to go. Battles are not won just like that. A lot of scarifies and effort needs to be put in. According to Guari Sawant who refuses to be addressed as a man or a female Speaking at Hijra Habba (Transgender Amalgamation) event organized by India HIV/AIDS Alliance said that “If people want to recognize us, then they should recognize us as transgenders.” It has been years since the historic verdict, but Sawant said that “it seemed changing people’s mindsets would take longer”.

“If people have started accepting me as a mother, they will also accept us at workplaces and give us more opportunities,” she hoped.

Sawant had adopted a girl, Gayatri, who was about to be sold off in the red-light area of Sonagachi in Kolkata.

“I adopted a daughter to show that even we can become mothers. I did it for my justice, for my rights so that people can recognize us,” she said.

Not bothered by being stereotyped and judged, Gauri is proud of the identity given by nature.

“Law has identified us as transgenders. It is about who I am. I’m not an alien,” she said.

While the fight for the transgender’s’ rights continues, she said she tried to find joy in the little things in life. 

So, in the end, it depends on what we make out of it and we should remember that our preamble starts with “We the people of India”.

Endnotes

[1]Salmaj, ‘A Case Note on National Legal Services Authority v. Union of India’, I pleaders (2017), available at: https://blog.ipleaders.in/national-legal-services-authority-vs-union-of-india-case-study/ (last visited on August 17th, 2018).

[2] Ibid.

[3] A Brief History of Transgender’s in India, Indian Institute of Legal Studies Blog (2017), available at: https://www.iilsindia.com/blogs/2017/03/10/brief-history-transgenders-india/ (last visited on March 12th, 2018).

[4] Ibid.

[5]  Sridevi Nambiar, ‘A Brief History of Hijra, India’s Third Gender’, Culture Trip (2017), available at: https://theculturetrip.com/asia/india/articles/a-brief-history-of-hijra-indias-third-gender/ (March 12th, 2018). 

[6] Ibid.

[7] Ibid.

[8] M.Michelraj, ‘Historical Evolution of Transgender Community in India’, Asian Review of Social Sciences Vol. 4, No. 1 (2015), pp. 17-19.

[9]Ibid.                                        

[10] Ibid.

[11] Anand Swaroop Das, ‘NALSA Versus Union of India: The Supreme Court has started the Ball Rolling’, Chanakya National Law University Journal Vol. 5, No.1, (2015), pp. 115-121.

[12]Ibid.

[13] The Constitution of India, 1950, Article 124.

[14] The Constitution of India, 1950, Article 15.

[15] The Constitution of India, 1950, Article 19.

[16] Supra note 1.

[17] Ibid

 

[18] NALSA vs. UOI (2014) 5 SCC 438.

[19]  Ibid.

[20] Ibid.

[21] Danish Sheikh, ‘National Legal Services Authority versus Union of India — Preliminary Reactions’, Alternative Law Forum, available at: http://altlawforum.org/publications/national-legal-services-authority-versus-union-of-india-preliminary-reactions/ (last visited on March 12th, 2018).

[22] Ibid

[23] Ibid

[24] Supra note 1.

[25] Dr. Lokendra Malik, ‘Asserting the Human Dignity: The Judgment of the Supreme Court of India in NALSA Case’, Live Law (2015), available at: https://www.livelaw.in/asserting-the-human-dignity-the-judgment-of-the-supreme-court-of-india-in-nalsa-case/ (last visited on March 12th, 2018).  

[26] Ibid.                                                                           

[27] Ibid

[28] Supra note 21.

[29]Supra note 1.

[30] Ibid

[31] Shreya Ila Anasuya, ‘Over Two Years After Landmark Judgment, Transgender People Are Still Struggling’, The Wire (2016), available at: https://thewire.in/gender/over-two-years-after-landmark-judgment-transgender-people-are-still-struggling (last visited on March 17, 2018).

[32] Supra note1.

[33] Ibid.

[34] Ibid.

[35]Ibid.  

[36]Ibid.

[37]Ibid.

 

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