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This article is written by Saurabh Kaushik, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).

Introduction

The Numbers, statistics documenting transgender people’s experience of sexual violence indicate shockingly high levels of sexual abuse and assault.

The Buck stops with the statistics regarding the ordeal of transgender people’s experience of sexual violence. More than 50% of the transgender individuals are sexually abused or assaulted at some point in their lives. Some reports confirms up to 66% of transgender may have faced the sexual related ordeal, often coupled with physical violence. These people live in the constant fear of repeat victimization.

It is not the statistics that is more worrisome, but the fact that there are no laws other than the [The Transgender Persons (Protection of Rights)] No. 40 of 2019, that protects these people against such abuses and assault, as police/ courts would not take the cognizance of either of these sexual abuses /assault or any other offences against such people as the laws of the land don’t recognise any other gender other than the binary gender of man and woman neither as a perpetrator nor as a victim.

Third gender people were not only part of our glorious history, having been mentioned in works like  Kama Sutra, religious texts like Ramayana and Mahabharata, until Britishers came to India, when they deliberately orchestrated the third gender community and made penal provisions against them. 

This article highlights the real plight of this community, as what they actually face in our country. The first Report on the issues of Transgender, in the year 1999 was in the State of West Bengal in support for the rights and protection of the third gender. Apex’s court 2014 NALSA judgement declared transgender people as the third gender,  at par with the other binary gender of man and woman with respect to all the rights and protection enumerated under the Constitution of India. Then came into existence in 2019, the transgender act [The Transgender Persons (Protection of Rights)] No. 40 of 2019, for enumerating the rights and safeguards particular to transgender people. However, there are transgender community still has grievances, as according to them the said 2019 Act is regressive when compared to progressive NALSA judgment. 

Our history has given them due importance and respect, society has always considered them auspicious for blessings, the Constitution has given them all the rights and protection at par with the other binary gender of man and woman.  Supreme court of India declares transgender as third gender and recognised there rights given in it. So now it is for the Legislature, Executive and the civil society to join hands and give them their long pending rights and protection as enshrined in our constitution.

What is sexual harassment?

With respect to women as the victims

As defined under Section 354A of the Indian Penal Code, 1860.

(1) A man committing any of the following acts—

(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) A demand or request for sexual favours; or

(iii) Showing pornography against the will of a woman; or

(iv)Making sexually coloured remarks, shall be guilty of the offence of sexual harassment

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 

The culpability under any of the above-mentioned acts amounts to sexual harassment; it is the severity of the punishment for the acts that differ for the liability (punishment).

As per Section 354D, Indian Penal Code, 1860 there are four different acts mentioned from (i) to (iv), committing any one of which would make a man culpable for the offence of sexual harassment, but it is the liability, that is the punishment for the said offence is what which makes first three mentioned acts more severe as compared to the fourth one.  The liability for the first three mentioned acts under Section 354A(i),(ii),(iii) is prescribed under Section 354A(2), which provides for rigorous imprisonment for a term that may extend to three years, or with fine, or with both. The liability for the fourth last mentioned act under Section 354A (i v) is prescribed under section 354A (3), which provides for imprisonment of either description for a term which may extend to one year, or with fine, or with both. 

So the first three mentioned acts are more severe as compared to the last one that is making sexually coloured remarks.

With respect to transgender as the victims

As defined under Section 18(d) of the [The Transgender Persons (Protection of Rights)] No. 40 of 2019.

Whoever harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing Physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.

Here in the given definition of sexual harassment applicable for transgender people, there is, however, no mentioning of any particular acts, as to what exactly would amount to sexual harassment. This non-mentioning is in itself harassment for the transgender people, as to whether a particular act would amount to sexual abuse/harassment will be decided by the police as per their understanding which may be arbitrary.

Who is the third gender?

Meaning of the third gender, transgender : a general understanding of these words

Third gender: Those who are biologically neither male nor female, maybe a man with a penis but without testicles, or a woman with no vagina, no menstrual cycles. Basically, they are men or women with incomplete reproductive body parts and therefore cannot procreate further.

Transgender: Is one whose gender identity or gender expression, differs from the sex that they were assigned at birth. Unlike the third gender, transgender is able to procreate further, they as a biological gender are complete, but they don’t identify themselves with that biological identity. Like a biological man considers himself not as a man but as a woman from inside, same as with the case of a woman, she doesn’t consider herself as a woman from inside but as a man.

Trans-Man: A person who was biologically a woman at the time of her birth, but after Sex Reassignment Surgery become a man.

Trans-Woman: A person who was biologically a man at the time of his birth, but after Sex Reassignment Surgery become a woman.

As defined under Section (2)(k) of the [The Transgender Persons (Protection of Rights)] No. 40 of 2019

Transgender person:

•Means a person whose gender does not match with the gender assigned to that person at birth, and 

•Includes trans-man or trans-woman (whether or not such person has undergone Sex Reassignment Surgery or hormone therapy or laser therapy or such other therapy)

•Person with intersex variations,

•Gender queer, and 

•People having such socio-cultural identities as Kinner, Hijra, Aravani and Jogta.

All the identities as mentioned above in (2)(k) of the said act, are termed as Transgender and these are the people regarding which this article proceeds.

Famous third gender personalities in India

In politics and activism

*Shabnam Bano– She was the 1st trans member of legislature assembly(Madhya Pradesh).

She worked her entire life on ending corruption, poverty, hunger and unemployment.

*Laxmi Narayan Tripathi – born as a male. She is one of the original petitioners in the apex court in the NALSA judgement. She is one of the most influential transgender activists. 

*Gauri Sawant– runs Sakshi Char Chowghi trust that aims to provide counselling and assistance to trans people and those with HIV/AIDS.

In prestigious government jobs

*Shabi Giri -Working as an Indian Naval Officer.

*Joyita Mondal– First transgender Judge( Lok Adalat).

*K Prithika Yashini -First trans woman police officer in India.

*Sathyasri Sharmila – First transgender registered lawyer in Tamil Nadu.

In other renowned fields

Manabi Bandopadhyay – India’s First Transgender College Principal.

Padmini Prakash-First trans woman news anchor of Lotus News, a local Tamil channel Nitasha Biswas.

Nitasha Biswas -first-ever trans beauty pageant.

Regressive Act (2019) in furtherance of progressive (2014) NALSA judgement

There is yet to be effective legislation protecting the transgender community from sexual violence.

Transgender people require a medical certificate to call themselves transgender

As per the act, if a transgender wants to continue his/her identity as transgender, then they have to apply to the District Magistrate for a certificate of identification indicating their gender as “transgender”. This is an outright violation of the NALSA, which is left to the transgender people to decide for themselves as with what identity (male, female or transgender) they want to identify. 

For chooses to be man or woman, sex surgery and certificate is required

Transgender who wish to identify as a man or woman, have to undergo mandatory sex-reassignment surgery. This very rule was criminalised by the court, as no one can force the transgender to undergo mandatory sex-reassignment surgery.

Who will bear the cost of sex-reassignment surgery?

Whether the sex-reassignment surgery would be free or at the subsidised cost, despite the fact it will be the basis of the identity certification, as without which a transgender person would not be considered either as a man or woman if he chooses to be one. 

The Act doesn’t define “discrimination”

Despite prohibiting discrimination, the act doesn’t explicitly define discrimination. There is a wide range of violations that these people face.

Doesn’t mention which particular acts would amount to sexual abuse as there in 354A of the Indian Penal Code, 1860 which is applicable for women as victims

Besides various issues faced by the transgender community, the case-in-point was the sexual abuse and sexual assault for seeking the rights and protection given under the Indian constitution for the other binary. The Supreme court had also recognised while decriminalising  Section 377, under the Indian Penal Code, that transgender people face sexual abuse and assault, at times at the hands of law enforcement officials. The act makes the sexual offence punishable with imprisonment of only up to two years, but it doesn’t mention the exact acts as what to would amount to sexual harassment as otherwise mentioned in 354A, Indian Penal Code, 1860 which is for the women victims.

The last resort for transgender’s, “begging” has been criminalized

People always question why trans people have to resort to begging. No one likes to beg but the plight of the transgender community was such that they did not have any recognition whatsoever, that is they didn’t even exist before the Supreme Court has declared them as the third gender. Because of these reasons besides other rights transgender people went to court to ask for the right to education, jobs etc and the same has been recognized by the apex court. The court has additionally recognised that transgender persons have been denied rights under Article 16(2) of the Constitution and discriminated against in respect of employment or office of the state on the grounds of sex. However,  the act doesn’t provide for reservation in education and employment for transgender persons. Instead, it criminalized “begging” which was the last and the only available resort for them to feed themselves.

No provisions for economic, social, cultural and political rights

The Act does not grapple with the realisation of civil rights such as marriage, civil partnership, adoption and property rights as well as social security and pension, thereby continuing to deprive transgender persons of theirs. 

There are no provisions in the act that deals with civil rights such as marriage, adoption, partnership, property, pensions, for transgender people thereby continuing to deprive the transgender community of their fundamental rights and the constitutional guarantee given in the constitution and declared by the Supreme Court in NALSA judgement.

Suggestions for further changes for the government of India

As the Apex court has recognised not only, the transgender as the third gender but also at par with the other two binary genders, that is the man and the woman with respect to protection and rights given under the constitution of India. The only legislative requirement that is needed to deliver the rights and protection to the transgender people that are given under our constitution, is by passing a bill which would state that whatever laws, acts, ordinances, rules, regulations are there as the laws of the land would be applicable to the third gender community as far as applicable to them, and in pursuance of that bill/act, the executive must have the right to frame rules and regulation that specifically deals with their issues. Like recently, after the amendment of Article 370 of the Indian constitution all the laws which were otherwise not applicable to the then State of Jammu and Kashmir and now would be applicable to that state subject to the executive power of central governments to make the necessary suitable changes as per the specific state requirements. By delegating the power to the executive to make rules and regulations once the act has been passed undo the legislative requirements to legislate each and every time which saves a lot of time and effort to make timely changes. 

However, easier said than done, despite such a progressive judgment as the (NALSA) delivered by the apex court, directing the government to implement all the changes that have been mentioned in the judgement, the government of India has come up with the 2019 transgender act, which is like giving peanuts for the cashews.

The petition has been filed in the Supreme court alleging that the legislation (2019, Transgender act) which was passed for giving the rights and protection to the transgender community is regressive in nature and violative of their rights, instead of furthering or protecting the rights of trans persons, violates their right to equality, life and privacy under Articles 14 and 21 of the Constitution. The CJI has also said that the petition is good and thereby issued the notice to the central government.

So the least the government can do in the meantime is to include the third gender along with already included other binary gender in Chapter XVI(16) of the Indian Penal Code, offences against the human body as that will give them the very much needed protection against the offences mentioned in the said chapter. As the 2019 transgender act is not serving the purpose for the rights and protection for which the petitioners of the NALSA judgement went to the apex court.

Conclusion

We are celebrating Azadi ka Amrit Mahotsav, (which is an initiative of the Government of India to celebrate and commemorate 75 years of progressive India and the glorious history of its people, culture and achievements). 

As far as progress is concerned, after Nykaa’s record IPO media is chasing Falguni Nayar (the owner of the Nykaa brand) for her interview, the brand which sells lipstick for INR 1100, in a country where the third gender sells their body literally for INR 50. 

Now come to the glorious history of its people, culture includes the Hijra community. 

Our history has not only recognized the Hijra community but also given them due importance and respect The androgynous Ardhanari, the one who is worshipped by many in the Hijra community, is one which signifies when Lord Shiva merges with his wife, Parvati. There were prominent Hijra characters in the most auspicious Hindu’s texts of the Mahabharata and the Ramayana. Hijra was mentioned in the Kama Sutra, a Hindu text on human sexual behaviour written sometime between 400 BCE and 200 CE. During the Mughal era in India, they held prominent positions of administration. Hindu’s have always considered them auspicious for their blessing on events like the arrival of a new bride in the home, the birth of a child. But after Britishers came to India, they sought to eradicate and criminalize the Hijra community through various laws.

Now putting all the things in, if we want to celebrate Azadi ka Amrit Mahotsav in its true sense, we as a nation must stand for this community and raise our support at least on the internet, something like #THEY TOO to be included for the rights and protection given in our constitution and recognised by the apex court in the 2014 NALSA judgement. The 2019 Act, [The Transgender Persons (Protection of Rights)] No. 40 of 2019 has not served the purpose and therefore it has been challenged in the Apex court and the then CJI has said that it is a good petition and hence issued the notice to the government of India.

These third gender people are no less human than the rest of us, they too have all the emotions, desires, dreams, ambitions, fears, bucket-list and what not as rest all of us have. As we Indians don’t like to be discriminated against because of the Western world’s perception of India as a third world country, similarly these third gender people also don’t like to be discriminated against by the perception of the binary gender people.

The reforms which these people are asking is not something that is earth-shattering to legislate for the legislature, as doing these reforms will not harm any political party’s vote bank irrespective of their political ideology, be it left, right or centre, as that is the foremost consideration for any political party to think before legislating for anything new. As these reforms for third gender community is not as culturally sensitive as was favouring for the decriminalization of Section 377 of the Indian Penal Code, where the central government left on the apex court to decide itself, whether to decriminalize the consensual aspect of the said Section or not.

References

  1. https://www.pcar.org/sites/default/files/resource-pdfs/tab_2013_fall_servingtranssurvivors.pdf
  2. https://wcd.nic.in/sites/default/files/Final%20Draft%20report%20BSS_0.pdf
  3. https://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf
  4. https://translaw.clpr.org.in/case-law/nalsa-third-gender-identity/
  5. https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-354a-sexual-harassment-and-punishment-for-sexual-harassment
  6. https://lawrato.com/indian-kanoon/ipc/section-354A
  7. https://www.news18.com/news/politics/indias-first-transgender-mla-eyes-mp-polls-for-a-return-to-active-politics-1826539.html
  8. https://thewire.in/gender/over-two-years-after-landmark-judgment-transgender-people-are-still-struggling
  9. https://www.dnaindia.com/india/report-india-s-first-transgender-soldier-vows-to-fight-for-her-job-2541884
  10. https://www.newindianexpress.com/nation/2018/jul/13/assam-gets-its-first-transgender-judge-third-in-country-1842803.html
  11. https://www.indiatoday.in/cities/kolkata/story/manobi-bandyopadhyay-india-first-transgender-college-principal-denied-rtpcr-test-called-mental-by-hospital-staff-1814827-2021-06-14
  12. https://indianexpress.com/article/explained/understanding-articles-370-35a-jammu-kashmir-indian-constitution-5610996/

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