In this blogpost, Toshali Pattnaik, Student, National Law University, Assam, writes about on what grounds is transgender and individual discriminated, what is the impact of discrimination, what are its results and what is the scenario in India
The seminal accomplishment of the feminist movements in distinguishing sex and gender drew attention to how gender is socially constructed. In general parlance, the society perceives gender as a binary. Consequently, gender issues mostly address two sections of the society: men and women. In this process, the existence of the third gender is not recognized, or to be more precise, forgotten. Transgender is an inclusive term incorporating all those individuals who challenge the society’s terminology of gender being a binary category. They have broken away from societal expectations to conform to the binary. The term ‘transgender’ was popularized by Virginia Prince and has been defined as ‘an umbrella term that refers to all identities or practices that cross over, cut across, move between or otherwise queer socially constructed sex/gender boundaries’, by Susan Stryker in her influential essay in the late twentieth century.
With the advent of globalization, the influx of modern liberal ideas created the foundations for an inquisitive mind. Awareness of the social construction of gender identities provided a rich insight into how it is read within the heterosexual matrix of meanings. Some people began challenging this binary category of gender and opened the gates for the emergence of a new category called ‘transgender.’ However, there exists a wide range of diversity in this category where it becomes difficult to differentiate individuals into male and female dualities.
Discrimination against Transgender Individuals
As gender is conventionally perceived as a binary, transgender people are victimized and discriminated when they do not discipline themselves into the seemingly timeless and unchanging traditions of gender identities constructed by the society. The antagonistic attitudes, emotional disgust and indignation felt towards the transgender people encapsulate the struggle they undergo for earning recognition in the society. They encounter hate crime and transbashing, rooting from prejudices and discomfort felt towards accepting their gender identities which challenges our belief system. The society miscasts them as sexual deviants owing to their non-conformity with the gender binary. They encounter incredible barriers as job applicants and are fired, denied promotion or harassed when they reveal their transgender identity. Large scale unemployment leads to marginalization, poverty and homelessness, enhancing their vulnerability towards physical violence, sexual abuse and exploitation. Those who become desperate to find a route out of this forlorn circumstance, become primary targets of the trafficking host. Though sex trafficking of the transgendered people is the most visibly egregious part of the problem, it is just the tip of an iceberg of the massive exploitation and discrimination that the transgendered individuals undergo.
Most of the transgender people undergo economic deprivation and status frustration. This victimization alienates them from the main stream society. The need to be free from this vicious cycle is so intense that they get drawn into the illegitimate opportunity structures. In the process of seeking prospects in the unexplored land, they create fertile grounds to be exploited.
Further, the transgendered individuals face discrimination in school, housing facilities, public places such as the restrooms, prisons, jails and a numerous other domains which makes the list endless. The denial of medical amenities creates reluctance in their attitudes to access the health care mechanisms and make them lose faith in the entire system. Browsing ‘Discriminations against Transgender’ fills the desktop screen with latest news highlighting the social stigma the transgendered undergo. Even when a transgender is discriminated against, their voices do not always reach the legal system running the country. The only thing they seek is recognition to live their life peacefully. However, societal prejudices and belief system does not permit the same. The scene fades to oblivion at key moments, selectively revealing the demise of the transgendered.
The tale of Amanda Milan and Gwen Amber Rose Araujo speaks volumes about the struggle that a transgender individual undergoes for mere survival in the prejudiced society.
Impact of the Discrimination
As every action has an equal and opposite reaction, similarly, the discrimination imparted by the society on the transgendered has profound impact on the society itself. Society has witnessed perpetration of violence and crimes by transgendered individuals, which stems from the aggravating resentment cultivated by negative societal reactions towards their perceived sexual orientation. The abrasive attitude towards the transgendered individuals in turn plummets the level of self esteem and self worth in them, leading to an increase in high risk behaviors, such as sex work. The passengers travelling in Indian Railways face the threat of extortion by the transgender people. Apart from these negative impacts, the aggravating repugnance that society exhibits towards the transgender community has driven them towards making an undying collaborative effort to secure social change by opening the gates for third gender rights. The escalating awareness about human rights has provided a tremendous boost to the revolutionary attempts of the transgender activists. The scene has sought to capture the view of many scholars, nationalizing and internationalizing the cry for human rights of the transgendered individuals.
Results and discussions
Human Rights are inalienable fundamental rights derived from natural law. As natural law is independent of human will and is considered to be superior to all other laws, human rights are conferred upon every individual without any discrimination. They are individual entitlements accepted universally. The first article of Universal Declaration of Human Rights (UDHR) establishes the foundation of human rights. Whenever an individual is subject to torture, cruelty, inhuman or degrading treatment or punishment, then according to Article-5 of UDHR and Article-7 of International Covenant on Civil and Political Rights, there occurs human rights violation. Further, paragraph 21 of the United Nations Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment clearly states that ‘States must ensure the protection of all individuals regardless of their sexual orientation or transgender identity by prohibiting and preventing all acts of violence and abuse against these individuals.’ These international legislations for protection of human rights are followed in various nations all over the world, to secure transgender rights. Transgender individuals express an innate sense of gender other than their birth sex. Because of their non-conformity with the gender norms, they become targets of hate crimes and exploitation. The term ‘transgender’ includes, but is not limited to, transsexuality, heterosexual transvestism, gay drag, butch lesbianism, and such non-European identities as the Native American berdache or the Indian Hijra. Hindu Mythology speaks luminously about the transgendered individuals. The Vedas and the Puranic scriptures recognize their distinct gender identity. The concept of ‘psychological sex’ enshrined in the Jain texts provides evidence that the religion identifies transgender individuals. They even occupied a significant role in the royal courts in Medieval India. However, under the British Raj, they were labeled as ‘innately criminal’ under the Criminal Tribes Act, 1871. Ever since then, they have been victimized and exploited by the prejudiced society.
The transgender community suffers from neglect, humiliation and trauma all over the world. In India, transgender earn their daily bread by begging, performing religious ceremonies and most painfully through sexual work. They face social ostracism and are even disowned by their own families on revealing their transgender identity. The social stigma, poor treatment, and denial of medical amenities create reluctance in their attitudes to access educational facilities and health care mechanisms. State mechanisms of Police who are considered to be the protectors of rights are unfortunately becoming predators of their rights.Thus, the tale of human rights violation of the transgender recapitulates the throes of revolutionary social change that they desire to bring about.
The abrasive attitude of the society towards the transgender springs from the fact that they lack equality before law. The Indian Penal Code defines ‘gender’ in Section 8, ‘man’ and ‘woman’ in section 10 and ‘person’ in section 11. The absence of the term ‘third gender’ in the penal law of India is what arouses concern in the transgender community. However, they can be included under Section 12 of the Indian Penal Code, 1860 which provides a wide scope to the definition of ‘public’. Yet, interpretation of this provision to include the term ‘transgender’ would provide the marginalized community some respite.
Further, Section 377 of IPC criminalized private consensual sex between adult of the same sex which violated Articles 14, 15, 19 and 21 of the Constitution of India. Under this provision they were discriminated and threatened by Police. Even NGOs working with sexual minorities were harassed. This piqued a cry for justice for the transgender. Only after the Delhi High Court judgment in Naz Foundation v. Government of National Capital Territory of Delhidecriminalizing Section 377 with respect to gays, the transgender community took a sigh of relief. However, the Supreme Court turned the clock back with the gay sex bam on 11th December, 2013 unequivocally stating that the 2009 Delhi High Court verdict that decriminalized homosexuality was not constitutionally sustainable as only Parliament could change a law, not the courts. This left the gay activists and the transgender community in despair.
However, the inclusion of ‘other gender’ in passports, voter’s identity cards and other identification documents has provided the transgendered an opportunity to step forward. They were even incorporated in the 2011 census. Further, the Union legislature has made both the perpetrator and survivor of the acid attacks gender neutral.
According to the UNDP Indian Annual Report for 2010, attempts to bring the less privileged communities to the forefront has ensured sustained advocacy for the transgender community which has resulted in greater recognition of their specific needs in planning and legal procedures. It is now possible for them to access free legal aid from the government. They have even contributed to the 12th Five Year Planning Process with the help of UNDP.
This changing scenario is ameliorating the lives of the transgender people. However, the path breaking judgment of the Supreme Court in the case of National Legal Services Authority v. Union of India recognized ‘Third Gender’ and directed the Centre and State Governments to treat them as Socially and Educationally Backward Classes of Citizens and extend to them the privilege of reservation, medical amenities, educational facilities etc. This gave a cause for celebration to the less heard community. Further in the case of Shivani Bhat v. State of NCT of Delhi & Ors. And K.Prithika Yashini v. The Chairman of Tamil Nadu Uniformed Services Recruitment Board, the human rights of the transgendered community was recognized, thus declaring victory of the transgendered in their battle for recognition.
The transgender community has endured injustice, prejudices, hatred, humiliation, indignation, violence, abuse and different forms of exploitation at the hands of the society. This discrimination had remained hidden within the massive population dynamics of the nation as they lacked equality before law. Previously, the veil of ignorance and prejudice made the identification of their struggle for survival formidable. However, due to the active role of the media and the transactivists, news related to the human rights violation of the transgender has served as a wakeup call to many incognizant souls in deep slumber. Social acceptance is the best way to secure the transgender rights. However, judicial activism, political considerations and social sensitization of transgender rights is the call of the hour. Today, events like International Transgender Day of Visibility, Transmarch, Pride parade etc are being observed worldwide to bring about cognizance and flexibility among the general masses. The Transgender Day of Remembrance, celebrated on 20th November every year, is an event observed in the memory of those transgender individuals who had pledged their life to improving the conditions of the queer group. However, endeavors from the society are equally required to restore the status and rights that the transgender community once enjoyed. This is possible only if we change our current belief system and develop a tractable attitude.
India is a democratic republic. The Indian Government is of the people, for the people and by the people. Thus protection of human rights of the citizens of India is the soul of democracy. Moreover, judiciary is the guardian of the Constitution of India. As the Constitution grants right to equality before law (Article 14), prohibition of discrimination on the grounds of religion, race, caste, sex or birth place (Article 15), freedom of speech and expression (Article 19) and right to life and personal liberty (Article 21), it is of upmost importance that the judiciary, through judicial interpretation of the existing law, secure the human rights of the transgender community.
Transphobia is a threat to humanity. The battle between transrespect and transphobia has now become a war. It is solely upon us to decide which side wins. The transgender community has already witnessed immense exploitation because of their non-conformity with the socially constructed gender binary. Not accepting them even after hearing their cry for help and understanding the insurmountable odds that they undergo, would be a shame on humanity. Mere recognition of their community in the society is all they desire to lead a peaceful life. So let us come together and end their struggle against violence and exploitation.
This blogpost was originally published on http://racolblegal.com/struggle-for-recognition-a-cry-for-human-rights-of-the-transgendered/
Paisley Currah, Richard M. Juang & Shannon Minter, Transgender Rights 4 (1st ed. 2006).
Sally Hines, Transgender Identities: Towards a Social Analysis Of Gender Diversity 214 (2010).
Indrani Sen Gupta, Human Rights of Minority and Women’s: Transgender Human Rights viii (2005).
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/C/GC/2 (January 24, 2008).
Indrani Sen Gupta, Human Rights of Minority and Women’s: Transgender Human Rights vii (2005).
Paisley Currah, Richard M. Juang & Shannon Minter, Transgender Rights 4 (1st ed. 2006).
Shivani Bhat v. State of NCT of Delhi, Date of Decision 5-10-2015.
K. Jaishankar & N. Ronel, Proceedings of the Second International Conference of the South Asian Society of Criminology and Victimology (SASCV) 276 (2013).
Id. at 276.
Naz Foundation v. Government of National Capital Territory of Delhi (2009) 160 DLT 277.
K. Jaishankar & N. Ronel, Proceedings of the Second International Conference of the South Asian Society of Criminology and Victimology (SASCV) 278 (2013).
National Legal Services Authority v. Union of India AIR 2014 SC 1864.
Shivani Bhat v. State of NCT of Delhi, Date of Decision 5-10-2015.
K.Prithika Yashini v. The Chairman of Tamil Nadu Uniformed Services Recruitment Board, W.P.No.15046 of 2015, Date of Decision- 3.11.2015