This article is written by Shobhna Aggarwal, currently pursuing B.Com LLB from Banasthali Vidyapith. This article deals with the protection and rights of the transgender community with special reference to Article 15 of the Constitution of India.
A male or a female, an animal or a human being, all have been given recognition in the eyes of law, protected by laws, by-laws, and statutory regulations. The people belonging to the scheduled castes, scheduled tribes, and other backward classes are given reservation in the society for various opportunities in almost every aspect. Besides these, there is a group of people who are together called “transgenders’ ‘ derived from the Latin word ‘trans’ meaning beyond or across. Thus, the community is beyond the normal classification of gender or sexual orientation. In layman language, people call them ‘hijras.’
Societal changes and revolutionary movements demanded the legalized protection of the rights of the transgender community, which paved way for the development of the Transgender Persons (Protection of Rights) Act, 2019. The Act not only has provisions for the protection of the rights of the transgender community but also ensures that equal opportunities are provided to the people for securing their livelihood and achieve a life of dignity as guaranteed under the Constitution of India.
Importance of transgender protections
The importance of transgender protection arises due to the various issues faced by the community in almost every field of life. The issues on the lack of legal protection, poverty, lack of identity documents, and harassment and stigma form the major problems faced by the community as a whole and thus, makes it necessary to protect the transgender community.
It was in the case of Jayalakshmi vs State of Tamil Nadu (2007) 4 MLJ 849 that a transgender was sexually abused in the police station by the police officials. He was alleged to have committed theft but the treatment given to him was not the kind given to other thieves.
Further, the amendment of 1986 to the Immoral Traffic Prevention Act, 1956, made both the men as well as transgenders the subjects of criminal acts in matters of trafficking of children and women. The possibility of transgenders being a victim of such offense was completely ruled out.
Also as suggested by a report National Transgender Discrimination Survey (NTDS), about 15 per cent of the transgender community live in extreme levels of poverty. Almost 33 per cent of transgenders do not have their identity documents because of the fear of rejection or embarrassment which they have to suffer on revealing their truth.
Transgender protection and Sex Discrimination
The laws regulating and protecting the lives of humans are many, but when it is about the protection of transgender people, there is an efficacy of the same.
Trans people are the ones who are born with particular sex but their gender identities do not conform to the same. Such people, in most cases, are met with discrimination on their sexual orientation and this is termed transphobia. The number of cases of sexual discrimination met by the transgender Community goes unreported most of the time.
Kerala being the first state to launch the State Policy of Transgender has many incidents of sexual discrimination faced by trans people. Incidents of a trans woman being locked up in a ventilation-less room for a total of 30 minutes went unreported, the reason being the police officials also being involved in harassing the transgender under the false presumption of them being prostitutes.
This ill-treatment met by the transgender community reveals the non-acceptance of the community by the society and violation of the basic fundamental rights to a section of people infringing Article 15 of the Constitution which prohibits any sort of discrimination on the basis of race, religion, caste, or sex or any of them.
The right to self-identify one’s gender, including as “third gender”- Constitutional right to live with dignity
The right to live with dignity, provided under Article 21 of the Constitution of India states that every individual has the right to life and personal liberty. The ambit of the provision has been widened to a great extent since its inception and through various judgments, including the right to live with human dignity and not just an animal existence.
Considering the situation of the transgender community, they have not been given the status to enjoy their rights until the 2014 judgment of the Supreme Court of India in the case of National Legal Services Authority vs. Union of India, Writ Petition Civil No. 400 of 2012. It was only after the referred case that the transgender community was given the recognition of “third gender” having the right to live with human dignity in society. Prior to the judgment, the community was always disregarded, not given an equal position in society and neither were any equal opportunities available to the community as a whole.
The judgment recognized the term ‘person’ as a gender-neutral term used in the Constitution and therefore, any sort of denial of rights to the transgender community, recognized as the third gender would be violative of Article 14 and 21 of the Constitution of India. This ensured the right of the community to live a dignified life in society lifting up the fear of being sexually abused or harassed.
The prohibition of sex discrimination under Article 15
The Constitution of India under Article 15 provides for non-discrimination of persons on the ground of religion, race, caste, sex or place of birth, or any of them, by the State. It also states that any citizen shall not be made liable for any restriction, disability, or liability on the basis of religion, race, caste sex, or place of birth.
Article 15 clearly prohibits discrimination on grounds of sex but the Transgender Persons (Protection of Rights) Act, 2019 does not comply with this Constitutional provision. The basic requirement of the certificate of identity under Section 5 of the Act, 2019 for the legal recognition of the particular person as a transgender is a violation of Article 15 of the Indian Constitution. The provision creates a distinction between the other sexes and transgenders as there is no requirement of any certificate of identity by the male or female gender, but only the transgenders have to fulfill the criteria, thus opposing the basic objective of Article 15 and creating sex discrimination.
Lack of affirmative action measures across the employment and education sectors
The Transgender Persons (Protection of Rights) Act, 2019 which is supposed to protect the interests of the Community of Transgender, works the other way around on certain legal aspects. Firstly, the Act was never considered from the point of view of the Community and was formulated on the basis of existing assumptions about the same. Thus, the practical approach is lacking in the Act, 2019. This is quite evident after close scrutiny of the provisions of the Act whereby there are no provisions regarding the reservation to the community and this poses a serious threat to their employment opportunities, which can easily be taken away by the corrupt and rich people of the society. With changes in the form structure of almost every Employment sector to include “third-gender” as a part of sexual preference can be considered to be an affirmative move, but the scenario is the real world goes contrary whereby the transgenders are not preferred for appropriate posts after their identity gets revealed.
Further, no specification with regards to the education policies of the trans people also hovers the bitter truth of a theoretical approach taken for the formulation of the Act. The revelation of the trans identity creates a sense of fear within the person to get assaulted or harassed resulting in mental disturbance. Apart from the lack of laws on education and employment policies, the Act also does not take into consideration any rules regarding the marriage of the transgender community. The provisions for adopting a child by a trans person does not find its place in the Act, which reiterates that the law has been made without understanding the needs and requirements of the community.
The laws on inheritance and property are also not a part of the Transgender Persons (Protection of Rights) Act, 2019, which embarks that the Act is not sufficient to protect the interests and rights of the Transgender people and thus, requires reconsideration.
The basis of discrimination met by the transgender community was never formulated in the Nation, as the Constitution of India provides for the Right to Equality under Article 14 and also prohibits discrimination under Article 15. But the non-implementation of the provisions gave way to various levels of abuses faced by the trans people. This paved way for formulating stronger and special legislation to protect the rights of the transgender community. Therefore, the Supreme Court of India recognized the rights of the Transgender Community considering them to be the “third-gender” in 2014 with the landmark judgment of National Legal Services Authority vs. Union of India, whereby the Court directed the formulation of the legislation of Transgender Persons (Protection of Rights) Act, which came into effect in the year 2019. Prior to this legislation, there was no law protecting the rights of the Community.
Apart from the laws of India, the Universal Declaration on Human Rights provides the definition of ‘Equality’ under Article 1, providing for equality amongst human beings. Article 16 of the International Covenant on Civil and Political Rights confer on every individual a right of recognition as a person before the law, thus curtailing the discriminatory factor on any grounds.
Further, in the year 2006, Yogyakarta Principles were formulated by distinguished human rights experts for regulating laws on sexual orientation and gender equality, considering the utmost requirement to remove discrimination met by transgender persons.
National Legal Services Authority v Union of India and others
The rights of the transgender community were recognized as a “third-gender.” Apart from this recognition, the Central and the State Government was were asked to regulate the social welfare schemes and other necessary and required provisions for the protection of their rights leading to the development of the Transgender Persons (Protection of Rights) Act, 2019.
Suresh Kumar Koushal and another v NAZ Foundation and other
Section 377 was reinstated by the Hon’ble Supreme Court and it was held to be constitutionally valid, overturning the decision of the High Court in the case of Naz Foundation vs. Government of NCT, Delhi.
Need for amendments and new laws
The evolution of the Transgender Persons (Protection of Rights) Act, 2019 has provided a platform for the transgender community to evolve in the global world and showcase their talents, grab the required opportunities and make a mark in society. But there are many aspects that need to be reconsidered while the Act is in play. The penal provisions for punishing the wrongdoers or the ones involved in sexually abusing the transgender community are not sufficient to provide justice to the community. Thus, there needs to be an acute analysis of the penal provisions to penalize the sexual abusers in order to provide a safe environment for the transgender community.
Further, the absence of provisions with regards to gender-neutral washrooms for the community also surfaces the loopholes of the Transgender Persons (Protection of Rights) Act, 2019 which needs to reconsidered for the proper protection of the rights of the Community.
After a brief study on Transgender and the laws implemented till date for the protection of their rights in society, it can be said that the laws have many loopholes and there is a requirement to amend certain provisions and also add a few more with regards to marriage, adoption, property, and inheritance.
The laws on marriage would provide the attainment of a true form of Right to private life as guaranteed under Article 21 of the Constitution of India. Further, even a trans person has the right to maintain the successors, and therefore, adopt children. But the lack of any certain provisions on this aspect curtails the basic rights and creates a bias between the transgender people and the other males and females. Thus, it is suggested that there are amendments on the adoption and maintenance laws of the Nation.
Further, any transgender should not be denied the basic rights to inherit the property from the predecessor or the parent of such transgender. Indian Succession Act, therefore, requires amendment on this respect for insertion of rights of inheriting properties by a trans person.
The penal provisions should also be increased to ensure a safer and deterrent measure to curb the menace of sex discrimination met by the transgender community.
The laws need to be the same for every individual of the Nation. Any sort of discrimination prevailing on the grounds of race, religion, colour, sex, or any other basis creates a threat to the secular and democratic structure of the country, which is not welcoming for the Nation. Undeniably, the community of transgender had been facing an enormous level of discrimination due to an uncontrollable factor of their sexual orientation. In spite of legislation prohibiting discrimination amongst people, the practical scenario differs which tends to create an imbalance in society, and infringes the basic rights of the transgender community.
Society needs to accept trans people in order to ensure the proper implementation of the laws made for the community. The lacunas in the laws exist because of the tendency of the society to not follow the rules and regulations which go against their personal interests. Once this psychology of the human mind finds an escape and makes an attempt of accepting every genre of people, the lacuna will automatically disappear, and Article 15 of the Constitution of India will be rightly upheld, prohibiting any form of discrimination.
- Basu D.D., Constitution of India, 14th Edition 2009, LexisNexis Butterworths Wadhwa Nagpur. Desai.
- Dhruva Gandhi, Unnati Ghia, A Constitutional Challenge to the Transgender Persons Act in India, Blog of the International Journal of Constitutional Law, http://www.iconnectblog.com/2019/12/a-constitutional-challengeto-the-transgender-persons-act-in-india (Accessed on August 25, 2020).
- Gautam Bhatia, Transgenders- Indian Constitutional Law and Philosophy, WordPress, https://indconlawphil.wordpress.com/tag/transgenders/ (Accessed on August 25, 2020).
- Jayalakshmi vs State of Tamil Nadu (2007) 4 MLJ 849.
5.Manoj K. Jha, Transgenders Rights in India, https://iasscore.in/national-issues/transgender-rights-in-india (Accessed on August 25, 2020).
- National Legal Services Authority vs. Union of India, Writ Petition Civil No. 400 of 2012.
- NAZ Foundation vs. Government of NCT, Delhi, 160 Delhi Law Times 277.
- Shukla, Kaustav, Constitutional Reality of Transgender in CAPF, Indian Legal Live, https://www.indialegallive.com/special-story/constitutional-reality-of-transgender-in-capf (Accessed on August 25, 2020).
- Suresh Kumar Koushal and another vs. NAZ Foundation and other, (2014) 1 SCC 1.
- Transgender Persons (Protection of Rights) Act, 2019.
- V.S. Krishna, V.S. Dinesh, Transgenders are no way Different”- Protection of Their Rights, Manupatra, (Accessed on August 25, 2020).
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