This article is written by Rashi Sharma, a student from Amity Univeristy, Noida. In this article, the author deals with the challenges and hurdles faced by the transgender in country like India.

Introduction

Every person deserves to be respected in the country despite being of any religion, caste, and gender. This study will take your attention toward the rights of the Transgender people and how they are and were treated in the world. Transgender people also have their right in the constitution as normal human rights. Rights of the Transgender people are protected by the norms of the international and national apparatus. Past of these people have been really struggling to survive and to make a place for them in the society. As far as Indian society is concerned they follow their culture and traditions with so ease that they did not consider transgender in any religion. Although, things have happened which says that transgender people did not get any allowance in the stake was because of the policies made and the loose stand taken by the government for them. These people have experienced extreme challenges and hurdles proved to them by the socio-economic culture of the society. They have socially left out and were forbidden to engage socially in the society.

A lot of crimes and offences has been taken place against these peoples and it has happened that those criminals were also left unpunished by the law. Our constitution aims at equality before law but they were not treated even near the statement. Abuse, assault, violence, sexual harassment are few of those crimes which have been committed against them and been left untreated. Extortion, criticism, mental dissatisfaction was few random effects which were in the life of the Transgender till the time Transgender Bill was passed in 2019. Gay, lesbians and other bisexual people were given place in the Indian society but Transgender were accepted last by the society. The present study deals with the challenges and hurdles faced by the transgender in country like India. Living in 21st century rights are ensured and preserved for every individual, considering transgender in the same.

Everyone takes birth with a different personality at various levels. A girl, A boy are two commonly known genders which is really easy to find and then comes the category of the bisexual people which is not easy but is becoming really often to find in today’s generation. Gay, lesbian, homosexual are three significant names that are given to the people who choose to live life of their own style with no judgments. Whenever or where ever we travel in this world we will always come across people who are breaking the gender frontier in the entire nation. Turning into a new gender and liking someone of the same gender are two different things which people really tend to mix. I am talking about the small ways to teach Gender equality like being a Gay or Lesbian but I mean not the sexual orientation we are talking about here but crossing the border to turn into somebody else and leave the original personality for all. People who love to take risk and do not care about the culture, tradition of a country and have guts to challenge the government by following such kind of unusual means to shine out. History speaks for everybody whether is about changes in castes, culture, religion gender or transgender there is always one or the other being representative of the same.

Transgender or turning into transgender was originated in 1970s from the German sexologist named Magnus Hirschfield, which was later developed into, the Berlin institutions where the first Sex change operation took place. The first use androgyne was recorder in 1552, but in the last 10 years people have started claiming to make use of it pretty often which describes the state of being in between or having both gender qualities. ‘Polygender’ is again a different state which was introduces in California and states the characteristics of a person who posses quality of Multi-Gender. Then this whole new culture was started in the many countries including India which bought evolution and modernization as two processes of the change. Although gender equality is the big question for every constitution to accept but with the change in time and evolution along with it now people have accepted the fact of turning into transgender. Lot of harassment and abuses are faced by them in many fields because of the mindset of the people in society. Inequality faced by them is because of the illiteracy that is very common among the people of India who do not understand the concept and need of the transgender. Some people also think that maybe transgender is Gay but it is not the sexual affection but the Gender identification of a person and they cannot be identified by the way of appearance or behavior. Lot of discrimination is bought for them in the field of employment sector they are treated as the mode of people who aren’t strong enough to work with men in the society. Their classmates hares them in the school and do not treat them as the member of the community. In college we have low rate of discrimination but it prevails as they have to publicly identify their personality. All this happens when they actually have to decide which bathroom to use and in which dressing room to change.

Policing also plays a major role in arresting transgender whenever chaos is committed in the society or any part in relation to the gender discrimination. They also face problem arising with the health care department o the country as many doctors deny treating transgender people because of their biological defect. Nearly 42% transgender have reported the crime and harassment done by the doctors at the time of the treatment. Both violence and non-violence and verbal and non-verbal offences have been taken place and all this occur because of inequality raised by the senior section in every economy. Suicidal cases are very often to find in all the transgender community. As they tend to face lot of burden and inequality by the society so they find suicide a easy way to get out of the situation. Judicial system has been fallen in accumulating trust in the third gender community. Suicide rates have increased from 3% to 49% in many areas of the world depending o the color and white black matter too that is still in motion. The biggest discrimination for them and maximum amount of violence has been raised by police towards them in all and is the biggest example of violence reader. More threat and violence happened with them with the rapid speed of 1.5 more than any other people in the society. More of violent crimes and hate motivated violence made them suffer a lot. With all the discrimination faced by the society and people transgender choose to be who they want to be and take all the struggles and hurdles given to them by the world. Being what you want to be without thinking about the history is no crime or damage to the country, people need to understand the difference.

Challenges faced by Transgender

Health Issues

As a transgender, it is pretty obvious to face great amount of medical issues in the body. The first problem faced as a transgender is Gender Dysphoria. This is a type of disorder that can occur at any time and at any place of education, work etc in a transgender. It creates a lot of headache which occurs because of the problems these people have been facing socially and economically in the society. This happens because of change of hormones in the body from man to woman or vice versa. Many surgeons have tried to invent recovery for the problem but the body structure and change in the hormones or from chest to breast or penal to vaginal transformation it has become a tough job in the history of medical science. Another main problem that occurs being a transgender is ‘MSM’ men having sex with men. This tends to create health issues like STI and HIV viruses which altogether have high percentage of occurring in Transgender as a whole. This happens because of the lack of medical awareness and literacy problem. HIV prevention education is must to be given to all transgender community. No difference was found in transgender men or women in the use of condom, drug usage or alcohol consumption though the risk of HIV occurred high with 17% in transgender people. With theory of less indulgent with different parties at one time inspite of that too transgender were at high risk of HIV. This risk was specifically low in ‘MSM’ but was considerably high in ‘WSW’ i.e. in women having sex with women because of their loose parts.

Prostitution

In many cases, it has been seen that these people are forced to go in profession of prostitution. This was insisted in their community by their own friends and own relatives. Few parents too were found indulging them in the profession of prostitution, knowing the fact that it is not really respected in every country of the world. In case of National Legal Security Authority vs. Union of India and Others on 15th April 2004 it has been seen that many transgender were forced to work as sex workers to earn their living and live as there was no other right for them by the Indian Constitution. No other profession use to accept them to work as there was no significant area of work which they can really do.

Inhuman Activities

Activities like rejection in entering public and religious places by transgender was one activity which is supposed to be inhuman in nature and was actually performed by normal humans of the society. Parents of transgender force them to leave the house at the earliest because of what society will say to them when they will keep a transgender boy or a girl with them. It was a complete myth and threat which they face by the society. People use to give them unwanted attention by insulting them, abusing them in public places, punishing them for no reason and cursing them out of the society. Although these people were transgender yet they face lot of rape instigations, verbal and physical violence by the men of the society. is this not really inhuman on their part that they call someone a non-human transaction and beat them just for the same reason. They were treated more badly than backward classes and were given no place socially and economically both. They were not even provided the protection for the violence that was happening every day by everyone. 

Poverty

Another major challenge aced by these people was poverty. This problem occurred because educationally these people were not trained as they were restricted from all main education institutions to enter and to enroll and even from the public sector before the reservation came in possession. Employment opportunities were nearest to zero for them as they were not included in any community by the people. They had to choose all wrong procedures and way to earn for their live hood and living. They were so poor that it was very difficult for them to manage food for two times in a day. Either they had to choose profession like prostitution or else have to beg, or dance in small functions and make of themselves and earn. To eradicate the problem of poverty reservation nearest to 4% and 2% came around for these people. In 2014 access to the education institutions was opened for them as a third gender community. Poverty is not just a matter faced by them but it is a problem of whole country faced in some way or other.

Fight for Gender Recognition 

For Gender recognition of a person one must respect personal liberty and choice. Article 21 of the Indian Constitution states the same significance as every is the country is free to choose whatever gender they like and of their choice to live and none can violate it. Transgender have to fight for their recognition inspite of all these stated facts in the country. They were not treated in the third gender community and were treated as Hijras by the people. Identification certificate was not even enough to prove their citizenship of the country. People use to treat them like they were not even part of the Human culture but were just present to celebrate in parties and weddings like Hijras do. Later they were provided with a medical and state certificate by the DM which proves their recognition as a normal person. It was really hard for a society like India to accept people in the third gender but they were given all the rights by the Indian government. The exact theory of gender identification was passes in 2014 as to what is transgender community. 

Misconception of Transgender as LGBT community

A common misconception that arises in people living in the society is that they mix transgender community with the LGBT community. This community comprises of Gay, Lesbians and the Homosexuals but not the third gender community. Now it has become pretty evident to identify these people by their medical certificate and by the certificate issued by the DM of the city of their identity. These people have sexual preference and persuasion of their choice. It is also a delusion that occurs in the people that a man who dresses or looks like woman or a woman who dresses like men are of transgender community. They do so because they are happy to dress like one and it does not make them belong to the transgender community. Gender Dysphoria is another problem that occurs because of all the misconception that is created amongst the people in India. It creates a lot of stress and confusion between the people because of the dimensions that are invented. In 1980s when there was no proper community for transgender in India they use to enter the communities of Gay and Lesbians according to the gender they are changed into. When LGBT community was referred with individual identity it somehow showcase that the ‘T’ in the community was missing with the standards and rights in the society. They require their own community to stand out in the world and establish themselves legally. After all the hurdles faced they separated them from the Gay community inspite of being of the same sex and established their own individual community as transgender. As their identity was separated from the LGBT community the rights and laws were too separated by the government. Transgender community was formed as a different and unique section of people who established their own ‘T’ in the community in the later 90s.  

Evolution in Rights of Transgender in India 

Lot of protest and strikes took place in the later after 2010 asking for their rights in the country. Transgender federal community has criticized many rights and bill introduced by the government in 2016. Law makers also did not find it important to raise the law for the transgender and took them for granted. It degrades the law system rather than raising it or uplifting it I the society. law is made on the basis of the gender identity and it is the biggest flaw of the legal system of India. A policy was introduced later which decided that a certificate will be issued in favour of transgender as their identity certificate by the District Magistrate. Then they can apply for the “Change of Gender” certificate on the basis of the medical certificate provided by the hospital of the surgery and can make the corrections needed. This is how they were given place to stay in the society. Further it was decided by the courts that these people should be given identity by the government so that they are treated well in the society. 

In 2014 Supreme Court decided to give transgender place as a third gender community and allow them to enjoy all fundamental rights and court declare that it is illegal and unethical to divide a person by any situation that occurs everyone is free to involve and indulge in whichever manner they like. In 2015 Delhi High Court state that it is legal that everyone is considered by Law in whatever gender they want in to be. After seeing the harassment against 19 year old in the fmily the court declared the same. Every human needs to be respected in the same manner by the government and the law as lot of discrimination is already created by the people. Every transgender person was given access to the fundamental rights like freedom of speech, righ to expression, right to live freely etc.

Transgender persons (Protection of Rights) Act, 2019

After a great struggle of transgender people an act was introduced by the parliament in 2019 which protects the rights of all the Transgender people and aims at their social welfare and exchange in the society. This act was introduced by Lok Sabha in 2019 by the Ministry of Social Justice and Empowerment. This act recovers the flaws of 2016 and 2018 bill and eliminated the protest against all the theorists and criticism which rise against the transgender in India. These people faced the harassment of the society in such a way that they have to beg and serve the people in wrong way to beg and serve the people in the wrong way to earn for their living. They were considered as ‘Hijras’ in the society who was meant to entertain to the fullest and demand nothing. This overruled the concept of 2018 Bill and amended new version of it in 2019 Act which will diminish all the inequalities prevailing already. This act provides equality to all the transgender people in the places where they have been already harassed to the extreme. They are treated equal in employment sector, education, housing, healthcare and other services etc. This Bill states that these people are treated as equal as ‘Transgender’ and accepted only after they have the proof of ‘Gender change Certificate’ issued by the DM. This Bill states that:

• They have right to ‘Self Discern’ gender identity.
• The Bill provides right to minor transgender till the age of 18 to reside with its original family by law.
• This Bill prohibits Begging and considers it as a criminal activity.
• Hijras and Transwoman have received the focus of the Bill to grant all necessary changes needed. 
• The child who is born as a transgender can only be separated from his family by the order of the court and only family is strictly entitled t take care of the child.
• Indian Penal Code has decided punishment for begging which is given more than six months with fine because it is strictly prohibited as lot of reservations have been made for transgender people to work in the public sector. 
• 2% reservation is provided for transgender in education system and 4% in public sector employment by government in 2014 Bill.
• 2017 Act also provides six months imprisonment which s extended to two years with fine if anyone is found committing crime against a transgender. 

These points have been decided on the basis of following theories and criticism:

• They have the right for citizenship because the certificate of gender was made compulsory issued by the DM and by the government. 
• Because all the harassment uses to start by family that is why family rights were enforced for transgender.
•  They had to do begging because there was reservation for SC community but no reservation for them in the places of employment and education.
• Because there was diplomatic appearance of people related to transgender and sexual activities and orientation.

Rights and protection act of 2019 of transgender focused on all these matters to bring a sense of equality and livelihood among the people of India which was missing in different parts of the country and was needed by the people to eliminate the harassment and crimes against them which was wholly misconceived.

Rights of Transgender in America

American constitution also focuses on the criteria of equality with no discrimination on the basis of caste, color, sex, religion, nationality etc. Because of all this also (equality of Constitution) transgender people faced lot of struggle and inequality in places of education and employment etc even in country like America. They also did not have any law to transgender but some people raise their voice against the 14th amendment equal protection clause which was not merely followed.   

Then America introduced the Title VII of the Civil Rights Act 1964 in the case of R.G. $ G.R. Harris Funeral Homes Inc vs. equal appointment opportunity commission, which provides the protection to transgender in the places of employment. This act totally deducts the discrimination on the basis of caste, color, sex, religion and how the gender too needed to focus. According to this act people were treated equally in housing, medical clinic, restrooms etc. Every transgender was supposed to have the certificate of their gender change for the record of the state. A campaign commissioned by the Human Rights, by the Greenberg survey states that more than 35% of people stay around or meet regularly transgender people knowingly or unknowingly. Research also states that there are more than 700000 people as transgender in US 0.3 of the total population and 3.5% of the LGBT community and there is still study going on to know the exact population of the transgender people. There has been lot of problems faced by these people like violence, no protection legally, poverty, hunger, anti-transgender movements etc. which made it hard to survive and it generated a need to legally provide them with protection and state in the state. Then in 2017, Trumph introduced the protection rights for these people as Title VII of Civil Rights Act, 1964 which included their rights to reduce all the disparities prevailing and eliminating the loop left by Obama in America.     

Case- R.G. $ G.R. Harris Funeral Homes Inc vs. Equal Employment Opportunity Commission

This case is the Landmark case for the transgender in America. In this case Ainee employee of Funeral Homes decided to undergo gender change process after 2013 from men to women and will come after it. She was fired receiving the letter from the office. The equal opportunity commission helped her to represent the case in Court. Many court denied her petition stating it was non-religious etc. then she pleaded in SC and died because of the health complications in her body but the case was continued by the representatives. Then the case was settled on 18th October 2019 stating the fact that Title VII was extended till transgender rights and now it will provide equal protection to them too. She died with inequality but her death provided equality for these people in whole US. This case is also connected with Bostruck US Clayton Country Georgia, 590 US. 

Indian Cases

• National Legal Service Authority vs. Union of India and Others 15th April 2014

This case was the legal light for all the transgender people of India. This case gave the judgment regarding the gender identity to transgender people that they will be treated as third gender party in the economy. They will legally have a right in all fundamental rights granted by the constitution of India. This case was a step towards gender equality in the areas of the inequality. As a third gender party they were also granted reservation in the jobs and all educational institutions. After this case they were given equal importance in all medical health areas and hospitals were they were not treated properly earlier. Government also declared that these people will be no longer be treated economically and socially backward and will be granted all rights. State government was asked to generate schemes regarding their importance in the society and so that people will not consider them as untouchables and backward class. All this was done in the guidance of the Ministry of Social justice and Empowerment expert Committee. 

• S Swapna vs. State of Tamil Nadu 20th August 2014

This case talks about the inequality they face after getting the gender change certificate also. In this case the petitioner was a transgender who was man earlier and have changed to woman. She applied for SSLC and HSC certificate which was denied by the director of the school examination with new name and Gender enrolled in it. This case then went into Madras High Court for further judgment. The court said that this application would be considered again and the certificate would be provided to her within four weeks of the judgment. This case shows the significance of the Transgender person to register their identity in various institutions too.

• Ganga Kumari vs. State of Rajasthan 13th November 2017  

In this case Ganga Kumari was selected for the post of women constable which was going on at that time. She gave all the qualification test, medical test and physical test which was stated for selection. Then she was asked to give a random medical check which will decide the selection finally. In test it was examined that she belongs to the third gender community person and is a transgender. She was rejected by the electors on the basis of the medical test and can no longer be placed for the job. She argued in the court that she was rejected on the basis of the gender discrimination which is morally wrong. This case violated Article 14 of Indian constitution and Article 16 and Article 21 too. The court held that she cannot be rejected on the recruitment test on the basis of the gender identity and no one is entitled to snatch anyone fundamental rights from them. The court held that according to 1941 everyone has a right to express and attain gender of their choice. It even referred to the case NALSA vs. Union of India which urged of rights o protection of transgender in constitution of India. Further court also held that Article 21 will include that till the jobs asks for gender specification it should be limited till title ‘Gender’. The court also held that Ganga Kumari has a right to attain ‘Self Identity’ for gender and should be recruited again for the job. The court held with significance that people should understand the difference between ‘Sex’ and ‘Gender identity’ and gave the exact definition of transgender in the case in addition to the judgment to the NALSA case. 

Need to Refine Transgender Rights in India

There is urgent need to refine the Rights of the Transgender as it is important to see whether the rights of the third gender community are followed and have either helped them to live freely or not.

Here are few suggested points for the refinement:

• Policies have been made both the government and the law but it is mandatory to see whether these policies are amended or followed. 
• More reliable source should come in action to see the approach.
• Law and crime enforcement system of the country should be improved and refined so that people can strictly follow it.
• Violence against transgender needs to stop and it can only be done if strict actions against those criminals are taken by the Law.
• Strict actions need to be taken against the family and the parents who neglect their child just because of being a transgender.
• Free legal assistance should be provided to the transgender people to improve their social life. 
• Education sector like schools and colleges needs to be supportive against these people to provide them same value and respect in the society.
• They should be provisions related to the improvement of their like socially and economically in India.
• There should be free aid provided to these people for the help needed in deciding their career opportunities.
• More policies should come up related to health care issues and eradicating the same from them. 
• Awareness all over the globe is a major problem which needs to be eliminated from the society by providing the more facilities and orientations of the public awareness related to transgender in India.
• Se-education is another one drawback because of which people are not able to understand the difference in sexual orientation and gender change. More education should be initiated to eradicate the problem from the society.

Conclusion

India being a democratic country consists of long road which combines variety of people in it with various problems. Religion, caste is ongoing matter in which India is already struggling and it cannot manage to afford Gender as another problem. Although this problem is already in motion and acquired a long way in the country. Earlier Gay and Lesbians struggled with the same problem because of their sexual orientation and know the transgender are struggling for their rights being a normal human. Everyone is individual and is born with the rights decide by the country by their birth. A gender transformation is not entitled to take away those rights as human. Our constitution also states that everyone is free to live in whatever manner they like so no law can take that right away. The evolution of transgender from exclusion to inclusion in the society is pretty commendable and challenging. These people have managed to establish their place in the society but this has always been questionable. The problems faced by them are unique and so that settlement wouldn’t be easy in for the society to accept them. Article 14 of the constitution states that equality for all which is seen diminished in the case of transgender. Inspite not being untouchables they have been treated untouchables by the society. India consists of more than 1 Million transgender as its population and it is not fair to neglect 1 million at the same time. These people already face the problem of the changes that occur in their body like puberty because of the change of organs. They took a real risk to live the life of their choice and do not regret it later. There is no wrong in this way of living their life in the way they like. We as normal people need to broaden our minds and accept them the way they are. Government should focus on arranging orientations regarding transgender so that people gets aware of the third gender community in the world. These people have come long way of harassment, family rejections and society discrimination they deserve to get a proper place like normal people in the society. A nationwide campaign should be arranged among the people to create a scope of awareness for these people and acceptance. People should open their hearts and mind to accept these beautiful creations as humans in the world.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: