Author: Nidhi Gausai, III Year of LL.B from Galgotias University, Greater Noida (U.P).
A girl is always compared to an angel…….
A boy is always compared to a bold
Character……
Then why not a transgender can be called
As an angelic bold person…!!
- Thasleem Rayeesha.
WHO ARE TRANSGENDER?
Transgender are the people in the society whose gender does not match with the gender assigned to them at birth. Basically transgender is the person who is born as one gender but identifies themselves as a different one based upon the way they feel. Transgender includes trans- men and trans-women with an intersex variation. (Intersex variation refer to the variation in the sexual characteristics, external genetics, or hormones from the standard characteristics of male and female). In our Indian society, they are known as hijra, kinnara, chhakka.
An LGBT group is referred to as the ‘lesbian, gay, bisexual, transgender and queer community’ which includes those with gender dysphoria and different sexual orientations. Lesbian and gay people have been accepted in many parts of the world ad have also got their rights, but transgender is still without rights.
PROBLEM FACED BY TRANSGENDER
Transgender people have suffered from a lot of problems in their daily life which are lack of education and employment opportunities, sexual harassment, sexual discrimination, public humiliation.
While the visibility of transgender people is increasing in popular cultures and daily life, they still face severe discrimination, stigma and systemic inequality. Some of the specific issues faced by the transgender community like STI and HIV AIDS problem the term MSM stands for men who have sex with men. Because of this, transgender is likely to have problems like STI and HIV AIDS. Most of the transgender belong to lower socioeconomic status and have low literacy levels. There are not sufficient health care services for transgender in society.
FAMILIES REACTION
Most of the families does not accept their own child if he\she behave in an inappropriate to the excepted gender role and the family member start threatening to them they assault their own child for behaving or dressing like to their opposite gender. That’s the big reason most of them left their own house and live with the group of other transgender because they are scared, threaten, abused by their own family member and sometimes also they are forced by society to live with the transgender group. They even don’t get the love and affection from their parents and most of the time they start hating their family.
CONSTITUTIONAL RIGHTS FOR TRANSGENDERS
Right to equality (Article 14)
The constitution of India provides the right to equality to all its citizens which defines every person to have equal status before the law and have equal protection of the law within the territory of India. The word any person here means every individual so a transgender in India is included within the word ‘any person’ and given equal status to every cis-gender in India. Transgender cannot be discriminated on the ground of the non-application of any laws within the nation by reason of their differences and dividing them in different them based on any arbitrary class.
So the transgender community falls within the purview of the constitution of India and thereby they are entitled to all the rights as guaranteed under the same.
Right against exploitation (Article 23)
Various human acts such as human trafficking and beggary are declared as an offence and punishable according to law. Article 23 of the Indian constitution should be read with broad-spectrum as it forbids any form of discrimination. The main aim of this provision is to secure the independence of individual identity by preventing exploitation. Due to some economic status, transgender are exploited and tend to indulge in immoral activities such as prosecution
And they are seen as taboo by society.
Right of fundamental freedom (Article 19)
All the basic values of privacy, self-identity, autonomy and personal integrity are the basic and fundamental rights that are guaranteed to the member of the transgender community under article (19) (1) (a) of the constitution of India and the state is bound to protect as well as recognized the rights of the citizen.10
Right to life-(Article 21)
The transgender community must have a right to dignity life as assured in Article 21 of the Indian constitution. Recognition of gender identity provides the recognition of their right to dignity and non-recognized violates the same, they have full right to express and live their life without fear. Also, the right to reputation extends to their protection. Transgender in our society have not been seen with respect, they are often humiliated and beaten up by the authorities in power their reputation in society has degraded and their significance in society has deteriorated.
NATIONAL LEGAL SERVICES AUTHORITY JUDGEMENT
National Legal Services Authority V.s Union of India AIR 2014 SC 1863.
Judgment - given by 2 judge bench JUSTICES K.S PANICKER RADHAKRISHAN and JUSTICES ARJUN KUMAR SIKRI.
FACTS
NALSA was the primary petition filed by (POOJA MATA NASIR KAUR JI) women welfare society a NGO. The case was filed for providing legal recognition of these people who fall outside the male/ female gender binary, and recognize them as “third gender”.
ISSUES
In this case, the court has to decide whether a person who falls outside the male/ female binary can be legally recognized as a “third gender” person. It deliberated on whether disregarding non-binary gender identity is a breach of the fundamental right guaranteed by the constitution of India. The case referred to an expert committee to solve the issues relating to transgender and the committee was constituted under the direction of the ministry of social justice and empowerment. This committee is constituted for the development of NALSA judgment.
This case provides us with a landmark judgment where the Supreme Court legally recognized “transgender as a third gender” and for the first time court discussed gender identity in his judgment. The court recognized third gender people are entitled to fundamental rights under the constitution and international law. The further court directed the state government to develop mechanisms to realize the right of transgender persons.
JUDGMENT
SUPREME COURT DEFINE THIRD GENDER
In this leading case supreme first time in his judgment defines the third gender. In the case, the court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender person should be subjective to any medical examination or biological test which would invade their right to privacy.
The court also upheld the right of all peoples to self identify their gender. Further, it declared that transgender can legally identify as “third gender”.
FUNDAMENTAL RIGHT
In the case, the court interpreted ‘dignity’ given under Article 21 of the Indian constitution to include Diversity in self-expression, which allowed a person to lead a dignified life. It placed one’s gender identity within the framework of the fundamental right to dignity under article 21.
Further, the court explain that the right to equality Article 14 and freedom of expression Article 19 was framed in the gender-neutral term. So the right to equality and freedom of expression would extend to transgender persons.
In this leading case, the court drew attention to the fact that transgender people are subject to “extreme discrimination” in our society which is a violation of their fundamental right to equality. The further court describes it includes the right to express one’s gender “through dress, words, action or behaviour” under the ambit of freedom of expression.
Court described that discrimination on the ground of sex is explicitly prohibited under Articles 15 and 16. Court held that sex here does not only refer to biological attributes but also includes gender-based on one’s self-perception. The court declared that discrimination on the ground of sex is also included on the basis of gender identity.
Thus, the court held that transgender persons were entitled to fundamental rights under Articles 14,15,16,19(1)(a) and 21 of the constitution. Further, the court also referred to core international human rights treaties and the Yogyakarta Principles to recognized transgender persons' human rights.
SUPREME COURT DIRECTION
The court had directed the Centre and state government to grant legal recognition of gender identity whether it be male, female or third gender:
Legal recognition of third gender-When the court recognized the third gender category, then the court also recognized that fundamental rights are available to the third gender in the same manner as they are available to males and females.
Legal recognition for the person transitioning within the male/ female binary-
The actual procedure of recognition will happen, the court merely states that they prefer to follow the psyche of the person and use the ‘psychological test’ as opposed to the ‘biological test’. They also declare that insisting on sex reassignment surgery as a condition for changing one’s gender is illegal.
Public health and sanitation-Centre and state government have been directed to take proper measures to provide medical care to transgender people in the hospitals and also provide them separate public toilets and other facilities. Further, they have been directed to operate separate HIV measures for transgender people.
The public awareness-
The apex court gave direction to the centre and state government to take steps to create public awareness so that transgender peoples feel they are also a part of our society.
Socio – economical right – The centre and state government recognized transgender as a third gender person as a socially and educationally backward class of citizens. They are entitled to take reservations in educational institutes and public enjoyment.
STRUGGLE OF TRANSGENDER PEOPLE AFTER LANDMARK JUDGMENT
After this landmark judgment, many trans-women went to a local court in her local court for changing the sex listed on her official document. As in the leading judgment, the supreme court recognized her right to identify as the gender in line with her identification and made it illegal for authorities to refuse her identification based on whether she had surgery or not. However, at this court officers insisted that they could not help her without a medical certificate of sex change. So even in NALSA's leading judgment Supreme Court recognized them as the third gender but the real situation they have to suffer from a lot of struggle for changing his or her sex listed in the official document and the main problem related to the sex change certificate.
Even after the judgment transgender identity is still not accepted, for all particular purposes they are still left as alone human being people don’t even seem to see transgender people as human beings. Many times these people are beaten at their own home for being transgender, they are assaulted on the street if they go to the police station after being n police
officer also criminalized them. Trans- voter and Tran sex workers are being ridiculed and harassed when they are going to vote.
The NALSA judgment was passed in April 2014 but has yet not been translated into reality. A briefing paper on the implementation of the NALSA judgment by the international commission of jurists says, the Indian central and state government still has not implemented some of the core directions set out in the judgment.
Transgender Person And Protection of Rights Bill,2016
Definition of transgender under the bill The bill defines a transgender person as one who is partly female or male; or a combination of female and male or neither female nor male. In addition, the person’s gender must not match the gender assigned at birth and includes trans-men, trans-women, persons with intersex variation and genderqueers.
RIGHTS INTRODUCED BY TRANSGENDER BILL
Prohibition against discrimination
It prohibits discrimination against transgender which is related to opportunities for education, job health care and services and access to services, accommodation, transport etc. It includes
that the centre and state government should to provide more scheme in this area. Because transgender is mainly faced with difficulty in this area they are not so much educated so they even don’t know about government policy.
Procedure for transgender recognition
According to the bill 2016, trans-women can obtain their certificate of identity from the district magistrate, who will issue the certificate based on the recommendation of a district screening committee, comprising the Chief Medical Officer, Psychologist or Psychiatrist, and a representative of the transgender community.
Right of Residence
Under this bill, a new is made that no transgender child is separated from their parents or immediate family on the ground of being transgender. The main aim of this provision under the bill when a girl or boy behave opposite to their gender according to their choice their family member start hating them. Due to this reason, they are bound to leave their own home and when they outside they suffered from allots of problem.
Offences like compelling a transgender person to beg
Under this bill, it was clearly mentioned that if any person made a sexual abuse with any transgender or it may be physical and denial to a transgender to begin a public place. Then the person is liable for two years of imprisonment and a fine or both. This bill criminalises begging by transgender people so as to include them to undertake other sustainable vocations.
National council for transgender person-(NCT)
A national council for transgender people will be set up to advise the central government on policies, and legislation related to transgender people. The NCT will consist of representatives from ministries such as social justice and empowerment, health, minority affairs, NITI Aayog, National Human Right Commission for Women, experts from non-government organizations.
LOOPHOLE IN TRANSGENDER PERSON PROTECTION OF RIGHTS BILL, 2016
Bill is against self-identification gender expression
Under the bill, the district screening committee assent was required for getting transgender certificate which is undermined the right of self-identification as per the NAALSSA judgment.
Bill provide no reservation
The bill was silent on affirmative actions regarding Transgender and provide no reservation to them in jobs or other educational purposes.
Criminalization of begging
This bill criminalized begging however lack of employment opportunities force them for begging so the criminalization of begging is a threat to their livelihood.
The bill provides limited protection to transgender against sexual abuse
This bill provides limited protection to transgender in comparison to women if we saw the Indian penal code such cases as rape, stalking, sexual harassment, etc the law made for such activities are only for women the law is applicable when the victim is a woman. If we saw section 376 of IPC which define rape and it clearly mentions the crime against a woman but nowhere does it mention transgender.
No civil rights were recognized
The bill doesn’t even give any civil rights to transgender such as the right to marriage, partnership, adoption, and property right.
The national commission, not enough
The bill recognized a national commission which was not enough because the rate of violence and hate in our society against transgender is very much. Firstly government should to established a welfare board for transgender and they also have to organize some seminar or conference in those areas where transgender lives and are aware of government policy and also the government have to make a group of people who work for providing help to this transgender and provide their helpline number to transgender so that they can contact them when they suffer from any violence.
Bar on separation from family
There was a bar on forcible separation of transgender persons from their family, except through court order. However many times these transgender are abused and hated by their family and due to this they leave their home and start living with other transgender. Rather than forcing a bar government should to aware of the people to stop hating transgender they are also human beings and part of our society.
Affirmative action
Transgender people in India faced discrimination in many areas like education, employment, health care, and housing. While the bill prohibits discrimination but not explicitly defined a clear definition of discrimination.
THE TRANSGENDER PERSON (PROTECTION OF RIGHTS) ACT, 2019
REASON FOR INTRODUCING TRANSGENDER BILL 2019
firstly the transgender bill 2016 was introduced but the bill does not provide equal protection to transgender people they don’t even mention the word transgender and the bill was failed in providing equal rights in civil law to transgender. It make a demand for a new bill which was presented as transgender bill 2019.
According to the 2011 census, there are more than 4.80 Lakh Transgender in our- country who often faced discrimination in our society and are humiliated.
In the year 2014 first time in the NALSA judgment Supreme Court recognized transgender as a third gender.
Transgender Person Protection Of Right ACT,2019-
RIGHTS INTRODUCED BY TRANSGENDER ACT FOR TRANSGENDERS' RIGHT OF RESIDENCE
The activities provide a right of residence to transgender people they could reside and be included in his household. If the immediate family is unable to care for a transgender person, then the transgender may be placed in a rehabilitation centre, when the order is given by the court.
EMPLOYMENT
The act makes a rule that no government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.
EDUCATION
Every educational institute funded or recognized by the relevant government shall provide inclusive education, sports and recreational facilities for transgender persons, without any discrimination.
HEALTH CARE
The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centers and sex reassignment surgeries.
NATIONAL COUNCIL FOR TRANSGENDER PERSON (NCT)
The act introduced the national council for transgender this council advice to the central government. The NCT will consist of a representative from the union minister of social justice (chairperson), Minister of state for social justice (vice-chairperson), secretary of the ministry of social justice, one representative from ministries including Health, Home Affairs, and Human Resources Development. Other member includes a representative of the NITI Aayog, and the National Human Right Commission. The state government will also be represented.
CRITICISM OF THE TRANSGENDER PERSON (PROTECTION OF RIGHT ACT) 2019
The act only slightly improved version of its antecedents it has a comparatively inclusive and more eclectic definition of the term transgender and no more includes the problematic provision requiring criminalization of begging . However, there are various gaps in the bill that presents a misplaced understanding of gender and limited equalizing potential.
IDENTIFICATION OF GENDER
The act states that transgender people will have the right to self-perceived gender identity. But in the same section, it adds that transgender people must apply to the district magistrate for a certificate of identity including their gender as transgender. If a transgender person undergoes surgery to change their gender either as a male or female, a revised certificate may
be obtained. At this point, the district magistrate will examine the correctness of the medical certificate issued by a medical superintendent or chief medical officer.
LESSER PUNISHMENT FOR SEXUAL ABUSE ON TRANSGENDER PERSON
The maximum punishment given to the preparation of sexual crime against a transgender person is two-year imprisonment and fine as compared to that against any male or female person which is seven years imprisonment Harms or injures or endangers the life safety health or well-being, whether mental or physical of a transgender person or trends to do act including causing physical abuse, sexual abuse shall be punishable described in clause 18 (d) of the transgender act. The act does not define the acts that constitute sexual offences, making it complicated for transgender people to report such crimes.
AMBIGUITY ON OTHER RIGHT-
The bill recognized transgender as the third gender but the bill does not clarify how the existing law will apply to transgender.
PROBLEM OF NOMENCLATURE
A more comprehensive term like LGBTQ (Lesbian, Gay, bisexual, transgender, queer) would have been more appropriate rather than focusing on the rights of transgender only.
DISCRIMINATION
The act prohibits discrimination against transgender persons in education, institution, government establishment, and while renting or purchasing property, receiving healthcare and using public services. But in a real scenario, the legislation does not explicitly define what constitutes discrimination in the context of the transgender community.
NO RESERVATION
The act does not provide any reservation to transgender people, who often come from disadvantaged backgrounds and find it hard to get mainstream jobs or quality education.
REHABILITATION CENTRE
In the act it was clearly mentioned that if the family of a transgender person is unable to take care of them, the person may be placed in a rehabilitation centre, with orders from the court, this denies their right to join other transgender communities such as the hijra community.
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) RULES, 2020
The Ministry of Social Justice and Employment implemented the transgender person protection right act 2019. After the implementation of this act, a widespread protest is started in different areas of the country and different petitions were filed in the supreme court for challenging the constitutional validity of the 2019 act.
The rules recognized the identity of transgender and prohibit discrimination in the field of education, employment, healthcare, holding or disposing of property, holding public or private office and access to and using the public service and benefits.
Rule 3 described that all the applications for obtaining a certificate of identity must be submitted to the district magistrate within whose jurisdiction the transgender person resides and the application may also be made through online mode.
According to Rule 4, the district magistrate issued a certificate of identification on the basis of the application filed and the report of the psychologist given without any medical examination. The certificate of identity is given within 30 days of receipt of the duly filled application with the psychologist report.
Rule 8 in case the application is rejected the district magistrate must inform the reason for the rejection within 30 days and may review the decision on rejection based on the reply submitted by the applicant.
Rule 9 give the right to the applicant to file an appeal for the rejection of the application by the District magistrate.
Rule 10 The appropriate Government shall constitute a welfare board for the transgender person for the purpose of protecting their rights and interest and facilitating access to scheme and welfare measures framed by the government.
Rule 11 provides a mechanism for ensuring non-discrimination of transgender persons in public life including setting up a transgender protection cell.
Rule 12 The rule state that the appropriate government drafted an equal opportunity policy for transgender which provides equal opportunity by incorporating infrastructure adjustment, recruitments, employment benefits, promotion for a transgender person.
Rule 13 states the appropriate government shall ensure that every establishment must designate a complaint officer within 30 days of coming into force of the notification of the rules who will enquire into the complaint and the resolution of grievances should take place within 30 days from the day of complaint field.
CONCLUSION
Government bring so many bills every year for the upliftment of transgender in society. In the NALSA judgment supreme court decided transgender as a third gender and the transgender act 2019 also described that transgender can identify their gender in their legal document. It’s only done after that they will be able to change their gender to either male or female on a government-issued certificate. The whole process to obtain the certificate totally violates the NALSA judgment because in the judgment Supreme Court clearly mentioned that transgender people have the right to self-identity and did not mandate surgery.
In India 4.80 Lakh transgender people are living but if we saw how many of them are educated about their rights it’s too low. So firstly government should to organized time to time
conferences for the transgender people and tell them about their basic rights, secondly government should give them reservations in education institutes and in employment as an economical backward or educationally backward class of the society.
REFERENCES
1 ARTICLE-
∙ Living a life of exclusion: Being a transgender in India, By- Dona John, www.freiheit.oorg
∙ Transgender in India: Identified by law, discrimination by the society, By- Sribas Goswami, published in the Russian federation European Researcher, www.erjournal.ru
∙ Michelraj M.Historical evolution of transgender community in India, Asian Rev Soc Sci 2015.
∙ Problems of the transgender in India: A study from social exclusion to social inclusion, by – Dr Khushboo R. hotechandani, published in – international research journal of human resources and social science.
∙ Transgender: Status in India, by Neena Sawant , www.researchgate.net
∙ Transgender are no way different – protection of their rights, by- V.S Dinesh, published on manupatra, www.manupatra.com
∙ Civil and Political Rights of Transgender in Indian constitutional Perspective, By – Sourav Agarwal, Publish- International Journal of Law and Legal Jurisprudence studies. www.ijlljs.in
What do the transgender persons(protection of rights)Rules, 2020 say?, By- Almas Shaikh, published on – Centre for law& policy Research, https://clpr.org.in
2 CASES
NALSAVs Uninon of India (2014) 5 SCC 438.
3 Art.14, 15, 16 of Constitution of India 1950.
4 Transgender person (protection of right) act 2019.
5 WEBSITE-
∙ WWW.manupatra.coom
∙ www.researchgate.net
∙ https://www.scroll.in