transgender legal rights in India
transgender legal rights in India

Transgenders: Legal rights & recognition of Transgenders

 

THE RIGHTS OF TRANSGENDERS UNDER INDIAN LAW

Members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community in India are faced with legal and social discriminations and difficulties which uncommon to the non-LGBT group. Any sexual activity between people of the same sex is viewed as a violation of the law and couples of the same gender cannot be provided with civil partnership while the marriage is considered as illegitimate.

As at 2018, the legality of the which section of the constitution which outlaws same-sex marriage and sexual relations is still being considered for review by the Supreme Court.

Since 2014, without having to undergo a sex reassignment surgery the transgenders living in India have been given the privilege of changing their gender and can be legally registered as the third gender. In addition to this, most states have offered assistance in the form of welfare benefits, free surgeries, housing schemes, pension schemes and other forms of protection for the hijras community.

In the big cities, the transgender people have become more accepted over the last decade. The number of transgenders living in India is estimated to be about 4.8 million but most are still living in fear of discrimination and isolation and thus would not disclose their identity to the public. Many people in India still views a transgender as a taboo; such that many are subjected to attacks, abuse and in some cases honour killings.

WHAT IS THE MEANING OF TRANSGENDER?

Persons who feel sexually opposite to the gender they were assigned at the time of their birth are regarded as transgenders. In other words, transgenders are persons who have a different view of the gender identity they had at birth. They may decide to be identified as male or female, or neither of the two. The factors that play out in assigning sex to a person are chromosomes, hormones, biology and anatomy. However, a person’s sexual identity may not match their biological composition and structure. Therefore, transgenders believe that gender assigned to them by the society was wrong.

BACKGROUND OF TRANSGENDERS IN INDIA

The transgenders in India have a strong background as seen in the Vedic and puranic writings. Transgenders have often existed in India even before the birth of the nation. They are mostly classified as Hijras, Jogappas, Kothis, Shiv-Shakthis, Aravanis etc.

  • Hijras: Hijras are like women but without menstruation and with no female reproductive organ. They are neither men nor women.
  • Jogappas: these are the persons who have dedicated themselves to the service of the goddess Renukha Devi.
  • Kothis: Kothis are biological males who can be seen with various degrees of femininity which is dependent on the situation.
  • Aravantis: these are biological males who see themselves as women.
  • Eunuch: Eunuch refers to any intersexed person whose form of genitals cannot be correctly ascertained at birth although they appear physically as males.

ISSUES TRANSGENDERS FACE IN THE SOCIETY

Over the years, transgenders have been subjected to various forms of cruelty and mental harassment. Some of the issues they face in the society include:

  • Harassment by the police
  • Abusive neighbourhood
  • Disowning from parents and families
  • Discrimination
  • Social stigma
  • No medium for education
  • An absence of a supportive family
  • Boycott from the family and society
  • No housing facilities

To survive and make earns meet, transgenders have become involved in commercial sex jobs and begging.

 

LEGISLATIONS AND LAWS RELATING TO TRANSGENDERS

The Criminal Tribes Act of 1871 fought against those tribes who committed offenses that were non-bailable. This Act penalized the Eunuchs who registered and dressed as women.

Section 377 of the Indian Penal Code of 1860 regarded any non-penile-vaginal sex as a criminal offense punishable by law. In 2013, the supreme court upheld that any sexual activity outside the penile-vaginal intercourse is a violation of the law. This law, however violates the rights of transgenders who may be involved in anal or oral sex with their partners.

Despite the enshrinement of non-discrimination in the constitution as a fundamental human right, transgenders are often faced with violence and discrimination. Article 14 of the constitution provides that every person is equal before the laws and no one should be denied equality before the law within the territory of India. Equality contains all the rights and freedom to be enjoyed by a person.

Articles 15 and 16 of the constitution prohibits all forms of discrimination against any Indian citizen on specific grounds including sex. Even with the existence of these laws, transgenders still face discrimination and other forms of violence that hinder their progress and ability to compete with others.

In another expression, Article 19(1)(a) of the Indian Constitution provides for the freedom of speech and expression with the right to identify with a gender, trade freely and reside in any part of the country. Identifying with gender can be in the aspect of dress, behaviors, words or other forms as they apply. Subject to the provisions of Article 19(2) of the constitution, no one should be restricted based on personal appearance or dress sense.

The Rights of Transgender Person Bill 2014 was passed by the RajyaSabha in April 2015. This bill was sponsored by the member of parliament and was subsequently featured in the floors of the LokSabha even though it is yet to be passed. To add to this, the India Government began the processes of introducing its own drafted transgender rights law. The Transgender Persons Bill 2016 (Protection of Rights) was adopted by the Cabinet in July 2016 and has since been on the floors of the LokSabha.

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL 2016

The purpose of this bill is to provide transgenders with rights and ultimately help them in recognizing those rights. Through this legislation, transgenders will be able to take legal actions against any form of ill-treatment may have to face in the society.

Chapter I (section 2) of this bill defines transgender as a person who is neither really a male nor female or is both male and female or one whose gender is different from the one the individual was assigned at birth. This definition includes trans men, trans women, intersex and gender-queers.

Chapter II (Section 3) of the bill prohibits against discrimination of transgenders with respect to education, movement, employment, residence, health services and rights to acquire a public office.

Chapter III (Sections 4-8) provides for the recognition of transgender identity. It clearly states the procedure through which a transgender can utilize the rights of identity. The step begins with an application to the Districts Magistrate who will issue a certificate to the person. Members of the District’s screening committee comprising Medical Officer, representative of a transgender community, District Social Welfare Officer, and a Psychiatrist will examine the application before the issuance of the certificate. The certificate will serve as the person’s proof of identity.

Chapter IV (Section 9) discloses the steps to be taken by the Government to protect the interest and rights of the members of the transgender community. This includes the protection, rescue and rehabilitation of the individual.

Chapter V (Sections 10-13) states the responsibilities of the establishments in the employment and rights of the transgender.

Chapter VI (Sections 14-16) makes provisions for the education, security and health of the transgender. It ensures that the fundamental rights of the transgender of education, welfare schemes, non-discrimination, health and medical care and much more are not violated.

Chapter VII (Section 17-18) discloses the objectives of the National Council for Transgender. The duty of the council is to serve as an advisor to the government on policy formulations on transgender-related issues.

Chapter VIII (Section 19) provides for the penalties against offenders who are guilty of enticing transgenders to into forced labor, prostitution, begging or obstruct passage rights. An offender will serve two to six months imprisonment with an option of fine.

Chapter IX (Sections 20-24) deals with provisions that empower the government to make laws to protect governments or authorities from prosecutions against any action that may have been taken in the good interest of this bill and the possible removal of any law that may not be consistent with the provisions of this bill.

TRANSGENDERS AT WORKPLACE

In India, transgenders are often discouraged at workplaces and at where they can compete for employment. Because of their style of dressing, they are generally denied employment. They are unable to enforce their fundamental human rights and as such are faced with increasing stigmatization and discrimination in places of work.

Discrimination against the transgender at workplace come in the form of job opportunity denial, discrimination at job assignments, denial of career opportunity and in the allocation of workload. Another issue they face at places of work is the conscious efforts of colleagues to remove them from the workplace because of their transgender status.

In addition to this, there are no policy or practice at workplaces that are dedicated to catering for the special needs of the transgenders. This is evident in the absence of clarity on restroom rules to the advantage of the transgender groups.

Interestingly, employees lack the emotional and psychological sympathy for the transgender and therefore can make things difficult for them in the workplace.

THE STATUS OF THE TRANSGENDERS IN THE SOCIETY

The transgenders constitute the minority who are often marginalized and discriminated against in the Indian society. They are often faced with social, legal and economic difficulties.

In the Supreme Court ruling in 2014 which is regarded as a breakthrough for the LGBTQ community, it observed that the transgender group are a section of persons who are ill-treated in the society and ridiculed, even feared and regarded as a taboo. The apex court held that based on the provisions of the constitution, the transgender community are entitled to the fundamental rights that a normal person in the society enjoys. In addition to this, every person is given the right to identify with any gender of choice and can express their chosen gender which will be regarded as Third sex.

In this light, the transgenders in India are known as the Third Gender. Despite the supreme court’s 2014 judgment, the transgenders are often treated as half-citizens and often face problems like:

  • Restricted access to education, public space and health services;
  • Denied political opportunities;
  • Difficulty exercising civic rights
  • Harassment, violence and denial of basic services
  • Criminalizing sexual activity with persons of the same sex

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