Three important developments have taken place in this decade, which has long term relevance for the entire Transgender community in India. Firstly, in 2014, the Supreme Court legally recognized the rights and freedom of transgender people in the National Legal Services Authority (NALSA) v. Union of India case.  Subsequently, in 2018, the Supreme Court also decriminalized same-sex relationships and struck down Section 377 of the Indian Penal Code. And recently in 2019, The Transgender Persons (Protection of Rights) Act, 2019, was enacted by the parliament in 2019 and came into effect.

The National Legal Services Authority v. Union of India [1]  is a landmark decision by the Supreme Court of India, which declared transgender people as the ‘third gender’, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender. Moreover, the court also held that because transgenders were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.

 

The sorry state of affairs of the Transgenders :

It needs no highlighting of the miserable plight and pitiable conditions under which this group has been in existence so far, suffering innumerable physical and mental abuses.

All of us are familiar with seeing Transgenders as a marginalized section of society and living on the fringes of society, with a lack of education, social security, and employment opportunities. They have even been abandoned by their biological family or forced to seek solace amongst some semi-primitive cult groups. Many reside in slums, resort to begging in the streets or dancing at events. Here they may get the freedom to be who they feel they are from within, but this comes at a high risk to their health, livelihood, and existence in general. Bollywood’s oft-repeated portrayal of them as a weird dancing group has done them more harm than help.

 

Exploitation and abuse – Background of some legal battles :

In the case of Jayalakshmi vs. State of Tamil Nadu (2007) 4 MLJ 849, a transgender person Pandian, was being routinely interrogated by police in an alleged case of theft. However, in the police station, she was being physically and sexually abused for days together. Finally, she warned the perpetrators to stop the torture or she would immolate herself. Sadly though, she immolated herself and later succumbed to her injuries after some days. The Hon’ble Madras High Court held the suicide to be due to physical and sexual abuse and ordered the state to pay a compensation of Rs.5 Lakhs to her family. It also ordered disciplinary action to be initiated against the five accused police officials.

With all this, it is no wonder that any provision made for their benefit, will be viewed by them with a sense of doubt and suspicion.

 

The Stereotyping habit of Indian society :

The traditional Indian society is prone to practice discrimination through the classification of persons, communities, and then using direct/indirect/subtle isolation methods. The gender identification granted by The Transgender Persons (Protection of Rights) Act, 2019 can also become one such stereotype and may face the dangers of being subjected to labeling, discrimination, and subtle isolation.

It is a sad state of affairs that the Transgender community is so much ostracized by a society that they are forced into begging, dancing, or indulge in the sex trade for their survival. To further add to their woes, the erstwhile Section 377 of the IPC was more often used on them for exploitation, rather than rehabilitating or reforming their lives. Lack of education coupled with the absence of social support was the primary reason for their backwardness. Nonetheless, this also puts them in a situation where access to justice is also not easily available to them.

Basic rights available to all citizens (note male and female citizens) such as the right to vote, right to education, access to basic healthcare, right to dignity, etc have all been largely unavailable to this group primarily due to the non-recognition of their gender status, abandoned by family, lack of education, totally nil employment opportunities.

In relative comparison to other acts, the provisions of offences and penalties provided in The Transgender Persons (Protection of Rights) Act, 2019 may appear rather mild, nonetheless, it is a positive step in the right direction and things can only get better with the passing of time. The welfare measures, the obligations for establishments and other persons towards non-discrimination of Transgenders prescribed under this act are broad enough to provide adequate long term benefits to the community. All this is possible, only if the transgender community remains vigilant as well as focused on human development.

 

Census count of Transgender:

Traditionally, the Indian Census had never recognized the third gender i.e. Transgender while collecting census data for years. But in 2011, data on Transgender’s were collected with details related to their employment, Literacy, and Caste. In India, the total population of transgender[2] is around 4.88 Lakh, as per the 2011 census with an average literacy rate of 56%. That makes it more than 2.5 lakh literate transgenders. Many other details have come as a surprising revelation. Moreover, the current estimates as of 2019, will definitely be many times more than the 2011 census.

 

The Covid-19 Pandemic:  Emerging challenges and opportunities : 

It is a strange irony today, wherewith a face mask and PPE kit all over, neither the face nor gender of the caregiver matters. All that matters is the ‘helping hand’.

A transgender person possesses the strength of a male and the sensitivity of a female, no wonder in some parts of the country, they are also referred to as Shivshaktis. This makes them a valuable asset as healthcare workers if given adequate training, so as to effectively handle the covid-19 pandemic and related issues. The world and India, in particular, are facing and fighting it the hard way, with barely any end in sight.

“Tough times don’t last, tough people do” is an often-quoted phrase, however, it was never as relevant in this century, as it is today. It also throws up many surprises and paradoxically places the Transgender community of India at a rather surprising advantage in many sectors.

To illustrate the point further, Transgender are known for their boldness, which makes them adept at handling tough situations sensitively. Transgenders can make ideal security personnel at all establishments for 24 x 7 work, particularly at public places such as airports, railways, metro stations, etc. This also makes them suitable for the position of flight attendants or onboard crew in all forms of public transportation. If given basic driving lessons, there is no doubt that they can replace many of the notorious private cab and other transport drivers who harass and harm BPO staffers during their odd hour’s commutations. It is high time society puts them into action.

 

Conclusion :

Transgender has been in existence for ages and are expected to bless people, for good luck. However all along, they themselves have been, hard of luck. Hopefully, their own luck may change for the better, with the enactment of The Transgender Persons (Protection of Rights) Act, 2019.

 

References :

1. The National Legal Services Authority v. Union of India case: Source – Wikipedia.

2. https://www.census2011.co.in/transgender.php

 

Author: Harish P. Vishwanathan

Pursuing LLB (final year) and having an avid interest in social research.