“Sex is what you are born with, gender is what you recognize and sexuality is what you discover.” – A. Chettiar
The rule of law is supreme and everyone is equal in the eyes of law in India. Yet, the transgender community is in a constant battle as they have to fight oppression, abuse and discrimination from every part of the society, whether it’s their own family and friends or society at large.
The genesis of the problems of Transgender persons in India lie in the stigma and discrimination they face in the society, resulting in their exclusion from socio-economic-political spectrum. They are one among the marginalized sections of the society. The solution of their problems will, therefore, require concerted efforts to mainstream them and adoption of an inclusive approach in all spheres of life. The transgender community is one of the disadvantaged ones and without their inclusion in the development efforts; the objective of inclusive growth cannot be fully realized. Social Defense Division of NISD assisted Ministry to organize National consultative meet on Transgender and couple of expert group meetings on Transgender.
They are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. Even after the pronouncements of judgment with respect of the recognition of transgender’s rights, they are still continued to be abused and face custodial torture and unlawful detention. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get licences etc. and, in effect, treated as an outcast and untouchable.
Who are Transgenders?
- The term ‘Transgender’ refers to those who don’t identify themselves completely with either of the dichotomous genders – male/female.
- The American Psychological Association and World Professional Association for Transgender Health define them as ‘people whose gender identity (sense of themselves as man or woman) or gender expression differs from that usually associated with their birth sex.
- This grouping constitutes a significant minority, estimated to be around 25 crores globally in number.
- They are non-heterosexual individuals.
What is the difference between Sex and Gender?
- The World Health Organization (WHO) has clearly demarcated the difference between these often interchangeably used terms.
- According to WHO, Sex refers to the biological and physiological characteristics that define men and women while Gender refers to the socially constructed roles, behaviour, activities and attributes that a given society considers appropriate for men and women.
The Supreme Court judgement on Transgender Rights
This judgement covers persons who want to identify with the third gender as well as persons who want to transition from one identity to another, i.e. to male to female or vice versa. The Court has directed Centre and State Governments to grant legal recognition of gender identity whether it be male, female or third gender.
• Legal Recognition for Third Gender: In recognizing the third gender category, the Court ruled that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc is discriminatory to the third gender.
• Legal Recognition for people transitioning within male/female binary: As for how 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 (SRS) as a condition for changing one’s gender is illegal.
• Public Health and Sanitation : Centre and State Governments 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/ Sero-surveillance measures for Transgenders.
• Socio-Economic Rights : Centre and State Governments have been asked to provide the community various social welfare schemes and to treat the community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments.
• Stigma and Public Awareness : These are the broadest directions – Centre and State Governments are asked to take steps to create public awareness so that Transgender people will feel that they are also part and parcel of the social life and not be treated as untouchables; take measures to regain their respect and place in society; and seriously address the problems such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, and social stigma.
• Challenging 377: The judgment contradicts the findings of the Supreme Court in Suresh Kumar Koushal in various ways. The main points include:
I. The judgement notes that Section 377, though associated with specific sexual acts, highlighted certain identities, including Hijras. It also recognises that sec 377 has been used as an instrument of harassment and physical abuse against Hijras and transgender persons. The judgment only says that this amounts to a misuse of the Section as opposed to what it actually dictates, thus refusing to meaningfully apply a fundamental rights analysis to it. Now we have a clearly contradictory finding.
II. It argues against Koushal’s infamous ‘miniscule minority’ argument noting that Transgen ders, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.
III. The Court finds that discrimination on grounds of sexual orientation and gender identity violates Article 14, and that transgenders are extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. If we are to read this with their finding that 377 is used to harass and physically abuse transgender persons, we can clearly make the link that 377 fails the test of equality under the Constitution.
Comparative Global Studies
In the United States of America, a marriage is valid unless there is an annulment or by divorce. In the instances where one of the spouses changes the gender, the court held conflicted views in regard to whether the marriage is valid or invalid. Thus the position till date is not settled. However in India, having unnatural sex is illegal and thus marriage amongst transgender is illegal. Since transgenders are not given the equal status in regard to marriage rights in India, they should be given the same where they have right to marry and live with the person of their choice.
Also there are no laws for parentage by transgender. As countries like California, Colorado, Connecticut, Columbia, Illionis, Indiana, New Jersey, Massachusetts, Pennsylvania and Vermont have second parenting technique for adoption of children by transgender, similar can be considered by India and to give validity for adoption by transgender. Similarly they should also be given parenting rights where they have liberty to adopt the child and parent him. This will increase the acceptability of transgenders in the community and will lead to reduction against discrimination among them.
Also this bill does not provide for the specifications for gender identity in the prisons. Transgender should be searched by the same gender. Also the cells allotted to transgender should be according to their requirements and not as per their genitals. In US, Department of Justice, Prison Rape Elimination Act (PREA), bans torture on transgender and also provide cells to them by ignoring their genitals as per their requirements and rather for the same purpose
This legislation provides for employment opportunities to transgender but does not specify the opportunities. 18 countries at present like New Zealand, Australia, Austria, Belgium, Denmark, Finland, France, Norway, Spain, Sweden, UK and Germany allows transgender to serve openly in military. However no such provisions are there for the intake in military in India. Since the bill is silent on the employment opportunities, it means employment covers all forms of employment and there would be no demarcation on any basis. Since in military there is not any relation of sexuality while serving the nation, equal opportunity must be given to transgenders in being part of defense forces of India.
This legislation is silent about the laws relating to involvement of transgender in sports and the criteria required by them to qualify for participation. In US, National Collegiate Athletic Association allows transgender students to participate in sex segregated sports consistent with their gender identity as long as they are receiving hormone therapy. For example, under the rules, a female transgender must take testosterone suppression medication for at least a year before competing on a female team. India, which is developing and enhancing in sports arena, should have laws pertaining to this field which will help in optimum utilization of resources. However, recently the first ever State Level Transgenders Athletic Meet in Kerala, India organized by the government, which gave boost to transgenders and helped them in identifying themselves as capable of contributing to the society. Such programs should be encouraged and similar provisions be specified for the same.
What is the status of Transgenders in India?
- Transgenders do not enjoy a legal recognition in India like most of the Asian counterparts.
- However, some states like Tamil Nadu, Kerala and Orissa recognize transgenders as the third gender.
- The Transgender Persons (Protection of Rights) Bill, 2016, intended towards the protection of transgenders is yet to be passed.
- 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.
- The bill includes trans-men, trans-women, persons with intersex variations and gender-queers.
Legislative actions towards the protection of transgenders: Transgender Rights Bill
Earlier Rajya Sabha has passed a bill named The Transgender Persons Bill, 2014. However, currently, a modified version of the same has been introduced by the government as The Transgender Persons (Protection of Rights) Bill 2016.
Concerns about the Transgender Rights Bill :
1. Definition of Transgender
- The definition in the Clause 2(i) is inspired from Australian Sex Discrimination Act, 2013, which defines ‘intersex’. As stated above, gender must be distinguished from sex. It is not done in the bill.
- Expert Committee Report had already discussed the differences between the two
2. Right to choose a gender
- In NLSA case, SC had directed the choice to be that of an individual – this has not been considered in this bill. Providing for a registration authority, in this case, a medical board opens avenues for red-tape and harassment.
- The 2015 bill had a better/more progressive definition of transgenders, allowing a choice of gender from amongst male/female/others.
3. Affirmative action
- No provision for reservation has been made in the bill.
- This clearly is a deviation from the SC directions in NLSA case and Jat reservation case.
- Not a rights-based approach.
- Unlike the recent ‘Rights of Persons with Disabilities Act, 2016’ and ‘Mental Health-care Bill, 2016’ which have taken an empathetic approach when dealing with the marginalised, the transgenders bill fails to draw the much-needed emotional connect with the transgenders. (Consider for instance the decision to decriminalise suicide in the Mental Health-care Bill. A victim will be thought of as mentally ill and therefore appropriately aided in such circumstances rather than being punished and alienated further.)
- On similar lines, there is a need to identify rights of transgenders within the Golden Triangle– Article 14, 19 and 21. Integrating the third gender is the way ahead.
4. Impact on existing laws/rules
- Criminal laws, especially related to sexual offences will have to be updated to bring them in-line with the acceptance of the third gender and therefore their sexual orientations.
- Marriage, adoption, succession rights must be guaranteed to them as well (Note:Adoption rights were already being enjoyed by transgenders at some places like Germany).
- Most of these laws are cisnormative (based on binary gender) and consequently require an overhaul to accommodate the trinity.
- For instance, countries like UK and Argentina have addressed this concern in their laws. India must follow their precedent in this regard.
5. IPC – Section 377
- Embracing rights of persons with non-conforming genders while criminalising persons with non-conforming sexual orientations is absurd.
- This is even more surprising when the safeguards are given in place to check child-molestation, sexual abuse by means of laws like POCSO Act (Prevention of Children from Sexual Offences).
Recent Developments in the Transgender Rights Bill so far :
- The Transgender Persons (Protection of Rights) Bill that has undergone inter-ministerial consultation and was vetted by the law ministry has been sent to the Cabinet.
- The Social Justice ministry has sent a Bill on transgender rights to the Cabinet after finalizing nine amendments, including those in the definition of the term ‘transgender’, keeping with the recommendations of a parliamentary panel.
- The earlier definition of a transgender was “neither wholly male nor female, a combination of female or male, or neither female nor male and whose sense of gender does not match with the gender assigned to that person at the time of birth”, has been removed, as per the advice of the standing committee.
- according to the new definition proposed in the Bill, “a transgender means a person whose gender does not match with the gender assigned to that person at birth and includes trans-man or trans-women (whether or not such persons has undergone sex reassignment surgery or hormone therapy or laser therapy or such other therapy)”.It also includes person with intersex variations, gender-queer and person having such socio-cultural identities such as ‘kinnar’, ‘hijra’, ‘aravani’ and ‘jogta’,
- Ministry is also done away with the recommendation which is required from district screening committees for issuing a certificate, if a transgender undergoes a surgery to change his or her gender.
- A transgender, who has already been issued a certificate and undergoes a surgery to his or her gender, may now get a it from the medical superintendent or chief medical officer, authenticating the same to make an application to the district magistrate for a revised certificate. The district magistrate on receipt of an application and after being satisfied will issue a certificate indicating change in gender in such form and manner and within such time, as may be prescribed.
- Besides, now every establishment, irrespective of how many people are employed there, will have to designate a officer to deal with complaints.
Earlier, establishments of 100 or more people had to designate a complaint officer.
- The standing committee had expressed dismay over the functions of the national council for redressal of grievances of transgenders not being precisely mentioned.
- It had recommended that the council be vested with more power and that its powers and functions be elaborated.
- Following this, the Centre has specified that the council will advise the central government on the formulation of policies, programmes, legislation and projects for transgenders.
- The ministry did not make any changes on the recommendation that transgenders be exempted from Section 377 of the Indian Penal Code (IPC) which criminalises homosexuality and including them in the other backward classes category.
- The council will also monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgenders, review and coordinate the activities of all departments and NGOs, redress grievances among others.
After analyzing the discrimination, it is revealed that the transgenders along with other person have been conferred the following rights, that is, right to equality, equality of opportunity, fundamental freedoms, right to life which includes right to live with human dignity and right against exploitation.
These rights include the basic and inalienable rights and such deprivation excludes hijras from the very fabric of Indian civil society. India is walking towards a better future with a positive mindset as gradually it has started recognizing the rights of the unheard through the golden doors of judicial activism. The Supreme Court’s landmark 2014 judgment recognized transgenders as the third gender, assigning them their own identity and directing the government to provide them with quotas in jobs and education. Thus, the transgenders can make their own choices of profession, helping many dreams come true. They can be doctors, chefs, police inspectors, lawyers. They can now be anything they want. The transgender community has come into a limelight as a result of which last year in 2016, a private member bill was placed in the House of Parliament for giving legal recognition to the rights and status of transgender community.