This article is written by Saumya Agarwal, a student of Amity Law School, Delhi
MISCONCEPTION ABOUT THE TERM ‘TRANSGENDER’
Transgender is not a term limited to persons whose genitals are intermixed but it is a blanket term of people whose gender expression, identity or behavior differs from the norms expected from their birth sex. Various transgender identities fall under this category including transgender male, transgender female, male-to-female (MTF) and female to male(FTM). It also includes cross-dressers (those who wear clothes of the other), gender queer people (they feel they belonged to either both genders or neither gender) and transsexuals.
In India, there are a wide range of transgender related identities which includes the Hijras, Aravanis, Kothis, Jogtas/ Jogappas, Shiv Sakthis. In the past, they were treated with great respect.
‘Hijra’ is a Persian word translated as eunuch which is used in common parlance for transgender community in India.
‘Aravani’ is a term used for male-to-female transgender who undergo genital modification through SRS (Sex Reassignment Surgery) or perform Nirwaan which is a traditional mode of castration.
Kothi is used for those who adopt a feminine role in same sex relationships, but do not live in communes as Aravanis.
Jogtas/ Jogappas found in Maharashtra and Karnataka are male to female transgender who devote themselves to the service of a particular god.
Shiv Shakthis found in Andhra Pradesh are males who are considered married to gods particularly Lord Shiva. They usually work as spiritual healers or astrologers.
RIGHTS GRANTED UNDER INDIAN LAW TO TRANSGENDERS
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 life of transgender people is a daily battle as there is no acceptance anywhere and they are ostracized from the society and also ridiculed.
However, the Supreme Court of India in its pioneering judgment by the division bench of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v. Union of India & Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)] recognized the third gender along with the male and female. By recognizing diverse gender identities, the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is recognized by the society.
“Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing down the ruling.
The right of equality before law and equal protection of law is guaranteed under Article 14 and 21 of the Constitution. The right to chose one’s gender identity is an essential part to lead a life with dignity which again falls under the ambit of Article 21. Determining the right to personal freedom and self determination, the Court observed that “the gender to which a person belongs is to be determined by the person concerned.” The Court has given the people of India the right to gender identity.
Further, they cannot be discriminated against on the ground of gender as it is violative of Articles 14, 15, 16 and 21.
The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held that “no restriction can be placed on one’s personal appearance or choice of dressing subject to the restrictions contained in article 19(2) of the Constitution”.
The Court recognized the right to as to how a person choose to behave in private, personhood and the free thought process of the human being, which are necessary for the fullest development of the personality of the individual. The Court further noted that a person will not realize his dignity if he is forced to mature in a gender to which he does not belong to or he cannot relate to which will again hinder in his development.
The Supreme Court has given certain directions for the protection of the rights of the transgender persons by including of a third category in documents like the election card, passport, driving license and ration card, and for admission in educational institutions, hospitals, amongst others.
Human rights are basic rights and freedoms which are guaranteed to a human by virtue of him being a human which can neither be created nor can be abrogated by any government. It includes the right to life, liberty, equality, dignity and freedom of thought and expression.
Violation of Human Rights
They are deprived of social and cultural participation and hence they have restricted access to education, health care and public places which further deprives them of the Constitutional guarantee of equality before law and equal protection of laws. It has also been noticed that the community also faces discrimination as they are not given the right to contest election, right to vote (Article 326), employment, to get licenses, etc. and in effect, they are treated as outcast and untouchable.
The transgender community faces stigma and discrimination and therefore has fewer opportunities as compared to others. They are hardly educated as they are nor accepted by the society and therefore do not receive proper schooling. Even if they are enrolled in an educational institute, they face harassment and are bullied every day and are asked to leave the school or they drop out on their own. It is because of this that they take up begging and sex work.
Seldom does a skilled individual from this community get into formal employment due to the policy of hiring only from either the male or female gender. Even if they do, they are ridiculed and ostracized and hence forced to leave their jobs.
They are forced into sex work which puts them at the highest risk of contracting HIV as they agree to unprotected sexual intercourse because they fear rejection or they want to affirm their gender through sex. They are viewed as ‘vectors’ of HIV in the society. Other sexually transmitted infections such as rectal gonorrhea, syphilis, rectal Chlamydia, etc., add to the risk of HIV.
Immoral Traffic Prevention Act of 1956 which was amended in 1986 has become a gender neutral legislation. The domain of the Act now applies to both male and female sex workers along with those whose gender identity was indeterminate. With the amendment both the male and hijra sex workers became criminal subjects as this gives the police the legal basis for arrest and intimidation of the transgender sex workers.
Section 377 of IPC criminalizes same sex relations among consenting adults. This is a colonial era law which makes the Transgender community vulnerable to police harassment, extortion and abuse. In Jayalakshmi v. State of Tamil Nadu, Pandian, a transgender, was arrested on charges of theft by the police. He was sexually assaulted in the police station which ultimately led him to immolate himself.
CASE STUDIES
- Laxmi Narayan Tripathy, a Hijra, explained her trauma as growing up as a child, “I felt different from the boys (as I was born as a boy) of my age and was feminine in my ways. On account of her femininity, from an early age, I faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to my being different, I was isolated and had no one to talk to or express my feelings while I was coming to terms with my identity. I was constantly abused by everyone as a ‘chakka’ and ‘hijra’.”
Later, she joined the hijra community is Mumbai as she identified with other Hijras and for the first time in her life, she felt at home.
- Siddarth Narrain, an eunuch, has similar things to say. He expresses his feelings as when, “I was in the 10th standard I realized that the only way for me to be comfortable was to join the hijra community. It was then that my family found out that I frequently met hijras who lived in the city. One day, when my father was away, my brother, encouraged by my mother, started beating me with a cricket bat. I locked myself in a room to escape from the beatings. My mother and brother then tried to break into the room to beat me up further. Some of my relatives intervened and brought me out of the room.”
- 22 years old Madhu (name changed), a transgender woman from Madurai explains why she no longer gets tested for the disease. She shares that “I no longer have the courage. What if they say that I have HIV and AIDS? Where will I go? And how will I learn? I hope to die if I ever get detected with HIV.”
Similar life experiences have been experienced by other members of the Transgender Community. Their vulnerabilities force them to compromise on their health and safety.
DIRECTIONS TO THE CENTRAL AND STATE GOVERNMENT
The court as issued certain directions to the central and state government which are:
- Hijras, eunuchs should be treated as third gender for the purpose of safeguarding their fundamental rights,
- Recognize the persons’ need to identify his own gender,
- Providing reservations in public education and employment as socially and educationally backward class of citizens,
- Making special provisions regarding HIV sero-survelliance for transgender persons and provide appropriate health facilities,
- Tackle their problems such as fear, gender dysporia, shame, depression, suicidal tendencies, etc.
- Measures should be taken to provide health care to transgender people in hospitals such as making separate wards and also provide them separate public toilets,
- Frame social welfare schemes for their all round development,
- To create public awareness so that the transgenders feels that they are part of the society and are not to be treated as untouchables.
The judgment has marked a break from otherwise paternalistic and charitable approach of the state towards the transgender community by framing their concerns as a matter of rights.
RIGHT OF TRANSGENDER PERSONS BILL, 2014
The Bill was introduced in Rajya Sabha on 12th December, 2014 which is passed on 24th April, 2015 unanimously, with cross-party support. This was a private member’s bill introduced by the MP from Tamil Nadu, Tiruchi Siva. 24th April is celebrated as Transgender day following the passage of the Bill in the Rajya Sabha.
The rights guaranteed under the Bill are mostly substantive rights such as the right to equality and non-discrimination, life and personal liberty, free speech, to live in a community, integrity, along with protection from torture or cruelty and abuse, violence and exploitation. There is a separate clause for transgender children.
Education, employment and social security and health are also covered under the Bill. The chapter on education makes it mandatory for the Government to provide inclusive education for transgender students and provide adult education to them.
With the employment chapter, there are two separate clauses dealing with formulation of schemes for vocational training and self-employment of transgender persons by the Government. There’s a separate clause for non-discrimination against transgender persons in any establishment – public or private.
In the social security and health chapter, the Government is asked to propagate social security and health care facilities which are to be provided in the form of separate HIV clinics and free SRS. They should be given the right to leisure, culture and recreation. Basic rights like access to safe drinking water and sanitation must be provided by the government.
The Bill envisages setting up a number of authorities and forums – National and State Commissions for Transgender Persons. The Commissions work will be mostly in the nature of inquiry or recommendations in the inconsistencies in the application of the law or violations of right of transgender persons. The Commissions can issue summons to witnesses, receive evidence, etc. There is penalty by way of imprisonment for upto a year for hate speech against transgender people.
| SOME DEFINITIONS
· Transsexual: A medical term applied to individuals who seek hormonal ( often, but not always) and surgical treatment to modify their bodies so that they can live their life to the fullest members of the sex category opposite to the sex assigned to their at birth( including legal status). · Transgender: Literally “across gender”, sometimes interpreted as “beyond gender”, a community-based term that describes a wide variety of cross-gender behaviors and identities. · Binary Gender: A traditional and outdated view of gender, limiting possibilities to ‘man’ and ‘woman’. · Binary Sex: A traditional and outdated view of sex, limiting possibilities of ‘male’ and ‘female’. · Gender Identity: A person’s internal, deeply felt sense of being either man or woman, or something other or in between. Because gender identity is internal and personally defined, it is not visible to others. · Gender Expression: It is externally and socially perceived. It refers to all external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns and social interactions. This is also called gender presentation. |
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