TRANSGENDER RIGHTS IN INDIA – articles.lawerness.in

(This article on transgender rights in India is written by Bhumi Khandelwal, a first-year student from VIPS affiliated with GGSIPU)

ABSTRACT

In the landmark judgment of NALSA, it was held that transgender people have the right to consider themselves as the third gender in accordance with their fundamental rights under Articles 14, 15, 16, 19(1)(a) and 21 of the Indian Constitution. Consequently, the Transgender Persons (Protection of Rights) Act 2019 was introduced by Parliament to protect their rights. Despite that, transgenders continue to face discrimination in various places. Therefore, we need to spread the awareness that transgenders are no different from us, they are also humans. There is a need to not only protect them but also gays, lesbians and queer as well. The government, thus, needs to come up with some strict laws and a few amendments

INTRODUCTION

Gender identity is an integral part of the personality and one of the most basic aspects of self-determination, dignity and freedom. In the landmark judgment of NALSA, it was argued that non-recognition of the identity of the third gender is a violation of the fundamental rights under Articles 14, 15, 16, 19(1)(a) and 21 of the Indian Constitution. Furthermore, it was held that Article 19(1)(a) must be interpreted to include within its ambit one’s right to expression of his self identified gender.

However, our society fails to recognize transgender as the third gender. It is so unfortunate that our community fails to understand the pain and sorrow faced by transgender in their everyday life. They are continuously being tortured in public places like railways, malls or even in private places like homes. As a result of which they are compelled to indulge themselves in illegal activities to earn their living.

This article will take your attention to the Plea of Transgender and the Transgender Act which was introduced by the Parliament of India with the objective of protecting their rights, limitation of the Act and landmark judgments in respect to the matter.

According to section 2 (k) of the Transgender Persons (Protection of Rights) Act 2019 (Hereinafter referred to as the Act), a “transgender person” means a person whose gender does not match the gender assigned to that person at birth and includes trans-man or trans-woman (whether or not such person has undergone Sex reassignment surgery, hormone therapy, laser therapy or such other therapy), person with intersex variations, genderqueers, and person having such socio-cultural identities as Kinner, hijra, aravani and jogta.

The Act was introduced by the Parliament of India with the objective to provide for the protection of the rights of transgender people, their welfare, and other related matters.

NEED FOR THE ACT

Transgender people report having experienced high rates of discrimination and harassment. They are discriminated against in various places like educational establishments, employment or occupational areas, healthcare services and access to public facilities and benefits. They are subjected to unfair treatments like verbal abuse, physical and sexual violence; false arrests; denial of share in their ancestral property, services, and admission to educational institutions. They are paid less in comparison to other people for doing the exact same work. So it is the duty of the State to confer legal rights to the transgender community so that they feel protected and can lead their life with respect and dignity.

Article14 of the Indian Constitution states that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Therefore it is the duty of the state to bring changes (including introducing new laws) such that equal protection of laws can be enjoyed by the different sections of the society including transgender.

Article 15 and 16 prohibits any discrimination against any citizen on various grounds including gender-based discrimination. This Act follows Articles 15 and 16 and protects transgender from various discriminations that they face on daily basis.

IMPORTANT SECTIONS OF THE ACT

In this Act, there are 23 sections given for the benefit of transgender people. Some of the important sections covered under this Act are given below.

Section 3 – states that no person or establishment shall discriminate against a transgender in places like educational establishments and services, in place of employment, healthcare services etc.

Section 8 – states that the government should take proper steps to secure full and effective participation of transgender persons and their inclusion in society.

Section16(1) – The Central Government shall by notification constitute a National Council for Transgender Persons to exercise the powers conferred on, and to perform the functions assigned to it, under this Act.

Section 17 -The National Council shall perform the following functions, namely:—

(a) To advise the Central Government on the formulation of policies programmes, legislation and projects with respect to transgender persons;

(b) To monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons;

(c) To review and coordinate the activities of all the departments of Government and other Governmental and Non-Governmental Organizations which are dealing with matters relating to transgender persons;

(d) To redress the grievances of transgender persons; and

(e) To perform such other functions as may be prescribed by the Central Government.

Section 18 Whoever,—

(a) Compels or entices a transgender person to indulge in the act of forced or bonded labour other than any compulsory service for public purposes imposed by the Government;

(b) Denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access to or a right to use;

(d) Harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with a fine.

BENEFITS

Article 21 of the Indian Constitution talks about the right to live with dignity. It means that every person has the right to live with dignity and without discrimination. However, in the real world, we all have seen that transgender people are discriminated on the basis of their gender. The Act shows that India is moving towards a more inclusive and progressive society where people’s opportunities will not be restricted by their gender. It helps India to take a step ahead to match the international standards for the protection of human rights. This act will provide protection to transgenders. Section 8 (chapter IV) of the act talks about the various steps the government needs to take for the welfare of transgenders. Chapter VII states the establishment of the National Council for Transgender Persons which will perform the function to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons and; to monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons (section 17). Recently a scheme called SMILE was launched by the Department of Social Justice & Empowerment of India. SMILE which stands for Support for Marginalized Individuals for Livelihood and Enterprise, is set to provide welfare and rehabilitation to the transgender community and the people engaged in the act of begging. The scheme will give the necessary legal protection, social security and a promise of a secured life to the targeted group. This scheme is also beneficial to transgender in many ways like Scholarships for Transgender Students, Skill Development and Livelihood.

LIMITATIONS

There are various limitations to this Act. The limitations need to be paid attention to in order to improvise the Act. According to IPC section 376 when a man commits rape of a woman the punishment is imprisonment of either description for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine. However under section 18 of the Act, there are various offences ( like sexual abuse, mental abuse etc.) mentioned whose punishment ranges from 6 months to two years with a fine only no matter what the crime is. Therefore the punishment is insufficient for heinous crimes like rape, sexual abuse or violence, sexual harassment or criminal assault.

IMPORTANT JUDGMENTS ON TRANSGENDER

Following are the important judgments given by the law of court on transgender people.

National Legal Services Authority vs. Union of India 2014

For the first time in legal history, Transgender people were recognized as citizens of this country, all the Fundamental Rights were extended to them and they were considered as Third Gender. This case is one of the landmark cases for Transgender Rights in this country. The court laid a set of guidelines that every State should follow to bring Transgender into public spheres and provide remedies for their marginalization.

Puttaswamy VS union of India 2017

In this case, it was held that the Right to Privacy is an integral part of the constitution. Article 21 of the Constitution of India which grants us the Right to Life and Liberty now included the Right to Privacy. Right to Privacy was also extended to every individual irrespective of their gender and sex i.e. including transgender people. They have the right to keep their sexuality private.

Navtej Johar V. Union of India , 2018

In this case, homosexuality was decriminalized in India. This judgment delivered by the Supreme Court of India is a result of multiple Public Interest Litigations that have been filed by different groups of the LGBTQIA community. The Bench struck down Section 377 of the Indian Penal Code to the extent that it criminalized sex between two consenting adults. The Court upheld the provision that criminalizes non–consensual acts with children or animals. The Supreme Court further held that Section 377 violates Articles 14, 15, 16 and 19 1(a) of the Constitution of India. It recognized that every individual irrespective of their gender identity and sexual orientation have the right to live with dignity, and autonomy and make personal and private without State interference.

Arun Kumar Judgment V. inspector general of registration, 2019

It is a case from the Madras High Court which reads into the category of brides to include transwomen. Under Hindu Marriage Act, 1955 the definition of marriage only includes men and women. This judgment expands the category of women to include transgender people to identify as women to be brides as well.

CONCLUSION

The fact that in the 21st century transgender people are still discriminated against and face violence can’t be denied. They face discrimination in places of employment; healthcare; education; access to or enjoyment of goods, facilities, and opportunities available to the public; right to rent, reside or otherwise occupy the property; right to movement etc. We need to remove these unwanted things from our society by spreading awareness. We need to respect not only transgender but lesbians, gays, and queers as well. Government should come up with more strict laws and penalties. A country becomes a developed nation not only because of its infrastructure or technology but also because of its people. We need to move forward not as males or females but as a society as a whole.