THE RIGHTS OF THE TRANSGENDER PEOPLE IN INDIA.
Author: Harshika Bhutda, a student at Symbiosis Law School, Hyderabad.
Individuals who identify differently from the traditional gender conventions, which limit gender identification to male or female, are known as transgender persons. Because society has not accepted their gender identification, individuals have experienced physical abuse, social injustice, and discrimination. Some transgender persons identify as members of certain socio-cultural groups, such as Hijras, Jogappas, Sakhi, Aradhis, etc., while others are referred to be transgender individuals even if they do not fit into any of the categories. “A person whose gender does not match with the gender that was assigned to them at birth but who is genderqueer and exhibits intersex variation” is defined as a transgender person. These individuals are those that have either male or female anatomy at birth, but who feel differently about their bodies because of how their gender expression, identity, or behaviour varies from that of their biological sex. Genderqueer or transgender people identify as such because they reject the traditional understanding of gender, which simply divides people into male and female. Transgender people try to express their gender identity in many ways. Some use their behaviour, dress, or mannerisms to live like the gender they feel is right for them.
Many transgender-related identities exist in India, such as the Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv Sakthis. The Persian term “hijra,” which is translated as “eunuch,” is often used in Indian transgender culture. The name “Aravani” refers to transgender people who change their genitalia through SRS (Sex Reassignment Surgery).When someone chooses to live in a same-sex partnership but does not live in a commune like Aravanis, they are referred to as kothi. Male-to-female transgender people known as jogtas or jogappas live in Maharashtra and Karnataka and dedicate their lives to serving a certain god. Male Shiv Shakthis, who are believed to be wedded to gods, especially Lord Shiva, are located in Andhra Pradesh.
They have their own rights under the Indian Constitution, and the Supreme Court has granted them recognition as the “Third Gender” and some social benefits. In order to stop the prejudice against transgender people and protect their rights, the Supreme Court of India recognised transgender people as belonging to the third gender. The court ordered that transgender people be treated as economically and socially marginalised groups and that their third gender category be used to provide them employment and admittance to educational institutions.
The Hon’ble Supreme Court held in the historic National Legal Service Authority v. Union of India case that the third gender should have access to the same fundamental rights as men and women. The Indian Supreme Court stressed the importance of preserving and defending transgender people’s rights in accordance with Article 14, 15, 16, and 21 of the Indian Constitution in the 2014 NALSA Judgement, which marked the first time that transgender rights were taken into consideration. This means that transgender people are entitled to equal protection under Articles 14, 15, 16, and 21, and the court emphasised the importance of their right to dignity. The court also gave due recognition to the gender identity of those who have undergone sex reassignment surgery, as they have a constitutional right to be recognised as either male or female. Articles 14 and 21 of the Constitution ensure equal protection under the law and equality before the law. The freedom to select one’s gender identity is a fundamental component of living a dignified existence, and it is covered by Article 21 as well. The Court noted that “the gender to which a person belongs is to be determined by the person concerned” in determining the right to personal freedom and self-determination. The right to gender identity has been granted to the people of India by the Court. Furthermore, it is against Articles 14, 15, 16, and 21 to discriminate against them based only on their gender.
The Transgender Person (Protection of Rights) Act, 2019 forbids discrimination in a number of sectors, most notably the work, educational, and health care sectors, in order to protect transgender people’s rights and shield them from prejudice. The Transgender Person (Protection of Rights) Act, 2019 mandates that government-funded or recognised educational institutions offer transgender people sports, recreational opportunities, and education without prejudice. that no commercial or public organisation, including the government, is allowed to discriminate against transgender people in terms of employment, including hiring and promoting employees. Additionally, each business shall appoint a complaint officer to handle any complaints about the act.
The petitioner in this case had filed for a position as a female police constable in the Nangai v. Superintendent of Police case. She had a medical check as part of her training at the Vellore Police Recruit School. The study determined her genitalia and chromosomal makeup to be “transgender.” Her birth certificate, medical records, and educational certificates were in conflict with the findings of the medical test. Afterwards, the Superintendent gave the order to remove her from her position as a lady constable. Based on the medical statement and the contested decision of termination from service given by the Honourable High Court, the court affirmed the petitioner’s freedom to choose a new gender identification as a third gender in the future.
The 1986 amendment to the Immoral Traffic Prevention Act of 1956 made it law that is gender neutral. The Act now covers individuals whose gender identification previously unclear as well as male and female sex workers. Since the law provides the authorities the legal right to arrest and threaten transgender sex workers, both male and hijra sex workers are now considered criminal subjects.
Sexual intercourse between consenting adults are illegal under Section 377 of the Indian Penal Code. In the case of Jayalakshmi v. State of Tamil Nadu, the police detained Pandian, a transgender person, on suspicion of stealing. He committed self-immolation after experiencing sexual abuse in the police station.
In the 2019 case of Arun Kumar & Anr. v. Inspector General of Registration & Ors., the Madras High Court ruled that transgender individuals are included in the definition of “bride” under Section 5. This was decided based on Article 21, the rulings in Puttuswamy and NALSA. The Madras High Court further mandated that educational institutions give extra gender categories on significant paperwork and gender-neutral toilets.
The Transgender Persons Special Transgender Act (Protection of Rights) Act, 2019 granted special authorization for the establishment of the National Council for Transgender Persons (NCTP), a unique organisation, in 2020. It often advises the government on issues pertaining to equal opportunity policies that impact transgender people.
Transgender individuals can apply online for an identification card and certificate through the National Portal for Transgender Persons from any location in the nation, avoiding the need to meet with authorities in person. They will be able to monitor the application, denial, grievance resolution, and other process statuses with its assistance, ensuring process transparency.
The “Shelter Home for Transgender Persons” scheme provides a place to stay, food, clothes, recreational opportunities, yoga, physical fitness, library resources, legal assistance, technical advice for gender transition and surgery, employment opportunities, and capacity building for trans-friendly organisations. A minimum of 25 transgender people would be rehabilitated under the programme in each of the residences designated by the Ministry.
A person whose gender does not match with the gender that was assigned to them at birth but who is genderqueer and exhibits intersex variation” is defined as a transgender person. They have their own rights under the Indian Constitution, and the Supreme Court has granted them recognition as the “Third Gender” and some social benefits. Transgender people are entitled to equal protection under Articles 14, 15, 16, and 21, and the court emphasised the importance of their right to dignity.
