Author PAMULA TANUJA, SRI PADMAVATI MAHILA VISVAVIDYALAYAM
Human rights are indivisible, inalienable, and universal. Everyone owns them, regardless of their race, religion, country, or gender identity . Since the beginning of time, transgender persons have been denied fundamental rights because their gender identity does not align with their biological birth gender. These include the right to a fair existence, equality under the law, freedom of expression, and access to healthcare, education, and employment.
Transgender people still experience discrimination, abuse, and exclusion in cultural, legal, or institutional settings, despite advancements in the last few decades. Many individuals have difficulties obtaining identification papers, face social disapproval, and are not legally recognized for their gender identity.
According to this article, transgender rights are as in basically linked to the fundamental human rights that everyone is entitled to, rather than being segregated or restricted. Denying such rights is not just a violation of the law; it also denies a person’s identity.
ABSTRACT
Historically, transgender people have been excluded because their gender identity is not connected to the gender assigned at birth. Despite the fact that human rights are universal and should be protected for all, transgender individuals often suffer systematic discrimination, exclusion, and the denial of basic rights such as education, healthcare, employment, and legal recognition. This article examines transgender rights in the broader context of human rights, arguing that they are essential to the full realization of equality, dignity, and liberty for all people and are not unique or exceptional rights. It discusses the Indian Constitution’s constitutional protections, the notion of self-identification, and the significance of constitutional morality.
Legal framework
The legal framework governing transgender rights includes important concepts such as transgender person, which refers to a person whose gender identity is different from the sex given at birth, gender identity, and gender expression. The principle of self-identification refers to the legal right to determine one’s gender without the need for medical or psychological evidence. A person’s declared gender is reflected on their identification documents after it is legally acknowledged. Articles 14, 15, and 21 of the Indian Constitution are the basis for this. According to constitutional morality, the protection of individual rights takes precedence over societal morality. This article focuses primarily on the principles for ensuring that transgender persons have full and equal human rights, equal opportunity, fair accommodation, and beneficial state obligations.
ACCORDING TO INTERNATIONAL HUMAN RIGHTS:
The Universal Declaration of Human Rights (UDHR)
The Universal Declaration of Human Rights (UDHR), which was ratified in 1948, is the cornerstone of international law, stating that every person is born free and equal in rights and dignity. Despite the UDHR’s lack of specific mention of transgender people, its broad and inclusive wording has been widely understood to encompass gender identity and expression under the umbrella of human rights.
A universal framework supporting the protection and inclusion of transgender people is provided by articles such as Article 1 (equality and dignity), Article 2 (non-discrimination), Article 3 (right to life and liberty), and Article 6 (legal recognition). The right to privacy, freedom of speech, access to healthcare, and protection from degrading treatment are especially important for preserving the rights and dignity of transgender people.
The Yogyakarta Principles, which specifically describe how international human rights law applies to gender identity, are one example of how the UDHR’s principles have influenced subsequent events. As a result, the UDHR is essential in establishing that transgender rights are fundamental human rights, and its principles continue to inspire countries in developing inclusive, non-discriminatory legal frameworks.
YOGYAKARTA PRINCIPLES :
The Yogyakarta Principles, which provide a comprehensive framework for addressing issues of sexual orientation and gender identity using current international human rights law, were adopted in 2006 by a team of international human rights experts in Yogyakarta, Indonesia. These principles support the entitlement of transgender people to the same human rights and freedoms as everyone else, such as the right to legal recognition, respect, equality, education, employment, and healthcare. Most importantly, they highlight the right to self-identify one’s gender without the need for any kind of medical or surgical intervention. Transgender rights are directly supported by principles like the right to recognition before the law, protection against discrimination, and access to social security and healthcare services. In the case of NALSA v. Union Of India (2014), the Supreme Court of India has issued its judgment made extensive use of the Yogyakarta Principles, acknowledging gender identity as an essential component of dignity and autonomy under Constitution. These concepts continue to serve as a global norm for asserting that transgender rights are, at their core, human rights, and they inform legislative changes and policymaking around the world.
IN ACCORDANCE WITH INDIAN LAW:
2019 Transgender Persons (Protection of Rights) Act.
The Transgender Persons (Protection of Rights) Act, 2019, has its roots in a confluence of judicial orders, constitutional requirements, international obligations, and growing public understanding of the rights and dignity of transgender people in India.
The NALSA Judgment (2014) This law was based on the landmark case of National Legal Services Authority (NALSA) v. Union of India, AIR 2014 SC 1863, which established the legal basis for this Act. It acknowledged transgender people as the ‘third gender’. According to the statement, gender identity is a fundamental aspect of individual freedom and honor that falls within Article 21 of the Declaration.
Transgender People Bill 2019:
The government of India introduced the first measure in 2016. The bill was then referred to a Parliamentary Standing Committee, which issued its report in July 2017.
Transgender people and activists opposed the measure because of its inadequate penalties for violence, flimsy safeguards, and lack of self-identification clauses.
The second bill, which was introduced in the Lok Sabha in December 2018, is based on the 2016 bill. Many of the Standing Committee’s proposals were disregarded by this bill.
Minister Thawar Chand Gehlot introduced the measure in the Lok Sabha on July 19,2019 and by the Rajya Sabha on November 26, 2019. Lastly, on December 5, 2019, the President gave his approval to the bill. On This legislation went into force on January 10, 2020. Transgender People (Protection of Rights) Act. 2019
This legislation is divided into nine chapters, divided into 23 sections.
This act contains:
Definition:
A transgender person is defined as someone whose gender does not correspond to the one given at birth. Includes intersex individuals, trans males, trans women, genderqueers, and socio-cultural identities like hijra and kinnar.
Provisions Against Discrimination (Section 3)
The Act outlaws all forms of discrimination against transgender people in several areas of their lives. Any unfair or prejudicial treatment that denies a person equal opportunity, respect, or access due to their transgender status is considered discrimination.
Employment
Transgender individuals are entitled to fair employment opportunities and work environments free from discrimination. Fair recruiting methods, equal pay and promotion, and workplace harassment protection are all included in the Protection.
Health care
They have the right to equitable access to healthcare services that are free from discrimination or denial. The Right to privacy and dignity in health records, access to gender-affirming care such as hormone therapy or surgery, health insurance coverage, and nondiscriminatory treatment by physicians and hospitals are all included in the protection.
Education
All educational institutions are obligated to accept transgender people without prejudice, allow them to attend, and allow them to engage. Equal admission possibilities, no harassment, inclusive curriculum, gender-neutral infrastructure, and the right to express gender identity are all covered by the Protection.
Property and Housing
They are free to purchase, rent, live in, or inherit property without fear of being evicted or denied. This legislation provides protection from discrimination when renting a house, protection from family disownment, and protection from forced eviction because of one’s gender identity.
Offices and Services for the Public
It includes equal access to government offices, welfare schemes, protection against the refusal of services at banks, hospitals, and ration stores, as well as the ability for transgender people to run for public office or vote in elections.
Access to and movement within establishments
They must be given the right to move freely and access any location that is accessible to the general public. Use of public transit (buses, trains, autos) Access to public restrooms, parks, restaurants, and movie theaters No restrictions based on appearance.
OFFENCE AND PENALTIES
The following offenses against transgender people are recognized by the Act:
i) bonded labor (excluding mandatory government service for public purposes),
(ii) denial of access to public areas,
(iii) expulsion from the house and community.
(iv) verbal, physical, sexual, emotional, or financial abuse.
These crimes carry a penalty of between two years and six months in prison.
National Council for Transgender People (NCT):
The council’s chairman will be the Union Minister of a ministry responsible for social justice and empowerment. Representatives from five states or Union Territories will be present on a rotational basis.
A three-year term is mandatory for all community members.
The council will consist of joint secretary-level representatives from the Ministries of Health, Home, Minority Affairs, Education, Rural Development, Labour, and Law.
The National Commission for Women, National Human Rights Commission, NITI Aayog, and a member from the Department of Pensions (Ministry of Personnel, Public Grievances & Pensions) will be represented.
The Transgender Persons Rules 2020:
The Transgender People Rules, 2020, were created to put the 2019 law into effect and safeguard the rights of transgender people. They offer a straightforward procedure for requesting a certificate of identity from the District Magistrate based on self-declaration, without the need for a medical evaluation. If someone receives medical care, they may get a modified certificate by presenting medical evidence.
The regulations specify a 30-day timeline for issuing the original certificate and 15 days for any modifications. Every business is required to have an Equal Opportunity Policy and designate a Complaints Officer to handle complaints within 30 days. If an application is denied, the applicant has the right to appeal.
Governments must guarantee access to welfare services like segregated hospital wards, shelters, HIV centers, and gender-neutral restrooms. A Transgender Protection Cell must be established in each district to oversee offenses and guarantee safety. The National Institute of Social Defense partners with the national organization, the National Council for Transgender People, to design social welfare programs.
In accordance with the Indian Constitution
The term “transgender” is not specifically mentioned in the original text of the Indian Constitution. The Supreme Court, on the other hand, has interpreted current laws to protect transgender people under the larger umbrella of fundamental rights.
1. Right to Equality – Article 14
According to this article ,everyone is equal before the law and has equal protection under the law. The Supreme Court decided in NALSA v. Union of India (2014) that transgender individuals should have the same legal protections as everyone else.
2. Article 15 – Discrimination Prohibition
According to it, discrimination based on religion, race, caste, gender, or place of birth is prohibited.
The meaning of “sex” has been legally extended to include gender identity and sexual orientation. Article 15 is violated by any regulation, legislation, or governmental activity that singles out transgender people.
3. Article 16 – Equal Opportunity in Public Employment
It stipulates that there must be no discrimination based on gender in public employment. The inclusion of transgender identity under this protection has been acknowledged by the courts. Transgender individuals have the right to seek and be hired for public employment without discrimination.
4. Freedom of speech and expression under Article 19(1)(a)
According to this article, the court has interpreted the fundamental right to include the ability to express one’s identity, including one’s attire, physical appearance, name, and gender identity.
5. Article 21: The Right to Life and Personal Liberty
According to Article 21, the right to choose one’s gender identity is included, as well as the rights to health, education, shelter, and livelihood.
CASE LAW
National Legal Services Authority (NALSA) V. Union of India & Others (2014) 5 SCC 438,
The petition, which was filed by the National Legal Services Authority (NALSA), sought legal recognition and protection for the rights of transgender people, particularly those who identify as neither male nor female. The plea maintained that because transgender people are not recognized by the law, they are subject to prejudice, exclusion, and violence.
The central question was whether transgender people have the right to choose their own gender and whether denying them this right violates the Indian Constitution.
The Supreme Court determined that transgender people have the right to be recognized as a third gender, distinct from men and women. Legal acknowledgment of one’s gender identity is necessary for leading a life with dignity.
The Court upheld the idea that gender self-identification is essential to a person’s dignity and autonomy. People may identify as male, female, or third gender, and the State must respect this identity.
According to the Court, transgender people are covered by Articles 14 (equality before the law), 15 and 16 (non-discrimination), 19(1)(a) (freedom of expression), and 21 (right to life and dignity). It is unconstitutional to refuse them recognition and rights.
The Yogyakarta Principles, which interpret international human rights law in light of sexual orientation and gender identity, were used by the Court to support the notion that transgender rights are human rights.
The Court was ordered to address stigma against the transgender community through public awareness campaigns. It also instructed the Central and State Governments to take a number of actions to promote the transgender population such as :
Creating the legal definition of “third gender” in all documents. Recognizing third gender people as a “socially and educationally backward class of citizens” who are eligible for quotas in schools and government jobs.
CONCLUSION
Transgender rights are basic human rights, not distinct or unique ones. Denying these rights infringes on constitutional ideals such as equality, dignity, and freedom. The recognition and protection of transgender persons have progressed via international standards like the UDHR and Yogyakarta Principles, as well as Indian legal frameworks like the Transgender Persons Act, 2019, and the NALSA ruling. However, genuine inclusion necessitates not only legal changes but also positive measures and social transformation to guarantee equality in all aspects of life.
FAQS
1.What does the term “transgender” mean?
Someone whose gender identity is different from the sex they were assigned at birth is said to be transgender. Cultural identities like hijra and kinnars, as well as intersex people, transgender women, trans men, and genderqueer people are included.
2.What articles of the Indian constitution safeguard transgender people?
Transgender rights are protected by Articles 14 (equality before the law), 15 (protection from discrimination), 16 (equality in public employment), 19(1)(a) (freedom of expression), and 21 (right to life and dignity).
3.What are the restrictions imposed by the 2019 Transgender Persons (Protection of Rights) Act?
It mandates penalties for crimes such abuse, forced labor, and eviction, as well as prohibits discrimination in education, jobs, healthcare, housing, and public spaces and services.
