This Article is written by Shivanii Singh, a Second-Year Law Student of South Calcutta Law College

Transgender Rights in India: Legal Milestones and Ongoing Challenges

ABSTRACT

[1]Transgenders are some of the most deprived people in the world. A transgender is an individual whose gender is different from the accepted genders of male and female. The condition of Transgenders in India is almost inhumane. They are deprived of their most basic rights. They do not even have access to education, jobs, healthcare facilities, etc. They are discriminated against in all spheres of their life, from childhood till their death. However, the condition of transgenders was not always the same before in India. This article explores their legal rights and the challenges they face today.

INTRODUCTION

Transgender refers to those people whose genders are intermixed. In a broader sense, Transgenders are those people whose gender expression is different from the ones assigned to them at birth. In India, there are a wide range of transgender communities. They are hijras, kinnars, Aravanis, Shiv shaktis. It should be noted that in the past, they were treated with great respect. However. Their conditions in India have been rapidly deteriorating. Transgenders have faced several hardships just because of their gender. It took so many years of legal battles to even get the term '' Third Gender'' recognized. [2]We need to understand that they are humans. They deserve RESPECT, they deserve EDUCATION, they deserve LOVE, and BASIC RIGHTS.

HISTORICAL EVOLUTION OF TRANSGENDER COMMUNITY IN INDIA

Transsexualism in Hindu religion

[3]The first reference to transgender in Hinduism is that of MOHINI the female avatar of Vishnu. In Ramayan, Lord Ram, touched by their love, sanctioned them the power to confer blessing on auspicious occasions. Ardhanarishvara form is an androgynous composite of Shiva and goddess Parvati. The existence of Shikhandini who later transformed into Shikandi also proves the existence of transgender community in India.

Mughal Period

Hijras played an important role in the Mughal period. They rose to power and also held political positions. They were given the responsibility of guarding, and protecting the women in harem due to their utmost loyal and clever nature.

CRIMINALIZATION UNDER THE COLONIAL RULE[4]

The Europeans were repulsed at the sight of hijras and failed to understand why they were being given so much importance and power. In the second half of the 19th century, the Criminal Tribes Act, 1871 was passed which criminalized the hijra community. All hijras who were concerned with kidnapping and castrating children and dressed like women to dance in public places would be liable to two years imprisonment and a fine or both.

CRIMINALIZATION AND MARGINALIZATION DURING POST-INDEPENDENCE ERA

Even though the act was repealed in 1951, its legacy continues. Many local laws reflected the prejudicial attitudes against Hijras. The Karnataka Police Act was amended in 2012 to “provide for registration and surveillance of Hijras who indulged in the kidnapping of children, unnatural offenses and offenses of this nature” (Section 36A), in a similar vein to the Criminal Tribes Act,1871.

LEGAL MILESTONES

Naz Foundation vs Government Of Nct Of Delhi And Others[5]

This is one of the landmark cases in India. It decriminalized section 377 of the Indian Penal Code and it was held unconstitutional as it discriminated against the LGBTQ community.

Section 377 was introduced by the British and it criminalized sexual intercourse other than heterosexual intercourse. The LGBTQ community was being denied rights. The NAZ foundation filed a PIL in the Delhi High Court challenging the unconstitutionality of section 377.

It challenged the unconstitutional nature of Section 377 under Articles 14,15,19, and 21 of the Indian Constitution.

Delhi High Court at first rejected the PIL. On July 9, 2009, India’s Supreme Court sent notice that the Court would consider an appeal in response to the petition, and SECTION 377 was decriminalized thus recognizing their rights.

National Legal Services Authority (NALSA) v. Union of India (2014)[6]

In this landmark case, the third gender was recognized. For a very long time, transgenders were not even given voting times.

The judgment was given on April 15, 2014, by a divisional bench, constituting Justice K.S. Radhakrishnan and Justice A.K Sikri. The Supreme Court of India noted that transgenders are also granted the same equal protection of law. Transgender people are entitled to healthcare facilities and equal opportunities in employment. Justice Radhakrishnan highlighted the struggles faced by the transgender community in India, stating how our society often overlooks the pain and struggles of the transgender community.

Hijras or Eunuchs shall be treated equally and shall be legally recognized as a third gender.

The Transgender Persons (Protection of Rights) Act, 2019[7]

Following the judgment in Nalsa v Union of India, the Parliament passed the Transgender Persons (Protection of Rights) Act, 2019. The 2019 act allows people to have self-identified gender identities.

The regulations also deal with the issuance of a certificate of identity and a certificate indicating a gender change. A transgender person has the right to request from the District Magistrate for a certificate of identity as 'transgender' The only option for receiving a new certificate is for someone to have the gender change surgery, be it from male to woman or vice versa.

RIGHTS

PROTECTION AGAINST DISCRIMINATION

The act prohibits discrimination of transgender in public places, employment, healthcare, etc.

RIGHT OF RESIDENCE

Every transgender person shall have a right to reside and be included in his household.

EMPLOYMENT

They cannot be denied employment in any sector due to their sexual orientation.

EDUCATION

Any educational institute funded by the government shall provide Transgenders with extensive education without discrimination.

In addition, the Act also allows for the constitution of a National Council for Transgender Persons.

Swati Bidhan Baruah v Union of India[8]

The Supreme Court is deciding whether the Transgender Persons (Protection of Rights) Act, 2019 violates fundamental rights guaranteed under Articles 14, 15, 16, 19, and 21 of the Constitution.

Navtej Singh Johar & Ors. v. Union of India[9]

The court had to determine if section 377 of IPC was constitutional. The legal prohibition of anal and oral sex between consenting adults — regardless of the gender of the participants — fell heaviest on same-sex relationships. Section 377 was introduced by the British and it criminalized sexual intercourse other than heterosexual intercourse. The LGBTQ community was being denied rights. The Supreme Court struck the colonial-based rule.

ONGOING CHALLENGES[10]

Discrimination in the educational setup and workplace:

The transgender community has been facing challenges and discrimination throughout.

The government should take steps to bridge the gap.

2) Social exclusion and homelessness

Since the transgender communities lack education and employment opportunities they are looked upon as a lower class by society resulting in exclusion.

3) Lack of legal protection and victims to hate crimes

the Transgender community is not legally protected as much as any other community and because of this, they are easily victimized for the crimes that they didn’t even commit.

CONCLUSION

Transgender people are just humans. Although transgender people have always been respected in India, they are subjected to discrimination. They all live in secluded areas and are still fighting for their rights. Their fight for existence continues.

There are so many cases in India against transgenders- many left unreported. There are still a large number of transgenders not being able to get access to education, and healthcare facilities. There are no separate toilets for them either. Transgenders have faced several hardships just because of their gender. It took so many years of legal battles to even get the term '' Third Gender'' recognized. [11] We need to understand that they are humans. They deserve RESPECT, they deserve EDUCATION, they deserve LOVE, and BASIC RIGHTS.

Ultimately, the progress of transgender rights is a key component in supporting equality and human dignity alike. This includes things like locking in anti-discrimination provisions, at least around health care access, getting one's gender marker updated on legal documents, and creating societal acceptance. But this knowledge should be channeled towards creating a more inclusive society that appreciates the experiences and rights of transgender people instead. Real equality demands the engagement of governments, communities, and individuals to make possible for all transgender people a life free from discrimination and violence, allowing us to achieve our full potential.

References

[1] Human Rights Resource Center, ‘The International Bill of Human Rights’ (University of Minnesota Human Rights Library) http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module5.htm accessed 8 October 2024.

[2] Ram Raj Pant, ‘Judicial Review: Development and Application in India’ (2015) 4 ARSS 17 https://trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf accessed 8 October 2024.

[3] Vivek G. Dhanrajani and Tushar B. Ghodke, ‘Transgender Health: A Review of the Literature’ (2020) National Center for Biotechnology Information https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7539026/ accessed 8 October 2024

[4] Shivani K. Gupta, ‘Transgender Rights and the Law’ (2015) 4(1) Asian Journal of Research in Social Sciences and Humanities https://www.trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf accessed 8 October 2024.

[5] Naz Foundation v Government of NCT of Delhi (2009) Karan M. Sharma, Economic, Social and Cultural Rights Network https://www.escr-net.org/caselaw/2009/naz-foundation-v-government-nct-new-delhi-and-others-wpc-no-74552001/ accessed 8 October 2024.

[6] Siddharth P. Shukla, ‘Criminal Law Bootcamp’ (n.d.) Lawsikho https://lawsikho.com/cacsbootcamp?p_source=iPleaders_RightColumn_2 accessed 8 October 2024.

[7] The Transgender Persons (Protection of Rights) Act (2019) Ministry of Law and Justice, Government of India https://www.indiacode.nic.in/bitstream/123456789/13091/1/a2019-40.pdf accessed 8 October 2024.

[8] Siddharth S. Luthra, ’75 Years of the Supreme Court’ (2023) SC Observer https://www.scobserver.in/75-years-of-the-supreme-court accessed 8 October 2024.

[9] Shubham Kumar, Navtej Singh Johar v Union of India (2018) CLPR https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/ accessed 8 October 20241

[10] Aravind S. K., Transgenders in India (n.d.) Unacademy https://unacademy.com/content/upsc/study-material/indian-society/transgenders-in-india/ accessed 8 October 2024.

[11] Srinivas S., ‘Transgenders Also Deserve Respect, Dignity’ (2022) Deccan Herald https://www.deccanherald.com/india/karnataka/transgenders-also-deserve-respect-dignity-1089802.html accessed 8 October 2024.