Taking Transgender Rights Seriously: Making Authentic Lives Possible

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Transgender person is defined as ‘a  person who is a person who is neither wholly male or wholly female or a combination of female or male or neither male nor female and whose sense of gender does not match with the gender assigned to that person at the time of birth and includes trans-men and trans-women, persons with intersex variations and gender queers[1]’. Just back in 2015 in the important case of  National Legal Service Authority v. Union Of India[2] Supreme Court  held that ‘….discrimination on the basis on the basis of sexual orientation or gender identity includes any discrimination , exclusion, restriction or preference which has the effect of nullifying or transposing equality by law or the equal protection of laws guaranteed by our constitution  and hence we are inclined to give various directions to safeguard the constitutional rights of the member of TG community…..’. Furthermore it read ‘….Right Of TG to identified and categorized as Third Gender…..’. This decision created a splash of joy among  the members of this community across the country. For why not their rights had been finally recognized and their long  term wait had came to an end. They were no longer to be identified as males in state of Punjab etc. because they had their own identity in this country.

In Hindu mythology it is believed that transgender are the descendants of Aravan, son of great archer Arjuna[3]. As narrated  by the great text Aravan was the son of Arjuna from his wife Ulupi. He was too a fierce warrior like Arjuna and was fighting along side Pandavas  in  the great war of Kurukshetra. He sacrificed his life for the victory of Pandavas  since it was believed in those days that whosoever sacrificed his life to Goddess Kali his side shall won the war. And he volunteered for this. In return he got three boons first was of heroic death in warfare second was of to see the entire war and third was to be married before the sacrifice. Since no girl accepted to marry a soon  dying person Lord Krishna in disguise of  Mohini married him and spent night with him. It is his whose descendants TGs’ are considered to be and hence are also called as Aravanis.Koovagam festival is held annually where the marriage of Aravan and Mohini is re-enacted along with the sacrifice. As all the Aravanis consider Aravan as their husband so they become widow and  mourn. Not only this the great lord Shiva is in one of his deities is worshipped as half man and half women. In manusmriti it is said that ‘….a male child is produced by a greater quantity of male seed, a female child by the prevalence of female, and if both are equal a a third sex child(napusama) or boy and girl twins are produced….’[4].During  the Muslim rule in India and  various other parts of the world  TG’s were appointed on high administration posts including in charge of hareams as they were considered to both clever and  powerful. Infact they were also the only people other then the King himself who could enter harem thus citing their importance during that period.

In Mayan culture ‘…Mayan rulers presented themselves as embodying the entire range of gender possibilities from male through female by wearing blended costumes and playing male and female roles in ceremonies….’[5].In Greek history too they were considered as loyal and indispensable and thus were spoken of with a great respect.But this all began to change as the industrial revolution circled around in 18th century. New terms like Gender Identity, Gender Equality etc. began  to surface. Unlike in the east the status of TG’s had been lowered to a great extent in the west. When  westerners began to explore the east they were repulsed by the sight that why were TG’s treated with such respect. In the second half of the 19th century the British colonial administration vigorously sought to criminalize the community and to deny them  the civil rights. They were considered to be separate caste or tribe in different parts of India by the colonial administration. The Criminal Tribes Act,1871; thus included all hizra who were concerned in kidnapping and castrating children and dressed like women to dance in public places. The  punishment for such activities was up to two years imprisonment and a fine or both. This pre-partition history influences  the vulnerable circumstances of this community in the contemporary world. However the act was repealed in 1952 but its legacy continues and many local laws reflected the prejudicial attitudes against certain tribes including this. Recently the Karnataka Police Act was amended in 2012 to ‘ provide for registration  and surveillance of Hijras who indulged in kidnapping of children, unnatural offences and offences of this nature’ (Section 36A) in a similar vein to Criminal Tribes Act(1871).

First of all Gender Identity is something to how one sees himself based on what he feels when talked about gender. Transgender may be called as anyone who crosses borders to live outside their expected gender land. Usually their gender identity differs from their assigned sex. Often the term lesbian, gay, bisexual and transgender are thought to be one whereas they are completely different.

 

The problems faced by TG’s in India are as follows:

  1. These people are shunned by family and society alike.
  2. They have restricted access to education, health services and public spaces.
  3. Till recently, they were excluded from effectively participating in social and cultural life.
  4. Politics and decision-making processes have been out of their reach.
  5. Transgender people have difficulty in exercising their basic civil rights.
  6. Reports of harassment, violence, denial of services and unfair treatment against transgender persons have come to light.
  7. Sexual activity between two persons of the same sex is criminalized and is punishable by incarceration.

 

Chapter II of the aforesaid bill provides that no person shall discriminate against a transgender person on the denial, discontinuation or unfair treatment in the various fields including educational services, jobs etc.[6]

 

Now coming to the shortcomings of bill the chapter III  of the bill goes on to provide a mechanism on the for the recognition of the identity.  As  explained by Danish Sheikh “…The basis of the for this provision  comes from the report of an expert committee constituted by social justice ministry in 2013.The issue here is that providing for such an onerous procedure stands in the violation of the self identification principle…..”[7].Also chapter II of the bill fails to define the term ‘discrimination’.

In the words of  a petition supported by an affidavit in famous NALSA  judgment‘….Growing up as a child, she felt different from the boys of her age and was feminine in her ways. On account of her femininity, from an early age, she faced repeated sexual harassment, molestation and sexual abuse, both within and outside the family. Due to her being different, she was isolated and had no one to talk to or express her feelings while she was coming to terms with her identity. She was constantly abused by everyone as a ‘chakka’ and ‘hijra’. Though she felt that there was no place for her in society, she did not succumb to the prejudice. She started to dress and appear in public in women’s clothing in her late teens but she did not identify as a woman. Later, she joined the Hijra community in Mumbai as she identified with the other hijras and for the first time in her life, she felt at home. That being a hizra she faced serious discrimination throughout her life because of her gender identity. It has been clear to the her  the complete non-recognition of the identity of hijras/transgender persons by the State has resulted in the violation of most of the fundamental rights guaranteed to them under the Constitution of India….’.

 

Article 14 of the Constitution of India 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. Equality includes the full and equal enjoyment of all rights and freedom. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and 61 nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female.

Articles 15 and 16 prohibit discrimination against any citizen on certain enumerated grounds, including the ground of ‘sex’. In fact, both the Articles prohibit all forms of gender bias and gender based discrimination. Articles 15 and 16 sought to prohibit discrimination on the basis of sex, recognizing that sex discrimination is a historical fact and needs to be addressed. Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.

Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of the State to impose restrictions from exercise of those rights. The rights conferred by Article 19 are not available to any person who is not a citizen of India. Article 19(1) guarantees those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country. Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. 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.

Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution.

Not only this  United Nations has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons. Article 6 of the Universal Declaration of Human Rights, 1948 and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. Everyone shall have a right to recognition, everywhere as a person before the law. Article 17 of the ICCPR states that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation and that everyone has the right to protection of law against such interference or attacks. International Commission of Jurists and the International Service for Human Rights on behalf of a coalition of human rights organizations, took a project to develop a set of international legal principles on the application of international law to human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to State’s human rights obligations. A distinguished group of human rights experts has drafted, developed, discussed and reformed the principles in a meeting held at GadjahMada University in Yogyakarta, Indonesia from 6 to 9 November, 2006, which is unanimously adopted the Yogyakarta Principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity.

The  people around India has certain acceptance for them. They are an important part of people’s life to a limited extent. Yes but they are not wholly accepted.  Their colonies in which they live are situated outside the main inhabited  sites like cities or villages on an unknown  location. Common people hardly know about their life or social structure. This brings the rift between both sections. This divides TG’s from common people.The transgender in India is possibly the most well knownand popular third type of sex in the modern world. TheSupreme Court declared for transgender as third gender.The third genders in India have emerged as a strong factionin the LGBT rights. In the contemporary time the

Government of India introduced so many welfare policy andschemes such as, census, documentation, issuing of thecitizenship ID Cards, issuing passports, social-economical

development and constitutional safeguards for the transgender people. The Mahatma Gandhi National RuralEmployment Guarantee Act (MGNREGA) is a majorinitiative of the 11thFive Year Plan period which broughtemployment opportunities for transgender people. The

Ministry of Housing and Urban Poverty Alleviation is theNational Urban Livelihood Mission and Healthcarefacilities. The social, economic, political transformation,Housing, legal measures, Police Reforms, legal andconstitutional safeguards to prevent human rights violations of the transgender community and institutional mechanismsto address specific concerns of transgender people.Through, the transgender community was given highposition in Mughal period and facing many problemsobstacles in British colonial rules. But now to safe guard thetransgender communities there are many policy andschemes implemented by the government. Through this social economical status of the transgender community willbe developed. The government , society and transgender society together have to eradicate this evil practice. If all this are broughtin their day to day life, it would enlarge the growth of  transgender community, their lives can be authenticated  in India and subsequently  make India a great country again.

[1]The Transgender Persons (Protection Of Rights) Bill,2016

[2]http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

[3]Mahabharata

[4]Manusmriti 3.49

[5] Rosemary A. Joyce’s Mesoamerican civilization

[6] The Transgender Persons (Protection Of Rights) Bill,2016

[7]http://thewire.in/56299/failures-of-the-new-transgender-bill/

Contributed by – Anirudh Bhaskar, Institute of Law, kurukshetra University

Edited By – Nikita Goel,  Convener, Students Reporter Committee, INBA

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