Author’s Name: Antara Kolay, Sharda University
Irrespective of the other recently recognized gender identities in India, the third gender or the transgender have been in existence in Indian society for ages. Most commonly known as ‘hijras’ among the Indian population, are born intersex or are born male but have a feminine personality. They have identified as the third gender or transgender, neither male nor female, thus establishing as a completely different gender altogether.
Transgender people may express their sexuality in many ways; through the way they dress or their manners or through surgeries or any bodily changes they seem to match with their identities, whichever feels right to them. Transgender is a diverse and distinctive identity that is more of something that is felt inside and not merely physical appearances. This community refuse to believe in the traditional understanding of gender as male and female, which is now changing as more and more sexual identities are coming out and the concept of gender is widening in this liberty and equality bestriding world.
Many of the countries have recognized transgender people’s rights, most of which are in the European countries, with Sweden becoming the first country to legalize the procedure allowing people to change their gender marker in 1972, which became a model for other nations. Along came other countries such as Argentina, Canada, Germany, UK, the US, Australia etc. recognizing this unique identity. India, as well, has put itself on this list after a landmark judgement of 2014,1 whence the Supreme Court recognized the transgender as the ‘third gender’ and prohibited any type of discrimination against them.
Position in India
According to the Indian Constitution, every person is entitled to political equality of justice and deserves the right to equality under Article 14. No person can be discriminated against on grounds of race, caste, sex, creed, or religion2 and Article 21 of the Constitution ensures the right to personal liberty and dignity of all persons.
By all means, what has become the most important question is the implementation of such articles. The Constitution doesn’t provide for the right holder besides, identification of sex within male and female is a pivotal component of identity in India, which has left other people who see themselves as a third gender or represent different sexuality abandoned and an alien in their own country, depriving them of the fundamental rights that most of the Indian citizens take for granted.
Trans people in India have been prey to many dilemmas in society for ages, apart from discrimination like unemployment, denied educational and medical facilities, homelessness, depression, alcohol abuse, sexual abuse, and problems concerning marriage and adoption, etc. Although in 1994, transgender people got the right to vote, it couldn’t curb out the inequality they face on social and economic grounds. They are denied the basic rights provided because of their undefined sexual orientation, considering as social outcasts. Most of them are pushed to the periphery and are forced out of their homes by their families because of which they end up begging, dancing or even involved in the sex market.
Many of the families disapprove if their male child doesn’t act ‘normally’, rather shows feminine behaviour or not accepted as per their gender role. Consequently, families scold or even assault them for not acting like what is expected by society from a male child. In most cases, they are disowned by their parents and left out to the world to survive on their own. These incidents what leads trans people to become a victim of denial and mental and physical trauma, with no one to support but other trans people themselves. They grow up uneducated and uncivilized, hence are viewed as social outcasts and are denied basic facilities and amenities.
Recognition of Transgender
In a landmark judgment of the National Legal Service Authority Vs Union of India3, the Supreme Court has recognized trans people as the third gender, hence busting the bubble of the traditional gender identification of male and female. The court eradicated discrimination against transgender and upheld the fundamental rights of trans people, directing central and state governments to take action against any insecurity or violation of rights to trans people.
In the judgment, the apex court directed to treat the transgender community as socially and economically backward classes and are provided right to take admission in educational institutions and employment based on their categorization. It was also held that fundamental rights are to be available to the trans people in the same way as are enjoyed by the other gender; males and females. The bench also ordered that every transgender person has the right to decide their own identified sex and must be recognized by the concerned authorities, which was based upon reassigned sex after undergoing Sex Reassignment Surgery4.
The battle to get recognized was finally won in 2014 when the supreme court passed the landmark judgement. Yet, the fight for respect and dignity remains incomplete. The rule of law is supreme and law is equal for everyone as mentioned in the Constitution. As people are still far from accepting trans people as a part of their society, it is still a day-to-day battle for trans people against such ridicule.
Justice K.S Radhakrishnan, in the case of 2014, stated that recognition of the transgender community is not just a social or medical issue but rather is a human rights issue. Article 14 of the Indian Constitution guarantees the right to equality before the law and equal protection of the law, along with Article 215 which guarantees the right to choose one’s gender identity which is an important component to lead a life with dignity and liberty. Therefore, keeping them into the notion, the court held that, to decide one’s own sexual identity is associated with the person concerned, providing the citizens of India with the right to gender identity.
It was also highlighted that; it is the person’s personal choice to behave or dress or have one’s own personal appearance as restricting someone from this right would be violative of Article 19(61). The purpose of Articles 19 and 21 will be fulfilled only when no person is restricted to chose how to think and act freely according to his personal beliefs, which is also essential for the complete development of personality. Every person should be able to choose their own identity or what they are and what they want to become, as coercing someone to follow or act like what the society is used to, would become a hindrance towards the development of that person.
The Supreme Court, in the landmark judgement, prescribed the inclusion of the third gender category in documents like Aadhar card, passport, driving license, voting card, ration card, admission forms of educational institutions, hospitals, banks etc. Further, also directed the state governments to provide legal recognition to the transgender community and assured protection and security to the third gender to curb the social stigma and promote equal respect and justice to the newly recognized gender.
With the recognition of the third gender, the apex court has directed the central and state governments to ensure liberty and guidelines for the protection of trans people from any rooms of discrimination in society. Transgender people suffer because of the social stigma and isolation they have to face because of lack of basic amenities which are a must for a person’s survival as a citizen. To protect the rights of transgender people and to protect them from any kind of discrimination, The Transgender Person (Protection of Rights) Act, was implemented in 2019. It protects trans people against discrimination in the field of education, employment and health care sector.
The Transgender Person (Protection of Rights) Act, 2019
The disgrace, abundance and ignorance faced by the transgender people often make them avoid education, as they are shown that education is for only males and females. Not only that, educational institutions mostly deny admitting transgender children in their schools as their gender identity is not recognized. The Transgender Person Act comes to the rescue, directing the educational institutes recognized by the government shall provide education recreational activities and sports facilities to transgender students without any discrimination.
The same goes with transgender looking for employments. Trans people face discrimination in the workplace mainly in the form of violation of privacy, harassment, refusing to hire, which leads to unemployment and ultimately poverty. The Act provides that no government or private entity can discriminate against transgender regarding employment, including promotion and recruitment. Also, a complaint officer should be appointed to deal with any complaints arising out concerning the Act.
In the case of Nangai Vs Superintendent of Police7, the High Court held and clarified that the petitioner has the right to chose her gender identity as a third gender in future use after the medical examination was done. The court also set aside the termination order passed by the Superintendent of Police to protect her right as a transgender.
The health of a person refers to the overall well being; mental, physical and social. Healthcare refers not only to the health services provided by the hospitals or clinics but also employment and social acceptance of the transgender community in the medical field. As transgender people have suffered from a continuous disparity, they have been barred from healthcare facilities. They have been left to swim in depression, anxiety, suicide, violence, harassment and harmful diseases like HIV. The Transgender Person Act directs the government to take necessary steps to provide healthcare facilities to transgender people and separate HIV surveillance centres and sex reassignment centres.
Several welfare measures have also been implemented through the said Act. State governments are required to recognize ‘hijras’ as a minority community and develop welfare schemes accordingly. The Act directs both centre and state to ensure transgender people’s participation in society and formulate certain schemes and measures to protect the rights of the transgender community.
Transgender or trans people, now the third gender in our country are still looked down on by our society. They are a subject of neglect within society. Being a minority group, they have been discriminated against for ages, but fortunately, now they have been recognized. But the fight for transgender people doesn’t end here. Various judgements and acts passed by the judiciary and executive may become a source of relief to the community but the main assurance is to come from the society itself.
We as human beings and members of society have to understand that we live in a world with several types of beings and to live in a democratic country like India, we must respect others choices and opinions irrespective of their gender, caste or religion. Transgender people are no different from us and they deserve to know as a part of our society and enjoy the basic fundamental rights and securities as other genders do.
- National Legal Services Authority v. Union of India (A.I.R. 2014 S.C.1863)
- Article 15 Constitution of India
- AIR 2014 SC 1863
- “What are the rights of transgender in India” – blog.ipleaders.in
- Article 21 The Constitution of India
- Article 19(1) The Constitution of India
- 2014(3) CTC 497
- Image: https://www.deccanherald.com/national/indias-1st-university-for-transgenders-to-start-in-up-788647.html