Transgender and their Personal Law
KAMALJIT KAUR, B.Com LL.B. Lovely Professional University, Phagwara Punjab
Transgender people are those individuals who are of any age or sex and whose appearance, personal characteristics, or behaviors differ from stereotypes about how men and women are supposed to be. This term is used to describe a wide range of identities including but not limited to transsexual people; male and female cross-dressers; inter-sexed individuals; and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender atypical. In India there are a socio – cultural groups of transgender people like hijras/ kinnars.
Transgender Rights and Personal Laws
The first and foremost right that transgender deserves –
(1) The right to equality under Article 14.
(2) Article 15 speaks about the prohibition of discrimination on the ground of religion, race, caste, sex or place of birth.
(3) Article 21 ensures right to life and personal dignity to all the citizens.
(4) Article 23 prohibits trafficking in human beings as beggars and other similar forms of forced labor.
The Constitution of India provides for the fundamental right to equality, and tolerates no discrimination on the grounds of sex, caste, creed or religion. The Constitution also guarantees political rights and other benefits to every citizen. But the third community transgender continues to be boycott. The Indian state’s policy of recognizing only two sexes and refusing to recognize hijras as women, or as a third sex has deprived them at a stroke of several rights that Indian citizens take for granted. These rights include the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver’s license, the right to education, employment, health so on.
Firstly, the Court ruled that fundamental rights are available to the third gender in the same manner as they are to males and females. Further, non-recognition of third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc is discriminatory to the third gender.
Secondly, the Court states that they prefer to follow the psyche of the person and use the ‘Psychological Test’ as opposed to the ‘Biological Test’. They also declare that insisting on Sex Reassignment Surgery (SRS) as a condition for changing one’s gender is illegal.
Thirdly, the court states that the Centre and State Governments have been directed to take proper measures to provide medical care to Transgender people in the hospitals. Further, they have been directed to operate separate HIV/ Sero-surveillance measures for Transgenders.
Lastly, the Centre and State Governments have been directed to provide the Transgender community various social welfare schemes and to treat this community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments.
Problems being faced by the Transgender
The main problems that are being faced by the transgender community are:-
(1)The first problem which has being faced by Transgender is Discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities: like HIV care and problems related to marriage and adoption.
(2) The next problem which has being faced by this community is that they feel neglected in inheritance of property or adoption of a child. They are often pushed to the periphery as a social outcaste and many may end up begging and dancing. It all means human trafficking.
(3) Transgenders have very limited employment opportunities. Transgenders have no access to public spaces. Most of the families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son from behaving like a girl or woman.
Transgender Persons (Protection of Rights) Bill 2016
The Transgender Persons (Protection of Rights) Bill 2016 is expected to bring a social, educational and economic development to the transgender community. To a community that has been criticized and discriminated for so long, this Bill could mean a chance to live a life of dignity and equality.
This Bill makes it illegal to force a transgender person to leave residence or village, force them into begging or any kind of bonded labour. These acts will be punishable with up to two years of imprisonment, along with a fine.
The Bill also criticized denying a transgender person access to any public place and causing them any physical or mental harm within and outside the home. It guarantees OBC status to all transgender not born as SC or ST, and entitles them to reservation under the respective categories.
.This bill also ensures the right to equality, right to life and dignity and personal liberty as guaranteed by the Constitution of India to the Transgenders. All government institution shall provide inclusive education and shall not discriminate against any transgender student and also provide transgender students with scholarship.
The Transgender Persons (Protection of Rights) Bill aims at ensuring that transgender persons enjoys a life of dignity and equality as an Indian citizen, and guarantees a basic human right that had been denied to them and have been boycotted from society for so long- right to identify as a member of our community.
It has been concluded that the Transgenders should have their personal laws. As like other citizens of India they should also have the right to enjoy the rights guaranteed in Indian constitution. So, that they didn’t feel neglected from the society. The Centre and State Governments should also have to provide the Transgender community various social welfare schemes and to treat this community as socially and economically backward classes. They have also been asked to extend reservation in educational institutions and for public appointments. The problems which has being faced by Transgender is Discrimination, unemployment, lack of educational facilities, homelessness should also have to be solved by the government. At last but not least, the government has to ensure that transgender persons enjoys a life of dignity and equality as an Indian citizen, and guarantees a basic human right that had been denied to them and have been boycotted from society for so long- right to identify as a member of our community.
 The Constitution Of India,1950 (Bare Act)