Disha Dheeman, Legal News Reporter
The people called “Transgender” are existed in the culture, class, race of the society since the story of human life has been started. First recorded instances of transgender individuals in ancient period in Asia. In ancient India, Hijra are a caste of third gender or transgender group who live a feminine role. Transgender are those persons whose sense of personal identity and gender is not resemble with their birth sex. Transgender people are very downtrodden, disrespected people and discriminated by other in today’s era and this outcome from culture attitudes forced by the British during their long occupation of India.
Constitutional Rights and legal status of Transgender
Social, economic and political equality of status has been mandates in the preamble of the Constitution. First and foremost, right that they deserve is Article 14 of the Indian Constitution which talks about the right to equality. Article 15 speaks about the prohibition of discrimination against the religion, race, caste, sex or place of birth. Article 16 ensure the equality of opportunity in matters of public employment. Article 21 is a right which ensure for Protection of life and personal liberty to all citizens. Article 21A, guaranteed Right to education. And Article 23 talks about the Prohibition of traffic in human being and forced labour. This is not enough, there are some additional rights as right to marry, right to own property, right to vote, right to employment and education, right to get identity through ration card etc. right to get medical facilities and so on.
Kaushal v. Naz Foundation case: –
Under sec 377 of IPC, community of LGBT community was cast back into the shadow of the illegality after the judgement of the Delhi High Court. The process of this judgment was painful for the people of LGBT community. Supreme court also observed that this community is a “minute” minority which do not deserve the court’s time and protection. There was a doubt whether this judgment signified the collective opinion of the judiciary or not?
In the case of National Legal Service Authority v. Union of India Supreme court held that transgender should be treated as “third gender”. This was the case about the constitutional and legal rights of the transgenders and their identification as well as sexual orientation. They are entitled to get basic rights and have right to express their gender, identity as a “third sex”.
TRANSGENDER AND THEIR PROBLEMS IN INDIA
In India, transgender people include Hijras/kinnars, Shiv-shakti, sakhi, jogtas, Aradis etc. even there are many groups who do not belong to any particular community of the society. But transgender fall under the marginalised section in India. The legal system of our nation is to look upon the issues of the citizens. But despite of having world’s largest Constitution, they faced many faced legal, social as well as economic difficulties. These people had a tumultuous history. Problem faced by the transgender people in India contain:
- Transgender people are avoided by family and society alike and homelessness.
- These people have restricted access to the rights as education, health, public spaces, employment, equality etc. even they faced difficulties to exercise the basic civil rights.
- They feel discriminated in availing facilities and amenities as no access to bathrooms/toilets similarly, in schools, hospitals and prisons.
- Politics have been out of their reach as they are neglected part of our society and cannot effectively participate in social and cultural life.
Transgender person got the voting right in 1994, but the issue was voter identity cards which was caught up in the male and female question.
- They met problems related to marriage and adoption.
- Sexual activity between two persons of the same sex has been criminalized and punishable under sec 377 of the Indian Penal Code, 1860.
“The problem with the gender is that it suggests how they should be, rather than recognizing how they are. Now visualize how much better-off they would be, how much freer, if they didn’t have the weight of gender, EXPECTATIONS”.
LAWS NEEDED TO IMPROVE THE SITUATION
- Every person has right to feel free in matters of gender expression therefore, there should be demand for transgender people to considered as third person as well as female.
- Civil rights have to be provided to all transgender people as to get ration card right, passport, driving licence, right in a will, inherent property, and rights in marriage and adoption.
- There should be protection and safety of these people for preventing the rape, molestation.
- Sex education must be included as part of school.
- Several cases related to the transgender and hijras which is pending in the courts, and there is a need of reform in such matters as:
- In the legality of the same sex activity, court decision is pending.
- In the matter of equal age consent, court decision is pending.
- Anti-discrimination laws in all areas, laws not enforced.
- Anti-discrimination laws in employment, laws not enforced (only in Karnataka for transgender individuals).
- Same sex marriages, laws not enforced.
- Adoption by transgender people, laws not enforced.
- Right to change the gender legally, only in Tamil Nadu and Kerala.
- Commercial surrogacy for gay couples, laws not enforced.
- Recognition of relationship, not recognise.
- They are not even recognising for Military services.
It is a time that India should realize the rights and privileges of every individual in the country. There have been several changes done for the need of transgender section as Tamil Nadu and Kerala are the 1st two state which gave free admission to sex reassignment surgery. In 2014, Supreme court of India declared 2% reservations in government jobs, legal aid, pension and allowances for transgender. In April 2017, ministry of drinking water allowed transgender people to use the toilet of their own choice. But, Mysore become the only city to provide a public toilet for 3rd gender. In this universe each being is indeed unique and everyone is an integral part of nature so, I think it would be very erroneous to discriminate the people on such minuscule basis. Even in our religion also, there is a fact that Ardhanarishwar means half male and half female, aspects of Lord Shiva and Lord Vishnu as Mohini exists. This is profound in Vedas; all possibilities exist in realization. It is true that Vedas and other Hindu scriptures accept homosexual people and if homosexuality is against the nature, then how come the Vedas accept it?
Different people born with different Prakrities and all have a devotion, even Khajuraho temples illustrates gay roles, it is also noted that there are many examples in Ltihas, puran (Srimat Bhagavatam Mahabharat etc.) Need for the laws of transgender people is not a subject matter of black and white answer, they are the people whose life as expressions of “Tritiya Prakriti”.