Position Of Third Genders In India: A Descriptive Study By- Muskan Sharma
Position
Of Third Genders In India: A Descriptive Study
Authored By-
Muskan Sharma[1]
Abstract
The right to equality is
the human right of every person. The Constitution of India provides fundamental
right to equality to all persons. But there is a category of people those are
not able to enjoy their fundamental rights, these are the ‘third gender’ or ‘transgender’
community. From a very long time they are facing discrimination. People having
a suspicious look on third gender person and sometimes they faced mental as
well as physical violence. Undoubtedly, we can say that third gender people
also have equal fundamental rights. In the Constitution of India, we use the
word ‘persons’ in place of men or women under Article 14 by which every person
whether male, female or a third gender
have the right to equality. They are also have a right to life and personal
liberty under Article 21 of the Indian Constitution that impliedly give right
to live with dignity. Our Constitution does not make any discrimination with
the third gender persons but in reality, they face discrimination. After the
enactment of Constitution of India our government made many reformist and
revolutionary laws to stop the exploitation of weaker sections of society such
as for women, children, workers etc. But the government paid very little
attention towards the drastic situation of third gender persons. It reflects
that we have to work on ground level and adopt a strong executive mechanism to
enforce the rights of third gender persons. We have to work on legislative as
well as executive level to upheld the living conditions of third gender persons.
In this research paper we will discuss about the categories of people fall
under third gender, major issues of transgender community and the legal
development on the area of third gender’s rights by making critical analysis of
the Transgender Persons (Protection of Rights) Act, 2019.
Key-Words: Third Gender, Constitution,
Equality, Fundamental Rights.
I.
INTRODUCTION:
Traditionally, we made a
division of human being in two categories: men and women. Now we are living in
21st century and when we see our categorization of human beings, we
find such categorization conservative as well as non-scientific. Apart from
male and female there is another category of gender that broadly called as
‘third gender’ or ‘transgender’. The word third gender does not mean to be one
single gender but is used to represent various categories of people who does
not find themself to be identify solely as a male or a female. In simple sense,
a person who is not described completely as a male or a female, fallen under
the category of third gender. Third gender persons are born as a human being
but they are not allowed to live a respectful life like humans. They face
discrimination in the matters of education, employment, worship or in public
places etc. The stereotype mentality of society does not allow them to enjoy
their rights and live with dignity. As we talk about India, we find a miserable
life conditions of third gender people. In India, the total population of
transgender is 4.88 lakh, as per the 2011 census. However, their employment
ration is disappointing. But there are some positive steps have been taken by
the government that increase the hope of transgender people for a respectful
and a worthful life. The major step of government towards the welfare of
transgender persons is enactment the enactment of the Transgender Persons
(Protection of Rights) Act, 2019. The Transgender Persons (Protection of
Rights) Act, 2019 provides that neither the government nor the private
companies can discriminate against transgender people in any matter.
II.
MEANING OF THIRD GENDER:
Before proceed to
discussion on the rights of third gender people, we have to know about the
categories of people comes under the term of third gender. The third gender
also called as ‘transgender’ and the word transgender was derived from two
word, ‘trans’ which means ‘across’ and ‘gender’. So, the meaning of the word
transgender is ‘across or beyond the gender’. The Apex Court in their judgement
had clearly said that the benefit of ‘third gender’ would be enjoyed by the
transgender community comprising “Hijras, Eunuchs, Kothis, Aravanis, Jogappas,
Shiv-Shakthis, etc.[2]” The
judgement of the Supreme Court explicitly defines the term transgender. When we
trace the legal definition of the transgender we find it in the Transgender
Persons Act, 2019. The section 2(k) of the Transgender Persons Act, 2019
defines the term ‘transgender’ as , “transgender person means a person whose
gender does not match with the gender assigned to that person at birth and
includes trans-man or trans-woman (whether or not such person has undergone Sex
Reassignment Surgery or harmone therapy or laser therapy or such other
therapy), person with intersex variations, genderqueer and person having such
socio-cultural identities as kinner, hijra, aravani and jogta.” This is the
legal definition of the term transgender. Further, the term transgender is
describes as a person whose gender identity is different from the sex they were
assigned at birth. For example, a transgender person who was designed[3].
The International Labour Organisation in their guide[4].
III.
HISTORICAL REFRENCES OF THIRD GENDER IN INDIA:
When we look into our
ancient Hindu religious books we find the reference of the transgender in the Ramayan
era. There is a story about the life of Lord Rama. After being banished, he
told his followers that the men and women should wipe their wears and leave
him. All of the men and women left. However, a group of people known as the
Hijra remained standing before him. They were neither men nor women and refused
to leave until Lord Rama returned fourteen years later. This community was
praised for showing such loyalty. In ancient India, the Hijras were a community
that was respected for being extremely loyal and were well trusted enough to be
given important religious and governmental roles.
In the Muslim period,
Hijras rose to topmost positions as political advisors, administrators, army
generals as well as guardians of the harems. In the period of Khilji Sultanata,
Malik Kafur was a eunuch person reached the position of the commander in the
army of Allaudin Khilji. Babur, the founder of Mughal Empire in India wrote his
memoir Baburnama in which he said that he had a sexual attraction towards a boy
named Baburi in Kabul.
In the British period,
the third gender community faced humiliation. The officers took a suspicious
thought about such community. Section 377 of Indian Penal Code, 1860 made
illegal any “unnatural offences” that became a tool for Britishers to humiliate
third gender community. Until the date of 6th September 2018 when
section 377 become unconstitutional[5],
section 377 was used as justification to mistreat and punish Hijras, queers,
and the LGBTQ+ community. In the colonial era, western concept of hating with
transgender community spread in our country. Due to this third gender community
in India from a well-respected role as pillars of religious and governmental
society to being social outcasts. They are denied educational, and employment
opportunities.
IV.
MAJOR ISSUES OF THIRD GENDER PEOPLE:
a. Discrimination By Family: Transgender people struggle for equal
treatment starts at their home level. They face discrimination on the hands of
their own family. As soon their family know about their gender they start doing
discrimination with them and sometimes they are thrown out from their own
homes. Because of stereotypical mentality of their families they loss their
everything in a single second.
b. Lack of Educational Opportunities: Due to the series of discrimination
starts from their family stage, transgender people are not able to successfully
pursue at least their primary education. The Constitution of India under
Article 21A provides Fundamental Right to Education to all children between 6
to 14 years of age. Unfortunately, transgender could not easily get their basic
fundamental right to education. According to 2011 census of India, the
population of transgender people in India was 4.9 lakh out of them only 46% of
people were literate. Such literacy ratio is less as compared to 74% literacy
rate of general population[6].
c. Lack of Employment Opportunities: As per the Transgender Persons
(Protection of rights) Act, 2019, discrimination against a transgender person,
including unfair treatment or denial of service in relation to employment,
education, healthcare etc. is prohibited. Perhaps, this is only a scratch on
the surface. Since transgender persons are not given sufficient educational
opportunities, this further results in not finding employment opportunities.
Sometimes despite having sufficient educational qualifications they are deny to
get a job. Further workplaces conditions also are not so favorable for
transgender people. They suffer discrimination by their colleagues. According
to study conducted by the National Human Rights Commission in 2018, 96%
transgenders are denied jobs. Among the respondents, around 89% of transgenders
said that there are no jobs for even qualified ones.
d. Health Issues: Due to physical as well as mental
discrimination with transgender people they largely suffered major mental heath
issues. They have higher prevalence rates of mental ill health compared to the
rest of the population. A study that is based on primary data provides that HIV
rates are every high in Hijra community. No counseling services are available
to them at present. Third gender community have no access to bathroom/toilets
at public spaces[7]. It
creates health problems for them.
V. ROLE OF JUDICIARY TOWARDS THIRD
GENDER RIGHTS: THE NALSA JUDGEMENT:
The role of Indian
Judiciary must be highlighted as they work tremendously to stop discrimination
with third gender people in India. The Supreme Court of India in their recent
judgements recognized third gender community and delivered positive judgements
towards welfare of third gender community. Some of these major judgements of
Supreme Court in India related to third gender community’s issues are as
follows:
v NALSA VS. Union of India and Ors.[8]: The Supreme Court gave legal
recognition to transgender community. By this judgement transgender persons
finds a equal place for them in the eyes of law. The court provides that
transgender persons also have equal fundamental rights under Article 14, 15 and
16 of the Constitution of India. The Article 14 of the Constitution of India
use term ‘person’ that does not restrict itself to the dual concept of man and
woman. Thus, Hijras/ transgender persons who are neither male or nor female
also fall within the expression ‘person’ and are entitled to legal protection
of laws in all spheres of State activity. It held that all persons have the
constitutional right to self-identity their gender. Further, it directed Union
and State governments to allow transgender persons to access reservations in
public education and employment.
CONSEQUENCES OF JUDGEMENT: Transgender community never forget
the role of Supreme Court towards their welfare. The NALSA judgement acted as
direction to government to enact a law for transgender community to prohibit
discrimination against them. The judgement was definitely a constructive step
towards humanization of the judicial system and was a major step towards
elimination the injustice done to almost five million people who were running
from one place to another without any identity. This judgement provide a
separate legal identity to all transgender community. As a consequence of the
judgement of Supreme Court of India, in 2019 a bill was passed by both houses
of Parliament. The bill after taking assent from President of India on December
05, 2019 become an Act called “The Transgender Persons (Protection of Rights)
Act, 2019”.
VI.
A CRITICAL REVIEW OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT,
2019:
As a consequence of NALSA
judgement of the Supreme Court the government passed The Transgender Persons
(Protection of Rights) Act, 2019. Transgender people have a big hope with this
Act. They think such Act as a guarantee of equal rights or equal treatment for
them. The object of this act is to prohibit discrimination against transgender
community by providing offences and penalties for such discriminatory acts.
Whether this Act fulfils the 100% expectations of transgender community or not?
It is a major question. If the Act provide solutions of all problems or issues
face by transgender community then this Act treats as a successful measure
towards welfare of third gender community. Let’s find out how much Transgender
Persons Act, 2019 effective to solve the problems of transgender people;
a) Provide Legal Recognition: As we discuss above non-recognition
of identity of transgender people consider a big issue by them. It creates
problem of making welfare schemes for them. The Transgender Persons Act, 2019
try to deal with the problem of recognition of self-identity of transgender
people. Self-determination of gender is an integral part of personal autonomy
and self-expression and falls within the realm of personal liberty guaranteed
under Article 21 of the Constitution of India[9].
Further the Supreme Court stated in the NALSA case judgement that the
recognition of one’s gender identity lies at the heart of the fundamental right
to dignity. Chapter III of The Transgender Persons (Protection of Rights) Act,
2019, A person who recognized as transgender shall have a right to
self-perceived gender identity. This provision give autonomy to transgender
persons to be recognized according to their choice. It gives right to
self-autonomy to them.
b) Provide Procedure for Certificate of
Identity: The Act
provides a certificate of identity. Section 5 of Transgender Persons Act provides
that to be recognized as third gender a person may make an application to the
District Magistrate to issue a certificate of identity as a transgender person.
The parents or guardian of minor child can also make application for gender
identity certificate for their minor child. Such gender identity certificate
acts as an official recognition of a person as a transgender. The gender
identity certificate of transgender person may solve the problem of legal
recognition of transgender people.
c) Welfare Measures by Government: The Act make an obligation for
government to provide welfare measures for transgender people. This is not
wrong to say that transgender community is a section of society who has
suffered dicrimination at every level for a long time. They always deny for
equal treatment. The Transgender Persons Act made a government obligation to
take necessary steps for welfare of transgender community. It is the duty of
government to ensure the participation of transgender persons in society. The Act
further provides that government shall formulate welfare schemes and programmes
that helps transgender people’s rescue, rehabilitation and protection.
d) Provide Penality For Offencies
Against Transgenders: The discrimination with
transgender people in employment sector is one of the major problem of
transgenders. The Transgender Persons Act try to deal with such issue also. The
provides that there shall be no discrimination against any transgender person
in matter of employment. Every establishment shall have a grievance redressal
mechanism that deal with complaints related to discrimination with transgender
persons. Further if any transgender person compels to do forced or bonded
labour or denies a transgender person to move in a public place or provides any
injury harm to life safety or health of transgender persons then the accused
shall be liable for punishment for a imprisonment for a term which shall not be
less than six months that may extends to two years and with fine. It may be
notes that harm may be physical or mental. The penalty provision of Transgender
Persons Act, 2019 may be act as a force measure to stop people to do any
discrimination with transgender people. But such penalty provision should be
more elaborated. There should be expressly mentioned such acts that provide
mental injury to transgender people.
e) Establishment of National Council: The provision for establishmemt of
the National Council for Transgender Persons is a tremendous feature of
Transgender Act. The Council shall establish by Central Government to perform
functions such as; giving advice about policy and planning for transgender
persons, monitor and review the impact of policies programmes for transgender
persons. Further, the council has a power to redress the grievances of
transgender persons. Unfortunately, there is no provision for powers for
council of transgender persons. It is one of the short coming of this
particular Act.
v Review: The Transgender community had a big
expectation with The Transgender Persons (Protection of Rights) Act, 2019.
Although the Act does not fulfil all expectations of transgender people. It
cannot be termed as an exhaustive legislation to solve all the problems of
transgender community. As a primary step it should be appreciated. By enacting The
Transgender Persons (Protection of Rights) Act, 2019 the government give a hope
to transgender community that government is vigilant about the protection of
transgender persons. One of the major drawbacks of the said Act is that no
person of transgender community was involved in the drafting committee of the
Act. It reflects that the government only by their self-assumptions made this
Act for transgender community. Further, the specified punishment for offences
against transgender people should be more according to nature of discrimination
with them. The new Act6 is completely silent on the procedure and type of
medical aid that will provide by government to transgenders. Further, in the
case of National Legal Services Authority vs. Union of India, the apex
court held that the transgender community would be now considered as socially
and educationally backward class. According to the judgement the Supreme Court
of India assures that the transgender community should be kept in the preview
of OBC’s. But the government does not provide any provision for reservation for
transgender community in the Transgender Persons Act that was largely expected
with the government and even directed by the Supreme Court in their judgement.
The provision for reservation would be an excellent step that ensure
representation of transgender community in education or employment sector. It
is a harsh reality that being marginalized section of society transgenders are
forced to work as dancers, strippers, basically sex workers[10].
The government should consider the reality of transgender people life
conditions. As a weaker or marginalized section of society transgender
community should be provided reservation at central level by central
government. After consider the whole Act we can conclude that the government
needs to do a lot for the welfare of transgender community. There should be
mechanism to directly communicate with transgender community and find out what
are the real and expedient necessity of them. Transgender community should be
given reservation at national level by the government.
VII.CONCLUSION:
It is a harsh reality of present time that a
particular section of our society has been doing struggle for a long time for
recognition of their self-identity as transgender. Undoubtedly, the transgender
community has an equal fundamental rights under the Constitution of India. But
due to lack of awareness in our society they suffer discrimination at various
stages of their life. The Indian Judiciary should be praised by their recent reformist
judgements on transgenders people rights. Due to the judgements of the Supreme
Court transgender community find a light of hope. They got moral confidence to
see the recognition of transgender community by the Supreme Court. But without
any executive action it all doesn’t matter. As a primary step, the Transgender
Persons (Protection of Rights) Act, 2019 is an admirable step of government
towards transgender community welfare. But there are some major loop holes seen
in the law that have to be considered by the government for further
improvisation. The reservation policy for transgender people that was expected
by the community was not seen in the Transgender Persons Act. The government
should provide reservation to transgender community at national level
particularly in education and employment sector which will help in bringing
transgender community on the line of equality in the society. Lastly, we can
conclude that without bringing awareness in the society it is not possible to
ensure a respectful position of transgender people in the society. It is upon
government to run awareness programmes in the society that will make people
aware about transgender people rights.
[2] National Legal Services Authority
vs. Union of India & Ors, (2014) 5 SCC 438.
[4] Inclusion of lesbian, gay,
bisexual, transgender, intersex and queer (LGBTQ+) persons in the world of
work: A learning guide. 2022, ISBN: 978-92-2-036727-8 (PDF)
[5] Navtej Singh Johar & Ors vs.
Union of India, AIR 2018 SC 4321.
[6] A Sociological Study of Third
Gender Community in India: Special reference to Mysore District of Karnataka.
Volume 10~Issue 9 (2022) pp: 38-41.
[7] A Sociological Study of Third
Gender Community in India: Special reference to Mysore District of Karnataka. Volume
10~Issue 9 (2022) pp: 38-41.
[8] (2014) 5 SCC 438.
[9] Anuj Garg vs. Hotel Association of
India, (2008) 3 SCC 1.
[10] 2021, Non-Recognition of Third
Gender: A Failure of Indian Legislation, Volume 4 I Issue 3, [ISSN 2581-5369].