TRNSGENDERS’ FIGHT: A QUEST FOR RECOGNITION By - Ankita Singh & Neha Pandey
TRNSGENDERS’
FIGHT: A QUEST FOR RECOGNITION
Authored By - Neha Pandey
& Ankita Singh
Abstract
This article is an attempt to explain
the situation of transgenders in India, through various laws that are present
in the country. From many centuries the transgenders were and are a part of
Indian community and mentioned in many ancient scriptures as well.
Being a part of the society for ages,
the community is still unable to receive the recognition which they deserve
from the Indian society. The discriminatory practices are continuing in many
parts of the country. This article also analyses The
Transgender Persons (Protection of Rights) Bill, 2019 this bill was an effort
to recognise the rights of transgenders. This article attempts to prepare a
comparative study of rights available to transgenders in countries across the
world and it tries to show that how transgenders, although being innocent are
suffering for getting gender recognition and rights which have been given to
them by the nature itself. Our findings indicates that whatever has been done
for the transgenders is just a small step towards a long journey of thousand
miles.
Keywords - Transgender, LGBTQ, Society, India.
THE HISTORY
OF TRANSGENDERS IN INDIA
In ancient India, the transgender
community have their own position in the society. The ancient texts of around
1500 BC, mentioned a “Tritiya Prakruti” or third nature in humans, who
are traditionally not a male or female or have a mixture of both since birth.
They are adjusted in the society without much discrimination although not very
much promoted. Around 200 BC, one of the great scholars of ancient India,
Patanjali acclaimed that the three genders in the Sanskrit language is derived
from the three natural genders present in the society. The reference of the transgender community is
mentioned in various ancient texts and epics. [1]
The composite avatar (form) of Lord
shiva (male) and goddess Parvati (female) - Ardhanarishwar is worshiped
in the Indian mythology since ancient times.
In the Hindu epic Ramayana, which was written by Valmiki, it was mention
that when lord Ram went for the 14 years exile with his wife- Sita and
brother-Lakshman, many people of his kingdom started to follow them, because of
their love and respect for the prince of Ayodhya. Lord Ram requested the “women
and men” to return to their home. Among the people, there were a small group of
Hijras were also present who considered themselves as neither men nor women, so
they decided to stay at the banks of Saryu river. When Lord Ram returned from
the exile, he found the Hijra community at the same place, where he left them.
Pleased with their devotion, he blessed them, and said that they would bless
people on various auspicious occasions. The Hijra community still continues the
same practice, and they bless people on the occasions like marriage or
childbirth.
In Mahabharata, there are many
instances, where the reference of transgender characters was given. It mentions
about Shrikhandi, who took a re-birth as a male, to kill Bhishma and took the
revenge of her previous birth as Amba.
When Arjuna, went to
exile, for one year during the exile, he assumed the identity of a Hijra,
which was due to the curse of a fairy Urwashi. He adopted a name as - Brihannala.
He also performed ceremonial functions with the identity of a Hijra.
Another instance of the
reference is during /Mahabharat war, where Iravan was destined to marry Mohini
( female incarnation of Lord Vishnu), before he self-sacrifice himself to
fulfil the boon given by the goddess Kali. Lord Krishna as Mohini, married to
Iravan. After the sacrifice, Lord Krishna in the form of Mohini, wailed for
Irawan. In Tamilnadu, the transgender or the hijra community called themselves
as Aravanis, which means devotees of Aravan (Iravan).
During the Mughal
period (1504 AD -1719 AD), the people belonging to the transgender communities
played a significant role. They were considered as a trust worthy, clever,
loyal and brave. they had accesses to
all spaces and different section of society due to which they played an
important role in empire building during Mughal era. Eunuchs were known as Khwaja
Sira, the discrimination was minimal and several eunuchs were at important
positions. They had a great role in Islamic institution and they were given
responsible positions in politics as well. They were also royal guards in the
empire, some serve in the military as well as court advisers.
Things begin to change
after the British rule (1757-1947) came in India, in the Indian Penal Code of
1860, they added section 377, making homosexuality illegal it also targets
transgender or any other group which the British though as deviant; they
associated transgender people with filth, disease contagion and contamination.
They included transgender in the Criminal Tribes Act of 1871, considering them
as people who have “inborn criminal tendencies”. The British incarcerated the
eunuchs for dressing like female and wearing ornaments like women. Many
scholars claim that the stigma and hatred associated with the transgender was
developed during the period of British rule.
VARIOUS
LAWS FOR TRANSGENDERS IN PRE-INDEPENDENT INDIA
With the
arrival of Britishers in India the reputation of transgenders started changing
as in the beginning of colonial period the transgenders were given some basics
protection and rights by the Indian states as the transgender’s had the right
to land, food, and to have some money from the agricultural land. With the
enhancement of control of Britishers in India, the humiliation of transgender’s
begin. From 18th century onwards many historical accounts of Britisher’s on
India showed that they were very disgusted by the view of Hijras and they were
not able to understand that why these transgenders were given so much of
respect in the royal courts. The Britishers considered Transgenders as a tribe
in many parts of India and in leu of their repulsion towards transgenders, the
Britishers came up with a law called as Criminal Tribe Act ,1871, this law
criminalize man dressed as women to dance in public. This legacy was carried
forward by Britishers with the introduction of section 377 in IPC 1860 which
criminalizes unnatural offenses and this practice has been carried out
post-independence also.
The formation of
section 377 was done by Thomas Maculary around 1838 but was added in IPC in
1860. This section in Colonial rule was framed on the blueprints of Buggery Act
1533[2]
which was enforced during the regime of King Henry VIII in UK. The buggery act
criminalized sexual act which is against nature (against god’s will) i.e., Anal
penetration, bestiality in wider sense homo sexuality. Later on, the buggery
act was replaced by the Offenses Against the Person Act 1828[3]
in UK, this particular act is the main inspiration for section 377 under IPC
1860. The ironic fact is that the country i.e., UK which had enacted section
377 IPC 1860[4]
which criminalizes Homosexuality in India has decriminalized homosexuality by
in its own country by an act in year 1967 and India which was the subject of UK
has continued to follow this provision till 2013.
LANDMARK JUDGEMENTS RELATED WITH TRANSGENDERS IN
INDIA
Section 377 of IPC,
talked about -
“unnatural offences –
Whoever voluntarily has a carnal intercourse against the order of nature with
any woman, man or animal, shall be punished with imprisonment for life or with
imprisonment of any description for a term which may extended to ten years and
fine.”
Explanation- Penetration
is sufficient to constituted carnal intercourse described in this section.[5]
Section 377 meant that
all type of sexual intercourse except heterosexual penile-vaginal intercourse
are prohibited. It means that sodomy, bestiality, pedophilia, and homosexuality
was prohibited. The section outright made consent immaterial in different type
of intercourse.
In 2001 an NGO named Naz
Foundation filed a writ petition in the High Court of Delhi demanding
decriminalization of sexual activities between consensual sane adults which was
indirectly criminalized under section 377 of IPC 1860. The High Court rejected
petition stating that the petitioners did not have a locus standi in the case.
Later Naz Foundation knock the door of Supreme court against the Judgment of
Delhi High Court. Supreme court in the appeal accepted the contention put forth
by the petitioners and the Supreme court order Delhi High Court to admit the
petition filed by Naz Foundation, which was an PIL.[6]
In 2009, The Delhi High
Court in the case of Naz Foundation Vs. Government of N.C.T Delhi stuck down
section 377 as unconstitutional and violative of Article 14, 15 ,19, and 21 of
constitution of India. In the Judgment the court held that criminalizing
homosexuality make a distinction between procreative sexual intercourse and
non-procreative sexual intercourse which is against the spirit of Article 14 of
constitution of India which is Right to Equality guaranteed as fundamental
right. The court also held that the abovementioned section was discriminatory
in nature and it was also violative of right to privacy. This judgment was a
ray of hope for a section of society which was shadowed and on the other hand
the judgment faced wrath and criticism of many social organization as they were
of the view that this judgment will destroy the moral structure of society
which gives validation only to heterosexual intercourse. In Regard to
opposition of the Judgment of Delhi High court SLPs were filed in Supreme
court.
One of the SLPs which was
take up by the Supreme court was in case Suresh
Kaushal & Anr. V Naz Foundation[7]-
In this case the Supreme
court overruled the Judgment of Delhi High Court In case of Naz Foundation Vs Government
of N.C.T, and Homosexuality was criminalized again.
The reason cited by the
Supreme Court for overruling the judgment by Delhi High court was that
·
There
is presumption of constitutionality when it comes to laws passed by Parliament
are concern and the fact that Post -Independence IPC, 1860 has been amended by
parliament many a times but section 377 of IPC has been remained untouched,
this fact shows that the parliament is not willing or not thinking of to amend
or to delete the section.
·
The
court held that as far as section 377 is concern doctrine of severability
cannot be applied because the part related to homosexuality cannot be deleted
without affecting the whole section and the whole section is the only section
which criminalizes all type of sexual abuses.
·
Section
377 does not make a difference between homosexual and heterosexual. The section
is gender neutral. The section does not make compulsion or exclusion for the
police to treat the LGBTQ community in a way they used to. Further, the court
said that the section does not violate right to life Guaranteed under Article
21 of Constitution of India.
Navtej Singh Johar and ors. Vs. Union of
Indian and ors.
This case came to
resolve the main issue raised in the case of Suresh Kaushal & Anr. V Naz Foundation,[8]
about the constitutionality of section 377 of IPC. The supreme court held that
section 377 is unconstitutional as it violates the fundamental rights mentioned
in article 14, 15, 19 and 21 of the Constitution of India. The key point for including this section in
the IPC was to protect women as well as children from being harassed and abused
by carnal intercourse; however, the carnal intercourse (consensual) that is
carried out by the LGBTQ+ community is neither harmful to women nor children.
The apex court
decriminalising the section said that, the section of population belonging to
LGBTQ+ community have a right to privacy which includes physical intimacy as
well. With this judgement, the apex court overruled the judgement given in the
case of Suresh Kaushal & Anr. V Naz
Foundation. With this judgement, the Supreme Court gave the recognition to this
community, which they were longing for since ages.
NALSA Judgement
In 2014 in case of NALSA V. Union of
India & Ors. NALSA filed a writ petitioner in 2012, in
Supreme court of India. Under this petition the issue of gender identity of
person was raised. In case the supreme court held that Protection of article
14,15,16 and 21 of Constitution of India is also available to Transgenders and
other such communities.
·
The
court said that the word “person” used in article 14 is not limited to male or
female instead it also includes transgenders, /hijras person who are neither
male or female comes under the expression “person” use in article 14. Thus, the
legal protection of law is available to them in all sphere of state activity.
·
Article
15 and 16 prohibit discrimination on different grounds one of which is on the
ground of “sex”. The court held that sex constitutes of gender and
biological attributes.
·
“The
court held that biological characteristics
certainly consist of genitals, chromosomes and secondary sexual features
but gender attributes one ‘self-image, the deep psychological or emotional
sense of sexual identity and character, thus discrimination on ground of “sex”
under article 15 and 16 consist of discrimination on the ground of gender
identity and the expression “sex” under article 15 and 16 is not limited to
biological sex i.e., male and female but also includes people who consider
themselves nether male nor female
·
Article
21 of constitution of India talks about protection of life and personal
liberty. Article 21 a vital part of Indian Constitution and the state do not
have the power to take away this right. Recognition of one’s gender identity is
the base of fundamental right to dignity. Gender identity is a core of one’s
sense of being and also an integral part of person’s’ s identity thus, legal
recognition of gender identity is a part of right to dignity and freedom
guaranteed under Indian constitution. As gender identification is a one ‘sense
of being thus, the individuals have the right to self- identification as a man,
a woman, or other identified category.[9]
TRANSGENDER
PERSONS (PROTECTION
OF
RIGHT BILLS)
After the landmark case
of National Legal Services Authority v. Union of India in year 2014, where the
Supreme Court held the transgender people to be a “third gender” in the same
year a Private member bill was introduced in the Rajya Sabha. However, this
bill was lapsed and in 2016, the government introduced its own bill and it
referred to a standing committee. The standing committee made many
recommendations in the bill, which involves the definition of transgender
person, granting reservations to socially and educationally backward classes
and providing them many civil rights including marriage, adoption, partnership
and divorce. However, the bill was lapsed due to the dissolution of the 16th
Lok Sabha session.
On 19th of
July 2019, The Transgender Persons (Protection of Rights) Bill, 2019 was
introduced by Mr. Thaawarchand Gehlot, the Minister for Social Justice and
Empowerment. This bill was passed by the Lok Sabha on 5th of August
2019 and on 26th November 2019 it was passed in Rajya Sabha. On 5th
December 2019 president gave assent to this bill which become an act.
The main features of
this Act are-
·
The act gave a definition of a transgender person, according to
it a transgender person as one whose gender does not match the gender assigned
at birth. It includes trans-men and trans-women, persons with intersex
variations, gender-queers, and persons with socio-cultural identities, such as
kinnar and hijra.
·
Non-discrimination against transgender person in education institutes,
health care facilities, employment etc.
·
Identity Certificate- According to the act, any transgender
individual may make an application to the District Magistrate for a certificate
of identity, which shows the sex as 'transgender'. If an individual go-through
any medical surgery to change their sex either as a male or a female, a
re-examined declaration is needed.
·
National Council for Transgender person (NCT) is set up by the
central government, which consists of members from the transgender community
and members of the government.
·
Punishments and Offences- offences against transgenders will attract
imprisonment between six months to two years, and a fine.[10]
Analysis
of Transgender Persons (Protection of Right) Act
The act received lot of
negative feedback from the transgender community itself. There are several
flaws in the existing act, due to which it faced protest across the country, by
the community and transgender right activists.
The act yet fails to
address the issues raised in the judgement of National Legal Services Authority
v. Union of India,[11] the hon’ble court held that the
self-identification of one’s gender is enough to provide rights to individuals.
However, the act mandates that each person would have to be recognised as
‘transgender’ on the basis of a certificate of identity issued by a district
magistrate. Although, the act says that an individual belonging to the
transgender community, have a right of ‘self-perceived identity’ but if the
requirement of certification is mandatory then the act itself contradicts the
provision of self-perceived identity’. The act does not differentiate between a
transgender person and an inter-sex person.
The offences against any transgender
individual awards punishment of maximum two years, which in itself is
discriminatory. For instance, if any individual commits a sexual offence
against a transgender, then he will get maximum imprisonment of two years which
in itself is a bailable offence; however, the same individual commits the same
offence against a woman he will be awarded imprisonment of seven years or more
and this itself is a non-bailable offence. This reflects that the law itself
treats any transgender differently.
The act lacks on the ground of
medical measures taken for the individuals who wanted to have sex-reassignment
surgery or for the individuals who are diagnosed with HIV or at a high risk of
it. It does not address the issue of
non-consensual sex-reassignment surgery.
The act does not provide any
reservation in education or employment to the individuals belonging to the
transgender community, this was recommended in the NALSA judgement. Legalising
marriage of transgender community and adoption is also not mentioned in this
act. With this the act ignored many issues for the upliftment of the community.
In some way, the act not give the
basic civil rights that the transgender community deserves. It ignores various suggestions that the
standing committee recommended. The demands that the activist and transgender
communities raised are not an undesirable demand. Many countries across the
world gave these rights to the transgender communities. In the neighbouring
country Sri Lanka, the adoption and serving in the military of individual
belonging to the transgender community is legal. Country like Kazakhstan also legalize
adoption and military services for transgender communities. The next section
discusses in detail about the laws prevailing in other countries about
transgender rights.
THE LAWS
PREVAILING IN OTHER COUNTRIES ABOUT TRANSGENDERS
India is one of those
countries in the world, which ranks lower in the list of countries, where LGBTQ
community have all the equal opportunity as any cis-gender person. The
Countries like Israel also performed better than India, in fact Israel was
ranked seventh in the first world gay happiness index conducted in the year
2015[12].
Recently, the Israeli MPs have taken steps to outlaw the practice of "gay
conversion" therapy by psychologists and became the first Middle East
country to do so.
In the year 2014,
Taiwan’s ministry of Interior, reversed an order of the year 2008 that requires
psychiatric evaluation and the surgical removal of reproductive organs before
transgender citizens can amend their legal gender markers on their
identification cards.[13]
India can also learn
from its neighbouring country Nepal, in 2011 Nepal became the first country in
the world to include a third gender in its census. In the year 2015, it became
the tenth country to specifically protect LGBT people in its constitution. In a
landmark case of Sunil Babu Pant v. Nepal Government[14]
, the supreme court of Nepal said that individuals gender identity is to be
determined by self-perception or “self-feeling” – not by the society, state, or
law and without medical examination or intervention. It also included the right
to self-determination under the right to life and dignity of Article 12 of
Nepalese constitution.
The court also expanded
this to include non-interference in the right to choose a marital or sexual partner.In
2013, the UN expert on torture called on governments to eliminate surgical
requirements for trans legal recognition. The diagnosis of “Gender Identity
Disorder” — much like that of “transsexualism” — is no longer recognized in
either of the two major international diagnostic manuals, the Diagnostic and
Statistical Manual (DSM) and the International Classifications of Diseases
(ICD). The following table displays the rights given to the transgender
community in various countries across the world-
Similarly, in Netherland the
transgenders are recognized as third gender, they have right to choose their
gender without undergoing any surgery or hormone therapy, they are allowed to
sever in Armed forces, they have rights to adopt kid, same-sex marriage is
legal and recognize under statute of Netherlands[16].
The countries like Netherlands and many more like this is a glimpse of hope for
transgenders whereas countries like Brunei, Saudi Arabia, Afghanistan and Iran
where transgenders are not recognized as a gender, they are not allowed to
serve in military, same -sex marriage is not legal and the transgender could be
given death penalty as punishment for crimes under homosexual offenses, and
Adoption of kids is also illegal is an epitome of unjust and arbitrary rule.[17]
There is a need that United National Assembly should address the grievances of
Transgenders community at international level and it should make members
countries accountable for tehri arbitrary action against the transgender
community, The UNA must sanction such nation and should aim to build a world
where transgenders live with dignity.
Though the change has been reflecting in many countries, still The
Community have to cover a far-fetched journey to get recognition and access to
basic rights in different parts of world.
PRESENT STATUS OF TRANSGENDERS IN
INDIA
In India, the situation is changing
at very slow pace. The gender-friendly policies aren’t adopted at many work or
public places. However, certain guidelines issued by the judiciary or
legislations drafted by the legislative assembly give a ray of hope to the
community that they would soon be identified as an individual who is the part
of society and a limb that has been cut-off from the body.
Last year in November, 2020 the
Ministry of Social Justice and Empowerment (MSJE) launched an online portal on
which the transgenders are allowed to get their identity certificates; without
appearing before the district magistrate or visiting any government office.
This allowed the community to identify themselves without any discrimination
which they usually face. However, self-identification is still not enough for
any transgender as the individual have to get certified of their gender.
In the month of July 2021, the Delhi
High Court issued a notice to the centre as well as the state government and
also the municipal offices seeking directions to construct separate public
toilets for transgenders.[18]
It’s distressing to see that in this modern world the community is still
struggling to get the basic necessity like proper hygiene and sanitation.
In all this hustle that has been
created in the pandemic in which the voice and rights of the community seems to
disappear, one good news for the community came from the State of Karnataka, as
Karnataka became the first state to reserve one percent of government jobs for
the transgender community. The government amended the Karnataka Civil Services
Rules, also known as General Recruitment Rules, 1977 in the month of July 2021.
This decision definitely helps the community in seeking employment and it would
be a great benefit if other states also welcome this decision and follow the
same. The community is demanding the reservation from a long period. The centre
neglected this demand as there’s no such provision in the Transgender Persons
(Protection of Right) Act of 2019.
These small steps in the recognition
of the identity of transgenders is
beneficial for the community however it’s a long road to travel, we need
some firm decisions and guidelines from the legislative as well as judiciary in
recognizing the rights of the community.
CONCLUSION:
The preamble of Indian Constitution
has contained the principle of Democracy, equality and for ensuring the same
the constituent assembly incorporated many special provisions for the wellbeing
of the disadvantaged communities but unfortunately the list of disadvantage
community did not include Transgenders and their presence has been unrecognized
by the society as well. The injustice with the community violates the very
principle of Preamble of Constitution.
The fight of Transgenders has not ended yet,
instead it has started with a new facet. The new goal is to make the society
and government aware of their “Human Existence” because before 2014 (when S.C
recognized Transgender as a third gender) they were existing but they were
deprived of the human rights available to every cis-gender person in India
like, right against discrimination, right to have gender identity and many more
rights.
In the present era where
Civilization, human rights, Rule of law, due process of law democracy is the
ruling principle these very principles are absent for the Transgenders. The
community has always existed but either as a god like Ardhnareshwar or as a
beggar, prostitute, as a carrier of HIV or mentally insane person but they
never existed as a human being for the society. However, the community welcomed
whatever the society offered them from past to present day, they bare all the
humiliations, they bare all the inhuman treatment. Their tolerance should not
be considered as their ignorance or weakness, instead their peaceful protest,
their approach through lawful means show that they are more civilized than many
of the individuals who have access to probably all the basic human rights and
were offered with lot many privileges.
The Indian society needs to recognize
the rights of Transgenders and it requires to welcome the community with open
arms and by doing so, the Indian society is doing favor to itself because the
identity of a civilized society and glorified history, for which India has been
known, would be tarnished by the deprivation of Transgenders from the basic
human rights. The government needs to take action so, as to ensure availability
of all the rights to the members of Transgender community. Only then the
citizens of India has the right to say that- “India is a land of Gandhi and
Nehru who fought against discriminations and try to build a glorified image of
Indian on International platform”.
In this regard Ralph Waldo Emerson
has rightly said that “the true test of civilization is not the census, nor
the size of the cities, nor the crops, but the kind of man that the country
turns out”[19]
BIBLIOGRAPHY
v Books
·
Ralph Waldo Emerson, Society and Solitude. (Fireside
Edition, Boston and New York, Vol.7
1909)
·
Chih-Hsing Ho, “The Legal Status of Transsexual
and Transgender Persons” in Jens M. Scherpe (ed.), 425-440, (2015)
v Websites
·
https://www.equaldex.com/
·
https://www.refugeelegalaidinformation.org/
·
http://www.legalserviceindia.com/
·
https://www.icj.org/sogicasebook/
v Statutes
·
The
Indian Penal Code 1860
·
The
Transgender Persons (Protection Of Rights) Act, 2019
·
Criminal
Tribes Act 1871
·
The
Constitution of India 1950
·
The
Buggery Act of 1533
·
The
Offences Against the Person Act of 1828 (UK)
v Articles
·
Govindasamy Agoramoorthy and Minna J. Hsu “Living on the
societal edge: India’s transgender reality”, Vol. 54, No. 4 (Journal of
Religion and Health, August 2015, pp. 1451-1459)
·
V. S. Dinesh and V. S. Krishna “Transgenders are no way
different- Protection of their Rights” , Available at: Article section of
https://www.manupatra.com/ (Last visited on March 22, 2021)
[1] M.Michelraj,
“Historical Evolution Of Transgender Community in India”, Vol. 4 no.1, Asian
Review of Society Science pp. 17-19 (2015).
[4]
The Indian Penal code ,1860 (Act 45 of 1860), s.377
[5]
Supra note 3 at 4
[6] Naz Foundation V. Government of
NCT of Delhi and others, The High Court of Delhi at New Delhi, India (2 july
2009) available at :
https://www.icj.org/sogicasebook/naz-foundation-v-government-of-nct-of-delhi-and-others-the-high-court-of-delhi-at-new-delhi-india-2-july-2009/
(last visited on March 24,2021).
[8]
Case Comment on Navtej Singh Johar V. Union of India, available at : http://www.legalserviceindia.com/legal/article-3662-case-comment-on-navtej-singh-johar-v-union-of-india.html
(last visited on: 23 March , 2021).
[9] National Legal Services Authority
Vs. Union of India &Ors (2014) 5 SCC 438.
[11]
Supra note 8 at 7.
[12] Johannes
Gutenberg University of Mainz, Germany, “Gay Happiness Monitor” (May-2015)
[13]
Chih-Hsing Ho, “The Legal Status of Transsexual and Transgender Persons”
in Jens M. Scherpe (ed.), 425-440, (2015)
[15]
“Equaldex: Collaborative LGBT Right knowledge base”, Available at:
https://www.equaldex.com/ (last visited on March 20, 2021)
[16] Rights In Exile Programme,
available at :
https://www.refugeelegalaidinformation.org/netherlands-lgbti-resources (last
visited on March 20 ,2021).
[17] Editorial, “Brunei stoning :
which places have the death penalty for gay sex?” BBC News, April 3 ,2019.