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The paradox between the Transgender Judgement, Transgender Act and Transgender’s Expectation





Introduction


This paper talks about how there has been a huge paradox between the judgement of the National Legal Services Authority v. Union of India judgement[1], to what the transgender act reforms to and what overall expectation of the transgender community was from the act. There has been a social disparity as well as constitutional disparity to what and how the transgender have been treated historically. We take through how there has been huge discrimination towards the “third gender” how they were unconstitutional and to talk about there long overdue rights as equal to the other two binary genders which are recognised, accepted and acknowledged in India.



The agenda of discrimination


“Prohibition of discrimination on only grounds of religion, race, caste, sex or place of birth……” is stated in Article 15 of the Constitution of India.[2] Discrimination, as mentioned in Article 15[3], is a form of practice which has taken place in India for several years. Discrimination is of all types, it may be based on sex, gender reassignment, religion, race, caste etc. It means that one section of society has an upper hand in comparison to the other based on certain characteristics like their sex, religion caste etc. One of the historical forms of discrimination in India was based on ‘caste’ or in other words ‘untouchability’. Very similar to how the untouchables were seen and treated in the society was that of the transgender community in the 21st century India.[4]


Transgenders are discriminated in the society based on the choice of work to earn their living which is mostly prostitution or their economic state which generally is very poor. The transgender community is not recognised in the society due to which they are not offered well paid and well-respected jobs to which they resort to either begging or prostitution. They are not only denied status in the society but are also denied all the basic fundamental rights which they are entitled to as citizens of India.[5] But, in 2014 the honourable Supreme Court adjugated the NALSA judgement and under paragraph 70 gave an explanation on how one could identify themselves, which stated as “Self-identified gender can be either male or female or third gender. Hijras are identified as persons of the third gender and are not identified either as male or female. Gender identity, as already indicated, refers to persons internal sense of being male, female or a transgender”.[6] According to paragraph 74 of the NALSA judgement “Article 21, as already indicated, protects one’s right of self- determination of the gender to which a person belongs.[7] [8]Determination of gender to which a person belongs is to be decided by the person concerned.[9][10] In other words, gender identity is integral to the dignity of an individual and is at the core of personal autonomy and self-determination.


Hijras/Eunuchs, therefore, have to be considered as the Third Gender, over and above binary genders under our Constitution and the laws.”[11] The judgement took into consideration the Legal Recognition of third-gender in the society, public health and sanitation, socio-economic right and stigma and public awareness. Further which the parliament formed the transgender bill which was disapproved multiple times, after several amendments in 2019 the bill was approved by both houses and came into effect on 10 January 2020. The bill had a lot of criticism from the transgender community and activists.


Where the NALSA judgement took a big turn to a brighter future for the transgender community but the transgender bill failed to inculcate most of the suggestions made by the NALSA judgement to empower and provide equality in the society and the eyes of the law.[12] Where the judgement played a crucial role to uplift the community, the transgender bill seems to have failed to meet the basic expectations of the transgender community.


Stepping towards the NALSA judgement and discussing it we start from what the NALSA is trying to make us understand in its words.[13] So, a transgender is anyone who feels their identity does not suit the body with which they were born. Transgenders feel that they are inside the body of someone else. For example, somebody who was born a male thinks he is a female and vice versa. They are people who do not identify to their biological sex and also includes the hijras or the eunuchs who do not describe themselves as male/female and prefer to identify themselves as a third gender.[14] Hijras do not confirm as men as well as female and they are not men just by appearance and psychologically and aren’t even women because of no reproductive organs no menstruations.


Transgender community also includes people who didn’t have any kind of sex reassignment surgery and still crossdress as the opposite biological sex who are called as transvestites. Transgender has been used as a universal term for all identities who do not want to be known for their biological sex. There has been lying a strong historical layout for these transgender people in India. To give head and to discuss the necessary articles to our arguments, we have Article 14, Article 15, Article 16, Article 19(1)(a) and Article 21 and we transit through as what and why these articles are necessary.[15]


The transgender community, equality and equal protection before the law


According to Article 14 of the constitution, the state shall never deny any person the right to equality or equality of protection of laws within the safe territory of India on any basis.[16] Equality stands for the equal and full enjoyment of every sort of rights and laws in India by the citizen of India. The right to equality has been declared as the fundamental principle of the Constitution and non-consideration of equals violate the basic structure of the Constitution. The hijras or the transgender community has not been given equal status but fall under the expression of a person hence bound to be given the right to equality under the constitution as it had duly accepted that every person who is a citizen will be bound to the protection and hence even the transgender community has the hold of the right and need to be protected under the law in all spheres such as the employment, healthcare as well as all the other citizenship rights enjoyed by the persons of the country. But where the transgender community steps in, there has been a huge amount of discrimination faced by them as they haven’t been given the long due recognition which means they are not being equally protected by the law even if there was an obligation by the state to protect them under the constitution by bringing all the necessary social and economic changes in their favour and every sort of legal protection such as education, safety and health facilities.


Also, this community suffers from the non-recognition of their separate identity and were not welcomed in schools, restaurants and many other public places too. Hence discrimination based on one’s identity handicaps their right to equality under Article 14 of the constitution.[17] Chapter VIII of The Transgender Persons Act, 2019 deals with all offences against transgender.[18] The chapter with only one section laying down all sorts of crime like harms or injures or endangers the life, safety, health or well-being, mentally or physically, acts including causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, or forces leave the household, village or another place of residence, etc. holds a punishment for a minimum of six months and maximum of two years.[19] The act fails to see the graveness of all the offence mentioned in the act and separate each one according to the seriousness and punishment for the same. The act creating and giving the same punishment for all offences makes it easy for offenders to commit heinous offences like sexual abuse or endanger the life of transgender and still be punished only for a minimum of 6 months and maximum for 2 years. This also violates Article 14 by discriminating between two human beings as the same offences like the rape of women is punishable for a minimum of 7 years and maximum for life imprisonment but for transgender, it is as less as 6 months to 2 years.[20]


Discrimination towards transgenders and Equality of opportunities


Article 15&16 prohibit any kind of discrimination largely based on one’s sex. It prohibits all sorts of gender bias in India.[21] Article 15 ensures that the transgender community will not be discriminated on any basis and will be allowed to any public places be it a restaurant, hospital, shops hotels, public entertainment places of anything.[22] Article 16 states that there should be equal opportunities for every gender and to every citizen of the country.[23] Transgenders were systematically denied the rights below Article 15(2) that is not to be subjected to any disability, liability, limit or circumstance regarding getting the right of entry to public locations.[24] According to the NALSA judgement where it was said by the supreme court that “We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”[25] Even after the declaration of the supreme court judgement The Transgender Persons Act, 2019 does not include reservations for transgender in the central list of OBC’s even after the recommendation of National Commission for Backward Classes.[26] The non-inclusion of the transgender in OBC’s category for the reservation was due to the rise in the voice of the represents of the OBC group who were against the inclusion of transgender in the OBC groups fearing a reduction in the size of their existing piece of the metaphorical pie.[27]


Freedom of expression and speech for the Transgenders


Under section 19(1)(A) of the constitution, it states that every person of the country shall have right to freedom of expression and speech which certainly then includes the right to express one’s gender orientation in the eyes of the society and the public.[28] No hindrance or particular restriction can be put on anyone’s choice of dressing up a certain way or choosing what sex they want other than their biological sex. The article gives the freedom to one to choose to have any gender identity be it different from their biological sex. Gender identity lies at the base of one’s identity to show themselves as anyone they like it to be and hence can have the privacy to self-identity which are fundamental rights for even the transgender community.[29] Hence clarifying as to why the enjoyment of Article 19 (1)(A) is necessary for transgenders being a citizen of India. We take our focus to one of the last Articles to support our research.[30]


Life and freedom of personal liberty for the transgender community


Under article 21 of the constitution, the person of the country protection to life and all sorts of personal liberty.[31] Article 21 is said to be the heart and soul of the constitution as it fully talks about right to life and right to personal liberty and for the transgender community, it has always been the issue where no personal liberty to have a gender identity also which is a fundamental right to dignity of a person.[32] Determining one’s gender is in the realm of personal liberty and dignity as which is guaranteed by the constitution of India. The transgender act has been criticised by the transgender community, “It is not just problematic but regressive,” said Grace Banu, founder of the Trans Rights Now collective.[33] One of the biggest problems faced by the transgender in the act is that of acquiring certificate as their identity from the District Magistrate. As said by the supreme court in paragraph 69 of the NALSA judgement, “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”.[34][35] According to Chapter III of The Transgender Persons Act, 2019 which provides a certificate of identity to the transgender contradicts the statement made about Article 21, by the supreme court regarding the self-determination.[36] [37] It might be a boon for transgenders who want to be identified as a transgender in the society, but it is difficult for people who want to be identified as either male or female. Changing the identity from transgender can only take place unless and until one undergoes surgery to change their respective gender to either a male or female. The process further requires to apply as prescribes in Section 7 of The Transgender Persons Act, 2019, which further states ” ……. such person may make an application, along with a certificate issued to that effect by the Medical Superintendent or Chief Medical Officer of the medical institution in which that person has undergone surgery, to the District Magistrate for a revised certificate, in such form and manner as may be prescribed. “.[38] The entire Chapter III is in contradiction to the NALSA judgment which in paragraph 69 stated “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”[39] [40]

Recognition and Conclusion

The court recognised the transgender in a very vast way, it not only talks about physical aspects but also psychological aspects. The transgenders should have a choice to identify themselves as whomsoever they want to be described as it may be either of the three genders i.e. male, female or transgender. It is the internal sense of a person to choose the gender they belong to no matter what biological sex they were born with as stated in paragraph 70 of the NALSA judgement[41]. Along with being recognised in the society and by the government they should be treated equal to the binary gender, there should be no discrimination of punishment for offences against transgender, as the modesty of a woman is no different from that of a transgender. The government along with equality should provide them with legal recognition in the form of Aadhar card, passports, PAN card, driving license etc. As spoken about reservation in the NALSA judgment, transgender should be provided with reservation in the field of employment, education, medical etc. Mental health also has to be taken into consideration with physical health, access to either toilets should be their choice, the government should take initiative to spread public awareness and remove the stigma from the minds of people. There should be helped with acquiring respectable jobs and not be discriminated or illtreated at the workplace or any other public place. They have been a part of our society for centuries without any legal or social recognition, it is now that India along with its government and citizens make them a part of the country and society.

Bibliography

1. Agarwal S, ‘Civil And Political Rights Of Transgender In Indian Constitutional Perspective’ (2017) 4 Journal of Law Research

2. Parashar S, ‘Inclusion of transgender community within socially and educationally backward classes: examining the deeper’ (2017) 2 ILI Law Review

3. The Transgender Persons (Protection of Rights) Act 2019

4. ‘India: Transgender Bill Raises Rights Concerns’ (Human Rights Watch, 2020)

5. Vidya, Living Smile. I am Vidya: A Transgender’s Journey. New Delhi: Rupa Publications, 2007.Print.

6. Chettiar A, ‘Problems Faced By Hijras (Male To Female Transgenders) In Mumbai With Reference To Their Health And Harassment By The Police’ (2015) 5 International Journal of Social Science and Humanity

[1] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (Supreme Court Of India).

[2] The Constitution Of India (Professional Book Publishers 2005).

[3] The Constitution Of India (Professional Book Publishers 2005).

[4] Sourav Agarwal, ‘Civil And Political Rights Of Transgender In Indian Constitutional Perspective’ (2017) 4 Journal of Law Research.

[5] Sourav Agarwal, ‘Civil And Political Rights Of Transgender In Indian Constitutional Perspective’ (2017) 4 Journal of Law Research.

[6] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[7] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[8] The Constitution Of India (Professional Book Publishers 2005).

[9] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[10] The Constitution Of India (Professional Book Publishers 2005).

[11] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[12] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[13] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[14] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[15] The Constitution Of India (Professional Book Publishers 2005).

[16] The Constitution Of India (Professional Book Publishers 2005).

[17] The Constitution Of India (Professional Book Publishers 2005).

[18] The Transgender Persons (Protection of Rights) Act, 2019.

[19] The Transgender Persons (Protection of Rights) Act, 2019.

[20] The Constitution Of India (Professional Book Publishers 2005).

[21] The Constitution Of India (Professional Book Publishers 2005).

[22] The Constitution Of India (Professional Book Publishers 2005).

[23] The Constitution Of India (Professional Book Publishers 2005).

[24] The Constitution Of India (Professional Book Publishers 2005).

[25] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[26] The Transgender Persons (Protection of Rights) Act, 2019.

[27] Niha Masih, ‘A Bill Meant To Protect India’S Transgender Community Instead Leaves Them Angry And Aggrieved’ (The Washington Post, 2019) .

[28] The Constitution Of India (Professional Book Publishers 2005).

[29] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[30] The Constitution Of India (Professional Book Publishers 2005).

[31] The Constitution Of India (Professional Book Publishers 2005).

[32] The Constitution Of India (Professional Book Publishers 2005).

[33] Niha Masih, ‘A Bill Meant To Protect India’S Transgender Community Instead Leaves Them Angry And Aggrieved’ (The Washington Post, 2019) .

[34] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[35] The Constitution Of India (Professional Book Publishers 2005).

[36] The Transgender Persons (Protection of Rights) Act, 2019.

[37] The Constitution Of India (Professional Book Publishers 2005).

[38] The Transgender Persons (Protection of Rights) Act, 2019.

[39] The Constitution Of India (Professional Book Publishers 2005).

[40] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).

[41] National Legal Ser Auth vs Union Of India [2014] The Supreme Court Of India (The Supreme Court Of India).


Author Details: Yosha Dubey and Tanya Singh (Jindal Global Law School)


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