Author : Krishna Khandelwal
Co-Author : Adarshiya Mantri
ABSTRACT
In like this where dominion has been eluded by democracy, where people have their choice where they modern times fright no one, and no more discriminating government. The legal framework sets parameters to protect the prejudice from others. The democratic government makes efforts to give every person an equivalent status by making laws, acts for them, for their wellbeing and happiness. Thus to certain their lives with dignity, and free to trail their minds, but yet they are cuffed with the thought of social stigma and a switch to that is not even in the hand of law and their makes. The prejudice in this contemporary society is still facing issues with the laws as they are unable to gratify their inert happiness. Many societies are facing legal issues in this contemporary world.
Fair and above the universe of social equity and worldwide upliftment lays the concealed puzzling universe of transgender, commonly known as hijras or kinnars. The inability of people to understand the very idea of the term ‘transgender’ has degraded the social position of transgender across the world. The genesis of this misconception can be solved by the basic analysis of the term ‘transgender’ or ‘third sex word “transgender” – or hijras is an blanket term for people whose gender identity is unlike from the sex assigned to us at the beginning. These recognition may be linked to biological sex, sexual experiences, gender, gender roles, gender performance, or the transition process. Therefore, the term transgender is established with individuals whose gender identity, expression or behaviour is unlike from those typically associated with their allocated sex at birth. This paper points out on the factors which have led to the neglected notions of society towards transgender and how the legal framework has responded to it. Numerous historical, cultural, psychological factors have immensely contributed to the biased perception of people towards transgender. Even though they establish an underestimated piece of society, the truth of their reality and omnipresence is unavoidable. Being a piece of third sexual orientation network, they are essentially considered as a wellspring of diversion or a sort of prowler by so-called social creatures. A transgender people group is constantly suspected and generally dismissed. They have a tested life, loaded with hardships and sufferings. Despite all constitutional rights transgender were generally denied their privilege such as the right to equality, right to live, right to speech and expression, and many more. They also denied their basic necessity such as health care, education, profession, and many more. After the landmark judgment in 2014, the condition of transgender is somewhat better but there is a need for change.
Thus through this presentation, we want to put the legal issues of transgender into the picture, though lawmakers believe that through the law transgender are getting their primary rights even so there is want of a change in the legal system so that it can suffice their dignity as a human.
INDIAN HISTORY OF TRANSGENDER
There was ancient evidence for understanding of “third sex” or persons India is considered as most religiously and customarily diverse nation in the whole world. India has an extremely long history of its own which explains the traditions and usages during that time and the intriguing part is that those traditions and conventions are as yet pervasive in this cutting-edge century. Transgender community is known by different names such as Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakti, and many more which has been a part of India for centuries. The Vedic’s and Puranics writings mentions ‘Trityaprakarti’ as homosexuals and ‘Napunsaka’ which can be understood as somebody who is incapable of procreation. The word Hijra is derived from the Persian word ‘Hiz’ which means someone feminine or potentially ineffectual or incapableThere has been found from different texts that transgender people were eminent in pre-modern India which constitute both male and female or in other words it is also known as androgynous that can be recognized from childhood. The term third sex is also mentioned in old Hindu texts, medicine, and astrology. The term third sex is also cited in old Hindu writings, medical, and astrology. The fundamental work of Hindu law, the Manu Smriti (200BC-200AD) clear out the organic roots of all the three genders: ” A male child takes birth by a more prominent amount of male cell, a female child is takes birth by the prevalence of female cell and if both matches a third sex is produced which is either weak or inefficient.
not similar to male or female gender in near the beginning texts of ancient India.Vedic literature is the original record in the world which is regarded as the period of BC 1500 to 500 BC. In the Vedic texts, the gender of the human being is specifically divided into three categories according to Prakriti or nature. They are Pums-Prakriti or male, Stri-Prakriti or female, and Tritiya-Prakriti or the third sex. Many deities in Indian epics are represented as both male and female in different times and different incarnations or both at once, such as Ardhnarishvara, this lord is one of the forms of Shiva. The name means “the Lord whose half is women”. Anothermost prominent example of the Same-sex and transgression of gender exist in the most known tale of lord Vishnu as enchantress Mohini, this form of Vishnu charms Shiva who is drawn to her so much that they have a relationship and followed by a son Lord Ayyappa. Some scholars dispute this version, arguing that Ayyappa sprang from Shiva’s semen, which was ejaculated upon Shiva’s embrace of Mohini. As the same-sex of lord Vishnu and shiva cannot procreate a child. Mahabharata has also witnessed the sexual changes in a character if ‘Shikkandi’, she was originally born a girl to ‘Drupdapa’ a king. A divine voice said Drupada to raise her like a son, thus till her marriage being a girl she leads a life like a boy.
We all know and believe that transgender persons blessing on child birth, weddings is very auspicious. So from where this belief came? This power of blessing was conferred by Lord Rama to them, when lord Rama was proceeding to forest upon being banished several people followed him seeing which lord rama said man and women you can go and resume your work. When lord rama came after 14 years few people were still waiting for him on the same place to which he asked why are you here. They were transgender people lord Rama didn’t addressed them while leaving thus they waited for him, hence he was impressed and blessed them.
In the medieval period under the Mughal rule the third gender people played prominent roles in the mughal courts. They have considered clever men thus their involvement in political advisors was well known. They were trustworthy and very loyal and were free to go among any sections of people. They also held some prestigious post in that period.
The third gender lived a courteous life under the Mughal rule but it was not long-lasting as the British came to rule. They had to face many obstacles. At the beginning of the British period, transgender people are given protection and benefits from some Indian states.The benefits included the right to food, provision of land, and a few more. But their status started declining after European travellers came and they started showing repulsive nature towards them.
They could not bear the sight of them and also condemn their status in royal courts and other institutions. In the second half of the 19th century, the British colonial administration sought to criminalize the hijra community and to deny them civil rights.The Criminal Tribes Act, 1871 which include all transgender who were concerned about abducting and use children and dressed like women to dance in public places. The punishment for such activities was up to two years imprisonment and a fine or both. Their section people were discriminated against and hated by everyone, and eventually, they were considered in a separate tribe.
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The third gender left untouched and condemn by Indians because of the beliefs the British bought with them. British rule was long and memorable thus it is hard to erase their thoughts and accept ours. we should not ignore our Hindu mythology and epic stories where their gender people played important roles and were recognized.
ISSUES FACED BY TRANSGENDER IN INDIA
Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are side-lined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mind-sets which we have to change.[2]
Many individuals from the transgender network were the ones who let changes in the happenings of history regardless of whether they are not accurately eminent. Their biasness has been a consistent issue and has just demonstrated to be increasingly fake with time. On the basis of type and sex the homosexual network has been separated which makes them one of the most backward bunches of our society. Rather than all fundamental rights, laws the transgender community is neglected for their personal rights which covers freedom of expression, right against violence, right to personal liberty, dignity, right to education, right to adopt child as well as many others.
Transgender inequality is the unfair protection these people experience in society, school and work in general. Transgender often face transphobic harassment[3].Transgender people’s group has been precluded from effectively taking an interest in public as well as cultural life, legislative issues, wealth and decision-making procedure. The main cause for the omission is because of the absence of enigma in lawful identification of sexual orientation status of their community. It is the main barrier which hinders them in practicing their social as well as cultural rights in their desired gender.
A common delusion is that a transgender person is hence a gay. Though, being transgender comprises gender identity and not sexual orientation; a transgender person might be of several sexual orientations. Another significant misconception is that one who cross-dresses is a transgender; but many cross dressers are happy with their assigned sex. The status of transgenderism as a mental disorder is extensively uncertain. Many transgender experience gender dysphoria, which is disconnected among one’s assigned sex at birth and with which gender the person is identified.[4]
INEQUALITY AT WORK.
Throughout the surveys, it has been found that the transgender community is facing many inequalities related to their profession. Between fellow employees, there can arise potential taunt or intolerance affecting the transgender workers on an touching level. Employers at times pull out job offers and opportunities because of inequality towards workers of varying gender individualities. It has been found that transgender ladies have no alternatives for business. The disgrace related to their personality brings about a result in a huge amount of community being not able to find appropriate job opportunities. Many of them are unskilled when they leave their houses and joins Jamaat. Frequently /generally they have an only option after leaving their houses is to enter in the sex work or they start begging on streets and like places. Many transgender ladies are being exploited by their Gurus of Jamaat as they force them to occupied in sex work and attend a large number of clients during the hours of light. Sex work makes them unprotected against HIV/AIDS and other different contaminations. Transgender women face many other problems in their profession as such physical torture, denial of payment, etc. transgender women frequently paid lower wages and subject to sexual advances and badgering from employers. Sex work and begging constituted the major source of income as 40 percent of transgender in Tamil Nadu were dependant on either sex work or begging or both together. Though the average income level of the sample is above the poverty line what is important to note is the uncertainty of income because employment in the case of transgender is high risk in terms of health, stigmatization, and discrimination.[5]It has been found that after food travel is one of the significant head of expenditure. Many transgender people hire a private vehicle for their travel because of the discrimination faced by them on public transport. Even though many Transgender has their ration card, voter I’d card they are denied the welfare schemes of government due to their gender identity, and also their transgender card isn’t acknowledged as proof of their identity. Many transgender find it very difficult to apply for jobs and get any plans related to their welfare using their birth certificates and school certificate.
INEQUALITY AT EDUCATION
The individuals who recognize themselves as homosexual at anpremature age may have troubles when their personality battles with judgment from customary institution convention, regardless of whether private or open. Many of them face discrimination and teasing by their teachers and friends. Many of them face physical violence as well as psychological violence which lead to depression and sometimes, they even suicide. Furthermore, transgender people faced a lot of discrimination and violence in college can be authorized to transgender picking what class they fall into the spot light. Completing the paperwork is additionally a test in light of fact that they fell they are a particular gender; places may believe them to be different sex. Transgender face discrimination when applying to schools. A transgender person applied to Smith College and was rejected because her home state still recognized her as male. The application fee was returned with a letter stating, that undergraduate applicants to Smith must be female at the time of admission.[6] In 2013, the University of North Carolina school system nominated to prohibit any gender-neutral housing at its campus.[7] In February 2014 Washington Post article noted that nearly 150 US schools have gender-neutral housing programs. Transgender women in India are being deprived of education and jobs due to persistent discrimination despite progressive laws in the country to prevent such bias. That is according to a leading activist who also said that most of India’s assessed two million transgender are facing prejudice in some form with women particularly abused, reflecting the entrenched patriarchy in the country[8]. Transgender people generally denied social as well as cultural involvement and they do not have access to wellness program, an education facility which also denies their constitutional rights of equality of law and equality before the law. There is no proper education system in Indian culture for transgender. They are denied from family and school environment which result in to discontinuing their education and risks their future professional opportunities. It has been said that many transgender persons are uneducated and undereducated. The enrolment of transgender is comparatively below and dropout rate at the primary and secondary level is extreme. They are not enough literate because of the denial by the society and thus they don’t get proper schooling. Regardless of whether they are registered in any educational institute, they are bullied and face many inequalities, violence each and every day and even they are asked to quit the school/college or they drop by themselves. That’s the reason they start working as a beggar and sex workers.
INEQUALITY BY PUBLIC OFFICIALS
Police interactions, detainment facilities, and bars can be harming and are generally risky interactions and spots, specifically for transgender just as any individual who is gender non- conforming or Gender variance.Being a third gender in bars often means day to day harassment, sexual and physical violence. Because of their sexual identity, many of them are put in isolation for months. In recent years, these problems have extended national attention.
The regulation to implement the Prison Rape Elimination Act (PREA) includes specific provisions aimed at protecting transgender prisoners is one of the examples. National Council for Teacher Education (NCTE) and other advocates continued broadcasting for stronger protections as well as accountability and to create new tools for advocacy focused on transgender non-conforming people’s communication with the criminal justice system with local, state and federal law enforcement officials and at the public.[9]Transgender women face regular violence, badgering from the police officials. They are used to verbal and physical violence by police officials and also they face many problems in registering their complaints. Transgender who work as a sex worker sometime bribe police official for seeking their protections.They are registered in false cases and put behind the bars by the police officials. Transgender women are generally victims of forced sex and rape in lockups.
PROBLEMS RELATED TO SOCIETAL ACCEPTANCE
India is a mixture of a different culture, caste, religion, language, and customs. Regardless of diversity in Indian culture’s general atmosphere of acknowledgment and resistance, it has seen there has been limited knowledge and understanding of third sex among the general public. Human rights infringement against third sex in India has been widely recorded.
Most families don’t acknowledge when their male child begins carrying on in manners that are taken into account of feminine or wrong for the normal genre. Therefore, blood relations, relatives generally threaten, scold, and often attack their child for acting similar to girl or woman. Mostly family members generally disown and repudiate their ones for the interaction of the prescribed gender and for not performing the basic role of the male member. Parents generally give excuses for doing these acts such as disgrace and disrespect of the family, a lesser chance for getting married, and many more. Thus, a further transgender person may find it difficult to take his/her share on the property or inherit what would be lawfully theirs. This is also one of the reasons that they choose to run away from their houses and not ready to tolerate the discrimination and violence by their family members and also social stigma incorporates being disempowered because of negative attitude towards transgender who are forced to work as call girls or prostitutes. Often transgender are engaged in begging due to the discrimination and harassment faced by the family and society. This is by all means human trafficking.
PROBLEMS RELATED TO HEALTH
Most transgender are unqualified and unskilled which forced them to engage in sex work and begging. Due to this, they face many health problems which include HIV/AIDS and many other different contaminations. Most of the time transgender groups are not accepted in hospitals or other words they don’t have space vacant for their treatment. The hospital staff doesn’t admit them in women’s compartment as other women feel uncomfortable and they face abuse and hatred in men’s ward. Apart from this harassment, they don’t even have basic facilities like sanitation in public places, etc.
PROBLEMS RELATED TO ADOPTION
It has been seen that transgender people can get a right to adopt the child or not. The various country has made many rules and regulation regarding the adoption for the transgender but some of them enacted an Act for them. India has introduced a bill regarding safety of transgender rights for the transgender group but the bill is controversial because of ill drafting. Even though India has made laws for serving equity to the transgender people but they don’t get the right in support for adoption of the child. Therefore in India, the adoption laws are governed by the Hindu adoption and maintenance act, 1956 which provides a mechanism to adopt any child by a Hindu. But this Act is silent about the adoption of children by transgender community. Parenting right to transgender is granted by many countries for example in Sweden, discrimination based on sexual orientation has been banned since 1987. South Africa is the only country that allowed joint adoption for same-sex people.
POLICIES AND ACTS FOR TRANSGENDERS IN INDIA
THE CRIMINAL TRIBES ACT 1981
During the time of the British Raj, authorities tried to wipe out the transgender community whom they saw a breach of public morality. Anti-transgender laws were repealed but a law governing castration, a major part of the transgender community was left behind and also during British raj in India transgender were set under ‘The Criminal Tribes Act,1871’and marked them as ‘criminal tribes’. this Act also includes that all transgender who were concerned in the kidnapping and abducting children and dressed like women and men to who dance in public places must be punished for two years and entitle to fine or both. However, this act is repealed in 1952 during the post-independent era.
NALSA JUDGEMENT
The transgender community faced a lot of discrimination from society; they are even kept away from their basic rights. Their lives are complicated and mostly lack support from family and the society people make it their lives even harder and struggling. Society people have not left their orthodox mind and thus are unable to accept TG persons, the main problem is they do not come under universally recognized gender. Thus, they face discrimination, untouchability, are defamed and tortured mentally and physically. To stop all this a big step had to be taken thus finally a petition was filed by the National service Authority. This organization works for the betterment of society; thus, they filed a petition for the recognition of transgender as the third gender apart from binary gender in the eyes of law and other cis-persons. This petition was filed by NALSA and Pujya Mata Nasib Kaur Ji Women Welfare Society, Laxmi Narayan Tripathi who is an activist. The petitions were filed because transgender community was not given recognition as separate gender identity in our country, they had option to choose between male or female but any third option was unavailable and this was leading to violation of many Fundamental and Human Rights, which are protected by the Indian Constitution. . Fundamental rights such as Article 14(Right to equality), Article15 (no discrimination on the bases of caste, sex, religion), and Article 16 (equal opportunities for government jobs), Article 21(Right to life and liberty), etc. Transgender have the right to enjoy the same rights and freedoms which the binary genders male and females enjoy. They argued and reasoned how each fundamental is being violated. According to Article 14 (right to equality) of the Indian Constitution. The State shall not deny to any person equality before the law within the territory of India[10]. It is not restricted to males and females. As the language used is caste and sex rather than male and female thus every person is entitled under this right. According to Article 15 of the Indian Constitution the State shall not on the ground of race, sex, religion, etc. be discriminated Also no person should be on the grounds of religion, race, sex, etc. be restricted to use wells, shops, public restaurants, etc. They should also not be restricted to use wells, roads, etc. It should not prevent the State from making any special provision for children and women.[11]But as per the current scenario, trans people are out casted from society and mentally forced to make their residence in the outskirts of the city. Article 19 of the Indian Constitution which guarantees citizens freedom of speech, freedom of expression, form associations or unions, to meet peacefully without any arms, etc.[12] is also being violated over here and is perhaps one of the most important rights which is being violated. Binary people dress the way they want but transgender don’t have that liberty as they are bind by the social norms of our country. This expression may be done through dress, words, action, or behaviour or any other manner. And finally, Article 21 of our Constitution which is the most extensive right guarantees citizens the right to personal life and liberty i.e. no person shall be deprived of his life and personal liberty except by law[13]. Living as human means to have a dignified and cultural life rather than that of animals that have no right and sense of living. Thus this article includes the right to live with human dignity. Expression of oneself concerning a gender that is self-recognized is an important part of Article 21 Article 16 is also being violated which says that there should be equal opportunities to all citizens. No person shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, etc. be discriminated against. Transgender are also not given equal job opportunities. There are many international laws as well which are being violated -:
- International Covenant on Civil and Political Rights (ICCPR).
- Article 6 Right to life, which means leading a life with human dignity.
- Article 7 (prohibition of torture or cruel, inhuman, or degrading treatment).
- Article 16 (recognition before the law),
- Yogyakarta Principles, 18 and 32 are violated.
- Convention for Protection of Human Rights and Fundamental Freedoms
- Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of International Conventions) [14]
All these issues make life tough for them, they don’t get dignity and many more problems thus if the above mention rights are provided to them without any discrimination their life would become easier and peaceful. If they are recognized as the third gender then they will have no problems in filling the forms as they will not have to decide between male and female as they would have a third option. They will not have to go through gender transformation surgery to transform into male or female. The judgment was given by Justice K.S. Radhakrishnan and Justice A.K Sikri. After relying on some foreign country courts, the Court says no to gender recognition based on biological way and gives full importance to recognition by psychological tests. The Court held that transgender fall within the purview of the Indian Constitution and therefore should enjoy all the rights of the Constitution. These rights include Article 14 which guarantees the right to equality. The Court said that transgender has not been able to enjoy the provisions as under Article 15(4) for the advancement of socially and educationally backward. They constitute such a group and the state is bound to take responsibility for their conditions. The Court stated that a person’s right to show or express gender identity through words, dress, action, or behaviour is included in Article 19 (right to freedom of expression). The Court also held that the Transgender community has the right to Article 21. They have the right to live a dignified life and enjoy personal liberty. By this judgment, all government documents such as ration cards, passports, etc. would recognize the third gender. The Court also held that the transgender are citizens of India and are fully entitled to get the benefit of all schemes and programs launched by the Government irrespective of their population. The Court also decided that Hijras, Eunuchs are to be treated as “third gender”. The court also declared and directed centre and state government to operate separate HIV Zero-Surveillance Centres, Provision for separate public toilets, and appropriate medical care in hospitals for transgender and to frame various social awareness schemes for the improvement of conditions of the TG community.[15]After the judgment was passed in April 2014 in the favour of transgender, everyone was expecting their upliftment from the society but the rather worse scenario was coming forward. The light of education and job opportunities was fading out from their community, with no guaranteed access to health and medical care. Many Trans people continue to be pathologies by the Medical Council of India. They people have a view that the court took their matter very seriously and talked about constitutional equality and rights but the problem came when they directed the government to implement the policy and that is where the states failed them. This judgment also asked for an expert committee to examine its recommendations based on the legal declarations made in the NALSA judgment, and implement them within six months. In September 2014 the Ministry of Social Justice and Empowerment (MSJE) asked the supreme court of India for few clarifications in the judgment of NALSA and also pleaded if the six months’ time given can be extended as time is very less to bring a sharp change. But the court, unfortunately, has not responded to the ministry. This delay from the court is also a reason for the delay in the policy-making part of the state. Thus, even after delivering a massive judgment, the transgender faced many issues; reports revealed that trans people died in hospitals as doctors could not decide which ward should be used, male or female for their treatment. Public violence is also faced by them, but no helping hand comes forward even from police officials.
The Transgender Persons (Protection of Rights) Act, 2019
SECTION 2. DEFINITION
“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 hormone therapy or laser therapy or such other therapy), person with intersex variations, gender queer and person having such socio-cultural identities as Kinner, Hijra, Aravani and Jogta.[16]
ISSUE IN SECTION 2.
The bill adds intersex people in the definition of the transgender, the main problem here is not all intersex people identify themselves as transgender. Being Transgender is a psychological matter and intersex is a biological deformity since birth. Thus, transgender community finds it diluting towards their rights.
SECTION 3. Prohibition against discrimination.
No person or establishment shall discriminate against a transgender person on any of the following grounds, namely:
(a)educational establishments and services thereof;
(b)employment or occupation;
(c)employment or occupation;
(d)healthcare services;
(e)enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public
(f) right of movement;
(g)right to reside, purchase, rent, or otherwise occupy any property;
(h)hold public or private office;[17]
ISSUES IN SECTION 3.
This section surely prohibits discrimination but does not state any provision for remedy. Thus, even if discrimination takes place no justice would be provided, what is the meaning of this provision if it can’t restrict people’s mind and their words?
SECTION 4. Recognition of identity of transgender person.
(1) A transgender person shall have a right to be recognized as such, following the provisions of this Act.
(2) A person recognized as transgender under sub-section (1) shall have a right to self-perceived gender identity.[18]
ISSUES IN SECTION 4.
- Violates right to life, right to dignity, autonomy, and gender self-determination.
- Gender self-determination includes having the autonomy to recognize as male, female, or transgender.
- also article 21 Right to Liberty.
SECTION 5. Application for certificate of identity.
A transgender person may make an application to the District Magistrate for issuing a certificate of identity as a transgender person, in such form and manner, and accompanied with such documents, as may be prescribed:
Provided that in the case of a minor child, such an application shall be made by a parent or guardian of such child.[19]
ISSUES IN SECTION 5
Violates the right to gender identity and autonomy as it gives an identity certificate dependent on the production of documents.
This proviso also violates 2 principles of Yogyakarta-
– Protection from Medical Abuses given in principle 18
– The Right to Bodily and Mental Integrity given in principle 32
– The state is giving the power to choose the gender of the child to the parents.
SECTION 6. Issue of certificate of identity.
(1) The District Magistrate shall issue to the applicant under Section 5, a certificate of identity as transgender person after following such procedure and in such form and manner, within such time, as may be prescribed indicating the gender of such person as transgender.
(2) The gender of transgender persons shall be recorded in all official documents following a certificate issued under sub-section (1).
(3) A certificate issued to a person under sub-section (1) shall confer rights and be a proof of recognition of his identity as a transgender person.[20]
ISSUES IN SECTION 6.
- Violate the right of gender identity (Article 21)
- Identity certificate should not be dependent on any procedure, self-declaration of gender identity should be sufficient.
- It could include body and physical screening requirements, medical testing and examination, or even psychological examination.
- the medical examination violates the judgment of NALSA.
SECTION 7. CHANGE IN GENDER
(1) After the issue of a certificate under sub-section (1) of section 6, if a transgender person undergoes surgery to change gender either as a male or female, 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.
(2) The District Magistrate shall, on receipt of an application along with the certificate issued by the Medical Superintendent or Chief Medical Officer, and on being satisfied with the correctness of such certificate, issue a certificate indicating a change in gender in such form and manner and within such time, as may be prescribed.
(3) The person who has been issued a certificate of identity under section 6 or a revised certificate under sub-section (2) shall be entitled to change the first name in the birth certificate and all other official documents relating to the identity of such person:
Provided that such change in gender and the issue of a revised certificate under sub-section (2) shall not affect the rights and entitlements of such person under this Act.[21]
ISSUES OF SECTION 7.
- Violates Right of self-determination (article 21)
- Changing gender only after medical reassignment surgery, this is a huge problem for the community as the surgery is costly and may have side effects.
- Accepting their gender only after medical surgery violates NALSA judgment, which made medical identification of gender illegal and proposed to identify psychological bases
Problems with Sex Reassignment Surgery-
Men, the foremost common side effect is sexual dysfunction. which can include decreased libido, impotency, and reduced ejaculate. Another side effect in men is breast changes, like breast tenderness and gynecomastia. Apart from this currently India is also not very much equipped with the doctors specialized in these surgeries as compared to foreign doctors. People sometimes even die on the surgery bed (SRS), but yet no medical negligence law is present for the same.
- d) This surgery in India is still defined as a cosmetic surgery rather than an important and vital one. Due to this reason getting insurance for the particular surgery is very much difficult. As listed, we can see how many issues sex transformation surgery raises for the community yet this bill indirectly mandates the transgender to go through this surgery if they want to identify themselves as male or female.
SECTION 12. Right of Residence.
(1) No child shall be separated from parents or immediate family on the ground of being a transgender, except on an order of a competent court, in the interest of such a child.
(2) Every transgender person shall have.
(a) a right to reside in the household where the parent or immediate family members reside;
(b) a right not to be excluded from such household or any part thereof; and
(c) a right to enjoy and use the facilities of such households in a non-discriminatory manner.
(3) Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in the rehabilitation centre.[22]
ISSUES IN ARTICLE 12.
- Violates Art. 19 Either live with immediate family or rehabilitation centre S.12(3)
- It does not make any distinction between a minor and an adult infringes upon the right to choose where to live.
- No third alternative provided Violates Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1997) [23]– fundamental right to live anywhere in India and K.S. Puttuswamy v. Union of India (2017) – Personal autonomy violated.[24]
SECTION 18. Offences and penalties.
Whoever, —
(a) compels or entices a transgender person to indulge in the act of forced or bonded labour other than any compulsory service for public purposes imposed by Government;
(b) denies a transgender person the right of passage to a public place or obstructs such person from using or having access to a public place to which other members have access to or a right to use;
(c) forces or causes a transgender person to leave household, village or another place of residence; and
(d) harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal and emotional abuse, and economic abuse shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine.[25]
ISSUES IN SECTION 18.
S.18 (a) seems vague as it fails to define the ingredients of the offense.
- 18(d) – Violative of Art 14 & 15
Lower punishment for sexual offenses against transgender persons than the punishment provided under IPC (S. 354, 354A, 354B, 354C, 354D, 375,376, 376C).
The Bill makes sexual abuse against a transgender person a punishable offense. However, it fails to clearly define what constitutes sexual abuse. In the case of a woman, her rapist once convicted will be sentenced to a minimum of seven years of jail term, which can extend to a life sentence. However, when it comes to transgender women, the minimum sentence is six months and can extend to a maximum of just two years.[26]This is inhuman and against human rights, they are not getting justice on the base of their gender. This Implies transgender identity is unequal to other identities Does not define sexual abuse (arbitrary and vague). This proviso looks highly discriminatory on the bases of gender.
OTHER ISSUES IN THE ACT
1) The Bill also has no mention of things like marriage rights, adoption rights, property rights, social security, or pension. The community is asking and fighting for the rights of marriage, adoption, and inheritance, since their natal family mostly abandon them, they are left lonely in the world thus they should have a right to build their new family.
2) The Bill does not provide any reservations to transgender people, when our country has reservations for SC/ST, OBC and minority sections then why not for trans people. Giving few reservations to them in education and work field will provide minimum survival.
3 The Bill, while mentioning government aid in education and health care, does not specify the manner they will aid the transgender community.[27]
The bill does not answer the questions, transgender people have very little job opportunities as they are uneducated and unskilled, thus they mostly earn by singing, dancing, and begging. After all this, the government has not specified how much financial support they will be providing for education. And no mention of job opportunities.
“This bill gives power to everyone but us, to determine our future and our lives- the District Magistrate, the Chief Medical Officer, and the court. It essentially legalizes humiliating us in the name of ‘recognizing us’ and make sure we trans people are not equal in the eyes of law,” says Ray R, a trans woman pursuing LLB at the University of Delhi.
CONCLUSION
Though the transgender community has a high position in Mughal period by after that it became decreasing by coming of the British colonial rules but today’s scenario is totally different. The transgender community needs an encouraging environment to find solutions to their problems. Attempt must be made to clarify all the concerned Government authorities including Police officials and other public officers as well as private individuals for the better condition for transgender. According to the survey of 23 countries taken by IPSOS of people supporting the transgender rights, Spain and Sweden scored 1st rank while India is on 8th rank though out the country. Sweden was the first country to legalize changing of gender in 1972 and became a role model for other countries too. [28]
After given legal recognition to the transgender community, discrimination faced by them is not decreased. There are many problem which have to be solved for the betterment of the transgender community:-
- Educate the society regarding the transgender identity.
- Support them for using public places like public toilets, hospitals wards.
- Support of Media both electronic and print, to light on their status and trouble rather than showing them in poor light.
- Rights regarding adoption.
- recognition of their right to vote as citizens.
If all this are brought in their day to day life, it would expand the development of transgender community in India.
FOOTNOTES
[1] https://www.trp.org.in/.
[2] National Legal Services Authority v. Union of India & Ors. AIR 2014 SC 1863.
[3] Transgender Identity Issues And Public Policy A Comparative Study Of Kerala And Tamil Nadu: RESHMA ELIZABETH THOMAS.
[4] Rights Campaign, March 16, 2017.
[5] Transgender Identity Issues And Public Policy A Comparative Study Of Kerala And Tamil Nadu: RESHMA ELIZABETH THOMAS.
[6]https://jezebel.com/smith-college-rejects-transgender-applicant-thanks-to-s-5991916.
[7]http://www.wral.com/unc-system-leaders-vote-to-ban-gender-neutral-housing/12758320/, December 8,
2013.
[8]http://www.dailymail.co.uk/indiahome/indianews/article-4007302/Discrimination-againsttransgenders-
women-exposes-India-s-entrenched-patriarchy-despite-progressive-laws-says-leadingactivist.html,
December 7, 2016.
[9] http://www.transequality.org/issues/police-jails-prisons, 2017.
[10]The Constitution of India, 1950, Article 14.
[11] The Constitution of India, 1950, Article 15.
[12] The Constitution of India, 1950, Article 19.
[13]The Constitution of India, 1950, Article 21.
[14]National Legal Services Authority v. Union of India & Ors. AIR 2014 SC 1863.
[15] http://blog.ipleaders.in/national-legalhttps-services-authority-vs-union-of-india-case-study/.
[16] https://www.indiacode.nic.in/.
[17]https://www.indiacode.nic.in/.
[18] https://www.indiacode.nic.in/.
[19]https://www.indiacode.nic.in/.
[20]https://www.indiacode.nic.in/.
[21]https://www.indiacode.nic.in/.
[22]https://www.indiacode.nic.in/.
[23] Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and Ors. (11.10.1996 – SC) 1997) 11 SCC 121.
[24]K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. 2015 8 SCC 735.
[25] https://www.indiacode.nic.in/.
[26] https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender-community-rights.
[27]https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender-community-rights.
[28]https://www.buzzfeednews.com/article/lesterfeder/this-is-how-23-countries-feel-about-transgender-rights.