Introduction
People who identify as transgender do not fit the usual gender conventions that only recognize males or females as genders. Due to society's rejection of their gender identification, individuals have experienced physical violence, social marginalization, and discrimination. Individuals who identify as transgender but do not belong to one of the socio-cultural groups known as Hijras, Jogappas, Sakhi, Aradhis, etc., are nonetheless referred to as transgender individuals. In India, where transgender individuals have the legal right to protection and the right to be recognized as a third gender, the article discusses transgender rights. In terms of fairness and equality, the Indian Constitution grants transgender individuals the same rights as it does to all other Indian citizens. The government passed the Transgender Person (Protection of Rights) Act, 2019[1], which forbids discrimination against transgender persons in employment, education, and health care. Additionally, welfare programs have been formed to protect the rights of transgender people.
Transgender Person
Anyone whose gender identity differs from the gender they were thought to be at birth identifies as transgender. According to the definition of "a person who is transgender," they are "intersex changeable and genderqueer but whose gender does not align with the gender that was given to them at birth." They are the people who, while having male or female anatomy at birth, feel or behave differently as a result of their gender expression, identity, or behavior.
Transgender rights in India
The main issues they face throughout their life include illiteracy, unemployment, homelessness, a lack of access to healthcare, depression, alcoholism, and discrimination. The Supreme Court allowed them the right to be recognized as the "Third Gender" and provided them with numerous welfare measures, and the Indian Constitution gave them the right to protect their rights and to address their problems. The Supreme Court of India recognized transgender individuals as the third gender in order to halt the discrimination they experienced and protect their rights.[2] The Center must treat transgender people as members of socially and economically underprivileged groups and provide them with access to jobs and educational opportunities based on their third gender category, according a court decision.
In the historic decision of National Legal Service Authority v. Union of India[3], the Hon'ble Supreme Court determined that the third gender should have access to the same fundamental rights as men and women, giving the third gender legal recognition. The Court affirms the transgender person's equality and provides them with protection under Articles 14, 15, and 21.
The importance of the right to dignity was stressed by the court. It respected the person's gender identity, which was based on newly assigned sex after sex reassignment surgery, because the person had a fundamental right to be acknowledged as a male or female. As a result, transgender people have a legal right to protection in all spheres of state activity, such as employment and education.
The law is supreme and everyone is treated equally in India. However, the transgender community faces discrimination, abuse, and prejudice on a daily basis from all segments of society, including their own family, friends, and the general public. However, the division bench of Justices K.S. Radhakrishnan and A.K. Sikri of the Supreme Court of India recognized the third gender alongside the male and female in its ground-breaking judgment in National Legal Services Authority. By acknowledging a diversity of gender identities, the Court has destroyed the socially accepted dual-gender system of "man" and "woman."
Justice K.S. Radhakrishnan informed the Supreme Court that the decision to recognize transgender people as a third gender was a matter of human rights rather than one of societal or medical concern.
Everyone has a constitutional right to equality before the law and equal protection under the law, as stated in Articles 14 and 21 respectively. The right to freely select one's gender identity, which is a requirement for leading a life of dignity, is another topic covered by Article 21. When deciding on a person's right to personal freedom and self-determination, the Court stated that "the gender to which a person belongs is to be determined by the individual concerned." Indians can now choose whether to identify as male or female.[4]
Additionally, discrimination against them based on their gender is prohibited by Articles 14, 15, 16, and 21.
The Court acknowledged the right to select one's private behavior, personhood, and freedom of thought, all of which are essential for a person's personality to grow to its maximum potential. The Court went on to say that forcing someone to mature in a gender they do not belong to or cannot relate to will impede their development and prevent them from realizing their dignity.
By adding a third category to documents like the voter registration card, passport, driver's license, and ration card, as well as for admission to hospitals and educational institutions, among other things, the Supreme Court has provided specific instructions for the protection of the rights of transgender people.
Instead of the gender identification that was allocated to them at birth, the transgender community sought a formal declaration of their gender identity. They prayed that the Indian Constitution's Articles 14 and 21 would be broken if their gender identity was not acknowledged.
The Honorable Court determined that Article 14 protects "any person," and "person" in this context covers transgender individuals after interpreting Article 14's purpose. Therefore, just like any other citizen of this country, each and every one of these individuals has a right to legal protection under the law in all spheres of state action. The Court additionally found that Articles 15 and 16 are intended to apply to persons who do not biologically identify as either male or female as well as those who do. Before reaching to the decision that transgender people's behavior and presentation can indicate their transgender personalities and that this expression cannot be restricted or outlawed, the Court additionally noted Articles 19(1)(a) and 19(2). In addition, the Court cited Article 21 and stated that Hijras/Eunuchs "had to be considered as the third gender, over and beyond binary gender, under our constitution and regulations."
In its ultimate decision, the Supreme Court decided that in order to uphold their rights under Part III of the Indian Constitution and the legislation enacted by the Parliament and State legislatures, transgender people should be recognized as belonging to a "third gender." The state government must legally acknowledge their third gender identification, the court further stated. The government was also directed by the honorable top court to eliminate social stigma, fund specific health programs, and guarantee equal protection for transgender persons.
Right of Transgender Persons Bill, 2014
The Bill was presented to the Rajya Sabha on December 12, 2014, and on April 24, 2015, it received support from all parties. This private member's bill was introduced by Tamil Nadu-based MP Tiruchi Siva. The Bill was adopted by the Rajya Sabha, and as a result, April 24 is currently observed as Transgender Day.
It covers the majority of the fundamental rights enshrined in the Bill, such as freedom from torture, abuse, violence, and exploitation, the right to equality and freedom from discrimination, the right to one's life and personal liberty, the right to free speech, and the right to live in a community. There is a different clause for kids who identify as transgender.
The Bill also includes provisions for social security, health, and employment. The government is required by the chapter on education to offer transgender students inclusive and adult education.[5]
Suggestions
The following guidelines, which I believe to be the best measures that can be taken to handle the situation, have been recommended by the court to the federal and state governments:
● To protect their fundamental rights, hijras and eunuchs should be recognized as a third gender.
● Respect the individual's need to specify his gender,
● Providing discrimination against a class of persons who are socially and educationally disadvantaged in public employment and education, making particular preparations for transgender people's HIV sero-surveillance and providing suitable health facilities,
● Address their issues, including their feelings of dread, shame, gender dysphoria, sadness, and suicide thoughts.
● There should be steps taken to offer transgender patients with medical care in hospitals, including creating separate wards and giving them access to separate public restrooms.
● Create social welfare programs to promote their holistic development.
● To raise knowledge among the general public so that transgender people feel like a legitimate part of society and are not shunned.
Conclusion
Human rights include the rights of transgender people. Every person, regardless of gender, has an inherent right to the freedom to learn, love, work, and play. Although we know that genes, hormones, and environmental factors determine gender, we discriminate against transgender people. The legislation, laws, and social attitudes have changed recently, enabling more transgender persons to live safer and healthier lives. The government is responsible for interacting with transgender people to understand their concerns and stand by them when their human rights are violated.
-- [1] The Transgender Persons (Protection of Rights) Act, 2019. [2] What are the Rights of Transgender in India https://blog.ipleaders.in/legal-rights-of-transgender-india/ (last visited at July 09, 2022) [3] National Legal Service Authority v. Union of India, AIR 2014 SC 1863. [4] Transgender rights, the ‘Third Gender’ and transforming the workplace in India, https://www.lexology.com/library/detail.aspx?g=b49d9488-c484-4d00-882c-2c386a041a07 (last visited at July 09, 2022) [5] Transgender Rights, The ‘Third Gender' And Transforming The Workplace In India, https://www.mondaq.com/india/discrimination-disability-sexual-harassment/905918/transgender-rights-the-third-gender39-and-transforming-the-workplace-in-india (last visited at July 09, 2022)
This article is written by Arghya Chakraborty of M.S.Ramaiah College of Law.