TRANSGENDER COMMUNITY AND ITS RELATED LAWS IN INDIA

Introduction

As Ed Murray said: - “The Transgender Community deserves all the respect and dignity that most people take for granted.” A Transgender also known as the LGBTQ community is someone with a gender identity or gender expression different from the one which was assigned at the time of birth. In other words, Transgender refers to those persons belonging to the third gender. Transgender population is rarely found in the worldwide population, it is less than 1% of the worldwide population with figures ranging from 0.1% to 0.6% in different countries. In our country India, the population of Transgender was around 4.88 lakhs as per the 2011 census.

The Transgenders are very much of an ignored and backward considerer community in India. This is because of the misconceptions about the LGBTQ community spread in the society. Transgender people are known to have existence from the ancient times. Many classes of the society had third gender roles. The community is now in debate or is suffering because the modern concept of being transgender and the concept of gender in general did not exist till the nineteenth century.


Challenges:

There are various problems faced by the Transgender community which are: -

1.Discrimination- in terms of education, employment, access to public amenities, prone to struggle for social justice, etc. they are stuck in a spiral of exclusion and marginalization, they are often bullied at school, rejected by their family, pushed out to the streets and are denied access to employment. When they are persons of apartheid color or belong to ethnic minorities or are migrants, living with HIV or sex workers, then they are particularly at risk of violence which includes killing, beatings, mutilation, rape and other forms of abuse and mistreatment.


2.Lack of medical help- Once their identity is acknowledged, they are forced and pressured to leave the parental home by society in the belief they cannot be a part and parcel of normal community and class. In order to practice their right to recognition in front of the law, gender-diverse and transgender persons are commonly victim to violence in health-care settings such as forced psychiatric evaluations, unwanted surgeries, sterilization or other coercive medical procedures which are justified by discriminatory medical classifications.


3.Prone to psychological distress- Transgender people suffer high levels of stigmatization and harassment in their daily lives. A large number of Transgender people, most particularly younger Transgender people, have to cope with stigmatization, discrimination and harassment without support. Many of them face homophobic stress as bullying in schools, also physical and verbal attacks. This results in a negative impact on their mentality which leads to psychological distress, self-harm and suicidality in them. This is more difficult in rural areas where it is more likely that when one’s community, one’s family and one’s friends become aware that one is a transgender, then the one would suffer a lot.


Government Steps:

Sexual orientation and gender identity are integral to every person’s dignity and respect and should not be the basis for discrimination or abuse in any democratic society. To eliminate the challenges and hurdles faced by the Transgender community, the Indian government has taken a lot of steps.

To protect their rights and to solve their problems, The Constitution of India has given them their own rights and The Supreme Court has provided them the right to be recognized as "Third Gender" and provided them with many welfare measures.

The court has also instructed the center to treat the Transgender community as a backward class and benefit them with admission in educational institutions and employment to eradicate the discrimination against this community.

The court protects the transgender community with equal rights and protection under the Articles 14, 15, 16 and 21. In the landmark judgment of National Legal Services Authority v. Union of India & Others. [4] [Writ Petition (Civil) No.400 of 2012(NALSA)] , the Supreme Court recognised the third gender with the genders male and female Justice Radhakrishnan while delivering the judgment stated that the third gender issue is not a social or medical issue but a human rights issue.

  • In 2013, the government had formed an Expert Committee to check issues related to transgender persons.

  • 2014: A private member Bill which was the Rights of Transgendered Persons had been introduced in the Rajya Sabha. The bill mentioned the entitlements of such persons providing specifically for them health, education sector, skill development and employment opportunities with protection from abuse and torture. However, this Bill had been lapsed.

  • 2016: The Government came with its own Bill in the Lok Sabha and it got referred to a Standing Committee.

  • 2019: The Parliament approved the Transgender Persons (Protection of Rights) Bill, 2019. Also, the Ministry of Social Justice and Empowerment had formed the National Council for Transgender Persons under the Transgender Persons (Protection of Rights) Act, 2019.

  • 2020: Government had established the National Council for Transgender Persons.


In the landmark judgment case of Puttaswamy V/s Union of India (2017), regarding the right to privacy, the Supreme Court stated that there are constitutional rights to privacy inherent in the rights to life, equality and fundamental freedoms. This includes the fundamental right to have intimate relations of one’s own choice and one’s own right to sexual orientation and gender identity.

The Supreme Court in the landmark judgment case of Navtej Singh Johar V/s Union of India (2016) ruled that the LGBTQ community in India is entitled to all constitutional rights and the liberties provided by the Constitution of India.

Any crime or offence committed by a Transgender Person shall be punished as per the provisions of the Indian Penal Code,1860. The landmark case of Mrs. X v. State of Uttarakhand (2019) supported the NALSA Judgement and ruled out that a denial of the right to self-detect one’s gender would nullify the right to life and liberty. It is even more significant since it is one of the first cases that supported the right to self-determination based on the “mental condition” of the individual even in the context of the Indian Penal Code(1860).

Code of Criminal Procedure (1973) says that a transgender person should be subjected to the same criminal procedural law of arrests, bail, summons, investigation and other procedures.

Also, The National Crime Records Bureau each year publishes a report of Annual Prison Statistics India which includes the composition of prisoners. In Karan Tripathi v. NCRB, WRP (2020), the high court of Delhi stated that now NCRB has intended to include transgender people in the gender classification of prisoners from the report of PSI-2020.


Way Forward

The establishment of the organisation of National Council for Transgender Persons which aims to increase awareness and inculcate sense of respect, acceptance and dignity towards the transgender community, is a welcome step. However it will depend upon the systematic functioning of the council whether it will be able to identify the issues faced and accordingly advice the government for the welfare of the transgender community.


Apart from all these policies and regulations, there is also a need for a inclusive approach with the step of sensitising legal and law enforcement systems in particular for the issues of transgender community.


Also, we as the citizens also should support and accept this community in our society. Their upliftment will not be possible without our contribution. So we should support and help to end the sufferings of the community known as “LGBTQ, Transgender and The Third Gender.”



This article is written by Hans Rathi of National University of Study and Research in Law.

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