Every human being is entitled to certain basic rights such as education, employment, health care and, most importantly, self-identification. But such rights are denied to the transgender people, i.e., the people who are having a gender identity or a gender expression that varies from the gender assigned to them at birth including hijras, eunuchs, kothis, aravanis, jogappas, shiv-shakthis, etc. who strongly identify with the gender opposite of their biological sex; male and female in India even after the enactment of Transgender Persons' (Rights Protection) Act on November 25, 2019.
Sometimes, our community ridicules and exploits the Transgender community and in public places such as railway stations, bus stands, schools, offices, malls, theatres, hospitals, they are ignored and viewed as untouchable, unaware that the moral deficiency lies in society's inability to accept or tolerate various gender identities and expressions, an attitude that the society must alter.
The research paper addresses the problem of transgender in the community where they were used as an instrument of harassment and physical abuse and explores different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation in India.
1.1 Historical Background of Transgender in India
During the British rule, legislation was introduced to monitor the activities of the Hijras / transgender community, called the Criminal Tribes Act, 1871, which considered the entire Hijras community to be innately criminal and habituated to the systematic commission of non-bailable crimes. The law provided for the registration, supervision and control of certain criminal tribes and eunuchs, and penalised eunuchs who were enrolled and seemed to be dressed or ornamented like a woman, in a city street or in a public setting, as well as those who danced or expected to perform music in a public venue. Such persons could also be detained without a warrant and sentenced to imprisonment of up to two years or a fine or both.
Piror to the enactment of the Criminal Tribes Act, 1871, Section 377 of Indian Penal Code, 1860, criminalized all penile- non-vaginal sexual acts between persons, including at a time when transgender individuals were also typically associated with prescribed sexual practices.
The case Suresh Kumar Koushal and another v. Naz Foundation and others found Section 377 of Indian Penal Code, 1860, and other legal prohibitions against private, adult, consensual, and non-commercial same-sex was in the violation of fundamental rights provided by the Indian Constitution. The Supreme Court had previously upheld Section 377 of the IPC on the grounds that only a tiny fraction of the country's population, according to the court, belonged to the LGBTQI community. The Court in Navtej Singh Johar v. Union of India, rejected this argument and finally the court ruled that Section 377 is unconstitutional as it infringed the fundamental rights of autonomy, intimacy, and identity, thus legalizing homosexuality in India.
The Court relied upon its decision in National Legal Services Authority v. Union of India, to emphasize that gender identity is fundamental to one's personality and to ignore the same will be a breach of one's integrity.
Also relied upon the case K.S. Puttaswamy v. Union of India, where it was held that ignoring the LGBT community the right to privacy on the basis that they constitute a minority of the population would be in violation of their fundamental rights. It held that Section 377 constitutes an inappropriate restriction on the right to freedom of expression, because consensual carnal intercourse in private "does not in any way affect public dignity or morality". The Court held that "intimacy between consenting adults of the same sex is beyond the legitimate interests of the State" and sodomy laws violate the right to equality under Article.14 and Article 15 of the Constitution by excluding sections of the population for their sexual orientation.
Also the case Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of Indiaheld that Reaffirming that the right of an individual to "choose a life partner of his / her desire" is a facet of human liberty.
1.2 Constitutional Perspective
1. Article 14 of the Constitution provides equal protection and, therefore, a substantive duty on the State to ensure equal protection of laws by bringing about required social and economic reforms, so that all, including transgenders, will enjoy equal protection of laws and no one is denied such protection.
However there are some instances that portray such facts and figures backed by relevant materials that despite constitutional guarantee of equality, transgender people in all sectors of society have faced extreme discrimination. Furthermore, access to public toilets is also a serious issue which they often face. Since the transgender people do not have separate toilet facilities, they will have to use male toilets where they are vulnerable to sexual abuse and harassment. Therefore discrimination on the basis of sexual orientation or gender identity impairs equality before law and equal protection of law and violates Article 14 of the Indian Constitution.
2. Article 15 and 16 of the Constitution prohibit discrimination on certain enumerated grounds against any citizen, including on grounds of gender. In fact, both Articles forbid all forms of gender bias and discrimination based on gender.
Consequently, discrimination on the basis of sex under Articles 15 and 16 covers discriminating on the basis of gender identity. The term sex used in Articles 15 and 16 is not limited to male or female biological sex alone, but intended to include individuals who consider themselves to be neither male nor female.
Transgenders have been denied basic rights under Article 15(2) to which no disability, liability, restriction or condition of access to public places is to be subjected. Special provisions for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are legally entitled and eligible to receive the benefits of SEBC, were also not granted to TGs pursuant to Article 15(4). They were also denied rights pursuant to Article 16(2) and discriminated against on basis of sex in respect of employment or office within the State. TGs are also entitled, as provided for in Article 16(4) of the Constitution, to make a reservation in the matter of appointment.
3.Article 19(1) (a) of the Constitution states that “all citizens shall have the right to freedom of speech and expression, which includes ones right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”
Gender identity, therefore, lies at the core of ones personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgenders personality could be expressed by the transgenders behavior and presentation. State cannot prohibit, restrict or interfere with a transgenders expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.
4.Article 21 of the constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law.
At the heart of the fundamental right to dignity lies the recognition of one's gender identity. Gender, as already indicated, constitutes the core of ones sense of being as well as an integral part of a person’s identity. Consequently, legal recognition of gender identity forms part of the right to dignity and freedom guaranteed by our Constitution.
In Anuj Garg v. Hotel Association of India, the Supreme Court held that personal autonomy involves both the negative right of others not to be subjected to interference and the positive right of individuals to make decisions about their lives, to express themselves and to choose which activities to participate in. Gender self-determination is an essential part of personal autonomy and self-expression, and falls within the realm of personal liberty guaranteed by Article 21 of India's Constitution.
The case which is taken as a landmark case when we talk about the transgender community is National Legal Services Authority v. Union of India, where a writ petition was filed by the National Legal Services Authority, an Indian statutory body formed to provide legal representation to disadvantaged sections of society. The petition was supported by a non-governmental organisation representing the Transgender Kinnar community and a person who described himself as a Hijra.
The petition sought a legal recognition of their gender identity other than the one given at the time of birth and the non-recognition of their gender identity violated Articles 14 and 21 of the Constitution of India. The transgender community has called for their inability to express themselves on the basis of binary identity to deny them equal protection of the law and social welfare programmes. They also prayed for legal rights as a backward community, as well as the right to be able to express their self-identified gender in governmental ways.
Thus, the supreme court held that gender identity and sexual orientation include trans genders and that “each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures as a requirement for legal recognition of their gender identity.” Also stated that “apart from binary gender, be treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.” It also instructed the state governments to offer legal recognition of their gender identity as male, female or third-gender.
1.3 Transgender Persons (Protection of Rights) Bill, 2019
Based to the 2011 Census, the number of people who do not identify as 'male' or 'female' but as 'other' is 4.87.803 (0.04 per cent of the total population). This 'other' group referred to individuals that were not classified as either male or female and included transgender individuals.
In 2013, the Government formed an expert committee to discuss issues related to transgender people. The Committee reported that transgender people were presented with problems of social stigma and discrimination impacting their access to education , health care, jobs and government records. In 2014, the Supreme Court acknowledged the right of a transgender person to self-identify as male, female or third-gender. The Court also directed central and state governments to give legal recognition to transgender people, to resolve issues of social stigma and prejudice and to provide them with social welfare schemes.
The Transgender Persons (Protection of Rights) Bill, 2019 was passed by Parliament on November 26, 2019. The Bill describes a transgender person as being partially female or male; or a mixture of female and male; or neither female nor male. In addition, the gender of the person shall not adhere to the gender assigned at birth and shall include trans-men, trans-women, individuals with intersex differences and gender-queers.
It also criminalizes begging and Protects people from discrimination against a transgender person in fields such as education, jobs and health.
A transgender person is required to obtain a certificate of identity as evidence of identification as a transgender person and to invoke rights under the Bill. Such a certificate will be given by the District Magistrate on the recommendation of the Screening Committee. The committee will be composed of a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official and a transgender person.
The decision made in the both the cases, i.e, Navtej Singh Johar v. Union of India, and National Legal Services Authority v. Union of India, were historic in nature and has exceptionally high precedent significance, as determined by the Constitutional Bench of the Supreme Court of India. It sets a bidding precedent for all courts across India and for the smaller Supreme Court benches.
However, the bill essentially denies the majority of transgender people their right to self-identification by offering an unnecessarily complicated bureaucratic system requiring the applicant to apply for a transgender certificate to be accepted by two separate sets of authorities, despite earlier widespread criticism by the transgender community of this mechanism.
The Bill also included mandatory sex reassignment surgery for transgender individuals who want to define their gender within the binary (male / female) system. This provision would be contrary to the judgement of the Supreme Court in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Moreover, the recognition of beggary' as an offence under the Bill is troublesome, as it remains one of the few livelihood opportunities for many transgender people in the country.
Moreover, notwithstanding the clear directions of the Supreme Court in NALSA v. UOI, the Bill does not discuss the issue of employment and education reservations neither any separate public toilets and other facilities are established for them. They are still being discriminated in hospitals, employment, housing, healthcare and other services.