Author: Abhavya Rabra, pursuing B.B.A L.L.B from Jagran Lakecity University, Bhopal.
Transgender is both male-to-female and female-to-male gender transgression. Though the term transgender is an umbrella term used for people who transgress their gender, in recent times it is also being used for hijras in India. The hijra population is the most visible population in India and other transgender identity/ identities are associated with the hijra identity.
The first Prime Minister of independent India, Nehru, in 1952 repealed the Criminal Tribes Act, 1871 calling it ‘a blot on the law book of free India’. However, the same year the Government of India passed the Habitual Offenders Act which preserved most of the provisions of the CTA except for the premise that an entire community can be born criminal. The focus now shifted from criminalizing a tribe to criminalizing an individual.
Difficulties faced by LGBT in today’s society
The LGBT face innumerable difficulties within the society where the sole accepted orientation is heterosexuality and homosexuality is considered abnormal. Abuse is their daily routine and faced by them almost every day. They are more likely to experience intolerance, discrimination, harassment, and threat of violence thanks to their sexual orientation than people who identify themselves as heterosexual. It is mainly due to homophobia[i]. They face inequality and violence at every place around the world. They face torture from people who mock at them and make them realize that they are different from others. It’s just because of whom they are and how they look.
NAZ FOUNDATION v. GOVERNMENT OF NCT DELHI 160 Delhi Law Times 277
The case was instituted by a non-governmental organization based in Delhi, Naz Foundation, which is devoted to the working of the issues of HIV/AIDS. They filed a writ petition arguing that Section 377 of Indian Penal Code was unconstitutional.
‘The Naz Foundation submitted that Section 377 violated the elemental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. It brought the action within the public interest claiming its work on combating the spread of HIV/AIDS was being hampered by discrimination experienced by the gay community due to Section 377. This discrimination, the petitioners submitted, resulted within the denial of fundamental human rights, abuse, harassment and assault by public authorities, thus driving the gay community underground and subjecting them to greater vulnerability in violation of their fundamental rights’.
The Landmark judgment given by Delhi High Court in 2009 stated that Section 377 violates Article 14, 15, and 21. The Court analyzed Article 14 that distinction or classification should be on an intelligible differentia which has a rational relation to the objective sought. It concluded that “Section 377 doesn't distinguish between public and personal acts, or between consensual and non-consensual acts, therefore doesn't consider relevant factors like age, consent, and nature of the act or absence of harm. Thus, such criminalization within the absence of evidence of harm seemed arbitrary and unreasonable”. Discrimination on the bottom of sexual orientation is impermissible even on the horizontal application of the proper enshrined under Article 15. The judgment was restricted to adults. Section 377 applied to minors. Section 377 had permitted the harassment of LGBT people. With de-criminalization of homosexuality, the discrimination would not go away immediately. But this would violate the law. “It will take time for the judgment to bed-in”
Constitutional rights of transgender people
Preamble to the Constitution mandates Justice - social, economic, and political equality of status. Thus the primary and foremost right that they're deserving of is that the right to equality under Article 14. Article 15 speaks about the prohibition of discrimination on the bottom of faith, race, caste, sex or place of birth. Article 21 ensures right to privacy and private dignity to all or any the citizens. Article 23 prohibits trafficking in citizenry as beggars and other similar sorts of forced labor and any contravention of those provisions shall be an offence punishable in accordance with law.
The Constitution provides for the fundamental right to equality, and tolerates no discrimination on the grounds of sex, caste, creed or religion. The Constitution also guarantees political rights and other benefits to each citizen. But the third community (transgenders) continues to be ostracized. The Constitution affirms equality in all spheres but the moot question is whether it is being applied. As per the Constitution most of the protections under the elemental Rights Chapter are available to all or any persons with some rights being restricted to only citizens. Beyond this categorization the Constitution makes no further distinction among rights holders.
But official identity papers provide civil personhood. Among the instruments by which the Indian state defines civil personhood, sexual (gender) identity may be a crucial and unavoidable category. Identification on the idea of sex within male and feminine may be a crucial component of civil identity as needed by-the Indian state[ii].
Problems faced by transgender
The main problems that are being faced by the transgender community are of discrimination, unemployment, lack of educational facilities, homelessness, and lack of medical facilities: like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcoholic abuse, penectomy, and problems associated with marriage and adoption.
In 1994, transgender persons got the right but the task of issuing them voter identity cards got trapped within the male or female question. Several of them were denied cards with sexual category of their choice.
The other fields where this community feels neglected are inheritance of property or adoption of a toddler. They are often pushed to the periphery as a social outcaste and lots of may find you begging and dancing. This is by all means human trafficking. Sometimes running out of all options to feed themselves, they even engage themselves as sex workers for survival.
Transgenders have very limited employment opportunities. Transgenders haven't any access to bathrooms/toilets and public spaces. The shortage of access to bathrooms and public spaces access is illustrative of discrimination faced by transgenders in availing each facilities and amenities. They face similar problems in prisons, hospitals and schools. Most families don't accept if their son starts behaving in ways in which are considered feminine or inappropriate to the expected role. Consequently, relations may threaten, scold or maybe assault their son/sibling from behaving or dressing-up sort of a girl or woman. Some parents may outright disown and evict their own child for crossing the prescribed gender norms of the society and for not fulfilling the roles expected from a son. Parents may provide several reasons for doing so: bringing disgrace and shame to the family; diminished chances of their child getting married to a lady within the future and thus end of their generation; and perceived inability on the part of their child to require care of the family. Thus, later transgender women may find it difficult even to say their share of the property or inherit what would be lawfully theirs.
While the Constitution of India recognizes equality before the law and therefore the equal protection of laws, gendering of laws is that the norm and in many instances is even desirable. Gendering of laws refers to the law covering only certain gender identities, particularly women, within its scope. As an example, the Constitution recognizes and protects “any special provision for ladies and children” under Article 15(3). Such a provision is indicative of substantive equality supported the popularity that the guarantee of equality should be amongst equals. Substantive equality implies equality of outcomes and therefore the equality of opportunity rather than mere equality of treatment. Since different degrees of vulnerability could also be related to identities, formal equal treatment might not end in true emancipation.
Thus laws need to recognise identities, including gender identities, so as to accommodate the various vulnerabilities related to them. The Constitution of India thus, while recognising that laws shouldn't discriminate on the idea of sex, allows for special provisions for ladies and youngsters, thereby acknowledging historical disadvantages related to such identities as compared to cisgender men. Gendering of laws however isn't only restricted to considerations of substantive equality and in many cases the content of law could also be informed by the deep-seated assumptions of the gender binary. Laws that operate within the binary, however automatically discriminate against identities like transgender persons, who exist outside this binary. Further, laws operating within the binary can also be due heteronormative assumptions and thus might not account for non-heterosexual orientations.
Homosexuality isn't a mental illness. It’s as natural as heterosexual. The human mind has no control of it. Things of LGBT community are worst in India. They're subjected to harassment, violence, and mockery. Homosexuals aren't aliens, they're not sick; their sexual behavior is perfectly in tune with the dictate of nature. One judgment severely affected the rights of the whole community causing immense damage to self-esteem and self respect of the LGBT community. Just and fair struggle for social recognition by LGBT will continue. The planet will evolve and at some point, it might illuminate the dark age of reasoning. Supreme Court judgment may bring transgender on the equal footing with other citizens but more got to be done to vary the attitude of society towards them.
[i]https://fnst.org/sites/default/files/uploads/2017/11/20/focuahumanrightsrightsoftransgenderinindia-donajohn.pdf [ii]http://www.delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20India%20-%20The%20invisible%20conflict.pdf Read More....