lgbtq rights
source: http://www.developingmindsnc.com/

Introduction

Making a place in our society has been a challenge for a long period now. The only change that we can see now is that it has taken many forms and has diversified into various aspects but to look on the brighter side of it, there have been people who have evolved with changing times and do support it with a more adaptive and open mind.

Recognition was not a major concerning issue earlier than it is now maybe because people back then weren’t aware of what they deserve or merely what they need from our society. The growing times have given birth to a lot of circumstances or situations to widen the ranges of human thinking. One such development or I would rather say one such realization was about a new kind of a gender “TRANSGENDER”. So now it quite creates a situation of ambiguity that why the talk about this newly recognized gender starts with recognition? Well, when it comes to something new that is being introduced to our society it has to be well recognized by the people for it to take significant place and be a part.

The state of transgenders

Transgender people have been living in our society since the very beginning. However, they were not accepted by our society and faced major difficulties for being who they are which led them to hide their identity. Today after getting modernized and more developed, our society and the people in it have started to look up to these kinds of people and have started to accept them as one of us. There has been historical evidence of the presence of third sex.

The mention of “napumsaka” had been an integral part of the Hindu mythology.[1] It meant the absence of reproducing ability in someone thus differentiating from both male and female genders. Transgenders are also known as “hijras”. They play an important role in the royal courts during the Mughal period, particularly in the Ottoman empires and the Mughal rule in Medieval India. They rose to well-known positions as political advisors, administrators, generals as well as guardians of the harems.

Later on, in the British period, the hijras didn’t receive much of the recognition but had support from a few Indian states for the incorporation of land, food, a small amount of money, and other things but were eventually scrapped off of the land as they haven’t inherited it from blood relations. The ancient history of these people has been like a bumpy road, there have been ups and downs and a great fight for their identification.

Importance of understanding the Transgender community

Understanding the transgender community is important for them to have a place in our society. India is a country where we have seen an extreme amount of gender discrimination between males and females. Women have been fighting hard to get equal position to that to the men. In today’s time, there might be a little less struggle and more recognition given to women than earlier but still, the fight hasn’t been over yet, the atrocities and discrimination against women still persist, and that the developing world with the modern people in it are working for their benefit. This same prevails for the transgender community.

People know who and what personality does a female have still the problems persist. In order to give the LGBTQ community a significant place in our society with all the rights that are beneficial for them, we need to understand what they really are as a person which is also important as the law-making body of our country keeps in mind the psychological mindset if the citizens for whom they are making the law. These people identify them in diverse ways.

Medical aid taken by different genders

Some as male or female and others as genderqueer, agender, etc. Some take hormones and have surgery as part of their transition, and some don’t. Normal gender identity is different from transgender identity as it is concerned with the sexual orientation or in simpler words physical, romantic, emotional, or spiritual attraction of one person towards another whereas gender identity is one’s personal sense of being a man or a woman. gender identity is one’s personal sense of being a man or a woman. These people have attractions for same-sex as their own.

However, there are even some people who have dual-role transvestism or cross-dressing which is the formal diagnosis used by psychologists and physicians to describe people who wear clothes of the opposite sex to experience being the opposite sex for a temporary time period, but don’t really have a sexual motive or want gender reassignment surgery.

Issues faced by them

There are a lot of challenges faced by the community no matter their visibility has increased in the society which is majorly categorized as severe discrimination, stigma, and inequality. Some of the specific issues faced by the transgender community are lack of legal protection, poverty, harassment, anti-transgender violence, identity issues, lack of representation in employment, and barriers in healthcare.

The lack of proper laws just as they are for the other two genders in the scenarios such as protection against various crimes, educational laws, separate jail regulations for the transgenders who commit a crime. The more concerning area could be the arrest procedure. In cases of men and women, the regulations and procedures are quite clear stating the presence of a lady constable to arrest a female and different cells from that of men in the jail premises.

However, there isn’t any law yet formulated for such scenarios. Other parts of the legal system are also untouched such as the law against rape, kidnapping, abduction, assault, battery which further depicts that the major part of the legal system has no concern for these people which can be a problem both for the society as well as for the LGBTQ community as well. Not only these issues persist but also these people don’t have proper rights in cases of inheritance of property, adoption.

Marriage is an important and core part of our society. Marriage between a male and a female is recognized but not among two males and two females. There have been petitions filed for same-sex marriages in the courts. Discrimination on the basis of sex is another big issue to be tackled.

Article 15

Article 15 of our constitution prohibits such discrimination yet they are being exercised. However in of Navtej Singh Johar v. Union India[2] and in  National Legal Services Authority v. Union of India[3] the Supreme Court held that discrimination on the basis of gender identity is constitutionally prohibited.  The extreme lack of accurate and proper identity documents among transgender people has created a lot of hurdles in their lives such as in housing or other public services. without identification, one might face extreme levels of difficulty in traveling, registering for educational purposes, or in accessing many services that are essential to living a life of dignity and quality.

Many states require proof of medical transition which can be prohibitively expensive and is also not something that all transgender people might want as well as fees for processing new identity documents, which may make them unaffordable for some members of the transgender community.

Rights of Transgender Persons Bill, 2014

In 2015, with the passing of the  Rights of Transgender Persons Bill, 2014[4], there has been a step taken forward towards the upliftment of the transgender community. It guaranteed rights and entitlements, reservations in education and 2% reservation in government jobs, legal aid, pensions, unemployment allowances, and skill development for transgender people. It also contained provisions to prohibit discrimination in employment as well as prevent abuse, violence, and exploitation of transgender people. The bill has provided for the establishment of welfare boards at the center and state level as well as for transgender rights courts. The bill was passed by the Rajya sabha.

Transgender Persons (Protection of Rights) Bill, 2016

Further another bill, the Transgender Persons (Protection of Rights) Bill, 2016. This bill a quite controversial one as it prohibited begging. It also stated that a District Screening Committee with members as Chief Medical Officer, District Social Welfare Officer, psychologist, or psychiatrist representative of the transgender community and government officer. The district magistrate will issue a Certificate of Identity as ‘transgender’ based on the report of the Committee. would issue a certificate of identity to recognize transgender persons and that a right to self-perceived gender identity lies with the transgender.

Not only this but also there were improvements made in the healthcare sector for them such as separate HIV centers, sex reassignment surgery and therapy counseling, comprehensive insurance scheme, etc. any sort of discrimination against them would attract imprisonment of between six months to two years and a fine. Another bill in 2019[5] was introduced and passed for the welfare which also included residential right to be vested with the transgender person which means that the person is entitled to reside in his household and be taken care by his family, if not then must be put in the rehab center on court’s order.

Measures were taken for their upliftment

All these measures were taken up for the upliftment of the community but on the other hand, there has been a lot of recognition given to the LGBTQ community nowadays by society too. LGBTQ voices have been given a platform through several online and real-world platforms form which has played an important role in LGBTQ activism.

Gay pride parades including a large number of people to talk, speak, and more importantly to spread awareness about the people of this community to be just as normal and deserving like other genders in our country. Meet-ups and heated discussions on Twitter, hashtags, and various other means such as interviews, live streaming sessions with the people of this community have created much development and provided support to them.

All these steps that we have seen yet lack a lot of things and guidelines in order to give the community a better structure by all means. Legal gender recognition is also an essential element of other fundamental rights including privacy, freedom of expression, to be free from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely.

Final Thoughts

Activists in India are planning to challenge the new law on this and several other fronts. Certain areas such as marriage, adoption, and crimes against these people have to be taken into account in a way deeper manner. The people around us have been constantly trying to step out and take a stand for them so that no stone is left unturned.

In my view, before any law formulation or any welfare activity, there has to be social acceptance by the people of the society for anything to grow or develop efficiently. In a country like India, where social stigmas and an orthodox mindset flourishes quite often, people have been quite supportive and open-minded with stepping out to support the community and help them fight all the stigmas and barriers and lead towards the growth.

The growth of the country lies within the upliftment of its people and so a speedy and efficient structure should be constituted for the same. India has been getting support from not just their people but also internationally. The human rights council who work at a worldwide platform for the welfare of the people in the world have been constantly supporting us in taking steps to uplift the LGBTQ community. Basic necessities have been looked into by the government of India in a well-versed way so as to at least ensure the people that they recognize them just as similar to other gender and they deserve a place in our society and live a life of dignity.


Author:

muskan saxena Muskan Saxena | Amity Law School, Noida


References

[1] https://www.trp.org.in/wp-content/uploads/2015/10/ARSS-Vol.4-No.1-Jan-June-2015-pp.17-19.pdf

[2] https://indiankanoon.org/doc/168671544/

[3] https://indiankanoon.org/doc/193543132/

[4] https://www.thehindu.com/news/national/rajya-sabha-passes-private-bill-on-transgenders/article7138056.ece

[5] https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2019

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