transgender
source: https://qz.com/india/1756897/indias-transgender-rights-bill-disappoints-the-lgbtq-community/

Abstract

“Transgender”  is an umbrella term that describes people whose gender identity or expression does not match the sex they were assigned at birth. Thought of society for transgender is neither male nor female. But thought should be that Transgender is male as well as female, hence “Human”. The perspective of society toward them is very complex. They get discriminated in their own family, they are mentally and physically tortured by society. And other challenges they face are lack of legal aid, lack of security, poverty, harassment, and stigma Barriers to health care and lack of identity documents.

In India we often know “Hijras” people who we understood were somehow labeled as different   Although they were poorly integrated into society, Hijras some times came over when there was an auspicious occasion at home such as a marriage or birth of a child. Despite being deemed they are a harbinger of good luck.

At that time hijras are also seen at traffic signals as beggars. After several cases of hatred and harassment, many movements by the LGBT community started. And the topic of Transgender person rights protection raised in parliament. The result of all this comes as a Transgender Person (Protection of Rights Act, 2019). This paper is an attempt to highlight the objective of this act and how it would end discrimination and Inequality for Transgender.  Also its implementation on the ground level and several controversies regarding this act. And why Transgenders called the date on which this bill was passed in Lok Sabha that is 5 August 2019 as ‘Justice Murder Day’?

Recto ab initio

“A HERMAPHRODITE, not an error by God, our misjudgment in his admiring his masterpiece.” – Dr. Tathagata Biswas

Western Society has conceded the gender out of males and female recently but in Hindu society people of non- binary gender expression has played an important role for over 2000 years. Called the third gender, evidence of their existence can be found in many Hindu scripts like Ramayana and Mahabharata.[1] The transgender community comprises od Hijras, Eunuchs, Kothis, Aravanis, Jogappa, Shiv Shaktis, etc. Eunuchs have existed since 9th century B.C. This name has roots in Greek and means “ Keeper of the bed “.

They were in popular demand to guard the women quarters in royal households.  It is mentioned in  Vedas (1500 BC – 500 BC) that individual is differentiated into three categories according to Prakriti. This also stated in Kama Sutra (4th century AD) and elsewhere as pumsprakriti (female nature) and Tritiya Prakriti (3rd nature). Manu Smriti (200BC- 200AD) stated that how the third gender originates – when male and female seeds are equal.[2]

In Indian culture transgender people enjoyed a status of special respect, they had every facility that a male or female acquire. The  Arthashashtra and the Kama Sutra have numerous mentions of LGBT individuals in various profession free from persecution.

And the stories of Ardhanareshwara (Shiva as half man and half woman) and Lord Ayappa (born to Shiva and Vishnu as Mohini) indicate the subtle approach that Hinduism adopts towards the matter of gender. [3]

The Gay & Lesbian Vaishnava Association (GALVA) highlights, in its report Homosexuality, Hinduism and the Third Gender, the gender fluidity of Hindu deities, and notes that “everything in this world is a reflection of the original subtle and spiritual reality.” The epic Mahabharata features the transgender character Sikhandin and depicts the warrior Arjuna cross-dressing to become Brihannala, a teacher of fine arts. GALVA further notes, “Vedic culture allowed transgender people of the third sex, known as Hijras, to live openly according to their gender identity.” As stated above, contemporary attitudes will vary across different Hindu organizations and society.[4]

In the Mughal period, the Eunuchs or Khawaja Sira wielded with enormous respect and power as they were highly trusted servants of the royal household and a good adviser too. They were also appointed as an army general, custodians, and teachers also. The fall of their disgrace begins in the colonial era or in British rule. [5].
In 1871, the British rulers introduced the Criminal Tribe Act. It requires registration and control of Eunuchs. British described them as criminals. As there was a blanket of suspicion of kidnapping, castration, and sodomy on them. Under the CTC Act wearing female clothing for men was a punishable offense.

According to this law if any transgender wears ornaments or female clothing and had been dancing and singing in the public and streets could be punished for 2 years imprisonment plus fine. [6]  British government was very cruel towards the transgender. They have an evil view for them. By making colonial laws they blocked all the income sources for Eunuchs and this pushed them in the brink of poverty.

Transgender was also hit by a lack of social justice. There was no remedy for the crimes that happen against them. In August 1852, a eunuch called Boorah was brutally murdered in the Mainpuri district. She was living with her two disciples and a male lover and used to sing and dance in wedding ceremonies and other auspicious occasions for livelihood.

She had left her lover for another man before she was killed. In the court of Justice, the Eunuchs were described as crossdressers, beggars, and unnatural prostitutes. One judge said that this community was a barrier upon colonial rule. Another claimed that their existence is a “ reproach” to the British Government. The reaction of judges was strange. She was a victim of the crime but her death was interpreted as evidence of criminality and immorality of the eunuchs. They were considered as an ungovernable, dangerous to public morals, and a threat to colonial political authority.

Although this act was revoked in 1949. But the sentiment that was behind this law remained strong. The first judgment in their favor was passed by the Supreme Court of India in the case of National Legal Services  Authority (NALSA)  vs  Union of India, on 15 April 2014 by a bench comprising of Justice K.S Radhakrishnan and Justice  K Sikri.

The judgment is concerned about seeking redressal for the grievance of the transgender community who seek legal declaration for their identities violate Article 14,15,16 and 21 of the Constitution of India. They faced a lot of problems and also treated as untouchables. There is a need to change the mentality of society and accept them as a citizen of our country. Gender identity is one of the basic aspects of life which refers to a person’s essential sense of being a male, female, or transgender person.

Implement the Supreme Court judgment in NALSA case on the ground level

To implement the decision ministry of social justice and empowerment create an intercommunication system between the Transgender expert committee and government officials to solve the problems and to make coordination between government and transgender. A committee comprised of senior officers from the ministry of health, education, social justice, labor, and employment for the welfare and also a media committee had been made up for initiating sensitive drives.

The ministry of information and broadcasting instruct media to highlight Transgender issues in public. The ministry of labor and employment instructed all the states to organize programs to develop various skills in them. In education, the government announced a 2% reservation for transgenders. [7]

However, the government had failed in the implementation of this decision on the ground level. After the judgment was passed, there was a considerable problem in front of Transgender to change the sex on their official documents. Transgender went to their local courts. But the officer insisted that they couldn’t help her if she doesn’t have the certificate of “sex change” from the hospital. In other states, a transgender died by following a road accident in the hospital because the doctors couldn’t take the decision on whether a male ward or female ward to use for their treatment.

In February 2015, Telangana Hijra Transgender Samiti reported 40 attacks on Transgender people within a six month period. Multiple cases of neglect, mistreatment, and provocation have been shared by those who have tried to apply for passports and other identity documents. Officers were cited to pass rude comments and casual features of applicants.

Many education departments had not responded to the application of  RTI regarding the allowances and reservation for a transgender official of universities of different states had said that they are not aware of any judgment of the Supreme Court related to transgender nor they received any instructions from the government. The Supreme Court had criminalized the transgender beggary and sex worker. That was a threat to many of the transgender’s incomes. And also any decision was not taken on sec 377. [8]

Transgender Person (Protection of Rights) Act 2019

In the above paragraph, we have seen that how the government is not able to implement the NALSA decision on ground level thoroughly. There were few issues like criminalization of begging, inhabitation by family, gender identity certificate on which was creating problems for Transgender persons.  In order to protect their rights and to fix all the difficulties the Transgender Person (Protection of Rights) Act passed.

Minister of Social Justice and Welfare Thawar Chand Gehlot introduced this bill in Lok Sabha on July 19, 2019. It was passed by Lok Sabha on August 5 2019 and passed by Rajya Sabha on November 26, 2019. It came into effect on 10 January 2020.[9] According to this act, the definition of Transgender Person is one whose gender does not match the gender assigned at birth. It includes Trans men and Trans women, persons with an intersex variation, genderqueers, and person with socio-culture identities such as Kinnars and Hijra   Intersex variations in his or her primary sexual characteristics, external genitalia, chromosomes of hormones from the normative standard of the male or female body. [10]

In order to establish better coordination between Transgender persons and government, NCT (National Council for Transgender persons) established. It comprises of Union Minister for Social Justice (chairperson), Minister of state for social justice (vice-chairperson), secretary of the Ministry of Social Justice, one representative from ministries including health, Home affairs, and Human Resource Development. Other members include NITI Ayog and National Human Rights Commission. State governments were also be represented. The council will also consist of five members from the Transgender community and five experts from non- government organizations. [11]

As per this act:

  1. Discrimination: No person shall discriminate against a transgender person on the ground of education, health care, employment, access to the enjoyment of good and shall not do unfair treatment in relation to access to government or private establishment, right to reside, rent or otherwise occupy the property and opportunity to hold public or private office.
  2. Right of residence: Every transgender person shall have a right to reside and be included in his household.  If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation center, on the orders of a competent court.
  3. Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion.  Every establishment is required to designate a person to be a complaint officer to deal with complaints in relation to the Act.
  4. Education: Educational institutions funded or recognized by the relevant government shall provide inclusive education, sports, and recreational facilities for transgender persons, without discrimination.
  5. Health care: The government must take steps to provide health facilities to transgender persons including separate HIV surveillance centers, and sex reassignment surgeries.  The government shall review the medical curriculum to address the health issues of transgender persons, and provide comprehensive medical insurance schemes for them.[12]
  6. Certificate of identity for a transgender person: A transgender person may make an application to the District Magistrate for a certificate of identity, indicating the gender as ‘transgender’.  A revised certificate may be obtained only if the individual undergoes surgery to change their gender either as a male or a female.

Criticism

  1. The Transgender person bill should be a remarkable achievement for a long-persecuted community but the current draft fails on the fundamental rights to self-identity said Meenakshi Ganguly South Asia Director at Human Rights. This law would not provide protection to these fundamental rights.[13]
  2. In the above paragraph (8), Transgender Person is defined. Somehow is mixed with that of an intersex person. Transgender Person has different gender identity what was given to them at birth, while intersex indicates the diversity of gender-based on biological characteristics.
  3. All the rights given to Transgender person under this act are already guaranteed under Article 14 of the Constitution of India
  4. In paragraph 10(d) Rights for education without discrimination are provided to the Transgender Persons. But there are no reservations provided for who had come from disadvantaged backgrounds and find it hard to get mainstreams jobs or quality education
  5. Paragraph 10(b) said that if immediate is unable to care for the Transgender Person the person may place in a rehabilitation center on the order of the competent court. This denies the right of a person to join other Transgender communities like Hijra.
  6. Para 10 ( c) said about the health care of the Transgender Person but in the act, there is no specification about the manner they will aid the Transgender community. Will fees and medical bills be subsidized? Will they be free? There is no clarity.
  7. According to paragraph 10 (f), the act mandates a two-step process for legal gender recognition. First, it requires a trans person to apply for a “Transgender Certificate”. This can be done on the basis of a person’s self-declared identity. Then a certificate holder can apply for a “change in gender certificate”. It is a very time taking process, which would cause difficulty to get id documents in the time of urgency. The cost of surgery is not mentioned. And how will Transperson from the backward section of society afford this surgery? This question is also raised by the LGBT community. Also, violate the right to privacy.
  8. The penalty for sexual violence mentioned in the bill is lower than for such crimes against women. It does not define specific physical sexual offenses that transgender people face, activists said.[14]

Conclusion

The above submission had highlighted the challenges and difficulties faced by transgender from the ancient till now. Society had never let them feel equal and mixed with other people. They have their view of them as a curse to society. We can observe the hypocrisy of people when they take them as good luck on their arrival on auspicious occasions. On the other hand, they are also treated as untouchables. Even they are neglected by their family.

The act that is passed for Transgender is like a “tiger without teeth”. It fails to address the key of concern that has been repeatedly raised by the transgender community. The act is adding red tape as the Transgender Person needs a certificate of recognition as a man or woman. The process of issuing certificates is very time taking and had many bureaucratic layers on it. Also, it is not mentioned that how would the poor Transgender section will afford the cost of surgery.

It is also asked whether a Transgender person holding a female or male certificate can enjoy the government welfare programs and schemes that are meant for Transgender only? Transgender should have their own gender recognition. Gender assignment by the medical process is a violation of the guidelines of International Standards, United Nations Health Agencies, and the World Medical Association.

We all are familiar with the word “Human Rights” but it is extremely painful to see how Transgender is treated across the country like they are not human beings. This shows how our society is narrow-minded. It is time when we need a society where all gender could get equal treatment and could enjoy their freedom. And our policymaker should amend this bill according to demands of Transgenders so that they can bloom socially, politically, and economically and can contribute to the development of the nation.


Author:

nishant varma Nishant Verma | Campus Ambassador


References

[1]  Serena Nanda, Neither Man nor Woman: The Hijras of India, 2nd ed

[2] Asian Review of Social Sciences

ISSN: 2249-6319 Vol. 4

[3] Swarajyamarg.com

[4] www.hrc.org

[5] Wikipedia/ TRANSGENDER in British India

[6] bbc.com

[7] The wire journals

[8] The Hindu

[9] Prsindia.com

[10] Socialjustice.nic.in

[11] Clpr.org.in

[12] The Gazette of India

[13] prs.com / transgender person bill

[14] The Washington Post

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