The transgenders in India haven’t just had a legal fight to fight but a social fight as well. With society not accepting transgenders and discriminating against them, it hasn’t been an easy journey for them to deal with all the social oppression, mental pressure, physical violence, and more.
As per the Indian Constitution, there are equal rights granted to every citizen of the country and transgender people are entitled to legal protection under the Indian Law. The huge issue that lacks here is the right recognition. Back in the year 2019, the Transgender Person (Protection of Rights) Act, 2019 was enacted that would provide protection and prohibition discrimination in matters of employment, education, and health services for the transgender person along with providing welfare measures that have been adopted to protect the rights of the transgender person. Let’s take a look at the rights of transgenders in India.
Recognition of transgender people as a “third gender”
Transgenders have been discriminated even against their own identity and have been time and again forced to either pick an option of being a male or a female. Even though in India, the rule of law is supreme and everyone is treated equally, still the transgender community is engaged in a daily struggle as they must contend with oppression, abuse, and prejudice from all corners of society, including their own family, friends, and the general public. Transgenders struggle every day to find acceptance because they are shunned by society and humiliated everywhere. With such non-acceptance of their gender by society, it took ages for transgenders to get recognized as the “third gender”.
The third gender was given legal recognition in the landmark case of the National Legal Service Authority v. Union of India when the Hon’ble Supreme Court by the division bench of Justices K.S. Radhakrishnan and A.K. Sikri decided that the third gender should have access to the same fundamental rights as men and women. The court upholds the equality of transgenders and offers them protection by Articles 14, 15, and 21. The court emphasized the value of the right to dignity and accorded the individual’s gender identity, which was based on reassigned sex following sex reassignment surgery, fair respect because the individual had a fundamental right to be recognized as a male or female. In light of this, transgenders have a right to legal protection under the law in all areas of state activity, including work and education. The Court then dismantled the socially accepted dual gender structure of “man” and “woman” by recognizing a variety of gender identities. When delivering the decision, Justice K.S. Radhakrishnan told the Supreme Court that the recognition of transgenders as a third gender was a human rights issue rather than a social or medical one.
According to Articles 14 and 21 of the Constitution, everyone has the right to equality before the law and equal protection of the law. Another issue that falls under the purview of Article 21 is the right to freely choose one’s gender identification, which is a necessary component of living a life of dignity. The Court noted that “the gender to which a person belongs is to be determined by the person concerned” while determining the right to personal freedom and self-determination. The Indian people now have the freedom to identify as either male or female. Additionally, discrimination against them based on their gender is prohibited by Articles 14, 15, 16, and 21.
The Transgender Community sought a legal declaration of their gender identity rather than the identity of male or female that was assigned to them at birth, and they prayed that non-recognition of their gender identity is a violation of Articles 14 and 21 of the Indian Constitution. This caused the Supreme Court to be concerned about their grievances and suffering. The Supreme Court’s interpretation of Article 14 concluded that it protects “any person,” which includes transgenders. As a result, they are entitled to legal protection under the law in all areas of governmental action, just like other citizens of this country. The court further ruled that Articles 15 and 16 are not only intended to apply to those who identify as either male or female biologically but also to those who identify as neither.
The Court ruled that Article 19(1)(a)’s of gender expression is also upheld and that “no restriction can be placed on one’s choice of clothes or personal appearance, subject to the limitations as stated in Article 19(2) of the Constitution. The court further cited Articles 19(1)(a) and 19(2) before coming to the conclusion that transgender people’s behavior and presentation can convey their transgender personalities, and that this expression cannot be restricted or outlawed. Last but not least, the court cited Article 21 and declared that “under our constitution and legislation, Hijras/Eunuchs have to be treated as a third gender, over and above binary gender.”
The Court acknowledged the right to select one’s private behavior, personhood, and freedom of thought, all of which are essential for a person’s personality to grow to its maximum potential. The Court went on to say that forcing someone to mature in a gender they do not belong to or cannot relate to will again impede their development and prevent them from realizing their dignity.
By adding a third category to documents like the voter registration card, passport, driver’s license, and ration card, as well as for admission to hospitals and educational institutions, among other things, the Supreme Court has provided specific instructions for the protection of the rights of transgenders.
In its ultimate ruling, the Supreme Court ruled that transgenders should be recognized as belonging to a “third gender” to preserve their rights under Part III of the Indian Constitution and the laws passed by the Parliament and State legislatures. The state government was further ordered by the court to officially recognize their third gender identity. The government was further directed by the honorable top court to abolish societal stigma, support particular health initiatives, and provide equal protection for transgender people.
Right to self-identification
As per the National Legal Services Authority vs. Union of India, the Supreme Court has held that the self-determination of one’s gender is part of the fundamental right to dignity, freedom, and personal autonomy guaranteed under Article 21 of the Constitution. Further, the Court upheld the right of transgender persons to determine their self-identified gender as a man, woman, or third gender. This would protect their right to live with dignity and respect.
Right to Equality
The Transgender Persons (Protection of Rights) Act, Section 18, protects all transgender people from all forms of abuse, including physical, verbal, emotional, sexual, mental, and economic abuse. Violators are subject to fines and imprisonment for terms ranging from six months to two years.
Right to Education
Transgender students are frequently refused admission to educational institutions because those institutions do not recognize their gender identities. After the implementation of the Transgender Person (Protection of Rights) Act of 2019, it now mandates that educational institutions that receive government funding or recognition must offer transgender students access to sports, recreation, and education without discrimination. The education of transgender people is just as important as that of people of other genders, whether they are male or female, but the social stigma that transgender people experience reduces their interest in and focus on their studies.
Right to Employment
Just like in education, even in employment, transgender people have had to face discrimination, leading them to suffer from unemployment and poverty, primarily in the form of harassment, refusal to hire, and invasion of privacy. The implementation of the Transgender Person Protection Act has resulted in the prohibition of government or private organizations from discriminating against transgender people in matters of employment, including recruitment and promotions. It also mandates that each establishment appoint a person to serve as a complaint officer to handle complaints related to the Act.
It was in the case of Nangai v. the Superintendent of Police that discrimination against transgenders in employment was dealt with. The Hon’ble High Court upheld the petitioner’s freedom to select a different gender identity as a third gender in the future based on the medical declaration, and the Hon’ble Court overturned the Superintendent of Police’s contested order terminating the petitioner’s employment to uphold her legal rights as a transgender person.
Right to Public Facilities
According to the Transgender Persons (Protection of Rights) Act, it is unlawful to refuse transgenders the utilization of public facilities, and on the refusal of public facilities, the penalty of the act can range between two months to six months in prison, along with a fine to be issued.
Right to Residence
According to the Transgender Persons (Protection of Rights) Act, it is unlawful for any family to treat a child differently or to urge them to leave the home. All transgender individuals are entitled to reside in their family’s houses and utilize all of the amenities in their family’s home without restriction. The competent court must order that a transgender person be placed in a rehabilitation facility if any parent or member of the immediate family is unable to care for them. (Act’s Section 12(3))
Right to access healthcare (including hormone therapy and gender reassignment surgery)
Health care for anyone, in general, encompasses a person’s full condition of complete physical, mental, and social welfare rather than only the medical treatment involved in the transition, and talking about transgendered people plays a bigger role since they deal with both mental and physical violence by society.
To protect them and enable them to have happy lives, according to the Transgender Person (Protection of Rights) Act of 2019, the government must make the necessary efforts to provide transgender people with healthcare facilities, which should include separate HIV surveillance centers, sex reassignment surgeries, and full medical insurance. Under this Act, governments are required to make it easier for transgender people to access hospitals and other healthcare facilities, as well as to provide for the coverage of medical costs through a comprehensive insurance program for gender-affirming procedures like hormone therapy, laser therapy, or any other health issues that transgender people may experience. The Act further requires the governments to operate medical care facilities, including for the provision of gender-affirmative surgery and hormonal therapy, counseling before and after gender-affirmative surgery and hormone therapy, and to publish a health manual related to gender-affirmative surgery by the World Professional Association for Transgender People’s Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People.
Right to Marry
Since the Hindu Marriage Act, the Special Marriage Act, and the Mohammedan Law, a marriage is legitimate if the partners are of opposite sexes, but the Madras High Court upheld the ground-breaking decision that altered the privileges of transgender marriage under the Hindu Marriage Act. In the case of Arunkumar and another v. the Inspector General of Registration and Ors., the term “bride” might refer to anyone who identifies as a woman or who believes she is a woman, but it still doesn’t include people who don’t identify the gender within the gender, and hence, transgender marriage has not been legalized yet.
Right to Adopt Children
Regarding the adoption of children, as of now, third-gender adoptions are not permitted since the Hindu Adoption and Maintenance Act (HAMA) only recognizes adoptions made by men or women as being legal. Adoptions in Hijras based on the custom of reet have also been delegitimized by Sections 4 and 5 of the same Act, which grant overriding powers to the provisions of the Act over customs. Section 41(6) of the Juvenile Justice Act, which states that everyone has the right to adopt and does not expressly refer to simply male or female persons, states that people of the third gender will be able to adopt if they are officially recognized as a pair. If a person satisfies the requirements established by the central adoption resource agency, they may adopt by filing an affidavit in the High Court.
Shared By : Shreya Sharma,
CEO & Founder, Rest The Case.
