Legal Challenges and Advances in Transgender Rights in India

By – Shivani Vijay Pawar from PES’s Modern Law College, Pune

Introduction

Transgender individuals, whose gender identification deviates from their assigned biological sex, have been an integral part of Indian society for centuries. Historical evidence in ancient Indian writings of India recognizes the existence of a “third sex,” or individuals who do not conform to the traditional male or female genders. The concept of “Tritiyaprakriti” or “Napumsaka” was deeply embedded in Hindu mythology, folklore, epics, and early Vedic and Puranic literature. Throughout history, transgender individuals have faced marginalization and misunderstanding in various societies. While the understanding and terminology of transgender identities have evolved, challenges persist for transgender individuals, especially in societies that do not fully accept gender diversity. In India, transgender individuals are an integral part of the LGBTQIA+ community, which includes individuals identifying as lesbian, gay, bisexual, transgender, queer, intersex, asexual, and others. The acceptance of the Term “Transgender” The term “transgender” gained acceptance in the modern LGBTQ rights movement in the 2000s, following its introduction in the 1960s. Historians attribute the earliest use of the term to a 1965 psychology textbook, popularized by activists like Virginia Prince. The term replaced derogatory language and emphasized the separation of sex and gender, contributing to the inclusion of transgender individuals in the broader LGBTQ community. Despite their cultural and historical significance in India, transgender individuals still encounter societal biases and prejudices that hinder their acceptance and recognition. The lack of comprehensive data on their socio-economic status further complicates efforts to address their challenges. Social stigma and lack of acceptance contribute to their exclusion from mainstream society, perpetuating cycles of poverty, illiteracy, and vulnerability. Efforts to address the complex challenges faced by transgender communities require coordinated actions from policymakers, civil society, and the broader community. Raising awareness, challenging societal norms, and implementing inclusive policies are essential to upholding their rights and dignity. Embracing diversity, promoting inclusivity, and advancing equal opportunities are crucial steps toward creating a society where transgender individuals can live with dignity, respect, and equal opportunities. Recognizing the power and dignity of transgender individuals in India is paramount to building a more inclusive and equitable society. By implementing laws and policies that prioritize the rights and well-being of transgender communities, we can work towards creating a society that values and respects all individuals, regardless of their gender identity.

Objectives

To understand the present situation of transgender people in India.
To understand the rights of transgender in India.
To understand and Highlight some major problems faced by the transgender community in India.
To understand suggestions for inclusive measures to improve their status.

Historical Background

In History, gender variance in India dates back to ancient times, with roots even in prehistoric eras. The transgender community in India comprises various groups such as Hijras, eunuchs, Kothis, Aravanis, Jogappas, and Shiv-Shakthis. Hijras, a prominent group within the transgender community, has a history of more than 4000 years in India. Originating from the ‘Eunuch’ culture prevalent in the Middle East and India, Hijras traditionally served as guards, advisers, and entertainers. Mythologies such as the Ramayana and Mahabharata in ancient Hindu Scriptures, as well as the concept of Napunsaka in Vedic literature, play a significant role in the history of Hijras. Additionally, Jain literature provides detailed references to transgender individuals and the concept of psychological sex’. Hijras also held influential positions in royal courts during the Ottoman Empire and Mughal rule in Medieval India. With the onset of colonial rule in the 18th century, the situation for Hijras and transgender individuals changed drastically. The Criminal Tribes Act of 1871 labeled the entire Hijra community as ‘Criminal without bail, creating a stigma that persisted even after India gained independence in 1947. The Supreme Court of India acknowledged in a 2014 judgment that transgender individuals, known as ‘Hijras’, are often considered unnatural or objects of ridicule. The court emphasized the right of every individual, including transsexuals, transgenders, and Hijras, to freely express their gender identity. Today, transgender individuals in India are recognized as the third gender, although they still face discrimination across various sectors, such as employment. education, healthcare, and public Despite the Union Cabinet’s approval of the Transgender Persons (Protection of Rights) Bill in 2016, which aims to empower the transgender community socially, educationally, and economically, challenges persist. Transgender individuals in India often experience discrimination, harassment, verbal abuse physical and sexual violence, denial of rights to ancestral property, and exclusion from essential services and educational institutions. Various perpetrators, including family members, community members, employers, and healthcare providers, contribute to the marginalization of transgender individuals based on factors such as appearance, behaviour, and association with certain activities Recognizing the rich history and legal rights of transgender individuals in India is crucial for promoting equality, dignity, and acceptance in society. By addressing the systemic challenges and advocating for the rights of transgender individuals, India can progress toward a more inclusive and compassionate future for all its citizens.

Problems Faced by Transgender Community

The challenges faced by the transgender community in India are multifaceted and rooted in societal norms, cultural prejudices, and systemic discrimination. These challenges span various aspects of life, from social exclusion and discrimination to economic hardships and healthcare disparities. marginalizes them in society and makes them one of the weaker sections who are at risk of becoming socially excluded. Here is the highlighting of some major problems faced by transgender people in India.

Marginalization and Social Exclusion

This marginalization often leaves them vulnerable and at risk of becoming socially excluded. In this article, we will delve into some of the major issues faced by transgender individuals in India At the heart of the struggles faced by transgender individuals is marginalization, which leads to exclusion from fully participating in social life at individual, interpersonal, and societal levels. This lack of control over their lives and limited access to resources can result in stigmatization and negative public attitudes towards them. The marginalized individuals may also experience low self-confidence, self-esteem, and isolation, with restricted opportunities to contribute to society. Transgender individuals are often subjected to multiple forms of marginalization, including racism, sexism, poverty, homophobia, and transphobia, which can have detrimental effects on their mental health. The marginalization of transgender individuals extends to their legal rights, with barriers preventing them from accessing essential services such as healthcare, justice, education, and housing. Discriminatory laws and biases based on sexual orientation and gender identity further impede their ability to access public services. Transgender persons often face discrimination in public spaces, such as restaurants, cinemas, shops, and malls. The lack of separate toilet facilities for transgender individuals exposes them to risks of sexual assault and harassment in male restrooms. The social and economic ramifications of marginalization are profound for transgender persons in India. They are often marginalized within their communities, lack access to essential services, and have limited awareness of their rights. This exclusion and discrimination have led to higher rates of suicide attempts, forced marriages to the opposite sex, and difficulties in accessing social and familial support.

Harassment in Educational Institutions

In today’s society, the issue of harassment and discrimination in educational institutions towards the transgender population is a pressing concern. The literacy rate among transgender individuals tends to be significantly lower than that of the general population, creating quality education and employment opportunities. Educational institutions serve as crucial environments where students of all backgrounds come together to learn and grow. However, these spaces can often be gendered and unwelcoming for gender-nonconforming and transgender individuals. The stigmatization faced by these students within the educational system reflects broader societal norms that uphold strict binary and patriarchal gender standards. According to the Indian Census of 2011, the transgender population in the country is estimated to be around 4.9 lakh. Shockingly, census data also reveals that only 46 per cent of transgender individuals are literate, significantly lower than the 74 per cent literacy rate of the general population. This stark contrast highlights the systemic barriers and challenges faced by the transgender community in accessing quality education. There are numerous factors contributing to the educational disparities experienced by the transgender population. These include exclusion from family and society, economic hardships, social stigma and discrimination, insensitive attitudes from teachers and staff, as well as instances of violence and sexual abuse. These issues not only hinder the educational advancement of transgender individuals but also violate their fundamental rights to education and protection under the law. Educational institutions must take proactive measures to address the problems of harassment and discrimination faced by the transgender population. By implementing inclusive policies, providing sensitivity training to staff, and fostering a safe and supportive environment for all students, educational institutions can help bridge the educational gap and promote the rights of transgender individuals to access quality education without fear of discrimination. Together, we can work towards a more inclusive and equitable educational system for all.

Discrimination in the Workplace and Economic Challenges

Transgender individuals encounter numerous obstacles in the workplace, leading to limited job opportunities and economic instability. Both male-to-female and female-to-male individuals often experience sexual harassment in both formal and informal work settings. Discrimination in the hiring process, unequal pay, a lack of job security, and the workplace are prevalent issues for
transgender employees. Low literacy rates and social exclusion further hinder the employment and opportunities for the transgender community. Many transgender individuals face hostility as children and youth, which restricts their job prospects due to limited formal education and discrimination in recruitment practices. Hostility in workplaces, the absence of gender-appropriate facilities, and other challenges impede their ability to secure stable employment. As a result, some transgender individuals are left with no choice but to resort to begging or engaging in sex work.

Homelessness

Many transgender individuals find themselves homeless due to family rejection and societal discrimination. Forced out of their homes for being queer or fleeing from abusive situations, these vulnerable individuals often end up living on the streets of the city. The homelessness crisis among transgenders is exacerbated by the lack of appropriate shelter options. They are frequently denied the opportunity to choose their gender identity when seeking refuge in the shelter system. This lack of choice leads to further marginalization and discrimination. Furthermore, abuse and harassment are common occurrences for transgender individuals seeking shelter. This mistreatment only adds to the challenges they face while trying to access safe and secure housing. The problems of homelessness faced by transgender individuals highlight the urgent need for better support and inclusive policies within the shelter system.

Problems of Transphobia

In Urdu, transgender individuals are referred to as “Khawaja,” with “Hijra” often used as a derogatory term that highlights prejudice and ignorance faced by this community. Transgender individuals face a higher likelihood of intolerance, discrimination, harassment, and violence compared to heterosexual individuals, all due to transphobia. Transphobia is perpetuated by various factors such as moral, religious, and political beliefs held by the dominant group in society This leads to verbal and physical harassment as well as exposure to violence for transgender individuals. To create a more inclusive and equitable society for the transgender community, it is essential to address these issues. To tackle the problems associated with transphobia, comprehensive awareness campaigns should be launched to educate the public on transgender rights. These campaigns aim to dispel myths and misconceptions surrounding transgender individuals while fostering empathy and understanding towards their experiences. By promoting awareness and empathy, we can work towards a society that respects and upholds the rights of all individuals, regardless of their gender identity.

Healthcare Barriers

Transgender individuals in India are confronted with significant problems related to their health. They often experience discrimination, a lack of awareness regarding transgender health concerns, and a shortage of gender-affirming healthcare options. As a result, they have higher rates of sexually transmitted infections (STIs and face challenges in HIV/AIDS prevention and
treatment. Mental health problems such as depression and stress linked to gender identity are also widespread among this population. Moreover, transgender individuals encounter obstacles in their gender transition processes, including family rejection and involvement in sex work,
which further marginalizes them. The ongoing COVID-19 pandemic has worsened these health issues, leading to limited access to essential resources and healthcare services for the transgender community it is evident that transgender individuals in India are grappling with various health problems, from discrimination and limited healthcare options to mental health issues and difficulties in their gender transition journeys.

Psychological Distress

Transgender individuals in rural areas face a myriad of problems, including homophobic stress, bullying, and physical and verbal attacks. These harmful experiences can lead to serious health issues and negative impacts on their mental well-being. The effects of such discrimination can result in psychological distress, self-harm, and suicidality among transgender individuals. Rural transgender individuals may feel compelled to leave their place of birth or youth due to the challenges they face. Emotions such as deep sadness, anxiety, loneliness, discomfort in social situations, and feeling overwhelmed are common among this population. These feelings can be so severe that they meet the criteria for a mental health disorder. Teenagers, in particular, may find themselves isolated and struggling to navigate their sexual orientation or gender identity without adequate support. This process is even more difficult in rural areas, where resources and acceptance may be limited. The lack of support and understanding can exacerbate the health issues faced by transgender individuals in rural communities.

Conclusion

India has a rich pre-colonial heritage that embraces gender diversity, as evidenced in temple sculptures, mythology, and religious texts. However, in modern times, transgender people in India encounter various challenges including intolerance, stigma, discrimination, and violence. These human rights violations permeate through families, educational institutions, workplaces, and societal institutions, creating a hostile environment for the transgender community. The Transgender Persons (Protection of Rights) Act of 2019 marks a significant milestone in recognizing transgender individuals as a third gender and prohibiting discrimination in various spheres. While this legislation is a step in the right direction, its effective implementation necessitates collaboration between society. policymakers, and authorities to establish an inclusive environment that respects transgender rights. Transgender individuals, like all LGBTQIA+ persons, are entitled to fundamental human rights as enshrined in international treaties. These rights include the right to life and security. privacy, freedom from torture and discrimination, as well as freedom of expression and association. Both the public and authorities must challenge and reshape societal attitudes towards transgender individuals, promoting acceptance, respect, and equality. One of the major challenges faced by transgender individuals is underreporting due to stigma and discrimination, hindering their ability to disclose their identities without fear of backlash. To address this issue, efforts must be made to create a safe and empowering space for transgender individuals to express themselves freely. Creating a society where transgender individuals can live with dignity, respect, and equal opportunities requires a shift in mindset, questioning of norms, and promotion.

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