Transgender Rights In India

Authored By: Preeti Chahal, Institute of Law, KUK, Haryana

Introduction

In India, sexuality is a major issue. When we are talking about transgender, the first thing that comes into our mind is that they belong to different categories. Transgender life is full of struggles in our society. They had faced many difficulties to live a healthy and respectful life in society. They face discrimination in every aspect of life due to their different identities. They lack health facilities, employment, and education facilities in our society. These factors affect their mental health and are also not treated as an equal part of society. These persons are usually abandoned and have fewer means of survival and livelihoods. Also, parents tend to feel that it is dishonorable to have a transgender person in their home. The Indian government has taken many steps to protect the identity of transgender persons and to recognize them as equal citizens. The Supreme Court also recognized the transgender person as the third gender neither female nor male. So in this article, I tried to understand the meaning of transgender, their rights, and what problems are face in society. This study revolves around the struggle of transgender life.

The term “Transgender”

The term “Transgender” is very wide. So it is difficult to explain transgender in a few words. It means transgender persons are those people whose gender identity is different from the sex they were assigned at birth. For example, a person born as a male but at birth may identify as female, a combination of male and female, or neither. These people are born with male or female identity. Their appearance, behavior, identity, and expressions are also different. They were known as ‘Hijra’ in many places.

Also, they were known as Aravani in Tamil Nadu, Shiv-Shaktis in Andhra Pradesh, and Jogtas in Maharashtra and Karnataka.

Does the Indian Constitution protect transgender persons?

Yes, there are various important provisions in the Constitution protecting transgender rights in India. They include:

Rights to Equality (Article 14): The Indian constitution gives us the right to equality. Article 14 states that “No one can deny any ‘person’ equality before the law or equal protection of law. In this article, the word ‘person’ was used. It shows that sex or gender identity is not a basis for discrimination under the law. Along with that, they cannot be subjected to unfair treatment in educational institutions or at the time of employment.
Prohibition of Discrimination on various grounds including gender (Article 15): This article prohibits any sort of discrimination or ill-treatment based on a race, religion, caste, or sex of them.
Freedom of speech and expression (Article 19): This article grants every citizen the freedom of speech and expression and also to transgender persons.
Right to life and personal liberty: Article 21 states that no person shall be deprived of his life and personal liberty except according to the procedure of law. Transgender persons also have the right to life and personal liberty.

The issue faced by transgender in India

Social Stigma: Transgender persons are often subjected to social stigma in India. They are not accepted by society and are treated as outcasts.
Employment discrimination: Due to their gender identity, they faced discrimination in employment opportunities. They face loss of job opportunities, and harassment at the workplace, which often results in their unemployment.
Access to Healthcare: They have faced difficulty in accessing healthcare services in India. They are not provided adequate healthcare facilities. They are not treated with dignity and respect by healthcare professionals.
Limited legal recognition: Although the Supreme Court of India recognized transgender persons as a third gender in 2014 still they are facing a lot of problems in their life. They have faced difficulties in obtaining identity documents.
Violence: Transgender persons in India are at a high risk of violence. They have faced physical and sexual assault, harassment, and discrimination.

Legislation related to transgender in India

Transgender Persons Act, 2019
This act defines transgender persons as those whose gender does not match the gender assigned at birth, including transmen, transwomen, intersex persons, and gender non-binary persons.
It also prohibits discrimination against transgender persons in areas such as education, employment, healthcare, housing, and public spaces.
It is helpful to recognize the right of transgender persons to self-perceived gender identity, without undergoing sex reassignment surgery or hormonal therapy.
If any person compelled transgender persons to beg or deny them access to public spaces then they were liable for punishment under this act.
This act makes provisions for the establishment of a National Council for Transgender Persons, which includes representatives from various government ministries, transgender community organizations, and experts in the field.
It also provides for transgender persons to be recognized as a separate category for affirmative action programs, such as reservations in education and employment.
Transgender Persons (Protection of Rights) Rules, 2020
This act defines the process for issuing a certificate of identity to transgender persons, which includes an application to the District Magistrate, a screening committee, and an appeal process.
It also specifies the responsibilities of the National Council for Transgender Persons, which include reviewing and monitoring the implementation of the Act, making policy recommendations, and addressing grievances of transgender persons.
This act makes provisions for the obligations of the Central and State governments to ensure the welfare and development of transgender persons, including providing access to education, employment, healthcare, and social security schemes.
It also specifies the procedure for changing the name and gender of transgender persons in official documents, such as birth certificates, passports, and driver’s licenses.
The healthcare providers must provide medical care to transgender persons without discrimination, and maintain confidentiality of their medical records.
The government must conduct awareness campaigns to promote the rights and welfare of transgender persons, and to sensitize society to their issues and challenges.

National Council for Transgender Persons

The National Council for Transgender Persons (NCTP) is a unique body established in 2020. It generally deals with framing equal opportunity policy for the transgender person. The NCTP suggests the Central Government and the state government make the policies, design programs, and legislation, delivering various projects related to the community. The main work of the council is to listen to and sort out the problems of transgender persons. The main task is to perform any other functions regarding the matter as may be told by the Central Government for framing equal opportunity policy.

Protection of transgender rights in India

The government takes various steps to protect transgender rights in India. They include:

Self-Identification: India’s law should allow the transgender person to self-identify their gender. It should adopt a model of gender recognition that does not discriminate against transgender persons.
Education: The government must evolve an effective system to sensitize schools and universities as regards the needs and the nature of the transgender community. Due to this, transgender persons get admission to any educational institution in which they want.
Employment: Schemes and measures that were provided by the government should be directed towards skill development among transgender communities. There is no anti-sexual harassment in workplace.
Health: Separate policies related to health care must be framed and communicated by the government in all private and public hospitals and clinics. The focus should not only be on HIV prevention but also mental health issues of transgender persons.
Awareness: The government must organize public awareness campaigns to eliminate the social stigma associated with the transgender community. It is starting from the school level to accept the transgender community integral component of societal life.

Conclusion

Now the situation is changing because of the social media platforms and awareness campaigns by the government. Transgender persons are finding other people online belonging to the same gender and they are aware of their rights and responsibilities. Every individual must respect them as they are also human beings. State and central governments should implement the laws strictly and make various provisions for the punishment of the people who violate their rights. Education and employment facilities were also provided to transgender persons for their development in society. Separate policies related to health care must be framed and communicated by the government in all private and public hospitals and clinics. The act makes provisions for the obligations of the Central and State governments to ensure the welfare and development of transgender persons, including providing access to education, employment, healthcare, and social security schemes.

The government must conduct awareness campaigns to promote the rights and welfare of transgender persons, and to sensitize society to their issues and challenges. The act also provides for transgender persons to be recognized as a separate category for affirmative action programs, such as reservations in education and employment. The Supreme Court also recognized the transgender person as a third gender neither female nor male. Along with that, we need to remove social stigma and give them a chance to stand together.