Transgender rights in India

Introduction

Estimates from World Population Review count the percentage of the LGBTQIA+ community to be 8%. Brazil leads the list, followed by Spain, and the United Kingdom. The census of 2011 included transgenders in the "others" category and noted around 0.48 million population in India. Uttar Pradesh (28%), Andhra Pradesh (9%), Bihar (8%), West Bengal (6%), and Tamil Nadu (4%) were the leading five states. LGBTQIA+ is a ubiquitous umbrella term that represents lesbian, gay, bisexual, transgender, queer, intersex, asexual, and others. The + denotes identities that need to be explored.

The Office of the High Commissioner for Human Rights (OHCHR) defines Transgender (or trans) as a term used to describe people whose sense of their own gender is different from the sex that they were assigned at birth. The Transgender Persons (Protection of Rights) Act, 2019 definition is also tantamount to the definition of OHCHR.

History

The transgender community encompasses a diverse array of identities, including Hijras, eunuchs, Kothis, Aravanis, Jogappas, and Shiv-Shakthis. An examination of ancient Indian texts reveals that the Vedic culture recognized three genders. The Vedas (1500 BC - 500 BC) categorize individuals into three distinct groups based on their inherent nature or prakrti, which is further elucidated in the Kama Sutra (c. 4th century AD) and other texts. The Manu Smriti (200 BC - 200 AD), a foundational Hindu law text, provides a biological explanation for the three sexes, akin to modern hormone theory. The Puranas contain references to three types of devas associated with music and dance: apsaras (female), gandharvas (male), and kinnars (neuter). The legend of Aravan, the son of Arjuna and Nagakanya in the Mahabharata, is noteworthy. Aravan's condition was to spend his last night in marriage, which was facilitated by Krishna assuming the form of a beautiful woman named Mohini. The Hijras of Tamil Nadu consider Aravan their progenitor and refer to themselves as Aravanis.

During the medieval period, Hijras played a pivotal role in Islamic states, including the Mughal Empire in India. They served as political advisors, administrators, generals, and guardians of harems, leveraging their intelligence, trustworthiness, and fierce loyalty. However, the advent of British colonial rule brought an end to their privileges, and they were subjected to criminalization. The British introduced Section 377 into the Indian Penal Code, criminalizing homosexuality, and enacted the Criminal Tribes Act in order to hinder Hijras' public activities and incarcerate them pointing their potential to commit crimes.

Milestones

As expected, the political, economic, social, and cultural conditions of the transgender community (from here onwards, the word "transgender" includes every group in LGBTQI+) maintained the status quo. "Independence" of 1947 left the group untouched. They were not even recognized, and the plight continued. In 1977, the renowned mathematician Shakuntala Devi wrote about the community in her book "The World of Homosexuality." She urged the decriminalization of IPC 377 and recognition of transgenders as the third gender, thereby rendering full and complete acceptance, not mere tolerance. Unfortunately, the book fell short of gaining the attention of the masses. In 1981, an All-India Hijra Conference was conducted in Agra. Almost fifty thousand transgenders came and stood for their rights. Later, after three years, in 1994, the Election Commission of India granted voting rights to the community.

A pivotal moment was held in 2001 when a non-profit organization in the field of promoting health and well-being of marginalized communities filed a public interest litigation in the Delhi High Court demanding the decriminalization of IPC 377. After eight years of litigation, in 2009, the landmark judgment came in favor of the petitioners, decriminalizing Section 377. The court identified the stringent violation of fundamental rights under Articles 14, 15, and 21. However, the court maintained the status quo of criminalizing sex against minors. The court also rightly upheld the Yogyakarta principles. Yogyakarta principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity.

Alas, this was a short-lived, fleeting success. The Supreme Court, in an appeal filed by Suresh Kumar, set aside the High Court judgment. The two-judge bench proclaimed that changing the law is the role of Parliament. The court stretched limits and recognized the community as a minuscule population. This remark set the stage for heavy criticism, showcasing the narrow-mindedness, poor legal reasoning, and lack of understanding of the LGBTQI+ community.

The case again reached courtrooms in the year 2016. Navtej Singh, a dancer belonging to the LGBTQI community, appealed to the Supreme Court challenging the judgment in Suresh Kumar vs. Naz Foundation. He highlighted that the act hinders his right to sexuality, bodily autonomy, and right to choose sexual partners. The initial three-judge bench, after hearing the petition, transferred the case to a larger five-judge bench considering the scope of the issue. Countering the arguments, the respondents pointed to the prevalence of HIV/AIDS in society and the possibility of its proliferation. They argued that decriminalization can be detrimental to institutions like marriage, which is very sacred in Indian society, and jeopardize religious rights under Article 25. The court, after two years of deliberation, delivered a landmark judgment in 2018 decriminalizing Section 377 again. The judgment banked on the NALSA case and KS Puttaswamy case, both commonly recognized as milestone cases in Indian legal history. The NALSA case, which we will soon discuss, is iconic for identifying transgenders as third genders, and Puttaswamy, famously known as the Aadhar case, for upholding the right to privacy. The court acknowledged the right to privacy even though their population is meager. Chief Justice Dipak Misra resorted to the concept of transformative constitutionalism and quoted that the courts have led society from anarchy to a pragmatic society while fiercely upholding fundamental rights.

The National Legal Services Authority, widely known as NALSA, is a statutory body of India, established on 9 November 1995, under the Legal Services Authorities Act, 1987. One of the primary aims is to make the legal process accessible to the common man. NALSA, along with Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathy, a renowned Hijra activist, approached the Supreme Court in order to recognize transgenders as a gender. The verdict came out from the two-judge bench in 2014, recognizing transgenders as the third gender. It rightly mentioned that the right to choose one's identity is a part of the right to live with dignity, as mentioned in the Constitution.

The court asked the central and state governments to reckon the transgender community as socially and economically backward classes and merge them into the reservation system for public employment and education. Centre and State Governments have been directed to take proper measures to provide medical care to transgender people in hospitals and provide them separate public toilets, and other facilities. Further, they have been directed to operate separate HIV surveillance measures for transgender people. Moreover, governments are bound to create awareness and reduce stigmatization.

Transgender Rights

Constitutional

Impeccable energy and massive dedication to live a life with dignity was the single significant constituent behind the prolonged battle for rights. In that light, the NALSA judgment of 2014 stands as the paramount episode in the history of the transgender community. It bolstered the right of bodily autonomy and scope to identify themselves as whatever sexual orientation they feel. The Preamble of the Constitution vehemently speaks about justice, social, economic, and political. The judgment, along with other mentioned earlier, paved the way to ensure these justices. Article 14 is about the right to equality of persons; here, the word "person" is inclusive, meaning any person with any kind of sexual orientation falls within the frame of the rule of law (the law is supreme and applies equally to all). Article 15 prevents discrimination on the basis of only religion, race, caste, sex, place of birth, or any of them. Now the Constitution provides the guarantee and embraces the right of the community. Article 16 deals with equality of opportunity in matters of public employment, as this article is used to broaden the concept of sex, which includes "Psychological Sex" and gender identity within its ambit. Article 21, which deals with the protection of life and personal liberty, states that no person shall be deprived of their life and personal liberty except according to the procedure of law. For ages, transgender people have been deprived of their life and personal liberty. The transgender, being citizens of India, should have full right to protect their right and personal liberty. The Supreme Court has also recognized the right to dignity by recognizing gender identity within the ambit of Article 21.

The Transgender Person (protection of right) Act

In 2014, Dravida Munnetra Kazhagam Rajya Sabha MP Tiruchi Siva introduced a private member's bill, the Rights of Transgender Persons Bill. The bill achieved an eccentric feat of passing the Rajya Sabha, that too unanimously. It was after a 36-year hiatus that a private member's bill passed the upper house. The bill was welcomed by a large section of the transgender community. But it was superseded by another bill introduced by the government, known as the Rights of Transgender Persons Bill, 2015. However, both bills lapsed with the dissolution of the Lok Sabha in 2019. The bill was reintroduced in 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot. The act has been in effect since 10 January 2020, after a notification of the same in the Gazette by the Ministry of Social Justice and Empowerment. Let us dive into the law - The Transgender Persons (Protection of Rights) Act.

The law describes a transgender person, as someone whose gender does not match the gender assigned to them at birth. It includes intersex people, hijras, jogtas, and kinnars within its definition of transgender people, as well as trans-men, trans-women, and genderqueers, though these latter terms are undefined. Concepts like inclusive education, and person with intersex are defined meticulously in the act for better clarity (Section 2). Discrimination of transgenders in accessing health and educational services, or employment opportunities is curtailed (Section 3). A transgender shall have the right to self-perceived gender identity (Section 4). The law mandates district magistrates to approve identity cards for transgender people upon their application. Also, they are lawful to alter upon a sex affirmation surgery, and gender change. This will help them access welfare measures, and benefits from governments. The act envisages an obligation on governments (central and state), establishments, and educational institutions to act upon the provisions (Sections 8, 10, 13 respectively). A provision for grievance redressal mechanism (Section 11), and national council for transgender people (Section 16) is also mentioned.

The identification as the third gender, and laws followed by that has delivered marital rights to the community. They also have the right to property. The act pushes its limits, and provides protection to transgender individuals from family violence, including forced dispossession of property. While the act triumphs in defining transgenders, and offering provisions for their empowerment, lacunae still persist. The act's implementation remains incomplete, and several concerns need to be addressed to ensure the comprehensive enhancement of the transgender community, which we will discuss elaborately in the issues part.

Other actions for uplifting community

The transgender community in India has now transformed into a vibrant society thanks to will and passion. The adventurous journey has helped in creating a more friendly ecosystem currently. It's also because of the reciprocity of state mechanisms forboth  judciial actism and community demands. Central and state governments, NGOs, CSOs, private firms - all are putting efforts to make our surroundings an inclusive one. Let us look into some of the initiatives of these stakeholders that have helped in abating challenges faced by community members. Albeit the apex court asked to provide reservation, Karnataka is the only state to achieve this feat. The state offers 1% horizontal reservation for transgenders in government jobs. This can reduce social hindrances and aid educated people inside the community. Madras High Court has suggested similar action to the Tamil Nadu state government; hope that will be accomplished. Tamil Nadu government has calibrated words to address different sections inside the transgender community. The plight to face obscene words and derogatory language was not an uncommon thing for the community. The glossary includes terms such as 'Paal Puthumaiyar' (queer), 'Thirunangai' (transgender woman), 'Thirunambi' (transgender man), 'Oodupal' (intersex), and several others. This practice complies with the International Labour Organization's demand to end discrimination and frame specific policies. In 2022, the National Medical Commission declared conversion therapy illegal, subsequent to the Madras High Court recognizing it as misconduct. Conversion therapy is the pseudoscientific practice of attempting to change an individual's sexual orientation, gender identity, or gender expression to align with heterosexual and cisgender norms. United Nations experts identify the therapy as the fulcrum of mental health issues.

NGOs across the country are working relentlessly for ameliorating the situation of the transgender community in different domains, including education, health, and entrepreneurship. Sahodari Foundation, a Chennai-based NGO, has built a matrimonial site exclusively for transgender people. Doubtless, this can hamper the growth of discrimination in virtual platforms. Best Practice Foundation, a city-centric foundation in Karnataka, is offering training programs to enhance skills to get into entrepreneurship. TATA, one of the corporate giants, is building a transgender-friendly world in their offices. They have created special wings to deal with the community and also meet expenses for medical issues, including gender affirmation surgeries. Kerala, a state always exalted for its social initiatives, is not behind in rooting and building a robust ecosystem for the transgender community. Some of the initiatives are gender-neutral toilets inside university campuses, gender-neutral uniforms, skill development classes, and reservation in Kochi Metro employment.

Impediments to growth

Albeit we have progressed as a society, and have become more inclusive than ever, not everything sounds good. The judgments, laws, provisions, and executive actions all acquiesce to conservative norms. The shibboleths, which we are trying to break, seem like regaining momentum. The Transgender Persons Protection of Rights, made exclusively for the betterment of the community itself, has serious drawbacks. Even when it is regarded as a comprehensive work, the drawbacks unveil the areas left unaddressed. Section 18 of the act speaks about the offices and penalties for committing crimes against transgenders. A sexual abuse on a transgender can range from 6 months to 2 years imprisonment, whilst the same offense against a woman can achieve more than 7 years of imprisonment, and even the death penalty if it qualifies as the rarest of rare cases (Bachan Singh vs State of Punjab). Also, the act keeps radio silence on rape against transgenders, who are very vulnerable and are often shelterless. Here we miss intelligible differentia, leading to a clear violation of constitutional rights.

Even when transgender marriage is legal, same-sex marriages aren't. Lesbians, gays, and others are urging for a nod from the judiciary. They ask to accept their marriages under the Special Marriage Act, of 1954. Unfortunately, the court has passed the ball to parliament, pointing out that it needs amendments, and it is the sole body to do that. Despite that, the Madras High Court has proposed a concept of a deed of familial association, which is similar to a civil union. For same-sex couples, the legitimacy to form a civil union is enough, because the majority of them don't consider marriage a sacred institution, and moreover, the right to adopt, property rights, medical benefits, etc., will be covered in a civil union.

Conclusion

Many classic issues, like rejection from jobs, forced labor, low wages, violence, mental health, and societal stigma, still continue. It seems no matter how meticulously a law is made, at the end of the day, it is the society who has to respond humanely. The best solution is to generate awareness among the public, and most importantly, children. People from the transgender community also share similar thoughts. The growing minds of India have to be socially responsible, humane, and inclusive. Stakeholders have to burgeon efforts to educate children in schools, and colleges, campaigning, workshops, and seminars have to be conducted to disseminate awareness about both science and laws.

As the world's largest democracy, we are seeing ourselves as a Vishwaguru, leader of the global south. So it is binding upon us to build an inclusive world, else will ruin our global image. Additionally, we also possess a demographic dividend, where the lion's share of the population belongs to the working age (15-59), and aims to achieve a 5 trillion economy in the near future. In the period of Amrit Kaal, we cannot tolerate hate among the community. So it is indispensable for us to include the transgender community in this journey, who are core human resources.

References

1. Press Information Bureau
2. PRS legislative research
3. The History of the LGBTQ+ Movement in India -  English Press Club
4. Demography India Vol. 52, No. 2 (2023) - A Snapshot of Transgender Community in India Neethu Mohan Naik1*, Shivani Gharge2 and Sayeed Unisa
5. Times of India
6. World Health Organisation
7. Sansad TV Yotube
8. TATA official site