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Transgender Rights - The Long Cry

The Long Cry
The Gender inequality is one such brutal happening around the world. If something is far more brutal than this, a gender which is not accepted. The third gender/transgender/ LGBT Community were after many years of struggle they have gained their rights in several parts of the world and India is no exception to it.

India has decriminalized Section 377 of Indian Penal code very recently and in a long run even before the LGBT cries were heard, transgender community has been weeping for number of years whereas, in case of Lesbian or gay they don't undergo any physical changes or bodily changes and have choices and are free to choose, but trans-community has left their choices with the nature, this nature's surprise has shooked many parents who are not ready to accept the fact due to the fear they hold for the society, societal respect, reputation and eventually led to the breakdown of many families.

Physical challenges (bodily changes) on one hand and societal challenges (discrimination) on the other hand, some has ended their life while some took the wrong path for their survival but many with a ray of hope started to fight for their rights. After many protests and struggles, Indian Government has recognized the struggles faced by the Transgender community in a Judgement by Supreme Court in the year 2014.

National Legal Service Authority (NALSA) V. Union Of India
(AIR 2014 SC 1863)
Many general public has applauded the judgement for its progressive stand on 'self-determination of gender' and many progressive stand points opting out for the welfare of the transgender community.

This case was filed for the purpose of recognizing persons who fall outside the Male/Female category and recognise the third gender and give them equal opportunity and rights. Supreme Court has recognised that:
The transgender persons are entitled to find rights under the constitution as well as the International law.

The court has also directed the State Government's to develop mechanisms and schemes to realize the rights of the third gender and programme in order to educate people regarding the third gender rights. In addition to that, the court observed that the 'Self Identity' of the third gender which ultimately refers to the Innate perception of one's gender description and not by any other means. Which in turn points out that Medical Examination or biological test should not be done in order to determine the identity of the gender as such tests would violate the right to privacy.

The judgement which has marked the major fundamental rights of the transgender person which they are deprived of while delivering the judgement are as follows:
  1. Article 14
    The Right to equality, which is the most basic fundamental right which the transgender people are deprived for many years as they are all have been discriminated for what they are, by the general public should stop.
  2. Article 19(1)(a)
    Right to freedom of speech and Expression, which the court observed that like any other gender, transgender persons do have the right to express their gender through dress, action or behaviour.
  3. Article 15
    No discrimination on the basis of race, caste, sex or religion also applies to the transgender person.
  4. Article 21
    Right to live with dignity which comes under the purview of Right to life, the fundamental right which in practical mode of life we have witnessed many third gender persons were not treated in a dignified way at public places. In order to make it practically possible, court has passed certain guidelines to the respective State Government's.
  5. Yogyakarta Principle (2006) – which talks about the third gender equality, Human rights, freedom and liberty and protection of rights. Should be incorporated and considered while drafting any policy for Transgender community or third gender persons, as directed by the Supreme Court of India.

The major practical problems faced by the third gender persons which include the Recognition of third gender in Documents and Recognising the third gender in Reservations in Education and Employment and Rest room facilities in establishment (the Triple 'R' Demand). In this regard, the Supreme Court has observed that 'the recognition in the documents for third gender and reservations to be made', directed to the State Government.

Adding to it, the implementation of Welfare schemes has been directed by the court in order to improve their standard of living.

This Landmark judgement has paved its way for the separate Act, Transgender persons (Protection of Rights) Act, 2019 for the protection of the rights and improving their standard of living by incorporating the guidelines of Supreme Court provided in the judgement. The Act was much expected but it turned out to be a nightmare leaving the transgender community in agony and fear. As the proposed legislation had many flaws and which seems to add burden to the heads instead of helping them.

Proposed Legislation, 2019 –The Flaws:

  1. The Vague Two Step process:
    The proposed Act, which instructs the third gender people to undergo the following steps:
    Step 1- Apply for the Certificate and in case of change in gender apply separately the revised gender certificate to the District Magistrate.
    Step 2- Submitting the surgery proof with the District Magistrate and if the Magistrate is satisfied with the correction of certificate then, then 'certificate of identity' may be granted.
    Which turns out to be the worst nightmare, where previously the affidavit statement was enough and now this Two Step vague process that literally makes all of us feel why should they be suppressed with procedures to tell their natural identity? And this is a pure violation of the NALSA Judgement as:
    right to self-determination without any Medical certificate or sex re assignment surgery was indicated by the Supreme Court.
  2. Silent on defining Sexual Offences:
    While the Legislation makes 'sexual abuse' punishable up to 2 years of Imprisonment, the definition for the 'sexual offences' in context with transgender remains silent. This builds a gap in the legislation.
  3. No punishment for Rape of a transgender:
    The punishment for rape and sexual assault under section 375 and 376 which in turns speaks that rape only when man abuses or enters a Women. Here again a gap has been built that punishment for rape of a transgender was not taken into consideration.
  4. No Reservation in Education and Employment opportunities:
    With education and employment opportunities provided any person can improve their standard of living and transgender are no exception to it. And this important aspect has been dealt in the judgement yet, the Act failed to cover the reservation of Transgender.

This Act was criticised by Human Rights Watch and International Community of Jurists. On 27 January 2020, Supreme Court issued notice to the Central Government to respond to the petition challenging 2019 Legislation filed by Swati Bidhan Baruah, the first transgender Judge of Assam. On 12 June 2020, Supreme Court issued notice to the Central Government in another petition filed challenging the Legislation 2019.

The New Draft:
Transgender Persons (Protection of Rights) Rules, 2020 was published recently that highlighted some good points that without any medical examination or tests the certificate of Identity will be provided by the District Magistrate but demanding the report of Psychologist.

And additionally, safe and free gender affirming surgery will be provided under welfare scheme. Gender affirmation as per the Supreme Court should be a self-determination or affirmation and no medical examination or tests to be conducted as it violates the fundamental right, the right to privacy enshrined in the constitution.

The New Draft, 2020 – flaws:
  1. Report of Psychologist:
    The identity certificate will be provided after the submission of the report of the psychologist. Which adds burden to the heads, as it is in contrast to the Supreme Court judgement which elaborated the concept of self-determination of gender
  2. To be a resident of an area for one year by the time of submitting the application:
    Transgender people are more often to be seen without proper basic amenities to live as they are neglected by the society while some 10% will be an exemption. They are found homeless and most of them travel and reside in various parts of the country in order to survive. This demand by the draft will not ease their pain but cause more damage.
  3. Separate wash room for transgender people in a Establishment- but what is an establishment?
    Establishment which includes many but the draft does not define 'establishment' which leaves a gap and option for the people not to follow this clause. While separate wash rooms in public places are more demanded but not included in the draft.
These are some of the major flaws from the New draft while, there are progressive elements added in this Rules, 2020 which includes the social security, non- discrimination, education and equal opportunities in Employment. But, the transgender people are demanding their rights and not charity. So, providing them with some 50% of goodness and asking them to manage and survive with that is more brutal.

The most important aspect like Reservation, Punishment for rape, assault, abuse, discrimination of transgender, recognition in Documents and restroom facilities could have been more clear and to be given more importance as they are the basic requirement and demands of them for number of years. After so many years, the Supreme Court judgement was a 'Ray of Hope' for them. But, the Old and the new draft left them in vain.

Transgender people form a part of this society and their development will form a part of nation's development. Their demands are to be taken seriously and legislation to be made effectively considering their needs, improvement in the standard of living, protection of their rights and life, their dignity rather than making a blind legislation. This world will be a better place to live in, if everyone is treated equally without any differences.

Written By: S.R. Femina B.Com, BL (Hons), Asst. Executive (Legal-IPR), National Biodiversity Authority, India.

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