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.
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
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:
- 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.
- 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.
- Article 15
No discrimination on the basis of race, caste, sex or religion also applies to
the transgender person.
- 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.
- 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:
- The Vague Two Step process:
The proposed Act, which instructs the third gender people to undergo the
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:
to self-determination without any Medical certificate or sex re assignment
surgery was indicated by the Supreme Court.
- 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.
- 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
- 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.
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:
- 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
- To be a resident of an area for one year by the time of submitting the
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.
- 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
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.
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.