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Transgender rights regime in India

On 25th September 2020 the Central government notified the Transgender Persons (Protection of Rights) Rules, 2020. The following article summarises the Transgender Rights regime in India.

The Transgender community in India includes hijras, eunuchs, Jogtas, Jogappas, Shiv Shakthis, etc. Transgender is an umbrella term to recognize persons whose gender identity, gender expression, and behaviour do not conform to their biological sex. Hijras are not men by appearance and psychologically, but they are not women too. They do not have any reproduction or menstruation organ biologically provided to the females. The term also includes the people who intend to or have undergone sex reassignment surgery (SRS) which are also known as Trans-sexual persons. The term transgenders have a broad connotation including post-operative, pre-operative individuals but not limited to this.

Historical background of Transgenders in India [1]

The Transgender community finds a substantial presence in ancient Hindu mythological and other religious texts. The Indian Mythological epic "Mahabharatha" (Around 3000 BC) suggests the presence of a trans man named Shikhandi. Another such Hindu text named Ramayana (Around 5000 B.C.), suggests that Transgenders were an integral part of followers of Lord Rama. The Jain texts also mention the concept of 'psychological sex'. Transgenders also played a part in the royal courts of the Mughal empire in medieval India.

Transgenders have played a notable role in world history but the scenario changed during the colonial rule. The British government passed an Act named Criminal Tribes Act, 1871 to regulate the conduct of the transgender community in India. The Act termed the hijras as an inherently criminal tribe. It labeled the transgender community under the term 'eunuchs' and also classified it in two categories i.e. respectable eunuchs and suspicious eunuchs. The Act also warned that if any eunuch was found doing traditional activities of the hijra community like public dancing or dressing in women's clothing will be arrested or will be charged with a fine. The Act also mandated the registration and surveillance of the transgender community. This Act was later repealed post-Independence.

Recent Legal Developments in India

National Legal Services Authority v. Union of India and others [2]

This turned out to be a remarkable judgment for the fate of 4.88 lakhs transgenders in India (Census 2011). This judgment was delivered by a two-judge bench including Justice K.S.P. Radhakrishnan and Justice A.K. Sikri.

The writ petition was filed by the transgender community seeking recognition of their right to choose their gender identity other than provided to them. The petitioners submitted that the non-recognition of their right to choose the gender was a violation of their rights under Article 14 and 21 of the Constitution. They contended that the right to choose gender is an indispensable part of the Right to live with dignity provided under the ambit of Article 21 of the Constitution. They also prayed that transgenders should be recognized as a 'third gender' and that they should be provided all the legal and constitutional protections.

The Court explained that Articles 14,15,16,19, and 21 do not exclude transgenders. But on the other hand, Indian law recognizes binary gender based on the 'Biological test'. The court stated that we would rather accept the psychological test to recognize genders.

The court allowing the petition declared that transgenders should be treated as the 'third gender' to protect their rights under Part III of the Constitution. Recognizing the right of transgenders to self-identified genders, the court directed the Central and the State Governments to grant them legal recognition. The court also directed the governments to grant them the status of Socially backward classes and also provide them essential reservations in educational institutions and employment. Realizing the social issues faced by the transgender community the court asked the Central and the State Government to address the problems faced by Transgenders like social stigma, gender dysphoria, social pressure, shame, etc., and to create social awareness about the Transgenders.

Transgender Persons (Protection of Rights) Act, 2019 [3]

The Indian Parliament passed the Transgender Persons (Protection of Rights) Bill, 2019 on 26th November 2019 and received the assent of the President on the 5th December 2019. The object of the Act is to ensure the protection of rights of transgender persons and their welfare. Section 3 of the Act prohibits discrimination against transgender persons on various grounds. The Act provides the right to self-perceived gender identity.

Criticisms of the Act by Activists

  • The Act requires a person to obtain a certificate from a District Magistrate to change the proof of gender in documents after proof of sex reassignment surgery is provided.
  • The Act criminalizes begging but does not provide reservations for employment or education.
  • The Act does not talk much about intersex, gender-queer, and transmen.

Transgender Persons (Protection of Rights) Rules, 2020[4]

On 13th July 2020, the Central Government of India published the draft of Transgender Persons (Protection of Rights) Rules, 2020 under section 22 of the Transgender Persons (Protection of Rights) Act, 2019. Later on 25th September 2020, The central government notified the Transgender Persons (Protection of Rights) Rules, 2020. The rules provide a procedure to apply for the certificate of identity under section 5 of the Act. It also provides for the procedure of change in gender application under rules 6 and 7.

It also directs the educational institutions to constitute a committee for redressal of complaints of discrimination with transgenders in the respective educational institutions.

Conclusion
Though India is trying to make efforts for the overall development of the transgender community, the major issue is the lack of acceptance by our society. The transgenders not only are a victim of legal issues but also face social boycott and stigmas. They are not allowed to be a part of society. Any major legal changes are welcomed but they will not affect unless society changes its view and accepts the transgender community. The main focus should be on the social inclusion of the transgender community in educational institutions and provide them with various employment opportunities.

End-Notes:
  1. https://en.wikipedia.org/wiki/Transgender_history#:~:text=Indian%20texts%20from%20as%20early,Indian%20subcontinent%20since%20ancient%20times.
  2. National Legal Services Authority v. Union of India and others - (2014) 5 SCC 438
  3. Transgender Persons (Protection of Rights) Act, 2019-http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf
  4. Transgender Persons (Protection of Rights) Rules, 2020- http://socialjustice.nic.in/writereaddata/UploadFile/draftrule1604.pdf

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