Some people feel that the sex they were assigned at birth doesnï¿½t match their
gender identity or the gender that they feel they are inside.
These people are
often called transgender. Transgender is a term that includes the many ways that
peopleï¿½s gender identities can be different from the sex they were assigned at
birth. There are a lot of different terms transgender people use to describe
themselves. For example, sometimes the word transgender is shortened to just
trans, trans, or trans male/trans female. Itï¿½s always best to use the language
and labels that the person prefers.
Transgender people express their gender
identities in many different ways. Some people use their dress, behavior, and
mannerisms to live as the gender that feels right for them. Some people take
hormones and may have surgery to change their body so it matches their gender
identity. Some transgender people reject the traditional understanding of gender
as divided between just male and female, so they identify just as
transgender, or genderqueer, gender fluid, or something else.
Transgender people are diverse in their gender identities (the way you feel on
the inside), gender expressions (the way you dress and act), and sexual
orientations (the people youï¿½re attracted to). When peopleï¿½s assigned sex and
gender identity are the same, they're called cisgender.
Gender Dysphoria: Gender dysphoria is a term that psychologists and doctors use
to describe the distress, unhappiness, and anxiety that transgender people may
feel about the mismatch between their bodies and their gender identity. A person
may be formally diagnosed with gender dysphoria to receive medical treatment to
help them transition. Psychologists used to call this gender identity
disorder. However, the mismatch between a personï¿½s body and gender identity
isnï¿½t in itself a mental illness (but it can cause emotional distress), so the
term was changed to reflect that.
Transgender Identity Different From Sexual Orientation: People often confuse
gender identity with sexual orientation. But being transgender isnï¿½t the same
thing as being lesbian, gay, or bisexual. Gender identity, whether transgender
or cisgender, is about who you are inside as male, female, both, or none of
Being lesbian, gay, bisexual, or straight describes who youï¿½re attracted
to and who you feel drawn to romantically, emotionally, and sexually. A
transgender person can be gay, lesbian, straight, or bisexual, just like someone
whoï¿½s cisgender. A simple way to think about it is: Sexual orientation is about
who you want to be with. Gender identity is about who you are?
Concept of Passing: Passing describes the experience of a transgender person
being seen by others as the gender they want to be seen as. An example would be
a trans woman using the womenï¿½s bathroom and being seen as female by those
around her. Passing is extremely important for many transgender people. Passing
can be emotionally important because it affirms your gender identity. Passing
can also provide safety from harassment and violence.
Because of transphobia,
a transgender person who passes may experience an easier time moving through the
world than a person who is known to be transgender or looks more
androgynous. But not all transgender people feel the same way about passing.
While passing is important to some people, others feel the word suggests that
some peopleï¿½s gender presentation isnï¿½t as real as others. They may feel that
passing implies that being seen by others as cisgender is more important than
being known as transgender. Some transgender people are comfortable with and
proud to be out as trans and donï¿½t feel the need to pass as a cisgender person.
The hijra community is scattered all over India and the majority of them are
found in the Western and North Indian states though some live in few south
Indian states also. A large number of hijra population lives in Western and
North Indian states as compared to southern India due to the availability of
livelihood sources. Livelihood is one of the main reasons for migration from
southern India to other Indian states.
Hijras migrate from smaller towns to a
larger metropolis in search of their identity and to escape from their families.
They are forced to leave the house resulting in expulsion from property rights
and other family entitlements. In the absence of family support, many hijras
join the hijra community for security. Hijras perform rituals like childbirth
and marriages. People believe that hijras have the power to bless or curse
because of their religious-cultural background.
This is the primary reason for
people to become hijra-phobic (transphobia) and the ambiguous sex/gender of a
hijra is another confusion that leads to stigma, discrimination, and denial of
rights at various levels. Sometimes hijras/transgenders are booked under Section
268 IPC (causing a public nuisance) or under Section 294 (Obscene acts and
songs). The complaint is also registered under Section 269 and 270 Act (likely
to spread infection), or under the Bombay Police Act, 1951.
Kinnars are booked
under the public nuisance (Sections 268 and 290 IPC) and Sections 7 and 8 of the
Immoral Traffic (Prevention) Act of 1956 and these criminalize hijras soliciting
having sex in public places and not under Section 377. There is no stringent
action taken against rape on transgenders and many of these sexual assaults go
unreported and unaccounted for. The HIV/ AIDS intervention programs have opened
spaces for hijras, aravanis, and transgenders to work in NGOs and CBOs on HIV/
AIDS and transgender rights issues.
The UNDP (2010) report highlights that
skilled transgenders are denied employment opportunities because of their
transgender status. However, there are examples of a few transgenders who have
had created an impact through media activism. Not only socio-economic problems,
but hijras also face problems in exercising their citizenship rights. Though
hijras have contested and have had won local, state, and national elections and
were Mayors and MLAs, in the absence of a national policy, they do not enjoy
basic fundamental rights.
Moreover, those contested in elections in the woman
category were turned down on the basis that they were not biological females. Kamla Jaan was elected as the first mayor of Katni, Madhya Pradesh. She resumed
her position in the year 2000 but gave up in the year 2003. The reason was that
the political opposition filed a petition at a lower court, and then later at
the Jabalpur High Court stating that Kamla Jaan had lied about her gender.
opposition won the case stating that the election had been illegal. Here the
binary position of the body was brought into question and it was set as a
parameter for eligibility to contest and take part in the election. The body
became problematic because of its gender non-conformity, and it was excluded
from a political process which is one of the political rights of an Indian
Some basic rights denied to hijras include ration (family) card, Right
to vote, right to marriage, child adoption, opening a bank account, and many
other fundamental (transgender) rights. Some of the legal issues faced by
transgenders in India such as legal recognition of their gender identity
(difficulty in getting legal recognition as a woman or a transgender woman),
inheritance, wills and trusts, immigration status, employment discrimination,
and access to public and private health benefits.
The change of name and gender
on the credentials is also an issue. The sex assigned at birth mentioned on
their birth certificate and another school/ college documents do not match with
the gender identity and hence transgenders are denied admission in colleges for
higher education. However, the child adoption procedure for hijras is not clear.
The adopted children address them as mother or aunt or by any other.
face physical and sexual violence from police and local hoodlums/ extortionists
due to the nature of their work. Hijras are harassed by police in many ways and
many of these go unreported as they fear that their complaint will be seen as a
false story. There are incidents of gang rape and domestic violence, clients
force aravani sex workers for unprotected sex and some physically assault them
after the sex act. Many of these violent episodes and violations of transgender
rights go unreported and right to maintenance also.
Transgender Rights In India: Preamble to the Constitution mandates Justice -
social, economic, and political equality of status. Thus the first and foremost
right that they are deserving of is the right to equality under Article 14 and
Article 15 speaks about the prohibition of discrimination on the ground of
religion, race, caste, sex, or place of birth. Article 21 ensures the right to
privacy and personal dignity to all citizens.
Article 23 prohibits trafficking
in human beings as beggars and other similar forms of forced labour and any
contravention of these provisions shall be an offence punishable following the
law. The Constitution provides for the fundamental right to equality and
tolerates no discrimination on the grounds of sex, caste, creed, or religion.
The Constitution also guarantees political rights and other benefits to every
But the third community (transgenders) continues to be ostracized. The
Constitution affirms equality in all spheres but the moot question is whether it
is being applied. As per the Constitution, most of the protections under the
Fundamental Rights Chapter are available to all persons with some rights being
restricted to only citizens. Beyond this categorization, the Constitution makes
no further distinction among rights holders.
But official identity papers
provide civil personhood. Among the instruments by which the Indian state
defines civil personhood, sexual (gender) identity is a crucial and unavoidable
category. Identification based on sex within males and females is a crucial
component of civil identity as required by the Indian state.
The Indian state's
policy of recognizing only two sexes and refusing to recognize hijras as women,
or as third sex (if a hijra wants it), has deprived them at a stroke of several
rights that Indian citizens take for granted. These rights include the right to
vote, the right to own property, the right to marry, the right to claim a formal
identity through a passport and a ration card, a driver's license, the right to
education, employment, health so on. Such deprivation secludes hijras from the
very fabric of Indian civil society.
Problems Faced By Transgender:
The main problems that are being faced by the
transgender community are discrimination, unemployment, lack of educational
facilities, homelessness, and lack of medical facilities: like HIV care and
hygiene, depression, hormone pill abuse, tobacco and alcohol abuse, penectomy,
and problems related to marriage and adoption. In 1994, transgender persons got
the voting right but the task of issuing them voter identity cards got caught up
in the male or female question.
Several of them were denied cards with the
sexual category of their choice. The other fields where this community feels
neglected are the inheritance of property or the adoption of a child. They are
often pushed to the periphery as social outcastes and many may end up begging
and dancing. This is, by all means, human trafficking. Transgenders have very
limited employment opportunities. Transgenders have no access to
bathrooms/toilets and public spaces.
The lack of access to bathrooms and public
spaces access is illustrative of discrimination faced by transgenders in
availing each facility and amenities. They face similar problems in prisons,
hospitals, and schools. Most families do not accept if their male child starts
behaving in ways that are considered feminine or inappropriate to the expected
gender role. Consequently, family members may threaten, scold or even assault
their son/sibling from behaving or dressing up like a girl or woman.
parents may outright disown and evict their child for crossing the prescribed
gender norms of society and for not fulfilling the roles expected from a male
child. Parents may provide several reasons for doing so: bringing disgrace and
shame to the family; diminished chances of their child getting married to a
woman in the future and thus end of their generation (if they have only one male
child); and perceived inability on the part of their child to take care of the
family. Thus, later transgender women may find it difficult even to claim their
share of the property or inherit what would be lawfully theirs.
child or teenager may decide to run away from the family not able to tolerate
the discrimination or not wanting to bring shame to one's family. Some of them
may eventually find their way to Hijra communities. This means many Hijras are
not educated or uneducated and consequently find it difficult to get jobs.
Moreover, it is hard to find people who employ Hijras/TG people. Some members of
society ridicule gender-variant people for being 'different' and they may even
be hostile. Even from police, they face physical and verbal abuse, forced sex,
extortion of money and materials; and arrests on false allegations. The absence
of protection from police means ruffians find Hijras/TG people as easy targets
for extorting money and as sexual objects.
Indian courts have long held that trans people deserve the governmentï¿½s
recognition on their terms, without mandatory intervention or discrimination.
In 2014, the Indian Supreme Court in NALSA v. India
ruled that transgender
people should be recognized as a third gender and enjoy all fundamental rights,
while also being entitled to specific benefits in education and employment.
Justice K.S. Radhakrishnan, writing for the bench, ordered that Transgender
personsï¿½ right to decide their self-identified gender should be recognized by
state and federal authorities. The court made clear that any insistence for [sex
reassignment surgery] for declaring oneï¿½s gender is immoral and illegal.
A Delhi High Court ruling in October 2015 laid out the intrinsic link between
the right to legal gender recognition and other rights. Affirming a 19-year-old
transgender manï¿½s right to recourse against harassment by his parents and the
police, Justice Siddharth Mridul wrote:
A transgender [personï¿½s] sense or experience of gender is integral to their core
personality and sense of being. Insofar as I understand the law, everyone has a
fundamental right to be recognized in their chosen gender.
Section 377: Navtej Singh Johar vs. Union of India:
The judgment contradicts
the findings of the Supreme Court in the Suresh Kumar Koushal case
ways. The main points include:
- The judgment notes that Section 377, though associated with specific
sexual acts, highlighted certain identities, including Hijras. It also
recognizes that sec 377 has been used as an instrument of harassment and
physical abuse against Hijras and transgender persons. The judgment only
says that this amounts to a misuse of the Section as opposed to what it
dictates, thus refusing to meaningfully apply a fundamental rights analysis
to it. Now we have a contradictory finding.
- It argues against Koushal's infamous ï¿½minuscule minorityï¿½ argument noting
that Transgenders, even though insignificant in numbers, are still human beings
and therefore they have every right to enjoy their human rights.
- The Court finds that discrimination on grounds of sexual orientation and
gender identity violates Article 14 and that transgenders are extremely
vulnerable to harassment, violence, and sexual assault in public spaces, at
home, and in jail, also by the police. If we are to read this with their finding
that 377 is used to harass and physically abuse transgender persons, we can link
that 377 fails the test of equality under the Constitution.
The recommended inputs given by the Supreme Court in Navtej Singh
Johar vs. Union of India are aimed to strengthen the Indian Stateï¿½s provisions
and commitments and ensure through special measures and safeguards these rights
and universal entitlements for the most marginalized and vulnerable people
residing within the jurisdiction of the Indian State especially Transgender.
- Tapasya, What Does Indiaï¿½s Transgender Community Want? A new law
presents challenges for Indiaï¿½s transgender communities. January 09,
- Kyle Knight, Indiaï¿½s Transgender Rights Law Isnï¿½t Worth
- S.N.Mishra, Indian Penal Code, (Central LawPublications,.19thEdition,2007).
- Prof. Narender Kumar, Constitution of India, (Allahabad Law Agency,
Haryana,11th Edn., 2011).