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Rights Of Transgender People

I am who I am, so take me as I am. - Johann Wolfgang von Goethe

A person's identity is their most prized treasure. Gender minorities are frequently denied even the most basic of rights, most notably in India. As a result, transgender people are severely stigmatized. Transgender persons in India endure desertion, abuse, discrimination, education, work, housing, and other basic necessities. The law is designed to protect everyone's rights, especially vulnerable groups like transgender individuals in India.

Transexuals (Protection of Rights) Act 2019 has failed transgenders. This study's goal is to discover how transgender individuals in India become a defenseless group. It will explore the previous legal history of transgender rights, and then evaluate the Act in depth, identifying loopholes that will allow the state to quickly address the problem.

A person who is recognized as transgender has the right to self-perceived gender identity under the law. A transgender person must get a Transgender Identity Certificate to establish their gender identity. Individuals who identify as transgender are those whose gender identification is discordant with or not culturally associated to the sex to which they are assigned.

When a child is born, the gender role and social position associated with that sex are established. This means that they may have obtained or be striving to attain new gender status that is consistent with their gender identity. We are all aware that everyone is unique, yet we also recognize that we are all alike. Consequently, we should embrace each individual's individuality, changeability, and gender identification.

After years of persecution, rejection by their families, and social discrimination, it is time for these people to be treated as normal members of society. They should be made aware of them and urged to support them. Allow these wonderful individuals to penetrate your thoughts and emotions.

Transgender individuals identify with or express themselves differently from their biological sex. Transsexuals that want medical gender transformation are not always transgender. Transgender individuals are not binary. Transgender is sometimes referred to as a third gender. Crossdressers Certainly not homosexual. Individuals that identify as lesbian, gay, bisexual, or transgender may (straight).

There are no conventional binary concepts of male or female bodies in this work. Transgender people are cisgender. Acceptance of one's genuine identity is referred to as transgender congruence. Gender dysphoria is treatable with medication. Others decline or are unable to pay. Transgender people face discrimination at employment, in the community, and in healthcare. They are defended by no nation.

Gender, Sex, Sexuality And Sexual Orientation

  1. Sex:
    Sex as a verb is widespread. In general, a person's outward genitalia and reproductive organs define their biological sex. Male and female are the two sexes, according to popular view. However, external genitalia usually determine rather than reproductive organs. Intersex persons frequently have unnecessary "corrective" surgery as children.
     
  2. Gender:
    Sex and gender are often confused. Assigning specific gender traits to each sex Gender is a social construct, whereas sex is biological. What an individual self-identifies as gender, independent of sex, such as a man who self-identifies as a woman.
     
  3. Sexuality:
    While gender describes how an individual feels about themselves, sexuality describes how they feel about others. It is the person I am pulled to. A person may also lack sexual and/or romantic interest.
     
  4. Sexual Orientation:
    Sexual attraction is a term that encompasses physical, emotional/romantic, and spiritual allure. Sexual orientation is comprised of three critical components. It is divided into three sections: identity (I am homosexual), behavior (I have sexual relations with people of the same gender), and attraction (I am sexually attracted to the same gender).

Understanding LGBTQIA+

An acronym that is always developing and evolving is used in the field of LGBTQIA+. It's a broad phrase that includes people of different genders and sexual orientations, such as lesbians, gay men, bisexuals, transgender people, questioning persons, queers, intersex people, asexual, pansexual, and allies. Several terms related to the acronym have been defined here. Please keep in mind that gender and sexual identities change all the time, and this is not an exhaustive list of all potential combinations. Changes or alternate definitions for concepts that have been published in various places may also exist.

A transgender person is someone whose gender does not match the gender assigned at birth, according to the Transgender Persons (Protection of Rights) Bill, 2019. It includes transgender men and women, those with intersex variations, genderqueers, and individuals with socio-cultural identities such as kinnar and hijra. Intersex variations are characterized as individuals who are born with primary sexual characteristics, external genitalia, chromosomes, or hormones that differ from the typical male or female body standard.
  • Lesbian:
    A woman who is attracted to other women. Some lesbians prefer to refer to themselves as gay (adj.) or as gay woman rather than lesbian.
     
  • Gay:
    Attracted to folks who are the same gender as you. People with uncertain sexual orientation may also use this phrase as an umbrella term.
     
  • Bisexual:
    Attracted to the same gender on a personal level It has also been used by those who are unsure of their sexual orientation to refer to themselves as LGBTQIA members.
     
  • Transgender:
    Individuals whose gender identity and/or gender expression differs from the sex assigned at birth are referred to as transgender, transsexual, or genderqueer. People who identify as trans may go by many different names, including transgender.
     
  • Queer:
    This adjective is also used by those whose sexual orientation is not completely heterosexual. LGBTQ people who are assigned female at birth, but who self-identify as gay, lesbian, or bisexual may see the labels "lesbian," "gay," and "bisexual" as restrictive and/or burdened with cultural connotations that they believe do not apply to them. Even among the LGBTQ community, it is not universally accepted as a word.
     
  • Questioning:
    Questioning is sometimes represented by the Q at the end of LGBT. A person who is questioning their sexual orientation or gender identity is referred to as a questioning gender identity person.

Tracing The Legal Battle
Important Judgements:
Significant Judgments: Prior to British dominance, sexual fluidity was the norm in India, as evidenced by a plethora of famous figures. After it, the legalization of homosexuality began. This Act was replaced by the 1828 and 1861 Offences Against Person Acts. These Acts retained sodomy as a crime but commuted the former death penalty to ten years in prison.

Section 377 of the Indian Penal Code was influenced by these outmoded laws.

Section 377 of the IPC was enacted by the British colonial authorities, criminalizing all non-procreative sexual behavior. The dictatorial regulation was directed not only at homosexuals, but also at any non-traditional sexual relationships, including those between heterosexual couples. With the evolution of society's consciousness, the necessity for modification of the outdated regulations controlling gay behavior became apparent.

As a result, we've compiled a list of the most notable rulings:
  1. AIDS Vedbhav Vidrohi Andolan v. Union of India (1994): The first petition against Section 377 was filed in the Delhi High Court in May 1994 by AIDS Bhedbhav Virodhi Andolan (ABVA). The petition stemmed from an incident at Tihar Jail in which Kiran Bedi, then-Superintendent, refused to provide condoms to convicts invoking Section 377. In response, ABVA filed a writ petition in the Delhi High Court seeking the abolition of Section 377 and the provision of free condoms in jails. However, ABVA did not file a petition in court in 2001, and the case was dismissed.
     
  2. Naz Foundation v. Govt. of NCT & Ors. (2009): In December 2001, the Delhi-based NGO Naz Foundation filed a Public Interest Litigation (PIL) challenging Section 377's legitimacy and lobbying for homosexuality's legalization. According to the petitioner, Section 377 of the IPC breaches the fundamental rights to life, liberty, privacy, dignity, health, equality, and freedom of expression. Additionally, the law impeded public health efforts to limit HIV/AIDS transmission by creating fear of prosecution under the Section.
    On July 2, 2009, the LGBTQ+ community in India became a part of the global celebration. The Delhi High Court ruled on the suit filed by the Naz Foundation in 2001. Adult consensual sexual intercourse in private, the court determined, was prohibited under Section 377. The ruling affirmed human dignity, equality, and the right to privacy. In India's secular state, it raised constitutional morality above religious morality. Section 377 criminalizes only conduct by unfairly penalizing gays collectively. The court stated that discrimination against MSM (Men Having Sex with Men) and the gay community is consequently unjust and unjustified. Section 377, which criminalizes private activity and personal decisions, violates Article 21. The High Court based its decision on affidavits, First Instance Reports, judgements, and instructions.
     
  3. Suresh Kumar Koushal and another v. Naz Foundation & Ors. (2013): In 2009, Suresh Kumar Koushal, a Delhi-based astrologer, filed the first Special Leave Petition (SLP) contesting the Delhi High Court's Section 377 decision. Section 377, according to the Delhi High Court's finding, does not violate the Constitution and hence remains intact. They asserted that there were two categories of people who engaged in sexual activity: those who did so in accordance with natural law and those who did so in violation of it. The court determined that Section 377 is not arbitrary or irrational. Lesbians, gays, bisexuals, and transgender persons account up a minuscule percentage of the population, and fewer than 200 people have faced prosecution under Section 377 in the last 150 years.
     
  4. NALSA v. Union of India (2014): The Supreme Court considered the writ petitions filed in response to the Suresh Koushal decision. The Supreme Court declared that the Constitution protects the rights of transgender individuals. In addition to binary genders, Hijras and Eunuchs are considered "third gender." Transgender people's right to determine their gender identity is also protected.

    Additionally, the Supreme Court asked the Centre and State Governments to adopt a number of actions. Among them are the following:
    • They should know their gender identification in a legal sense as male, female, or third gender.
    • They must treat these groups as backward social and educational classes and provide reservations in both educational institutions and for public positions.
    • A critical first step for the Hijra/Transgender community would be to address the issues they encounter, such as fear, shame, gender dysphoria, social pressure, despair, and suicidal tendencies, as well as the calls for SRS, which many Hijras and Transgenders believe is illegal and unconstitutional.
     
  5. Justice K.S. Puttaswamy v. Union of India & Others (2017): In 2017, the Supreme Court declared privacy a fundamental right under Indian Constitution Article 21. In its judgement, the Supreme Court stated that sexual orientation is a fundamental aspect of privacy. Sexual orientation is a critical factor in determining one's privacy. Discrimination against individuals based on their sexual orientation is a grave insult to their dignity and self-worth. In 2018, Navtej Singh Johar and others filed a petition challenging Section 377. A five-judge bench led by Justice Deepak Misra began considering the case in 2018.

The Navtej Singh Johar Judgement - The Final Nail On Section 377:

The argument was around the constitutional legality of Section 377 of the Indian Penal Code, 1860, as it pertained to private consenting sexual contact between adults of the same sex. Section 377 was titled 'Unnatural Offenses' and stated that "[w]hoever voluntarily engages in carnal intercourse with any man, woman, or animal in violation of the natural order shall be punished with life imprisonment or with imprisonment of either description for a term not exceeding ten years, and shall also be subject to [a] fine."

Contentions:
Navtej Singh Johar is a dancer who filed a Writ Petition in 2016 seeking acknowledgement of sexual freedom, sexual autonomy, and sexual partner choice under Article 21 of the Constitution. Additionally, he sought to have Section 377 declared unconstitutional. Additionally, he contended that Section 377 violated Article 14 (Right to Equality Before the Law) since it was ambiguous and lacked a definition for "carnal intercourse contrary to the natural order."

There was no visible difference between consenting intercourse that was natural and consensual sex that was unnatural. The Union Indian is what we're describing. Non-governmental, religious, and other representative organizations as well as the Petitioner and Respondent joined in to file a motion to intervene (as applied to consenting adults of the same sex). Many claimed that granting the right to privacy was not absolute, as such activities would denigrate the constitutional idea of dignity, result in a higher HIV/AIDS prevalence in society, and declare Section 377 invalid (Freedom of Conscience and Propagation of Religion).

Judgement Overview:
The Indian Supreme Court unanimously declared that Section 377 of the Indian Penal Code, 1860 (Section 377) was unconstitutional as applied to private consenting sexual behavior between adults. Thus, it reversed its decision in Suresh Koushal v. Naz Foundation, which upheld the legality of Section 377.

The Supreme Court restated its finding in National Legal Services Authority v. Union of India that refusing to identify as a gender is a breach of one's dignity. In K.S. Puttaswamy v. Union of India, the Supreme Court determined that denying LGBT individuals privacy due to their minority status would violate their fundamental rights. Consensual sexual intercourse in private "has no bearing on public decency or morality," the court determined, and its prolonged existence would "violate the right to privacy under Art. 19(1)(a)."

Thus, by targeting a specific group based on their sexual orientation, sodomy prohibitions violate the right to equality guaranteed by Articles 14 and 15 of the Constitution. In Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India, the Supreme Court reaffirmed that an adult's right to "select a life partner of his/her choice" is a component of individual liberty.

J. Khanwilkar and Chief Justice Misra stated that the constitution must transform society from an archaic to a realistic one that ardently defends fundamental rights. He stressed that even of a majority government's support, "constitutional morality will win over societal morality" in ensuring LGBT people's rights.

J. Nariman found in his conclusion that, because the law's stated objective, Victorian morality, "had long passed," there was no reason to maintain it. He concluded by directing the Union of India to announce the judgement in order to alleviate the LGBT community's social stigma. He also directed government and law enforcement officials to be cognizant of the community's plight in order to ensure equitable treatment.

J. Chandrachud remarked in his decision that while Section 377 appeared to be facially neutral, it "effaced the identities" of the LGBT community. He cautioned that if Section 377 is not repealed, the LGBT community will be denied health care, resulting in an increase in the HIV rate. To accomplish equal protection and to give the community with "equal citizenship in all its manifestations," he noted, the law cannot merely be non-discriminatory against same-sex couples.

J. Malhotra stated that homosexuality is a variety of sexuality. She emphasised that the right to privacy includes spatial and decisional privacy as well as the right to be left alone. She closed by apologising to members of the LGBT community and their families for the decades of ostracism and ignominy they have endured.

The Aftermath Of The Judgement
The Navtej Singh Johar judgement decriminalized homosexuality more than two years ago. This decision was significant since it decriminalized homosexuality for a fifth of the world's population. Recent court decisions strengthened prohibitions against discrimination on the basis of sexual orientation and gender identity, and the Indian government's stance on LGBT rights has altered. However, more work needs to be done in India to safeguard individuals' sexual and gender identities.

The government introduced the Transgender Persons (Protection of Rights) Act in 2019 to combat transphobia and protect transgender rights. It was created to defend the rights of transgender people by preventing discrimination in employment, education, healthcare, and access to public and private institutions. While purporting to empower a group, the bill further dehumanizes their bodies and identities.

In India, the trans community has been outspoken in its opposition to the bill, alleging that it breaches their fundamental rights and the NALSA ruling. The organization asserts that the Bill violates their fundamental human rights to autonomy and privacy by requiring evidence of sex reassignment surgery, which must be validated by the District Magistrate. As a result, they are vulnerable to abuse by authority. The bill was reintroduced with an older version of the wording that included a district screening committee. Apart from a lack of "inclusive education and opportunity," there are further barriers, such as discriminatory and arbitrary penalties for "sexual abuse against transgender people."

Way Forward:
Despite the fact that the decision safeguarded the civil and political rights of the first generation. A great deal of work is required to protect the community's socioeconomic rights. This decision addresses a long-standing pattern of discrimination against the LGBT community. These rights include the right to marry, the right to adopt, the right to surrogacy, the right to work, the freedom to form associations, and the right to be free of discrimination.
  • Right to Marry:
    In India, gay marriage is outlawed, contrary to popular assumption. Marriage is expressly prohibited under the constitution. The Supreme Court construed it to be Article 21 in Lata Singh v. State of Uttar Pradesh. Numerous instances involving same-sex marriages are pending at the moment. According to recent official comments, the Supreme Court simply decriminalized "a certain human behavior" by rewriting Section 377 of the IPC, which covers homosexuality.

    The administration asserts that cohabiting or being in a relationship with another same-sex individual is "incomparable." It stated that "the right to privacy does not include a fundamental right such as marriage between two individuals of the same gender."

    After decriminalizing homosexuality in 2009, Haryana's court recognized lesbian marriage. This marriage was validated and registered by the Madras High Court in 2019. Transgender women are now included by the 1955 Hindu Marriage Act. The court ruled that a marriage between a guy and a transsexual woman should be registered. The competing viewpoints are a source of contention. Some would like to see new legislation developed, while others would like to see existing legislation amended. Others advocate for the establishment of a Civil Contract for the LGBTQ community, while others accept our society as it is.
     
  • Right to Adoption, Guardianship and Surrogacy:
    In India, adoption is governed by secular and religious laws. Hindus, on the other hand, are governed by the Hindu Adoption and Maintenance Act 1956, but Muslims, Christians, and Parsis, among others, are not.

    However, there is another statute, the Juvenile Justice Care and Protection of Children Act, 2015 (JJ Act), as well as 2017 adoption regulations from the Central Adoption Resource Agency (CARA). Due to the secular nature of this statute, adoption is permitted regardless of religious affiliation. Despite the repeal of Section 377 of the IPC, the law continues to restrict LGBTQIA+ individuals from adopting children.

    There are various reasons cited for the same, some of them include:
    1. Under the 2017 Adoption Regulation Act, only a couple that has been together for two years is eligible to adopt. This means that same-sex couples do not have the right to adoption because the section utilizes the words "spouse" and "wife".
       
    2. Because men and women have distinct sets of adoption regulations, the applicability of such laws to trans-couples will be ambiguous.
       
    3. Indian law does not recognize marriages between people of the same gender.
       
    4. The concept of a "inferior family" is prevalent in majority-rule households when the child is unable to comprehend the worth of both parents. Guardianship is a combination of rights and responsibilities an adult has over the person and property of a child. The phrases "guardianship" and "custody" are synonymous. Hindu guardianship is governed by the Hindu Minority Guardianship Act 1956 (HMGA), whereas all nationals are governed by the Guardianship and Wards Act 1956 (GWA). While the act's wording is gender neutral, it is founded on binary gender concepts. If there are LGBTQIA+ parents or transgender parents whose gender is unknown, the application of these guidelines will be complex.

      The new surrogacy law prevents singles and LGBTQIA+ couples from using surrogacy to have their own children. Despite being passed to prohibit commercial surrogacy and exploitation of mother and child, the bill has been reduced to a "inflexible" piece of legislation that reiterates the outdated values of a "archaic family system."
       
  • Right to Inheritance:
    India's succession and inheritance laws are a synthesis of personal and secular law. Hindus are governed by the 1956 Hindu Succession Act, whereas Muslims and Parsis are governed by their own customary rules. The 1925 Indian Succession Act has been revised to include all Indians married under the 1954 Special Marriage Act.

    As is the case with other legislation, the term "marriage" in inheritance law refers exclusively to heterosexual marriages. Thus, before applying to LGBT+ couples, this law must recognize same-sex marriages. Additionally, while gender is immaterial and inheritance is based on proximity, it is critical that the terminology is completely neutral to avoid stigmatizing transgender individuals or those who undergo sex change.
     
  • Protection against discrimination at workplace:
    The 2016 LGBT Workplace Survey found that over 40% of LGBT people in India had experienced workplace harassment due to their gender/sexual identity. Many LGBT people hide their sexual identities for fear of prejudice or job loss. Thus, job and workplace discrimination continue to be issues for the LGBTQIA+ population.

    This situation is much more disheartening for transgender persons, who often have low literacy, limited access to education and training, and experience more severe employment discrimination. They are routinely targeted by enforcement agencies and booked under the Immoral Trafficking Act (1956) and anti-begging legislation since they have no other option. Transgender people have suffered prejudice in the workplace across the country. Manish Kumar Giri is a well-known example of this. United States Of India & Others (2020)

    Sabi Giri (formerly Manish Kumar Gir) was dismissed from this case due to gender dysmorphia. The Military Services stated that the sailor could not remain in the military owing to his gender transition.

The Delhi High Court recommended that Giri be relocated by the Navy. Sabi was sacked and given a job as a data entry operator despite the fact that she was not permitted to work owing to her gender transition surgery. Additionally, the petitioner mentioned workplace harassment and a lack of education about transgender rights.

While the Equal Remunerations Act of 1956 prohibits discrimination on the basis of gender before to recruitment, it permits it during military service. Dismissing a sailor solely on the basis of his or her gender identity is arbitrary, discriminatory, and illegal. As was the case in Jacqueline Mary v. Supt. of Police and G.Nagalakshmi v. DGP, intersex variations preclude women from holding female-only positions.

While the court earlier sided with the petitioners, the discrimination is obvious and violates the NALSA decision. This will continue to be the case as long as employment regulations do not alter to include non-binary individuals.

The law now recognizes only women, regardless of gender, as victims of sexual harassment. An insult can be directed at a transgender person or any other member of the LGBTQIA+ community. As a result, we require gender-neutral workplace harassment legislation.

Conclusion
Democracies face a long road ahead of them, filled by many people dealing with a wide range of challenges. In India, religion and caste are still major concerns, and the country cannot afford to add gender to the mix. Despite the fact that this issue has been in the works for some time and has progressed significantly throughout the country. Gays and lesbians have faced similar problems in the past due to their sexual orientation, and transgender individuals are no exception.

Because each individual is unique, they are born with specific rights that are defined by the nation in which they were born. These rights as human beings cannot be revoked due to a gender transition. According to our constitution, everyone has the right to live their life as they see fit. No legislation can obstruct that right. The transgender community's shift from one of seclusion to one of inclusion is both commendable and difficult.

They have succeeded in establishing a place in society, but this has always been a cause of concern for the authorities. The difficulties they face are one-of-a-kind, making it difficult for society to accept them. Transgender individuals are regarded less favorably than regular people, according to Article 14 of the Constitution.

Even if they aren't untouchables, society regards them as if they are. There are more than one million transgender individuals in India, and it would be unjust to disregard one million of them all at once. These individuals are already grappling with the consequences of organ change, such as puberty. They took a huge risk in order to live the life they desired. This is an entirely appropriate manner of living one's life. Our minds must be opened, and we must accept them for who they are.

The government should organize orientations on transgender problems so that people are aware of the world's third gender group. These people deserve to be regarded as ordinary citizens in society after years of persecution and familial rejection, as well as social discrimination. The general people should be educated on these problems and urged to support them.

People should accept these lovely creatures as human beings by opening their hearts and minds to them.

References
Books:
  • Recognition to the rights of transgenders by Upasana Borah
Websites:
  • Navtej Singh Johar Case Jugement. 2018. [online] Available at: https://indiankanoon.org/doc/168671544/
  • Challenges to Transgender Act. 2020 [online] Available at: https://www.scobserver.in/court-case/challenge-to-transgender-act
  • Queering The Law [online] Available at:
    https://vidhilegalpolicy.in/wp-content/uploads/2020/06/Queering-the-Law_Introduction.pdf
  • Sections 377: Cases that shaped India in 2018, [online] Available at:
    https://www.scobserver.in/beyond-the-court/cases-that-shaped-india-in-2018-3-section-377
  • 377 bites the dust. 2018, Blog [online] Available at:
    https://cis-india.org/internet-governance/blog/socio-legal-review-national-law-school-of-india-university-agnidipto-tarafder-and-arandrajit-basu-377-bites-the-dust
  • The Love that dare not speak its name, Poem [online] Available at: https://poets.org/poem/two-loves
  • Evolution of "progressive thoughts" about gay rights since 1990s, Article [online] Available at: https://www.epw.in/node/150861/pdf
  • Understanding the Order of Nature. 2009. Blog [online] Available at: https://heinonline.org/HOL/LandingPage?handle=hein.journals/nujslr2&div=34&id=&page=
  • 22 Years of Aids Vedbhav Vidrohi Andolan: https://feminisminindia.com/2020/03/05/20-years-aids-bhedbhav-virodhi-andolan-struggle-continues/

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