Rights Of Transgenders Under Human Rights
The identity of an individual is often determined by the moral dictates and
judgments of the society. However, individuals who seek to challenge these with
their personalities, sexual orientations and inclinations are often shunned,
abandoned and treated as the "other". Abandoned by families and ridiculed by
negative stigmas, they are usually left with no other option, than resorting to
begging or singing in weddings, to make a living. Even with such vulnerability
to harassment and violence, their agony mostly remains unnoticed.
This only indicates the extent of helplessness and neglect this community faces.
Various rights granted to this community are seldom potent and welfare measures
hibernate on paper. Though the Indian Constitution makes mighty promises
prohibiting discrimination of all sorts, there exists ambiguity concerning the
concept of gender and the effects that such a prohibition can have on third
With the Supreme Court taking a proactive step in the NALSA judgment, there has
been significant attention drawn towards transgender rights, which will be
examined in the paper subsequently. Highlighting the historical growth of the
transgender people and analyzing their position in jurisdictions across the
world, this research paper aims to shed light on the murky world of suffering
and discrimination this community has been relegated to in India.
Despite some positive developments that have contributed to increased awareness
and recognition of their plight, major problems still plague this section of the
society. In addition to the social and legal position of the transgender
community and the judicial treatment of the same, the paper also seeks to act as
an expose when it comes to make-believe cases of being transgender.
Conventional distinction of human gender into male and female is exclusively
based on the biological design of their genitalia. However, in reality, there
are people who do not fit into this custom and defy the biological binary. These
are the �transgender‟ people. Stereotyped as the mendicants who knock on the
rolled up windows of our cars at traffic signals or as dancers in a local bar,
these transgender persons live a life fraught with troubles.
The dictionary meaning of the prefix "trans" means "beyond," "across," or
"over." However, "transgender" does not simply signify a gender that crosses the
borderline. Often, this term is not properly understood by the general
population. It is a broad term to circumscribe all individuals who live a major
portion of their lives manifesting an innate sense of gender which deviates from
suppositions of their birth sex.
In India, some of the regional terms are used to represent the community. For
example, the term kothi signifies a range of feminine identified people, who
have been assigned male gender at birth. Similarly, other prominent regional and
trans-regional identities representing this community are hijras, aravani,
jogtas/jogappas, and shiv-shaktis. This rambling constitution of transgender
subsumes many �regional‟ terms and identities.
Hence, the desire for a rigid definition, set the platform for the NALSA
judgment which defined the term in the following words, a"transgender is
generally described as an umbrella term for persons whose gender identity,
gender expression or behaviour does not conform to their biological sex."1Thus,
it can be said that the term �transgender‟ is not only limited to persons whose
genitals are intermixed but it is a blanket term used to refer to persons with
identities that do not get along with the strict dual categories of man and
woman and whose gender identity and expression differs from the conventional
norms expected from their birth sex.
History Of Transgenders In India
Indian Mythology offers glimpses of reality at times and a brief look at the
reflections of the past, stipulate that the transgender persons who are often
denigrated today were once venerated and appreciated to a great extent. The
starting point of the concept of third gender can be traced from the Hindu
Mythology which has many examples of deities changing gender, manifesting as an
Avatar of opposite sex etc. Gods were often considered to be represented as both
male and female at different points and in various incarnations.
For example, Ardhanarishvara, formed by integrating Lord Shiva and his consort,
Parvati, is widely worshipped. Mahabharata and Ramayana were the treasure boxes
for references to transgender people. Shikhandi from Mahabharata is probably the
most powerful transgender figure found in the Hindu mythology.
Aravan or Iravan, son of Arjuna is another minor, yet crucial transgender
character who is believed to have laid down the lineage from which the
transgender persons are born. Another episode in the Mahabharata which witnesses
the presence of third genders include the time when Arjuna was sent to exile.
There, he assumed the identity of Brihandala, a eunuch and performed rituals
during occasions of weddings and childbirths.
Ramayana is another source inspiration for the emergence of transgender people.
Rama, while leaving for the forest for fourteen years, asked his followers,
addressing them as "men and women", to return to the city. Among them, the
hijras did not feel bound by the order and decided to stay with him. Impressed
with the devotion, Rama conferred powers on them to give blessings on auspicious
occasions. Indeed, during the Mughal Empire (1526-1857), hijras were known for
positions held in Royal Courts as political advisors, administrators, generals
as well as guardians of the harems. They even occupied high positions in the
Islamic religious institutions and were also able to influence state decisions.
Later, these benefits were removed through legislation in the British period.
Transgender's Right Under Indian Constitution:
The preamble to the constitution mandates every citizen Justice: social,
economic, political equality of status.
The Indian state policy that earlier recognized only two sex i.e. only male and
female has deprived the third gender from their several rights as being an
Indian citizens, which includes right to vote, the right to own property, the
right to marry, the right to claim a formal identity through a passport etc. and
more importantly their the right to education, employment, health so on. The
basic rights which they were deprived from are their fundamental rights under
Article 14, 15, 16 and 21.
The rights of transgender where for the first time considered under the 2014
NALSA Judgment where the supreme court laid emphasis on protecting and
safeguarding the rights of the transgender person under the principles of Indian
Constitution laid down in Article 14, 15,16 and 21.
Article 14, 15 and 16 provides right to equality and Article 21 which provides
right to freedom for each and every Indian citizen but transgender person where
deprived from their basic right to freedom and equality.
Article 14 deals with Equality before the law or equal protection before the law
within the territory of India. Article 14 clearly falls within the expression
"person" which includes the male, female and third gender within its ambit so
the transgender is also entitled to legal protection under Indian constitution
in all the spheres of state activity.
Article 15 which deals with the prohibition of discrimination on the ground of
religion, race, caste and sex includes the third gender under its ambit as being
the citizens they have the right to not to be discriminated on the ground of
their religion, caste race and sex. They have the right to protect their gender
expression which is majorly reflected through their dresses, action and
Article 16 deals with equality of opportunity in the matters of public
employment as this article is used to broaden the concept of sex which includes
"Psychological Sex" and gender identity within its ambit. The transgender being
the citizens of India has the right to employment and equal opportunity in the
matters of employment and they should not be discriminated on the basis of
Article 21 which deals with the protection of life and personal liberty states
that no person shall be deprived of his life and personal liberty except
according to the procedure of law. For ages transgender have been deprived of
their life and personal liberty. The transgender being the citizen of India
should have full right to protect their right and personal liberty. The Supreme
Court has also recognized the right to dignity by recognizing gender identity
within the ambit of Article 21
The case Navtej Singh Johar v. the Union of India deals with the
Decriminalization of Section 377 of the Indian Penal Code as the central issue
of the case was the constitutional validity of the of Section 377 as it stated
voluntarily carnal intercourse against the order of nature with any man, woman
or animal shall be with punished with imprisonment for life, or with
imprisonment which may extend to ten years with a fine.
The petition was filed stating that Section 377 of the Indian penal code is in
violation of right to privacy, equality, freedom of expression and protection
against discrimination. The petitioner in the present case filed the writ
petition to seek the recognition of right to sexuality, right to sexual autonomy
and right to choose a sexual partner to be a part of right to which is
guaranteed under Art 21 of the Constitution of India.
The petitioner in the present case argued that Section 377 was violative of
Article 14 as it was vague in the sense that is did not define carnal
intercourse against the order of nature and there was no intelligible
differentia between natural and unnatural consensual sex. Section 377 was
further violative of Article 15 as it discriminates on the basis of the sex of a
person's sexual partner and it was further violative of Article 19 as it denied
the right to express one's sexual identity.
The Hon'ble Supreme court in the present case held that Section 377 should be
decriminalized and affirmed that homosexuality is not an aberration but a
variation of sexuality. The Court further held that discrimination on the basis
of sexual orientation is violative of right to equality and right to privacy as
sexual orientation forms an inherent part of self-identity and denying the
following rights is violative of right to life and fundamental right cannot be
Section 377 Of Ipc - Unnatural Offences
Whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with 1[imprisonment for life], or with
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
Prohibition Against Discrimination:
Transgender people have suffered from discrimination for ages in the matters of
housing, health, education and employment. The discrimination suffered by them
emanates from the social stigma and isolation that they suffer from lack of
resource which were provided for Transgender people. To safeguard the rights of
transgender people and to protect them from the discrimination, The Transgender
Person (Protection of Rights) Act, 2019 includes the prohibition against
discrimination which most importantly includes important sectors like
employment, education and health care sectors.
Despite the dramatic progress of the transgender movement in the last decade,
resulting in greater public awareness and significant legal victories, trans
people continue to face blatant discrimination, high levels of violence, and
poor health outcomes. Trans people of color often face markedly worse health and
economic outcomes as they navigate multiple systems of oppression.
We've highlighted some key issues below:
Transgender people face enormous health disparities, including staggering rates
of HIV infection, lack of primary care (including individualized, medically
necessary transition- related healthcare), and high rates of attempted suicide.
Transgender people bear the economic consequences of discrimination, including
high rates of poverty and unemployment, discrimination in education, and
homelessness. Trans people are more than twice as likely to live in extreme
poverty (earning under $10,000 a year), with Latinx transgender people facing
three-and-a-half times, and Black transgender people facing three times, the
poverty rate of the general U.S. population.
Transgender people, and Black transgender women especially, experience
frightening levels of physical violence. This is particularly true among
transgender people participating in sex work and other informal or criminalized
economies. Brutal murders of transgender women occur with such alarming
regularity, often with little response from law enforcement, that the American
Medical Association declared violence against transgender people an epidemic in
Recognition and respect for the civil rights of trans people is critically
important because their legal needs span many aspects of life. These needs
include identity documents that accurately reflect who they are, protections
from employment discrimination, and immigration rights, to name only a few.
Basic Rights Of The Transgender Which Are Being Violated And Which Needs To Restored
The education of transgender person is equally important like other male or
female gender but the social stigma that transgender person faces breaks their
interest and focus towards their learning and they develop a feeling of being
avoided, ignored and disgraced and the transgender students are often denied to
be admitted in educational institution as the educational institution does not
recognize their gender identities.
To protect their right, The Transgender Person (Protection of Rights) Act, 2019
provides that the educational institution that are funded or recognized by
government shall provide education, recreational facilities and sports for
transgender person without discrimination.
The transgender persons have suffered workplace discrimination and
discrimination in the matters of employment. They suffer discrimination mainly
in the form of privacy violation, refusal to hire and harassment which leads to
unemployment and poverty. To prevent the discrimination suffered by them the
transgender person protection act states that no government or even the private
entities can discriminate against transgender person in the matters of
employment which includes recruitment and promotions and every establishment
should designate a person to be a complaint officer to deal with the complaints
in relation to the act.
In the case of Nangai v the Superintendent of Police, the petitioner in
the present case had applied for the post of a woman police constable. The Tamil
Nadu Uniformed Services Recruitment Board, Chennai conducted the application
tests. Petitioner's application was successful and she received an order of
appointment from the Superintendent of Police at Karur district. During the
course of her training at the Police Recruit School in Vellore, she underwent a
The examination declared that she was transgender on the basis of chromosomal
pattern and genitalia. The result of the medical examination contradicted her
birth certificate, medical records, and educational certificates. Later on The
Superintendent ordered her termination from the post of woman constable.
The Hon'ble High Court upheld that the petitioner has liberty to chose a
different gender identity as a third gender in future based on the medical
declaration and the impugned order of termination from service issued by the
Superintendent of Police, was set aside by the Hon'ble court to protect her
right as a transgender person.
The health care services for the transgender person does only refers to the
medical procedure involved in transition but health refers to a overall state of
complete physical, mental and social wellbeing. Health care also refers to a
range of primary and other health care services which includes employment,
housing and public acceptance of the transgender people.
As the transgender person have suffered from substantial health disparities and
barrier to appropriate health care services for ages had made them to suffer
depression, attempted suicide, violence and harassment and even the HIV. To
provide them protection and help them to lead a happy life The Transgender
Person (Protection of Rights) Act, 2019 states that government should take
proper steps to provide health care facilities to transgender person and it
should include separate HIV surveillance centers and sex reassignment surgeries
and Transgender persons should be provided with a comprehensive medical
Violation Of Human Rights Of Transgenders:
They are deprived of social and cultural participation and hence they have
restricted access to education, health care and public places which further
deprives them of the Constitutional guarantee of equality before law and equal
protection of laws. It has also been noticed that the community also faces
discrimination as they are not given the right to contest election, right to
vote (Article 326), employment, to get licenses, etc. and in effect, they are
treated as outcast and untouchable.
The transgender community faces stigma and discrimination and therefore has
fewer opportunities as compared to others. They are hardly educated as they are
nor accepted by the society and therefore do not receive proper schooling. Even
if they are enrolled in an educational institute, they face harassment and are
bullied every day and are asked to leave the school or they drop out on their
own. It is because of this that they take up begging and sex work.
Seldom does a skilled individual from this community get into formal employment
due to the policy of hiring only from either the male or female gender. Even if
they do, they are ridiculed and ostracized and hence forced to leave their jobs.
They are forced into sex work which puts them at the highest risk of contracting
HIV as they agree to unprotected sexual intercourse because they fear rejection
or they want to affirm their gender through sex. They are viewed as 'vectors' of
HIV in the society. Other sexually transmitted infections such as rectal
gonorrhea, syphilis, rectal Chlamydia, etc., add to the risk of HIV.
Immoral Traffic Prevention Act of 1956 which was amended in 1986 has become a
gender-neutral legislation. The domain of the Act now applies to both male and
female sex workers along with those whose gender identity was indeterminate.
With the amendment both the male and hijra sex workers became criminal subjects
as this gives the police the legal basis for arrest and intimidation of the
transgender sex workers.
Section 377 of IPC criminalizes same sex relations among consenting adults. This
is a colonial era law which makes the Transgender community vulnerable to police
harassment, extortion and abuse. In Jayalakshmi v. State of Tamil Nadu,
Pandian, a transgender, was arrested on charges of theft by the police.
The Nalsa Judgment: A Ray Of Hope
The NALSA judgment should certainly be lauded for condemning discrimination due
to gender and for bringing hope and promise to a community which has always been
far outside the ambit of legal framework. With immense faith and vision, the
judges have given a legal identity to all those persons whose bodies which do
not match up with the accepted gender standards at birth.
One revolutionary aspect of the judgment came as a major implication for the
current laws related to marriage, adoption, labour laws and inheritance which
will now have to move away from the binary system of male and female in order to
facilitate the legal rights of transgender persons. Further, it is impossible to
ignore the irony that the judgment was delivered only a few months after the
case of Suresh Kumar Koushal and another v. NAZ Foundation and Others
which upheld the constitutionality of Section 377 of the Indian Penal Code.
The Court, accepting that Section 377 is discriminatory against the transgender
persons, clarified that the judgment leaves the Koushal case uninterrupted and
thus single-handedly focusing on the legal recognition of the trans-sexual
community. One of the most innovative turn in the judgment was the involvement
of fundamental rights directly from the Constitution, especially the application
of Article 19, thus, acting as a bold motive in acknowledging the rights of a
The remedies that the Court awards are also exceptionally fascinating. Three
mandates have, as of now, been mentioned: that hijras are currently perceived as
the third sex, that trans-persons have the privilege to pick between being male,
female or having a place with the third gender, and that transpersons are to be
given benefits that are duly offered under governmental policies regarding
minorities, since they would qualify as a �socially disadvantaged, backward
The Court goes ahead to give a large number of different bearings, including
some particular orders (like providing user friendly toilets and treatment for
HIV affected trans-persons); some expansive ones (like direction to furnish them
with medical care in all doctor's facilities, to outline different social
welfare plans for their advancement, and to find a way to create public
awareness to guarantee their social consideration); and some uncertain ones
(like the direction to truly address issues being faced by them and to take
measures to guarantee a respectful place for them in social and cultural life).
Written By: Ankita Ravindra Sancheti - LLM -1st Year
Law Article in India
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