Human Rights of Transgender Community in India

Introduction

Transgender is a person whose gender identity and psychological expression does not correspond with each other. Human existence whether physical or psychological is a diverse aspect, rather than appreciating the uniqueness of the diversity, we often treat them as inconsistent with nature. Transgender community includes Hijras, Eunuchs, Kothis, Aravanis, Jogappas and Shiv-Shakthis. The word transgender has a western origin which is now being used as an umbrella term to define all gender variant people.

They are the individuals which may be of any age and whose appearance, behavioral character and personal character differs from the stereotypical idea of how men and women are supposed to be. Their presence is reflected in every culture, class, caste and race since the existence of human race. In the year 2018, World Health Organization (WHO) announced that being transgender is not a mental disorder. This proved to be a cumulative for the transgender community, further it declared being transgender as a ‘sexual health condition’. Despite of this declaration made by WHO, there are many hospitals that offer gender-affirmation surgery mandates the patient to produce at least two psychiatrist-assessed reports that assures that they have gender identity despondency, which many still mark as a disorder.

Variable understanding of gender can be seen in many cultures around the world. In Native American cultures, person who’s gender identity do not match the definitive understanding of female or male are seen as transverse between humans and the greater spirit. In old Hindu scripture, hijra or kinner or third gender were seen as divine being and historically played vital roles in royal palaces as vouchsafe advisors. Over time, the flexibility of gender understanding diminished leaving a more rigid gender classification as male and female. It was only after the British colonization in India (which then included Pakistan and Bangladesh), rulers demolished the fluidity of gender understanding and banned all such practices in their territories. But gradually existence of transgender community became invisible.

Historically Indian society always maintained a fine relationship with the third gender but by the time the nature of the relationship fluctuated. The major irony is that we often call them to celebrate the most auspicious events such as marriages and births as historically it was believed that “hijras” bring good luck and ward off all evil spirits which clearly means they considered as demi-gods still they face rejection for participating in the mainstreams of the society. But the fault not only lies in the society, but also lies in the families of third gender, most of the families rather than accepting their child as a third gender reject them to be a part of their families. After facing rejection from every aspect of life the third gender community began to create self-identified families, led by a Guru or a leader who was also a third-gender. In these self-created families, they feel safe, protected and sheltered. Although the transgender community lives in an outer society where no outsider is allowed as to avoid discrimination and rejection by the people, still they face huge risk of health and welfare as their major source of earning is begging and prostitution. India being a diverse nation has many grounds on which discrimination is done such as caste, class and religion but the point here is discrimination prevails in the society but not in their biological families, everyone whether rich or poor, or belongs to minority group or a dominant group receives love and acceptance from their own biological families but the case is not same when it comes to third gender.

Human Rights, Indian Laws and Transgender Community

The grudnorm of Human rights rests on the basic idea that all human beings must be treated as equal. Anything that erodes the dignity of any human is a violation as it contradicts the principle of equality and creates a pathway for discrimination. The human rights of LGBTQI (lesbian, gay, bisexual, transgender, queer and intersex people) community is evolving rapidly around the world by including new laws for their legal protection. In terms of India preamble of Indian Constitution ensures social, economic and political equality for all. The right to equality before law guaranteed in article 14 and equal protection and right to life is guaranteed under article 21 of the Constitution. In April 2014, the Supreme Court of India ruled in National Legal Services Authority v. Union of India that identity, rights, and freedom of transgender people are protected under Article 14 as it includes male, female and transgender community, considering the intensity of issue the court further issued various directions to the Center and State Government to advance the economic, social, political and cultural rights of third gender people. These directions were in accordance with recognizing the right of self-identification, health centers, framing social welfare schemes and to increase public awareness for their social inclusion. One of the major recommendations given by the court to Center and State Government was to treat them as socially and educationally backward class and to provide them reservation in case of education and public appointment as well. Though this case was the milestone for fetching the first step towards the recognition of transgender community but still the reservations has not been achieved yet. According to 2011 census report out of 4.88 lakh transgender people only 46% of them are literate and 94% are either unemployed or employed in informal sector.

The Right of Transgender Persons Bill 2018

In accordance with the remarkable judgments’ made by Supreme court of India in NLSA v. UOI The Rights of Transgender Persons Bill, 2014 [footnoteRef:7]was proposed in the Parliament of India with the aim to end discrimination towards transgender people in India. The Bill was passed by the upper house Rajya Sabha on 24 April 2015. It was introduced in the lower house Lok Sabha on 26 February 2016. But due to some ambiguity and lack of appropriate provisions the bill was not passed. After 27 amendments few made by the government and few by the opposition the bill was passed in lok sabha in December 2018.

Brief features of the bill:

The bill contains 23 sections divided into 9 chapters.

Chapter 1: deals with some basic meaning and definitions as per the act.

Chapter 2: deals with prohibition of discriminatory acts done against transgender people.

Chapter 3: deals with recognition of identity of transgender people.

Chapter 4: deals with the welfare measures to be taken by the government in order to address their needs and to provide them social inclusion.

Chapter 5: deals with the obligation of any establishment or any other person shall not discriminate against them in terms of recruiting them for job.

Chapter 6: deals with education, social security and health of the transgender persons.

Chapter 7: deals with the sections related to the constitution of national council for transgender people in order to exercise powers and duties as per the bill.

Chapter 8: Defines the offences and penalties. Anyone whosoever discriminate or contradicts the provision of the bill shall be liable for the punishment and penalties as mentioned.

Despite of amending the bill 27 times the bill fails to correspond with the directions give in NALSA v. UOI as it does not provide any criteria for reservation in educational and employment sector on the other hand beggary is an offence under the bill the crucial question here is that how does the government plans to ensure that transgender people can overcome the socio-economic discrimination that has lasted in India since independence. Also while the bill guarantees the right to non-discrimination to transgender by any person, state and private sector bodies, yet it does not provides with a definite meaning of discrimination, nor does it stated any mechanism for assuring non-discrimination.

Further in September 2018, the Supreme Court also decriminalized adult consensual same-sex relationships in section 377 Indian penal code. These judgments are considered to be most crucial in terms of providing empowerment to LGBT community as well as in enhancing the meaning of constitution. These judgments reversed the relic of British era and also set an example of judicial activism for providing justice to the community, but this does not indicate that transgender people in India considered as equal by the fellow citizen.. When the Supreme Court of India conceded that gender is a non-binary form of identity which goes beyond the identification of male or female, the victory was a much awaited one.

Challenges faced by Transgender People

The transgender community falls under the LGBT group (Lesbian, Gay, Bisexual and Transgender). Although there are numerous challenges which are faced by this community but the plinth of all is their social exclusion from the main streams of the society, they are being rejected by their fellow citizens due to their diverse appearance. They belong to the marginalized group of the society which faces the following issues:

Discrimination: Transgender people face discrimination in every field of life such as employment, justice delivery, educational policies etc.

Disrespect: They are disrespected by the fellow citizens. The main flaw lies in the mind set of the people who disrespect them.

Child Nabbing: Due to the discrimination and exclusion they have faced from the society, this community has begun to create their own comfort place which is segregated from the society. This community often searches for the babies who are born as a transgender in order to nab the child from their biological family.

More prone to HIV:10Compared to the general population transgender people are 49 times at more risk of getting HIV as they are socially excluded and lack of employment opportunities for them, the most commonly available source of income for them is engaging in sex work. Approximately 90% transgender people in India are sex workers. The data also suggests that prevalence of HIV is nine times greater for the transgender people who work as sex workers as compared to those who are non sex workers. In India almost 83% of transgender people have prevalence of HIV.

Beggary and Prostitution: They often chose prostitution and beggary to earn their livelihood due to lack of employment opportunities.

Leaving biological family: As a result of the tussle between the society and this community, once this community recognizes any one being a transgender or born as a transgender, that person is forced to leave their biological family considering a transgender cannot be a part of normal community.

Rejection of entry: They are commonly restricted to enter any religious place or any other public place like hotels restaurants, theaters etc.

Rape and verbal and physical abuse: This is the most common people Transgender people face. They are prone to face rape followed by physical and verbal abuse.

Educational facilities: They are not guaranteed any reservation and are restricted to take education in schools and colleges.

No public space access: Transgender people cannot access any public toilets; this is the biggest example of discrimination faced by transgender in availing the basic public amenities. Similar problems are face by them in hospital, prisons and schools.

Inherent property issue: They have no right to inherit property.

Journey From Social Exclusion to Social Inclusion

The journey of attaining rights for transgender community was a hard net to crack. Apart from being neglected from every sphere of the society they gathered the strength and stood for their rights. Though the aim of upliftment of transgender community is not yet achieved. The following point’s highlights how far India has come to provide them social inclusion:

At state level:

If we consider state level progress, the State of Tamil Nadu and Karnataka has incorporated the leftist policies for the development of transgender community in terms and f schemes, social welfare and upliftment.

• State of Gujarat established Transgender Welfare Board[footnoteRef:10]:In a landmark ruling in April 2014, India’s Supreme Court recommended inclusion of third gender in social welfare schemes and provide them same rights as other minority groups. This board is established in order to provide essential services to transgender people including healthcare, education housing etc. the board was created after consultation with transgender community groups like lakshay trust. Also United Nations development programme will provide technical support throughout the process. The board also includes representatives from third gender community.
• State of Madhya Pradesh: A transgender named Sanjana Singh has been appointed as a Personal Secretary of the Director of Madhya Pradesh Social Justice and Disabled Welfare Department. This is for the first time in the history of the state that a transgender has got a government job.

Though there are some more states working towards providing welfare and social inclusivity to the transgender community, but the recent work done by the above mentioned states are noticeable. Providing upliftment and social recognition to this community is an aim that must be achieved by the collective efforts of state government, central government and citizens of the county.

In order to take public opinion on this subject I have conducted survey amongst different working professionals. The highlights of the survey are as follows:

• Sadly 65% people still do not have clarity about the term of “transgender”.
• 85% people recommended that proper knowledge and information should be parted about this community in school curriculums through projects or any practical based approach.
• 90% people didn’t come across any transgender appointed for white collar job.
• 80% people are of the view that the reason transgender people are still discriminated is due to lack of awareness and stereotypical mindset.
• 88% people think that there is lack of health care facilities, welfare schemes and legal protection for transgender community.

Transgender people who outshined: First in their field

Being a transgender in Indian society means living in periphery of the society with no legal and social recognition, despite of all the hardships a few transgender took their dreams to fulfillment. As they gathered the courage to break the shackles they achieve big in their areas of interest from academics to politics.

• Sathyasri Sharmila a 36 year old transgender from Tamil Nadu became India’s first transgender lawyer breaking the stereotypical mindset with the aim to fight injustice.
• Joyita Mondal a 29 year old transgender from west Bengal, was appointed at Lok Adalat in North Bengal in 2017 October as first transgender judge.
• Prithika Yashini from Tamil Nadu is a first transgender woman to be appointed as a sub-inspector.
• Dr. Manabi Bandopadhyay a transgender who became principle of Women College in 2015. She holds a (PhD) in philosophy.
• Apsara Reddy a transgender women who is a social activist, appointed as a general secretary of women’s wing of All India Mahila congress. She is a first transgender office bearer.

Conclusion

The Supreme Court of India which is the highest justice delivering authority in the nation has given remarkable directions time by time to bring transgender community on the same social level as other citizens. The law makers adhere to provide the same, but the question here lies is that is this enough to bring the change in the miseries faced by this community? The answer in NO, fellow citizens have the key role in providing them social inclusion, as the steps taken by the law makers won’t bring any change unless the citizens of India support them adequately.

Some suggestions:

• Inculcation of morals amongst the youth is of foremost importance in order to attain the goal of social inclusion of transgender community.
• Kindness doesn’t cost anything, being respectful towards them would be enough to boast their strength and capabilities.
• Including the history of transgender community and their progressive journey in the school curriculum can create a big difference as this will create awareness about the hardships faced by them.
• Rather than making them feel that they need help, society must support them in the areas where they can excel.
• Lastly in order to serve one needs to hold a specific post, the compassion is all what is needed. We all must respect their uniqueness and cherish them while they get the much needed recognition.