INTRODUCTION
People who identify as transgender do not fit the usual gender conventions that only recognise males or females as genders. Due to society’s rejection of their gender identification, individuals have experienced physical violence, social inequality, and discrimination. Individuals who identify as transgender but do not belong to one of the socio-cultural groups known as Hijras, Jogappas, Sakhi, Aradhis, etc. are nonetheless referred to as transgender people individually. The article addresses transgender rights in India, where transgender people enjoy the legal right to protection and the right to be recognised as a third gender. The Indian Constitution gives transgender people the same rights that it gives to all other Indian citizens in terms of justice and equality. The Transgender Person (Protection of Rights) Act, 2019, was passed by the government to ban discrimination against transgender people in work, education, and health services. Welfare measures have also been established to safeguard transgender people’s rights.
TRANSGENDER
People who identify as transgender are those whose gender identity differs from the gender they were assumed to be at birth. “A person who is transgender” is defined as “a person whose gender does not align with the gender that was given to them at birth but who is intersex variable and genderqueer.” They are the individuals who have male or female anatomy at birth but who feel or act differently due to their gender expression, identity, or behaviour from their birth sex. Transgender people attempt to express their gender identity in a variety of ways. Some use their behaviour, attire, or gestures to live like the gender they believe is appropriate for them. These individuals reject the regular understanding of gender, which only divides people into males and females. As a result, these individuals identify as transgender or genderqueer.
MISINTERPRETATION OF THE TERM “TRANSGENDER”
Transgender is a general word for anyone whose gender expression, identity, or conduct differs from the norms expected of their biological sex and is not restricted to those whose genitalia are mixed. This includes a variety of transgender identities, such as transgender male, transgender female, male-to-female (MTF), and female-to-male (FTM). Other persons who fall into this category are transsexuals, genderqueer people, and crossdressers (those who dress in attire from the opposite gender). Numerous transgender-related identities exist in India, including the Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv Sakthi. They used to be treated with a lot of respect.
The transgender population in India refers to itself as “Hijra,” which is a Persian word that can be rendered as “eunuch.”
Male-to-female transgender people who have SRS (Sex Reassignment Surgery) or who have Nirwaan, a conventional method of castration, are referred to as “Aravani.”
When someone chooses to play the female role in same-sex partnerships but does not reside in an Aravanis commune, they are referred to as Kothi.
Male-to-female transgender people known as jogtas or jogappas can be found in Maharashtra and Karnataka and dedicate their lives to serving a specific deity.
Males known as Shiv Shakthis, particularly Lord Shiva, are believed to be wedded to gods and can be found in Andhra Pradesh. They typically perform astrological or spiritual healing services.
LAWS FOR TRANSGENDER
- RIGHTS UNDER INDIAN CONSTITUTION
According to Articles 14 and 21 of the Constitution, everyone has the right to equality before the law and equal protection of the law. Another issue that falls under the purview of Article 21 is the right to freely choose one’s gender identification, which is a necessary component of living a life of dignity. The Court noted that “the gender to which a person belongs is to be determined by the person concerned” while determining the right to personal freedom and self-determination. The Indian people now have the freedom to identify as either male or female. Additionally, discrimination against them based on their gender is prohibited by Articles 14, 15, 16, and 21.
On Indian soil, Article 14 addresses equality before the law, sometimes known as equal protection under the law. The transgender community is entitled to legal protection under the Indian Constitution in all areas of state action because Article 14 unambiguously falls under the definition of “person,” which covers the male, female, and third gender within its ambit.
The third gender is included under the scope of Article 15, which deals with the prohibition of discrimination based on religion, race, caste, and sex. As citizens, they have the right to be free from discrimination based on their religion, caste, race, and sex. They are entitled to the protection of their gender expression, which is primarily expressed in the way they dress, act, and behave.
As this article is used to expand the definition of sex to include “Psychological Sex” and gender identity within its purview, it deals with equality of opportunity in the context of public employment. Being citizens of India, transgender people have the right to employment and equal treatment in hiring decisions, and they shouldn’t face prejudice because of their sexual orientation.
No one may be deprived of his or her life or personal liberty unless by legal procedure, according to Article 21, which deals with the preservation of life and personal liberty. Transgender people have been denied their right to life and personal liberty for decades. Being Indian citizens, a transgender person should have complete rights to safeguard their freedom. By including gender identification within the scope of Article 21, the Supreme Court has also acknowledged the right to dignity.
The central issue of the case was the constitutional validity of Section 377, which provided that “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 case, Navtej Singh Johar v. the Union of India, deals with the decriminalisation of Section 377 of the Indian Penal Code. According to the appeal, Section 377 of the Indian Penal Code violates people’s rights to privacy, equality, freedom of speech, and protection from discrimination. The petitioner, in this case, filed a writ petition to demand that the right to sexuality, the right to sexual autonomy, and the freedom to select a sexual partner be recognised as elements of the right which is protected by Article 21 of the Indian Constitution. Since Section 377 did not define “carnal intercourse against the order of nature,” the petitioner claimed that it violated Article 14 because there was no discernible difference between natural and unnatural consenting sex. Additionally, Section 377 violated Articles 15 and 19 since it restricted the right to express one’s sexual identity and discriminated against people based on the sex of their sexual partners.
In the current case, the Honorable Supreme Court ruled that Section 377 should be repealed and reaffirmed the notion that homosexuality is a sexual orientation rather than an abnormality. The Court additionally ruled that denial of the following rights would violate the right to life and that discrimination based on sexual orientation violates both the right to equality and the right to privacy because sexual orientation is an integral component of one’s self-identity.
- PROHIBITION AGAINST DISCRIMINATION
The Transgender Person (Protection of Rights) Act, 2019, prohibits discrimination in vital fields like work, education, and healthcare to protect transgender people’s rights and shield them from prejudice.
- EDUCATION
The Transgender Person (Protection of Rights) Act of 2019 mandates that educational institutions that receive government funding or recognition must offer transgender students access to sports, recreation, and education without discrimination.
- HEALTHCARE
to protect them and enable them to have happy lives According to the Transgender Person (Protection of Rights) Act of 2019, the government must take the necessary efforts to provide transgender people with healthcare facilities, which should include separate HIV surveillance centres, sex reassignment surgeries, and full medical insurance.
- WELFARE MEASURES
According to the Transgender Person Protection Act of 2019, the appropriate government must take action to guarantee that transgender people can participate fully in society and must develop specific welfare plans and safeguards to preserve their rights.
- VIOLATION OF HUMAN RIGHTS
Immoral Traffic Prevention Act of 1956, as revised in 1986, is now a law that does not discriminate against gender. Now, both male and female sex workers as well as individuals whose gender identity was undetermined fall under the purview of the Act. As a result of the legislation, both male and hijra sex workers are now considered criminals, giving the police the right to detain and threaten transgender sex workers.
Same-sex relationships between consenting adults are illegal under Section 377 of the IPC. This rule, which dates back to the colonial era, leaves the transgender community open to abuse, extortion, and harassment from the authorities. In Jayalakshmi v. State of Tamil Nadu, Pandian, a transgender person, was detained by the police on suspicion of stealing. At the police station, he was sexually molested, which finally caused him to set himself on fire.
DIRECTIONS TO THE CENTRAL AND STATE GOVERNMENTS
The following directives have been issued by the court to the central and state governments:
- To protect their basic rights, hijras and eunuchs should be recognised as a third gender.
- Respect the individual’s need to specify his gender,
- Providing discrimination against a class of persons who are socially and educationally disadvantaged in public employment and education,
- Taking particular preparations for transgender people’s HIV sero-surveillance and providing suitable health facilities,
- Address their issues, including their feelings of dread, shame, gender dysphoria, sadness, and suicidal thoughts.
- There should be steps done to offer transgender patients with medical care in hospitals, including creating separate wards and giving them access to separate public restrooms.
- Create social welfare programmes to promote their holistic development.
- To raise knowledge among the general public so that transgender people feel like a legitimate part of society and are not shunned.
- By defining the transgender community’s issues as a question of rights, the verdict broke with the state’s prior paternalistic and sympathetic attitude toward them.