LAW AS THE CURATOR OF TRANSGENDER

OBJECTIVES OF STUDY :

• To learn significance of law to achieve social order.
• To know TRANSGENDER or KINNER  Meaning, History and their Evolution.
• To examine transgender laws globally and to analyze their position in different countries. ü To study judicial precedents, legislations with regard to transgender rights in India
• To know the key mechanism that need to be established by the governments to uplift transgender community.

 ABSTRACT:

“Law without justice is a wound without cure”. Law is a guiding principle for the society to ensure achievement of peace and harmony without bloodshed, restraining people from getting beyond guidelines and to stop breaching few set of regulations, rules, policies or norms. Law is thus simultaneously a product of social and power relations and a tool for challenging and reshaping those relations. Law can change incentives by establishing different payoffs; it can serve as a focal point for coordinating preferences and beliefs; and it can establish procedures and norms to do justice to those persons who are victims of those beliefs. The present study is about one of such victims namely transgender/kinners/hijras. This study contains importance of law in the society which further interlinks with laws pertaining rights of kinner or transgender.

LAW AND SOCIETY: 

Today’s reality  on society is heterogeneous systems of all kinds of people who destabilize the balance of the natural society and this is where the law find its strength in restoring the tenderness of disobedience in societies and making people live together cohesively. Law helps to maintain the morality of individual personalities as well as society. 

• When the term ‘society’ is used, a picture which often comes in mind is of collection of people, institution and other social phenomenon and among these, law occupies a prominent place holding these social arrangements in an orderly fashion.
• Law merely does not bind society but the behavior patterns, relationships and beliefs also play a vital role in keeping the society together. 
• There are various social phenomena which constitute parts of the overall structure of a society, such phenomena apart from law includes political institutions (Parliament, political parties etc.), economic and commercial institutions (trade unions, factories etc.), religious institutions (temples, church), institutions concerned with teaching of social rules and standards (schools, family etc.) and cultural institutions (press and media, cultural associations etc.)

The rule of law is widely recognized as necessary for the achievement of stable, equitable development.  Legitimate changes have been at the focal point of the motivation for strategizing sexual orientation equity in India. Uniform Civil Code is converged in the Article 44 by the Indian Constitution because of social change. It implies a uniform set of accepted rules without segregating over standing, religion, parentage, network and social acknowledgment for all natives of nation and furthermore Article 21 in regards to ‘Assurance of life and individual freedom’ because of social change. In this article new jail statute, Right to Speedy Trial, Right to Free Legal Service, Right to Human rights. Law is a medium through which social items can be accomplished. In this way, change of law is must with social changes; generally law will be of no esteem.

Law is that rule which show equality of everyone not on the basis of race, sex, caste, social status, not which show biasness towards politicians and the influencing people. But in this 21st century too the transgender communities weren’t accepted by the society. Lets see what is role of law to influence society in the issue of transgender or kinner. 

MEANING AND EVOLUTION OF  TRANSGENDER:

There exists many terms to address transgender which vary from place, tradition, custom and ideologies of people. The “Hijra” used in the Indian language appear to be derived from the Parcian word “Hiz”- i.e. someone who is effeminate or in effectives or in competent. The term transgender / Hijras in India can be known by different terminologies based on different region and communities such as

• KINNAR – regional variation of Hijras used in Delhi/ the North and other parts of India such as Maharashtra. 
• ARAVANI – regional variation of Hijras used in Tamil Nadu. Some Aravani activists want the public and media to use the term ‘Thirunangi’ to refer to Aravanis.
• KOTHI – biological male who shows varying degrees of ‘femininity.’ Some proportion of Hijras may also identify themselves as ‘Kothis,’ but not all Kothis identify themselves as transgender or Hijras.
• SHIV-SHAKTI – males who are possessed by or particularly close to a goddess and who have feminine gender expression, typically located in Andhra Pradesh.
• JOGTAS/JOGAPPAS – Jogtas or Jogappas are those persons who are dedicated to and serve as a servant of Goddess Renukha Devi (Yellamma) whose temples are present in Maharashtra and Karnataka. Broadly speaking the concept of transgender are extensive in its address, denoting the identity crisis and diversity of practices embodied between or beyond the categories of male and female. 

HISTORY AND EVOLUTION OF TRANSGENDER:

• The roots of Transgender in India dates back to thirteen and fourteen centuries. During Mughals period they enjoyed influential position and been considered as one of the important figure in the society but after British step in India, their position got altered and are been considered as “a breach of public decency.” This led to exclusion from the society or a group and then became a subject of everyday abuse and discrimination even after the collapse of British rule in India. 
• Research has been carried out around the globe stressing on issue of Identity, Health and Social stigma and efforts has being made to get their rights and freedom by trying to provide legal protection in the eyes of law and this battle is still continuing today. Transgender person (protection act Right) Act-2016, section 2 (1) defines Transgender as “Neither Whole female nor whole male, A combination of female or male, Neither female Not male. Transgender is a state in which a person’s gender identity does not match with his/her physical sex”.
• Transgender falls primarily under two categories, first – they are someone who are born male and live as female; and the other – who are born female and live as male. As per the latest Census , India recorded over 487 thousand people who are identified as the third gender, most of whom came from the northern state of Uttar Pradesh. 
• We Indians proudly say a very famous quote on brotherhood for supporting the peace and love around the earth – ―Vasudhaiv Kutaumbkam. This ―Vasudhaiv Kutaumbkam” could not be able to give suitable space, right, respect, love and affection for its own Transgender children. This community is also living on margins socially, educationally, economically, psycho-socially and psycho-sexually. They are also fighting since hundreds years for their identity and rights.

SEXUAL ORIENTATION OF TRANSGENDER:

Sexual orientation is an intrinsic part of a person’s identity. It refers to a person’s capacity for profound emotional, physical or romantic attraction towards other people. It is distinct from gender identity; trans people may be heterosexual, lesbian, gay or bisexual (or pansexual). The acronym LGBT stands for lesbian, gay, bisexual and transgender. The transgender communities not only facing barrier in disclosing their identity further they were denied by society to do certain works for their livelihood.

TRANSGENDER RIGHTS IN OTHER COUNTRIES :

Transgender community is not only deprived of their basic human right in India but all throughout the world.  However, now civil society is raising its voice in support of this community and accordingly we see some changes in the status of this community at international level as well. Few countries allow them to lead their life according to their own choice and gives them right to sexual orientation.

• Argentina: Argentina is the first country in the world that made laws on transgender rights. In 2012, Argentina’s Senate unanimously approved the Gender Identity Law making sex-change surgery a legal right. The procedure is included in both public and private health care plans.
• Denmark: In 2010 the Council of Europe adopted a resolution calling on member states to guarantee the rights of transgender people to obtain official documents with their chosen status without requiring other procedures such as sterilization, surgery or hormone thereby. Four years later Denmark became the first European country to allow people to apply for a legal gender change and obtain a new gender status on their identification card with a simple declaration.
• USA: In the USA, under Section 1557 of the Affordable Care Act, May 13, 2016, discrimination based on gender identity has been banned. The rule applies to discrimination in health settings that receive federal financial assistance, every health program administered by the Department of Health and Human Services, and every health program administered by Title I of the Affordable Care Act. The rule states – it is unlawful for an insurance carrier to “have or implement a categorical coverage exclusion or limitation for all health services related to gender transition”. Transgender law center works to change law, policy and attitudes so that all people can free from discrimination regardless of their gender identity or expression.
• Germany: In Germany, the Federal Social Court ruled in 1987 that gender reassignment measures in the case of trans sexuality are subject to payment”. The costs for gendermodifying or gender-adjusting treatments are only covered by the health insurances once the medical necessity of the respective treatment has been determined in each individual case.
• Sweden: Sweden Government provides gender-affirming health care for transgender and gender-nonconforming people. They have multidisciplinary care teams to offer personalized, patient-centered care that addresses each individual’s unique health care needs. Also, the national health insurance covers all costs for medical care and pharmacological treatment, except facial surgery.
• South Asian Countries:  Recently many south Asian countries has also given legal status to transgender recognizing them as the third gender and allowed all the rights which is given to the other citizens of the country. Some of them are:
• Pakistan: Pakistan in 2009 became one of the first ever to legally recognize a third sex.
• Nepal: Nepal in 2013 added a transgender category on citizenship certificates, which act as a national identity card.
• India: In 2014 India’s Supreme Court recognized the existence of a third gender.
• Bangladesh: From 2018 transgender people have been able to register to vote as a third gender in neighboring Bangladesh.

YOGYAKARTA PRINCIPLES AND ITS ALLIANCE WITH INDIAN CONSTITUTION:

The Yogyakarta Principles are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity. The Principles affirm binding international legal standards with which all States must comply. They promise a different future where all people born free and equal in dignity and rights can fulfill that precious birthright. These principles were adopted in a meeting held in Yogyakarta, Indonesia, in 2006. Several nations including India guaranteed these principles in their municipal laws. Those principles were,

THE RIGHTS TO EQUALITY AND NON-DISCRIMINATION : Everyone is entitled to

enjoy all human rights without discrimination on the basis of sexual orientation or gender identity. Discrimination on the basis of sexual orientation or gender identity includes any distinction, exclusion, restriction or preference based on sexual orientation or gender identity which has the purpose or effect of nullifying or impairing equality before the law or the equal protection of the law, or the recognition. Articles 14 and 15 of Indian Constitution retaliates the similar context.

THE RIGHT TO RECOGNITION BEFORE THE LAW: Persons of diverse sexual orientations and gender identities shall enjoy legal capacity in all aspects of life. Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom. No one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilisation or hormonal therapy, as a requirement for legal recognition of their gender identity.  

THE RIGHT TO LIFE : No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity. The death penalty shall not be imposed on any person on the basis of consensual sexual activity among persons who are over the age of consent or on the basis of sexual orientation or gender identity. Under Article 21 of the Indian Constitution “No person shall be deprived of life and personal liberty expect according to the procedure established by law” which applies to every one including transgender.

THE RIGHT TO SECURITY OF THE PERSON: Everyone, regardless of sexual orientation or gender identity, has the right to security of the person and to protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual or group.

THE RIGHT TO PRIVACY: Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honor and reputation. Right to privacy had been made a fundamental right under Article 21 of Indian Constitution.

THE RIGHT TO FREEDOM FROM ARBITRARY DEPRIVATION OF LIBERTY: No

one shall be subjected to arbitrary arrest or detention. Arrest or detention on the basis of sexual orientation or gender identity, whether pursuant to a court order or otherwise, is arbitrary. Under Article 22 of Indian Constitution gives protection against arrest and detention in certain cases.   The nature of any charges against  them, to be brought promptly before a judicial officer and to bring court proceedings to determine the lawfulness of detention, whether or not charged with any offence.   

THE RIGHT TO A FAIR TRIAL: Everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, in the determination of their rights and obligations in a suit at law and of any criminal charge against them, without prejudice or discrimination on the basis of sexual orientation or gender identity

THE RIGHT TO PROTECTION FROM ALL FORMS OF EXPLOITATION, SALE AND TRAFFICKING OF HUMAN BEINGS: Everyone is entitled to protection from

trafficking, sale and all forms of exploitation, including but not limited to sexual exploitation, on the grounds of actual or perceived sexual orientation or gender identity. Measures designed to prevent trafficking shall address the factors that increase vulnerability. Article 23 of the Indian constitution prohibits traffic in human beings and forced labor.

THE RIGHT TO WORK: Everyone has the right to decent and productive work, to just and favorable conditions of work and to protection against unemployment, without discrimination on the basis of sexual orientation or gender identity. Under Indian constitution right to work is made as a directive principle of state policy in article 41 through which the state is duty bound to implement it.

THE RIGHT TO AN ADEQUATE STANDARD OF LIVING: Everyone has the right to an adequate standard of living, including adequate food, safe drinking water, adequate sanitation and clothing, and to the continuous improvement of living conditions, without discrimination on the basis of sexual orientation or gender identity

PROTECTION FROM MEDICAL ABUSES: No person may be forced to undergo any form

of medical or psychological treatment, procedure, testing, or be confined to a medical facility, based on sexual orientation or gender identity. Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed.

THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION: This includes the expression of identity or personhood through speech, deportment, dress, bodily characteristics, choice of name, or any other means, as well as the freedom to seek, receive and impart information and ideas of all kinds, including with regard to human rights, sexual orientation and gender identity, through any medium and regardless of frontiers. Article 19 of Indian constitution   guarantees freedom of speech and expression to all its citizens. 

THE RIGHT TO SEEK ASYLUM: Everyone has the right to seek and enjoy in other countries asylum from persecution, including persecution related to sexual orientation or gender identity. A State may not remove, expel or extradite a person to any State where that person may face a well-founded fear of torture, persecution, or any other form of cruel, inhuman or degrading treatment or punishment, on the basis of sexual orientation or gender identity.

THE RIGHT TO PROMOTE HUMAN RIGHTS: Everyone has the right, individually and in association with others, to promote the protection and realization of human rights at the national and international levels, without discrimination on the basis of sexual orientation or gender identity. Few other principles were:

• The Right To Adequate Housing. 
• The Right To Found A Family. 
• The Right To Participate In Public Life. 
• The Right To Participate In Cultural.
• The Right To Freedom Of Peaceful Assembly And Association. 
• The Right To Freedom Of Thought, Conscience And Religion. 
• The Right To Freedom Of Movement.
• The Right To Treatment With Humanity While In Detention. 
• The Right To Freedom From Torture And Cruel, Inhuman Or Degrading Treatment Or Punishment.
• The Right To Social Security And To Other Social Protection Measures.
• The Right To Education The Right To The Highest Attainable Standard Of Health. 

LEGISLATIONS INTRODUCED IN INDIA :

Section 377 of Indian Penal Code: In case of  Navtej Singh Johar v. Union of

India  constitutional validity of sec 377 of IPC was challenged. This section states 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.” Through writ petition the petitioner sought the recognition of right to sexuality, right to sexual autonomy and right to choose a sexual partner to be a part of Art 21 of the Constitution of India. The supreme court decriminalized Sec 377 stating that discrimination on the basis of sexual orientation is volatile 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 denied.

Immoral Traffic Prevention Act, 1956: This Act was amended in the year 1986. The new amended Act makes it gender neutral. Under the ambit of this Act along with male and female sex worker those whose identity is not known is also included. Now male and hijra sex worker is also the criminal subject of this Act and it gives police officers legal basis for arrest and intimidation of the trans sex workers.

Right of Transgender Bill 2014: The Bill was introduced in Rajya Sabha on 12th December 2014, and it was unanimously passed with opposition party support on 24th April. This day (24th April) is also celebrated as Transgender day after passing of the Bill in the Rajya Sabha. 2015 The bill was introduced by the, Tiruchi Siva, MP from Tamil Nadu. The Bill if implemented will definitely reduce the suffering of transgender. The are various chapter under the bill dealing separately with different problems faced by this vulnerable group.

• The Chapter on education makes it mandatory for the government to provide inclusive education for transgender students and also to provide adult education to them.
• Under the employment chapter there are two clauses 
  • Dealing with the formation of schemes for vocational training, and Self-employment of transgender persons by the government.
  • Non -discrimination against transgender persons in any establishment whether it be public or private.
• In the social security and health chapter, it is incumbent upon the government to propagate social security and health care facilities which are to be provided in the form of HIV clinics and free SRS. There is also provision for right to leisure, culture, and recreation. They should also have basic rights like access to safe drinking water and sanitation etc.
• The Bill also provides for the setting up a number of authorities and forums like National and State Commissions for transgender person. Such commissions work will be mainly in the nature of inquiry and recommendations in the inconsistencies in the implementation of the law or violations of right of transgender.

However, the bill could be passed by Lok Sabha and ultimately lapsed. After two years, a new bill was introduced in Lok Sabha i.e. Transgender Persons (Protection of Rights)

Bill, 2016. In contract to the 2014 Bill, the bill of 2016 was substantially different from NALSA judgement. The Parliamentary Standing Committee on Social Justice also highlighted several instances where the 2016 Bill conflicted with NALSA, in its 43rd Report. The Lok Sabha however, passed the Bill without incorporating the recommendations of the Standing Committee and it  became the Transgender Persons (Protection of Rights) Act, 2019. Many transgender people challenged the bill contending that few provisions of the bill being unconstitutional. The Petitioners seek for the Court to strike down Sections 4, 5, 6, 7, 12(3), 18(a) and 18(d) of the Act as unconstitutional. In addition, they pray for the Court to issue a Writ of Mandamus that directs Centre and State Governments to provide reservations for transgender persons in public employment and education, as directed by the Court in NALSA. 

Role of Judiciary in protecting Human Rights of Transgender in India:

 21st century has witnessed a remarkable change in regard to the recognition and acceptance of the transgender’s rights in India. In this process may laws and policies were framed, some legislations were amended and repealed. This changes scenario helped in changing the way we conceive the notion sexual orientation and gender identity. The judiciary played a significant role in according the human rights of transgender community in India.

In National Legal Services Authority (NALSA) v. Union of India, the Supreme Court officially formed the “third gender” category for transgender people, classifying them as a socio-economic backward classis. This decision guided the government to ensure that they get job quotas, admission in educational institutions and health benefits. The Supreme Court taking in view the discrimination and abuse suffered by transgender people provided various anti-discriminatory measures in their favour.

In K S Puttaswamy v. Union of India popularly known is an integral judgement as it was held in this case that right to privacy is an integral part of right to privacy. Right to Privacy was also extended to every individual irrespective of their gender and sex. Recognition of privacy for members of the transgender community as an inalienable grant them autonomy and protection from State action while exercising their right to choose their partners.  

In Navtej Singh Johar v.UOI  the petitioner challenged the constitutional validity of section 377 IPC being violative of right to privacy equality, freedom of expression and protection against discrimination under Article 14, 15, 16 and 19 1 (a) of Constitution of India. The Supreme Court struck down Section 377 to the extent that it criminalized sex between two consenting adults. 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 form part of self-identity and denying the following right is violative of right to life and fundamental right cannot be denied.

Social economic profile of transgender people :

According to 2011 census, 4,87,803 lakhs are been classified as transgender out of which 54854 is below 6 yrs. and literacy rate is 56.07%.Maximum number of concentration are found in Uttar Pradesh and Maharashtra consisting of 28 and 8% respectively. 

School/college admission forms: the university grant commission notification issued on July 2014 in line with the supreme court judgment in that carved out independent status for the third gender to provide transgender students as a special status. And it ordered to provide admission facilitation and counseling facilities for transgender students.

Transgender Education: The enrolment of transgender is significantly low and dropout rate at the primary and secondary level is still very high. They are hardly educated as they are not accepted by the society and therefore do not receive proper schooling. Even if they are enrolled in an educational institute, they face lots of harassment and are bullied every day and are asked to leave the school or they drop out their own. It is because of this that they opt for begging and sex work. The overall pass percentage of transgender candidates in CBSE class XII examination has increased by a record 83.3% in 2019. The central board of secondary education result for classes 10th and 12th were declared on July 13, 2020 and July 15, 2020 respectively. As per the CBSE press release, there were 1,889,878 candidates in class 10th and 1,206,893 candidates were in class 12. Among the students who registered for class 10th exam, 7,88,195 were girls, 11,01,664 were boys and 19were transgender persons. For class 12th, 5,22,819 were girls, 6,84,068 were boys, and six were transgender person. There has been a spike in the percentage of students from class 10th and 12th who have passed this year. The pass percentage of class 10th students has increased by 0.36% and that of class 12th students has increased by 5.38%. It has been considered a significant achievement by various education departments across India but the pass percentage of transgender persons has been widely ignored.

Aadhaar system UIDAI: Unique Identification Authority of India, Government of India has also provided an option of ‘T’ for transgender in the preparation of Aadhaar card. 

Election Commission of India: Election Commission of India has issued directions under provisions of Rule-4 of the registration of electoral roll-1960 to enroll transgender people as voters. In 2009 election commission of India decided to formally allow an independent designation for intersex or transgender voters. The move meant that Indians could choose an ‘other’ category indicating their gender in voter forms.

Passport: The Ministry of External Affairs, has given provision of third gender in their software for issuing passport.

The transgender community in much more backward if we analyze  practical data, due to absence of property, ownership, and low economic status, poor monthly income, poor housing, absence of legal documents of identity such as election photo identity card, ration card, poor health status, absence of family support, hostile attitude of community and society are common problems of transgender.

Illiteracy and low level of educational status and the lack of legal documents hinder their access to different social protection and livelihood promotion schemes like pension, micro credit, bank loan, etc. low level of education and absence of vocational skills push them to low paying jobs, under employment of unemployment.

TAMIL NADU A MODEL STATE TO LEARN AND ADOPT BEST PRACTICES FOR TRASGENDERS:

A welfare board was formed with representatives from transgender community. The board has conducted the enumeration of Transgender populations in all districts of Tamil Nadu and in some places identity cards – with the gender identity mentioned as “Aravani” – are being issued. The government has also started issuing ration cards (for buying food and other items from government fair-price shops) for transgender people. In addition, Tamil Nadu government issued a government order to enroll transgender people in government educational institutions and to explicitly include ‘other’ or ‘third gender’ category in the admission forms. For the alternative source of income self help groups were formed which helps to generate loan from commercial banks for setting up business like trading of garments. Public distribution system cards issued for supplying subsidized food and fuel. Tamil Nadu government has given free housing to transgender people. Free sex reassignment surgery for trans women is made available in selected government hospitals. 

PRACTICLE HURDELS AND RECOMMENDATIONS: 

Gaps In The Implementation Of Supreme Court Judgment: The paradigm shift that took place when the NALSA judgment was passed was has not yet translated into reality. The central and state governments have still not implemented the order full and effectively, the judgment is far from clear on its stance on the recognition of transgender community.

Need To Introduce Schemes To Address The Stigmas: There must be a strong mechanism to curtail the transgender discrimination which include:

• Counseling should be provided to parents to enable them to treat their transgender children at par with other children. Sanction must be imposed on them if they discriminate or harass them.
• As there are several allegations of police atrocities and crime against transgender persons, police personal should be given special training. Special grievance redressal cells for transgender protection should be set up in all police stations to tackle the abuse.
• Access to separate queue for gender segregated spaces must be provided for transgender similar to female and male queue in airports, public transportation etc. 
• Separate public toilet facilities should be provide in schools, colleges, hospital wards and other public places.
• Appropriate legislation and its enforcement needs to be carried out to ensure their legal marriage, family inheritance of property.
• Transgender people are deprived of all the health services as they are poor and isolated. Proper public health care services should be made available to transgender people which include sex re-assignment surgery and gender transition services.
• Gender recognition certificate should be provided to transgender people. This will help them to avail them the benefits provided by governments.
• Apart from these transgender community must also adhere to few liabilities perse which include excelling in few skills and educations which can show them respectful livelihood in the society.

CONCLUSION:

Awareness must be created among the transgender people, families, society and police for the mainstreaming of the third gender. Proactive participation of transgender in all democratic spaces should be facilitated. Legal and constitutional safeguards are essential to prevent human rights violation of transgender people in India. Legal rules must not subject only to the paper but should be implemented practically. This happens only when people break social stigma and misconceptions that surrounded transgender community. Transgender people also had liability to make their efforts for their better education, livelihood and health care. They deserve due respect and dignity as any other gender gets globally. After all we all are humans in different forms until we discriminate ourselves with gender. It is apt to include them as Trans HUMANS before differentiating as Trans GENDERS.