This article is authored by Sakshee Saxena, a fourth year law student at JECRC University, Jaipur.
The legal status of transgender people has been a controversial issue and is in constant flux. They have always been shunned and kept aside from the general society and question of their identity remained unanswered and unaddressed. The people belonging to the transgender community have been struggling with discrimination and deprivation of basic human rights. However, the condition seems to be evolving and changes are imitated in the Indian legal system with identifying rights of transgenders and enactment of legislations for the same. But there are certain rights that they are deprived of, including same sex marriage. The golden triangle that governs the equality scheme of the Indian Constitution(Articles 14,19 and 21) provides for equal opportunities to every individual irrespective of their race, caste religion, social status and gender. The basic principles of equality beholds “the right of choice and self-determination” i.e. determination of the gender to which a person belongs, which is one of the most basic and important rights they are deprived of.
Evolution and Development
Indian laws have always been binary in nature and have recognised only male and female genders. The non-recognition of third gender has led to the violation of right to equality and increasing discrimination in the society.
Section 377 of IPC which criminalised unnatural offences, was enacted during the British colonial rule.The law was discriminatory against homosexuality and was in violation of human rights that reflected orthodox morality. The section was eventually struck down and held unconstitutional in 2018, but it took almost 70 years of long journey for people belonging to LGBTQ community get the basic human rights.
The beginning of the evolution of the third gender rights can be traced back to early 1990s and major changes can be witnessed after the landmark judgement of the Hon’ble Supreme Court in the case of Naz Foundation V. Govt. OF NCT Delhi[i], The Court had to decide whether section 377 of the Indian Penal Code is constitutional or unconstitutional. Holding it as violative of Articles 14,15 and 21 of the Constitution,the Court ruled that this section denies a person dignity and criminalises his or her core identity solely on account of his or her sexuality.The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution.The Court further held that section 377 of IPC imposed an unreasonable restriction over two adults engaging in consensual intercourse in private. Thus, it was violative of their basic fundamental rights enshrined under articles 14,15,19 and 21 of the Indian Constitution.
A new wave of activism was regenerated, as the Supreme Court overruled the judgement of the Delhi high court and re-criminalized homosexuality in the case of Suresh Kumar Koushal and another v. Naz Foundation and others[ii], the Court held that those who indulge in carnal intercourse in ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category can not claim that section 377 suffers from the vice of arbitrariness and irrational classification,Therefore the Delhi high court was not right in declaring section 377 ultravires of Constitution.
In the case of National Legal Services Authority v Union of India[iii], the hon’ble Supreme Court decided upon the issue of whether there was a need to identify the hijra and transgender as a third gender in terms of education, public health, employment, reservation and other welfare programmes.
The Supreme Court in its landmark judgement identified the ‘third gender’ status for hijras or transgenders. Earlier, the people belonging to the transgender community were obligated to describe themselves as either male or female, but consequently after the judgement was pronounced, they could proudly recognise themselves as transgender. But apart from this,the Court laid down the framework to guarantee the transgender community basic human rights which can be summarised as follows:
· The Hon’ble court held that the non-recognition of the identities of transgenders was violative of Articles 14,15,16 and 21 of the Constitution of India.
· It was also required that government should make policies for the transgender community in accordance Articles 15(2) and 16(4) to ensure equality of opportunity in education and employment.
· As per the verdict, the third gender would be characterised as Other Backward Classes [OBC] to confer upon them the advantages of reservation regarding government jobs and educational institutions.
In simple words, it means that the court accepted the difference between the gender and biological components of sex. The court defined biological appearances to include genital, secondary sexual features, chromosomes etc. but demarcated gender attributes as one’s self-image i.e. an individual’s deep emotional or psychological sense of sexual identity and character which is not constrained to the binary sense of man and woman but can lie on a broad spectrum.
In the famous case of Navtej Singh Johar v. Union of India[iv], a five judge bench of the Supreme Court held that part of section 377 of indian penal code was unconstitutional.It was held that section 377 takes within its fold private acts of adult including LGBTQ community which are not only consensual but are also innocent,as such neither causes disturbance to public order nor they are injurious to public decency or morality. The section does not meet criteria of proportionality and is violative of the fundamental right of freedom and expression including right to choose a sexual partner.
The rights provided under the constitution are subjected to the doctrine of ‘progressive realisation’as such rights evolve with evolution of society.It won’t be fair to say that their condition in the society has improved,however the society has actually started to take the issue of inequality towards transgenders seriously. Various social activists and NGOs have been working together for the development of the transgender community.
Transgender Persons (Protection of Rights) ACT, 2019
The Transgender Bill,2019 was introduced in Lok Sabha on July 19,2019 after recognizing the loopholes and reason for lapse of the Transgender Persons(Protection of Rights) Bill,2018 and the Transgender People(Protection of Rights )Bill 2016.
It was enacted with an objective of protecting the rights of the transgender community in terms of employment, education health care, access to government or private establishments. However it was criticized by transgender people, lawyers and activists in India.it fails to incorporate principles laid down by the Supreme court judgement in NALSA V. UOI in 2014,such as right to declare their identity without undergoing sex reassignment surgery and reservations in jobs and educational institutions. The Act has also been criticised for providing less punishments for crimes against transgender people. Although it was criticised by the opposition party the Bill passed in both the Houses and got the President’s assent on 5th December,2019 and the Act has been in effect since 10th January,2020. The 2019 Act highlighted the following provisions:
I. Prohibition of discrimination against transgender people in terms of employment, healthcare and educational institutions.
II. Right to self-perceived gender identity.
III. Formulation of schemes related to welfare, education, social security and health.
IV. Establishment of national council for transgender persons to analyse and evaluate the measures for protection for their rights.
This Act is the first statutory enactment which has been introduced for enhancing the conditions of transgenders. However the existence of any legislation is not enough, it must be implemented effectively and strictly. Though there may be loopholes in the provisions of the Act, it is the first step in persisting the struggle of transgender people for their identity and recognition.
A Way Forward
With the decriminalization of section 377 and the enactment of the Transgender Persons(Protection of Rights)Act,2019, the gateway has opened for their rights and freedoms, but people has not fully accepted the transgender community in the society.Undeniably they have a long way to go ,to cater all the issues they have been subjected to from ages. To change the situation of transgender people in the society, the state should frame a distinct legal system like they’ve done for the upliftment of women,Mere verdict is not in itself sufficient. For transgenders, a little acceptance from the society can take them to places. People should start accepting that they are humans too and deserve equal status in society. Instead of ignoring their existence, people should start talking about them and should accept them the way they are.
It becomes important to consider here that the importance of the Nalsa judgement and Navtej Singh Johar judgement is not only restricted to the recognition of third gender identity and legalisation of homosexuality. but are also reformatory because apart from deciding upon the issue in controversy, they even laid down the basic framework to confer other civil rights which were not available to the transgender community but are generally enjoyed by others in society. There is a forthcoming need of societal acceptance of this community who have always been subjected to neglect and exclusion.
Accordingly, such recognition and acceptance of the transgender people is the beginning of their development and to bring them in the mainstream of society.
[i] 2010 cr LJ 94 (Del), Naz Foundation V. Govt. OF NCT Delhi [ii] 2014 cr LJ 784 (sc), Suresh Kumar Koushal and another v. Naz Foundation and others [iii] AIR 2014 SC 1863, National Legal Services Authority v Union of India [iv] AIR 2018 SC 4321, Navtej Singh Johar v. Union of India