brillopedia
Nov 21, 20206 min
By
Shalini Gupta, V year of B.A.,LL.B. from Galgotias University
INTRODUCTION
Gender is an individual’s identity. It is something we are born with. Gender of a person is decided well before their birth but we get to know about their gender after their birth. According to society, gender is classified into two i.e. male and female. But there are different other genders generally given the term LGBTQ community which means lesbian, gay, bisexual, transgender, queer community. Transgenders are the ones whose gender differs from their sex assigned to them at birth. We can say that this is due to the progressive changes in their mentality. In our society, these people did not get respect for acting in a deviant manner. These people face violence as well as discrimination. Society does not accept their truth for being transgender and therefore do not treat them well. According to the "2015 U.S. Trans Survey," 29% of transgender people line in poverty, 30% of them reported to be homeless, experienced unemployment at 3x the rate of the general population and 30% of them reported to be fired and denied a promotion.[i] Today, it is very important to know that whether the transgender’s rights are included under basic human rights or not.
CHALLENGES FACED BY TRANSGENDERS
Transgender persons face a lot of difficulties as they are being discriminated and facing inequality and hence, it is an important concern for human rights activists in India. Trans persons continue to remain among the marginalised sections of society.[ii] They have lack of accurate identity as without identity documents, one cannot avail basic rights in India such as the right to vote, they cannot travel, right to education, health services and other public services. They face harassment at workplaces and other public places. The National Transgender Discrimination Survey (NTDS) found that almost 20 per cent of respondents had been refused medical care outright because of bias.[iii] Many of them being dismissed from their workplaces for being transgender. Due to unemployment, they face poverty and due to poverty, we have seen many transgenders begging for money at the red lights. Therefore, people living in the society are responsible for their condition. They are not even allowed to participate in any social or cultural events as the society does not allow them therefore, they face a lack of opportunities. Society does not accept them as human beings. They even do not get support from their family members.
Earlier, people have been under arrest or enforced into insane asylums for being transgender.[iv] They are not able to live a proper life like other individuals. Indian culture says that blessings or curses of transgender persons come true. But their parents also have a mindset that being a parent of transgender is shameful. Therefore, they disown their child for their so-called reputation in society. People also use words like ‘HIJRA’ for them as their identity. But the truth is that only a transgender person who accepts to become a part of this community can only be called a Hijra.[v] In early mythology, these people were called Kinnars.
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2019
Before 2018, section 377 of Indian penal code criminalises homosexuality which was referred to as unnatural offences and states that whoever voluntarily has carnal intercourse against the order of nature will be punished for imprisonment for life. But Supreme Court gave a historic judgement for transgenders by decriminalizing section 377 of Indian Penal Code and allowed all consensual sex among adults including gay sex.[vi] Supreme Court also included the right to privacy under fundamental right within Article 21 and observed: “sexual orientation is an essential attribute of privacy”.[vii]
The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on July 19, 2019, by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot. Lok Sabha passed the Bill on August 5, 2019.[viii] The Bill was finally passed by Rajya Sabha on November 26, 2019. The Bill defines a person as someone whose gender does not match the one assigned at birth.[ix] The Bill gives certain rights to these people which were not given before the introduction of the Bill. These rights include the prohibition of discrimination against a transgender person concerning education, employment healthcare, access to, or enjoyment of goods, facilities, opportunities available to the public, right to movement, right to reside, rent or otherwise occupy the property, opportunity to hold public or private office and access to a government or private establishment in whose care or custody a transgender person is. It also criminalizes physical abuse against the transgender community.[x]
Thousands of LGBTQ community members protested for the Bill as it has several clauses that are detrimental to their fundamental rights. They were demanding equal access for civil rights which has been given to all the individuals of India. The penalty for sexual violence mentioned in the bill is lower than crimes against women and does not define specific physical sexual offences that transgender people face in reality. [xi] it also does not provide for reservation in education and employment as it is provided for scheduled castes and scheduled tribes in the Constitution of India.[xii] The Bill does not recognize the gender unless these people had undergone a sex reassignment surgery and have applied for the certificate. Therefore, they feel oppressed as they have not given similar rights as were given to the males and females of India.
INTERNATIONAL LAWS FOR TRANSGENDER RIGHTS
Article 1 of the Universal Declaration of the Human Rights states that all human beings are born free and equal in dignity and rights. Therefore, there should be no discrimination between transgenders. Countries like Europe, South Africa and Australia prohibits discrimination against transgender persons. In Spain, there are laws through which transgender person can change their names and gender without undergoing sex-reassignment surgery.[xiii]In June 2011, the United Nations Human Rights Council became the first UN intergovernmental body to adopt a wide-ranging resolution on human rights, sexual orientation and gender identity.[xiv] In L. V. Lithuania case (2007), the European Court found that there is a limited legislative gap in gender-reassignment surgery through which these people experiences depression and the court concluded that there had been a violation of Article 8 of the European Convention of the Human Rights.[xv] Article 26 of the International Covenant for civil and political rights (ICCPR) prohibits discrimination and gives equal protection to all persons before law including transgender persons. Similarly, Article 9 of ICCPR gives the right to liberty to all persons including transgender persons. Article 12 of the International Covenant for Economic, Social and Cultural Rights gives the right to health to the transgender persons as it requires positive State protections.[xvi]There are many other rights which have been given to transgender persons in foreign countries.
CONCLUSION
There is a variation in the treatment of transgender persons in India and foreign countries. The recognition of LGBTQ rights by the Supreme Court is of great victory. But in India, society still needs to understand that these people are also human beings and they have equal rights in every aspect which they are enjoying. There is no doubt that many people of India had accepted transgender persons and allowed for same-sex marriage as well. But still, India needs to grow more. There is a need to educate the people of India regarding their rights so that it will be easy for the transgender persons to live with respect.
[i]Whatdoestransgendermean,GLAAD, https://www.glaad.org/transgender/transfaq.
[ii]Malvika Rajkumar, The challenges faced by transpersons in India, MEDIUM (Feb 27, 2018), https://medium.com/one-future/the-challenges-faced-by-transpersons-in-india-fa46575ca14d.
[iii]Understanding the transgender community, HRC, https://www.hrc.org/resources/understanding-the-transgender-community.
[iv]Issues and problems of the transgender population, SHODHGANGA, https://shodhganga.inflibnet.ac.in/bitstream/10603/243891/6/06_chapter%203.pdf.
5 humanity always in Human Rights, 5 ways our ignorance about transgender Indians continues to oppress them, YOUTH KI AWAAZ (Dec 12, 2017), https://www.youthkiawaaz.com/2017/12/t-for-transgender-a-life-of-struggle-for-identityequalitydignityacceptance-and-love-2/.
[vi]Navtej Singh Johar v UOI W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.
[vii]Justice K.S. Puttaswamy v UOI (2017) 10 SCC 1.
[viii]Ministry: Social Justice and welfare, The Transgender Persons (Protection of Rights) Bill, 2019, PRS LEGISLATIVE RESEARCH, https://www.prsindia.org/billtrack/transgender-persons-protection-rights-bill-2019.
[ix]The Hindu Net Desk, The Transgender Persons Bill explained, THE HINDU (Nov 30, 2019, 1:30 PM), https://www.thehindu.com/news/national/watch-all-about-the-transgender-persons-bill/article30122229.ece#:~:text=The%20Transgender%20Persons%20(Protection%20of%20Rights)%20Bill%2C%202019%20was,housing%2C%20healthcare%20and%20other%20services..
[x]Ministry of law and justice, THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019, 40 0f 2019, http://socialjustice.nic.in/writereaddata/UploadFile/TG%20bill%20gazette.pdf.
[xi]Niha Masih, A bill meant to protect India’s transgender community instead leaves them angry and aggrieved, THE WASHINGTON POST (Nov 30, 2019, 3:30 PM), https://www.washingtonpost.com/world/asia-pacific/a-bill-meant-to-protect-indias-transgender-community-instead-leaves-them-angry-and-aggrieved/2019/11/29/6c2c7b7e-116b-11ea-924c-b34d09bbc948_story.html.
[xii]Supra note 7.
[xiii]International laws protecting transgender workers, HRC, https://www.hrc.org/resources/international-laws-protecting-transgender-workers.
[xiv]International Human Rights law and sexual orientation and Gender identity, UNITED NATIONS FOR LGBT EQUALITY, https://www.unfe.org/wp-content/uploads/2017/05/International-Human-Rights-Law.pdf.
[xv]Important international jurisprudence concerning LGBT rights, HRW (May 25, 2009), https://www.hrw.org/news/2009/05/25/important-international-jurisprudence-concerning-lgbt-rights.
[xvi]AJ Agrawal, need for recognition of Trans Rights in International Human Rights Law, CENTRE FOR LAW & POLICY RESEARCH (April 9, 2020), https://clpr.org.in/blog/need-for-recognition-of-trans-rights-in-international-human-rights-law/.