Transgender Community In India: Rights, Challenges, And Opportunities

KEY TAKEAWAYS

• The Transgender community people are recognized as the third gender in India and such recognition was held to be a matter of their human right.
• The Indian Constitution, with a view to protect them against oppression and harassment, has given various rights under its different articles.
• However, irrespective of that, these people face a number of challenges and discriminations.
• The Government, as well as the Judiciary, has been instrumental in upholding their rights over the years.
• Despite all these, it is a harsh reality that such transgender persons are still deprived of their basic sanitation facility, that is, the availability of separate toilets.
• A plea in this regard is pending before the Delhi High Court.

INTRODUCTION

Acche din! This adage has become almost a cliché to every citizen of India. However, in reality we are yet to achieve the same. Look at the status of equality guaranteed under our Constitution. Ask yourself as a citizen whether we are really equal? The answer is a definite ‘No’. Despite every succeeding government’s promise, they considerably fail to fulfill it. Keeping aside all other factors, let us look at the position of transgenders in India. It gives a clearer picture on how our country is still lacking to treat every individual with equality. Despite years after we claimed ourselves independent, the so called ‘third gender’ cannot be proud of it. This is a major drawback that is preventing us from progressing.

Who are these people under the transgender community?

The term “transgender” has been coined in the mid-1990s for those people whose characteristics and behaviors appear to be gender atypical, that is, outside the stereotypical norms of a gender. They are also known to be gender variant, gender different, and gender non-conforming.

RIGHTS OF TRANSGENDER PEOPLE

What are their rights?

The third gender people are immunized under the India law with some basic rights under Article 14, Article 15, Article 16, Article 21, and Article 23 of the Indian Constitution.

Article 14: Equality before law and equal protection of law.

Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

Article 16: Equality of opportunity in matters of public employment.

Article 21: Right to Life and Personal Liberty. This right has a wide scope and includes various rights, including Right to Health, Right to lead life with dignity, and Right to Privacy, within its ambit.

Article 23: Prohibition of traffic in human beings and forced labour.

Some rights that they are deprived of are:

Across the world, transgender people are denied a number of rights. These include right to vote, to own property, to marry, to claim a formal identity through a passport, to hold a ration card, to possess a driving license, to get education, to claim employment, right to health, etc.

CHALLENGES THEY FACE

1. Education: This is one of the major challenges faced by the transgender people in India. According tothe 2011 Census, there are 4.9 Lakhs of transgender people in the country, and out of that there were 54, 854 children below the age of six. So, if we go by the Census report, these 54, 854 children should be presently in their secondary and higher secondary school. But this is not the case in reality. For instance, let’s see the 2020 statistics with respect to Class 10 and Class 12 CBSE exams. Around 1, 889, 878 students had appeared for Class 10 CBSE exams in 2020, out of which 11, 01, 664 were boys and 7, 88, 195 were girls. Similarly, 6, 84, 068 boys and 5, 22, 819 girls wrote Class 12 CBSE exams in 2020. However, sadly, only the number of transgender students in this count stands at just 19 and 6 for Class 10 and 12 respectively. This questions the negligence of our educational system.
2. Awareness: A 2017 report of NHRC states that 79% of transgender don’t have own accommodation. Similarly, 52.61% have monthly income of less than 10,000 rupees. Further, since most of them do not have a voter ID or AADHAR card, they are not in a position to avail themselves their rights and government schemes.
3. Trafficking, begging, dancing at celebrations, sex work, unemployment, lack of medical facilities, no inheritance of property, no provision for adopting a child, etc. are some other problems.

REVOLUTIONARY STEPS TO EMPOWER THE COMMUNITY

• So far, only two states have come up with visible welfare schemes in favour of transgender people:
• Tamil Nadu: This is the state that has been proactively working on the welfare of these community people. It had established “Aravanigal/Transgender Women Welfare Board” to address their social welfare issues. The state also provides them with land. In 2014, it prohibited ‘normalizing’ surgeries until the patient is old enough to give consent.
• Andhra Pradesh- The state ordered the Minority Welfare Department to consider Hijras as a Minority and develop welfare schemes. In Hyderabad, transgenders, who lost their jobs due to COVID-19, began becoming entrepreneurs. One instance is their engagement in making ginger garlic paste and pickles.
• At the central level, efforts have also been made to recruit them into its paramilitary forces.
• Anbu Ruby was appointed as a nurse to a government hospital in December 2019. This was the first time in this regard.
• They are also being selected as police officers.
• “State Policy for Transgenders in Kerala 2015” is an initiative of the Kerala Government which is much related to Tamil Nadu’s Aravanigal Women Welfare Board.
• The Transgender Persons (Protection of Rights) Act, 2019: Key points
• Highlights

1. Gender reassignment surgeries free of cost at state run hospitals.
2. Government to bear the cost of accommodation and schooling for them.
3. Opportunity to study at Government run schools and universities free of cost.
4. Access to quality healthcare, affordable housing, medical and life insurance, employment, etc.

• Challenges

1. If such person wants to officially get recognized as a “transgender”, it is mandatory to register with the Government. However, they must also submit the proof of gender confirmation surgery to the Government.
2. The Act also doesn’t guarantee right to marriage, adoption, social security, reservations in education and employment, etc.
3. The Indian law prescribes punishment in case of harassment of all kinds is life sentence or death, however, the bill makes it punishable only for a period from six months to two years.

EFFECTIVE ROLE OF JUDICIARY

There have been various instances wherein the Indian judiciary had stepped in and effectively upheld the rights of the transgender people. Some of the important cases include:

1. NALSA vs. Union of India (2014): The Supreme Court ruled that transgender people should be recognized as third gender and must be allowed to enjoy all the Fundamental Rights.
2. Navtej Singh Johar v. Union of India (2018): Section 377 provides punishment for unnatural offences, and this impediment was used as an instrument to harass them. Due to their relatively insignificant numbers, they were less noticed. However, the Supreme Court, in this case, decriminalized the so called “unnatural offences” under the Section.
3. In Arunkumar & Sreeja v. The Inspector General of Registration (2019): This is a landmark case with respect to transgender people’s right to marry. The Madras High Court, for the first time, validated the right to marriage of Transgender Persons under Article 21 of the Indian Constitution.

BASIC SANITATION FACILITIES FOR TRANSGENDER COMMUNITY

Imagine if you want to go to a public washroom and find out there is no separate toilets for your gender. Isn’t that discriminatory? Isn’t that a sign of negligence and ignorance? Well, this is how the third gender people are suffering in public. There is a case in West Bengal that drove the authorities to provide basic sanitation facilities to transgender persons. Sobhan Mukherjee, from Kolkata, was instrumental in installing transgender toilets in the city. He further went ahead to demand seats for them in public transport. Now, this is just one case that occurred in a corner of the country. There might be more such instances that would have gone unnoticed. This clearly reveals that there has been no specific legal provision for this facility. However, when such demands reach the doors of the judiciary, we get to know about them. One such latest case took place in Delhi.

Jasmine Kaur Chhabra vs. Union of India (2021)

A final year Law student, Jasmine Kaur Chhabra, approached the Delhi High Court, seeking its directions to the Central Government for making provisions for separate public toilets for the third gender. The petitionercited the rights recognized under the Indian Constitution to support her plea. It was further submitted that non-availability of separate toilets is violative of the judgements given in NALSA vs Union of India and Navtej Singh Johar v. Ministry of Law.

Replying to the petition, the Delhi Government stated that it has taken all the necessary steps under Section 22 of the Transgender Persons (Protection of Rights) Act, 2019. Further, it also submitted that arrangements have been made to make “T” signs on the toilets of such people. However, the petitioner alleged that there has been no update in this issue.

The Delhi High Court Bench of Chief Justice DN Patel and Justice Jyoti Singh issued a notice to the State seeking its response on the progress regarding the building of separate toilets for third gender people, and adjourned the matter to a later date.

CONCLUSION

It is visible that the Indian Government always places each of its citizens at a higher height and thus, has conferred several rights on them. However, did you know that only a handful of people actually get to enjoy those rights? The percentage stands very low till today. If this is the case of commonly acknowledged people, then imagine the plight of the transgender community. One of the chief causes for this is their lack of awareness. If we want effective participation of every citizen, it is also equally important to raise voice against injustice. The fight against discriminations of transgender persons is often not taken strictly because of their comparatively low numbers. Despite that, we are witnessing some voices here and there. The petition before the Delhi High Court highlighting the need for separate public toilets for these people is one among them. The proactiveness of the High Court is crucial to give the facility that the third gender deserves.