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Published : August 22, 2017 | Author : Smriti ranjan
Category : Miscellaneous | Total Views : 619 | Rating :

Smriti ranjan
I am a law student pursuing masters degree in business laws from New Law College, Pune.

Outcaste, Oppressed And Ostracized: The Transgender Persons In India

A transgender person is one who is neither male nor female. It is an umbrella term which includes any person who does not conform to the conventional standards of gender. Although the constitutional rights extend to all the citizens of the country, this community has been facing prejudice for centuries and in many cases at the hands of policemen and law enforcement authorities. There is no law that caters to their need specifically. The ‘Transgender Persons (Protection of Rights) Bill,2016’ has been approved by the Union Cabinet for introduction in the Parliament and if passed, it will give a chance to the community to live a life of dignity, freedom, equality and empowerment. It’s high time that we as privileged population help the less privileged to grow socially, economically and culturally. They are no less citizens than us and they have proven it quite strongly that if given a chance they can be useful asset of the nation. They have not let the injustice break their spirit. They are fiercely accepting their identity, educating themselves and becoming professionals. Their number is more than 25lakhs and hence cannot be ignored. The purpose of writing this article is to sensitize and educate people. Having a legislation passed by the Parliament will not suffice the situation if the mindset of the common people does not change. If we don’t treat them as equals, no law at their disposal can enhance their life. Being born differently is not their choice, so how can we punish them for something which they have not done? I have collected information from various newspaper articles, judgments, online debates, online published articles and reading constitution books.
Being the largest democracy in the world, our country is divided into various cultures resulting into various castes and then into so many languages. However, the most basicdivision that any country sees is that of gender, as a citizen we are either male or female. So, where does someone fit if he or she does not conform to the regular norms of sex as accepted by the society or what does it feel like to be different, both physically and psychologically or being termed as sexual minority.

The term ‘transgenders’ does not refer to one specific gender but is a blanket term which covers any section of society that fails to conform to the predetermined rules of sexual orientation. It is not a new concept in India. The importance of this community can be traced back from the Hindu epics namely, Ramayana and Mahabharata. Itis said that when Lord Rama left for exile, a group of devotees followed him to the forest and after noticing them, he insisted the ‘men and women’ to return to Ayodhya. Having returned after 14 years he came to know that a bunch of transgenders did not return as they were neither men nor women. He was so moved by their devotion that he showered them with a boon to bless people on occasions such as marriage or childbirth. There are various names assigned to this community in various parts of India, such as, hijra as very commonly used in north India, aravanis as used in southern parts or kothis or napunsak, for being unproductive in nature. It doesn’t matter how differently we address them, outlook of the society towards them is same everywhere.

Judicial Response: Nalsa Judgment

The Indian judicial body has been very sensitive towards this community and pronounced a remarkable judgement in the case of National Legal Services Authority v. Union of India[1] in April 2014, colloquially called the NALSA judgement. The Apex court judgment establishes broad directives to the Central and state governments on affirmative action, public health, social welfare and other facilities to be made available for the concerned population[2].The judges recognized the fundamental rights enshrined in the constitution to be conferred on the transgender community like the rest of the population. The most powerful facet of this NALSA judgement is its devout attempt to recognize the ‘identity’. The judges have identified internal feelings and personal experiences which may not correspond with the sex assigned at birth, including in its ambit a freely chosen, modification of bodily appearance along with other expressions such as speech and mannerisms. Gender identity will solely rest upon individual’s self identification as a man, woman, transgender or other recognised category which is a path-breaking pronouncement. The spirit of the Indian Constitution is to provide equal opportunity to every citizen to grow and attain their potential, irrespective of caste, religion and gender[3]. Though this judgement is the result of an extended and drawn-out struggle by the activists, how much of it has been implemented is the real question.
Gaps In Implementation
Paradoxically, it has emerged that the state agencies now have an onus to further harass this section who are trying to seek relief through the judgement.The Government has failed miserably in implementing concrete steps of the judgment and even the core spirit has been disregarded blatantly.

The Hon’ble Supreme Court directed the government to draft a policy. An expert committee had already been constituted to examine its recommendations based on the legal proclamations of the NALSA judgement and implement them within six months. One prime cause of delay can be attributed the fact that the ministry of Social Justice and Empowerment (MSJE) has asked the Apex court to clarify certain aspects of the ruling namely, which groups will fall in the ambit of the term ‘transgender’, what classification and procedure should be followed while designing affirmative action policies for this section in the public institutions. The MSJE asked whether the six-months’ time limit could be extended as the recommendations are too broad to be enforced so swiftly. Unfortunately, the Supreme Court has still not responded to the ministry. This has been used as an excuse by the state agencies to stall policy level actions which is obnoxious when the community has been facing ostracism for hundreds of years.Even after the widely hailed NALSA judgement, numerous situations have come across which shouldn’t have[4].

A case in point is where a transgender person died following an accident in September 2014 as the doctors could not decide whether to use the male or the female ward for the patient’s treatment. To add to it, in a recent response to an RTI application filed by an Alternative Law Forum, the regional passport office in Bengaluru has stated that for issuance of passport, a transgender person needs to furnish a sworn affidavit regarding sex change along with a certificate either from a surgeon or government hospital or a medical examination from a chief medical officer in a government hospital along with a fulfillment of change of name procedure as prescribed by the passport office. The requirement of a ‘certificate from a surgeon’ is unreasonable for those who are pre-operative or have decided not to have surgery. It does not even vaguely recognize the principle of self-identification[5] which is fundamental to the principle laid down in NALSA. Adding to the disappointment, an eminent activist and transwoman after going through a combined testes and penis removal surgery went to a local court in her area for change of sex listed in her official documents. As the hospital had refused to grant her any documentation in that regard, she could not complete the formalities for the lack of papers.
The Two Bills: Dashing Hopes
In a rare action, ‘The Rights of Transgender Persons Bill,2014’ a private member’s bill was introduced by the DMK leader, Tiruchi Siva and unanimously passed by the Rajya Sabha on April 24th,2015 and introduced in the lower house Lok Sabha on February 26th,2016[6]. It is the first private member’s bill to be passed by the upper house in last 45 years, it gave hope to many. Principally drafted on the NALSA guidelines, the bill was expected to extend constitutional rights and end the discrimination against the transgender people, allowing them to live a life of dignity.The Bill’s broad definition of the term transgender relies on the judgment’s call for inclusiveness.The bill has 58 clauses categorized in 10 chapters regarding issues such as social inclusion, rights and entitlements, financial and legal aid, education, skill development to check abuse, violence and exploitation. The chapter V confers 2% reservation of seats in primary, secondary and higher education institutes funded by government and in government jobs along with formation of special employment exchanges for transgenders. Chapter VII details putting in place of national and state-level commissions. Special transgender rights courts are provided for under chapter VIII. Chapter II underlines the right of a transgender child to home and imposes conditions for foster care. Offences and penalties are dealt with in chapter IX with the maximum penalty for hate speech being1-yearimprisonment and fine. Though the bill has been passed in the upper house, Mr.Tiruchisiva has been approached to withdraw the bill repeatedly. The government, thereafter, has assured to propose an updated bill with no or minimum anomalies in the lower house. The aspect it covers requires consultation of 9 different ministries which is a lengthy process.

Consequently, in late 2015, MSJE published a draft bill of the same name on its website which has only muddled the situation[7]. Referring to a provision that says a state- level authority will grant a certificate to acknowledge that a person is transgender has led to the gate-keeping of identities[8]. For instance, if a transgenderhas to file a case against the perpetrators of hate speech, he would have to first obtain a certificate of identity. Having another ID proof explicitly describing the person as ‘trans’ or ‘others’ would not suffice. And what if a transpersonwants a male or female ID card? This is extremely restrictive and at variance with the original spirit of the Bill. The draft bill also bestows OBC status to this community. This again has added to the state of confusion on the front of affirmative action. A transperson can also be a dalit, so will he receive two sets of reservations? Or will the OBC transpeople will get anything new? All these propositions have open room for ambiguity.The new bill has eradicated private sector reservations which the original bill had. The government’s bill has also taken out the provision that entrusts transgender recourse to the Executive Magistrate apart from the police. Also, the new bill has granted reservations in employment whereas reservation in education has been withdrawn. How is one supposed to access employment without receiving at least average qualification?

Further, the bill has not clarified as to how its provisions will impact the other laws. Existing laws of marriage, adoption and succession, continue to be based on the binary of male and female. Criminal laws also continue to be completely gendered. None of the bills have addressed the issue of section 377 which is frequently used to harass transgender, criminalising all sexual acts that is not between the opposite genders.

The bill has also been criticised on the lines of being undemocratic and non-transparent. The ministry uploaded the bill on the website in January 2016 asking feedbacks via emails within a stipulated time However, it remained restricted to people who could read English and have access to the internet. If we go by the recent statistics, only ten-percent[9] of the population has average English proficiency and only twenty-eight percent[10] have internet access thereby leavingmost people out of the conversation. The reallyheart-breakingthing being the fact that not even parliamentarians and ministers have submitted their stance on the same. Are they not sensitive enough and educated about the matter? We see a lack of political will here.
What Could Be Done: The Road Ahead
So, the following measures could be put in place to assure their social and legal well-being: -
i) The principle of ‘self-identification’ should be followed in its true meaning penalising its infringement.

ii) Setting up of one seat ‘e-toilets’ with automatic lock should be made mandatory in every city of every state without any gender labels. Similar arrangements for wards should be put in place in hospitals.

iii) Special transgender courts to function to address the grievances of this community in every court.

iv) Two percent seat reservations in primary, secondary and higher education in the institutes funded by government should be there.

v) A state and national level commission having same powers on the lines of other state and national level commissions to function to monitor the scenario and report to the respective government.

vi) Transgender community should not be included into OBC or SC/ST category as that will only obfuscate the situation. Transgenders should be allowed to avail the reservations irrespective of their caste.

vii) Inclusion of a psychiatrist in the state agency to examine the state of mind based on which identity certificate will be provided is absolutely unconstitutionaland should be removed.

viii) Non- possession of gender certificates should not hinder any process or formality.

ix) The government should conduct an extensive population count of this community so as to know their exact number in order to formulate policies and budget accordingly.

x) Educating young children and college going students about this category will make them more sensitive and help change the basic mentality. Even in employment places, regular seminars should be conducted to aware the people how miserable their life is and that we should consider them as any other normal citizen.

Having received voting right in 1994 and voting as either ‘male’ or ‘female’ till 2009, they are fighting for equality now. It’s a sea change and an indication of what the future holds for them. First transgender police inspector. First mayor Madhu Bai Kinnar. First model Rudrani Chettri. First music band 6 pack band. First taxi driver Sanjeev nichavan. First banker Monika das and what not. There is no second thought that they can be an asset to the society if awarded the right chance. If they have the courage to take on the rest of the world alone, then perhaps we should have the decency to at least appreciate the effort, if not help them out rightly.

Its high time that we as citizens draw the attention of political fraternity towards this highly vulnerable group. They are also a part of our society and yet no political party ever takes up their issue in their election mandate. This community has been enduring mental and physical violence both at the hands of family as well as society. In many instances, the policemen and law enforcement authorities are the major perpetrators of crime against them. There is no law to safeguard and develop them. They are getting education, acquiring skills and breaking all the boundaries. From living on the fringes of society, they are now confidently embracing their identities. Their rights to equality, life, dignity and freedoms has perpetually been breached.  They have done nothing wrong to deserve ostracisation. Their claim to the fundamental rights and freedom is as strong as any of ours and it’s our duty as a privileged class to help take the less privileged ahead.
# Dr. J.N. Pandey, Constitutional Law of India, 53rd edition, 2016, central law agency
# The Hindu newspaper
# The wire
[1] WP (CIVIL) NO 604 OF 2013
[2] http://nalsa.gov.in
[3] The Guardian India Recognises Transgender People As Third Gender, April 15th 2014
[4] The Wire May 15th 2016
[5] The Wire August 4th,2016
[6]The Hindu, Rs Passess Bill On Transgender Rights, April 25th 2015. Retrieved March 8th 2016.
[7] The Hindu, January 10th,2017
[10] THE HINDU MARCH 27TH 2017

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