Transgender Persons : Human Beings or Not ?

Introduction Transgender people are those people who have a gender identity that differs from their assigned stereotyped assigned sex. Transgender people are individuals of any age or sex whose appearance , personal , characteristics , or behaviours differ from the stereotypes about how men and women are supposed to be . India is a land of love, land of diversity. Transgender people have existed in all culture , race , class and in almost all regions of India as India has a wide diversity . This is a very portion of population who know that the term “Transgender” and “Intersex” are not synonymous to each other but are different. Intersex is a term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female and male. In other words,   Intersex is when someone whether male or female is born with ambiguous genitailia. For  example, a person might be born appearing to be female on the outside, but having mostly male – typical anatomy on inside. Transgender people suffer high level of discrimination and encounters problem regarding their identity and status. As they are discriminated on almost every aspects and are not even considered as human beings in the first place it is very important to make laws and conditions in the society and make them feel that they are also part of the society and not aliens in this world. Misconception about the term ‘Transgender’ Transgender is not a term which is limited to persons whose genitals are intermixed but it is blanket term of people whose gender expression , identity or behaviour differ from the normal expectations from their birth sex.  Various Transgender identities are included in this umbrella .In India there is a wide range of transgender identities for example the Hijras , Aravanis ,Kothis , Jogtas /Jogappas , Shiv Sakthis. In history , the transgenders were treated with great respect. For the first time when the ‘Transgenders’ were legally recognised was in the landmark case of National Legal Service Authority v. Union of India[1] on 15^th April, 2014.  The case was heard before the two judges bench of the Supreme Court , comprising of Hon’ble Justice K.S. Panicker Radhakrishnan and Hon’ble Justice Arjan Kumar Sikri. In this case  Supreme Court declared transgender people as ‘third gender’ people and also affirmed that the fundamental rights under Part III of the Constitution of India granted to the citizens shall be equally applicable[2] to the transgender people and gave them the right of self- identification as male , female or third – gender. The court also issued certain directions to the Central and State governments to grant a legal recognition to gender identity be it male, female or third gender on certain basic and necessary aspects not only legal but also physical , mental , socio-economic and also various other aspects  which play an  important role in the survival of a person in the society. Considering the legal recognition provided by the court as the application of fundamental rights in same manner as to the males and females, it also further emphasised that non- recognition of third- genders in various civil and criminal statutes relating to  marriage , adoption , divorce etc. are discriminatory . Considering the medical recognition the court said that the prescribed Biological test should be replaced with the Psychological test should be preferred so that psyche of the person is understood well which we help the person to survive better in the society and also the court declared that the existing practice of insisting on Sex reassignment Surgery (SRS) as a condition for changing the gender should be banned and illegal. It also directed the governments to take appropriate measures for providing adequate medical facilities to the Transgender people in hospitals and also look upon the basic facilities like separate public toilets and other facilities. While providing the directions regarding the Legal and Medical recognition the court did not left to determine the Socio- Economic rights of the Transgender persons it provided guidelines such  as reservation in educational institutions and for public appointments under other backward classes and also create public awareness so that the transgender people will feel that they are also part of the community and are not treated as untouchables, and also measures must be taken to regain their respect and place in society and do not address problems like fear , shame , gender dysphoria, depression and other social problems. Legal Evolution of the Concept For the first time the Justice Radhakrishnan in this case defined “Transgenders”[3] as an “umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.”  The Rights of Transgender Persons Bill, 2014 was introduced as a Private member’s bill in the Rajya Sabha drafted by Tiruchi Siva , Member of Parliament on 10^th December , 2014 . The passage of this Bill proved to be a game- changer as for the first time in 46 years Rajya Sabha passed a private member’s bill. The Rights of Transgender Persons Bill , 2014 honoured this understanding of ‘Transgenders’ by providing a broad definition that included those who identified themselves by a gender other than the one assigned to them at birth. The definition affirmed the right of a transgender person to have the option of choosing to identify themselves as a man , woman or transgender.   In April 2015, when the Rajya Sabha passed a private member’s Bill providing and protecting the rights of transgender persons ,it was observed as a welcome anniversary of the landmark judgement given by the Hon’ble Supreme Court in the case of NALSA v. UOI. The Transgender Persons (Protection of Rights) Bill, 2016 was introduced in Lok Sabha on August 2. Rights of Transgenders under Indian Laws : The Rule of Law is supreme and everyone is equal in the eyes of law in India. But still , the transgender community are in constant battle as they have to fight oppression , abuse and discrimination in all the parts of the society , whether it is in their own family or in society at large. The life of transgender people is a daily battle where there is no acceptance and are obstructed from the society. As the right to equality before law and equal protection of law is guaranteed under Article 14 and 21 of the Constitution. The Right to Equality means equal treatment in similar circumstances as provided in Article 14.[4] Under the ambit of Article 21 of the Constitution[5] the right to choose one’s gender identity is also an essential part to lead a dignified life. Also, no discrimination can be done on the ground of gender as it is violative of Article 14 , 15, 16 and 21 of the Constitution.[6] [7] Further, The Court also protect the one’s gender expression as invoked by Article 19(1)(a) and also providing restrictions which are contained in Article19(2) of the Constitution.[8] Violation of Human Rights The transgender people are deprived of social and cultural participation and hence they have restricted access to education , health care and public places and it has also been noticed that their community also faces discrimination as they are not given basic human rights such as right to contest election , right to vote as under Article 326 , employment , to get licenses , etc. and to the effect they are outcasted from the society and treated as Untouchables.[9] Also Section 377 of The Indian Penal Code[10] criminalizes same sex relationships among the consenting adults. In the case of JayaLakshmi v. State of Tamil Nadu[11] , a transgender was arrested on charges of thefts by the police . He was Sexually assaulted in the police station which ultimately led him to immolate himself. Rights of Transgender Persons Bill 2014 This is a Private member’s bill protecting the rights of the transgenders. It was passed by the Rajya Sabha on 25^th April 2015 and which guaranteed reservation in education and jobs , financial aid. The bill was proposed by a member of DMK Tiruchi Siva. The Bill has 58 clauses contained in 10 chapters with differing aspects such as :-

• Social inclusion,
• Rights and entitlements,
• Financial and Legal aid,
• Education , skill development
• Prevention of abuse , violence and exploitation
• Need for a national commission for transgender persons with statutory on line of national commissions is provided.

As the transgenders face so much discrimination the Bill guards them from it . The Bill Also provides for the formation of Welfare boards at Centre and State level for the Community. It also proposed for the formation of the Transgender Rights Court and would ensure 2 percent reservation in government Jobs and prevents discrimination in employment, provides provisions for pensions and unemployment allowances for the members of the community. The focal point of this Bill was to provide a framework for formulation and implementation of detailed national policy and to ensure overall development of the transgenders and their welfare. The Bill also ensured that appropriate steps are taken so that the transgender persons will enjoy right to life with dignity and personal liberty as guaranteed by the Constitution and also made provisions to impose penalty for hate speech against transgender persons including imprisonment upto one year and also a fine could be imposed. The Transgender Persons (Protection of Rights) Bill , 2016 Despite of various safeguarding provisions in The Rights of Transgender Persons Bill of 2014 there were certain lacunas and spaces which were tried to be filled in the draft of The Transgender Persons (Protection of Rights) Bill , 2016. This draft was introduced in Lok Sabha in August 2016 and currently this bill is pending with the Standing Committee on social justice   and Empowerment. In December 2016, this committee has sought a three – month extension for submitting its report on the bill. The bill makes provisions to safeguard against discrimination with India’s 6 Lakh transgenders (as per census 2011) in the employment , education , property rights and health-care services. The Bill defines ‘transgender person ’ as one who is :-

1. Neither wholly female nor wholly male;
2. or a combination of female or male;
3. or neither female not male.
4. It also includes trans- men, trans- women, persons with intersex variation and gender queers.

Highlights of the Bill

• The Bill prohibits discrimination against a transgender person with respect to education, healthcare , access to goods and services , public opportunities , right to movement[12], right to reside[13], access to government or private establishments etc.
• The Bill retained the provision of 2014 Bill to provide appropriate education and employment facility by providing reservations to the transgenders under the other backward class.
• The Bill also looked upon the medical facilities like including separate HIV surveillance centres, sex reassignment surgeries, etc.
• For the purpose of identification, the bill provides that transgender person can apply to District Magistrate for the certificate of identity, which would indicate gender as ‘transgender’. The certificate would be issued on the basis of recommendations of a district screening committee which would be composed of Chief Medical Officer, District Social Welfare Officer, a Psychologists, a representative from the transgender community and an officer of the relevant government department.
• The bill also included penal provisions such as imposition of penalities which includes imprisonment between 6 month to 2 years and fine against any offences committed such as forcing the transgenders for begging, physical or verbal abuse , denial of residence or household etc.
• The Bill provides for the formation of a National council for Transgender Persons (NCT). It shall compose of following members:-

1. Union Minister for Social Justice (chairperson)
2. Ministers of State for Social Justice (Vice- Chairperson)
3. Secretary of the Ministry of Social Justice
4. One representatives from ministries including Health , Home Affairs , Minority Affairs, Housing and Poverty Alleviation, Human Resources Development, etc.
5. One members including representatives of the NITI Aayog
6. One member from National Human Rights Commission
7. and National Commission for Women.
8. Representatives of State governments
9. Five members from the transgender community
10. Five experts from non- governmental organisations.

The function of this council was to advise and monitor the policies, legislations and projects with respect to transgender community. This draft of the Bill has tried to fill many spaces and overcome various lacunas of 2014 Bill  but still has certain lacunas.

• The Major lacunae in this Bill is that it narrowed down the definition of the term ‘transgender’ which is opposed to the broad definition given by the Apex court in the NALSA case.
• distorts the definition of transgender
• does not adopt a right based approach
• it does not include provisions on reservations
• it does not identify specific duties for different actors.
• Anti – Discrimination provisions are weak and limited in scope.
• Sets up a screening committee to certify transgender persons , which runs against the right to self – identification recognised in NALSA. As it could be argued that the certificate would be used for channelling entitlement to individuals.
• The duties imposed on government to ensure the welfare of transgender persons are vague and board.
• The Bill criminalises enticting a transgender person to indulge in the act of begging.
• Transgender identities continues to be invisible, criminalised and pathologised, on account of the stigma and ignorance attached to them.

Conclusion Transgender people are those people who have a gender identity that differs from their assigned stereotyped assigned sex. Transgender people are individuals of any age or sex whose appearance , personal , characteristics , or behaviours differ from the stereotypes about how men and women are supposed to be. As they are discriminated on almost every aspects and are not even considered as human beings in the first place it is very important to make laws and conditions in the society and make them feel that they are also part of the society and not aliens in this world. It was on 15^th April,2014 only when the ‘Transgenders’ got legal recognition by the Hon’ble Supreme Court in the case of NALSA v. UOI declared them as ‘third-gender people’ and affirmed them the Fundamental Rights enshrined in Part III of the Indian Constitution. Further after this judgement by the Hon’ble Supreme Court the first draft of the Transgender Persons Bill was drafted and after passage of the Bill from Rajya Sabha and the lacunae of the 2014 Bill was ratified and then Transgender Persons (Protection of Rights) Bill, 2016 was introduced in tha Lok Sabha which not only provided legal recognition but also physical , medical , socio – economic . Apart from the rights affirmed in these Bills by the virtue of Rule of law the Indian Constitution provided various privileges as affirmed under Article 14,19,21 also Artcile 44 i.e. Uniform Civil Code also plays an important Role in recognising and equating the rights of people in society . Thus, I would like to conclude by saying that ‘Transgender Persons’ are also Human Beings with special abilities and not aliens in this world so one should stop discrimination against them by the minimal possible way they could and should support and raise voices for the passage of the Transgender Persons ( Protection of Rights ) Bill ,2016.     [1] WP(Civil) No 604 of 2013. [2] Article 14 of the Constitution of India- Equality before law: [3] National Legal Services Authority v. Union of India , WP (Civil) No. 606 of 2013 , Paragraph 11 of the Judgement. [4] Article 14 of the Constitution of India- Equality before law: [5] Article 21 of the Constitution of India – Protection of Life and Personal Liberty: [6] Article 15 of the Constitution of India – Prohibition of discrimination on grounds of religion , race , caste , sex or place of birth : [7] Article 16 of the Constitution of India – Equality of opportunity in matters of public employment – [8] Article 19(1)(a) of the Constitution of India – Protection of certain rights regarding freedom of speech , etc.- (1)All citizens shall have the right – (a) to freedom of speech and expression; [9] Article 326 of the constitution of India  : Elections  to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage. [10]Section 377 of Indian Penal Code : Unnatural Offences – [11] Writ Petition No. 24160 of 2006. [12] Article 19(1)(d) of the Constitution of India . [13] Article 19(1)(e) of the Constitution of India .