Transgender Rights: India ought to do better
by Sevanshi Kamdar
-The Indian Judiciary Does Justice to the Transgender Community
The new digital campaign by Brooke Bond Red Label is worth watching. In the advertisement, while a grandmother and her young granddaughter are stuck in traffic on a rainy day, a transgender knocks at their cab window. The grandmother is annoyed and lowers the window to hand money to her. The transgender informs her that she owns a tea stall and to her surprise, offers her a cup of tea, refusing to accept any money for the same. The grandmother moves her hand over the face of the transgender, blesses her and her granddaughter smiles.
I never skip this advertisement and always smile after watching it primarily because I feel happy about that transgender. I feel happy that somebody out there is making an effort to make the Indian society inclusive, to make us realize that a transgender is a human being, just like you and I, and deserves to be recognized and respected.
For those who are unaware, the scope of the term ‘transgender’ is quite wide and includes all those people who identify with a gender which is different from the sex assigned to them at birth. For instance, a trans woman is a transgender person that identifies with the female gender though they were born with the male genitalia. Moreover, the transgender community also includes people who identify as nonbinary, genderqueer, agender or perhaps somewhere outside the conventional definitions of male and female
It must be noted that though the term ‘transgender’ only came into usage towards the end of the 20th century, it does not mean that transgender people did not exist before that. In fact, transgender people have existed across cultures all through recorded history.
This article aims to analyze the different set of rights granted to the transgender community and highlights how the Indian legislature has encouraged rather than rebuke the societal nuisance, which perceive the transgender community to be problematic, by not treating them and the cisgenders alike. As can be inferred, cisgenders are the conventional ‘man’ and ‘woman’ who comprise the majority of the Indian society or for that matter, the majority of the global population.
The Indian Judiciary Does Justice to the Transgender Community
In 2014, India witnessed a landmark case in the form of National Legal Services Authority (NALSA) v. Union of India. This case must have sent shivers down the spine of the conventional Indian society for, in a groundbreaking, historic moment, the Indian Supreme Court declared transgenders to be recognized as the ‘third gender’.
The Court conceded that Indian laws only provided for the male or female gender and held that transgender people should be recognized as the ‘third gender’ under the Constitution of India and the laws enacted by the Central and State Legislatures. Moreover, the Court held that the State must recognize the right of a transgender person to choose the gender they identify with. The Article 14 of the Constitution of India provides for equality among the Indian citizens and transgender people also fall under its purview and must be treated at par with other members of the Indian society.
One of the most crucial things laid down by Justice K.S.Radhakrishnan was that transgender persons were to be recognized as a socially and economically backward class and hence, were eligible for reservation in job places and educational institutions. What is also important to note is that the Court declared any kind of requirement of sex reassignment surgery as illegal and immoral.
In 2015, the Delhi High Court observed that a transgender person’s experience of gender is intrinsic to their core personality. I believe that the Indian Judiciary did justice to the person and identity of the transgender community and enabled them to exercise their fundamental right to live with dignity. Transgender persons are humans and they comprise the citizenry of India. This, India must protect their rights and interests and ensure that even they have access to education, employment, healthcare and justice. However, this has not happened yet, and the community continues to be shunned and struggles for justice. In fact, all the progress that they had made in their fight for their basic and fundamental rights, was set aside because of legislation, which purported to protect their rights but did quite the opposite.
The Injustice caused by the Transgender Persons (Protection of Rights) Act, 2019
In response to NALSA, the Transgender Persons (Protection of Rights) Act, 2019 was passed by the Union Legislature. At the outset, it must be noted that the Bill for the same was passed by the Lok Sabha without much debate or discussion. This may be because perhaps, the Lok Sabha was occupied with something more ‘serious’ or of ‘greater political importance’ because, on the same day, Article 370 of the Constitution of India had been repealed by the Centre.
The Centre has enacted an Act whose rationale is to protect the rights of the transgender community. The transgender community in India should have been ecstatic because such legislation was passed. However, it was not the case. Grace Bhanu, a transgender activist, described the Bill as a ‘murder of justice’. She said that the Bill is not welcomed by the community and that it does not uplift them. Perhaps an analysis of the Act may help us to understand why the transgender community feels dejected by the passing of such legislation.
It is acknowledged that the Act does prohibit discrimination, in certain activities or sectors, against transgender persons. However, this provision is futile because firstly, it does not specifically lay down what amounts to discrimination against transgender persons. This would pave the way for a subjective interpretation of the law in different parts of the country. Moreover, adjudicators and law enforcement officials may pardon acts of discrimination on the pretext that it does not comprise discrimination for them. However, the real reason behind them doing so maybe the social stigma attached to the transgender community or perhaps because of their own prejudices.
Secondly, the Act does not prescribe any specific punishment for discriminating against transgender persons. For the same reasons as mentioned above, discriminators may be given minimal punishment or no punishment at all. So even if prima facie it appears that transgender persons will be protected against discrimination, in reality, because of the inadequacy of the legislation, the law is not really changing the social fabric.
Notably, the Act neither provides for reservation in education nor in employment, thereby flouting NALSA. Banu points out that transgender persons earn a living either by begging or by engaging in sex work. Therefore, she asks how will the community be uplifted if there is no reservation for them. Her concerns are valid. India enjoys a good rapport with the reservation system. Just like other communities that have been provided reservation, even the transgender community must get a reservation because of their economic and social backwardness.
They are ostracized and turned away from places of work and education. Shreya, a trans woman says that they are denied the safety of their homes and the security and love of their families. They live in poverty. And they do all this only to wear a saree, meaning only to identify with the gender they are most comfortable with. I believe, for a community as vulnerable as then reservations are a must, both in the education sector as well as employment.
Moreover, a provision that upsets me the most is the ‘offences and penalties’ section. What is disturbing is that the maximum punishment for crimes against transgender persons, inclusive of sexual and physical abuse, is two years of imprisonment plus fine. That is it. Now that seems extremely unfair given that we know that for cisgenders, the maximum punishment for sexually abusing a woman or a child is life imprisonment or perhaps the death penalty.
Why does such a wide disparity in the legislations exist? Do the legislators believe that transgender persons do not go through the same trauma as cisgenders when faced with sexual or physical abuse? Or that criminals who commit crimes against them need not be deterred? What signal is the law trying to give? That Transgender persons are fewer than cisgenders and to encourage discrimination against them, to tell them and the society that their lives do not matter as much and that they are ancillary to cisgenders?
Our elected representatives have degraded transgender persons and have failed the Constitution of India, which provides that all the citizens of India shall always be treated equally before the law.
The transgender persons must have the right to determine their genders and more importantly, they must be respected in their chosen gender. We, the people of India, must protect the rights of our brothers, sisters and the third gender. We certainly cannot take away the right of transgender persons to live with dignity and to be included in the Indian society. The legislation has made them more vulnerable than keeping them safe.
We must accept them and ensure the protection of their rights. At the end of the day, the resources and opportunities offered by this country are as much theirs as they are ours. Unfortunately, they have to pay the price for being different and for having the courage to stand apart from the conventional Indian society.
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This story has been written by Sevanshi Kamdar, Third Year, B.A. LL.B. (Hons.), The National University of Juridical Sciences, Kolkata.