Introduction 

The term transgender refers to individuals whose gender identity or behavior does not adhere to the sex they were assigned at birth. Transgender culture comprises Hijras, Kothis, Eunuchs, Aravanis, Jogappas, Shiv-Shakthis, etc, which for centuries have been part of Indian society. The word hijra used in the Indian language seems to originate from the Persian word hiz, that is to say, someone who is effeminate or unsuccessful or incompetent.  

The Prevalence Of Indian Transgenders

The transgenders have never been included while India has gathered its census data for years until 2011. In the 2011 Census, however, transgender data were collected under Gender in the “Others” category with information relating to their jobs, literacy, and caste. According to the data estimated by the census it was revealed that the total transgender population in India is around 4.88 lakhs. The data is mainly connected to the males segment because they are the ones who are typically counted,  however, they can be counted as females on request. Furthermore as per the 2011 census it was reported that 55,000 children are transgenders.

Challenges Faced By Transgenders

The kinds of challenges that transgender people have to face is almost in every field or place. For instance the transgender people didn’t have the right to vote until 1994 but when they received this opportunity  they were questioned while they were being issued the voter identity cards on their gender. Thus, they didn’t get a choice to choose between male and female. Many areas in which this culture feels overlooked include land succession or infant adoption. As a social outcast they are frequently forced to the margins and often may end up begging and dancing. That is trafficking in human beings by all means. There are very limited employment opportunities for Transgenders. Transgenders don’t have access to public bathrooms / toilets and spaces. The lack of access to bathrooms and public spaces is an illustration of the discrimination that transgenders face in making use of every facility and amenities. Prisons, hospitals , and schools face similar problems. If the transgender people apply for jobs in any sector they are abused, people are hostile towards them and thus it becomes very difficult for transgenders to get jobs in any of the sectors. They have to go through discrimination in hospitals as well by the staff as well as the doctors because the doctors and staff deny to treat them and rather start humiliating them. Therefore, it becomes quite tough for the transgenders to create their position in society.

The 2014 Decision Given By The Supreme Court Of India

In 2014 Supreme Court Of India had passed a judgement specifying one’s sexual identity as an integral part of personality, dignity and equality and defining transgender as a third gender. In the case of National Legal Services Authority (NLSA) v. Union Of India^[1]  which took place in 2014, the Supreme Court declared that all the transgender community would be given a legal identity. After this judgement the Rajya Sabha passed the Rights of Transgender Bill, 2014. 

The 2015 Amendment Bill:

In 2015 the Rights of Transgender Bill, 2014 was amended and was further changed to Rights For Transgender Persons Bill. The provisions with respect to rights of the Transgenders associated with courts, national as well as state commission was removed.

The Transgender Persons Bill, 2016:

This Bill defines a transgender person as one who is partially female or male; or a mixture of male and female; or female or male. Moreover, the identity of the person does not suit the identity assigned at birth and must include trans-men, trans-women, individuals with intersex differences and gender-queer. The Bill has given the right to the transgender people to obtain a certificate of identification as an evidence of their recognition as a transgender person in order to claim rights under this given act. In order to receive this certificate the screening committee would need to give their permission and the group will include a medical officer, a psychologist, a therapist, a district welfare officer, a government official and a transgender person. In areas such as education, housing , and health care, the Bill forbids discrimination against a transgender citizen. It offers healthcare programs for federal and state governments in these areas. In addition to this the act also safeguards the the transgender people from requiring them to beg, refusing them access to public places, sexual assaults or physical assaults all these offences can lead to 2 years detention and an added penalty.

The Transgender Persons (Protection of Rights) Bill, 2019:

This Bill was passed in the Rajya Sabha on 26th Nov, 2019. This Bill proposed the following propositions:-

• There should be no discrimnation against the transgender people whether it is in educational institutions, employment or healthcare services.
• Recognition of Transgender People sexuality and granting them the right to gender identification defined by themselves.
• Provision of right of residency for parents and members of immediate families.
• Provision for formulating support policies and services for Transgender Peoples’ education , social care, and health.
• National Council for Transgender Persons provides for advice, monitoring and evaluation of measures to protect their rights.

The Striking Down Of Section 377:

Section 377 of the Indian Penal Code was enacted in 1861 during the British rule and it was criminalized as unnatural offences. The Act stated that, any person who has a voluntary carnal relationship with any man, woman or animal against the order of nature shall be punished with life imprisonment or imprisonment for a term of up to ten years, and shall also be liable for fines.

In 2001 Naz Foundation a Non-governmental organization (NGO)  brought an appeal to the Delhi High Court to decriminalize homosexuality and strike down those areas that make it illicit.  The Delhi High Court in 2009 declared that Section 377 was violative of the fundamental rights that have been guaranteed by the constitution of India. However, since there are other religious groups who are against this act objected to this and appealed the Supreme Court to restore back the previous order. The petition was filed again with respect to Section 377. The five judge bench decriminalized Article 377 in the case of Navtej Singh Johar v. Union of India^[2]  stating that all the citizens of India have the right to their fundamental rights and since LGBTQ community was categorized under the minority the court said that it is essential to safeguard the rights of minorities from public interference. Furthermore the Court added that article 14 of the Indian Constitution guarantees equality before law which is applicable for all its citizens including the LGBTQ community.  Moreover, the court mentioned that according to article 19 (1) (a)  morality and public decency cannot outweigh the fundamental rights of freedom and expression and it cannot influence the decisions of LGBTQ community. Therefore, section 377 was struck down by the Supreme Court keeping in mind the fundamental rights of the LGBTQ community.  

Critiques

There have been various amendments made in the bills passed with respect to the rights of the transgenders however there still have been some loopholes which need to be settled. The following are some of the major problems which still need to be tackled:-

• The Bill which comprises the definition of transgenders is portraying gender identity incorrectly with biological sex.   
• The definition mentioned in the Bill is  also resulting in  hazardous stereotypes about transgenders on their gender being partly male and partly female.
• The Bill has prohibited any kinds of discrimination whether it is in workplace, healthcare areas or education ect but still there has been no clear definition as such on the basis of gender identity which has been mentioned in the bill.
• In order to get officially certified of their gender identities the transgenders need to follow a process of making applications to a District Magistrate and the District Magistrate is liable for making recommendations to the District Screening Committee which analyzes the applications and then provides the official identity certificate.  As per the Bill passed after NALSA judgement the whole procedure of this medical examination is not consistent since a transgender has the right to decide their identity.    

Conclusion

India has been known throughout the world for its unique culture and diversity. Diversity which not only includes all the castes, religions, states, minorities but even those sections of the country who call themselves Indians- the LGBTQ community which is also a part of our nation. For centuries the transgenders had been fighting for their rights in society and after fighting for so many years they finally received the fruit in 2018 where the Supreme Court gave a decision to decriminalize Article 377.  The transgender people had to struggle for their fundamental rights which the Constitution of India has guaranteed to all its citizens for so many years. Although legally they have acquired all their rights however the society still needs to accept them openly and should be treating them equally as the other citizens of India. After all they are also Indians.   

^[1] “CASE COMMENT ON NATIONAL LEGAL SERVICES … – DOIs.” http://dx.doi.org/10.21684/2412-2343-2016-3-2-164-175. Accessed 18 May. 2020.

^[2] “Homosexuality with Special Refrence Case: Navtej Singh ….” https://www.researchgate.net/publication/334123773_Homosexuality_with_Special_Refrence_Case_Navtej_Singh_Johar_V_Union_of_India. Accessed 18 May. 2020.

References:-

1. https://www.livescience.com/54949-transgender-definition.html
2. https://www.researchgate.net/publication/322012741_Transgender_Status_in_India
3. https://iasscore.in/national-issues/transgender-rights-in-india
4. https://pib.gov.in/newsite/PrintRelease.aspx?relid=195089
5. https://scroll.in/article/893406/section-377-verdict-what-you-need-to-know-about-scs-decision-to-decriminalise-homosexuality
6. https://ghrd.org/transgender-rights-in-india/
7. https://indiankanoon.org/doc/168671544/

Cases Referred:-

1. Sahu, M. K. (2016). National Legal Services Authority v. Union of India & Ors. (AIR 2014 SC 1863): a Ray of Hope for the LG BT Community. BRICS Law Journal, 3(2), 164–175. doi: 10.21684/2412-2343-2016-3-2-164-175
2. Renu, D. (2019). Homosexuality with Special Refrence Case: Navtej Singh Johar V. Union of India. International Journal of Trend in Scientific Research and Development, Volume-3(Issue-4), 16–19. doi: 10.31142/ijtsrd23555