The story of Adam and Eve is known to everyone that how first man and woman cohabited together and developed human civilization and this human civilization created the concept of gender i.e. the condition of being male or female in relevancy of social and cultural roles that are thought to be appropriate for men and women. The offspring who resembled the characters of Adam were recognised as Male while the offspring who resembled the characters of Eve were recognised as Female but in this all worldly created concepts, we ignored the community of transgender that are someone who feel that they are not the same gender or sex as the gender or sex they were said to have when they were born.
Although Transgender are the part of society but are not considered the same. We can see discriminations with them in all the fields of life. They are the disadvantageous group of the society whose rights are not protected properly. Present article discusses about the History of transgender in India, Landmark case of NALSA v. Union of India, recently passed Act regarding transgender and rights of transgender which is the contemporary social and legal issue in India.
The word gender and sex are usually used interchangeably but they have slightly different connotations. The word Sex refers to biological differences, while the word Gender refers to cultural and social differences and sometimes encompasses a broad range of identities than the binary of male and female. Transgender is an umbrella term for persons whose gender identity, gender utterance or behaviour does not accord to that commonly associated sex to which they were assigned when they were born.
They are those people who are born with male or female anatomies but they are having feeling different from their body structure. Hijras, Aravanis, Kothis, Shivshaktis, Jogatas/Jogappas etc. are some of the transgender communities found in India. Transgender individuals have been found in each culture, race and class since the human life has been recorded. In India, they have a recorded history dating back to 4000 years. As per the Census of 2011, the count of TGs/Hijras in India is approximately 4.9 lakh.
Kama Sutra is a Hindu text on human sexual behaviour written between four hundred BCE and two hundred CE that mentions the Hijra Community. Ramayana and Mahabharata, the two most important texts of Hinduism also provide special significance to Hijra Community. They also enjoyed important positions in the court and various aspects of administration during the Mughal-era in India from 16th to 19th century.
But when India came under colonial rule during the 19th century, British authorities started eradicating and criminalizing the Hijra community through various laws and this made position of transgender degradable in the Indian society. Like in 1860 an antisodomy law i.e. Section 377 of IPC was introduced to ban same sex relationships. The British authorities categorised the Hijras with other Criminal Castes/Tribes. The lands granted to Hijras as gift were taken back by Britishers because they could not show lawful inheritance. Though after independence some laws were repealed or redefined but this didn’t change the position of transgender in India.
National Legal Services Authority (NALSA) v. Union of India is the landmark decision of Hon’ble Supreme Court by the division bench of Justice K.S. Radhakrishnan and A.K. Sikri recognising transgender as third gender along with male and female. The Court recognised that third gender persons are entitled to Fundamental Rights under Constitution of India and under International Laws including the Yogyakarta Principles.
The 2014 judicial mandate stands backed by the judgement of Supreme Court in K.S. Puttaswamy (Retd.) v. Union of India in which court held that Right to Privacy is guaranteed under Constitution of India as Fundamental right and by the case of Navtej Singh Johar v. Union of India in which the Supreme Court unanimously struck down Section 377 of IPC to the extent that it criminalised same-sex relations between consenting adults.
With the influence of the NALSA judgement, the Indian Parliament recently enacted the Transgender Persons (Protection of Rights) Act, 2019. This act received the assent of President on 5th December 2019 and was enforced from 10thJanuary 2020 with 23 sections and IX Chapters. This new legislation asserts to protect Transgender rights but many activists are alleging it to be exactly opposite to the decision of court. Transgender communities and activists called the passing day of bill as Gender Justice Murder Day.
Some of the problems with the Act are that it requires a transgender person to go to a District Screening Committee to have their gender identity certified. There are also no provisions for appeal if certificate is denied by the DM to the individual. Further, the Act does not talk about reservations for people of trans communities in education or employment. It provides the punishment for sexual assault on a trans person to a maximum of two years whereas it provides the minimum punishment for raping a cis gender woman as 10 years. This shows discrimination with transgender.
Lesbian, gay, bisexual and transgender (LGBT) Community faces the problems, difficulties and discriminations not suffered by non-LGBT persons. They are underprivileged, marginalised, unemployed, uneducated, and deprived of their basic rights. The whole society is responsible for their inhumane status. They too are human beings and deserve to be treated with same affection.
As transgender are the disadvantageous group of society so at national level, the Indian Constitution as well as various other laws including the Transgender Persons (Protection of Rights) Act, 2019 and at International level, Yogyakarta Principles, 2007 provide various rights of transgender. The court in the case of NALSA v Union of India has also recognised that transgender persons are entitled to Fundamental Rights under Article 14, 15, 16, 19(1)(a) and 21 of the Indian Constitution same as the citizens of India.