The transgender community has been recognised in India as the ‘third gender’ by the Supreme Court in National Legal Services Authority v. Union of India (2004) 5 SCC 438. The petition sought the court’s advice to address the grievance of the Transgender Community and prayed for a legal declaration of their gender identity other than the binary gender, i.e., male or female. The community coming within the umbrella term ‘transgender’ suffers tremendous trauma and abuse from the society, as they do not fall under neither of the “socially-accepted genders”. The non-recognition and non-acceptance from the society, which shuns the community, causes this community to be side-lined and makes them untouchables.
Non-recognition of their sexual and gender identity is a violation of their various Fundamental and Human Rights, which are protected by the Constitution of India and other international Human Rights documents. Albeit, in the Vedic and Puranic literatures they have been recognised as the third gender and these treatises bestowed them great respect. A perusal of these texts reveal that the community did play an important role in the royal courts and were considered to have the power to give blessings. This status of the transgenders changed during the British rule in India and they were treated in an inhuman manner. The Britishers passed the Criminal Tribes Act, 1871, which deemed the entire community as innately criminal. Though there has been marginal improvement in the condition of the transgenders, especially after the repeal of the Act, their condition is not far from dismal. There is a need for affirmative action for the upliftment of the community and for the improvement of their social status. The atrocities faced by the community, from the citizens as well as the state authorities, in turn, is a violation of their many fundamental rights including those under Articles 14 and 21 of the Constitution.
Article 14 of the Constitution of India provides for the right to equality and equal protection of laws. An important fact to be noted here is that this Article mentions the term ‘person’ not, male or female. Thus, the transgender community also falls within the word ‘person’ and are entitled to equal protection of all laws. Similarly, Article 15 provides for the principle of no-discrimination and hence, the state is obliged not to discriminate on the ground of sex among other grounds. This prompts the state to take affirmative steps for the advancement of all communities that have been excluded from the mainstream of development. Like the socially and educationally backward classes, the transgender community has also been deprived of their basic rights and have been denied of the entry into many public places.
The Supreme Court in the NALSA case, referred to number of cases and principles as highlighted by the courts in different countries especially England, Australia, New Zealand, Malaysia, Pakistan etc. In a popular case Corbett v. Corbett (1970) 2 All ER 33, the court had initially, person’s gender was determined on his/her biological characteristics at birth. However, in New Zealand in Secretary, Department of Social Security v. SRA (1993) 43 FCR 299 case, the court held that gender determination is a purely psychological question, one of self-perception and partly a social question, how society perceives the individual.
Drawing inspiration from these cases, the Supreme Court in India has recognised that gender identity is one of the most fundamental aspects of life which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. According to the Court, transgender people are oppressed and are faced with discrimination in the field of health care, employment, education, etc. The Supreme Court also referred to Part 21 of the United Nations Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment 2000, which provides that States are obliged to protect all persons regardless of sexual orientation or transgender identity. In this backdrop, the Court held that transgenders are entitled to affirmative action as guaranteed under Article 15(4) and also to reservation in the matter of appointment. Hence, the State is bound to take affirmative action to give them due representation in public services. Moreover, there is a need for legal recognition of third or transgender identity. In lieu of this fact, the Supreme Court finally concluded that the transgenders belong to a distinct socio-religious and cultural group and must be considered as a “third gender”, apart from male and female. The Supreme Court also referred to the Yogyakarta Principles (All human beings are born free and equal in dignity and rights. All human rights are universal, interdependent, indivisible and interrelated. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse. These principles were published as the outcome of an international meeting of human rights groups in Yogyakarta, Indonesia, in November 2006), saying that India’s criminal law shall be amended so that the reproductive rights of the community are well-protected. The Court has recognised the community as socially and educationally backward. Such classification wil, attract the implementation of the concept of positive discrimination. Another significant aspect is the special medical attention and the measures to provide them a sense of belonging in the society by educating the society as well as the community.
The Supreme Court also clarified in 2014 that transgender does not include gays, lesbians and bisexuals. “The grammatical meaning of ‘transgender’, therefore, is across or beyond gender. This has come to be known as an umbrella term which includes gay men, lesbians, bisexuals and cross dressers in its scope. However, while dealing with the present issue, the wider meaning of the expression transgender was not considered. The apex court’s 2014 ruling on transgender rights was cited in February this year to seek a review of its 2013 decision upholding Section 377 of the Indian Penal Code which prohibits “carnal intercourse against the order of nature with any man, woman or animal”. The Court in Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1 had upheld Section 377 of the Indian Penal Code. It is pertinent to mention here that in May 2017 the Supreme Court clarified that only the transgender community would qualify as the “third gender”. In doing so the Court refused to modify the 2014 ruling on transgender rights.
The Court directed the centre and states to treat the transgender community as socially and educationally backward classes for the purposes of quotas in admission to educational institutions and public appointments. However, the centre also sought a clarification on the grant of Other Backward Class (OBC) status to transgenders, saying all such people cannot be clubbed under the OBC category as some of them belong to Scheduled Caste/Scheduled Tribe by birth. In the 2011 census nearly half million transgender people got registered under the ‘other’ gender option. It is estimated that presently over 2 million Indians identify with a non-binary gender. In this context, it is extremely important to take concrete steps to bring them into the socio-economic mainstream. A nationwide awareness and acceptance campaign was launched as the first step in erasing the deeply-rooted social stigma and prejudices that this vulnerable group faces from other members of society. The campaign was managed by the newly-implemented government social welfare programs that had been created to support the third gender community. Success has been achieved to a greater extent, yet it is just the tip of the ice berg. In 2015, Madhu Bai Kinnar, once expelled by the family, became the first transgender mayor in Raigarh, in Chhattisgarh. In 2016, Padmini Prakash became India’s first transgender news anchor on the daily prime-time news program in Lotus TV. India now has a transgender pastor, banker, police inspector, taxi service and modelling agency, bringing global visibility to a formerly marginalized community.
In the Indian state of Kerala, the nation’s first transgender residential school Sahaj International was opened in Ernakulam district in Kerala in 2016 to offer courses in development to transsexual students.
These stories point out that there is a growing awareness about the rights of the transgender community, yet it is far from satisfactory. Recently, a parliamentary committee in its report in July 2017 has recommended specific provisions in the transgender Bill as drafted by the Ministry of Social Justice and Empowerment to safeguard their rights, protect them against discrimination, and provide quotas in government colleges and jobs. However, the Ministry has decided not to accept the recommendations and it is set to re-introduce its original version of The Transgender Persons (Protection of Rights) Bill, in the next session of Parliament.
While the August 2017 Supreme Court nine-judge bench Right to Privacy judgment had made strong observations on the need to decriminalise IPC Section 377 (which currently penalises sexual intercourse “against the order of nature”), the matter is still pending consideration before the apex court in a separate case. The panel’s recommendation was meant to accord legal recognition and protection from Section 377 to, if not all sexual minorities, at least transgender persons whose welfare comes under the Social Justice Ministry. In April 2016, DMK MP Tiruchi Siva’s Bill on transgender rights had become the first private member’s Bill to be passed by the House in 45 years. It was after the passage of his Bill in the Rajya Sabha that the government said that it would table its own version of the Bill, which it did in the Lower House in August 2016. The ministry has proposed a definition of transgender persons as ‘neither wholly male or female, a combination of female or male, neither female nor male”.
Whatever be the outcome of the debate, one thing is certain that India definitely needs a new start. It is important to address various problems which the community faces due to the gender stratification of the society.