This article on ‘Laws regulating the transgender community in India’ was written by Shudhi Malhotra, an intern at Legal Upanishad.
Introduction
The Transgender Persons (Protection of Rights) Act, of 2019, was created in response to the demands of social change and revolutionary movements for the legalized protection of the rights of the transgender population. The Indian Constitution, the Act guarantees that everyone has an equal opportunity to acquire a living and lead dignified lives. It also includes measures for the protection of the rights of the transgender population. This article deals with the laws regulating the transgender community in India.
Misconception about the term transgender in India
Transgender is a phrase that encompasses those whose gender expression, identity, or conduct deviates from the norms expected of their natal sex and is not just used to refer to those whose genitalia are mixed. This includes a variety of transgender identities, such as transgender male, transgender female, male-to-female (MTF), and female-to-male (FTM).
Additionally, it covers transsexuals, and cross-dressers (those who dress in attire from the opposite gender). The Hijras, Aravanis, Kothis, Jogtas/Jogappas, and Shiv Sakthi are only a few of the many transgender-related identities that exist in India. They were given a lot of respect in the past.
Transgender: Recognition as the third gender
Transgender people experience physical abuse because society does not accept their gender and because they are different from the other gender, making them targets of societal oppression. Transgender people have experienced prejudice for a very long time because, in the past, neither the law nor society acknowledged their gender identity, therefore they were obliged to use the pronouns male or female to refer to themselves.
To address the discrimination they faced and protect their rights, the Supreme Court of India recognized transgender people as the third gender court and ordered the centre to regard transgender people as economically and socially disadvantaged groups and to grant them access to work and educational opportunities based on their third gender category.
Landmark Judgments
Naz Foundation vs Govt Of NCT of Delhi (2009)
The Supreme Court (SC) remanded the High Court (HC) in 2006 after it rejected a 2004 ruling that rejected a 2001 petition challenging Section 377 IPC. According to this decision, Section 377 is unlawful under Articles 21, 14, and 15 and decriminalizes adults who engage in private, consenting sexual behaviour.
Suresh Kumar Koushal and another v NAZ Foundation and others (2013)
The Supreme Court overruled the Delhi High Court’s 2009 decision to decriminalize gay behaviour and reinstate homosexuality as a crime.
SC contended that less than 200 people had been charged under Section 377 in the previous 150 years. As a result, the “plight of sexual minorities” could not be utilized as evidence to determine whether a statute is constitutional. The SC also decided that it was up to the legislature to decide whether it would be wise to repeal Section377 of the IPC.
Transgender rights under the Indian constitution
The third gender has been denied several rights as an Indian citizen, including the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport, etc. More importantly, however, is their right to education, employment, health, and other necessities.
Previously, the Indian state only recognized two-sex, namely male and female. Their fundamental rights under Articles 14, 15, 16, and 21 are the fundamental rights that they were denied. In the 2014 NALSA judgment, the supreme court emphasis on defending and preserving the rights of the transgender person under the principles outlined in Articles 14, 15, 16, and 21 of the Indian Constitution. This was the first time that transgender rights had been taken into consideration. In that case, the Honorable Supreme Court ruled that Section 377 should be repealed and upheld the notion that homosexuality is a sexual orientation rather than an abnormality.
The Court further ruled that denial of the following rights would violate the right to life and that fundamental rights cannot be denied because discrimination based on sexual orientation violates both the right to equality and the right to privacy because sexual orientation is an inherent component of one’s self-identity.
Major initiatives for transgender persons
National Portal for Transgender Persons:
- The Transgender Persons (Protection of Rights) Rules, 2020 have been followed in its launch.
- It would make it easier for transgender people to apply for a certificate and identity card digitally from anywhere in the nation, avoiding any in-person interactions with officials.
- They will be able to watch the progress of applications, rejections, grievance resolutions, etc., which will guarantee process transparency.
- The issuing authority must process applications quickly and provide certificates and I-cards without causing any unnecessary delays.
Conclusion
Every citizen of the country needs to be subject to the same laws. Any form of discrimination, whether based on race, religion, colour, sex or any other factor, endangers the secular and democratic framework of the nation.
Undoubtedly, the transgender population has experienced significant discrimination because of an uncontrolled aspect of their sexual orientation.
Despite laws forbidding discrimination, the reality often diverges, which tends to disrupt social order and violates the fundamental rights of the transgender population. To secure the correct application of the community’s laws, society must welcome trans-persons. Due to society’s propensity to disregard laws that conflict with their interests, there are gaps in the legal system.
The gap will automatically close if this psychology of the human mind discovers a way out and tries to accept everyone, and Article15 of the Indian Constitution, which forbids all forms of discrimination, would be rightfully enforced.
References
- National Legal Ser.Auth vs Union Of India & Ors https://indiankanoon.org › doc National Legal Ser.Auth vs Union Of India & Ors on 15 April 1947
- Transgender Persons (Protection of Rights) Rules, 2020: The Transgender Persons (Protection of Rights) Act – Drishti IAS
- Suresh Kumar Koushal vs. Naz Foundation https://indiankanoon.org › doc Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December
- Misconception about the term Transgender https://www.legalserviceindia.com › Rights Of Transgender Under The Indian Legal System