We often differentiate a group of people in the society who are biologically and physically different from natural gender construction and we identify them as transgenders. The word transgender refers to the people or the individuals of different age and sex or whose appearance, behavior or characteristics are different from men and women which are naturally supposed to be and are often described as those whose identity or characteristic fall outside the gender norms. In the past few decades, the term transgender has been tremendously used to describe a wide range of identities and experiences of a third gender besides male and female. Transgender basically involves persons from the third gender and are considered to be a part of LGBTQ community. The other synonyms which are highly associated with them are Gender Different, Gender Variant and Gender non-conforming. In India, we can see a lot of socio-cultural groups of transgender people like Hijras and Kinnars who do not belong to any group but are of third gender individually.
CONSTITUTIONAL RIGHTS OF TRANSGENDER – The preamble in the constitution of India provides justice, social, economic and political equality of status to every citizen of India. There are absolutely no gender differences mentioned in any part of it. Some of the articles which are useful to be mentioned here are as follows:
- The foremost right that is of utmost importance is Right to Equality guaranteed to the citizens of the nation under Article 14.
- Article 15 describes that no person should be discriminated on the ground of religion, race. caste, sex or birth place.
- The right to privacy and personal dignity to all citizen have a separate mention under Article 21.
- Under Article 23,the prohibition of human trafficking such as beggars or other similar forms of forced labors have been given provision of punishable offence in accordance with the law.
- The constitution of India also provides fundamental rights to its citizen with inclusion of equality irrespective of gender, caste, religion, sex or birth place and elimination of any kind of discrimination.
Despite so many mechanisms and constitutional provisions in place, we can still observe indifferent treatment vented out towards them. The Indian constitution does guarantee equality to all its citizen but the question here is to what extent it is actually guaranteed. The Indian state defines civil person hood, gender identity as important and unavoidable category and the identification between male and female on the basis of sex is an important component of civil identity. The problem that arises here is that the Indian state recognize only 2 sex and refused to recognize the 3rd gender or sex (HIJRA). This policy has deprived them several rights that Indian citizen take for granted which are right to vote, right to marry, right to own a property and right to education.
PROBLEMS FACED BY TRANSGENDERS- Social Detachment is one of the major problems we know that transgenders have to face since a long time now but apart from that, issues like unemployment, humiliation, lack of educational facility, homelessness, lack of medical facility and problems associated to marriage and adoption are also what they have to face at every point of their life. In the previous decade of 1994, transgenders were granted voting rights but the problem arose when they caught up in issuing of voter cards in the male and female section. One big question that arose here was despite Constitution of India providing equality to all its citizens and prohibition of discrimination, why were transgender community facing such difficulties.
The answer to the question can be witnessed when families considers boys acting feminine or girls acting like boys as inappropriate. They are threatened, scolded or even assaulted by their family members for dressing up or behaving like one. Some families or parents also disown or evict their own biological child for not following the gender norms of the society. They believe that their transgender child may bring disgrace or shame to the family, may not get married and may not be capable of taking care of the family. There is absolutely no protection from the police to the transgenders as they are easy targets for extorting money and being considered as mere sexual objects. The social welfare department provides a variety of social welfare scheme for the disadvantaged groups, but no specific schemes are available for transgender community except in the rarest of the rare cases like the one in Tamil Nadu where land is been provided to the Aravians. To overcome these problems faced by the transgenders, the Department of Social Welfare of state of Tamil Nadu has established Transgender omen Welfare Board to address social welfare issues of transgender community.
SUPREME COURT JUDGEMENT ON TRANSGENDER RIGHTS-The Supreme Court of India under Section 377 passed a judgement in which people who wants to identify with third gender and those who wants to transform from one identity to other (male to female) and vice versa were addressed. The Hon’ble court gave directions to the Central and state government to grant legal recognition of gender identity whether it be a male, a female or someone belonging to the third gender.
1 Legal Recognition of third gender – In recognizing the third gender, the court ruled that fundamental rights are available to the third gender in same manner as male or female.
2 Legal recognition for people transition within male / female Binary – The court stated that they can prefer to follow physiological test as opposed to binary test.
3 Public Health and Sanitization – The court stated the Central and the State government has to take proper measure to provide medical care to transgender people and also provide them separate public toilets.
4 Socio economic Rights – The court also asked Centre and the State government to provide social welfare schemes and also to provide them reservations in educational institutions and for public appointments.
5 Stigma and Public Awareness –Supreme court gave the broadest direction to the Centre and state government to take steps to create public awareness so that the third gender community feels as much as an equal part of the society as anyone else.
6 Challenging 377 – The judgement contradicted the findings of supreme court in Suresh Kaushal Kumar in various ways. The judgement noted that section 377 is associated with specific sexual acts that has been used as an instrument to harass and abuse the Hijras. Th court find that discrimination on ground of gender and sexual orientation violates article 14 and transgender are vulnerable to harassment in home or in jail by police so we can clearly mark the link that section 377 fails the test of equality under constitution.