THIRD GENDER RIGHTS IN INDIA

INTRODUCTION

The rule of law is supreme and everyone is equal in the eyes of law in India. Yet, the transgender community is in a constant battle as they have to fight oppression, abuse and discrimination from every part of the society, whether it’s their own family and friends or society at large. The life of transgender people is a daily battle as there is no acceptance anywhere and they are ostracized from the society and also ridiculed. Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex. TG may also takes in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as “third gender” and they do not identify as either male or female. Hijras are not men by virtue of anatomy appearance and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since Hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional “third gender”.

Transgenders are neither treated as male or female, nor given the status of a third gender, they are being deprived of many of the rights and privileges which other persons enjoy as citizens of this country. TGs are deprived of social and cultural participation and hence restricted access to education, health care and public places which deprives them of the Constitutional guarantee of equality before law and equal protection of laws. Even after the pronouncements of judgment with respect of the recognition of transgender rights, they are still continued to be abused and face custodial torture and unlawful detention. Further, it was also pointed out that the community also faces discrimination to contest election, right to vote, employment, to get license etc. and, in effect, treated as an outcast and untouchable.

Transgenders, in our society, encompass all races, ethnicity, religious and social classes, yet, they’ve never enjoyed a respectable life, because of “what they are” and “how they are”. They are subjected to confusions and anguish, resulting from the rigid, forced conformity to sexual dimorphism throughout the recorded history. They are facing disparities linked to societal stigma, discrimination, and denial of their civil and human rights. Discrimination against them has been associated with high rates of substance abuse and suicides, and they are facing rampant discrimination in the areas of family life, social life, housing, education, health etc.

They’ve been continuously subjected to hear and assimilate abuses from people about them. Their lives have always been subjected to abstaining from the colours of the world, just because of the denial of social acceptance. The society views them as eccentric characters, which wouldn’t fit into the prescribed sanctimonious bounds.

VIOLATION OF HUMAN RIGHTS

 

The transgender communities are deprived of social and cultural participation and hence they have restricted access to education, health care and public places which further deprives them of the Constitutional guarantee of equality before law and equal protection of laws. It has also been noticed that the community also faces discrimination as they are not given the right to contest election, right to vote (Article 326), employment, to get licenses, etc. and in effect, they are treated as outcast and untouchable. Discrimination on the basis of class, gender, and sexuality not only limits the choice of profession and the possibility of economic advancement but also impedes access to education and information about lifestyle choices of sexuality minorities.

The classification of state and societal violence against hijra and kothi sex workers can be done under the following[1]:

  1. a) Harassment by the police in public places:

Due to the extreme intolerance they face in their families, hijras and kothis often adopt public spaces like parks or certain streets, as social spaces where they meet sexual partners, lovers and even clients. Since they can’t afford the protection and privacy afforded by independent accommodation, they are driven to making furtive sexual contacts and having sex in parks and public toilets. This makes them vulnerable to violence, inflicted largely by the police.

  1. b) Harassment at Home:

Although public spaces do indeed expose hijras and kothis to extreme violence, the private space by itself cannot guarantee safety either. For most hijras and kothis a long struggle is involved in leaving the confines of their family and setting up a house of their own, albeit with meager resources. This home is a private space, which should guarantee them, like everyone, a sense of personal security. Unfortunately, hijras and kothis are subject to constant surveillance by the police, which often leads to their intrusions into the private spaces of the home as a continuation of the harassment that the hijras face on the street.

  1. c) Abuse/harassment in police stations:

Police stations have always functioned as custodial institutions in which there is tremendous scope for both harassment and abuse. The powers of the police, which are enormous due to laws like Section 377, are minimally checked in public spaces, but function unbridled in a closed environment such as the police station. The various legal norms which govern the behavior of the police are completely disregarded in the police stations with the police violating all canons of civilized behavior.

  1. d) Rape in jails:

Jails are custodial institutions where feminine behavior by men is always at a greater risk of mistreatment by both authorities and inmates. Jails are closed institutions with a strict segregation based on sex. This ensures that male wards in general are highly masculine spaces with no heterosexual contact. The cult of masculinity promoted by the jail environment necessarily entails a targeting of those considered not ‘masculine’ enough. As a consequence, kothis and hijras admitted to jails become the sites for the enactment of the most brutal forms of sexual violence, as the following testimony reveals.

The reason why the sexuality of hijras incites such gratuitous violence could be two-fold. First, since sexuality is often the most intimate part of a person, sexual abuse and violence can be seen as the most systematic tool of dehumanizing an individual[2]. Second, the sexual nature of the violation can be understood as an apt punishment for trangressive sexuality. Since this non-confirmative and highly visible sexuality of hijras is so deeply threatening to the conventional social order, a punishment centering on a targeting of sexuality is deemed most effective

CONSTITUTIONAL SAFEGUARDS

The right of equality before law and equal protection of law is guaranteed under Article 14 and 21 of the Constitution. The right to choose one’s gender identity is an essential part to lead a life with dignity which again falls under the ambit of Article 21. Determining the right to personal freedom and self determination, the Court observed that “the gender to which a person belongs is to be determined by the person concerned.” The Court has given the people of India the right to gender identity. However, the Supreme Court of India in its pioneering judgment by the division bench of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v. Union of India & Ors.[3] recognized the third gender along with the male and female. By recognizing diverse gender identities, the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is recognized by the society. The Court recognized the right to as to how a person choose to behave in private, personhood and the free thought process of the human being, which are necessary for the fullest development of the personality of the individual. The Court further noted that a person will not realize his dignity if he is forced to mature in a gender to which he does not belong to or he cannot relate to which will again hinder in his development. The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held that “no restriction can be placed on one’s personal appearance or choice of dressing subject to the restrictions contained in Article 19(2) of the Constitution”. “Recognition of Transgenders as a third gender is not a social or medical issue but a human rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing down the ruling:

The Supreme Court has given certain directions for the protection of the rights of the transgender persons by including of a third category in documents like the election card, passport, driving license and ration card, and for admission in educational institutions, hospitals, amongst others. Human rights are basic rights and freedoms which are guaranteed to a human by virtue of him being a human which can neither be created nor can be abrogated by any government. It includes the right to life, liberty, equality, dignity and freedom of thought and expression.

 

Article 14 of the Constitution of India states that “the State shall not deny to “any person” equality before the law or the equal protection of the laws within the territory of India”. Equality includes the full and equal enjoyment of all rights and freedom.

Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequal’s or unequals as equals will be violative of the basic structure of the Constitution. Article14 of the Constitution also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including Transgenders may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female.

Article 19(1) of the Constitution guarantees certain fundamental rights, subject to the power of the State to impose restrictions from exercise of those rights. The rights conferred by Article 19 are not available to any person who is not a citizen of India. Article 19(1) guarantee those great basic rights which are recognized and guaranteed as the natural rights inherent in the status of the citizen of a free country.

Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution. Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India.

A transgender’s personality could be expressed by the transgender’s behavior and presentation. State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. Therefore the values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights.[4]

PROTECTION OF TRANSGENDER RIGHTS

The world is slowly but painfully moving towards formal recognition of the existence of 3rd gender rights. On April 15,2014 landmark decision of National legal service authority v. Union of India, recognized the rights of the transgender in the eyes of law relying on Article 14 of the Indian Constitution dealing with right to equality uses the term person which does not restrict itself to binary term. Article 15 signifies that state shall not discriminate against any citizen on the ground of sex with regard to access to shops public restaurant, hotels & places of public entertainment. Article 16 states that there shall be quality of opportunities for all citizens in matters relating to employment of any office. Gender identity is at the core of one’s personal identity. Therefore, it will have to be protected under Article 19. The SC also went on to that self- determination of gender is an integral part of personal autonomy &     self- expression falling within Article 21 of the Indian Constitution. Third Gender-Declaration from the Apex court in the case of National Legal Service Authority V. Union of India [5] is as follows:

  • Hijras, lesbians, gays, bisexuals apart from binary gender, be treated as “Third gender” for the purpose of safeguarding their rights under Part III of the Constitution and the laws made by the Parliament and State legislature.
  • Transgender persons right to decide their self-identified gender is also upheld and the Centre and State government are directed to grant recognition of their gender identity such as male, female or as third gender.
  • To extend all kinds of reservation in cases of admission in educational institution and for public appointments.
  • Central government should seriously address the problems faced by Hijras such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma.
  • Central and State governments should take proper measures to provide medical care to the TG’s in the hospitals and also provide separate public toilets and other facilities.  Central and State governments should take steps for framing social welfare schemes for their betterment.

To take steps to address the violations faced by the transgender community with respect of custodial torture and unlawful detention of the Transgenders who are languishing in the prison cells.

POLICE REFORMS:

  • The police administration should appoint a standing committee comprising Station House Officers and human rights and social activists to promptly investigate reports of gross abuses by the police against kothis and hijras in public areas and police stations, and the guilty policeman immediately punished.
  • The police administration should adopt transparency in their dealings with hijras and kothis; make available all information relating to procedures and penalties used in detaining kothis and hijras in public places.
  • Protection and safety should be ensured for hijras and kothis to prevent rape in police custody and in jail. Hijras should not be sent into male cells with other men in order to prevent harassment, abuse and rape.
  • The police at all levels should undergo sensitization workshops by human rights  groups/queer groups in order to break down their social prejudices and to train them to accord hijras and kothis the same courteous and humane treatment as they should towards the general public.

RIGHT OF TRANSGENDER PERSONS BILL, 2014:

The Bill was introduced in Rajya Sabha on 12th December, 2014 which is passed on 24th April, 2015 unanimously, with cross-party support. The rights guaranteed under the Bill are mostly substantive rights such as the right to equality and non-discrimination, life and personal liberty, free speech, to live in a community, integrity, along with protection from torture or cruelty and abuse, violence and exploitation. There is a separate clause for transgender children.

Education, employment and social security and health are also covered under the Bill. The chapter on education makes it mandatory for the Government to provide inclusive education for transgender students and provide adult education to them.

With the employment chapter, there are two separate clauses dealing with formulation of schemes for vocational training and self-employment of transgender persons by the Government. There’s a separate clause for non-discrimination against transgender persons in any establishment – public or private. The Bill envisages setting up a number of authorities and forums – National and State Commissions for Transgender Persons. The Commissions work will be mostly in the nature of inquiry or recommendations in the inconsistencies in the application of the law or violations of right of transgender persons. The Commissions can issue summons to witnesses, receive evidence, etc. There is penalty by way of imprisonment for up to a year for hate speech against transgender people[6]

STATUS OF THE BILL :

To become law, it now must be passed by the lower house of parliament, where the ruling Bharatiya Janata Party (BJP) has a majority. The Minister for Social Justice and Empowerment, belonging to the BJP, has thus far said that the government supports the issue but wants to bring its own comprehensive bill in this regard. The Rights of Transgender Persons Bill, if passed, will allow for legal gender recognition, removing a fundamental barrier for transgender people toward realizing their basic human rights, including protection from violence and discrimination

CONCLUSION

Sexual violence is a constant, pervasive theme in all these narratives. Along with subjection to physical violence such as beatings and threats of disfigurement with acid bulbs, the sexuality of the hijra also becomes a target of prurient curiosity, at the very least and brutal violence as its most extreme manifestation. As the narratives indicate, the police constantly degrade hijras by asking them sexual questions, stripping them, and in some cases raping them. With or without the element of physical violence, such actions constitute a violation of the integrity and privacy of the very sexual being of the person. The police attitude seems to be that since kothis and hijras engage in sex work, they are not entitled to any rights of sexual citizenship. What became apparent in the course of study is that discrimination against hijras and kothis is embedded in both state and civil society. The violence that this community faces is not only due to the state but also has deep societal roots. While India has made considerable progress on rights of transgender people in recent years, most remain socially marginalized and deprived of basic rights, including the right to vote, own property, marry, and claim a formal identity through a passport or other government identification. They are frequently publicly ridiculed and excluded from general society, enduring discrimination and humiliation from the police and medical authorities.

[1] http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.pdf

[2]  http://socialjustice.nic.in/pdf/chapter7.pdf

[3]  Writ Petition (Civil) No.400 Of 2012

[4]  http://www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf

[5] Writ Petition (Civil) No.400 Of 2012

[6] Rights of transgenders in India – iPleaders http://blog.ipleaders.in/legal-rights-lawtransgenders-in-india/#ixzz3xvyVokI3

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