Transgenders in India

• Transgenders have a gender identification or expression that is different from the sex given to them at birth. The transgender community is a hugely varied group. According to the Protection of Rights Bill, 2019, implemented by the Parliament of India on November 26, 2019, a trans person is a term used to describe individuals who are either uncomfortable or doesn’t have the same gender (the sex) assigned at birth
• Justice KS Radhakrishnan, who presided the Supreme Court bench with the other two judges in National Legal Services Authority Vs. Union of India (UOI) and Ors. said that “Recognition and identification of transpersons as a third gender is not some social or medical issue but it is a human rights issue”. LGBTQ stands for Lesbians, Gays, Bisexuals, Transgenders, and Queers, and it is a spectrum that provides identity to these groups. The groups mentioned above face several problems like lack equal opportunity, discrimination, unfair treatment, and many more

The historical status of transgenders in India:

• Hijras and other transgenders are not a new notion in India; they have been recognised throughout our history. Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis, and other members of the Transgender Community may be found in Hindu mythology and other holy books, and they have a long history in our nation. The ancient Hindu scripture Kama Shastra, in which they are described as ‘tritiyapakriti’ or third gender, has been an intrinsic element of vedic and puranic literatures, and it classifies males who want other men as having a ‘third nature’
• Characters from the Hijra play crucial parts in Hinduism’s most famous books, such as the Mahabharata and the Ramayana. Shiva, a major Hindu god, takes on numerous forms, including combining with his wife, Parvati, to create the androgynous Ardhanari, who is worshipped by many in the Hijra community

Current Status in India:

• If we see the 2011 Census, the overall calculated population of transgenders is approximately 4.8 lakh. In lok sabha elections 2019, only 23% of transgenders were eligible to vote. Leaving the data aside, there are also a limited number of transgenders who are ready to reveal their identity. This secrecy is due to their non acceptance in society
• As per the census in 2011, there were more than 54,854 transgender children who were under the age of 6
• If we talk about data regarding education, the pass percentage of transgender persons in class 10th has been increases to 0.36%, and that of class 12th has reduced by 538%
• Due to the lack of awareness and also due to the problems in providing the best medical aid, cases of HIV and AIDS are more common in the transgender community. Even with the different HIV awareness programs, this issue is not properly dealt with
• Mental health awareness is also very bad in the transgender community

The discrimination faced by the community:

• Discrimination based on sex: Individuals identified as transgender are frequently discriminated against by healthcare staff, restricting their access to care. They face greater incidences of gender-based violence, Due to harassment and bullying, they dropped out of school, jeopardising their career prospects and society integration and employment. They often face sexual abuse and assaults, and many law-enforcement agencies don’t even consider their case to be a genuine one and often look for a lacking proof of identity. The group also faces problems in getting the required health care, education, etc., even rental houses, toilets, and visits in public places. Even parents refuse to provide shelter to their transgender kids
• Sexual Discrimination: Transgender people are often bullied and mentally harassed. Assuming that sexual preferences may often arise due to differences in the clothing the person wears and also on the gender presentation, this is often a problem for the community
• Legal discrimination: Homosexual relationships and homosexuality are not recognized and well balanced when it comes to things such as insurance claims, compensation under the Workman’s Compensation Act, gratuity benefits, and for nomination. Laws themselves are very much discriminatory
• Discrimination in the Family: When it comes to discrimination in the family, these individuals are discriminated against. Parents often do not agree to raise their kids as transgender and even disown them at young ages without providing any support
• Problems in education: Indian schools remain very partial in giving admissions to transgenders. They don’t know how to handle children with different sexual identities or how to induce them with other children who have their birth-confirmed identity
• Lack of employment opportunities: There is a big inequality seen in the law and the employment opportunities given to such individuals in any sector. People give them fewer wages and make them work longer. Even many employers are not ready to accept them as employees. 96% of transgender people are denied employment and are forced to work in low-paying or demeaning professions such as badhais, prostitution work, and begging to make ends meet. 50-60% of transsexual people have never attended school, and those that have are subjected to severe prejudice. They are often victims of human trafficking. All these discriminations were confirmed by the study conducted by the National Human Rights Commission on the rights of the Transgender community in India

A study by the National Human Rights Community (NHRC): The study on the rights of the transgender community in India, done by the National Human Rights Commission (NHRC), has brought numerous facts to light:

• More than 60% of them don’t attend school. Of those who attend, 62% face abuse in schools, and 15% face sexual harassment and mental torture by both students and teachers
• More than 92% of the transgender community are denied their right to participate or to take part in economic activity. Even those who are qualified are refused jobs
• Social rejection is a major issue faced by almost 99% of them on many occasions, including their own family members
• They don’t get jobs, which forces them to take low-paying and undignified jobs for their livelihood, such as begging, taking Badhaai during births and marriages, as sex workers, etc. 57% are interested in getting sex transplant surgery but there is a lack of money

The Transgender Persons (Protection of Rights) Act, 2019, is an Indian law that aims to protect transgender people’s rights, welfare, and other related issues. On July 19, 2019, the act was introduced in the Lok Sabha, the Parliament’s lower chamber.

Highlights of the judgement:

• The judgement made it clear that there will be a “Third Gender” status for the transgender community. Thus, it gave them individual identity apart from the existing binary of male and female
•  The judgement gave them the right to self-determination of gender
• The Court also directed all states and the central government to treat the community as a socio-economically backward class in social welfare schemes. So, the judgement came like a command to take care of transgenders by including them in various benefit policies
• The Court ordered the governments to frame social welfare schemes for the community and also generate awareness about them in society through campaigns. These campaigns would help in removing the stigma that pervades society about transgender
• The authorities must construct special public facilities for them and pay attention to the unique medical needs of the community. Taking a cue from the judgement of the apex court, the Indian Parliament passed the Transgender Persons (Protection of Rights) Act 2019 for the protection and welfare of the transgender community

Transgender Persons (Protection of Rights) from the transgender act Act 2019: Transgender Persons (Protection of Rights) Bill, 2019, was passed by the Indian Parliament on November 26, 2019.

Key provisions of the act include:

• The act defines a person from the community as one whose identity based on gender fails to match with the one confirmed at birth
• It aims to prohibit any discrimination against them in job opportunities, education, housing, medical care, and other facilities
• The act allows self-perception of gender identity. But it directs that each person would have to be identified as ‘transgender’ based on a certificate of identity issued by a district magistrate. It also provides that, after a Sex Reassignment Surgery (SRS), a revised certificate of identity can be acquired
• It enforces all the possible minor’s right of residence and helps in compelling any transgender under the age of 18 to live and enjoy a normal life with their original family
• Ban against inequality: The Act disallows and demotivates eight types of discrimination against a special person with such choices. These can include rejection of service or unfair treatment concerning education; placement and provision of employment; healthcare services; access to goods, opportunities accessible to the public; right to movement and residence, rent, or own property. Even the chance to hold public office or private spots and offices for uses; and access to a government or private places
• National Council for Transgender Persons: It would comprise representatives from the government, the transgender community, and experts in the field. It will advise the government and the lawmakers on making policies for the community and even monitor the implementation of the laws for the best usage. It also has a deep insight into the transgender act
• Medical Facilities: The government should take suitable measures to provide medical facilities to transgender people, including independent HIV testing centres and sex reassignment surgeries. 8. The government also made a plan to review all the basic health care services. There was compensation made in the field, and the trans patients were given special reliefs in the medical aids and more such facilities

Critical Analysis of the Act:

• Nomenclature: Activists have an issue regarding the name and the way to address it. The argument is that the term ‘Transgender’ is not kind and lacks the respect a trans individual seeks. The term shows a lack of understanding of the complexities in people who do not conform to the gender binary, male/female
• Self-determination: This is one of the controversial clauses of the bill. The LGBTQ community believes that the need for an identity card by DM negates the principle of the right to self-determination. While the government is of the view that, since benefits from the state are linked to 3rd gender, they have to attain an identity card
• No review mechanism: The Act does not provide a mechanism for appeal or review of the decision if a transgender person is denied a Certificate of Identity by the District Magistrate. 4. It does not make provisions for positive decisions in employment or education despite the Supreme Court mandate in NALSA Judgement

National Council for Transgender Persons:

• The National Council for Transgender Persons (NCTP) is a unique body established in 2020 under the special permissions in the Transgender Persons special Transgender Act (Protection of Rights) Act, 2019. It generally deals with framing equal opportunity policy by advising the government on policy matters affecting transgender persons
• The Chairperson (ex-officio) is The Union Minister of Social Justice & Empowerment, and on the other hand, the Union Minister of State for Social Justice & Empowerment will preside as the Vice-Chairperson (ex-officio). The National Council shall be performing and acting on the following functions:

1. Suggest the Central Government and the state government on making the policies, designing programs, legislation and delivering various projects related to the community.
2. It will monitor and report the implementation and the real-life benefit of the formulated policies. They will work on the ground level to help these people out.
3. They will work with different activities of all the departments of the Government and other non-Governmental Organisations (NGOs) who are looking for and dealing with matters relating to the community.
4. Listen and sort out the problems of the transgender persons.
5. Perform any other functions regarding the matter as may be told by the Central Government for framing equal opportunity policy.

The other Council members include spokespersons of various Ministries/ Departments, five spokespersons of the transgender community, spokespersons of NHRC and National Commission for Women, spokespersons of State Governments and UTs, and experts on behalf of NGOs

Conclusion

People whose gender identification or expression (masculine, feminine, or other) differs from their sex (male, female) at birth are referred to as transgender. The internal knowledge of one’s own gender, or the gender with which a person identifies, is referred to as gender identity. Gender expression is a phrase that refers to how people portray their gender on the outside.