Sharad Besoya Course : Ba Llb (2016-2021) College : Amity Law School Delhi E-Mail : Sharad.Besoya379@Gmail.Com Phone No

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS (ISSN 2582 – 6433)

VOLUME I ISSUE III (SEPTEMBER 2020)

Email – [email protected] Website – www.ijlra.com

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www.ijlra.com Volume IIssue III|September 2020 ISSN: 2582-6433

DISCLAIMER

No part of this publication may be reproduced or copied in any form by any means without prior written permission of Managing Editor of IJLRA. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of IJLRA.

Though every effort has been made to ensure that the information in Volume I Issue III is accurate and appropriately cited/referenced, neither the Editorial Board nor IJLRA shall be held liable or responsible in any manner whatsever for any consequences for any action taken by anyone on the basis of information in the Journal.

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EDITORIAL TEAM

EDITORS Ms. Ezhiloviya S.P. Nalsar Passout

Ms. Priya Singh West Bengal National University of Juridical Science

Mr. Ritesh Kumar Nalsar Passout

Mrs. Pooja Kothari Practicing Advocate

Dr. Shweta Dhand Assistant Professor

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ABOUT US

INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANLAYSIS ISSN 2582-6433 is an Online Journal is Quarterly, Peer Review, Academic Journal, Published online, that seeks to provide an interactive platform for the publication of Short Articles, Long Articles, Book Review, Case Comments, Research Papers, Essay in the field of Law & Multidisciplinary issue. Our aim is to upgrade the level of interaction and discourse about contemporary issues of law. We are eager to become a highly cited academic publication, through quality contributions from students, academics, professionals from the industry, the bar and the bench. INTERNATIONAL JOURNAL FOR LEGAL RESEARCH & ANALYSIS ISSN 2582-6433 welcomes contributions from all legal branches, as long as the work is original, unpublished and is in consonance with the submission guidelines.

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THE THIRD GENDER: LEGISLATION & ISSUES IN INDIA

Author : Sharad Besoya Course : Ba Llb (2016-2021) College : Amity Law School Delhi E-Mail : [email protected] Phone No. : 9990099595 I dare to dream of a world where people can dress, speak, and behave how they want, free from mockery, derision, judgment, harassment, and danger. This is what I want. Who’s with me? -Juno Dawson INTRODUCTION India might have accorded Third Genders with a legal status in 2014, but in reality they have not been accepted till date as an integral part of our society. By just granting status does not suffice until and unless we people accept them as our comrade, friend, teacher, neighbours etc.

In April 2014, in a case brought by the National Legal Services Authority (Nalsa) against Union of India and others, Justice KS Radhakrishnan declared transgender to be the third gender in Indian law1.

The ruling said:

Seldom, our society pathetically fails to realise the trauma, agony and pain which the members of Transgender community undergoes, nor even tries to appreciate the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often believes in ridiculing and abusing the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are isolated and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to embrace different gender identities and expressions, a mindset which desperately need to change.

1 Somasekhar Sundaresan, ‘’Defanging Napunsak’’, India Times, Mumbai Mirror, https://mumbaimirror.indiatimes.com/opinion/columnists/somashekhar-sundaresan/defanging- napunsak/articleshow/33873369.cms accessed 8 September 2020.

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Justice Radhakrishnan said that transgender people should be treated equally with other minorities under the law, enabling them to accession of jobs, healthcare and education. He framed the issue as one of human rights, saying that, "These transgender, even though might be insignificant in numbers, but are still human beings and therefore they have all rights to enjoy their basic human rights"2. He concluded:

1. In order to safeguard their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature, Hijras, Eunuchs, apart from binary gender, must be treated as "third gender" category. 2. It is pertinent to upheld the ‘Transgender persons' right in order to decide their self- identified gender and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

In 2018, the Supreme Court of India decriminalised consensual homosexual intercourse by reading down Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit.3 Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalised by the British during their rule in India4.

RETROGRESSION India’s transgender women community, or Hijra, has been a part of this civilization since ages. With a history of over 4,000 years and being mentioned in ancient texts, the Hijra community is a testament to the sexual diversity that is integral yet often ignored in the main narrative of Indian culture.

The Hijra community has been referred in ancient literature, the most known of which is the Kama Sutra, a Hindu text on human sexual behaviour written sometime between 400 BCE and 200 CE. Hijra characters hold prominent roles in some of the most important texts of

2 Ibid. 3 Dhananjay Mahapatra & Amit Anand Choudhary, SC Decriminalises Section 377, Calls 2013 Ruling ‘Arbitrary and Retrograde’, The Times of India, https://timesofindia.indiatimes.com/india/sc-decriminalises- section-377-calls-2013-ruling-arbitrary-and-retrograde/articleshow/65712063.cms accessed on 11 September 2020. 4 Devika, Final Judgment| Gender Identity and Self-Expression Basic to Human Dignity; Section 377 Unconstitutional Insofar It Penalises Consensual Sexual Acts Between Adults In Private : SC, The SCC Online Blog, https://www.scconline.com/blog/post/2018/09/06/gender-identity-and-self-expression-basic-to-human- dignity-article-377-unconstitutional-in-so-far-it-penalises-consensual-sexual-acts-between-adults-in-private-sc/ accessed 11 September 2020.

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Hinduism, i.e the Mahabharata and the Ramayana5. It is believed that Shiva, a principal Hindu deity, merged with his wife, Parvati, to become the androgynous Ardhanari, who holds special significance to the Hijra community. Hijras gained important positions in court and various facets of administration during the Mughal-era India, from the 16th to 19th century. They were also upheld religious authority and were sought out for blessings, particularly during religious ceremonies.

However, under colonial rule during the 19th century, British authorities sought to eradicate and criminalize the Hijra community through various draconian laws. British officials began framing eunuchs "ungovernable". Commentators believed that they evoked images of "filth, disease, contagion and contamination". They were portrayed as people who were "addicted to sex with men". Colonial officials claimed that they were not only a danger to "public morals", but also a "threat to colonial political authority".

Therefore, the provinces launched a campaign to reduce the number of eunuchs with the aim of gradually causing their "extinction". They were considered as "criminal tribes" under a controversial 1871 law which targeted caste groups considered to be hereditary criminals. The law armed the police with immense power of increased surveillance of the community. Police compiled registers of eunuchs with their personal details, often defining "an eunuch as a criminal and sexually deviant person". "Registration was a means of surveillance and also a way to ensure that castration was stamped out and the hijra population was not reproduced".

Eunuchs were not allowed to wear female clothing and jewellery or perform in public and were threatened with fines or thrown into prison if they did not comply. Police would even cut off their long hair and strip them if they wore female clothing and ornaments. They "experienced police intimidation and coercion, though the patterns of police violence are unclear".6

These laws were later repealed after India attained independence.

5 Soutik Biswas, “How Britain tried to ‘erase’ India’s third Gender’’, Bharata Bharti, https://www.bbc.com/news/world-asia-india-48442934 accessed 12 September 2020. 6 Ibid.

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A CRITICAL ANALYSIS OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

While the decision in the NALSA petition was still pending, an Expert Committee Report on issues relating to transgender people was published in January 2014, after consultations by the Ministry of Social Justice and Empowerment with transgender people in August 20137. In this context, Tiruchi Siva of the Dravida Munnetra Kazhagam party introduced a private member's bill in the Rajya Sabha, namely the Rights of Transgender Persons Bill, 2014 (Bill No. 49 of 2014).8

The government had initially asked Siva to withdraw the bill due to there being "some anomalies" in the text; however, the opposition had a majority in the house and the bill was unanimously passed by the Rajya Sabha on 24 April 2015. The bill was welcomed by queer rights activists in India. However, some transgender people noted their absence from the entire process and called for their recommendations to be sought.

The Rights of Transgender Persons Bill, 2014 was the first private member's bill to be passed by the Rajya Sabha in thirty-six years and by the Parliament as a whole in forty-five years. Between 1947 and 2015, only sixteen private member's bills were passed.

The 2014 bill underwent significant changes when the government drafted its own version of the bill, omitting provisions in the 2014 bill. After recommendations were received from transgender people, the bill was sent to the Ministry of Law and Justice. It came to be known as the Rights of Transgender Persons Bill, 20159. Later, on 26 February 2016, the bill was introduced in the Lok Sabha for debate by Baijayant Panda of the Biju Janata Dal party. He argued that the bill would help extend constitutional rights and end discrimination against transgender people, allowing them to live a life of dignity. The bill was discussed in the Lok Sabha on 29nd April 2016. Siva stated that he will not be withdrawing the 2014 bill.

While the 2014 bill passed by the Rajya Sabha was still pending, the government tabled the Transgender Persons (Protection of Rights) Bill, 2016 (Bill No. 210 of 2016), on 2nd August 201610, following the reconstitution of the Lok Sabha after the 2014 general elections. The 2016 bill had various provisions which were reportedly regressive and inferior to those in the 2014 bill. The bill was met with criticism and protests from Indian transgender people and

7 Supra 1. 8 Supra 3. 9 Ibid. 10 Ibid.

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was referred to the standing committee, which submitted its report in July 2018. The Lok Sabha tabled and passed a newer version of the bill with twenty-seven amendments on 17th December 2018. The bill was once again met with severe criticism and protests across India, as it overlooked the recommendations made by the standing committee and the suggestions that had been offered by transgender people. The 2018 bill lapsed due to the dissolution of the Lok Sabha.

Following the reconstitution of the Lok Sabha after the 2019 general elections, the bill was reintroduced on 19 July 2019 by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot. Before this the bill had been approved by the union cabinet on 10 July 2019. The bill was passed by a voice vote in the Lok Sabha on 5 August 2019, amidst commotion in the house following the revocation of the state of Jammu and Kashmir's special status by the Parliament on the same day. The bill was introduced in the Rajya Sabha by Thawarchand Gehlot on 20 November 2019, upon which it was passed without any amendments on 26 November 2019. The bill received presidential assent on 5 December 2019, following which the Ministry of Law and Justice published it in the Gazette of India as Act No. 40 of 201911. The act came has been in effect since 10 January 2020.

On 18 April 2020, the government published Draft Transgender Persons (Protection of Rights) Rules, 2020 in exercise of its powers under the 2019 statute, seeking comments and suggestions on the same from the public.

The important provisions of the 2019 Act are discussed below:

1. Prohibition of discrimination against Transgender individuals12 : Discrimination includes denial or discontinuation of access to or enjoyment of, or unfair treatment in:

 educational establishments;  employment;  healthcare services;  any goods, accommodation, service, facility meant for public use;  right of movement;  right to purchase reside, purchase, rent or otherwise occupy property;

11 TMN Staff, Despite Massive Protests Trans-bill Gets Presidents Assent Becomes Law, The News Mint, https://www.thenewsminute.com/article/despite-massive-protests-trans-bill-gets-president-s-assent-becomes- law-113643 accessed 17 September 2020. 12 Section 3 of the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India).

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 opportunity to stand for or hold public office; and  government or private establishment in whose care or custody a transgender person is.

2. Recognition of identity13 : Recognition of transgender individuals’ identity and conferring the right and entitlement to obtain a certificate of identity as proof of recognition from the relevant state authorities.

3. Welfare measures14 : Formulation and enactment of welfare measures, schemes, programmes for education, social security, healthcare, effective participation in the society and facilitating access to these schemes and welfare measures by appropriate state governments.

4. Rehabilitation and right of residence15 : Rescue and rehabilitation measures, including right of residence conferred by the relevant state governments.

5. Obligations on Establishments16: It requires Establishments17 to ensure compliance with the Act and provide facilities as may be prescribed by the Act from time to time. In matters relating to employment including but not limited to recruitment, promotion and other related issues, Establishment must not discriminate against transgender individuals and must provide for an adequate grievance redressal mechanism to deal with complaints relating to violations of the Act and in the workplace.18

6. National Council for Transgender Persons19 : The constitution and establishment of the National Council for Transgender Persons. The National Council will perform the functions defined under the Act, including but not limited to advising concerned Stakeholders on formulation of policies, programmes, legislations and welfare measures, monitoring and evaluating the impact of policies and programmes designed for ensuring participation of Transgender and ensuring redressal of grievances of Transgender Persons among others.

13 Section 4 of the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). 14 Section 8, 13, 14 & 15 of the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). 15 Section 9 & 10 of the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). 16 Section 11 of the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). 17 Section 2 of the Companies Act, 2013, No. 13, Acts of Parliament, 2013 (India). 18 Alok Tewari, Transgender Rights The Third Gender & Transforming the Workplace In India, Mondaq, https://www.mondaq.com/india/discrimination-disability-sexual-harassment/905918/transgender-rights-the- third-gender39-and-transforming-the-workplace-in-india accessed 18 September 2020. 19 Section 16 & 17 of the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India).

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7. Offences and penalties20 : The Act introduces penalties for offences against transgender individuals.

Anyone who:

 compels or entices a transgender individual into forced or bonded labour (excluding compulsory government service for public purposes);  denies a transgender person the right of public passage or use of public places;  forcefully removes a transgender person from a household, village or other place of residence;  commits an acts or intends to do an act causing physical, sexual, verbal, emotional or economic harm and/or abuse against a transgender person;

shall be punished with imprisonment which may vary between six months to two years, with a fine.

CRITICISM OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019 The new law is found to be inadequate on several fronts. LGBTQ activists and allied human rights groups have critiqued the various transgender rights bills since the first one was introduced in 2016. The lawmakers failed to consider the concerns the activists raised. As a result, India’s new law will violate the rights of transgender people and will prove to be demeaning for the transgender community rather than paying respect and uplifting the long persecuted communities.

In India the activists plan to challenge the new law on several fronts:

 The Act which was enacted to eliminate discrimination against transgender persons by other persons or establishments but it falls short and does not even prescribe a punishment for discrimination.  The Act also recognizes intersex people but offers them no specific protections. Propulsion to protect intersex children from medically unnecessary and unreasonable ‘normalizing’ surgeries, for example, a 2019 ban on operations in Tamil Nadu, should guide improvements on that front.21 The procedure for recognition before the law

20 Section 18 for the Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India). 21 Kyle Knight, Indian State Bans Unnecessary Surgery Intersex Children, Human Rights Watch,

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should be separate from any medical interventions. But if an individual’s personal identity or transition process requires medical support, those services should be available and accessible to that individual without any intervention.  The act violate the NALSA judgement: In the NALSA v Union of India case in 2014, the Supreme Court bench had called for legislation to safeguard the rights of transgender persons. The bench said: “Non-recognition of the identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.” The 2019 Act gives the district magistrate the power to recognise a person as transgender, while the NALSA judgment allowed self-identification of gender. According to the NALSA judgment any insistence on SRS (sex reconstruction surgery) was immoral and illegal. It has stressed that self- determination of gender is integral to one’s personality, dignity and falls under Article 21 of the Constitution. 22  Perhaps the most serious flaw in the new law is the procedure it mandates for legal gender recognition - the process by which transgender people can change their documents to reflect their identity. It is a two-step process. First, an individual must apply for a “transgender certificate” from the District Magistrate in accordance with their domicile. Then, a certificate holder can apply for a “change in gender certificate,” however, this second step requires the person to provide proof of surgery, issued by a hospital official, to the District Magistrate for a second evaluation, and the official must be “satisfied with the correctness of such certificate.”23 This sets an extraordinary amount of power with one government office, i.e. the District Magistrate to arbitrate which transgender people “qualify” to be recognized as who they are. It also coerces people into medical procedures they might not want a fundamental rights violation that Indian and international jurisprudence condemns.  The Act’s provisions are also contrary to international standards for legal gender recognition. International standards and best practices including those of multiple United Nations agencies, the World Medical Association, and the World Professional Association for Transgender Health, all call for clear separation of legal and medical

https://www.hrw.org/news/2019/08/29/indian-state-bans-unnecessary-surgery-intersex-children accessed 20 September 2020. 22 G. Ram Mohan, Halt Implementation of the Trans Act 2019: Activits, The Wire, https://thewire.in/lgbtqia/trans-act-2019-rules-feedback-activists accessed 20 September 2020. 23 Kyle Knight, Indias Transgender Rights Law Isn’t Worth Celebrating, Human Rights Watch, https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating accessed 20 September 2020.

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processes. The to remove any unambiguous provisions.Office of the UN High Commissioner for Human Rights in 2015 recommended that states begin immediately “issuing legal identity documents, upon request, that reflect preferred gender, eliminating abusive preconditions, such as sterilization, forced treatment and divorce.”24 According to a 2015 report by World Health Organization and Asia- Pacific Transgender Network recommended that governments “take all necessary legislative, administrative, and other measures to fully recognize each person’s self- defined gender identity, with no medical requirements or discrimination on any grounds.”  The Act also institutionalises legal discrimination by making punishment for sexual abuse against transgender imprisonment of “not less than six months but which may extend to two years and with fine.” But this is much less than the punishment for rape against women under the Indian Penal Code, which is imprisonment of “not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine.”25

DISCRIMINATION AND VIOLENCE FACED BY THE THIRD GENDER Despite the inadequacy of the 2019 Act, there is still hope for betterment in the status quo and making away with the disparity existing in law. On the 12th of July, 2019, private member KTS Tulsi introduced a Bill which sought to amend the criminal law and make the sexual offences listed in the penal code gender neutral.26 Due to the restricted scope of sexual offences (including but not limited to rape) in India currently, it is the members of the transgender community who suffer the most. The problems of transgender individuals being subjected to sexual violence was also highlighted by the Apex Court in its NALSA judgement.27 However, instead of providing protection to transgender individuals from the widespread discrimination, the 2019 Act has granted it the sanction of law and provided legitimacy to all

24 Born Free And Equal, United Nations Human Rights Office of the High Commissioner, https://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf accessed 20 September 2020. 25 Rishabh Chhabaria & Abhigyan Tripathi, Transgender and Rape Law: Is Equal Protection of Law Still a Pipe Dream?, The Leaflet, https://www.theleaflet.in/transgenders-and-rape-law-is-equal-protection-of-law-still-a- pipe-dream/# accessed 21 September 2020. 26 Bill No. 16 of The Criminal Law (Amendment) Bill, 2019, http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/crimnal-E-12719.pdf accessed 21 September 2020. 27 National Legal Services Authority vs Union Of India & Others., AIR 2014 SC 1863 (India).

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such acts of discrimination. It must also be noted here that when the Supreme Court struck off the part of Section 377 that criminalised consensual homosexual activity, it certainly did not intend to decriminalize all non-consensual sexual activity amongst individuals.28 It would, therefore, befitting to say that non-consensual sexual contact involving penetration against any person needs to be categorised rape. Such an expansion in the definition would ensure the protection of rights of individuals irrespective of the social construct of gender.

The violence and discrimination is faced by the transgender community by: I. Police/Law Enforcing Authorities: The police, who have daily contact with street- based sex workers, posed the greatest threat to respondents’ physical and sexual safety. Multiple instances of threatened or enacted police violence to obtain free sexual services, as well as arbitrary arrest and beatings, were described. In the context of the criminalisation of same-sex relations, the police appeared to feel a sense of entitlement to engage in coerced sex: The police give us maximum trouble. They beat us and we run away. If they catch us we have to pay a lot of money … whatever money we have they take away. They (police) try to have sex with us for free, that too without a condom. If we do not agree they beat us and we have to pay money to get released. (Vimla, 29 years, completed 10 years of schooling).

Ongoing police harassment resulted in sex workers being forced to relocate, or work in unfamiliar locations, elevating vulnerability to abuse: The police were giving us a lot of trouble. Often I had to pay them to get released so I moved from there. (Rima, 37 years, completed 5 years of schooling).29

A study by a team from the National Institute of Epidemiology among 60,000 transgender people across 17 states, including TamilNadu, found that a large proportion of them receive no support from their biological family.

The team held group discussions and interviewed community leaders to study the social support system available for them. The meetings revealed that the biggest perpetrators of

28 Navtej Singh Johar & Others. vs Union of India thr. Secretary Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016. 29 Deepika Ganju & Niranjan Saggurti, Stigma, Violence and HIV Vulnerability Among Transgender Persons in Sex Work in Maharashtra, ResearchGate, https://www.researchgate.net/publication/313115275_Stigma_violence_and_HIV_vulnerability_among_transge nder_persons_in_sex_work_in_Maharashtra_India accessed 21 September 2020.

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violence against transgender people were police and law enforcing authorities. “many community members said that they faced discrimination, physical and sexual abuse from law- enforcing authorities in majority of the states where the study was conducted.30

II. Family and society: A study by a team from the National Institute of Epidemiology among 60,000 transgender people across 17 states, including Tamil Nadu, found that a large proportion of them receive no support from their biological family.

Most of the trans-women said, initially, after they left their families, most of their basic needs like shelter and food were provided by members of their community or their ‘Gurus’, who were often seen as mothers.

While some transgender people in Tamil Nadu said their families supported them financially, most of them were rejected by their kin because of ‘societal pressure.’ During discussion they mentioned that male members of the family were more against trans-women.31

In general, Indian society tolerate, accept and respect a wide range of differences in cultures, religions, languages and customs. Despite this Indian society's general climate of acceptance and tolerance, there appears to be limited public knowledge and understanding of same sex sexual orientation and people whose gender identity and expression are incongruent with their biological sex.

Most of the families do not accept if their male child starts behaving in ways that are considered feminine or inappropriate to the expected gender role in India. Consequently, family members may threaten, scold, assault or even abandon their son/sibling from behaving or dressing-up like a girl or woman. Some of the parents may outright disown and evict their own child for crossing the prescribed gender norms of the society and for not fulfilling the roles expected from a male child ,i.e. to act in a masculine way32. Parents may provide several reasons for doing so: that the child brings disgrace and shame to the family; diminished chances of their child getting married to a woman in the future and thus end of their generation (if they have only one male child); perceived inability on the part of their

30 Chennai News, Police Harass Transgender Most Says Study, Times of India, https://timesofindia.indiatimes.com/city/chennai/Police-harass-transgenders-most-says- study/articleshow/51869919.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst accessed 21 September 2020. 31 Ibid. 32 Neeraj Chauhan, Left Alone: Just 2% of Trans People Stay With Parents, The Times Of India, https://timesofindia.indiatimes.com/india/left-alone-just-2-of-trans-people-stay-with- parents/articleshow/65380226.cms accessed 20 September 2020.

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child to take care of the family; and that the child will bring diseases into the family. Thus, later transgender women may find it difficult even to claim their share of the property or inherit what would be lawfully theirs.

Sometimes, the child or teenager may decide to run away from the family not able to tolerate the discrimination, violence or not wanting to bring shame to one's family. Some of them may eventually find their way to Hijra communities. This means many Hijras are not educated or uneducated and consequently find it difficult to get jobs. Some members of the society ridicule gender-variant people for being 'different' and they may even be hostile. Even from police, they face physical and verbal abuse, forced sex, extortion of money and materials; and arrests on false allegations. Absence of protection from police means ruffians find Hijras/Transgender people as easy targets for extorting money and as sexual objects. A 2007 study documented that in the past one year, the percentage of those MSM (men who have sex with men) and Hijras (n=75) who reported: forced sex is 46%; physical abuse is 44%; verbal abuse is 56%; blackmail for money is 31%; and threat to life is 24%.33

III. Forced prostitution: According to studies, 90% Of Transgenders Are Forced Into Prostitution, the proportion of transgender people who sell sex is as high as 90 % in India whereas in countries like Malaysia (84 %), Indonesia (81 %) follows. The swollen number of transgender engaged in sex work in India show that they are only accepted behind bushes, dark corners of deserted buildings (they seldom get to cosy hotel rooms) where lust takes over the conscience. Although the study conducted by Department of Aids Control (DAC) under the National Aids Control Programme-IV across 17 states in the country found that around 62 percent of the transgender in India are involved in sex work and number is highest in Uttar Pradesh.34 According to NHRC, police in India routinely extort female transgender sex workers both financially and sexually, which pressures them to earn more by engaging in unsafe sex that increases the risk of sexually transmitted diseases (STDs). About 92% of transgenders are highly deprived of the right to participate in any form of economic

33 Hijras, Transgender in India: HIV, Human Rights And Social Exclusion, United Nations Development Programme, https://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social_exclu sion.pdf accessed 21 September 2020. 34 Maninder Dabas, LGTBQ: 90% of Transgenders are into Prostitution but Healthcare Still Remains a Distant Dream, India Times, https://www.indiatimes.com/news/india/lgtbq-90-of-transgenders-are-into-prostitution-but- healthcare-still-remains-a-distant-dream-257526.html accessed 21 September 2020.

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activities in India, with even qualified ones refused jobs compelling them to either beg or choose sex work35

Gender minorities need more protection and awareness regarding their rights and police need sensitivity training programmes, said a report by the Chennai based Centre for Sexuality and Health Research and Policy (C-SHaRP) and the Mumbai based Humsafar Trust. "We found that transgender women have poor earnings and they have to share that too with the police and ruffians who exploit them," said Venkatesan Chakrapani, a doctor who chairs C-SHaRP and has researched the transgender community for years.36

"Because of this extortion by the police and law enforcing authorities, they try to earn more and do not insist their customers use condoms," he told the Thomson Reuters Foundation. The study, published in late 2017, was based on interviews and discussions with 300 transgender women working in the sex industry in major Indian cities. The results showed that they face a very high risk of abuse and sexually transmitted diseases, including HIV.37

IV. Ill-treatment in Prison: The Centre for Law and Policy Research (CLPR) in Bengaluru is preparing to file a lawsuit on transgender health on behalf of the transgender inmates in the Bangluru prison. “It is a thoroughly neglected area by both the politicians and the law enforcing authorities and results in a lot of abuse and harassment for the transgender inmates,” said CLPR lawyer Jayna Kothari.38 She said the group successfully challenged Section 36-A of the Karnataka Police Act, which allowed the police to keep a transgender registry that legitimised criminalisation of transgender as a group. Advocates say it’s not just in Bengaluru where transgender inmates face assault and bullying, but in prisons and jails in other parts of the country as well.39

35 Supra 31. 36 Venkatesan Chakrapani, Impact of Stigma and Depression on Transgender Women in India, Centre for Sexuality and Health Research and Policy (C-SHaRP), https://www.c- sharp.in/research_policy/Download/Stigma_Study_2013.pdf accessed 21 September 2020. 37 Roli Srivastava, Indian Police Extort Transgender Sex Workers, Thomson Reuters Foundation, https://news.trust.org/item/20180123102724-yan0e/ accessed 21 September 2020. 38 Mrinalika Roy, Transgender Prison Inmates Face Abuse, Neglect in Bengaluru, Reuters, https://in.reuters.com/article/india-transgender-prison-health/transgender-prison-inmates-face-abuse-neglect-in- bengaluru-idINKBN1570S9 accessed 21 September 2020. 39 Ibid.

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Lesbian, gay, bisexual, transgender and queer (LGBTQ) prisoners often face additional challenges compared to non-LGBT prisoners due to the stigma present in the society. According to Just Detention International, LGBT inmates are "among the most vulnerable in the prison population", it is clear that the transgender community face exploitation and violence in every sphere of the society. 67% of LGBT prisoners in California report being assaulted while in prison. The vulnerability of LGBT prisoners has led some prisons to separate them from other prisoners, while in others they are housed with the general population.40

While much of the available data on LGBT inmates comes from the United States, Amnesty International maintains records of known incidents internationally in which LGBT prisoners and those perceived to be lesbian, gay, bisexual or transgender have suffered torture, ill- treatment and violence at the hands of fellow inmates as well as prison officials41. LGBTQ prisoners face horrifying rates of sexual abuse and other forms of violence by staff and other prisoners, with federal data indicating that the rate of sexual assault in the past year was about three times higher for non-heterosexual prisoners and about ten times higher for transgender prisoners.42

CONCLUSION Multiple problems are faced by transgender communities, which necessitate a variety of solutions and actions. While some actions require immediate implementation such as introducing hijra/transgender specific social welfare schemes, some actions need to be taken on a long term basis changing the negative attitude of the general public and increasing accurate knowledge about transgender communities. The required changes need to be reflected in policies and laws; attitude of the government, general public and health care providers; and health care systems and practice.

40 Issues Faced by LGBT People in California Prisons, Transgender Law Center, https://transgenderlawcenter.org/new/updates/press-releases/meeting-to-highlight-issues-faced-by-lgbt-people- in-california-prisons/108 accessed 21 September 2020. 41 LGBTQ People Behind Bars, National Center for Transgender Equality, https://transequality.org/sites/default/files/docs/resources/TransgenderPeopleBehindBars.pdf accessed 21 September 2020. 42 Beck, A. J. (2014). Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12: Supplemental Tables: Prevalence of Sexual Victimization Among Transgender Adult Inmates. Washington, DC: Bureau of Justice Statistics, available at https://www.bjs. gov/content/pub/pdf/svpjri1112_st.pdf; Beck, A. J., Berzofsky, M., Caspar, R., & Krebs, C. (2013). Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12. Washington, DC: Bureau of Justice Statistics, https://www.bjs.gov/content/pub/pdf/ svpjri1112.pdf accessed 21 September 2020.

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There seems to be no reason why a transgender must be denied right human rights which include rights which include rights of life & liberty with dignity, right to privacy and freedom of expression, rights to education and empowerment, right against violence, right against exploitation, discrimination. Constitution has fulfilled its duty of providing rights to transgender. Now it is time for us to recognize this & to extend & interpret the constitution in such a manner to ensue dignified life of 3rd gender people. If all goes according to plan they will no longer be forced into prostitution and some hijras should be off the streets soon.

Hijras/Transgender women require understanding and support of the government, health care professionals, general public as well as their family members. We need to understand and accept that humans are diverse. People have the right to be what they are and what they want to be. For transgender people, the same holds true.