AEGAEUM JOURNAL ISSN NO: 0776-3808

“ RIGHTS: A STUDY FROM PERSPECTIVE”

Himangi Karira1

Abstract: This paper deals with the violation of human rights of the Transgender persons by briefing an introduction about what transgender persons are, followed by the historical evolution of the Transgender community in with a comparison to the present scenario of the Transgender persons in the modern world. The author aims at highlighting the against the transgender persons by putting into light the Universal Declaration of Human Rights along with the judicial battle fought for an equivalent status in the society and social justice. The paper provides a vivid sight of the problems and issues faced by the transgender persons which seem never-ending. Also, the paper provides in brief for the recent development in the picture of which is the Transgender Persons (Protection of Rights) Act, 2019 and its criticism which affects the community and does not serve its purpose for which it has been created, i.e. the protection of transgender persons and their basic human rights and fundamental rights enshrined by the . At last the author has tried to give a way for the upliftment of the transgender persons by providing some suggestions along with the concluding remarks.

Key words: Transgender, , trans people, self-identification, sexual orientation

INTRODUCTION The term ‘tansgender’ includes Hijras, Enuchus, Kothis, Aravanis, Jogappas, Shiv-shakti, etc. The terms 'trans individuals' and 'transgender individuals' are both frequently utilized terms for individuals whose sex character as well as sexual orientation articulation varies from their introduction to the world, including transsexual individuals (the individuals who mean to experience, are experiencing or have experienced a procedure of sex reassignment to live for all time in their acquired sex), transvestite/cross- dressing individuals (the individuals who wear apparel generally connected with the other sex either periodically or all the more normally), androgyne/polygender individuals (the individuals who have non- two-fold sex personalities and do not categorise as male or female), and other people who characterize as sex variation.2

HISTORICAL DEVELOPMENT OF TRANSGENDER COMMUNITY IN INDIA Transgender persons have contributed a lot to India for decades. There have been substantiation about the existence of ‘third sex’ which neither fall under the male category of gender nor the female. The hold importance in many Hindu religious scripts such as Ramayana and . The evolution of transgender community can be illustrated by the following timeline:

1 Scholar, B.B.A.LL.B(Hons), Law College Dehradun, Uttaranchal University 2 Equality and Human Rights Commission Trans Research review Research report 27 Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 359 AEGAEUM JOURNAL ISSN NO: 0776-3808

Mughal Period In the Islamic world, Hijras played a crucial part in the noble courts, particularly in the Ottoman empires and the Mughal rule in primitive India. They stood up to places of political attorneys, bureaucrats, generals as well as custodians of the harems. Their personalities reflected a sense of loyalty and gifted with intelligence and worthy of trust and all the places and parts of the population were easily approachable by them and thus, a pivoting role in the politics of empire building in the Mughal Era. Hijras were considered to be the closest to the kings and queens, had an easy influence over the state and its decisions. 3

British Period During the British rule in India used to receive several safeguards and perks by some states. Benefits involved the amenities with relation to land, food and money from agrarian households which were eliminated through British Laws as because the provided land was not connated by biological relation.4

Penalization under the Colonial Rule Through the beginning of Colonial Rule from the eighteenth century, the circumstance changed radically. Records of early European voyagers indicated that they were repelled by seeing Hijras and couldn't grasp why they were given such a great amount of regard in the noble courts and different establishments. In the other half 50% of the nineteenth century, the primitive British administration overwhelmingly looked to condemn the hijra network and to deny them the social equality. Hijras were viewed as discrete position or clan in various pieces of India by the frontier organization. The Criminal Tribes Act, 1871, this incorporated all hijra who were involved in kidnapping and emasculating kids and dressed like females to move in broad daylight places. The punishment for such exercises was as long as two years detainment and a fine or both. This pre-independence history impacts the risky position of hijra in the present.5

Criminalization and Marginalization in Independent India The Act was revoked in 1952 and its inheritance proceeds and numerous local laws mirrored the biased mentalities against specific clans, including against Hijras. As of late, the Police Act of 1963 was changed in 2012 with "the provision for registration and surveillance of Hijras who were involved in kidnapping of children, unnatural offences and offences of this nature"6 in a comparative vein to the Criminal Tribes Act,1871, According to Section 36A, Karnataka Police Act, 1964, Power to balance eunuchs.

1. Maintaining a register containing the names and places of living arrangement of all eunuchs living in the territory under his charge and who are well suspected of kidnapping or of unnatural offences or some other offenses or abetting the commission of such offences.

3 M. Michelraj, “Historical Evolution of Transgender Community in India”, Vol 4 No.1, pp. 17-19 (2015) 4 Ibid 5 Ibid 6 Section 36A of Karnataka Police Act Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 360 AEGAEUM JOURNAL ISSN NO: 0776-3808 2. Heaping complaints by aggrieved eunuchs to the consideration of his name in the register and for expulsion of his name from the register of reasons to be recorded as a hard copy.7

Contemporary Period In India, the transgender community is the utmost notable and famous third kind of gender in the cutting edge world. The announced for ‘transgender’ as third sexual orientation. The third sexual orientations in India have raised as a solid group in the LGBT rights. In the modern times, the Indian Government presented such a significant number of welfare approach and plans, for example, evaluation, documentation, giving of the citizenship ID Cards, passports, social-economical advancement and established constitutional shields for the third gender. ‘The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA)’8 is a significant lead of the 11th Five year Plan which provided employment opportunities for the transgender community. ‘The Ministry of Housing and Urban Poverty Allevation’ is the National Urban Livelihood Mission and Healthcare facilities. The social, financial, political change, Housing, legal measures, Police Reforms, lawful and protected shields to fight human rights violation of the transgender persons and institutional systems to address explicit worries of transgender individuals.9

THE UNITED NATIONS DECLARATION OF HUMAN RIGHTS ON VIOLATION OF HUMAN RIGHTS OF THE LGBT COMMUNITY

What are Human Rights? Human rights are the basic rights which are inherent to all humans without any bias and discrimination no matter of whatsoever caste, creed, sex, race, nationality, origin, etc. These universal human rights are enshrined to each and ever individual by law by way of treaties conventions, declarations or obligations by the government. The Universal Declaration of Human Rights(1948) came into existence as a result and effects of World War II. The Declaration incorporates right to privacy, right to health, right to life and equality before the law and additionally includes freedom from torture, discrimination and any sort of violence but it is still a continuing threat to the LGBT community involving the transgender persons which often come to knowledge as the blatant violation of their basic human rights in many countries including India.10 The Declaration provides for anti-discrimination policies for the clauses relevant to sexual orientation and . Despite the obligations provided by the Universal Declaration of Human Rights the social exclusion of the transgender persons as a part of the LGBT community sill means to oppress them from any participation, they suffer lack of social welfare, most of the families disown them and they tend to live in dysphoria and become a part of evils like street begging.

CONSTITUTIONAL RIGHTS PROVIDED TO THE TRANSGENDER PERSONS A Constitutional right is the right or freedom which is enshrined to all the individuals living in the country

7 Id, at p.19 8 Act of 2005 9 Id, at p.19 10 V. Revathy, “ The violation of Human Rights Against the LGBT Community In India- A Critical Study”, Vol 120 No.5 , pp. 4875-4884 (2018) Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 361 AEGAEUM JOURNAL ISSN NO: 0776-3808 through a framework which is known as the supreme i.e. the Constitution of India. Some of the constitutional rights which provide empowerment to the transgender persons are as follows: The Right to self- identification of gender is a part of right to dignity and autonomy under Article 21, the Article also, provides for right to privacy as a natural right which is a mandate for the process of self- determination and Right to Privacy allows one’s thoughts and beliefs to flow and protect the choices and decisions irrespective of the faiths or the gender of the person. Article 15 provides for the prohibition of discrimination against any person on the grounds of sex, where in the famous NALSA judgement of 2014, the Supreme Court of India interpreted “sex” to incorporate one’s gender identity. Article 19(1)(a) provides for the freedom of speech and expression which restricts the freedom of expression on identity from the transgender persons which leads to self-censorship of the identity of the transgender persons which the Constitution of India strictly denies. Article 14 holds that the State shall not deny any person equality before law in the territory of India which makes it impermissible for the transgender persons to be socially excluded or withheld from participating in social and cultural events. Thus, any discrimination on the grounds of sex with regard to the transgender persons would be hostile to the provisions therein stated by the Constitution of India.

THIRD GENDER RIGHTS: BATTLE FOR EQUALITY (JUDICIAL APPROACH) National Legal Services Authority v. Union of India and others11 It is a landmark judgement of 2013 which created a status for the “third gender” that while writing their genders as males or females they could opt for “third gender”, that they can proudly describe themselves as “third gender” The Supreme Court directed that the third gender would be given the status of socially and economically backward and that their third gender would no longer be a ground for discrimination. The third gender would be categorised as equivalent to the Other Backward class (OBC). This case was considered as the “Ray of Hope in the Dark ages”.12

Naz Foundation v. Government of NCT of Delhi13 The judgement of in this case held that any sort of discrimination on the grounds of sexual orientation or gender identity is impermissible and thus, violates of Article 15 of the Indian Constitution. It also held that it is the denial of basic fundamental rights given to the LGBT community and makes them highly vulnerable to the violation of their fundamental rights as under Article 14 and 21. It gave way for the decriminalization of and thus of .

Suresh Kumar Koushal v. Naz Foundation14 The judgement of High Court of December 11th, 2013 was challenged in the Supreme Court. It flipped the said judgement whereby declaring that section 377 of the Indian Penal Code does not violates the

11 National Legal Services Authority v. Union of India (2014) 5 SCC 438 12 Ananya Das, “Analysis of LGBT Rights in India”, Vol 1, Issue 2, pp. 13 13 Naz Foundation v. Government of NCT of Delhi and Others 2009 (111) DRJ 1 (DB) 14 Civil Appeal no.10972 of 2013 Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 362 AEGAEUM JOURNAL ISSN NO: 0776-3808 fundamental rights of the homosexuals and re-criminalized homosexuality and declared section 377 constitutional again.

Navtej Singh Johar v. Union of India15 On 6th September 2018, the court overruled the judgement laid down in Suresh Kumar Koushal v. Naz Foundation16 and finally led to the decriminalization of homosexuality and unconstitutionality of section 377 of the Indian Penal Code, 1860. The judgement held that the LGBT community shall be granted equal fundamental rights including equivalent citizenship rights and that no person be discriminated on the basis of their sexual orientation.

The Transgender Persons (Protection of Rights) Act, 2019 The Transgender Persons (Protection of Rights) Act, 2019 was enacted by the Indian Parliament with the motive to act as a shield to the of entitlements of the transgender persons, their welfare, and other related issues. The Act17 was presented by the Minister of Social Justice and Empowerment, Thawar Chand Gehlot in on 19th July, 2019, considering the failure of the Transgender Persons (Protection of Rights) Bill, 2018. The 2018 bill, which was put up prior in 2016, were objected and condemned by trans gatherings, legal advisors, and activists in India. The 2016 bill was sent to a Standing Committee which presented its report in July 2017, following which, the Lok Sabha postponed and came up with a more up to date form of the bill in December 2018.Though it did not consolidate a considerable lot of the Committee’s proposals. Members of the reprimanded the bill and guaranteed transgender people of not casting a ballot for it, in spite of the fact that it was passed by the Rajya Sabha on 25 November 2019. On 5th December 2019 the bill became an Act with the assent of the .18

Criticism of the Act The act came into existence even though the members of the Rajya Sabha assured the transgender persons that it would not be pass the test of majority in the Rajya Sabha. It was yet another betrayal to the transgender community. The Act does not cover various separate definitions such as ‘ persons’. The act aims at prohibiting discrimination against the transgender persons but lacks an enforcing authority, remedial measures and punitive measures for any such discrimination. The gender identity of the person has to be determined by the District magistrate after the , that means the validity of the SRS would be decided by the District Magistrate. There are still no measures for the rehabilitation of transgender persons specifically mentioned in the Act even after the NALSA judgement creating an obligation over the state to form welfare boards for the transgender persons and establish shelter homes for the protection of the transgender community in various states of India. Thus, it can be held that the Act of 2019 does not fulfil its aim of protecting the transgender persons and

15 W.P. (Crl.) No. 76 of 2016 16 W.P.(Crl.) No. 76 of 2016 17 The Transgender Persons (Protection of Rights) Act, 2019 18 https://en.wikipedia.org/wiki/Transgender_Persons_(Protection_of_Rights)_Act,_2019 (visited on February 19, 2020) Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 363 AEGAEUM JOURNAL ISSN NO: 0776-3808 guarantying them equal status and fundamental rights to them. The passing of the Bill of 2019 was marked as ‘Black Day’ which is a shame to the Nation and unfair to the transgender community.

CONTINUED DISCRIMINATION BY THE TRANSGENDER COMMUNITY IN INDIA Even the Transgender persons deserve to live and deserve equivalent treatment, being humans all the basic human rights and fundamental rights should be enjoyed by them as well. But they have always faced discrimination in some or the other way in the society. Talking about the acceptance of transgender persons, it still stands nil. The Transgender community is discriminated in numerous ways in the society, they are excluded from participating in social and cultural events, their families disown them, they go through legal discrimination, sexual abuse, harassment, violence, etc. Some of the issues and problems still faced by the Transgender community are discussed below:

 Social Abandonment The families of the Transgender community abandon them for the reason of being of their natural gender which is neither male nor female. They usually have to struggle to find shelter, means of living, occupation; their acceptance in the society is low. They are left deserted, it is to be noted that the transgender persons suffer homelessness and poverty at higher rates as compared to the general population. They are forced to leave at a young age due to violence and abuse or neglect in the family.  Harassment and violence The transgender persons suffer huge risk of harassment, violence and abuse. The Constitution provides for right to shelter and right to occupation and many other basic rights are snatched from them for the reason of belonging to the third gender. They are forced to take up sex work or resort to street begging and further exposing them to human rights abuses. There are many reported cases for harassment , violence and even rape of the transgender persons.  Lack of Legal Recognition The landmark NALSA judgement mandated the gender recognition of the “third gender” community, self identification was initiated for the context where issuing ID cards to the transgender community was ordered whereby most of the states have failed to comply with such guidelines and thus, the transgender persons lack legal recognition. They lack voting rights and citizenship rights as well.  Lack of social welfare schemes The NALSA judgement provided for the direction to promote social welfare schemes for the transgender persons and set welfare boards for the redressal of complaints and grievances of the community. Till date there are 8 states who have established welfare boards and no clue about the same in the other states.  Conversion/Corrective therapy and corrective therapy refers to the cure of homosexuality where it is believed that it is some mental disorder whereby people tend to believe that they neither belonging to the male gender nor to the female gender or fall under LGBTQA community. Thus, there have been reported

Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 364 AEGAEUM JOURNAL ISSN NO: 0776-3808 instances on the same all round the world including India where they give them shock treatment, wrongfully confined in homes and locked in rooms for a long time which in turn has devastating effects like memory loss, suicidal thoughts, bad health, etc.  Medical neglect The transgender persons are discriminated in various hospitals and clinics where they are either denied health benefits or are forced to undergo sex- reassignment surgery which is considered illegal and immoral. They often suffer sexual abuse and harassment at hospitals.

CONCLUSION The Constitution of India formed under the guidance of Dr. B.R. Ambedkar was a framework supposed to work on the principles of equality, justice, secularism, liberty but none seems to suffice the rights of the Transgender community. It has been a constant fight for humanity and social justice by them which does not seems to end any soon. There has been great battle in the evolution of transgender rights but it has still not been concluded with absolute protection to the fundamental rights and basic human rights which should be exercised by the transgender persons. The Central and State Government should take steps to create public awareness about the same so that they also feel as a part and parcel of social life and not be treated as untouchables and measures should be taken so that the transgender community gain back the same respect and is allowed to live with equivalent dignity as the general population. There should be reservations for the transgender community in various educational institutions and public appointing so that they do not feel casted off. Health facilities should be made available to the transgender persons. It is important for the transgender persons to identify or self- identify their gender. There should be shelter homes and welfare boards set up by the Government for the protection of their rights provided under Part III of the Constitution. Also, the injustice caused to the transgender persons can only be corrected by a valuable effort by the State to give the lives of the transgender persons a recourse and a ray of hope by getting down with the community and knowing the problems, issues and yet persistent. It has been a prolonged effort of the transgender community to live with dignity and a constant fight against neglect and discrimination. “Openness may not complete disarm prejudice, but it’s a good place to start”- The Gay Athlete 19

19 https://www.mentalfloss.com/article/502121/15-inspiring-quotes-lgbt-leaders (visited on February 19, 2020) Volume 8, Issue 3, 2020 http://aegaeum.com/ Page No: 365