Rights of Transgender under Indian Constitution by Simran Sabharwal
The year, 2018, saw a major victory for the transgender community of India. The sexual intercourse between homosexuals was decriminalised. The judgment also recognised various rights for the LGBTQI community. The Indian Constitution did not make any provisions for the recognition of transsexuals or transgenders. It was male or female-centric. After 72 years of independence, the community could get their rights recognised. However, there are still some lacunas that are not discussed. The Transgender Rights Bill is never passed in both the Houses and this leaves a essentials rights unrecognised. The article will discuss transgender rights in India vis a vis foreign country and inform the readers on the Fundamental rights of transgenders.
Transgender is a term that shows that the sex assigned at birth can be different from the people’s identity. A person‘s sex is usually assigned at birth, but a relatively small group of persons may be born with bodies that incorporate both or certain aspects of both male and female physiology. In the famous judgment of 2018, J.Radhakrishnan mentioned that “the self-identified gender can be either male or female or third gender. Gender identity means person’s inherent sense of being male or female or transgender.” Recognising every gender is important as it is required to enjoy civil rights.
Transgender and Transsexuals
The other difference is between gender identity and sexual orientation. Gender identity means whether the person is male, female, both or none. However, sexual orientation means with whom you would like to live with. People often confuse these terms. Also, there is a difference between transgender and transsexuals. Transgenders refer to those people whose identity, expression and behaviour does not match with their assigned sex at birth. Transsexuals, on the other hand, are people who get their sex changed. A person can get gender changed through surgeries. Some people even possess 46XXX chromosomes. This is the reason it has become important to identify every gender. In 2014, Facebook recognised 50 genders which led to a new wave of strengthening the rights of these genders.
Sex Reassignment Surgery
Sex Reassignment Surgery or Gender Reassignment Surgery is a procedure through which the gender assigned at birth can be transformed. Through this surgery, the person gets his physical gender-matched with the emotions and behaviour one wants.
The person undergoing SRS has two options. Either he can opt for male to female transition or female to male transition.
In male to female transition.
o Male genitilia is changed to female genitilia which includes the removal of the penis, testes.
o Vaginoplasty is performed which includes the creation of the vagina and thus creating female genitilia.
o The process also includes breast implants and increasing female hormones.
o Facial Feminisation Surgery is also performed to reduce male muscles.
In female to male transition.
o Female genitilia is removed and male genitilia is implanted.
o A hormone therapy is also performed.
The cost of Sex Reassignment Surgery is 4 to 5 lakhs in India. India is the least expensive state to perform this surgery.
The process of SRS is a long procedure which may take up to years. This was discussed in Shivam Dewanagan vs State of Chhattisgarh . It mentioned that the transition is process is painfully long. Transgender’s not only have to bear the physical pain but alo the emotional pain.
Every person has a different sexual identity and nobody can be forced to undergo any medical procedure including SRS as a requirement for their legal gender identity.
• Laws on this Surgery
Tamil Nadu and Kerala grant relief of up to Rs 2 lakhs for people who undergo SRS. A bench of J KS Radhakrishnan and AK Sikri recognised the third gender and gave it legal status. They cannot be deprived of their rights. The judgement mentioned that the transgender community included persons who have already undergone the surgery or intend to undergo. The court recognised the third gender and gave them their legal status.
In 2018 judgement, J. Indu Malhotra stated that ‘History owes an apology to third gender.’ This statement was made as the legal status was granted after a period of 70 years. Even though third gender is not similar to male o female, but they are human beings. They breathe the same air, live on the same planet; their rights should eb recognised.
Transgenders equally important
Transgenders are equally important in our society. They should not be disregarded. Their status was felt even in Ramayana. When Lord Ram was banished from the kingdom for 14 years, he went to the forest, to start his journey. Upon reaching the forest, he told his followers that all “men and women” should return to the city. When Lord Ram, came after 14 years, he saw that some of his followers were still waiting. He saw that the hijra community did not leave. They told Lord Ram that he asked only the man and woman to return. They being true followers did as the Lord wanted. Lord Rama was so impressed by their devotion that he granted the hijra community auspicious powers. From that day onwards, whenever there is any child birth, marriage or any occasion, the hijra community is invited to shower their auspicious blessings.
This shows that their importance was felt even 1000 years before. We as mankind failed to identify their rights and provide them legal status until 2014. Most of the laws in India are centred towards male and female. The transgender community is discriminated on the basis of sex everywhere. They face discrimination in jobs, marriages, shelter and have to face a lot of violence. They are utmost subject to verbal abuse and are homeless and poor.
In April 2019, Madras High Court gave “Transwoman” the status of “bride” under Hindu Marriage Act. The judges quoted the Mahabharata and Ramayana to deliver the judgement. They stated that the word “bride” can never have a static meaning and would have to include transwoman.
Though slowly but we are recognising the transgender’s right which is very important
Right to Dignity for Transgenders
The fundamental right to dignity includes recognising one’s gender. Legal Recognition of gender identity is part of gender identity right to dignity and freedom under the Constitution of India. Article 21 guaranteed the protection of personal autonomy of an individual. Self- determination of gender is an integral part of personal autonomy and self-expression which is important under Article 21 of the Constitution.
Every person has a different sexual identity. The NALSA Judgement gave a ruling that the transgender’s gender should be decided on their psychological basis and not on biological basis. This was decided because no one is aware of the mental trauma a transgender has to go through. In the case of Sunil Babu Pant vs Nepal Govt , it was decided that A14,15,19 and A21 do not exclude transgenders. These sections are gender neutral. The Universal Principle “Right to Choice” is followed which is a part of the Universal Declaration of Human Rights, 1948. The famous Yogyakarta Principles state that no person shall be forced to undergo any surgical procedures. Every gender should be respected. Clearly, the Right to Choice should be provided to every person to determine their right to choose their own gender.
The gender identity is a part of right to dignity. Hijras, Eunuchs should be treated as third gender. They should be given human rights. The International Conventions help to safeguard their rights. In the famous judgement, Maneka Gandhi vs Union of India, it was provided that life is an opportunity and all the aspects of A21 should be respected. Human life without dignity is not substantial.
The above judgements show that we were able to take out the essence of human dignity long before but providing it to third gender was a tough path.
Transgenders’ and their Rights
The Fundamental Rights of the Transgender community does not exclude transgenders from their ambit. Indian law only identified binary gender i.e. male and female. Section 8,10 of the Indian Penal Code, 1860 recognises only these two genders. However, the condition is changing.
• Article 14 of the Indian Constitution
Article 14 used the word “person”. The sections are gender-neutral. However, there develop intricacies at times. Gender identity forms the core of one’s personal belief. The statutory provisions can be easily struck out if they are found arbitrary. The main reason of law is to provide equality and justice.
Article 14 reads as:
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
When Article 14 states that it shall provide equality to all persons, it should be clear that it incorporates every gender. Even though we have granted legal status to Transgenders, but the psychology of Indian should be changed. The binary genders still do not see them as equals. Law provides them equal strata but what is the use if their neighbours don’t. Transgenders are not offered homes at rent easily as binary genders get. Transgenders live in secluded places, together. We should emphasise on the equality part as everyone is a citizen of India and possess the same rights legally.
• Article 15 of the Indian Constitution
Article 15 has used the word “citizen” and “sex”. The article prohibits discrimination on the basis of “sex”. The law makers have still not recognised sexual orientation in this term. Article 15 reads as:
“The State shall not discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them.”
The article prohibits the State from discriminating on the basis of sex. The courts in the judgements Frontiero v Richardson and United States v Virginia held that the society has stereotyped gender roles and this should be rooted out. The Section 377 of the IPC,1860 penalised a person on the basis of their sexual orientation. This was struck in the 2018 judgement which was the need of the hour.
• Article 16 of the Indian Constitution
Article 16 is similar to Article 15 in terms of expressions used. It has also used “citizen” and “sex”. Article 16 provides equal opportunity for employment to everyone. There have been cases when this right was violated. The government has created various schemes for transgenders. There are seats reserved for the community. There is a centre formed by the government to promote transgender equality.
Human Rights Campaigning is done to protect the rights of transgenders. The inclusion of transgenders is very important as it is a pivotal path to development.
• Article 19 of the Indian Constitution
The Article 19 of the Constitution of India has used the term “citizen”. The expression of choice is a fundamental right under A21 and A 19. Everyone should have the choice to determine their gender and sexual orientation. When two adults expressly choose each other, they manifest their right of choosing. Article 19 protected the freedom of expression and some restrictions can be imposed on the A19(2).
The 2018 judgement recognised the rights as it is never justified to curtail any one’s right on the basis of public or social morality.
• Article 21 of the Indian Constitution
Article 21 of the Indian Constitution has used the term “person”. Before the Navtej Singh Johar Judgement, Section 377 violated the right to life and liberty guaranteed under A21. The Article encompasses all aspects of the person’s right to live with dignity and self-determination of their gender. The judgement is a landmark one for the transgender community as it recognised their own rights. Article 21 is the most precious of all the Articles of the Indian Constitution. The right to privacy is also granted to the Transgender community.
Transgender Laws in Other Countries
The transgender laws in other countries are much developed than India. they granted legal status to the community many years before. Even the judgments in India are inspired from foreign nations. so, discussing the powerful nations law becomes crucial.
• United States
It is very crucial to recognise every one’s right. United States in the year 1992 only ruled out that matters which are most intimate and bear personal choice is central to personal dignity and autonomy. It is protected under the Fourteenth Amendment. The US Supreme Court observed that until the 20th century, relationship between homosexuals was considered immoral. The court observed that homosexual couples had to swallow the harsh truth and could not speak up. The court also observed that homosexuals were discriminated on the basis of their sex. They were not offered military service, jobs and were excluded even from the immigration laws.
The court in the Lawrence v. Texas , granted rights to homosexuals. It stated that if two adults’ consent to the sexual intercourse, it is their rights and nobody can infringe it.
• United Kingdom
In the year 1533, during the reign of Henry VIII, the sexual relationship of same-sex was prohibited. The winds of change started blowing in the mid-20th century. The Wolfenden Committee was appointed to consider the laws relating to homosexuals. It observed that homosexuality was on all levels of society and in all professions. They considered all aspects even the procreation aspect. Finally, the committee decided to change the barbaric laws and amend the provisions. The law gave individual freedom of choice and action in matters of private morality. Therefore, they ruled that homosexual’s intercourse was legally valid. The Report was enacted in the year 1957 as the Sexual Offences Act, 1967.
We can say that the U.K. ruled in favour of transgender when we were newly independent and struggling with our resources.
Canada recognised the rights of transgender in the year 1998. In the case of Vriend v. Alberta , the court ruled in the favour of homosexual employee. He was discriminated on the basis of his sexual orientation and could not file a case as there was no law. the Supreme Court of Canada decided that it is unjustified to discriminate on the basis of sexual orientation as this is unjustified violation of their rights.
The Transgender Rights Bill
The Transgenders Rights Bill has never passed both of the houses. There are many reasons behind this. The Transgender Person Bill contains a lot of benefits and rights for the community but they are never recognised as it has never become an Act. This bill has been introduced in the Lok Sabha in the current ongoing session of 2019. This bill aims to protect the rights of Transgenders. The bill also lacks certain provisions. It does not recognise the punishment for sexual offence against transgenders. The bill never gets the majority and is never passed from both the houses. Sometimes the bill passes one house but when it reached the other house, the tenure for the session ends or some other reasons.
We can hope that the bill passes soon as the rights of transgenders should be recognised. The law has given certain rights to community but passing a wholesome bill for them will only strengthen the nation.
The transgender community has attained some of the rights. Though some rights are still not recognised for the transgender community. The other countries have recognised their rights and India should also follow their footsteps. The state needs to take positive steps to ensure that the rights of transgenders are protected. They should not face social harassment as it harms them. The government should start social inclusion schemes or campaign in the favour of transgenders. This will help to bring a positive outlook in the minds of people. We should remember that even in the mythology they were respected, but in the 21st century they are striving for their rights. The government and the courts should work in the favour of transgenders.