Author:- Deeksha Karunakar
Gender identity plays a significant role in every individual’s life. Discrimination based on gender is considered an infringement of Fundamental Right recognized under Part III of India’s Constitution. Until the Supreme Court’s ruling in the National Legal Service Authority vs. Union of India (from now on referred to as the NALSA judgment), India only recognized two gender identities, i.e., male and female. Furthermore, the NALSA judgment played a factor in the cases of X v. State of Uttarakhand and Ors., Sai Rahul Vijayakumar v. The Registrar, Bharathiar University & Anr., Vyjayanti Vasanta Mogli v. State of Telangana & Ors. and Kabeer C alias Aneera v. State of Kerala & Ors. We focused on the gender identity declaration by the transgender, medical requirements of the transgender, and discrimination faced by the transgender.
The Transgender Persons (Protection of Rights) Act, 2019, seeks to recognize third genders, i.e., those who are categorized by themselves as belonging to neither male nor female gender identity.
The fundamental rights are inclusive of all citizens, whether male, female, or third gender. The NALSA Judgement and the Transgender Act, 2019, were established to protect transgender’s fundamental rights.
As per the first study conducted by the National Human Rights Commission (from now on referred to as ‘NHRC’) on transgender, it reported 92% of transgender people are highly deprived of the right to participate in any form of economic activities in India, with even qualified ones refused jobs compelling them to either beg or choose sex work.
Considering the changes today and the NHRC study, transgender is recognized as an individual, but their rights are still vague.
Transgender rights recognized under Transgender Persons (Protection of Rights) Act, 2019, are their fundamental human rights to some extent. For instance, identifying their medical requirements such as hormonal therapy, sexual reassignment surgery, pre and post counselling of surgery, etc. are their fundamental rights allowing them to be themselves.
To protect transgender human rights, a few states like Assam, Madhya Pradesh, Kerala, etc. in India established Transgender Social Welfare Board. The Assam Social Welfare Board drafted its policy based on reaching out to the transgender population and fulfilling their necessities. Apart from that, these policies also focus on protecting transgender people.
The data collected in the Kerala Social Welfare Board reported that:-
- 51% of transgender were denied equal treatment in a doctor’s office and hospitals;
- 58% of transgender students dropped out before completing 10th grade;
- 100% of the transgender people were denied a job due to their gender identity;
- 54% of transgender had a monthly income of less than Rs. 5000/-;
- 89% transgender reported to be mistreated at the worksite;
- 28% of transgender has been sexually harassed or rape within one year;
- 96% of transgender fo does not raise complaints against this violence because of their gender identity;
- 51% of transgender hides their identity from their family;
- 44% of transgender have a sense of shame about the dissonance between their body and gender identity.
The policies drafted by the Welfare Boards are regards to focus on these issues and support transgender to acknowledge their rights. Every individual has a right to live under Article 21 of the Constitution of India. It applies to transgender as well. They have a Right to Dignity, Right to Accessibility, and Right to Expression. These are their fundamental human rights, which they shall acknowledge without feeling any sense of shame, insecurity, and fear from society.
Transgender are also creatures of God. They, too, have heart, soul, emotions, and feelings. They even laugh and cry. They also feel joys and sorrows, believing in God. They need what we need. They do what we do. The Transgender community has been a part of Indian society for centuries. There is historical evidence of recognition of ‘third sex’ or persons not conforming to male or female gender in ancient India’s writings. The idea of ‘Tritiya Prakriti’ had been an integral part of the Hindu mythology, folklore, epic and early Vedic and Puranic literature. Vedic culture recognized three genders. According to one’s nature or Prakriti, the Vedas describe individuals as belonging to one of three separate categories. The third sex is also discussed in ancient Hindu law, medicine, linguistics, and astrology.
The principle of gender equality is enshrined in India’s Constitution in its preamble and fundamental rights, duties, and directive principle. The term ‘equality’ gleam under Article 14 of India’s Constitution, consistent with all gender, which includes transgender.
Every citizen and state have to protect and let transgender express themselves as they want. They are individuals who wish to recognize, protect, and opportunity. Every individual has the right to fulfil their basic necessity; it is a transgender basic necessity to have access to the necessary medical requirement and other needs fulfilled. It took them decades of struggles and torture to get recognized. It shouldn’t take another decade to fulfil its necessity and provide proper protection.