Legal Rights of Transgender People.

Lavanya Dongre

INDEX –

CONTENT

ABBREVIATION

TABLE   OF CASES

ARTICLES   MENTIONED

INTRODUCTION

EVOLUTION   AND DEVELOPMENT

CASE   STUDIES REALTED TO TOPIC

COMPARATIVE   ANALYSIS WITH OTHER COUNTRIES

CONCLUSION

BIBLIOGRAPHY


ABBREVIATION –

SC

Supreme   Court

P.

Page No.

Sec.

Section

n.

Foot   note no.

v.

Versus

TABLE OF CASES –

National   legal services authorities v. Union of India.

City   of Chicago v. Wilson et al. 1978.

Doe   v. Yunits et al.2000.

Articles Mentioned -

Article14

Article   15

Article   16

Article   19

Article   21

INTRODUCTION –

Transgender are people whose identities are different from the cliched gender norms, which identify genders only as male or female. Transgender person refers as people whose gender identity is different from what they thought to be at birth. They are the person with genderqueer and intersex variation. Society has didn’t accept their identity thanks to which they need suffered from social oppression, physical violence and discrimination.

Transgender Person {Protection of Right} Act, 2019 pursue to recognize the identity of transgender person and prohibit discrimination in, inter the fields of healthcare, education, employment, holding or removing property, and access to use of public and private securities and benefits. In 2014, the SC of India, within the case of National legal services v. Union of the India, established the inspiration for the rights of transgender person in India by recognizing transgender as the third gender, and laying down several measures for prohibition of discrimination against transgender persons and protection of their rights. The judgment recommended reservations for transgender persons in academic and jobs institution and therefore the right of transgender persons to declare their self-perceived identity without undergoing a sex reassignment surgery. The Act also provides recognition and end the needs for a certificate of identity to the transgender people. If the individual undergoes a surgery to change the gender either male or female, a received certificate may be obtained. They can also make an application to District Magistrate for a certificate of gender identification, indicating them as a transgender.

The preamble in the constitution directs every citizen justice on economic, political, social equality of status. Article 14 and 21 of the constitution provides the right of equality before law and equal protection article 21 provides the right to chose owns gender identity as its an essential part to live a life with dignity. “The right to gender identity”. Determining the proper to non- public freedom and self- determination, the court observed that, the genders to which an individual belongs is to be determined by the person concerned.

Article 19 held that no restrictions for choice of dressing and one’s personal appearance in subject to the restrictions contained on the constitution. The court recognized the proper to on how an individual prefer to behave privately, personhood and therefore the decision process of the person, which are necessary for the fullest development of the personality of the individual.

Further, they can't be discriminated against on the bottom of gender because it is violative of Articles 14, 15, 16 and 21.

The court explain the meaning of Article 14 and held that the article provides protection to ‘any person,’ and “person” here comprise the transgender person also and, they're all entitled to legal protection of law altogether the spheres of state activity like all other citizen of this country. The court also held that Article 15 and 16 isn't just limited to biological sex of male or female but it intended to incorporate those people too who consider themselves to be neither male nor female. Further the court mentioned Article 19(1)(a) and 19(2) and concluded that transgender personality is often expressed by transgender’ s behavior and presentation and it can't be restricted or prohibited. the court mentioned Article 21 and held that “Hijras need to be considered as third gender, over and above dual gender under our laws and therefore the Constitution”.

PROHIBITION AGAINST DISCRIMINATION.

The discrimination suffered by transgender people are for ages in the matter of health, academically, housing and employment. So, the act provides/ prohibits any unfair treatment of transgender person by another person on the following grounds –

● Health care-

Health refers to the overall state of mentally, physically, and socially well- being. Health care also includes employment, public, housing acceptance of the transgender. Transgender people have suffered from substantial health disparities that had made them to attempt suicide, suffer depression, harassment. Thus, the transgender person protect act provides them protection to lead a happy life, and that government should take proper steps to provides best health care facilities and separate HIV surveillance and sex reassignment surgeries with some medical insurance.

● Education –

Education is equally important for every gender male, female or transgender. But the social stigma transgender faces make them to lose interest for getting education or learning something and they develop a sense of being avoided, ignored and disgraced and therefore the transgender students are often denied to be admitted in institution because the institution doesn’t recognize their gender identities. So, the transgender person protection act provides them to have education facilities without any discrimination.

● Employment-

The transgender persons have suffered workplace discrimination and discrimination within the matters of employment. They suffer discrimination mainly within the sort of privacy violation, refusal to rent and harassment which results in unemployment and poverty. to stop the discrimination suffered by them the transgender person protection act states that no government or maybe the private entities can discriminate against transgender person within the matters of employment which incorporates recruitment and promotions and each establishment should designate an individual to be a complaint officer to affect the complaints in reference to the act.

● Welfare measures –

Transgender persons are discriminated and neglected by the society for an extended time but to bring them back to the mainstream of the society several welfare measures are taken for the transgender person as in Tamil Nadu there was an instance where land was provided for Aravanis and in Andhra Pradesh, the government had ordered the Minority Welfare Department to think about “Hijras” as a minority group and to develop welfare schemes for Transgender. The department of welfare board in Tamil Nadu established ‘Aravanigal/Transgender Women Welfare Board to deal with the welfare problems with Transgender person. The transgender person Protection Act, 2019 has as long as relevant government should take measure and ensure full participation of transgender person in society and to formulate certain welfare schemes and measures to guard the proper of the transgender person.

EVOLUTION AND DEVELOPMENT-

In February 2014, the Supreme Court passed a landmark judgement, prepare for cherish the rights of transgenders in law. The apex court deemed that individuals had the proper to the self-identification of their sexual orientation. It presides over that the primary rights granted by the Constitution are equally applicable to transgenders who amount to the 'third gender'.

The judgement also involved social action in education, primary health care, which transgenders be identified as beneficiaries of welfare schemes. The draft for transgender rights legislation produces from the court's directives.

The first effort at framing legislation for an equivalent was made by Tiruchi Siva in December 2014, a Dravida Munnetra Kazhagam (DMK) Rajya Sabha MP. it had been without opposition passed within the Upper House but was never debated within the Lok Sabha.The Rights of Transgender Persons Bill, 2014, was introduced as a personal Member’s Bill within the Rajya Sabha by Mr. Siva.

The Bill passed within the Rajya Sabha had many developing clauses as well as the forming of institutions like the State and National commissions for transgenders, and also as transgender rights courts. These remedial measures to stop sexism were done away with when the govt drafted The Rights of Transgender Persons Bill, 2015.

Despite these remarkable omissions, the skeletal substructure of the draft Bill takes heavily from its predecessor. After discourse with legal experts and transgender activists, the 2015 draft Bill was sent to the Law Ministry. it had been introduced within the Lok Sabha in August 2016 after considerable revision to the 2015 plan.

CASE STUDY RELATED TO TOPIC-

First case study is about Siddarth Narrain, a eunuch, reveals his feelings as when, “I was in the 10th standard I noticed that the solitary way on behalf of me to be comfortable was to raise the hijra community. it had been then that my family acknowledged that I frequently met hijras who lived within the city. One day, when my father was away, my brother, encouraged by my mother, started beating me with a bat. I locked myself during a room to flee from the beatings. My mother and brother then tried to interrupt into the space to beat me up further. a number of my relatives intervened and brought me out of the space.”

Second case study is about 22 years old Madhu, a transgender woman from Madurai explains why she not gets tested for the disease. She expresses that “I do not have the courage. What if they assert that I even have HIV and AIDS? Where will I go? and the way will I learn? I hope to die if I ever get discover with HIV.”

Third case study is about Laxmi Narayan Tripathy, a Hijra, has similar things to say. She explained her trauma as growing up as a toddler, “I felt different from the boys (as I used to be born as a boy) of my age and was feminine in my ways. On account of her femininity, from an early age, I faced repeated harassment, molestation and sexual assault, both within and out of doors the family. thanks to my being different, I used to be isolated and had nobody to speak to or express my feelings while I used to be coming to terms with my identity. I used to be constantly abused by everyone as a ‘chakka’ and ‘hijra’.”

Note- for some more similar case study you can also read Niti Manthan’s blog.

COMPARATIVE ANALYSIS WITH OTHER COUNTRIES-

When it includes taking an approach developing toward gender recognition reform, Denmark and Argentina makes top of the list.

In 2012, Argentina's Senate unanimously approved the identity Law making sex-change surgery a right. The procedure is even included in both public and personal health care plans.

after two years, the Denmark Parliament followed Argentina's lead and allowed transgender people for legal gender recognition for those over the age of 18, solely supported their self-determination -- with none medical intervention. Denmark is that the solely European country that does not require any certificate by a medical professional or any psychiatric diagnoses, consistent with Transgender.

In 1987, Iran's religionist, Khomeini, issued a fatwa (a legal decision handed down by a spiritual leader) allowing sexual reassignment surgery. While transgender people that have successfully undergone complete gender reassignment surgery are recognized by the govt, "the law utterly fails" to acknowledge transgender people that don't undergo medical intervene, international human rights organization Action International told.

While the govt does leave, and subsidize, gender reassignment surgery, critics of the government's policy say it are often a double-edged sword for transgender people.

Malta's government adopted the Gender Identity, Gender Expression, and Sex Characteristics Act in 2015.

In a landmark choose 2014, India's Supreme Court granted the country's "hijra" or transgender people and people classified as third-gender the proper to self-identify without sex reassignment surgery. Under the ruling transgender people are allowed equal access to academic, employment and health care, and protection from discrimination.

CONCLUSION-

Transgender refers to people whose gender are different from their birth assigned gender. And in the socio- economic culture of the country, these people have struggled a lot not only in present but in past also. They have always been discriminated from the society in any form and as Indian constitution aims equality for every person at every level. Assault, abuse, harassments are common crimes that happens with transgender. So, to protect them there are rights and laws reformed for these people. Transgender Person {Protection of Right} Act, 2019.

Mentioned rights that are reserved for every person in concept of equality should also include transgender for that came to enforce. Article 14 – 21 of constitution provides protection for transgender people. The constitution directs every citizen justice and equal status. The articles provide right for determining the gender identity, and nobody can be restricted for personal appearance and choice of dressing, and more are discussed above. And the act also provides prohibition against discrimination on the fields of academic, employment, health care and welfare measures. The act ensures that they get equal treatment and their rights to be protected. Evolution and development as in February 2014, the bill was introduced for rights of transgender in law. And it became an Act in 2019. There is case study related to topic which are discussed above the case studies about how transgender was abused and discriminated. Siddarth Narrain, Madhu, Laxmi Narayan Tripathy tells their stories and case. Some case related to article 19 are city of Chicago v. Wilson et al. 1978 and Doe v. Yunites et al.2000.

Comparative analysis with other countries like Denmark, Argentina, Iran, Malta and India on legal rights of transgender people.

BIBLIOGRAPHY –

1} CNNhealth.com

2} Nitimanthan.blog

3} blog.ipleaders.in

4} main.sci.gov.in

5} www.lawrbit.com

6} www.ibanet.org

Footnote. 1

The Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot introduced Transgender people (protection of right) bill, in Lok Sabha.

n. 2

The court as issued certain directions to the central and government which are:

a) Hijras, should be treated as third gender for the aim of protecting their fundamental rights, Recognize the persons’ got to identify his own gender, reservations publicly education and employment as socially and educationally backward class of citizens, Make special provisions regarding HIV surveillance for transgender persons and supply appropriate health facilities, Tackle their problems like fear, gender, shame, depression, suicidal tendencies, etc.

b) Measures should be taken to supply health care to transgender people in hospitals like making separate wards and also provide them separate public toilets, Frame welfare schemes for his or her all round development, to create public awareness in order that the transgenders feels that they're a part of the society and aren't to be treated as untouchables.

n.3

Following actions act for offence and penalties will attract penal provisions –

a) Forces or causes a transgender person to travel away household, village or other place of residence.

b) No one can compel a transgender to enjoys the act of forced or bonded labor apart from any compulsory service for public purposes imposed by Government.

c) Injuries or harms endangers the life, safety, well-being or health, whether mental or physical, of a transgender person or tends to undertake to acts including causing physical abuse, harassment, sexual assault, economic abuse and emotional abuse.

Penalties for above offences involves imprisonment for 6 months and max. for 2 years with fine.

n.4

Right Transgender person bills, 2014

The rights guaranteed under the Bill are mostly substantive rights like the proper to equality and non-discrimination, life and private liberty, free speech, to measure during a community, integrity, along-side protection from torture, harassment or cruelty and abuse, violence assault and exploitation. there's a separate clause for transgender children.

Education, employment and Social Security and health also are covered under the Bill. The chapter on education makes it mandatory for the govt to supply inclusive education for transgender students and supply course to them. The Bill envisages fixing variety of authorities and forums – National and State Commissions for Transgender Persons. The Commissions work are going to be mostly within the nature of inquiry or recommendations within the inconsistencies within the application of the law or violations of right of transgender persons. The Commissions can arraignment to witnesses, receive evidence, etc. there's penalty by way of imprisonment for up to a year for hate speech against transgender people.