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CRITICAL ANALYSIS OF PROTECTION OF TRANSGENDER RIGHTS IN INDIA

By Saptarshi Roy and Esha Kar


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Society always congratulates if a boy child or a girl child is born, but curses if those children realize that they are not a boy or a girl. So, as a result, they suffer from gender identity at first as society does not accept them. However, society is not the same as it was in the past. The problems of transgender persons have come to light and society has slowly started to accept the transgender persons. Although the need to support transgender rights has drawn more attention recently, there are still many obstacles to be overcome. Due to a lack of legislative protection and frequently unfavourable social views, discrimination against transgender people still exists in India. The current state of transgender rights in India, the legal structure in place to protect them, as well as the difficulties and opportunities for enhancing that protection, will all be examined in this critical examination.

The background of India's culture, society, and law makes the question of transgender rights highly complicated. Hijras, Kinnars, and Aravanis are the names by which India has historically acknowledged the presence of hijras. These individuals take part in significant religious and cultural gatherings and have long been an essential element of Indian culture. For transgender people, who frequently experience extreme hostility and marginalisation, this societal acceptance has not, however, resulted in any legal protection.

Discrimination is one of the main problems that transgender people in India face. People who identify as transgender frequently experience violence and harassment in addition to facing significant obstacles when trying to access education, healthcare, and employment. They frequently experience discrimination that is exacerbated by social stigma and prejudice, which can make it challenging for them to express their legal rights and obtain justice.

The Transgender Persons (Protection of Rights) Act 2019[1] is essential for protecting the rights of transgender people. But many activists and organisations have criticised the Act for failing to go far enough in defending the rights of transgender people and for feeding false stereotypes. According to Section 2(K) of this law, a trans person is someone whose sexual orientation differs from the sex to which they were biologically assigned. The law also covers genderqueer, intersex and trans men and women, as well as people who identify with queer and hijra socio-cultural groups.[2]


Civil Law Protection

The acceptance of and knowledge of discrimination against transgender individuals is rising in India. Change is being brought about by the activists' steadfast efforts. In the historic decision of the National Legal Services Authority (NALSA) v. Union of India in 2014, the Supreme Court acknowledged the legal rights of the third gender. This case marked the first time that transsexual rights were recognized by the court, and it shed light on the issue of employment discrimination faced by transgender people in India. The court also reaffirmed that Article 21 of the Indian Constitution[3] protects third-gender people's right to a dignified existence and emphasised the significance of gender identification. The court directed both State and Federal governments to develop policies or programs to combat discrimination against the third gender and protect their rights.

Discrimination is forbidden by Section 3 of the Transgender Persons (Protection of Rights) Act, 2019. This implies that transgender people have the freedom to travel around, live anywhere they like, lease or occupy property, hold public or private office, and have access to any governmental or non-governmental organization without being discriminated against, under the supervision or custody of a transgender person are all protected from discrimination. It also prohibits discrimination against transgender people in the following areas: education, occupation, health services, availability of products and services or options available to the public.[4]

Sections 13 to 15 of the Transgender Persons (Protection of Rights) Act, 2019, contain laws relating to the welfare of transgender people in spheres like education, social security, and health. According to the Act, transgender people have the right to reside in their own homes and be accepted by their families. In issues of employment, including recruiting and promotions, no government or non-government institution shall be allowed to discriminate against a Trans person.[5] Transgender people must have access to inclusive education, athletics, and recreational opportunities in educational institutions supported or authorized by the relevant government. The government should also take steps to ensure that health care for transgender people is available, including gender reassignment surgery and specialized HIV testing facilities.

In the 2014 case of Nangai v. Superintendent of Police, the applicant, who had applied to become a police officer, was free to choose a third gender ID based on a subsequent medical document. The court upheld the petitioner's transgender rights and set aside the order terminating the employment of the Superintendent of Police.


Criminal Law Protection

Section 18 of the Transgender Persons (Protection of Rights) Act 2019 defines crimes against transgender people, including those motivated by transphobia, as well as their violations and penalties. These crimes include denying a transgender person access to public areas and taking away their home, as well as forcing them into non-state forced or bonded labor. Some offenses are punishable by fines and imprisonment of six months to two years.

In the 2018 case of Navtej Singh Johar Vs. Union of India, the Supreme Court debated the validity of Section 377 of the Indian Penal Code,[6] which prohibits homosexuals from engaging in consensual sexual activity. It is one of the most groundbreaking rulings by the Supreme Court concerning the LGBTQ community's demand for equality, which was denied by the laws of the Victorian era. It is deeply hurtful to one's self-respect and dignity to discriminate against someone based on their sexual orientation. The LGBTQ community should be treated with the same rights and dignity as everyone else. The Supreme Court abolished a 158-year-old prohibition on homosexuality that labeled same-sex relations as a crime that went against the natural order. By reversing its earlier decision in the Suresh Kaushal case, the court declared Section 377 unconstitutional since it violated Articles 14, 15, 19, and 21 of the Constitution.


Case Study

The Transgender Persons (Protection of Rights) Act, 2019 and several significant Supreme Court rulings serve as the foundation for India's transgender rights case legislation. The Supreme Court ruled unequivocally that transgender people should be accepted as members of the third gender in the case of President N. D. Mohan, Nainarkuppam Village Panchayath, Nainarkuppam, Cuddalore v. District Collector, Cuddalore. The Transgender Persons (Protection of Rights) Act, 2019, which attempts to give rights and protection to the transgender community in India, was enacted as a result of this historic ruling.

The Act gives the transgender community a voice and a forum to discuss their needs and rights, acknowledging the need of hearing their perspectives. It highlights how important it is for transgender people to be included in mainstream society and to participate in democracy. The Act also encourages the reserving of seats for transgender people in legislative bodies and acknowledges them as social outcasts. The Act protects transgender people's autonomy to choose their gender identification and mandates that the federal and state governments recognize transgender people as male, female, or a third gender as held in Shivam Dewangan, S/o Santosh Dewangan v. State of Chhattisgarh through P.S.-Out Post Chikli, Distt. Rajnandgaon (C.G.).

The subject of discrimination against transgender people is also included under the Act. In addition to other areas, it forbids discrimination in health, education, employment, housing, services, and facilities as held in Supriyo @ Supriya Chakraborty v. Union of India. It protects transgender people from sexual and physical abuse and acknowledges their right to form families. The decisions in this case draw attention to the rights of transgender people to be recognized according to their gender identity and the duty of the state to uphold those rights. These rulings acknowledge the significance of raising public awareness and tackling the discrimination and stigma that the transgender population faces.

The aforementioned case laws underscore the necessity of creating distinct job openings and career prospects for transgender individuals throughout multiple industries, such as education as in Jane Kaushik v. Lieutenant Governor, NCT Of Delhi & Ors. State governments are mandated to provide social programs and eradicate public discrimination against transgender individuals as said in Veera Yadav v. Chief Secretary, Government of Bihar, Main Secretariat, Patna & Ors.

To sum up, the Transgender Persons (Protection of Rights) Act, 2019 and case laws are vital in acknowledging and defending the rights of transgender people in India. They highlight the need for inclusion and welfare programs for the transgender community, address discrimination issues, and offer legal recognition of gender identity. Transgender individuals in Indian society are moving closer to societal acceptability and equality as a result of these laws and rulings.


Conclusion

Influential transgender people including Dr. Manabi Bandopadhyay, Laxmi Narayan Tripathy, Trinetra Haldar Gummaraju, Gauri Sawant, and many others have helped to better the situation of transgender people over time. By looking at some of the above-mentioned cases, it is positive to state that their situation is not the same as what it was in the past. To improve the rights of the transgender population, several areas of the legislation still need to be developed. Hopefully, the government will take action to guarantee transgender people's full inclusion in society in the future, ensuring the transgender community an even brighter future.



The authors of this article are Saptarshi Roy, a fifth-year BALLB student at St. Xavier's University and Esha Kar, a fifth-year BCOMLLB student at St. Xavier's University.

 

[4] “The Transgender Persons (Protection of Rights) Bill, 2019” (PRS Legislative Research) <https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019>

[5] Sehgal DR, “Rights of the Transgender Community in a Corporate Environment - iPleaders” (iPleaders, March 4, 2021) <https://blog.ipleaders.in/rights-transgender-community-corporate-environment/#Conclusion>

 

This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).


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