Legal Position of Transgender In India

Transgenders in India have waited to gain equal status in the society and have been targeted by the laws in our country for a long time, the persecution of transgenders is not only a social but also a humanitarian issue. Every citizen of our country is guaranteed seven fundamental rights. We can file writ petitions in the High Court and the Supreme Court in case we feel that our rights have been infringed upon. However, the Indian transgender community has been persecuted continuously and their fundamental rights have been violated for long periods of time. Most transgender people in India are poor and unaware of their rights and hence they do not approach a court of law.

In British Era India, the Criminal Tribes Act, 1871, required all eunuchs to be registered under the Act. The act was further amended in 1897 and was subtitled as an Act for Criminal Tribes and Eunuchs. Section 29 (Part II) of the Act did not permit any registered eunuch to make a gift, make a will, adopt a son or to be or to act as a guardian to any minor. The British people had a mindset that eunuchs were those elements of the society which engaged in various anti-social activities like kidnapping children and engaging in sodomy and thus they ensured that the transgender community got very little rights in India.

Due to this law, the overall trust that the people had in transgenders declined and was replaced with the colonial era fear against the community which lasts until today.

The 1897 legislation further stated that “any eunuch so registered who appeared “dressed or ornamented like a woman in a public street or who dances or plays music or takes part in any public exhibition, in a public street could be arrested without warrant and punished with imprisonment of up to two years or with a fine or both.”

This clause made dressing like a woman and dancing in the street a crime and a cognizable offence for a transgender person. The transgender community was already a disadvantaged community and the law was misused by police officials who would arrest members of this community arbitrarily without any conclusive evidence or on any firm grounds. Though the Criminal Tribes Act was repealed in 1952, it took us nearly 81 years to repeal such a punitive law.

Transgenders are at times also frivolously charged under laws that regulate public decency and morality. They are often charged under Section 290 and Section 294 of the Indian Penal Code, 1860 which punishes a person for doing acts causing annoyance to others or for doing an act considered to be obscene or an act that causes nuisance to the public, or it also punishes any person who sings, recites or utters any obscene song, ballad or words”.

The Bombay Prevention of Begging Act, 1959, an anti-begging act, criminalised beggary, and this Act extended to the entire territory of Maharashtra and to the Union Territory of Delhi.

Section 4 (1) of the Act read: Any police officer, or other person authorised in this behalf in accordance with rules made by the State Government, may arrest without a warrant any person who is found begging.

This law was misused by the police who would arrest transgender persons, who are mostly involved in begging. The law was made to curb the menace of beggars and not punish the marginalized transgender community who begs because they are helpless and possibly have no alternate source of income.

It was not until 8th August, 2018, that the Delhi High Court, responding to a Public Interest Litigation (PIL), decriminalised begging in the national capital declaring the 1959 act to be unconstitutional. Twenty- five sections of the Act were thus struck down citing that transgenders as a community did not beg voluntarily but were forced into doing so due to social stigma. These sections also violated the fundamental rights of some of the most vulnerable sections of the society, transgenders being one of them.

Though the laws in the past have been unfavourable towards transgenders, we are changing with time. As we enter the 21st century, many progressive changes can be seen towards the upliftment of the transgender community. In 2005, the passport control authority under the Ministry of External Affairs was the first government body to recognise transgenders as a separate identity. In 2009, the Election Commission of India took a first step by allowing transgenders a choice to choose their gender as others on ballot forms.

Case Laws In Which The Transgender Community And Its Rights Were Recognised:

• In 2014, the Supreme Court, in the landmark National Legal Services Authority (NALSA) v/s The Union of India case recognised the rights of the transgender community and the Court allowed the transgender community to identify their gender as male or female or other and also declared that it was the duty of the Union and State government to give legal recognition to the gender of ones choice and to also ensure equal opportunities and appropriate safeguards such as reservation for the transgender community. The Court said that all the fundamental rights guaranteed by the Constitution extended to the transgender community as well.
  
  This is so because Article 14 of the Constitution of India talks about equality before the law and equal protection of the laws. Article 14 says that any person must be guaranteed equal protection of the law and must be equal in the eyes of law. The law here does not explicitly mention any gender and is hence gender neutral and applicable to the transgender community. The Court also held that as per Article 15 and 16 of the Constitution, discrimination on the basis of sex is also prohibited. Here sex was not just the sex of the person that he was biologically assigned to but also included those people who did not want to categorize themselves as either male or female.
   
• In 2015, in the Shivani Bhat v/s NCT of Delhi and others, the vulnerability of the transgender community was highlighted. In this case, the petitioner, a transgender, was subjected to constant abuse by his own family due to his identity and was also illegally confined against his will in his grandparents house. The petitioners family had confiscated his passport and his green card and were not letting him return to the United States which was his place of residence. The petitioner thus ran away from his house as a means of escaping from this illegal detention, however the petitioners family filed a police complaint to find the petitioner.
  
  The LGBTQ activists who had helped the petitioner to escape were also subjected to constant abuse, surveillance and threats from both the police and the petitioners family. The petitioners family wanted the petitioner to be in India at all costs within their control. In this case, the Court upheld the right of the petitioner to live his life with dignity, recognising the right to life and said that the petitioner had the right to enjoy basic human rights. The Delhi High Court, thus ordered the Delhi Police to provide protection to the petitioner and his supporters from the LGBTQ community from harassment, abuse and coercion from the petitioners family.
   
• In Nangai v/s The Superintendent of Police, a woman named Nangai had applied for the post of a female constable. The Tamil Nadu Uniformed Services Recruitment Board, Chennai conducted application tests and Nangai successfully cleared these tests. However, when Nangai underwent medical tests, it was found that she was not a female but a transgender on the basis of her chromosomal pattern and genitalia.
  
  The Recruitment Board subsequently dismissed her from the job stating that she was not a woman to apply for the post of a female constable and hence she did not fulfil the eligibility criteria. The Madras High Court in this case held that Nangai had always identified herself as a woman and she had the right to identify herself as a woman. The Madras High Court hence ordered the Recruitment Board to reinstate Nangai who was fired on the grounds that she was a transgender.
   
• In another landmark decision by the Madras High Court, the Court declared that the marriage of a cisgender man and a transgender woman was valid. The State authorities had refused to register this marriage stating that under Section 5 of the Hindu Marriage Act, 1955 a transgender woman cannot be a bride.
  
  The Court held that the marriage was valid and said that a transgender woman was also included in the definition of bride. The Madras High Court thus permitted transgender marriage and allowed all consenting individuals who were transgenders to register their marriages in the State of Tamil Nadu if they were not allowed to do so elsewhere.
   
• In September 2018, the Supreme Court, in a historic verdict in the Navtej Singh Johar v/s The Union of India case, unanimously gave its approval to consensual gay sex between adults. A five judge Constitutional Bench struck down a nearly 158 -year- old colonial era law which criminalised gay sex. The Court said that every individual had the right to chose his or her own partner and protection from discrimination. The Court thus struck down parts of Section 377 declaring parts criminalizing homosexuality as unconstitutional.
   
• In December 2018, the Delhi High Court, in a historic move, ruled that members of the transgender community could file complaints of sexual harassment under Section 354 (a) of the Indian Penal Code.

Though the Courts have recognised the transgenders as another community, ordered the government to provide them with safeguards and has given them the right to identify themselves as transgenders, we still have no proper law in the country that will benefit the transgender community and ensure its welfare and empowerment.

In 2019, The Transgender Persons (Protection of Rights) Bill, 2019 was passed by the Lok Sabha. The Bill acknowledges the rights of the transgenders in terms of right to residence, inclusive education without discrimination, no discrimination against a transgender person in matters regarding employment either by a government or a private company, the Bill also aims towards providing proper healthcare facilities to transgenders and directs the government to setup clinics for the treatment of HIV and setup clinics for sex reassignment surgery .

Though the bill has a lot of provisions to ensure the welfare of the transgender community, there were widespread protests against the bill across the country from the transgender community, who argued that the bill in a way aimed only towards protecting them and not empowering them. They argued that the bill was a way to undermine them and to make their lives difficult.

The Bill requires transgender persons to appear before a district magistrate and a district screening committee to be certified as a transgender, and states that a revised certificate will only be obtained if the person undergoes sex reassignment surgery. The bill also had a provision which stated that if a transgender person wanted to identify as male or female, then an identity card would be granted to them only after a medical officer examined their body. The law can be misused to harass the transgender community as there is a lot of bureaucracy involved. Also, the bill has no provisions for the magistrate to review his order, and is thus prone to misuse.

This provision of appearing before a magistrate and a screening committee to examine ones gender was seen as directly contradictory to the Supreme Courts decision in the 2014 NALSA judgement where the court said that any person has the right to identify his own gender and no external authority had the right to examine any persons gender identity.

Earlier versions of the bill in 2014 and 2018 had anti-begging provisions and a provision for a screening committee which was scrapped in the 2019 version of the bill.

Analysis:
Though there are no concrete laws in India to empower transgenders, the Courts in India from time to time have given judgements in favour of the transgender community. The Supreme Court declared that sex reassignment surgery was not necessary for a person who psychologically thought that he belonged to a particular gender. The Court introduced the concept of psychological gender as an identity over biological gender.

Though there have been many reforms in India, however there are still certain areas where the community is discriminated against, for example, members of the transgender community are not allowed to serve openly in the military or adopt a child. According to a report in the Economic Times, the number of transgender voters in the country has increased by only 15,306 in the last 5 years.

The voter count now registered under the others category is a mere 38,325 people according to Election Commission data. Activists blame the insensitivity of the officials and the paperwork involved for the lack of registered transgender voters. Activists state that certain transgenders who were earlier registered as male or female in the voters list and now want to change their gender on their voter ID have to go through a lot of steps. Furthermore, officials ask for medical certificates of gender transition, which is directly contradictory to the 2014 NALSA judgement which stated that sex reassignment surgery was not necessary to be identified as a particular gender.

There have been some people from this community who have become noteworthy. Though not much of social transformation has been seen, some people have broken stereotypes about the transgender community and shown us a new face of the community.

The transgender community today is no more the community who claps and sings on streets but has progressed tremendously. Some of the notable people from this community include Indias first transgender judge of a Lok Adalat, Joyita Mondal; India's first Trans Beauty Queen Nitasha Biswas and Madhu Bai Kinnar, the mayor of the city of Raigarh in Chattisgarh. These people are representatives of an educated and modern class of transgenders. This social transformation, however, has been limited to only a few people and many other people from the community struggle to live a decent life even today.

Uttar Pradesh has the highest population of transgenders in the country, with a count of 1,37,465 transgenders but only 55.80% of the transgender population is literate. A similar picture is seen throughout the country as far as transgender literacy is concerned, except in the State of Kerala where the transgender literacy rate is 84.61% (Census, 2011). The low literacy rates among transgenders is a concern and is a hindrance to social development.

Illiteracy among transgenders is one of the major reasons why they remain unaware of their rights and are unemployed and vulnerable. Illiteracy among the members of this community is the basic reason why they are forced into begging, prostitution and trafficking. The need of the hour is hence a more literate transgender population and a more inclusive society.

Conclusion:
In the words of Marcus Tullius Cicero: The good of the people is the greatest law (salus populi est suprema lex). Any law must aim towards reforming an individual and not punishing him. The laws in the colonial era were extremely punitive towards transgenders and the entire community was looked down upon and thought of as a disgrace.

We thus need more comprehensive laws which not only seek protection of the transgender community but also their empowerment. The laws that we have formed until now do not seek to empower the transgender community but rather to protect it. They do not ensure that transgenders live in a more inclusive society, instead it seems as if their objective is to alienate them further.

The laws formed until now are insufficient towards achieving the objectives as discussed earlier and the provisions of these laws are not in congruence with the judgement of the Supreme Court. The aim of law is to bring about a positive change in the society and these laws have not been able to bring about that positive change in the minds of people who continue to look at the transgender community with fear, disgust and contempt.

In the modern era, we must do away with laws which unnecessarily try to persecute a person just because he belongs to a particular community. It is not merely the duty of the Government or the NGOs to be sensitive towards the transgender community, it is also our duty as a society to ensure that we are sensitive towards the transgender community. It is only with all our combined efforts can we have a just and fair society for the transgender community.