"Transgender" people have a way of expressing themselves, describing their gender, or gender identity (knowing that you are a boy or girl) that doesn't always fit society's rules - that boys are boys and girls are girls. "Transgender" or "Trans" means someone whose gender differs from the one they were given when they were born. "Transgender" may identify as male or female, or they may feel that neither label fits them.

"Transgender" people are individuals of any age or sex whose appearance, personal characteristics, or behaviors differ from stereotypes about how men and women are "supposed" to be "Transgender" people have existed in every culture, race, and class since the story of human life has been recorded. Only the term "Transgender" and the medical technology available to transsexual people are new. In its broadest sense, "Transgender" encompasses anyone whose identity or behavior falls outside of stereotypical gender norms.

"Transgender" in India face a variety of issues. So far, these communities perceive that they have been excluded from effectively participating in social and cultural life; economy; and politics and decision-making processes. A primary reason (and consequence) of the exclusion is perceived to be the lack of (or ambiguity in) recognition of the gender status of "Hijras" and other "Transgender" people. It is a key barrier that often prevents them in exercising their civil rights in their desired gender.

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of "Transgender" community undergo nor appreciates the innate feelings of the members of the "Transgender" community", especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the "Transgender" community" and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society's unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

Definition
The term 'Transgender' has been derived from the Latin word 'Trans' and the English word 'Gender'. Different sorts of individuals come under this category. No particular form of sexual orientation is meant through the term "Transgender". The way they behave and act differs from the 'normative' gender role of men and women. Leading a life as a "Transgender" is far from easy because such people can be neither categorized as male nor female and this deviation is "unacceptable" to society's vast majority. Trying to eke out a dignified living is even worse.

The term "Transgender" is generally described as an umbrella term for persons whose gender identity, gender expression or behavior does not conform to their biological sex. The term "Transgender" extends beyond individuals with intermixed genitals, encompassing diverse gender expressions, identities, and behaviors differing from birth sex norms.

When Lord Brahma began creating mankind, he encountered a quandary. He couldn't picture the world having an equal balance of masculine and feminine energies. To balance the "Purush," the counterpart has to be as magnanimous, strong but mild. Lord Shiva then acquired the appearance of "Ardhanarishvara" (half man, half woman) and came in front of Brahma. Brahma discovered synergies between the sexual natural phenomena when he saw Shiva in his "Ardhanarishvara" form, and this led to the creation of feminine energy, or "Prakriti".

The Mahabharata and the Shiva Purana both mention Shiva in their "Ardhanarishvara" form. And we find evidence of the Ardhanarishwar Statue in many of India's most famous temples. Lord Shiva's current form is a perfect mix of masculine and feminine energies. Androgyny, you see, is nothing new or Western; it has always been.

Another important story that is quite famous to upheld the importance of transgender's cultural value, is from the epic Ramayana. Lord Rama went into exile for fourteen years, according to an occurrence in Valmiki's Ramayana. Out of love and respect, many individuals in Lord Rama's realm followed him. When Lord Rama discovered this, he ordered all the men and women to come back home. On his journey home from exile, Lord Rama noticed that the "Hijras" had been seated in that spot for fourteen years. Lord Rama, pleased with the Hijras' dedication, blessed them and prophesied that they would bless mankind on many auspicious events such as births and marriage.

Downfall of Transgender Rights During The Colonial Era
The Britisher's perceived acts of transgender community as supplication for sexual services. In the 19th Century, they criminalized all penile-non-vaginal and sexual acts through Section 377 of the Indian Penal Code, 1860. The purpose of the Britisher's was to remove the visibility of the transgender community from social categorization so they legislated the Criminal Tribes Act, 1871 which led the community under surveillance and control of Britisher's by referring them as habitual offenders[1]. Despite the efforts of the Britisher's to erase the community, the transgender community managed to survive and continue their public presence.

Condition Of Transgender After Independence
After India attained Independence, the first Prime Minister of Independent India - Jawaharlal Nehru repealed the Criminal Tribes Act, 1871 as according to him the Act was a stain on the Constitution of India. The Government of India enacted new legislation namely, the Habitual Offenders Act which preserved most of the provision of the Criminal Tribes Act, 1871. The transgender community had been living a vulnerable life since Independence. The community had no legal recognition, because of which they could not avail socio-economic benefits and participate in the political process which requires official validate identity.

Over the years the community has suffered harassment, violence from the community which has feared sexual and gender non- conformity. In the year 2014, the Supreme Court of India in the case of [National Legal Services Authority Vs Union of India & Ors.", AIR 2014 SC 1863] legally recognized transgender as "Third Gender" and directed the Government to formulate Social Welfare Schemes for the community, when the said decision was widely appreciated by the Human Rights Activists across the globe.

Further, the Supreme Court of India in the case of ["Navtej Singh Johar & Ors Vs. Union of India & Ors", AIR 2018 SC 4321], declared part of Section 377 of the Indian Penal Code, 1860 as unconstitutional and decriminalized consensual sex between adults of the same gender.

Problems Being Faced By The Transgender Community
The problems faced by the Transgender community as articulated in the PIL Petition WP (C) No. 400 of 2012 filed by the National Legal Services Authority (NLSA), in short, are/were as follows:

• Transgender persons are deprived of the fundamental rights available to the other two sexes i.e. male and female, and are not considered as the third sex.
• They are deprived of many of the rights and privileges which other persons enjoy as citizens of India.
• The transgender are deprived of social and cultural participation, are shunned by family and society, have only restricted access to education, health services and public spaces, restricted rights available to citizens such as right to marry, right to contest elections, right to vote, employment and livelihood opportunities and various human rights such as voting, obtaining Passport, driving license, ration card, Identity Card etc.
• The transgender community is treated as a legal non-entity in violation of Articles 14, 15, 16 and 21 of the Constitution of India.
• Other important submissions of NLSA are:
  1. The transgender community, generally known as "Hijras" in this country, are a section of Indian citizens who are treated by Society as unnatural and generally as objects of ridicule and even fear on account of superstition. All human beings are born free and equal in dignity and ought to be entitled to enjoyment of human rights without discrimination on the basis of sexual orientation or gender. Everyone is entitled to equality before the law and equal protection of the law without any such discrimination. Transgender persons are also part of society and have equal rights as are available to other persons. The discrimination based on their class and gender makes the transgender community one of the most disempowered and deprived groups in Indian society.
      
  2. In view of the constitutional guarantee, the transgender community is entitled to basic rights i.e. Right to Personal Liberty, dignity, Freedom of Expression, Right to Education and Empowerment, Right against Violence, Discrimination and Exploitation and Right to Work. Moreover, every person must have the right to decide his/her gender expression and identity, including transsexuals, transgender, hijras and should have right to freely express their gender identity and be considered as a third sex.
      
  3. The problems faced by transgender persons are discrimination, lack of educational facilities, unemployment, lack of shelter, lack of medical facilities like HIV care and hygiene, depression, hormone pill abuse, tobacco and alcohol abuse and problems relating to marriage, property, electoral rights, adoption. Ministry of Law and Ministry of Social Justice and State Governments need to recognize the deprivation suffered by transgender people and work on much needed reform.
      
  4. In 2003, the Hon`ble High Court of Madhya Pradesh upheld the order of an Election Tribunal which nullified the election of a hijra, Kamala Jaan, to the post of Mayor of Katni, on the ground that it was a seat reserved for women and that Kamla Jaan, being a 'male' was not entitled to contest the seat. It is submitted that all the citizens of India have a right to vote and to contest elections. But in the electoral rolls only two categories of the sex are mentioned – male and female. This is unfair to the third sex of India as they are deprived of their statutory right to vote and contest elections.
      
  5. Transgender persons, though human beings are not recognized as persons in violation of human rights as they are deprived of their fundamental rights as well as also other civil rights. The lack of recognition isolates transgender persons, especially eunuchs, in the matter of civil rights. The Constitution of India prohibits discrimination on the basis of sex. Since gender is taken to mean only male and female, the eunuchs and transgender persons cannot effectively exercise or avail the benefits of constitutional rights and avail of facilities and benefits available to the male and female genders.
      
  6. Transgender persons have very limited employment opportunities. Transgender persons have no access to bathrooms/toilets and public spaces. The lack of access to bathrooms and public spaces access is illustrative of discrimination faced by transgender persons in availing each facilities and amenities. They face similar problems in prisons, hospitals and schools.
      
  7. So far as criminal liability is concerned, transgender persons cannot escape punishment when they are accused of committing crimes. The word "person" in the Indian Penal Code and General Clauses Act means all human beings. Persons who can be punished for committing offences include transgender persons, though they are consciously deprived of their civil rights.
      
  8. Transgender persons have very limited employment opportunities as most jobs are confined to male and female sexes. Transgender persons, being a third sex, cannot even apply for most of the jobs.
      
  9. Transgender persons must be properly documented in census. There is need for statutory reservation in education, elections and employment both in the public and private sectors. They need to be empowered and uplifted by facilities for higher education and vocational training to upgrade their earnings and status in society so as to promote their acceptability in society.
      
  10. Since transgender persons are prone to health risks and setbacks, they need to be provided proper medical facilities, including health insurance and clinics, where free or subsidized treatment should be made available.
       
  11. The different manifestations of discrimination and deprivation are a consequence of the practice of recognizing and providing only for the male and/or the female sex. This gets reflected in prescribed forms for applying for various privileges, facilities or amenities, as these do not reflect that a person may belong to a gender, other than male or female.

Poojya Mata Nasib Kaur ji Women Welfare Society, the petitioner in other petition has made similar submissions and referred to transgender persons as Kinnars. They have prayed to the Supreme Court to direct the Respondents (Central & State Governments) to inter alia bring a policy for upliftment and for socio-economic development of the Kinnar Communities in India. The Salvation of Oppressed Eunuchs (SOOE), the Petitioner in has brought out some issues, which are/were different from the above and are/were as follows:

1. Eunuchs are forced by their 'gurus' to lead a life of servitude and bonded labourers. A prayer has been made to ensure that the condition of eunuchs living as bonded labour be ended forthwith under the provisions of the Bonder Labour System (Abolition) Act, 1976.
    
2. The word 'rape' in Section 375 of Indian Penal Code, 1860 should include all sexual crimes against women, men, children and transsexuals/eunuchs, as eunuchs are often the targets of some of the worst sex crimes, more so, if they happened to be sex workers. It has, therefore, been prayed to direct appropriate modification/interpretation of Section 375 to include transsexuals and eunuchs in the definition of the term 'rape'.
    
3. There is an order of the Hon'ble High Court, Delhi about Section 377 of IPC, validating rights of the homosexual people and that right has been denied to eunuchs until now, simply because their disability was attempted to be concealed. A prayer has been made in this context for directing appropriate modification/interpretation of Section 377 of IPC, validating the rights of homosexual people be modified/interpreted to include transsexuals and eunuchs in the definition of the term 'homosexuals'.

In the year 2014, the Hon'ble Supreme Court of India in the case of National Legal Services Authority (supra) directed the Centre and the State Governments to recognize transgender as the "Third Sex" and also to provide the benefits of socially and economically backward class. The Supreme Court Bench comprising of Justice K. S. Radhakrishnan & Justice A. K. Sikri observed that the non-existence of law recognizing transgender as third gender could not be continued as a ground to discriminate them in availing equal opportunities in education and employment.

Further the Supreme Court also directed the Centre and the State Governments to frame new Schemes for the welfare of transgender community including reservations for education and employment purposes, health and medical facilities. In this historic Judgment the court also opined that the Centre and the State governments should develop social welfare schemes for "Third Gender" community and run a public awareness campaign to erase social stigma attached to the community, apart from considering reservation in jobs. The Supreme Court also added that if a person surgically changes his/her sex, then he or she is entitled to her changed sex and cannot be discriminated. In the ultimate analysis, the Hon'ble Supreme Court of India concluded as under;

29. We, therefore, declare:

1. Hijras, Eunuchs, apart from binary gender, be treated as "Third Gender" for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
2. Transgender persons' right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
3. We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.
4. Centre and State Governments are directed to operate separate HIV Sero-Surveillance Centres since Hijras / Transgenders face several sexual health issues.
5. Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one's gender is immoral and illegal.
6. Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
7. Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
8. Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
9. Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

The Transgender Persons Bill (Protection & Rights) Bill, 2019 which received the President's assent on 5th December 2019 highlights the Act, 2019 listed below:

• It defines transgender people as one who does not match the gender assigned to them at birth. It includes persons with an intersex variation, gender queers, trans-men, trans-women, and persons with intersex variations;
• The District Magistrate is empowered to give a certificate of identification to identify the person as transgender;
• Prohibits discrimination against transgender and unfair treatment in institutions like health care, employment, education, and access to public facilities;
• Recognizes the right to residence of a transgender person;
• Provides for the formulation of Schemes by the Government like vocational training programs and self-employment for their social welfare;
• It states that the Government must take steps to provide health care facilities to transgender which includes HIV Surveillance Centres and Sex Reassignment Surgeries;
• It also recognizes offences such as bonded labour, physical and sexual abuse and provides for a minimum penalty of six months imprisonment and a maximum of two years with a fine.

Drawbacks Of Transgender Person Act, 2019
There are several problems in the legislation which are needed to address by the Government. The Act is problematic from the fact that it was passed in the Rajya Sabha only just after three days of debate and discussion without any amendment and additions to the Act. It ignores the Right of Self-determination of Identity as stated in the NALSA Judgment (supra). It stated that a person has a right to self-identify himself as "Transgender" contrary to the Rule of Law laid down in the Judgment.

The Act confers the power on the District Magistrate to issue the Certificate of Identification to claim benefits under this Act. If the District Magistrate denies the Certificate, it does not provide for a redressal mechanism. The Transgender Bill, 2016 provided for a Screening Committee to make recommendations to the District Magistrate to prevent any misuse. However, the provision was removed in Transgender Bill, 2019.

Sensitization of Health Care Personnel
The Court in the NALSA Judgment enforced the recommendations under the UNDP Report which provided for HIV Sentinel Sero-Surveillance Sites in addition to Mental Health Counseling, Sex Reassignment Surgery, and Training Healthcare Staff to be sensitive by implementing stigma reduction measures in various settings.

These recommendations were incorporated in the Transgender Persons Act, 2019 under Section 15 which established these recommendations, however, it left out the sensitization training part which is the most essential for the protection of transgender people.

This is because, the stigma and lack of knowledge that surrounds this community have led to further marginalization by the use of conversion therapy which is widespread but, has been completely ignored in the Act. And the healthcare personnel play the most crucial role in promoting misconceptions by pushing alleged treatments and cures for people with different gender and sexual orientations on the families of trans people.

Healthcare professionals who hold an authoritative and influential power have been routinely conducting such therapies and threaten the transgender persons of a bleak future if they did not change coupled with anti-psychotic medication, hormone injections, and the most horrific of these treatments is the usage of electroconvulsive therapy, which involves sending an electric current through the body, to rectify the gender expression. 35

This conversion therapy is not just restricted to healthcare as families also compel their transgender children to not only go through Homeopathy and Ayurveda treatment but also get involved with astrologers, local godmen, black magic practitioners, and other religious beliefs, with many of such people believing that trans people are possessed by demons and thus require exorcism, corrective concoctions, and families even trying methods like corrective rape.

What is important to note here is that "stigma and discrimination are pervasive and part of the healthcare system, because the medical curriculum at the UG/PG level depicts transgender persons as sexual perverts with mental and biological disorders, also despite the Act stating hospitals to be inclusive spaces, in reality, they are still segregated into the gender binary and exclude transgender persons by forcing them to join male-female lines, toilets and being ridiculed and laughed at, thus what is needed, is a foundational shift regarding the understanding about gender.

Sensitization is not only needed in the healthcare space but also in educational institutions to reduce the transphobia and stigma that still exists in society. Therefore, the way the NALSA decision interpreted the constitution and the Fundamental Rights for the advancement of transgender persons was not followed in the same way in legislating the Transgender Persons Act 2019.

It can thus be inferred that positive law, embedded in a pluralistic social environment is continually recreated by plural legal interpretations. As can be seen, how the Act doesn't go deeper in understanding the plight, the harassment, and the discrimination that the transgender persons face, can be correlated to Weber's theory of formal rationalization of law which implies laws being codified, impartial and impersonal by being applied regardless of the personal characteristics of those involved.

No Reservation For Transgender Persons
The Act does not provide for reservation for transgender persons. The Transgender Persons Bill, 2014 provided for 2% reservation for transgender in Government and Government-aided Schools for Primary, Secondary, and Higher Education. It further provided for 2% reservation for transgender in Government establishment.

After the pronouncement of NALSA Judgment which stated that the "Transgender Community should be treated as socially and economically backward and reservations should be provided to them under the category".

Various petitions were filed across different High Courts in the country to implement the reservation Scheme. The High Court of Madras in the case of Swapna Vs Chief Secretary (Writ Petition No 31091/2013 dated 5th July, 2016) directed the State Government to form a Scheme for reservation of transgender within six months, which is yet to be complied with.

Does Not Recognize Same-Sex-Marriages
The decriminalizing of Section 377 of the Indian Penal Code, 1860 itself has not been able to end the discrimination against homosexual couples. The need of the hour is to legally recognize the same sex as heterosexual marriages for which the Act is silent. The compelling and pragmatic reason to legalize same-sex marriages is that benefits such as maintenance, succession, and pension rights that are only available to married couples. Many of the same-sex couples desire acceptance and recognition of their relationship.

Punishment For Sexual Abuse Against Transgender Not Adequate
A report by National Coalition of Violence Group in 2012 stated that:
"Transgender" people are two times more likely to get harassed and abused in intimate relationship. The Act provides only six months minimum and maximum for two years punishment with fine. In the Indian Penal Code, 1860, the minimum punishment for assault or Criminal Force used against women with an intent to disrobe a woman is minimum for three years. To maintain minimum security keeping in consideration the history of sexual abuse and suffering against the transgender, the punishment should be increased to a minimum of three years and seven years of maximum imprisonment with fine.

The Rule of Law prescribes that law should not place undue cognitive or behavioral command on people. It should be stable and according to the demands of society. The law should be consistent and solve the contradiction legally which may arise. The law proposed for the rights of transgender ignores their needs and places undue command as it is not according to the needs and demands of the community.

Conclusion
In Indian society and in any other civilized society there is a general perception that every individual possesses some fundamental rights for social upbringing of the person. With a holistic approach an individual can flourish in a society and a duty is cast upon the state to ensure such parity among various communities of the society. The transgender community is forced to live in seclusion without dignity.

In India, people are getting representation on the basis of castes, religion and tribes but transgender persons are never looked upon as they not even considered as humans. They have been treated as if they don't exist. That is why they live a secluded life among their own kinds with least interference from the society. Since the year 1994, the Election Commission of India has given them right to vote and contest as per their self-identified gender, but this has also been a pint of contentions in many cases.

Finally, in the year 2014 (with the verdict of the NALSA Judgment), transgender persons were recognized as the "Third Sex" and the traditional binaries of male and female was finally demolished. This community was guaranteed by the Hon'ble Supreme Court of their fundamental rights and this has now taken the shape in the form of legislation being passed by the Indian Parliament.

Continued activism and struggles to claim rights led to the passage of the Transgender Persons (Protection of Rights) Act, 2019 and the institutionalization of human rights and citizenship for communities with non-binary gender identities. Though the Transgender Persons (Protection of Rights) Act, 2019 incorporates the fundamental human rights principle of non-discrimination and self-perceived gender identity, but, the Act seems to fail to portray the same sentiments as that of the decision rendered in NALSA Judgment.

The Act also nowhere encompasses or focuses on reservations in educational institutions and public employment, but only talks about all-inclusive education for transgender persons and non-discrimination in matters related to employment in any establishment. The Act fails to focus on the very primary socio-legal issues surrounding transgender persons and their rights in the country.

The Act very superficially and hypothetically deals with very sensitive issues related to transgender persons. The Act though provides for coverage of medical expenses by a Comprehensive Insurance Scheme for Sex Reassignment Surgery, Hormonal Therapy, Laser Therapy or any other health issues of transgender persons but fails to specify any mode or mechanism for the same.

The Act at many instances refer to Welfare Schemes, but there is no clarity with regard to the implementation and distribution of funds for the same. The Act fails to address the very primary and fundamental issues regarding having a gender-inclusive society guaranteeing the rights and liberties of transgender persons. The Act only seems to be a very hastily the drafted document which is based on the utopian state of affairs when it comes to transgender rights in the country.

Even after the Supreme Court and various High Court decisions, the socio-legal issues seems to be a huge impediment in the fight by transgender persons and there is still a long way to go for achieving the end-goal of having a sensitive society and legal system in place, where transgender persons need no longer have to raise their voices or suffer in anguish for the protection of their Constitutionally guaranteed basic fundamental rights.

End-Notes:

• Denunciatory Exploration Of Transgender Persons (Protection Of Rights) Act, 2019 vis-a-viz National Legal Services Authority Vs Union of India & Ors.", AIR 2014 SC 1863.

Written By:Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K And Ladakh
Email: [email protected], [email protected]