Transgender people in India have been in the limelight ever since the Supreme Court officially granted them the "third gender" category. This decision guarantees that India will soon have transgender people studying in mainstream schools, getting college degrees, working regular jobs, and hopefully living wherever they choose to without the fear of being harassed. It is sad that it took a Supreme Court decision in recent years to bring this community and its problems to light.

This paper takes its reader on a journey to understand transgender people, from their history to their connection to our mythology, the problems they face in their day-to-day lives, and how courts, governments, organizations, and activists have been working tirelessly, day and night, to ensure their rights in society. In the past few years, various efforts have been made to ensure that this community, too, marches forward as equals in society, and so we go on to discuss the special legal rights in accordance to their human rights and the principle of Natural Justice, they have been induced with, to live as dignified citizens of the country.

Introduction:
On every happy occasion like weddings, festivals we see people dressed in saree, clapping their hands in a certain rhythmic taal, blessing the couple or the house for a long, healthy and prosperous life. Who are these people? Men, Women, Transgender, Hijra, Kinnars, Eunuchs? Are they Men, dressed up as women begging for Money? Why are they clapping? And why are they of all people called for blessings the couple or the house?

Transgender is an umbrella terms for people, whose gender identity, gender expression or behaviour does not conform to the typically associated sex to which they were assigned at birth. That is to say when one doesn't feel comfortable with the sex they are born in, and feel that they should have been a different gender. This umbrella term also includes Intersex children, born with gender deformity or ambiguous genitals, that is to say in a baby with ambiguous genitalia, the genitals may be incompletely developed or the baby may have characteristics of both sexes. The external sex organs may not match the internal sex organs or genetic sex.

The term for transgender in India is Hijra, "Kinnar" in north India and "Aravani" in South India. The 2011 Census was the first census in Indian history to incorporate the number of 'trans' population of the country. The report estimated that 4.8 million Indians identified as transgender. In Northern India, the terms Kinnar and Hijra are interchangeable and are used to describe transwomen who may or may not have undergone gender reassignment surgery (GRS).

But since Hijra/Kinnar culture is determined by the group and not by the individuals, both of those phrases imply a group identity. It is comparable to the "safe space" that Indian society established for transwomen, where they can interact only in limited ways with regular society.

Historical Reference of transgender in India:

All over in Hindu text, epics and mythology we find deities or heroes with attributes of the LGBT communities or showcasing gender variance or non-heterosexual sexuality. These sources don't speak about it directly but third gender characters are often found both in traditional religious narratives such as the Vedas, Mahabharata, Ramayana and Puranas as well as in regional folklore.

It is believed, that when Lord ram was sent for exile, the people of Ayodhya followed him, saying that they too would live with their 'prabhu' in exile in deep forests. Seeing their persistence, lord Ram stopped his cart and asked the 'Men' and 'Women' of Ayodhya to leave and not follow him if they love and respect him, saying this he left. 14 years later when he came back, who he found waiting on the same path were the ones who were neither men nor women. That's when Lord Ram gave them the 'Vardaan' that their blessings will be auspicious, and their curse destructive. This is the reason that the transgender population in India are welcomed by people into their houses, to seek the blessings of the blessed.

In the historical epic, Mahabharat it was Shikhandi, the sister of goddess Draupadi, later turned into a biological male after agreeing to sex change with a yaksha who was responsible for the death of the great and almighty Ganga Putra Bhishma Pitamah. Shikhandi was the reincarnation of Amba, a princess who along with her sisters was abducted by Bhishma at their svayambar to marry Vichitravirya the king of Hastinapur. The princess tells Bhishma that she is in love with King Salva before the wedding, and he grants her permission to approach him and ask him to accept her as his wife.

However, Salva rejects her since he believes Bhishma has always accepted her as his wife. Bhishma declines to wed her in spite of Her's and Parashurama's best attempts. After doing penance and holding Bhishma accountable for her misery, Shiva bestows a blessing to Amba and she is reborn as Shikhandhi. When lord Shikhandi comes in front of Bhishma, he let's go of his weapons and is defeated by Shikhandi.

Another mention of gender variance in Mahabharat is when, the nymph Urvashi cursed Arjuna, declaring that he would become a "kliba," or person of the third gender, when he turned down her romantic attempts. Krishna promised Arjuna that this curse would be the ideal cover for him in the final year of his banishment. And so, he spends his final year of exile as a transgender teaching dance and music to princesses.

Jain Texts also make a detailed reference to transgender which mentions the concept of 'psychological sex'. Hijras also played a prominent role in the royal courts of the Islamic world, especially in the Ottoman empires and the Mughal rule in the Medieval India. A detailed analysis of the historical background of the same finds a place in the book of Gayatri Reddy, "With Respect to Sex: Negotiating Hijra Identity in South India".

Going through these texts and stories, one can say that in India, the transgender community, with their different names in different parts of the country are treated with respect anddignity. Be it a festival or occasion, they are welcomed by people in their homes to seek their blessing. It is believed that no festival or occasion is complete without their presence and blessings.

So, on one hand we can say that transgenders in India have a respectable position in the society; but on the other one can't ignore the problems, discrimination, social stigma, poverty, harassment, anti-transgender violence faced by them, which is clearly not just as they too have the basic human right to live a dignified life.

Challenges and Inequality faced by transgender:

As, mentioned above, the 2011 Census was the first census in its history to incorporate the number of 'trans' population of the country and the report estimated that 4.8 million Indians identified as transgender. Transgenders today are met with ridicule from the society and are considered mentally ill, socially deviant and sexually predatory.

Their families push them into prostitution, forcing them into forced marriages, forced strip shows, physical and verbal abuse, and gender conformity. They receive very little basic healthcare since the medical community is indifferent to them and many of the doctors are not competent in treating transgender patients.There is also lack of legal protection as a result of which they became victims of stigma and social discrimination.

Some of the many problems faced by the transgender community include:

• Discrimination: Discrimination is the most basic and primary problem faced by this community. They face discrimination on grounds of their gender identity in any and every walk of life—from educational institutions like schools and colleges to the workplace, and sometimes even in their own homes. It is very common for students and children to face bullying, ragging, mental and physical abuse, and much more. Under the Right to Education Act, they do have 25% reservation as economically weaker sections.
  
• Transphobia and Social Stigma: Transphobia refers to a certain sort of fear against the third gender as they are considered to be "mentally sick" or "in the wrong light of God," which leads to people fearing them. It's something that is not considered normal and is often misunderstood. This social stigma against them is cruel, unfair, and most importantly, unjust.
  
• Poverty: Many of them are not supported by their families and at the same time are not accepted in various jobs and social settings, making it hard for them to financially support themselves. As a result, one often sees them on the streets or at traffic signals begging or working low-paying jobs. This specifically leads them to have very low standards of living and to go ahead with basic or almost no free government privileges meant for all.
  
• Lack of legal protection: The one thing that is guaranteed to every citizen irrespective of their social standing in society is legal help. Yet that too is something not fully guaranteed to the community. Until recent years their legal or basic human rights were not even clear. It has sobeen made clear given to various judgement, interpretation of courts and legal modifications.

There are many ways by which we could ensure that the violence, stigma against the transgender community is decreased and that they too march forward in society as equals. These could be special legislation introduced for them, legal protection guaranteed to them and most importantly via awareness. This could be done if members of the community step forward on the centre stage and share their stories, talents, arts and experiences with the world, for which efforts are being made.

Lakshmi Narayan Tripathi, is a transgender activist, who has made huge strides in the past few years in the favour of the community. In 2021, the National Transgender Award were organized and The National Transgender Awards for 2023 were recently held in the National Capital, New Delhi. In the words of Lakshmi herself, "The idea was to recognise the transgender community, especially when there was no recognition for them.

There have been many awards across the country—we have awards for women, we have awards for many other things, but nothing for transgender people. So, we decided to start the Transgenders Awards and that was the beginning."

Another example could be, Manjamma Jogathii, born on 20 May 1957, an Indian theatre actress, singer and dancer of Jogathi Nritya, a folk-dance form of North Karnataka. In 2019, she became the first transgender woman to be the president of Karnataka Janapada Academy, state's top institution for folk arts. In January 2021, the government of India, announced Padma Shri the third highest civilian award,for her contribution to the field of folk arts. This step brings upon them national limelight and ensures they too enjoy it.

There have been many other activists like Gauri Sawant, Joyita Mondal who too have raised their voice against the injustice and discrimination faced by their community, and have demanded in one way or another how they too have equal share over their rights. They have come forward appeared in front of the public, made speeches, written articles and books all to bring to light the adversities faced by their community.

The Landmark judgement:
One of the landmark judgements of the transgender rights is National legal service Authority Vs. Union of India. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the society and to organize Lok Adalat for amicable settlement of disputes. Hon'ble Dr. Justice D. Y. Chandrachud, The Chief Justice of India is the Patron-in-Chief.

NALSA in its writ petition had brought to light the adversities of the transgender community, with the complaints of the TGcommunity who demanded a formal declaration of their gender identity other than the one assigned to them at birth—male or female—and argued that failure to do so violates Articles 14 and 21 of the Indian Constitution. That group also includes Hijras/Eunuchs, who assert legal status as a third gender with full constitutional and legal protections.

Shri Raju Ramachandran one of the representors of the petitioner, emphasized the horrific experiences that the TG community has endured and argued that each member of that community has the legal right to choose their sex orientation as well as to embrace and define their identity. The senior counsel argued that transgender people are being denied many of the rights and benefits that other citizens of this nationenjoy.

Their rights are taken for granted because they are not classified as either male or female or as a third gender. TGs are even denied the opportunity to participate in social and cultural activities, which limits their access to public spaces, healthcare, and education. This deprives them of the constitutional promise of equality before the law.

The Petitioners argued that our society neither realizes nor cares to realize the trauma, agony and pain which the members of Transgender community undergo, or acknowledge the loneliness feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. The society often ridicules and abuses the Transgender community 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 needs to be changed.

They brought to light the issues and demands of the TG community:

• Embody the principle of non-discrimination, equality on basis of sexual orientations.
• To repeal criminal and legal provisions that prohibit consensual relationship between people of the same sex.
• Take appropriate action, including programmes of education and training, with a view to achieving the elimination of prejudicial or discriminatory attitudes.
• To ensure everyone has the right to life. No one shall be arbitrarily deprived of life, including by reference to considerations of sexual orientation or gender identity.

Hearing these petitions and arguments by several learned council the court said that "Recognition of transgenders as a third gender is not a social or medical issue, but a human rights issue," Justice K.S. Radhakrishnan said in the historic decision of the Supreme Court thus acknowledging the TG community as the "Third Gender." TGs face many disadvantages due to various reasons, particularly for gender abnormality which in certain level needs to physical and mental disability.

Up till recently they were subjected to cruelty, pity or charity and therefore with this decision the court sought to bring a shift in thinking from the aforesaid approach to a rights-based approach. There appears to be limited public knowledge and understanding of same-sex sexual orientation as a result such persons are socially excluded from the mainstream of the society and they are denied equal access to those fundamental rights and freedoms that the other people enjoy freely.

The court reasoned by stating the firm opinion that by recognizing TGs as third gender, they would be able to enjoy their human rights, to which they are largely deprived of for want of this recognition. After this also came the introduction of transgender rights bill. There have been various recommendations by the "study on human rights of transgender as the third gender" under the National Human Rights Commission these include access to gender segregated spaces, ICT based campaigns and awareness programmes,need for national policy on transgender and much more.

One of the major principles of this study was "to examine the prevalent practises towards transgender in foreign country and also study the UN Yogyakarta principles of International Human Right Laws in relation to sexual orientation and gender identity".

Conclusion:
Today, our country is becoming more and more aware about the third gender, and understands how they too have basic human rights, thus acknowledging their recognition. This can be seen through the Delhi Queer Pride organized by the queer community, in the pride month of June. They use social media platform to spread their message wide and create awareness,so as to eradicate the social stigma attached to the transgender community and stop, the discrimination and biasedness they face from day to day.

It's important that people understand that the Hijras are expected to not just perform dances, songs, and give blessings at births or weddings, but are the third gender that too deserves equal recognition and respect, to live their lives according to their own accord with dignity.

References:

• https://www.vyasaonline.com/encyclopedia/amba/
• https://www.livelaw.in/top-stories/transgender-persons-in-heterosexual-relationships-have-right-to-marry-under-existing-laws-supreme-court-240366
• South Asian TransLAW Database citation: AIR 2014 SC 1863
• https://nalsa.gov.in/
• https://swachhindia.ndtv.com/transgender-rights-activist-laxmi-narayan-tripathi-on-the-need-for-building-a-platform-for-trans-community-holding-national-transgender-awards-73736/
• https://nhrc.nic.in/sites/default/files/Study_HR_transgender_03082018.pdf

Written By: Shivam Jasrotia