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Transgender Persons (Protection of Rights) Act, 2019

The research paper throws light on the issue pertaining to Transgender Persons (Protection of Rights) Act, 2019 and deals with the legal Perspective of its flexibility in India. The Transgender Persons (Protection of Rights) Act, 2019 has an objective that is discussed later on, in this research paper.

Every human being is entitled to basic rights like education, employment, healthcare, and most importantly, self-identification. However, the transgender community in India is been denied these rights with the passage of the Transgender Persons' (Protection of Rights) Bill 2019 on November 25. Authors have tried to discover a pragmatic approach to the Transgender Persons (Protection of Rights) Act, 2019. The study is based on secondary sourced data which includes books, magazines, journals and articles. These have been explored for the study.

The word Transgender is associated with the third gender, i.e. other than male or female. People who do not conform to their birth sex, i.e. to say they do not match that their gender expressions and their expressions don't match with their biological sex.

There are many different kinds of transgenders in India from times immemorial. Hijras are not men by virtue of physical appearance and psychologically. They are also not women, though they are like women with no female reproductive organ and do not go through menstruation.

Eunuch refers to an emasculated male and the inter-sex of a person whose genitals are ambiguously male-like at birth. Aravanis are biological males who self-identify themselves as a woman trapped in a male's body. Kothis can be described as biological males who show varying degrees of femininity which may be situational. Jogti Hijras is used to denote those males who are turn into female and are devotees and servants of goddess Renuka devi.

Historical Evolution

Criminalization under the Colonial Rule

Since the time immemorial, Hijra communities were considered a separate caste by the colonial administration. The Criminal tribes Act, 1871 included all Hijra who were associated with any crime such as kidnapping and castrating children and dressed like women to dance in public places. The punishment awarded was two years or more or fine or both.

Criminalization and Marginalization during Post-Independence Era

However the Act was repealed in 1952 and its legacy continues and many local laws still reflect the prejudicial attitudes against certain tribes, including against Hijras. Recently, the Karnataka Police Act was amended in 2012 to “provide for registration and surveillance of Hijras who indulged in kidnapping of children, unnatural offenses and offenses of this nature” (Section 36A), in a similar vein to the Criminal Tribes Act,1871, According to Section 36A, Karnataka Police Act, 1964, Power to regulate eunuchs.

Preparation and preservation of a register of the names and places of residence of all eunuchs residing in the area under his charge and who are reasonably suspected of kidnapping or emasculating boys or of committing unnatural offenses or any other offenses or abetting the commission of such offenses.

Piling objections by aggrieved eunuchs to the inclusion of his name in the register and for removal of his name from the register of reasons to be recorded in writing.
In the colonial period, the British removed the section 377 of the IPC,1861.

Constitutional Perspective

As we have seen and observed, transgender has been through various discrimination in school, colleges, and the employment sector. This gender calls themselves with the pronoun IT' and not he or she. No methods for eradication against the atrocities of the transgender community either the judicial or the legislative body of the country have been made. But basic provisions such as Article 14 where the state cannot deny to any person before the law.

There should be equal treatment of all genders. Further Article 15 and 16 guarantees no discrimination on the basis of caste genders' race and religion. These articles prohibit all types of gender-related discrimination. Article 19(1)(a) of the constitution provides the right to speech and expression. Even after having constitutional rights, transgender face difficulties in the work environment. That is not provided with jobs and even if they hold jobs, they are teased and mentally harassed.

Timeline: How The Transgender Community Was Recognised

In 2009, the Delhi High Court decision in Naz Foundation v. Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex was in the violation of fundamental rights provided by the Indian Constitution.

On 23 February 2012, the Ministry of Home Affairs raised its opposition to the decriminalization of homosexual activity homosexuality is seen as being immoral. The Central Government reversed its stance on 28 February 2012, asserting that there was no legal error in decriminalizing homosexual activity.

On 28 January 2014, the Supreme Court of India dismissed the review petition filed by the Central Government, the Naz Foundation and several others against its 11 December verdict on Section 377.

On 18 December 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced a bill for the repeal of Section 377, but it was rejected in the House by a vote of 71-24. On 2 February 2016, the Supreme Court decided to change the criminalization of homosexual activity.

In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution. The Court also ruled that a person's sexual orientation is a privacy issue, giving hopes to LGBT activists that the Court would soon strike down Section 377.

In January 2018, the Supreme Court agreed to refer the question of Section 377's validity to a large bench and heard several petitions on 1 May 2018. In response to the court's request for its position on the petitions, the Government announced that it would not oppose the petitions, and would leave the case "to the wisdom of the court". A hearing began on 10 July 2018, with a verdict expected before October 2018. Activists view the case as the most significant and "greatest breakthrough for gay rights since the country's independence".

On 6 September 2018, the Supreme Court issued its verdict. The Court unanimously ruled that Section 377 is unconstitutional as it infringed on the fundamental rights of autonomy, intimacy, and identity, thus legalizing homosexuality in India. The Court explicitly overturned its 2013 judgment.

Introduction Of Various Bills For The Rights Of Transgenders

The Rights of Transgender Persons Bill, 2014 - This bill was formed to end the discrimination faced by transgender people in India. It was passed by the Rajya Sabha on 24th April 2015. It includes 10 chapters including rights and entitlement, social security and health.

The rights of transgender persons bill, 2014 was again drafted in 2016. The Lok Sabha has passed the Transgender Persons (Protection of Rights) Bill, 2016, which seeks to empower the transgender community in the country.

It is important to adopt an objective criterion to determine one's gender in order to become eligible for entitlements.

The Transgender Persons (Protection of Rights) Bill, 2016, after the 2014 bill was passed by the parliament. Some transgender activists have opposed the bill because it does not address issues such as marriage, adoption, and divorce for transgender people. The bill passed the Lok Sabha on 17 December 2018 with 27 amendments, including a controversial clause prohibiting transgender people from begging.

Highlights of the bill:
The Bill defines a transgender person as one who is partly female or male; or a combination of female and male; or neither female nor male. In addition, the person's gender must not match the gender assigned at birth and includes trans-men, trans-women, persons with intersex variations and gender-queers.

A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and invoke rights under the Bill.

Such a certificate would be by the District Magistrate on the recommendation of a Screening Committee. The committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.

The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare. It directs the central and state governments to provide welfare schemes in these areas.

Offenses such as compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to 2 years' imprisonment and a fine.
Transgender Persons (Protection of Rights) Bill, 2018 - The Bill was passed by the Lok Sabha (Lower House of Indian Parliament) on 17 December 2018. The next step in order for the Bill to progress is for the Rajya Sabha (Upper House of Indian Parliament) to pass it.

The 2018 Bill, if adopted, would effectively deny to most transgender people their right to self-identification, by providing an overly complex bureaucratic procedure requiring an individual's application for a transgender certificate to be approved by two different sets of authorities, despite earlier widespread condemnation of this process by the transgender community.

“As the ICJ reported in 2017, the transgender community is continually harassed, stigmatized, and abused by the police, judges, their family, and society. This bill, if it becomes law would further serve to facilitate and compound human rights violations against people from a marginalized community”, said Ian Seiderman, Legal and Policy Director at the ICJ.

The Bill has also introduced mandatory sex reassignment surgery for those transgender people who seek to identify their gender within the binary (male/female) framework. This requirement would be in contravention of the Supreme Court's judgment in NALSA v. UOI, which guarantees the right to self-identification without the need for medical intervention.
Further, the Bill would collapse all offenses against transgender people into one provision which includes offenses ranging from “sexual abuse” and “physical abuse”, to “compelling or enticing a transgender person to indulge in the act of begging” among others. These crimes have not been defined in the Bill.

It also would provide for the same six-month to two-year sentence for all offenses against transgender people. In some cases, this could be a significantly lighter sentence than when the same crime is committed against others, including discriminated groups such as cis-gendered women, under the general criminal law. In addition, the identification of “beggary” as an offense under the Bill is problematic since for many transgender people in the country, it remains one of the limited livelihood opportunities.

Further, the Bill does not address the question of reservations in employment and education despite specific directions by the Supreme Court in NALSA v. UOI.

Lastly, while the proposed law guarantees the right to non-discrimination to transgender people against persons, state and private sector bodies, it does not provide a definition of discrimination, nor does it provide an enforcement mechanism for ensuring transgender people's right to non-discrimination.

Transgender Community And Higher Educational Institutions

On 29th October 2014, the University Grant Commission (UGC) issued a circular to all the Vice-Chancellors of the Universities requesting them to include a column for Transgender Community in all application forms. The circular also includes the directions related to the affirmative's actions taken by the Universities to ensure that the Transgender students get acclimatized without facing humiliation, fear, and the new issues and their solutions. In Delhi University we have seen many trans professors who are educated and earning well. They prefer to call them their names and instead of he or she addresses them as IT.

Case Laws:
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. is a landmark judgment of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India. The nine-judge bench unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

National Legal Services Authority v Union of India - The judgment of the Supreme Court of India delivered in the case of National Legal Services Authority v. Union of India on 15th April 2014 by a Division Bench comprising Justices K. S. Radhakrishnan and Dr. A. K. Sikri is a historic decision that will be a milestone in the area of gender justice in the country and will have a long term impact in the coming times. Though it was the duty of the Parliament to make a law on the third gender and provide the necessary legal recognition, it is actually carried out by the Supreme Court in this judgment.

It is well-known that the Constitution of India, supreme law of the land, provides fundamental rights to the people of the country irrespective of their caste, class, and race, color or gender in Part III against the State which is defined under Article 12 of the Constitution. In essence, the Constitution is sex blind'. It does not allow lawmakers to discriminate on the basis of sex. Like the other people that are the ordinary male and female, transgenders are also entitled to get the protection of fundamental rights such as equality before the law, and other rights as they constitute the core of people of India.

It is submitted that by recognizing the transgender community as a third gender entitled to the same rights and constitutional protections as all other citizens i.e. male and female, the Supreme Court of India has put in place a sound basis to end discrimination based on gender, especially gender as presumed to be assigned to individuals at birth. Further, beyond prohibiting discrimination and harassment, the Court has extended global principles of dignity, freedom, and autonomy to this unfairly marginalized and vulnerable community and has met the norms of the Universal Declaration of Human Rights.

The judgment lays down a comprehensive framework that takes into its fold not merely the negative right against discrimination, but also “the positive right to make decisions about their lives, to express themselves and to choose which activities to take part in.”

 It is not their birth duty to earn by begging or singing and dancing on roads. They are equally entitled to be part of the public services and other jobs. In particular, the direction of the court that they should be treated as socially and educationally backward' and given reservation in education and employment, is a far-reaching contribution to their all-round development.

Navtej Johar v Union of India:

The recent landmark decision of the Supreme Court in Navtej Singh Johar v. Union of India, where a bench of five judges of the Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC), which made “carnal intercourse against the order of nature” a criminal offense.

Section 377 of the IPC bears the heading “unnatural offenses” and it penalizes carnal intercourse which is against the order of “nature”. Relying on scholars like Zaid Al Baset and Shamnad Basheer, Justice Chandrachud wrote that there are shortcomings in the conceptual categories of “natural” and “unnatural”, that the idea of the “natural” was manufactured by a majoritarian suppression of the history of the prevalence of sexual minorities, that merely because something is natural does not mean that it is desirable (e.g., death), and just because something is unnatural (e.g., a heart transplant) doesn't mean that it ought to be criminal.

In Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, the Supreme Court had previously upheld Section 377 of the IPC because only “a minuscule fraction of the country's population”, according to the court, belonged to the LGBTQI community. This argument was rejected by the court in Johar. The number of people asserting a fundamental right, said Chief Justice Misra, is “meaningless; like zero on the left side of any number.

Transgenders are people whose personal identity and gender don't correspond with their birth sex. They identify themselves as trapped in a different body, they belong to a different gender. For instance, a male doesn't identify himself as a male which is his birth sex but identifies himself as a female and his not comfortable with their own body.

There are no particular definitions as to why some people are transgender some belief it is due to biological factors and others believe due to experiences in childhood or adulthood may all contribute to it. In the year 2018, the World Health Organization (WHO) declared that being transgender is not a mental disorder.

We confuse ourselves between gays, lesbians, and transgender, the difference lies in sexual orientation and gender identification. Gays and lesbians are people attracted to the same sex. Whereas the transgenders are not sure about their identity. They are people who live as a member of a gender other than the expected based on sex or gender assigned at birth.

In developing countries like India, the scenario of accepting transgender as another gender has changed. Transgenders are getting employments, work, money, and foremost acceptance by the people but there is still a lot to change. Nonetheless, many transgenders face problems in tolerance and acceptance majorly from their families. Families are not ready to accept them because of which they have to leave their homes and live in a different society. Families are concerned “log kya kahenge?” what will people say.

Due to this pressure families boycott their child. It is not only prevalent in rural areas but also in urban areas. In India transgender are considered taboo. Many companies, firms, etc are not ready to employ them because of their gender as a reason they are financially unstable and moreover the government levy heavy taxes on them which are difficult for them to pay.

Transphobic violence (violence against transgenders) is one of the major issues due to which transgender are not able to get their status. We hear and read in newspapers daily about the discrimination they face, how they are treated.

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