Transgenders - Third Gender
Historic background of Transgenders (TG)
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Ancient text: TG are mentioned but never in poor offensive light.
·
Medieval times: TG held important positions in royal courts.
·
British India: Discrimination starts.
Criminal Tribes Act 1871-labelled Hijras = criminal tribes, habitual offenders.
They could be arrested without warrant, jailtime upto two years.
Constitution Vs Transgender Community:
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Constitution
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Transgender Community (TG)
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Article 14
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·
Equality before the law or the equal protection of the laws
within the territory
of India.
·
But Indians laws only recognized two genders: male and female,
then provide for marriage, adoption, inheritance, succession and taxation and
welfare legislations accordingly.
·
Since TG don’t in the binary gender of male vs female. They’re
denied equal protection of law.
·
For example, TG are subjected to molestation, forced anal sex,
gang rapes and public stripping but police wouldn’t lodge FIR under IPC.
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Article 15
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·
State shall not discriminate against any citizen on grounds of
sex.
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Access to shops, public restaurants, hotels, theatres and other
public places.
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But TG are denied entry to such public places and treated as
outcasts & beggars.
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Article 16
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·
Equal opportunity for all citizens for public employment. But
given the socio-economic-educational backwardness, TG do not stand equal
chance against male and female applicants in competitive exams for entry in
government service or educational institutions. {recently, in Tamil Nadu, a
TG wrote TNPSC – TN Public Service Commission examination – probably the
first TG to write government exam in TG tag – TN always ahead in
socio-economic cases is once again proved}
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Article 19
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·
Deals with six freedoms.
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Identifying one’s gender= right to speech & expression, but
TG are denied- they’ve to pick either male or female identity.
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Society also prohibits TG the right to reside and practice any
profession throughout the country.
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Article 21
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·
Protection of life and liberty- and all the derivative rights
such as right to livelidhood, health, dignity etc. are denied to TG
community.
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Article 51
(Directive Principles of State Policy)
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State need to respect international laws and treaties.
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India has ratified both UN declaration and human rights and
International Covenant on Civil and Political Rights, 1966.
·
Both of those treaties provide equal treatment to all-
including TG.
·
But Indian government hasn’t taken steps to ensure this.
Successive Governments have also failed to
implement other Directive principles of state policies (DPSP) related to
equal justice, living wage, standard of living for TG community.
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In the backdrop of these
discriminations, NALSA had filed writ petition in Supreme Court. (2012) with
two demands:
Ø
That TG should be recognized as a separate gender. (Aadhar and a
few other documents have this provisions but by and large no option for third
gender.)
Ø
That TG should be given all the fundamental rights available to
other male and female citizens of India.
National Legal Services
Authority (NALSA) is a body established under Legal Services Authority Act. They
provide free legal services to the weaker and other marginalized sections of
the society.
SC Judgment on TG (April 2014)
Supreme Court (Justice K.S.
Radhakrishnan & Justice A.K. Sikri) granted following rights to Transgender
and ordered Union & State governments to implement them:
Ø
TG have all fundamental rights available to Indian citizens,
including free and compulsory education
Ø
TG have right to form family, adopt children and inherit
property.
Ø
Government shall provide formal identity to third gender- in
passports, licenses and ration cards.
Ø
Government shall treat them as socially and educationally
backward class, eligible for reservation in government jobs and educational
institutions.
Ø
Social welfare schemes, healthcare programs, separate HIV
surveillance Centres and public toilets.
Ø
For identification of TG- Psychological test and not the
biological test will be used.
Ø
No one can be forced to undergo sex-change surgery to fit in the
male or female gender.
Ø
Public awareness campaigns to end social stigma, fear, shame,
depression and suicidal tendencies among TG. Make TG feel they’re also part and
parcel of social life. Don’t treat them as untouchables.
Ø
Implement these within six months.
Transgender
rights: elsewhere in world
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Country
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Status
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USA
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Provides
workplace protection to LGBT Community(2013)
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Australia
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Recognized
them as “Third Gender” (2013)
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Germany
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First European country to recognize third gender.
Birth – certificate provides three categories – Male / Female / Intermediate
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South America
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Argentina, Uruguay and
some other countries have progressive laws for them
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Nepal
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Third
Gender column in passport and census forms
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Argentina
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Sex change operation is a legal right
Person can change sex in passport and other
documents even without undergoing tests
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Netherlands
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Third gender column in birth certificate etc.
Person can change sex in documents without
undergoing test / surgery
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Elsewhere
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In many countries, there is not third gender column
in official documents
In some countries, person must undergo
sterilization before their third gender identity is recognised
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Naz
Foundation Case
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NALSA
Case
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Sexual
Rights for LGBT Community
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Constitutional
and Legal Rights of Transgender Community
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Main
argument: Section 377 of IPC is unconstitutional
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Main
Argument: Transgenders are not given Fundamental Rights under Articles 14,
15, 16, 19 and 21
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Case
defeated
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Won
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Homosexuality
is still a crime under Sec 377 of IPC (Dec 2013 SC Judgment)
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Transgender
have all Fundamental Rights and Legal Rights (April 2014 SC Judgment)
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LGBT
-> Lesbian, Gay, Bisexual and Transgender
IPC
-> Indian Penal Code
NALSA
-> National Legal Services Authority
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