The Transgender Community: Legally Equal, But Socially Unacceptable

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Transgender individuals occupy the traffic signals and junctions largely in urban areas. Yet, invisible visibility continues to haunt them. When met with non-conforming gender identities the immediate reaction of any community is that of panic. Non-conformist sexual orientation is mocked and transgender people often find themselves at the receiving end of disproportionate ridicule from the society.

In 1884, a transgender person in the Moradabad district of northern India was arrested for cross-dressing and singing with a group of women. This case was given the name “Kharati” and was initiated by the police without a complaint. They appeared to have been monitoring the person who was suspected of being a eunuch, leading the presiding judge to laud “the desire of the authorities at Moradabad to check these disgusting practices.”[i]

Intolerance by the society towards India’s transgender people remains till this day. The nature of discrimination ranges from restrains in accessing education, procuring stable means of livelihood, access to health care, to harassments, extortion, arbitrary arrests and sexual violence. Such expulsion forces many to drop out of schools and universities, and pushes them towards begging or sex work as the only means of employment, making them likely to fall foul of the law.  Traditionally, Eunuchs have bestowed blessings of prosperity and fertility onto families and homes by making appearances at auspicious occasions. Their mystical powers are believed to come from their ability to live between the sexes. Despite gender diversity being deeply rooted in Indian mythology, we fail to accept anything deviating from the conventional spectrum. We worship Lord Shiva who was believed to have the ability to change genders on a whim and consider those with gender ambiguity as demigods in ancient scripts like Ramayana. Yet, we continue to look down upon the transgender people in our society.

Some argue that we are progressing by extolling the efforts of the government for the Transgender Persons (Protection of Rights) Bill, 2016.  The 2014 landmark judgement in the case of National Legal Services Authority vs.  Union of India[ii] granted legal recognition of a third gender leading to the introduction of the bill. The court dictated for state and centre governments to look into the health, sanitation and socio-economic rights of the transgender community as well as create public awareness. The right to choose one’s gender identity is essential to living a life of dignity also granted under Article 21 of the Indian Constitution. The Indian constitution never discriminated but the keepers of it certainly did up until now. The anti-discriminatory articles of the Bill are inclusive of education, social and economic security and health care.[iii] The articles pertaining to reserving jobs for transgender people was a crucial plank of the 2014 Bill that has now been lost in translation. The amended 2016 draft scrapped reservations and aimed at adopting equal opportunity in all spheres of life, as a panacea to create equity among the sexes.

Despite these legal sanctions, cases of violence against transgender people have not stopped. In 2017, four transgender Individuals were sent to a Bengaluru central prison on counts of abduction and attempted murder. One of the transgender women having had a breast augmentation surgery was denied medical assistance when she developed an infection in her silicone implants. Similarly, thousands of transgender people in prison are denied to continue their hormone replacement therapy due to apathy and lack of knowledge. In states such as Karnataka, once a transgender is bought into the prison, the chief medical officer checks for the genitals of the transgender based on which they are classified.[iv] This leads to bullying and physical and sexual assault of the transgender person and deprivation of medical assistance. This goes against the 2014 landmark Judgement where it was stated that the gender of a person is to be determined by the concerned person itself.

A Human Rights Watch release from 2015 talks about several illustrations of the mistreatment of transgender people by police officials [v]. A study done in 2016 by the National Institute of Epidemiology with 60,000 Transgenders as participants from across 17 Indian states found that the greatest perpetrators of violence against transgender men and women are police and other law-enforcement officials[vi]. The Transgender Person (Protection of Rights) Bill, 2016 treats sexual violence as a petty offence with a maximum punishment of two years.[vii] Moreover, to be granted the status of a transgender person, individuals have to inflict on themselves the process of getting a medical examination by a District Screening Committee comprising of a Chief Medical Officer, a psychological evaluation, approval from a social worker, and a member of the transgender community.[viii] This is in poles apart from the 2014 Bill which gives individuals the right to self-identify their sex.

All this and more suggests that the supposed paradigm shift that took place when the National Legal Security Authority judgment was passed in April 2014 has not yet translated into reality. With the recent status of the bill unknown to anyone but its architects, the rights of transgender community hang in the balance. India is moving in the right direction to tolerance and acceptance with the introduction of this bill, as there is a need to strengthen laws to protect the transgender community. But more importantly, the Indian society needs to be sensitized to not view gender dysphoria as a taboo. If the perception towards transgender men and women doesn’t change, no legal dogmas whether weak or strong can protect the transgender community.

This article was contributed by Akansha Mehrotra, Symbiosis Law School, Pune.

[i] Queen Empress v. Khairati (1884) ILR 6 All 204

[ii] National Legal Services Authority vs.  Union of India (WP (Civil) No 604 of 2013)

[iii] THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016

[iv] A Study of Attitude of Society towards Transgender in South India, Dr. B. Golden Kisha, Ph.D

[v] W ww.hrw.org/news/2015/02/22/india-transgender-rights

[vi] Technical Report Mapping and Size Estimation of Hijras and other Transgender Populations in 17 States of India – A study conducted under the aegis of NIE-ICMR, UNDP and NACO.

[vii] THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016

[viii] ibid

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