Adrija Guhathakurta
National Law University, Odisha
All across the globe, whenever the demand for determining the gender of an individual based on the legal framework of a country arises, a sort of moral panic ensues. In order to let the Transgenders survive as a community a condition precedent is to remove the social stigma that still remains inherent in the regime of most countries. For letting transgender communities survive, the government has to acknowledge their rights to freedom, dignity and most importantly right to privacy. The human rights movements have so far condemned many of the measures taken by governments in terms of the transgender communities across the world as most of them were revealed to be discriminatory and humiliating.
The Grim Reality:
Transgender people are subject to outright violence in various parts of the world. The indignant behaviour towards them is imbedded deep into the roots of most cultures. The Trans Murder Monitoring Project is a global project that is responsible for collecting and analysing reports of transgender homicides worldwide and the same has recorded 1,731 murders of transgender people globally between 2007 and 2014. Certain studies in Canada and Europe have projected a high rate of transgender suicides and attempts to suicide. Some countries, like that of Kuwait, Malaysia and Nigeria, consider “posing” as opposite sex to be against the law, henceforth eliminating the rights of Transgender people in totality.
In matters of maintaining dignity, the transgender community faces a lot of humiliation as the ways of gender recognition in many countries can be very harmful to maintenance of minimum self-dignity in case of the LGBT and transgender persons. For instance, in Ukraine, whoever wishes to be legally recognized must undergo a compulsory in-patient psychiatric evaluation that lasts up-to 45 days in order to confirm or reject a case of “transsexualism” and for that matter, sterilization against will followed by a number of medical tests that require a lot of time, space and travel and are basically unrelated to the diagnosis in the first place, are conducted. After that an in-person diagnosis of “transsexualism” takes place which is piloted by a government official. Even in Latin American countries and the United States, which consider themselves progressive in nature when it comes to the rights of the LGBT community, transgender people still go through humiliating procedures, such as sterilization, in order to get legally recognized.
In India, the transgender community has faced a constant discrimination based on socio-economic, socio-cultural and political conditions. Social Exclusion Framework has been used a number of times to analyse and highlight issues concerning disadvantaged and disenfranchised groups of a society following the theory developed by Emile Durkheim. Adapting this framework, one can understand how much the transgender communities—especially the transgender women—have faced trouble in decision-making and political aspects of the country. Even though our country is home to multiple religions and claims to respect all cultures and individuals irrespective of caste, creed and gender we witness that the incongruence of gender identity and expression with respect to the biological sex of an individual gets by unacknowledged. Transgender people, especially Hijras, constitute a marginalized section of the society. They face discrimination even on medical grounds, be it private or public, including access to treatment for HIV aids, antiretroviral treatment and sexual health services. Families usually abandon them and many become victims of prostitution and begging. A lot of challenges are faced by the transgender community when it comes to political representations, especially in case of contesting elections, as in many instances the victories of transgender persons in elections were overturned alleging fraud due to the stereotypical discomfort of the few elite. They have been repeatedly denied employment irrespective of whether they were well equipped with necessary skills or not. Their occupations in the country mainly constitute of collecting alms from streets or temples or providing wishes to the new-borns. Social departments have always come up with special schemes for ensuring the rights of disadvantaged sections of the society but there hasn’t been any for Hijras except for the very rare case of providing land to the Aravanis in Tamil Nadu.
All is not Dark:
In the year 2012, Argentina came out with the law for gender recognition that seems to go with the ideals of most people belonging to the LGBTQ+ community. Anyone above the age of 18 can legally recognize themselves as a part of the community without having to go through the humiliating process of prior medical or judicial approval. Children can also do the same under the supervision of their legal representatives or through summary proceedings before a judge.
Three years later four more countries: Columbia, Denmark, Ireland and Malta followed suit and came out with drastic shift towards a complete obstacle free method of gender recognition where people belonging to the LGBTQ+ community can simply file application forms in order to be recognized in the way they want to without being subjected to coerced sterilization or psychiatric evaluation.
A 22-year long legal friction initiated by Lydia led to the passing of Ireland’s 2015 Gender Recognition Bill. The government imposed an identity-based legal gender recognition system. The first document responsible for the codification of the international principles of sexual orientation, gender identity and human rights was the Yogyakarta principles. Nepal’s Supreme Court came out with the judgement in the year 2007 that specifically ordered the government to legally recognize third gender based on “self-feeling”. Activists thereafter successfully supported the government agencies in including third gender category on voter rolls (2010), the federal census (2011), citizenship documents (2013), and passports (2015). Recognition of third gender took place in Pakistan and Bangladesh when their Supreme Courts declared so to be brought into action in the years 2009 and 2013 respectively. The choice of being listed as “unspecified”, in the official documents, has been offered by New Zealand and Australia. The Dutch government is questioning whether official identification documents concern the gender of an individual at all.
Current Status of Trans Rights in India:
In 2014, in the judgment of NALSA v. UOI, Supreme Court declared that every person should have the right to recognize their gender and third gender was recognized henceforth. Along with other fundamental rights, including right to education, life, movement etc., legal recognition of an individual’s gender was also identified as pivotal. Delhi High court in its ruling in the year 2015 highlighted the indispensable link between other legal rights and gender recognition. Justice Siddharth Mridul remarked:
“Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals. A transgender person’s sense or experience of gender is integral to their core personality and sense of being. Insofar as, I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”
In order to enforce the directions, put forth by the judgement, Rajya Sabha began working on the bill that discusses the rights of the transgender community in India. A transgender bill was thereby sent to Lok Sabha in the year 2016. Since then, it has been referred to the Parliamentary Standing Committee and finally approved in 2018 followed by the approval by President in December 2019 regardless of the protests by the activists and the transgender community alike. There were a number of concerns that were raised by the NGOs and jurists alike regarding the bill of 2018 and the same amount of agitation still remains after the introduction of the 2019 bill. Some of concerns regarding the older version of the bill were:
- The definition of the term “transgender” was not in compliance with the definition put forth by the Supreme Court.
- The bill did not mention about trans-women or trans-men and gave a very harmful interpretation through the mention of the term “intersex” in a manner that is capable of invoking a stereotypical idea about transgender persons having reproductive organs of both sexes, as in being heterosexual.
- Yogyakarta Principles and NALSA judgement specified the need for privacy when it comes to “sexual orientation” but the bill never explained the same and was silent about the discrimination based on the matter of orientation.
- The bill provided for a method of gender recognition where the transgender person may make an application to the District Magistrate who, in turn, may make recommendations to the District Screening Committee which would compose of a medical officer and a psychiatrist.
All these three major concerns continue to be causes of dissatisfaction. Unlike in Argentina, Columbia, Denmark, Ireland and Malta, the issue of going through humiliating procedural requirements before being recognized as a transgender continue to haunt the community as they claim the same is violative of their right under Article 14 of the Indian constitution.
Impact of Globalization on Trans Community in India:
Developing economies like India are encountering activation of ‘third sex’ and ‘sexual character’ as legislative issues further bringing up principal issues such as citizenship, human rights, social personality and convention. With financial globalization in the creating scene, a Western domineering thought of lesbian, gay, swinger and transgender (LGBT) character has been sent out to conventional social orders along these lines obliterating indigenous sexual cultures and diversities.
Globalization is considered as the transfer of ideologies across the economic borders and transnational interaction along with international exchange. In case of sexuality issues, globalization results in a sort of oppressive attitude towards the same.
Globalization might have had effect on the terminology of “third gender” but the actual acceptance of what contradicts the ideologies bound by the traditional rules of nature comes from the deep-rooted cultural framework of a country. Regardless of what efforts have been taken by the country, having an extremely positive outlook towards the social acceptance of what was considered to be taboo seems grim. But government needs to untie itself from the boundaries of such notions and think from the perspective of what our constitution beholds. Transgender community, like any other community, deserves to be treated at an equal footing in the political and economic scenario of the country as rights of an individual are granted by the constitution and not the society and the wounded ideologies of the same should not come in contradiction with the legal and political framework of the country.
