Transgender Disclosure

The LGBT community is not only gaining support around the world but it also has a lot of
supporters in India. Because of the NALSA judgment and all-round protest against Section
377, transgender have started feeling more societal acceptance. Because of which, they are
embracing themselves as who they are, and undergoing surgeries to transform themselves
completely into the other gender. The IPC does not govern the various situations, when
dealing with a transgender, and it has led to many problems. One of the situation will be
discussed at length in the later paragraphs.
The people who were previously hiding their real “identities” (the way they identify
themselves), are now “coming out of the closet”. I personally, am in support of this to the
greatest degree. A person has the right to identify himself of being of the opposite gender, and
of thinking that he was assigned the “wrong sex” at birth, and going to the extent of changing
his/her genitals. The Supreme Court in National Legal Services Authority v. Union of India 1
held that government cannot deprive a person his/her legal right to acquire preferred gender
through sex change operation. A bench of Justices K S Radhakrishnan and A K Sikri said that
the transgender community included persons who intended to undergo sex re-assignment
surgery or had undergone such surgery to align their biological sex with their gender identity
in order to become male/female. By this judgment, it was made clear that by undergoing
SRS, the person gets the legal status of the changed gender.
Normally, it is perceived that the LGBT community is a very minute part of the total Indian
population, but instead, they do form a substantial part. The SC’s decision in 2014, along
with medical advancement and increasing social acceptance, has led to rapid growth in the
transgender population undergoing sex change (a considerable part of the LGBT community).
A decade ago, the only option for a transgender to have their genitals changed was to spend
enormous amount of money. But now, because of the initiative taken by many states to
provide free SRS, many can opt for it. According to Dr. Kaushik of Olmec Centre in Delhi,
about 8000 successful surgeries have been done by this centre alone in the past decade.
Plastic surgeons in Delhi and Mumbai say that they are doing 20-25 such surgeries each year.
Kerela government’s initiative as well as the hospitals in Kolkata, Hyderabad, Telengana,
Delhi, and Chennai, doing SRS for free has led to a substantial growth in the transgender
going for sex change.

1
National Legal Services Authority v. Union of India, (2014) 5 SCC 438
Now, although this increase is great for a progressive outlook and freedom, it carries with it
certain harm which may be caused to the other people in their dealing with the transgender.
One situation, is the non-disclosure of transgender undergone SRS, of the fact that they were
of the opposite gender at birth, to their sexual partners, may result in trauma, and a feeling of
getting cheated.
I put forward two reasons, as to why, such disclosure is necessary. Firstly, in sexual intimacy,
the right not to associate takes precedence over the right to associate. Therefore, the person
who wants to avoid having sex with someone of the same sex or someone of the opposite sex
can for purposes of deciding on consenting to intimacy make his/her own judgment about
whether the partner “counts” as a woman or as a man, and to do that, he/she would likely
want to know what gender was assigned at birth. Secondly, no matter how much medical
advancement happens, a surgery won’t be able to replace the sexual or other organs which a
person got naturally at birth. A transwoman who was previously a man won’t be able to
reproduce, she also won’t be able to orgasm, and a transman previously a woman won’t be
able to ejaculate sperm. All of this, matters when a person is having intimate relations with
someone.
In conclusion, I would say, that transgender have a legal recognition, and there is a substantial
increase in their number in the recent few years. Thus, it is the need of the hour to make a
legislation that governs all the different situations (one of which was described above)
including whether a man who identifies himself as woman can enter the public washroom for
woman (and whether that is sexual harassment or not), and other unregulated situations when
dealing with a transgender. This should not be ignored by stating that they form an
“insubstantial” part of the population. The legislation should be a prospective one dealing
with all the probable situations revolving not only around transgender but also lesbians, gays
and bisexuals.