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A Project Report on

Rights of Third Gender in India:


A Study in City Ludhiana

Submitted by: Submitted To:


1) Angad Singh Khosla(28) Dr. Aman Cheema
2) Ankit Kumar (59) &
3) AnantJot Singh(61) Dr. Ashish Virk
4) Deepak Singh Goyat(49)
5) GaganDeep Chawla(07)
6) Nirbhay Pratap Singh(16)
7) Ramandeep Singh (67)
8) Sahil Dhingra(33)
9) Vaarij Bahel(54)
10) Vaibhav Garg(55)
11) VeerDavinder Singh(36)
12) Vipul Bhardwaj(37)
13)
RIGHTS OF THIRD GENDER IN INDIA:
A STUDY IN CITY LUDHIANA

INDEX
Serial No. Title Page No.
1 Introduction
2
RIGHTS OF THIRD GENDER IN INDIA:
A STUDY IN CITY LUDHIANA
There's a gender in your brain and a gender in your body. For 99 percent of
people, those things are in alignment. For transgender people, they're mismatched.
That's all it is. It's not complicated, it's not a neurosis. It's a mix-up. It's a birth defect,
like a cleft palate. “Chaz Bono”

Introduction
Every human being has a gender identity—a deeply felt sense of being male,
female, or something other or in-between. The term ‘trans’ includes all the people
whose internal sense of their gender (their gender identity) is different from the sex
they were assigned at birth. Recognising and accepting someone for who they are
upholds their dignity as a person. Someone born female who identifies as male is a
trans man. He might also use the term ‘Female to Male’ or ‘F2M’, or simply ‘male’
to describe his identity. A trans woman is someone born male who identifies as fe-
male. She might describe herself as Male to Female, M2F or female. There are many
other trans identities, including those that describe a third gender, being both male
and female, or identifying as gender non-conforming or gender variant like Inter
Sex, Queer. The opposite term to transgender is ‘Cis-gender’. It refers to someone
whose biological sex matches their gender identity. Every person has their own sense
of gender expression, how they express their masculinity and/or femininity exter-
nally.Transgender human beings revel in their transgender identification in a diffu-
sion of ways and can turn out to be privy to their transgender identification at any
age. Some can trace their transgender identities and emotions returned to their earli-
est reminiscences. They will have indistinct emotions of “no longer becoming in”
with humans in their assigned sex or specific needs to be something apart from their
assigned intercourse. Others become privy to their transgender identities or begin to
explore and revel in gender-non conforming attitudes and behaviours during youth
or tons later in life. A few include their transgender emotions, at the same time as
others struggle with emotions of shame or confusion. Folks who transition later in
existence may have struggled to healthy in competently as their assigned sex most
effective to later face dissatisfaction with their lives. Some transgender humans,
transsexuals, specifically, experience extreme dissatisfaction with their sex assigned
at birth, bodily sex characteristics, or the gender position associated with that sex.
These people often are trying to find gender-maintaining remedies.Trans people are
particularly vulnerable to discrimination when their gender expression combines el-
ements of both masculine and feminine gender expression.
Medical Lexicon The following definitions help in understanding the various gen-
der‑ related terminologies:1 2 3
• Assigned gender – refers to a person’s initial assignment as male or female at birth.
It is based on the child’s genitalia and other visible physical sex characteristics
• Agendered – “without gender,” individuals identifying as having no gender iden-
tity
• Cisgender – describes individuals whose gender identity or expression aligns with
the sex assigned to them at birth
• Closeted – describes an LGBTQ person who has not disclosed their sexual orien-
tation or gender identity
• Coming out – The process in which a person first acknowledges, accepts, and
appreciates his or her sexual orientation or gender identity and begins to share that
with others
• Gender – denotes the public (and usually legally recognised) lived role as boy or
girl, man, or woman. Biological factors combined with social and psychological
factors contribute to gender development
• Gender‑ atypical – refers to physical features or behaviours that are not typical of
individuals Gender expression – the manner in which a person communicates
about gender to others through external means such as clothing, appearance, or
mannerisms. This communication may be conscious or subconscious and may or
may not reflect their gender identity or sexual orientation.
• Gender‑ nonconforming – refers to behaviours that are not typical of individuals
with the same assigned gender in a given society

1
American Psychiatric Association. Diagnostic and Statistical Manual of Mental Disorders: DSM‑ 5. Ar-
lington, VA: American Psychiatric Publishing; 2013.
2
https://www.pflag.org/glossary.
3
https://www.hrc.org/resources/glossary‑ of‑ terms.
• Gender reassignment ‑ denotes an official (and usually legal) change of gender .
• Gender identity – is a category of social identity and refers to an individual’s iden-
tification as male, female or, occasionally, some category other than male or fe-
male. It is one’s deeply held core sense of being male, female, some of both or
neither and does not always correspond to biological sex .
• Gender dysphoria – as a general descriptive term refers to an individual’s discon-
tent with the assigned gender. It is more specifically defined when used as a diag-
nosis.
• Gender expansiveness – conveys a wider, more flexible range of gender identity
and/or expression than typically associated with the binary gender system .
• Gender fluidity – a person who does not identify with a single fixed gender, of or
relating to a person having or expressing a fluid or unfixed gender identity .
• Gender queer – gender queer people typically reject notions of static categories of
gender and embrace a fluidity of gender identity and often, though not always,
sexual orientation. People who identify as “gender queer” may see themselves as
being both male and female, neither male nor female or as falling completely out-
side these categories.
• Transgender – refers to the broad spectrum of individuals who transiently or per-
sistently identify with a gender different from their gender at birth.(Note: The term
transgendered is not generally used).
• Transsexual – refers to an individual who seeks, or has undergone, a social transi-
tion from male-to-female or female to male. In many, but not all, cases this also
involves a physical transition through cross‑ sex hormone treatment and genital
surgery (sex reassignment surgery).
• Transphobia ‑ fear and hatred of, or discomfort with, transgender people.
Transgender community in India includes Hijras, Eunuchs, Kothis, Aravanis,
Jogappas, Shiv‑ Shakthis etc., who have been a part of Indian society for centuries.
The Vedic and Puranic literatures mention eunuchs as “tritiyaprakriti” meaning the
third gender and “napunsaka” meaning someone with the loss of procreative ability.
The Hindu god Shiva is often represented as Ardhanarisivara, with a deal nature of
male & female. The word Hijra used in the Indian language appears to be derived
from the Persian word hiz, i.e., someone who is effeminate and/or ineffective or
incompetent. Another commonly used word is kinnar, whereas chhakka is used in a
derogatory context. The word “eunuch” is derived from the Greek word “Euneu-
khos” which literally means bed chamber attendant.” The terms third gender and
third sex describe individuals who are categorised as neither man or woman but as
third gender or we can say that A-gender i.e.without gender. Though most of the
eunuchs seen today are begging at traffic signals or during weddings, they were a
respected lot during ancient and medieval period in India. The Members of
3rdgender have played a prominent role in Indian culture and were treated with great
respect. They find mention in the ancient Hindu scriptures and were written about in
greatest epics of Ramayana & Mahabharata. In the Mahabharata, the Pandavas used
Shikhandi, a eunuch, to defeat Bhishma Pitamah in the battle of Kurukshetra. When
lord Ram was leaving for his 14 years exile, he asked all men and women who had
come to mourn his separation from homeland to return to the city. Amongst then
was a group of eunuchs who decided to stay as they did not fell bound by direction.
Impressed by their devotion Ram sanctioned them powers to bless people an auspi-
cious occasions. This tradition continues even in modern India today. In medieval
India too, during Mughal empire in 16th&17th century, eunuch were considered
close confidents of emperors often being employed as royal servants & body
guards.4Hence, they were put in charge of harems due to their emasculation.

Their fall from grace started in the 18th century during the British Colonial
rule.During the British rule, they were denied civil rights and were considered a sep-
arate caste or tribe who did kidnapping and castration of children and danced and
dressed‑ like women.finding them obscene and offensive; they passed a law, crimi-
nal tribes Act 1871, classifying entire transgender community as criminals. An act
for the Registration of Criminal Tribes and Eunuchs. Under this law, the local gov-
ernment was required to keep a register of the names and residences of all eunuchs
who were "reasonably suspected of kidnapping or castrating children or committing
offences under Section 377 of the Indian Penal Code". Any eunuch so registered
could be arrested without warrant and punished with imprisonment of up to two
years or with a fine or both. The law also decreed eunuchs as incapable of acting as
a guardian, making a gift, drawing up a will or adopting a son.
After Independence, the law was repealed in 1949, but mistrust of the
transgender community continued. Even today they remain socially excluded dis-
owned by their families in their childhood living on fringes of society in ghettoised

4
http://blog.ipleaders.in/the-third-gender-and-the-indian-law-a-brief-history/
communities5and harassed by public.6Transgenders face extreme discrimination in
all spheres of society in field of education, healthcare, employment. Therefore they
make a living by singing and dancing at wedding onto celebrate childbirth and often
resort to obscene postures and some moved to begging & prostitution. Transgender
face discrimination in public spaces like restaurants ,cinemas, shops.etc. They are
deprived to the liberty of opening bank accounts. Doctors refuse’s to treat them and
landlords do not give them house on rent. Further access to public toilets are also a
serious problem they face quite often. Since there are no separate toilet facilities for
transgender persons ,they have to use male toilets where they are prone to sexual
assault & harassment. Their pain and agony is not generally noticed and this demand
is just a reminder of how helpless and neglected this section of society is. Thousands
of welfare schemes have been launched by the govern-
ment but these are only for men and women and third sex do not figure anywhere
and this demand only showed mirror to society. The constitution gives right on the
basis of Citizenship but the gross discrimination on the part of our legislature is ev-
ident for transgenders. The constitution, while it contains certain prohibited grounds
of discrimination such as race, caste, creed, sex, etc., does not specifically include
sexual orientation.
Indian census has never recognised the third gender, i.e., transgender while
collecting census data for years. However, in the Census of 2011, data of transgender
were collected in the category of “Others” under Gender with details related to their
employment, literacy, and caste. The census revealed the total population of
transgender to be around 4.88 lakh.7 While in 2014, based on the Census, five million
acknowledged their transgender status, activists say their number could be much
higher. Over 66% of them live in the rural areas. The Census data also highlighted
the low literacy level in the community, just 46% in comparison to the general pop-
ulation’s 74%. The data have been primarily linked to the males section as they are
usually counted as men, but on request, they may be counted as women. Due to this,
it is impossible to comment on the actual transgender population, though the census

5
https://www.thehindu.com/opinion/op-ed/a-glimmer-of-hope/article22277322.ece
6
Sonajoba, Human rights principles,Practices and Abuses,(New Delhi:Osmons Publica-
tions,1994)
7
https://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-
2016/article21226710.ece
has provided an approximate estimate. The 2011 census also reported 55,000 chil-
dren as transgender identified by their parents.8 Some eunuchs are born with intersex
disorders of sexual differentiation and are handed over to the community leaders by
their parents.9Other Male to female transsexuals choose to join the community of
their own free will, and undergo crude, yet radical, gender reassignment surgery. Yet
others are coerced into doing so because of a multitude of factors. A case report of
two eunuchs, from north India reports: “Young boys were allegedly kidnapped and
kept under illegal custody for months together. After demoralisation had set in due
to prolonged confinement, surgery was done on their private parts and female hor-
mones were given to the persons. The converted person were made to wear female
garments and performed in groups as a female dancers and earned money while in
captivity.”10
Has their voice being heard? Why intersex people fed as they
do? Whether transgender who are male or female have a right to be identified
as third gender. Whether a person has a right to get himself to be recognised as a
female as per choice after having under gone surgery?Have we tried to find a way
to achieve a legal & social solution? This raises more questions than it answers.
Recognition of transgender is not about gender identity, not about sexual identity it
is about human identity.

8
http://www.census2011.co.in/transgender. php.
9
Bastia BK. Socio-cultural aspect of sexual practices and sexual offences – An Indian scenario. J Clin
Forensic Med. 2006;13:208–10.
10
Dalal JS, Gorea RK, Rai H, Chanana A, Kaur P, Rai G, et al. Conversion to Hijrah (Eunuch): Is it need
based or a crime. JIAFM. 2004;26:153–6.
International Perspective
“Know your identity as you would know your heart. In that you would know
your place in your family, in your government, in your island and in the world.”

Around the world, there have always been people whose gender identity and
expression differ from the cultural expectations associated with the sex they were
assigned at birth. Some people born in male bodies lived as women, some born in
female bodies lived as men, and others identified as a ‘third gender’. Culture and
religion can be key parts of a trans person’s identity. In parts of Asia and the Pacific,
there are traditional terms for trans women, including those who identify as a third
gender.
The third gender are called by various names as follows:
Latin America – travesti in Central and South America, and the indigenous terms
muxe in Mexico and omeggid in Panama
Africa – meme (for trans women in Namibia) and kuchu (for trans, lesbian, gay and
bisexual people in Uganda)
Asia – kathoey, poo ying kham phet, and sao phra phet song (Thailand); abang and
mak nyah (Malaysia); bin-sing-jan and kwaa-sing-bit (Hong Kong); transpinay (the
Philippines); waria (Indonesia); hijra and aravani (India); and meti (Nepal)11
Pacific– vakasalewalewa (Fiji), palopa (Papua New Guinea), fa’afafi ne (Samoa,
America Samoa and Tokelau) fakaleiti or leiti (the Kingdom of Tonga), akava’ine
(Cook Islands), and fakafi fi ne (Niue island)12

11
Balzer, C. and Hutta, J. (2012) ‘Transrespect versus transphobia worldwide: A comparative review of the
human-rights situation of gender-variant/trans people’, TvT Publication Series, Vol. 6, p. 80, accessed 14
October 2013 at: www.transrespect-transphobia.org/uploads/downloads/Publications/TvT_research-re-
port.pdf
12
Pacific Sexual Diversity Network’s website: http://psdnetwork.org/
Trans men in Thailand and Indonesia today typically use the terms tomboy/toms,
while in the Philippines, these terms are interchangeable with the word transpinoy.
In Malaysia, pak nyah is used to describe trans men and pengkid refers to tomboys.
Indigenous terms used today in the Pacific for trans men include fa’afatama in Sa-
moa and tangata ira tane in New Zealand.
There are no definitive statistics on the number of trans people around the world.
Estimates in Western countries are typically based on numbers of people who access
public gender clinics and therefore exclude those who do not medically transition,
or who use private or overseas clinics. International literature suggests that as prej-
udice towards trans people decreases, their visibility increases.13 A recent US study
estimated that 0.3 percent of the US adult population may be trans.14 A study in the
Netherlands found that 0.6 percent of those born male and 0.2 percent of those born
female wished to alter their body through hormones or surgery to match their gender
identity.15 A study of the Asia Pacific region suggested that there are over 9 million
trans people in the region.16

UNITED NATIONS AND OTHER INTERNATIONAL HUMAN RIGHTS


BODIES:

United Nations has been instrumental in advocating the protection and promotion of
rights of sexual minorities, including transgender persons. Article 6 of the Universal
Declaration of Human Rights, 1948 and Article 16 of the International Covenant on
Civil and Political Rights, 1966 (ICCPR) recognise that every human being has the
inherent right to live and this right shall be protected by law and that no one shall be
arbitrarily denied of that right. Everyone shall have a right to recognition, every-
where as a person before the law. Article 17 of the ICCPR states that no one shall be

13
Collins, E. and Sheehan, B. (2004) Access to Health Services for Transsexual People. Dublin: The Equal-
ity Authority
14
Gates, G. (2011) How Many People are LGBT? Los Angeles: UCLA School of Law, Williams Institute
15
Kuyer, L. and Wijsen, C. (2013) ‘Gender identities and gender dysphoria in the Netherlands’ in Archives
of Sexual Behaviour, July 2013
16
Winter, S. (2012) Lost in Transition: Transgender People, Rights and HIV Vulnerability in the Asia-
Pacific Region, p. 9. Thailand: UNDP Asia-Pacific Regional Centre
subjected to arbitrary or unlawful interference with his privacy, family, home or cor-
respondence, nor to unlawful attacks on his honour and reputation and that everyone
has the right to protection of law against such interference or attacks.

YOGYAKARTA PRINCIPLE
The International Commission of Jurists and the International Service for
Human Rights, on behalf of a coalition of human rights organisations, have under-
taken a project to develop a set of international legal principles on the application of
international law to human rights violations based on sexual orientation and gender
identity to bring greater clarity and coherence to State’s human rights obligations. A
distinguished group of human rights experts has drafted, developed, discussed and
refined these Principles. Following an expert’s meeting held at Gadjah Mada Uni-
versity in Yogyakarta, Indonesia from 6 to 9 November 2006, 29 distinguished ex-
perts from 25 countries with diverse backgrounds and expertise relevant to issues of
human rights law unanimously adopted the Yogyakarta Principles on the Applica-
tion of International Human Rights Law in relation to Sexual Orientation and Gender
Identity.

The finalised Yogyakarta Principles was launched as a global charter on 26


March 2007 at the United Nations Human Rights Council in Geneva.1718The con-
cluding document "contains 29 principles adopted unanimously by the experts, along
with recommendations to governments, regional intergovernmental institutions,
civil society, and the UN itself".The Yogyakarta Principles is a document about hu-
man rights in the areas of sexual orientation and gender identity, published as the
outcome of an international meeting of human rights groups in Yogyakarta, Indone-
sia, in November 2006. The Principles were supplemented in 2017, expanding to
include new grounds of gender expression and sex characteristics, and a number of
new principles.

17
https://yogyakartaprinciples.org/
18
"Yogyakarta Principles plus 10". Archived from the original on 2017-12-01.
The Principles and the supplement contains a set of precepts intended to
apply the standards of international human rights law to address the abuse of human
rights of lesbian, gay, bisexual, transgender (LGBT) and intersex people.The Yog-
yakarta Principles address a broad range of human rights standards and their appli-
cation to issues of sexual orientation and gender identity. The Principles affirm the
primary obligation of States to implement human rights. Each Principle is accompa-
nied by detailed recommendations to States. The experts also emphasise, though,
that all actors have responsibilities to promote and protect human rights. Additional
recommendations are addressed to other actors, including the UN human rights sys-
tem, national human rights institutions, the media, non-governmental organisations,
and funders.

Yogyakarta Principles19 are as follows :

Rights to Universal Enjoyment of Human Rights, Non-Discrimination and


Recognition before the Law: Principles 1 to 3 set out the principles of the uni-
versality of human rights and their application to all persons without discrimi-
nation, as well as the right of all people to recognition as a person before the
law without sex reassignment surgery or sterilisation.


Example:
◦ Laws criminalising homosexuality violate the international right to
non-discrimination (decision of the UN Human Rights Committee).
Rights to Human and Personal Security: Principles 4 to 11 address fundamental
rights to life, freedom from violence and torture, privacy, access to justice and
freedom from arbitrary detention, and human trafficking.
◦ Examples:
▪ The death penalty continues to be applied for consensual adult
sexual activity between persons of the same sex, despite UN res-
olutions emphasising that the death penalty may not be imposed
for "sexual relations between consenting adults."
▪ Eleven men were arrested in a gay bar and held in custody for
over a year. The UN Working Group on Arbitrary Detention con-
cluded that the men were detained in violation of international

19
https://yogyakartaprinciples.org/introduction/
law, noting with concern that "one of the prisoners died as a re-
sult of his arbitrary detention".
Economic, Social and Cultural Rights: Principles 12 to 18 set out the importance
of non-discrimination in the enjoyment of economic, social and cultural
rights, including employment, accommodation, social security, education,
sexual and reproductive health including the right for informed con-
sent and sex reassignment therapy.
◦ Examples:
▪ Lesbian and transgender women are at increased risk of discrim-
ination, homelessness and violence (report of United Nations
Special Rapporteur on adequate housing).
▪ Girls who display same-sex affection face discrimination and ex-
pulsion from educational institutions (report of UN Special Rap-
porteur on the right to education).
▪ The United Nations High Commissioner for Human Rightshas
expressed concern about laws which "prohibit gender reassign-
ment surgery for transsexuals or require intersexpersons to un-
dergo such surgery against their will".
Rights to Expression, Opinion and Association: Principles 19 to 21 emphasise
the importance of the freedom to express oneself, one's identity and one's sex-
uality, without State interference based on sexual orientation or gender iden-
tity, including the rights to participate peaceably in public assemblies and
events and otherwise associate in community with others.
◦ Example:
▪ A peaceful gathering to promote equality on the grounds of sex-
ual orientation and gender identity was banned by authorities,
and participants were harassed and intimidated by police and ex-
tremist nationalists shouting slogans such as "Let's get the fags"
and "We'll do to you what Hitler did with Jews" (report of the
UN Special Rapporteur on contemporary forms of racism, racial
discrimination, xenophobia & related intolerance).

Yogyakarta Principles plus 1020

On 10 November 2017, the "Yogyakarta Principles plus 10" (The YP +10) to the
supplement the Principles, formally as "Additional Principles and State Obligation

20
https://yogyakartaprinciples.org/
on the Application of International Human Rights Law in Relation to Sexual Orien-
tation, Gender Expression and Sex Characteristics to Complement the Yogyakarta
Principles", emerged from the intersection of the developments in international hu-
man rights law with the emerging understanding of violations suffered by person on
ground of sexual orientation and gender identity and the recognition of the district
and intersectional grounds of gender expression and sex characteristics.212223

2017 Yogyakarta Principles plus 10

Preamble: The Preamble recalls developments in international human rights law,


and an intention to regularly update the Principles. It defines gender expres-
sion and sex characteristics, applies these grounds to the original Principles,
recognises the intersectionality of the grounds adopted in the Principles, and
their intersectionality with other grounds.
The Rights to State Protection: Principle 30 recognises the right to State protection
from violence, discrimination and harm, including the exercise of due
diligence in prevention, investigation, prosecution and remedies.
The Right to Legal Recognition: Principle 31 calls for a right to legal recognition
without reference to sex, gender, sexual orientation, gender identity, gender
expression or sex characteristics, ending the superfluous inclusion of such in-
formation in identification documents.
The Right to Bodily and Mental Integrity: Principle 32 recognizes a right to
bodily and mental integrity, autonomy and self-determination, including a
freedom from torture and ill-treatment. It calls for no-one to be subjected to
invasive or irreversible medical procedures to modify sex characteristics with-
out their consent unless necessary to prevent urgent and serious harm.
The Right to Freedom from Criminalisation and Sanction:Principle 33 recog-
nises a right to freedom from indirect or direct criminalisation or sanction,
21
"Yogyakarta Principles plus 10". Archived from the original on 2017-12-01.
22
Lee, Steve (2017-11-27). "Updated international human rights principles for the treatment of LGBTI peo-
ple released". LGBT Weekly. Archived from the original on 2017-11-27. Retrieved 2017-11-29.Power,
Shannon (November 29, 2017). "The Yogyakarta Principles have just been updated for the first time in 10
years". Gay Star News. Archived from the original on December 6, 2017. Retrieved 2017-12-05. Williams
Institute (November 27, 2017). "Updated Yogyakarta Principles Released". Williams Institute. Ar-
chived from the original on December 5, 2017. Retrieved 2017-12-05.
23
Lee, Steve (November 27, 2017). "Updated international human rights principles for the treatment of
LGBTI people released". LGBT Weekly. Archived from the original on December 6, 2017. Retrieved 2017-
12-05.
including in customary, religious, public decency, vagrancy, sodomy and
propaganda laws.
The Right to Protection from Poverty: Principle 34 calls for the right to protec-
tion from poverty and social exclusion.
The Right to Sanitation: Principle 35 calls on a right to safe and equitable access
to sanitation and hygiene facilities.
The Right to the Enjoyment of Human Rights in Relation to Information and
Communication Technologies: Principle 36 calls for the same protection of
rights online as offline.
The Right to Truth: Principle 37 calls for the right to know the truth about human
rights violations, including investigation and reparation unlimited by statutes
of limitations, and including access to medical records.
The Right to Practise, Protect, Preserve and Revive Cultural Diversity: Prin-
ciple 38 calls on the right to practise and manifest cultural diversity.
Additional State Obligations: the YP Plus 10 set out a range of additional obli-
gations for States, including in relation to HIV status, access to sport, combat-
ing discrimination in prenatal selection and genetic modification technologies,
detention and asylum, education, the right to health, and freedom of peaceful
assembly and association.
Additional Recommendations: the Principles also set out recommendations
for national human rights institutions and sporting organisations.

In various parts of world how transgenders are recognised are as follows:

European Union

The EU strongly supports the position that all individuals, without discrimina-
tion, are entitled to enjoy the full range of human rights. LGBTI people have the
same human rights as all individuals, including the right to non-discrimination. This
principle is enshrined in numerous international instruments, providing for a wide
scope in its application. EU Action is guided by the EU Guidelines to promote and
protect the enjoyment of all human rights by lesbian, gay, bisexual, transgender and
intersex (LGBTI) persons. This priority is also recognised under the EU Action Plan
on Human Rights and Democracy 2015-2019 with an objective aiming at cultivating
an environment of non-discrimination.
Through the European Instrument for Democracy and Human Rights (EIDHR),
the European Union supports several projects worldwide for the defence
of LGBTI rights. Projects aim at improving LGBTI organisations’ visibility and ac-
ceptance, and enhancing their dialogue with authorities to change laws; combatting
homophobia and prejudices against LGBTI persons; protecting LGBTI persons from
violence and enhancing access to psychosocial, medical, mediation and reintegration
programs for victims; and providing training, information and legal support to
LGBTI persons and organisations. Emergency funding is also provided to LGBTI
human rights defenders.24
A majority of countries in Europe give transgender people the right to at least
change their first name, most of which also provide a way of changing birth certifi-
cates. Several European countries recognise the right of transsexuals to marry in
accordance with their post-operative sex. Croatia, Czech Republic, Denmark, Fin-
land, France, Germany, Ireland, Italy, the Netherlands, Norway, Poland, Portu-
gal, Romania, Sweden, Spain, and the United Kingdom all recognise this right.
The Convention on the recognition of decisions regarding a sex changeprovides reg-
ulations for mutual recognition of sex change decisions and has been signed by five
European countries and ratified by Spain and the Netherlands.2526

In a landmark judgment (Christine Goodwin vs. the United Kingdom, 2002)


the European Court of Human Rights declared that the U.K. government's failure to
alter the birth certificates of transsexual people or to allow them to marry in their
new gender role was a breach of the European Convention on Human Rights.United
Kingdom

The Sex Discrimination Act 1975 made it illegal to discriminate on the ground
of anatomical sex in employment, education, and the provision of housing, goods,
facilities and services.The Equality Act 2006introduced the Gender Equality Duty
in Scotland, which made public bodies obliged to take seriously the threat of harass-
ment or discrimination of transsexual people in various situations. In 2008, the Sex

24
https://ec.europa.eu/europeaid/sectors/human-rights-and-governance/democracy-and-human-rights/anti-
discrimination-movements/lgbti_en
25
Wareham, Jamie (29 August 2017). "Finland will keep sterilizing trans people after it rejects law re-
form". Gay Star News. Archived from the original on 2 September 2017. Retrieved 1 September 2017.
26
"Greece improves gender recognition law but misses chance to introduce self-determination". ILGA
EUROPE. Archived from the original on 4 January 2018. Retrieved 10 October 2017.
Discrimination (Amendment of Legislation) Regulations extended existing regula-
tion to outlaw discrimination when providing goods or services to transsexual peo-
ple. The Equality Act 2010 officially adds "gender reassignment" as a "protected
characteristic.”.27
The Gender Recognition Act 2004 effectively granted full legal recognition for
binary transgender people. In contrast to some systems elsewhere in the world, the
Gender Recognition process does not require applicants to be post-operative. They
need only demonstrate that they have suffered gender dysphoria, have lived as "your
new gender" for two years, and intend to continue doing so until death.

GERMANY
Germany became the first European country to official recognised a 3rd gender cat-
egory. According to Act. 22, Section 3 of German civil statutes act says that if a child
can be assigned to neither the female nor male sex then the child has to be named
without a specification .

ASIA
In 2009 the Chinese government made it illegal for minors to change their officially
listed gender, stating that sexual reassignment surgery, available to only those over
the age of twenty, was required in order to apply for a revision of their identification
card and residence registration.28
In early 2014 the Shanxi province started allowing minors to apply for the change
with the additional information of their guardian's identification card. This shift in
policy allows post-surgery marriages to be recognised as heterosexual and therefore
legal.29

27
"Equality Act 2010". legislation.gov.uk. The National Archives. 2010. Archived from the original on 31
March 2015. Retrieved 5 April 2015."Applying for a Gender Recognition Certificate". Gov.uk. The UK
Government. Archived from the original on 25 April 2015. Retrieved 5 April 2015.
28
jun, Pi (9 October 2010). "Transgender in China". Journal of LGBT Youth. 7 (4): 346–
351. doi:10.1080/19361653.2010.512518
29
Sun, Nancy (9 January 2014). "Shanxi Permits Persons to Change Gender Information". All-China Wom-
en's Federation. Archived from the original on 29 November 2014. Retrieved 17 October 2014.
Transgender youth in China face many challenges. One study found that Chinese
parents report 0.5% (1:200) of their 6 to 12-year boys and 0.6% (1:167) of girls often
or always ‘state the wish to be the other gender’. 0.8% (1.125) of 18- to 24-year-old
university students who are birth-assigned males (whose sex/gender as indicated on
their ID card is male) report that the ‘sex/gender I feel in my heart’ is female, while
another 0.4% indicating that their perceived gender was ‘other’. Among birth-as-
signed females, 2.9% (1:34) indicated they perceived their gender as male, while
another 1.3% indicating ‘other’.30

NEPAL
Nepal is believed to have become to the world’s first country to include a 3rdgender
option on its census forms following a SC of Nepal’s landmark decision in Sunil
Babu Pant & ors which held a ruling against gender discrimination & reco-
gnised the existence of third gender from enjoying fundamental rights provided by
part III of the constitution. Nepal’s Supreme Court, in a sweeping 2007 ruling, or-
dered the government to recognise a third gender category based on an individual’s
“self-feeling.”The ruling rested largely on the freshly minted Yogyakarta Princi-
ples—the first document to codify international principles on sexual orientation,
gender identity, and human rights. Armed with the ruling, activists successfully ad-
vocated with government agencies to include the third gender category on voter rolls
(2010), the federal census (2011), citizenship documents (2013), and passports
(2015).
PAKISTAN
In Pakistan local police had allegedly attacked, robbed & raped eight Hijra wedding
dances near Islamabad. This traumatic event led Muhammed Aslam Khaki filed a
private case following which Supreme Court of Pakistan in Dr.Mohammad Aslam
Khaki & Ans .v. Senior superintend of police Rawalpindi & ors decided on 22nd
March 2011 recognised the rights of eunuchs as citizens of the country & subject to
constitution of the Islamic Republic of Pakistan ,1993 theirSimilarly, in 2009, the
Supreme Court in Pakistan called for a third gender category to be recognised, and
in Bangladesh, the cabinet issued a 2013 decree recognising hijras as their own legal
gender. rights obligations including rights to life & dignity are equally protected.

30
Winter, Sam; Conway, Lynn. "How many trans* people are there? A 2011 update incorporating new
data". Archived from the original on 28 March 2015. Retrieved 14 November 2014.
They also have been given identity cards with a 3rdgender category for non binary
citizens.

JAPAN
On 10 July 2003, the National Diet of Japan unanimously approved a new law that
enables transsexual people to amend their legal sex. It is called Act on Special Cases
in Handling Gender for People with Gender Identity Disorder)31 The law, effective
on 16 July 2004, however, has controversial conditions which demand the applicants
be both unmarried and childless. On 28 July 2004, Naha Family Court in Okinawa
Prefecture returned a verdict to a transsexual woman in her 20s, allowing her family
registry record or koseki to be amended as she was born a female. It is generally
believed to be the first court approval under the new law. Since 2018 sex reassign-
ment surgeries are paid for by the Japanese government, who are covered by the
Japanese national health insurance as long as patients are not receiving hormone
treatment and do not have any other pre-existing conditions. However applicants are
required to be single, sterile, childless, under the age of 20 as well as to undergo a
psychiatric evaluation to receive a diagnosis of “Gender Identity Disorder”, also
known as gender dysphoria in western countries. Once completed the patient has to
only pay 30% of the surgery costs.

South America
South America has some of the most progressive legislation in the world regarding
transgender rights. Transgender persons are allowed to change their name and gen-
der on legal documents in a majority of countries. Argentina, Brazil, Bolivia, Co-
lombia and Ecuador allow individuals to change their name and gender without un-
dergoing medical treatment, sterilisation or judicial permission. In Uruguay a judi-
cial order is required. In Chile transgender persons can change their legal gender and

31
22 July 2012 at Archive.today e-Gov – Ministry of Internal Affairs and Communications, Japan (in Jap-
anese)
name after completion of medical intervention. Judicial permissions are re-
quired. Peru allows legal name change after surgery, however gender change is not
allowed by courts.3233

Argentina

Argentina broke ground in 2012 with a law that is considered the gold standard
for legal gender recognition: anyone over the age of 18 can choose their gender
identity, undergo gender reassignment, and revise official documents without any
prior judicial or medical approval, and children can do so with the consent of their
legal representatives or through summary proceedings before a judge.

NEWZEALAND
In New Zealand, in New Zealand Attorney General vs. the Family Court at Otahuhu
(1994), the court upheld the principle that for purposes of marriage, transsexual peo-
ple should be legally recognised in their re-assigned sex. New Zealand gave
its transgender citizens a new gender category on their passport in 2012 with the in-
troduction of for undetermined.
AUSTRALIA
In an Australian case it was that there is no formulaic solution to determine the sex
of an individual for the purpose of law of marriage. All relevant matters need to be
considered including the persons life experiences & self perception. It was asserted
that there is biological basis for transsexualism and that there was no reason to ex-
clude the psychology as one of the relevant factors in determining sex & gender. In
Australia there are 2 acts dealing with gender identity.
i) Sex discrimination Act,1984.
ii) Sex discrimination Amendment (sexual orientation gender identity & intersex
status) Act.2013.

32
"Latin America's Transgender-Rights Leaders". The New Yorker. 10 August 2015. Archived from the
original on 22 October 2016.
33
"Bolivia's transgender citizens celebrate new documents". BBC News. 7 September 2016. Archived from
the original on 22 October 2016.
These define gender identity as the appearance or mannerisms or other gender re-
lated characteristics of a person whether by may of medical intervention or not, des-
ignated sex at birth.
When it comes to taking a progressive approach toward gender recognition re-
form around world, Argentina and Denmark top the list, according to
Transgenders of Europe.
In the subsequent years, more countries—Colombia, Denmark, Ireland, and
Malta—explicitly eliminated significant barriers to legal gender recognition but
despite all the efforts by UN , many pro transgender countries , NGO’s and many
welfare organisations like amnesty international and American civil liberties Un-
ion ,there are still many countries in world where transgender are facing adversity
in life and there very existence is endangered. Few of which are stated below:

United States

Pursuant to the U.S. Const., Amend. 10, which reserves to the states (or to the peo-
ple) all powers not assigned to the federal government, the legal classification of sex
is a matter of state jurisdiction in the United States. The principle is generally ex-
tended to the District of Columbiaand U.S. territories, though the federal govern-
ment has power to overrule any decision those non-state entities might make.
Regardless of the legal sex classification determined by a state or territory, the fed-
eral government may make its own determination of sex classification for federally
issued documents. For instance, the U.S. Department of State requires a medical
certification of "appropriate clinical treatment for transition to the updated gender
(male or female)" to amend the gender designation on a U.S. passport, but sex reas-
signment surgery is not a requirement to obtain a U.S. passport in the updated gen-
der.34
Trump administration wants to remove 'gender' from UN human rights documents
US officials at the United Nations are seeking to eliminate the word “gender” from
UN human rights documents, most often replacing it with “woman”, apparently as
part of the Trump administration’s campaign to define transgender people out of ex-
istence.35

34
"Gender Designation Change", Bureau of Consular Affairs, U.S. Department of State Archived 2 No-
vember 2017 at the Wayback Machine.
35
https://www.theguardian.com/world/2018/oct/24/trump-administration-gender-transgender-united-na-
tions
Malaysia

In Malaysia, the Education Department of the Federal Territory (Kuala Lumpur) has
an explicitly discriminatory policy that calls for punishment, including caning, sus-
pension, and expulsion, for homosexuality and “gender confusion.”Malaysia’s state
Sharia laws, which prohibit “a male person posing as woman” and, in some states,
“a female person posing as a man,” have resulted in countless arrests of transgender
people for the simple act of walking down the street wearing clothing that state reli-
gious officials do not find appropriate to their sex as assigned at birth. They are
sentenced to imprisonment, fines, or mandatory “counselling” sessions.

Nigeria, Kuwait, the United Arab Emirates, and Saudi Arabia have also carried
out arrests for “cross-dressing” in recent years; although no law specifically crimi-
nalises transgender people in Saudi Arabia, Saudi judges have ordered men accused
of behaving like women to be imprisoned and flogged.

Laws prohibiting same-sex conduct are also used to arrest and otherwise harass
transgender and gender non-conforming people—regardless of the fact that gender
identity has no direct correlation to sexual orientation or sexual behaviour—as Hu-
man Rights Watch has documented in Malawi, Uganda, and Tanzania.

INDIAN PERSPECTIVE

“Discrimination is rampant, unreported, socially sanctioned and further encouraged


by the absence of any anti-discriminatory laws to prevent human rights violations
against trans people.” —Satya Rai Nagpaul, India36

In India, people with a huge array of transgender – related identities, cultures


or experiences bear an existence. Hence, such a wide range of transgender – related
identities, in India, include :

36
Personal communication from Satya Rai Nagpaul, from the Indian NGO Sampoorna (July 2013)
Hijra : I is a Persian term that means ‘ eunuch’, which is a term of common us age
with reference to the transgender community in India.

Aravani : The term is used to refer to the male – to - female transgender , who has
under gone the genital modification through SRS or per for med Nirwaan, which is
the traditional mode of castration.

Kothis : The term is used in reference to those that adopt feminine roles in the same
– sex relationships, but do not live in communes like the Aravalis.

Jogtas : They are the male – t o – female transgenders, who devote to the services
of a particular God.

Shiv Shakti’ s : They are the males that are considered married t o Gods, and in
particular , Lord Shiva, and are found in Andhra Pradesh.They generally work as
spiritual healers and astrologers.

The rule of law is supreme and everyone is equal in the eyes of law in India.
Yet, the transgender community is in a constant battle as they have to fight oppres-
sion, abuse and discrimination from every part of the society, whether it’s their own
family and friends or society at large. The life of transgender people is a daily battle
as there is no acceptance anywhere and they are ostracised from the society and also
ridiculed.

Though, apart from facing all problems, they are creating their own way and
law and order are helping them in developing their community. The following points
highlights the struggling journey of Transgender to become an inclusion part of India
-

CONSTITUTIONAL PROVISIONS
India is a country where we have well-established framework of Fundamental
Rights embedded in the constitution. From the point of view of Transgender, just
like other two genders, they are entitled to the four important provisions of Funda-
mental Rights. Their Fundamental Rights are
1.Article 14 : Which states that the State shall not deny any person equality before
the law or the equal protection of laws within the territories of the State.
2.Article 15: The State shall not discriminate against any citizen on the grounds of
race, caste, religion, sex, place of birth or any of them.
3.Article 19 : All citizens shall have rights of-
-Freedom of speech and expression;
-Freedom of assemble peaceably and without arms;
-Freedom to reside and settle in any part of the territory of India;
-Freedom to practice any profession or to carry on any occupation, trade or
business
4.Article 21: Right to his life or personal liberty.

12 Th. FIVE YEAR PLAN AND TRANSGENDER


The Twelfth Five YearPlan (2012-2017) Proposed empowerment of 3rd Gender by
providing them education, housing, access to healthcare services, employ-
ment, skill development and financial assistance. In addition to this, it is also pro-
posed that separate column must be incorporated in all government and non-govern-
ment records for the third gender. It will enable the number of Transgender in India.
The Ministry of Social Justice and Empowerment along with Ministry of Statistics
and Programme Implementation will map their Socio- economic status to create a
better environment for them by improving their living standards.

LEGAL PROVISIONS
To include Transgender socially and economically in society, the following ef-
forts are ensured through legal procedure at State and National level. In detail, they
are as follows -
Extremely demeaning remarks are used against Transgenders: when an ex-
tremely demeaning remarks are used against transgenders, a transgender can file a
FIR under Section 153A of the penal code which says :
153A. Promoting enmity between different groups on grounds of religion, race,
place of birth, residence, language, etc., and doing acts prejudicial to maintenance
of harmony.—
(1) Whoever—

(a) by words, either spoken or written, or by signs or by visible representations or


otherwise, promotes or attempts to promote, on grounds of religion, race, place of
birth, residence, language, caste or community or any other ground whatsoever, dis-
harmony or feelings of enmity, hatred or ill-will between different religious, racial,
language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between
different religious, racial, language or regional groups or castes or communities, and
which disturbs or is likely to disturb the public tranquillity, 2[or] 2[(c) organises any
exercise, movement, drill or other similar activity intending that the participants in
such activity shall use or be trained to use criminal force or violence or knowing it
to be likely that the participants in such activity will use or be trained to use criminal
force or violence, or participates in such activity intending to use or be trained to use
criminal force or violence or knowing it to be likely that the participants in such
activity will use or be trained to use criminal force or violence, against any religious,
racial, language or regional group or caste or community and such activity for any
reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity
amongst members of such religious, racial, language or regional group or caste or
community,] shall be punished with imprisonment which may extend to three years,
or with fine, or with both. Offence committed in place of worship, etc.—(2) Who-
ever commits an offence specified in sub-section (1) in any place of worship or in
any assembly engaged in the performance of religious worship or religious ceremo-
nies, shall be punished with imprisonment which may extend to five years and shall
also be liable to fine.

Incidents

Actor Kamal Rashid Khan was processed by the police on 9 December 2018 for
making obscene comments against the LGBT community.37

37
"Kamaal R Khan booked for passing 'vulgar' remarks against the LGBTQ community". 2018-09-12.
AT STATE LEVEL
At State level, the States of Tamil Nadu and Karnataka have implemented the
mostprogressive and developmental policies for the Transgender in In-
dia. As per the recommendations of C.S. Dwarkanath Backward Classes Commis-
sion of 2010, the Transgender must be included in the category of Backward Class
to enjoy governmentbenefits. Recently, the State of Tamil Nadu ap-
pointed its first Transgender Police Officer Prithika Yashini to ensure employment
to the third gender. In Tamil Nadu, due to the constant efforts of Transgender com-
munity leaders and activists, Tamil Nadu Transgender Welfare Board was formed
to protect the ends and rights of Transgender including housing, employment edu-
cation etc.
The states of Tamil Nadu and Kerala were the first Indian states to introduce a
transgender welfare policy. According to the policy, transgender people can access
free sex reassignment surgery(SRS) in government hospitals (only for male-to-fe-
male), free housing program; various citizenship documents, admission in govern-
ment colleges with full scholarship for higher studies, alternative sources of liveli-
hood through formation of self-help groups (for savings) and initiating income-gen-
eration programmes (IGP). Tamil Nadu was also the first state to form a transgender
welfare board with representatives from the transgender community.38 Kerala started
providing free surgery in government hospitals in 2016.3940
In July 2016, the state of Odisha enacted welfare benefits for transgender people,
giving them the same benefits as those living below the poverty line. This was aimed
at improving their overall social and economic status, according to the Odisha De-
partment of Social Security.41

38
Karthikeyan, Divya (25 May 2017). "Tamil Nadu, once a pioneering state for welfare of transgenders,
now shuns the third gender". Firspost.
39
Devasia, TK. "Why Kerala's free sex-change surgeries will offer a new lifeline for the transgender com-
munity". Scroll.in. Retrieved 2016-03-19.
40
How Kerala left the country behind on transgender rights". dna. 2015-11-14. Retrieved 2016-03-19.
41
Dash, Jatindra (2 June 2016). "Odisha becomes first state to give welfare to transgender commu-
nity". Reuters.
In April 2017, the Ministry of Drinking Water and Sanitation instructed states to
allow transgender people to use the public toilet of their choice.42
In October 2017, the Karnataka Government issued the "State Policy for
Transgenders, 2017", with the aim of raising awareness of transgender people within
all educational institutions in the state. Educational institutions will address issues
of violence, abuse and discrimination against transgender people. It also established
a monitoring committee designed with investigating reports of discrimination.43
On 28 November 2017, N. Chandrababu Naidu, the Chief Minister of Andhra
Pradesh, announced the enactment of pension plans for transgender people.44On 16
December 2017, the Andhra Cabinet passed the policy. According to the policy, the
State Government will provide an amount of ₹1,500 per month to each transgender
person above the age of 18 for social security pensions. In addition, the Government
will construct special toilets in public places, like malls and cinema halls, for
transgender people.45
In January 2018, the Kashmiri Finance Minister introduced a proposal to
the Jammu and Kashmir Legislative Assembly that would grant transgender people
free life and medical insurance, and a monthly sustenance pension for those aged
60+ and registered with the Social Welfare Department. Transgender activists have
criticised aspects of the bill, including its requirement to establish medical boards to
issue "transgender certificates”.46 47
The Uttarakhand High Court directed the state Government in late September
2018 to provide reservation for transgender people in educational institutions. The

42
Sharma, Kuheena (6 April 2017). "Sanitation ministry allows transgender people use public toilets, wants
them recognised as equal citizens". India Today. New Delhi. Retrieved 2 November 2017.
43
Transgender policy cleared by Karnataka cabinet". The Indian Express. Press Trust of India. 27 October
2017
44
ANI (2017-11-28). "CM Naidu announces pension scheme for state's transgenders". ABP Live.
45
Apparasu, Srinivasa Rao (17 December 2017). "Transgenders to get pension, ration and more in Andhra;
govt clears welfare policy". Hindustan Times.
46
Naqash, Rayan (4 February 2018). "For the first time, Kashmir government recognises needs of
transgender community. But is it enough?". Scroll.in.
47
"Jammu and Kashmir: Transgender community welcomes steps taken by Mehbooba Mufti government".
12 January 2018.
court also asked the Government to frame social welfare programmes for the better-
ment of transgender people.48
In February 2019, the Maharashtra Government set up a "Transgender Welfare
Board" to conduct health programmes and provide formal education and employ-
ment opportunities to transgender people. The board provides skill development pro-
grammes to help transgender people find a job and free accommodation for those
seeking scholarships.49A similar board was also set up in the neighbouring state
of Gujarat that same month. The Gujarat board provides various welfare pro-
grammes for employment and education, and coordinates with state departments to
ensure that the transgender community is able to take advantage of government
schemes. An educational campaign was also established in order to sensitise the
public.50

AT NATIONAL LEVEL
The India is slowly but painfully meaning towards formal recognition of the
existence of 3rd gender. On April 15, 2014 landmark decision of National legal ser-
vices authority. v. Union of India, recognised the rights of transgender in the eyes of
law relying on article 14 of Indian Constitution dealing with right to equality uses
the term person which does not restrict itself to binary term. Article 15 signifies that
states shall not discriminate against any citizen on the ground of sex with regard to
access to shops public restaurants , hotels & places of public entertainment. Article
16 states that there shall be quality of opportunities for all the citizens in matters
relating to employment to any office.Gender identity is at the core of one’s personal
identity. Therefore it will have to be protected under Article19.The SC also went on
to that self determination of gender is an integral part of personal autonomy & self
expression falling within Article 21 of the Indian Constitution.

48
"Uttarakhand HC directs state to provide reservation to transgenders in educational institutions". Jagran
Josh. 1 October 2018.
49
"Maharashtra Government Sets Up Transgender Welfare Board". NDTV. 23 February 2019.
50
"Gujarat Govt Establishes Transgender Welfare Board; Housing, Education & Other Issues To Be Taken
Care Of". The Logical Indian. 19 February 2019.
DEVELOPMENT AFTER THE JUDGMENT
Under the Ministry of Social Justice & empowerment a committee called Ex-
pert Committee on issue relating to transgender has been constituted to conduct on
in depth study of the problems relating to transgender persons to make appropriate
recommendation to it.States have setup various welfare boards for transgender like
Aravani Welfare Board in Tamil Nadu. The civilian welfare foundation, NGO in
Kolkatta studying the medical problems faced by transgender people in urban areas.
Judgement puts transgender people in a strong situation as they are now legally rec-
ognised & protected under the constitution. The rights of transgender people like
their own identity & access to health, education, work housing & other rights are
being increasingly widely recognised after the court’s decision to legalise third gen-
der. The third genders are enjoying more civil rights being counted in census. Option
to be displayed as 3rd gender on passports & other freedoms.
After SC ruling of considering third gender as OBC for admission in educational
institutions, many universities introduced space for third gender in application
forms. Banglore Universities was the first one in India to allow eligible transgender
people pursuing higher education to take admission and avail reservation quota of
one seat in each of 60 post graduate courses offered.51The centre for environment
planning & technology (CEPT) University became the first institute in Gujarat to
include third gender in admission session in 2014.52 Following DelhiUniversity,
JNU even Fergusson college in Pune have acknowledged third gender students but
universities like IIMS, Symbiosis & many are yet in dilemma.
In February 2017, the Ministry of Health and Family Welfare unveiled resource ma-
terial relating to health issues to be used as a part of a nationwide adolescent peer-
education plan called Saathiya. Among other subjects, the material discusses homo-
sexuality. The material states, "Yes, adolescents frequently fall in love. They can
feel attraction for a friend or any individual of the same or opposite sex. It is normal
to have special feelings for someone. It is important for adolescents to understand
that such relationships are based on mutual consent, trust, transparency and respect.

51
http://timesofindia.indiatimes.com/india/UGC-opens-all-its-scholarships-for-third-gender-candidates/ar-
ticleshow/39515161.cms
52
http://www.deccanherald.com/content/414779/archives.php
It is alright to talk about such feelings to the person for whom you have them but
always in a respectful manner."5354

RIGHT OF TRANSGENDER PERSONS BILL, 2014

Evolution of transgender legislation


In February 2014, the Supreme Court passed a landmark judgement, paving the
way for enshrining the rights of transgenders in law. The apex court deemed that
individuals had the right to the self-identification of their sexual orientation. It ruled
that the fundamental rights granted by the Constitution are equally applicable to
transgenders who constitute the 'third gender'.
The judgement also called for affirmative action in education, primary health care,
and that transgenders be identified as beneficiaries of social welfare schemes. The
blueprint for transgender rights legislation draws from the court's directives.
The first effort at framing legislation for the same was made in December 2014 by
Tiruchi Siva, a Dravida Munnetra Kazhagam (DMK) Rajya Sabha MP. The Rights
of Transgender Persons Bill, 2014, was introduced as a Private Member’s Bill in the
Rajya Sabha by Mr. Siva. This was the first private bill passed in 45 years in Rajya
Sabha. It was unanimously passed in the Upper House but was never debated in the
Lok Sabha. The Bill passed in the Rajya Sabha had many progressive clauses in-
cluding the creation of institutions like the national and State commissions for
transgenders, as well as transgender rights courts. But Social Justice and Empower-
ment Minister Thaawar Chand Gehlot stated on 11 June 2015 that the Government
would introduce a new comprehensive bill for transgender rights in the Monsoon
session of Parliament. The bill would be based on the study on transgender issues
conducted by a committee appointed on 27 January 2014. According to Gehlot, the

53
"Same-sex attraction is OK, boys can cry, girl's no means no". The Indian Express. 21 February 2017.
Retrieved 21 February 2017.
54
"Homosexual attraction is OK; 'NO' means no: Health Ministry rises above Indian stereotypes". The
Financial Express. 21 February 2017. Retrieved 21 February 2017.
Government intends to provide transgender people with all rights and entitlements
currently enjoyed by scheduled castes and scheduled tribes.55
The Transgender Persons (Protection of Rights) Bill, 2016, which was initially in-
troduced to Parliament in August 2016, was re-introduced to Parliament in late
2017. 56The bill passed the Lok Sabha on 17 December 2018 with 27 amendments,
including a controversial clause prohibiting transgender people from begging.
The rights guaranteed under the Bill are mostly substantive rights such as the right
to equality and non-discrimination, life and personal liberty, free speech, to live in a
community, integrity, along with protection from torture or cruelty and abuse, vio-
lence and exploitation. There is a separate clause for transgender children.

Education, employment and social security and health are also covered under the
Bill. The chapter on education makes it mandatory for the Government to provide
inclusive education for transgender students and provide adult education to them.

With the employment chapter, there are two separate clauses dealing with formula-
tion of schemes for vocational training and self-employment of transgender persons
by the Government. There’s a separate clause for non-discrimination against
transgender persons in any establishment – public or private.

In the social security and health chapter, the Government is asked to propagate social
security and health care facilities which are to be provided in the form of separate
HIV clinics and free SRS. They should be given the right to leisure, culture and
recreation. Basic rights like access to safe drinking water and sanitation must be
provided by the government.

The Bill envisages setting up a number of authorities and forums – National and
State Commissions for Transgender Persons. The Commissions work will be mostly
in the nature of inquiry or recommendations in the inconsistencies in the application
of the law or violations of right of transgender persons. The Commissions can issue

55
Bills on transgenders, disabled in monsoon session: Gehlot".
56
Lok Sabha passes transgender rights Bill". India Today. 17 December 2018.
summons to witnesses, receive evidence, etc. There is penalty by way of imprison-
ment for upto a year for hate speech against transgender people.

THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL,


2018

A BILL to provide for protection of rights of transgender persons and their welfare
and for matters connected therewith and incidental thereto. BE it enacted by Parlia-
ment in the Sixty-ninth Year of the Republic of India as follows:— CHAPTER I
PRELIMINARY 1. (1) This Act may be called the Transgender Persons (Protection
of Rights) Act, 2018. (2) It extends to the whole of India. (3) It shall come into force
on such date as the Central Government may, by notification in the Official Gazette,
appoint. 2. In this Act, unless the context otherwise requires,— (a) "appropriate Gov-
ernment" means,— (i) in relation to the Central Government or any establishment,
wholly or substantially financed by that Government, the Central Government; (ii)
in relation to a State Government or any establishment, wholly or substantially fi-
nanced by that Government, or any local authority, the State Government; Short title,
extent and commencement.
Definitions.
Bill No. 210-C of 2016 5 10 15 AS PASSED BY LOK SABHA ON 17.12.2018 2
(b) "establishment" means— (i) any body or authority established by or under a Cen-
tral Act or a State Act or an authority or a body owned or controlled or aided by the
Government or a local authority, or a Government company as defined in section 2
of the Companies Act, 2013, and includes a Department of the Government; or (ii)
any company or body corporate or association or body of individuals, firm, cooper-
ative or other society, association, trust, agency, institution;
(c) "family" means a group of people related by blood or marriage or by adoption
made in accordance with law;
(d) "inclusive education" means a system of education wherein transgender students
learn together with other students without fear of discrimination, neglect, harassment
or intimidation and the system of teaching and learning is suitably adapted to meet
the learning needs of such students;
(e) "institution" means an institution, whether public or private, for the reception,
care, protection, education, training, or any other service of transgender persons;
(f) "local authority" means the municipal corporation or municipality or Panchayat
or any other local body constituted under any law for the time being in force for
providing municipal services or basic services, as the case may be, in respect of areas
under its jurisdiction;
(g) "National Council" means the National Council for Transgender Persons estab-
lished under section 17;
(h) "notification" means a notification published in the Official Gazette;
"person with intersex variations" means a person who at birth shows variation in his
or her primary sexual characteristics, external genitalia, chromosomes or hormones
from normative standard of male or female body;
(j) "prescribed" means prescribed by rules made by the appropriate Government un-
der this Act;
(k) "transgender person" means a person whose gender does not match with the gen-
der assigned to that person at birth and includes trans-man or trans-woman (whether
or not such person has undergone Sex Reassignment Surgery or hormone therapy or
laser therapy or such other therapy), person with intersex variations, genderqueer
and person having such socio-cultural identities as kinner, hijra, aravani and jogta.
CHAPTER II PROHIBITION OF CERTAIN ACTS 3. No person or establishment
shall discriminate against a transgender person on any of the following grounds,
namely:—
(a) the denial, or discontinuation of, or unfair treatment in, educational establish-
ments and services thereof;
(b) the unfair treatment in, or in relation to, employment or occupation;
(c) the denial of, or termination from, employment or occupation;
(d) the denial or discontinuation of, or unfair treatment in, healthcare services;
(e) the denial or discontinuation of, or unfair treatment with regard to, access to, or
provision or enjoyment or use of any goods, accommodation, service, facility,
benefit, privilege or opportunity dedicated to the use of the general public or cus-
tomarily available to the public;
(f) the denial, or, discontinuation of, unfair treatment with regard to the right of
movement; 18 of 2013. Prohibition against discrimination. 5 10 15 20 25 30 35
40 45 3
(g) the denial or discontinuation of, or unfair treatment with regard to the right to
reside, purchase, rent, or otherwise occupy any property;
(h) the denial or discontinuation of, or unfair treatment in, the opportunity to stand
for or hold public or private office;
the denial of access to, removal from, or unfair treatment in, Government or private
establishment in whose care or custody a transgender person may be.

CHAPTER III RECOGNITION OF IDENTITY OF TRANSGENDER PERSONS


4.
(1) A transgender person shall have a right to be recognised as such, in accordance
with the provisions of this Act.
(2) A person recognised as transgender under sub-section (1) shall have a right to
self perceived gender identity.
5. A transgender person may make an application to the District Magistrate for issu-
ing a certificate of identity as a transgender person, in such form and manner, and
accompanied with such documents, as may be prescribed: Provided that in the case
of a minor child, such application shall be made by a parent or guardian of such
child.
6. (1) On the receipt of an application under section 5, the District Magistrate shall
refer such application to the District Screening Committee to be constituted by the
appropriate Government for the purpose of recognition of transgender persons.
(2) The District Screening Committee referred to in sub-section (1) shall comprise—
(a) the Chief Medical Officer; (b) District Social Welfare Officer; (c) a Psychologist
or Psychiatrist; (d) a representative of transgender community; and (e) an officer of
the appropriate Government to be nominated by that Government.
7. (1) The District Magistrate shall issue to the applicant under section 5 a certificate
of identity as transgender person on the basis of the recommendations made by the
District Screening Committee in such form and manner, within such time, as may
be prescribed, indicating the gender of such person as transgender.
(2) The gender of transgender person shall be recorded in all official documents in
accordance with certificate issued under sub-section (1).
(3) A certificate issued to a person under sub-section (1) shall confer rights and be a
proof of recognition of his identity as a transgender person. 8.
(1) After the issue of a certificate under sub-section (1) of section 7, if a transgender
person undergoes survery to change gender either as a male or female, such person
may make an application, alongwith a certificate issued to that effect by the Medical
Superintendent or Chief Medical Officer of the medical institution in which that per-
son has undergone surgery, to the District Magistrate for revised certificate, in such
form and manner as may be prescribed.
(2) The District Magistrate shall, on receipt of an application along with the Certifi-
cate under sub-section (1), and on being satisfied with the correctness of such certif-
icate issue a certificate indicating change in gender in such form and manner and
within such time, as may be prescribed.
(3) The person who has been issued a certificate of identity under section 7 or a
revised certificate shall be entitled to change the first name in the birth certificate
and all other official documents relating to the identity of such person: Recognition
of identity of transgender person. Application for certificate of identity. District
Screening Committee. Issue of certificate of identity. Change in gender. 5 10 15 20
25 30 35 40 45 4 Provided that such change in gender and the issue of revised cer-
tificate under sub-section (2) shall not affect the rights and entitlements of such per-
son under this Act.
CHAPTER IV WELFARE MEASURES BY GOVERNMENT
9. (1) The appropriate Government shall take steps to secure full and effective par-
ticipation of transgender persons and their inclusion in society.
(2) The appropriate Government shall take such measures as may be necessary to
protect the rights and interests of the transgender person, and facilitate their access
to welfare schemes framed by that Government.
(3) The appropriate Government shall formulate welfare schemes and programmes
which are transgender sensitive, non-stigmatising and non-discriminatory.
(4) The appropriate Government shall take steps for the rescue, protection and reha-
bilitation of transgender persons to address the needs of such person.
(5) The appropriate Government shall take appropriate measures to promote and
protect the right of transgender persons to participate in cultural and recreational
activities.
CHAPTER V OBLIGATION OF ESTABLISHMENTS AND OTHER PERSON
10. No establishment shall discriminate against any transgender person in any matter
relating to employment including, but not limited to, recruitment, promotion and
other related issues.
11. Every establishment shall ensure compliance with the provisions of this Act and
provide such facilities to the transgender person as may be prescribed.
12. Every establishment shall designate a person to be a complaint officer to deal
with the complaints relating to violation of the provisions of this Act.
13. (1) No child shall be separated from parents or immediate family on the ground
of being a transgender, except on an order of a competent court, in the interest of
such child. (2) Every transgender person shall have— (a) a right to reside in the
house-hold where parent or immediate family members reside; (b) a right not to be
excluded from such house-hold or any part thereof; (c) a right to enjoy and use the
facilities of such house-hold in a nondiscriminatory manner. (3) Where any parent
or a member of his immediate family is unable to take care of a transgender, the
competent court shall by an order direct such person to be placed in rehabilitation
centre.

CHAPTER VI EDUCATION, SOCIAL SECURITY AND HEALTH OF


TRANSGENDER PERSON
14. Every educational institution funded or recognised by the appropriate Govern-
ment shall provide inclusive education and opportunities for sports, recreation and
leisure activities without discrimination on an equal basis with others. Obligation of
the appropriate Government. Non discrimination in employment. Obligations of es-
tablishments. Grievance redressal mechanism. Right of residence. Obligation of ed-
ucational institutions to provide inclusive education to transgender persons. 5 10 15
20 25 30 35 40 5
15.The appropriate Government shall formulate welfare schemes and programmes
to facilitate and support livelihood for transgender persons including their vocational
training and self-employment.
16. The appropriate Government shall take the following measures in relation to the
transgender persons, namely:— (a) to set up separate human immunodeficiency vi-
rus Sero-surveillance Centres to conduct sero-serveillance for such persons in ac-
cordance with the guidelines issued by the National AIDS Control Organisation in
this behalf; (b) to provide for medical care facility including sex reassignment sur-
gery and hormonal therapy; (c) before and after sex reassignment surgery and hor-
monal therapy counselling; (d) bring out a Health Manual related to sex reassign-
ment surgery in accordance with the World Profession Association for Transgender
Health guidelines; (e) review of medical curriculum and research for doctors to ad-
dress their specific health issues; (f) to facilitate access to the transgender persons in
the hospitals and other healthcare institutions and centres; (g) provision for coverage
of medical expenses by a comprehensive insurance scheme for Sex Reassignment
Surgery, hormonal therapy, laser therapy or any other health issues of transgender
persons.
CHAPTER VII NATIONAL COUNCIL FOR TRANSGENDER PERSONS
17. (1) The Central Government shall by notification constitute a National Council
for Transgender to exercise the powers conferred on, and to perform the functions
assigned to it, under this Act.
(2) The National Council shall consist of— (a) the Union Minister in-charge of the
Ministry of Social Justice and Empowerment, Chairperson, ex officio; (b) the Min-
ister of State, in-charge of the Ministry of Social Justice and Empowerment in the
Government, Vice-Chairperson, ex officio; (c) Secretary to the Government of India
in-charge of the Ministry of Social Justice and Empowerment, Member, ex officio;
(d) one representative each from the Ministries of Health and Family Welfare, Home
Affairs, Housing and Urban Affairs, Minority Affairs, Human Resources Develop-
ment, Rural Development, Labour and Employment and Departments of Legal Af-
fairs, Pensions and Pensioners Welfare and National Institute for Transforming India
Aayog, not below the rank of Joint Secretaries to the Government of India, Members,
ex officio; (e) one representative each from the National Human Rights Commission
and National Commission for Women, not below the rank of Joint Secretaries to the
Government of India, Members, ex officio; (f) representatives of the State Govern-
ments and Union territories by rotation, one each from the North, South, East, West
and North-East regions, to be nominated by the Central Government, Members, ex
officio; (g) five representatives of transgender community, by rotation, from the
State Governments and Union territories, one each from the North, South, East, West
and North-East regions, to be nominated by the Central Government, Members; Vo-
cational training and self-employment. Health care facilities. National Council for
Transgender. 5 10 15 20 25 30 35 40 45 6 (h) five experts, to represent non-govern-
mental organisations or associations, working for the welfare of transgender persons,
to be nominated by the Central Government, Members; (i) Joint Secretary to the
Government of India in the Ministry of Social Justice and Empowerment dealing
with the welfare of the transgender persons, MemberSecretary, ex officio.
(3) A Member of National Council, other than ex officio member, shall hold office
for a term of three years from the date of his nomination.
18. The National Council shall perform the following functions, namely:— (a) to
advise the Central Government on the formulation of policies, programmes, legisla-
tion and projects with respect to transgender persons; (b) to monitor and evaluate the
impact of policies and programmes designed for achieving equality and full partici-
pation of transgender persons; (c) to review and coordinate the activities of all the
Departments of Government and other Governmental and non-Governmental Or-
ganisations which are dealing with matters relating to transgender persons; (d) to
redress the grievances of transgender persons; (e) to perform such other functions as
may be prescribed by the Central Government.
CHAPTER VIII OFFENCES AND PENALTIES
19. Whoever,— (a) compels or entices a transgender person to indulge in the act of
begging or other similar forms of forced or bonded labour other than any compulsory
service for public purposes imposed by Government; (b) denies a transgender person
the right of passage to a public place or obstructs such person from using or having
access to a public place to which other members have access to or a right to use; (c)
forces or causes a transgender person to leave house-hold, village or other place of
residence; (d) harms or injures or endangers the life, safety, health, or well-being,
whether mental or physical, of a transgender person or tends to do acts including
causing physical abuse, sexual abuse, verbal and emotional abuse and economic
abuse, shall be punishable with imprisonment for a term which shall not be less than
six months but which may extend to two years and with fine.
CHAPTER IX MISCELLANEOUS
20. The Central Government shall, from time to time, after due appropriation made
by Parliament by law in this behalf, credit such sums to the National Council as may
be necessary for carrying out the purposes of this Act.
21. The provisions of this Act shall be in addition to, and not derogation of, any other
law for the time being in force.
22. No suit, prosecution or other legal proceeding shall lie against the appropriate
Government or any local authority or any officer of the Government in respect of
anything which is in good faith done or intended to be done in pursuance of the
provisions of this Act and any rules made thereunder. Functions of the Council. Act
not in derogation of any other law. Grants by Central Government. Protection of
action taken in good faith. Offences and penalties. 5 10 15 20 25 30 35 40 45 7
23.
(1) The appropriate Government may, subject to the condition of previous publica-
tion, by notification, make rules for carrying out the provisions of this Act.
In particular, and without prejudice to the generality of the foregoing powers, such
rules may provide for all or any of the following matters, namely:— (a) the form and
manner in which an application shall be made under section 5; (b) the form and
manner in which a certificate of identity is issued under sub-section (1) of section 7;
(c) the form and manner in which an application shall be made under sub-section (1)
of section 8; (d) the form, period and manner for issuing revised certificate under
sub-section (2) of section 8; (e) facilities to be provided under section 11; (f) other
functions of the National Council under clause (d) of section 18; (g) any other matter
which is required to be or may be prescribed. (3) Every rule made by the Central
Government under sub-section (1), shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two or more successive sessions,
and if, before the expiry of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in making any modification in the
rule or both Houses agree that the rule should not be made, the rule shall thereafter
have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule. (4) Every rule made by the State
Government under sub-section (1), shall be laid, as soon as may be after it is made,
before each House of the State Legislature where it consists of two Houses, or where
such legislature consists of one House, before that House.
24. (1) If any difficulty arises in giving effect to the provisions of this Act, the Cen-
tral Government may, by order published in the Official Gazette, make such provi-
sions, not inconsistent with the provisions of this Act as appear to it to be necessary
or expedient for removing the difficulty: Provided that no such order shall be made
after the expiry of the period of two years from the date of commencement of this
Act. (2) Every order made under this section shall, as soon as may be after it is made,
be laid before each House of Parliament.

The transgender community is upset on new bill because of the following rea-
sons:
1) The definition of transgender
While the Bill that was passed by the Lok Sabha did amend the definition of
transgender from an earlier definition, which was more problematic, it is still not a
perfect definition.
The original definition in the Bill stated that a transgender person was one was “nei-
ther wholly female nor wholly male; or a combination of female or male; or neither
female nor male; and whose sense of gender does not match with the gender assigned
to that person at the time of birth, and includes trans men and trans women, persons
with intersex variations and gender-queers.”
After outrage from the community over this problematic definition, the definition
was amended to “a person whose gender does not match with the gender assigned to
that person at birth and includes trans-man or trans-woman (whether or not such
person has undergone Sex Reassignment Surgery or hormone therapy or laser ther-
apy or such other therapy), person with intersex variations, gender- queer and person
having such socio-cultural identities as kinner, hijra, aravani and jogta.”
As pointed out in a statement issued by Lawyers Collective57, while this revised def-
inition is better than the original one, a still clearer and more precise way to frame it
would have been “a person whose sense of gender does not match the gender as-
signed at birth.” As it stands, the statement reads, this current definition is “prone to
ambiguous and illiberal interpretation”.
As mentioned by Thiruvananthapuram Congress MP Shashi Tharoor on Twitter, the
Bill also incorrectly assumes that all persons with intersex variations are transgender
persons.
Moreover, to be recognised as transgenders, individuals have to submit themselves
to a medical examination by a District Screening Committee comprising of a Chief
Medical Officer, a psychiatrist, a social worker, and a member of the transgender
community. This is in stark contrast to the 2014 Bill which gives individuals the
right to self-identify their sex.
2) The anti-discriminatory clauses of the Bill are extended to education, health care
and social security. The provision of earmarking jobs for transgenders, a central
plank of the 2014 Bill, has been lost in translation, with the diluted new draft ditching

57
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trans-bill-93579
reservations and espousing equal opportunity in all spheres of life, as a panacea to
create equity among the sexes.
However, there is no mention of reservation in the government’s Bill, explains
Gee Imaan Semmalar, a trans activist from Sampoorna India.58
“Reservation or affirmative action was one of the major demands. If we have to enter
the employment and education sector, we need reservations. NALSA said trans peo-
ple should be considered socially and economically backward. The National Back-
ward Classes Commission have not given any objection to this Bill. Very soon, this
Bill will become law but they have remained silent on affirmative action,” Gee
states.
Referring to the clause in the Bill that states that the State will ensure the “rescue,
protection and rehabilitation” of transgender persons, Gee says “trans people do not
need rehabilitation, they need equity and equality through reservations.”
3) In Bill the concerns about recognising civil rights in marriage, divorce and adop-
tion are not being recognised.
4) Grievance redressal has been internalised, with establishments consisting of hun-
dred or more persons mandated to designate a complaint officer to deal with any
violation of the Act. This is in lieu of the setting up of central and State transgender
rights courts.
5) Criminalisation of begging
The new Bill also criminalises begging and prescribes a jail term for 6 months to 2
years for anyone who “compels or entices a transgender person to indulge in the act
of begging”. This makes trans persons and communities particularly vulnerable, as
Grace points out that many trans people in India are forced to take to begging due to
lack of employment opportunities.
Grace Banu59 (Grace Banu, a trans activist from Tamil Nadu and the founder of the
Trans Rights Now Collective, took to Facebook that stated that Tuesday was a “black
day for us”)states that it is ‘callous, damaging and cruel’ to criminalise one of the
only avenues trans people have to sustain themselves, that too, without providing

58
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trans-bill-93579
59
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any meaningful alternatives as demanded by the community and as allowed for by
the SC through reservations.
“The criminalisation of begging in this Bill is totally against us,” she says. “Ninety
per cent of trans people have to beg and do sex work. All right, if begging is criminal,
then what is the other step, what is the other way? They should give us an alternate
solution, saying, okay you can’t beg, but you can do this instead. This Bill doesn't
give us any solution.”
As Gee Imaan says, “In the face of structural marginalisation of the trans commu-
nity, one of the few livelihood options that they have is begging. If you’re not provid-
ing alternative opportunities and taking away the opportunities that they have, it is
completely unfair.”

Military service

LGBT people are banned from openly serving in the Indian Armed Forces.60 In late
December 2018, MP Jagdambika Pal (BJP) introduced a bill to the Indian Parlia-
ment to amend the Army Act, 1950, the Navy Act, 1957 and the Air Force Act,
1950 and allow LGBT people to serve in the Armed Forces.61

60
Dutta, Amrita (7 September 2018). "Indian Army is worried now that men can legally have sex with other
men". The Print
61
Parliament winter session: Bills seek ban on non-veg food at official events, rights to LGBT to serve in
armed forces". The New Indian Express. 28 December 2018.
JUDICIAL PERSPECTIVE

“Many trans sex workers cannot get access to justice just because they are trans sex
workers. The police in many times do not accept their complaints, ill-treat them and
many times file complaints against those trans sex workers who want to file com-
plaints. So, no justice! Courts also discriminate due to these widespread prejudices.”
—Kemal Ordek, Turkey 62

The transgenders in India are subjected to grave and pervasive violations,


that persist and perpetuate despite the Constitutional deterrence under the provisions
of Right to Equality etc. , especially due to the lack of sensitisation of the society as
regards to the substantial issues, as encountered by the transgender population in
India.

THE NALSA JUDGEMENT : A SIGH OF RELIEF FOR THE


TRANSGENDERS

A two-judge bench of the Supreme Court of India passed a landmark judgment on


15th April, 2014 upholding the rights of the transgender community. In a petition
filed by the National Legal Service Authority, the Apex Court gave the long over
due recognition of the transgender as the third gender. This judgment is the first step
in paving the way for the social acceptance of the transgender community in India
1) National Legal Services Authority vs. Union of India 63

62
Personal communication with Kemal Ordek, Red Umbrella Sexual Health and Human Rights Association
(July 2013)
63
(2014) 5 SCC 438
National Legal Services Authority v. Union of India was a Supreme Court Landmark
Judgement decided on 15 April, 2014 by a bench comprising of Justice K. S. Radha-
krishnan and Justice A. K. Sikri.
This Judgement is concerned of seeking redressal for grievances of the transgender
community who seek a legal declaration for their identity and rights in the country
and says that non recognition of their identities violate Article 14,15,16 and 21 of
the constitution of India. The community comprises of Hijras, Eunuchs, Kothis, Ar-
avanis, Jogappas, Shiv-Shakthis etc. and they as a group have to face a lot of prob-
lems, abuses regarding their gender, they are treated as untouchables. So there is a
need to change the mentality of the people and to accept this group as citizens of our
country with equal protection of rights guaranteed by the constitution same as of
other genders like male and female.
FACTS

There were two writ petitions filed to protect the rights and identity of the
transgender community:

1. NALSA constituted under the Legal Services Authority Act, 1997, filed a writ
petition No. 400 of 2012.
2. Poojaya Mata Nasib Kaur Ji Women Welfare Society, a registered association,
has also preferred Writ Petition No. 604 of 2013, seeking similar reliefs in
respect of Kinnar community, a TG community.
3. Laxmi Narayan Tripathy, claimed to be a Hijra, has also got imp-leaded so as
to effectively put across the cause of the members of the transgender commu-
nity and Tripathy’s life experiences also for recognition of their identity as a
third gender, over and above male and female. Tripathy says that non-recog-
nition of the identity of Hijras, a TG community, as a third gender, denies
them the right of equality before the law and equal protection of law guaran-
teed under Article 14of the Constitution and violates the rights guaranteed to
them under Article 21 of the Constitution of India.

ISSUES

As it is clear, these petitions essentially raise an issue of “Gender Identity”, which is


the core issue. It has two facets, viz.:
(a) Whether a person who is born as a male with predominantly female orientation
(or vice-versa), has a right to get himself to be recognised as a female as per his
choice more so, when such a person after having undergone operational procedure,
changes his/her sex as well?

(b) Whether transgender (TG), who are neither males nor females, have a right to be
identified and categorised as a “third gender”?

ANALYSIS

1. Article 14 of the Constitution of India states that the State shall not deny to
“any person” equality before the law or the equal protection of the laws within
the territory of India. It also ensures equal protection and hence a positive
obligation on the State to ensure equal protection of laws by bringing in nec-
essary social and economic changes, so that everyone including TGs may en-
joy equal protection of laws and nobody is denied such protection. It does not
restrict the word ‘person’ and its application only to male or female. Hi-
jras/transgender persons who are neither male/female fall within the expres-
sion ‘person’ and, hence, entitled to legal protection of laws in all spheres of
State activity, including employment, healthcare, education as well as equal
civil and citizenship rights, as enjoyed by any other citizen of this country.
Discrimination on the ground of sexual orientation or gender identity, there-
fore, impairs equality before law and equal protection of law and violates Ar-
ticle 14 of the Constitution of India.
2. Articles 15 and 16 prohibit discrimination against any citizen on certain enu-
merated grounds, including the ground of ‘sex’. In fact, both the Articles pro-
hibit all forms of gender bias and gender based discrimination. Constitution
makers, gave emphasis to the fundamental right against sex discrimination so
as to prevent the direct or indirect attitude to treat people differently, for the
reason of not being in conformity with stereotypical generalisations of binary
genders. Both gender and biological attributes constitute distinct components
of sex. Biological characteristics, of course, include genitals, chromosomes
and secondary sexual features, but gender attributes include one’s self image,
the deep psychological or emotional sense of sexual identity and character.
The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore,
includes discrimination on the ground of gender identity.
The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex
of male or female, but intended to include people who consider themselves to be
neither male or female. Articles 15(2) to (4) and Article 16(4) read with the Directive
Principles of State Policy and various international instruments to which Indian is a
party, call for social equality, which the TGs could realize, only if facilities and op-
portunities are extended to them so that they can also live with dignity and equal
status with other genders.

3. Article 21 of the Constitution of India reads as follows: Protection of life and


personal liberty – No person shall be deprived of his life or personal liberty
except according to procedure established by law.” Article 21 is the heart and
soul of the Indian Constitution, which speaks of the rights to life and personal
liberty. Right to life is one of the basic fundamental rights and not even the
State has the authority to violate or take away that right.
Recognition of one’s gender identity lies at the heart of the fundamental right to
dignity. Gender, as already indicated, constitutes the core of one’s sense of being as
well as an integral part of a person’s identity. Legal recognition of gender identity
is, therefore, part of right to dignity and freedom guaranteed under our Constitution.

4. Section 377of the IPC found a place in the Indian Penal Code, 1860, prior to
the enactment of Criminal Tribes Act that criminalised all penile- non-vaginal
sexual acts between persons, including anal sex and oral sex, at a time when
transgender persons were also typically associated with the prescribed sexual
practices.
5. While talking about gender identity and sexual orientation, Justice K.S. Ra-
dhakrishnan said that these both are different concepts.
Gender identity is one of the most-fundamental aspects of life which refers to a per-
son’s intrinsic sense of being male, female or transgender or transsexual per-
son. Gender identity refers to each person’s deeply felt internal and individual expe-
rience of gender, which may or may not correspond with the sex assigned at birth,
including the personal sense of the body which may involve a freely chosen, modi-
fication of bodily appearance or functions by medical, surgical or other means and
other expressions of gender, including dress, speech and mannerisms. Gender iden-
tity, therefore, refers to an individual’s self-identification as a man, woman,
transgender or other identified category.

Sexual orientation refers to an individual’s enduring physical, romantic and/or emo-


tional attraction to another person. Sexual orientation includes transgender and gen-
der-variant people with heavy sexual orientation and their sexual orientation may or
may not change during or after gender transmission, which also includes homo-sex-
ual, bye sexual, heterosexuals, asexual etc.

The judge also considered United Nations and other human rights bodies and Yog-
yakarta principles. There are many international laws as well which are being vio-
lated

•International Covenant on Civil and Political Rights (ICCPR).


•Article 6 (right to life).
•Article 7 (prohibition of torture or cruel, inhuman or degrading treatment).
•Article 16 (recognition before the law),
•Universal Declaration of Human Rights (UDHR)
•Article 6 (right to life)
•Yogyakarta Principles, Principles 1 (universal enjoyment of human rights), 2
(rights to equality and non-discrimination), 3 (right to recognition before the
law), 6 (right to privacy), 4 (right to life), 9 (right to treatment with humanity
while in detention), 6 (right to privacy), 18 (protection from medical abuses)
• Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) Articles 11 (discrimination in employment) and 24 (com-
mitment of State parties)
• Convention for Protection of Human Rights and Fundamental Freedoms (Eu-
ropean Convention of Human Rights), Article 8 (right to respect for private
and family life) and 14 (non-discrimination)
Vienna Convention on the Law of Treaties Articles 31, 32 (Interpretation of Inter-
national Conventions) 64

The Supreme Court took into consideration different foreign judgements like:

In Corbett v. Corbett65, the Court in England was concerned with the gender of a
male to female transsexual in the context of the validity of a marriage. In this case,

64
NALSA vs. UOI (2014) 5 SCC 438.
65
(1970) 2 All ER 33
the court said that the law should adopt the chromosomal, gonadal and genital tests
and if all three are congruent, that should determine a person’s sex for the purpose
of marriage. Learned Judge expressed the view that any operative intervention
should be ignored and the biological sexual constitution of an individual is fixed at
birth, at the latest, and cannot be changed either by the natural development of organs
of the opposite sex or by medical or surgical means.

Various other countries like New Zealand, Australia etc. did not favour this princi-
ple and also attracted much criticism, from the medical profession.

In New Zealand in Attorney-General v. Otahuhu Family Court66, Justice Ellis


noted that once a transsexual person has undergone surgery, he or she is no longer
able to operate in his or her original sex.

In Christine Goodwin v. United Kingdom (Application No.28957/95 – Judgment


dated 11th July, 2002), the European Court of Human Rights examined an applica-
tion alleging violation of Articles 8, 12, 13 and 14 of the Convention for Protection
of Human Rights and Fundamental Freedoms, 1997 in respect of the legal status of
transsexuals in UK and particularly their treatment in the sphere of employment,
social security, pensions and marriage. Applicant in that case had a tendency to dress
as a woman from early childhood and underwent aversion therapy in 1963-64. In the
mid- 1960s she was diagnosed as a transsexual. Though she married a woman and
they had four children, her inclination was that her “brain sex” did not fit her body.
From that time until 1984 she dressed as a man for work but as a woman in her free
time. In January, 1985, the applicant began treatment at the Gender Identity Clinic.
In October, 1986, she underwent surgery to shorten her vocal chords. In August,
1987, she was accepted on the waiting list for gender re-assignment surgery and later
underwent that surgery at a National Health Service hospital.

The Court after referring to various provisions and Conventions held as follows:-

‘’Nonetheless, the very essence of the Convention is respect for human dignity and
human freedom. In the twenty first century the right of transsexuals to personal de-
velopment and to physical and moral security in the full sense enjoyed by others in
society cannot be regarded as a matter of controversy requiring the lapse of time to
cast clearer light on the issues involved. In short, the unsatisfactory situation in

66
(1995) 1 NZLR 603
which post- operative transsexuals live in an intermediate zone as not quite one gen-
der or the other is no longer sustainable.’’

Legislations in other countries have also been analysed

In the international human rights law, many countries have enacted laws for recog-
nising rights of transsexual persons, who have undergone either partial/complete
SRS, including United Kingdom, Netherlands, Germany, Australia, Canada, Argen-
tina, etc.

• United Kingdom has passed the General Recommendation Act, 2004. The
Act is all encompassing as not only does it provide legal recognition to the
acquired gender of a person, but it also lays down provisions highlighting the
consequences of the newly acquired gender status on their legal rights and
entitlements in various aspects such as marriage, parentage, succession, social
security and pensions etc. One of the notable features of the Act is that it is
not necessary that a person needs to have undergone or in the process of un-
dergoing a SRS to apply under the Act.
• In Australia, there are two Acts dealing with the gender identity, (1) Sex Dis-
crimination Act, 1984; and (ii) Sex Discrimination Amendment (Sexual Ori-
entation, Gender Identity and Intersex Status) Act, 2013 (Act 2013). Act 2013
amends the Sex Discrimination Act, 1984. Act 2013 defines gender identity
as the appearance or mannerisms or other gender- related characteristics of a
person (whether by way of medical intervention or not) with or without regard
to the person’s designated sex at birth.

To safeguard and protect the rights of the transgenders guaranteed in the constitution
of India, it was declared that:

1. Hijras, Eunuchs, apart from binary gender, must be treated as “third gender”.
2. Transgender persons’ right to decide their self-identified gender is also up-
held.
The court held that transgenders falls within the purview of the Indian consti-
tution and therefore should enjoy all the rights of the constitution. These rights
include article 14 which guarantees right to equality. Article 14 is a right en-
joyed by “any person” (similarly, it applies equally to men, women and
transgender people. Hence, transgender people are entitled to equal legal pro-
tection of the law. They have equal right in employment, health care, education
and civil rights. Discrimination on the grounds of sexual orientation and gen-
der identity represents inequality before the law and unequal protection of the
law and violates Article 14.

Article 15 requires the improvement of socially and educationally disadvan-


taged groups. The Court says that transgender have not been able to enjoy the
provisions as under Article 15(4) for the advancement of the socially and edu-
cationally backward. They constitute such a group and the state is bound to
take some proper action to remedy the injustice done to them for centuries.

The Court stated that a person’s right to show or express gender identity
through words, dress, action or behaviour is included in the Article 19 (right
to freedom of expression). Privacy, self-identity, autonomy and personal integ-
rity are fundamental rights protected by Article 19.

The court also held that the Transgender community have the right to article
21. They have the right to live a dignified life and enjoy personal liberty.

The Court declared that the Centre and State governments must grant recogni-
tion of gender identity as male, female or third gender in the eyes of the law. It
was observed that transgenders require full recognition in the eyes of the law.
They should get to enjoy health care, education etc.

By this judgement all government documents such as ration card, passports


etc. would recognise third gender. The court also held that he transgender’s are
citizens of India and are fully entitled to get the benefit of all schemes and
programmes launched by the Government irrespective of their population.
Now the Election Commission of India has also taken special measures to en-
rol.

In his judgment in the NALSA case Justice Radhakrishnan admits this fact
in these words: “Seldom, our society realises or cares to realise the trauma,
agony and pain which the members of Transgender community undergo, nor
appreciates the innate feelings of the members of the Transgender community,
especially of those whose mind and body disown their biological sex. Our so-
ciety often ridicules and abuses the Transgender community and in public
places like railway stations, bus stands, schools, workplaces, malls, theatres,
hospitals, they are side-lined and treated as untouchables, forgetting the fact
that the moral failure lies in the society’s unwillingness to contain or embrace
different gender identities and expressions, a mindset which we have to
change”. From Justice Radhakrishnan’s opening lines talking about the moral
failure of society’s unwillingness to contain or embrace different gender iden-
tities and expressions, down to Justice Sikri’s cognisance of the painful pro-
cess of transitioning from one gender to another, this is a text that is shot
through with empathy.

Supreme Court directed Centre and State Government to :

• Grant legal recognition of their gender identity such as male, female or as third
gender.
• Take steps to treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission in educa-
tional institutions and for public appointments.
• Operate separate HIV Sero-survellance Centres since Hijras/ Transgenders
face several sexual health issues.
• Seriously address the problems being faced by Hijras/Transgenders such as
fear, shame, gender dysphoria, social pressure, depression, suicidal tenden-
cies, social stigma, etc. and any insistence for SRS for declaring one’s gender
is immoral and illegal.
• Take proper measures to provide medical care to TGs in the hospitals and also
provide them separate public toilets and other facilities.
• Take steps for framing various social welfare schemes for their betterment.
• Take steps to create public awareness so that TGs will feel that they are also
part and parcel of the social life and be not treated as untouchables.
• Take measures to regain their respect and place in the society which once they
enjoyed in our cultural and social life.
2) NAVTEJ SINGH JOHAR VS. UNION OF INDIA

Citation:
WRIT PETITION (CRIMINAL) NO. 76 OF 2016
court:
SUPREME COURT OF INDIA
judges:
CHIEF JUSTICE DIPAK MISRA, JUSTICE ROHINGTON NARIMAN, JUSTICE
D Y CHANDRACHUD, JUSTICE A M KHANVILKAR, & JUSTICE INDU
MALHOTRA

KEY FACTS:

Section 377 of the Indian Penal Code (IPC) criminalised consensual sexual inter-
course between persons of the same sex for being “against the order of nature”. In
2009, before the Delhi High Court, the Naz Foundation (India) Trust (“Naz”) chal-
lenged the constitutionality of Section 377 for violating Articles 14, 15, 19 and 21
of the Constitution. The court ruled that punishing sexual activity between two con-
senting adults under Section 377 violates the right to equality, privacy and personal
liberty of such persons.
This decision was appealed before the Supreme Court and in 2013, the Court re-
versed the Naz verdict in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.
(“Koushal”). It held that only the Parliament could decriminalize homosexuality.
Five individuals from the LGBTQ communities (Navtej Singh Johar, Ritu Dalmia,
Ayesha Kapur, Aman Nath and Sunil Mehra) filed a new writ petition challenging
the constitutionality of Section 377.

ISSUES & DECISION:


Issues
1) Was the rationale of the Supreme Court judgment in the Suresh Kaushal case
sound in its understanding of morality as social morality?
2) Whether Section 377 violates Article 14 and 15 by allowing discrimination on the
basis of "sexual orientation" and "gender identity"?
3) Whether Section 377 violates right to autonomy and dignity under Article 21 by
penalising private consensual acts between same-sex persons?
4) Whether Section 377 violates the fundamental right to expression under Article
19(1)(a) by criminalising the gender expression of persons belonging to the
LGBTQI+ community?

The Decision in ‘Koushal’

All five judges overruled Koushal. The Supreme Court reversed the Delhi High
Court verdict in 2013 in it SureshKoushal judgment and held that the decision of
decriminalising homosexuality can only be done by the Parliament and not the
Court. It also held that Section 377 criminalises certain acts and not any particular
class of people. It also alluded to the minuscule number of people who were mem-
bers of the LGBTI community and the fact that only a fraction amongst them had
been prosecuted under Section 377.The Court drew on the doctrine of progressive
realisation of rights to hold that rights should not be revoked. The march of a pro-
gressive society should only be forward.

The Court also noted the guarantee of a fundamental right to privacy in Justice K. S.
Puttaswamy (Retd.) vs Union Of India and held that Koushal’s finding that Section
377 affected only a ‘minuscule minority’ cannot be the basis to deny the right to
privacy. It observed that minorities face discrimination because their views and be-
liefs do not align with the majority and the Koushal decision violated the right of all
persons to equal protection.

The Litmus Test for Survival of Section 377

The Supreme Court tested the constitutionality of Section 377 against the principles
of equality, liberty, dignity under Articles 14, 19 and 21.
1. Right to Equality and Non-Discrimination
The Court observed that Section 377 arbitrarily punishes individuals who en-
gage in same sex relationships. To substantiate this, the Court noted that Sec-
tion 377 classifies and punishes individuals who engage in carnal intercourse
against the order of nature to protect women and children. However, this ob-
jective has no reasonable nexus with the classification, as unnatural offences
have also been separately penalised under Section 375 and the POCSO Act.
Therefore, the Court held that the unequal treatment of LGBT individuals vi-
olates Article 14.Further, the Court held that Section 377 is manifestly arbi-
trary as it does not distinguish between consensual and non-consensual sexual
acts between adults. It targeted people exercising certain choices and treated
them as “less than humans” and encouraged prejudices and stereotypes ac-
companied by debilitating social effects. This violates Article 14, which is the
very basis of non-discrimination.
2. Freedom of ExpressionThe Court acknowledged that all persons, including
LGBTQI individuals, had the right to express their choices without any fear. It
recognised same-sex sexuality as a normal variant of human sexuality. In par-
ticular, the Court noted that Section 377 stigmatises and discriminates against
transgender persons.Next, the Court tested whether public order, decency and
morality are reasonable grounds to restrict the right to freedom of expression
of sexuality under Article 19(1)(a). It noted that Section 377 criminalises pri-
vate consensual acts which neither disturb public order, nor injure public de-
cency or morality. Sexual acts cannot be viewed solely from the lens of mo-
rality where they are seen to be purely for procreation. An unreasonable re-
striction on acts within a person’s private space will have a chilling effect on
freedom of choice.For these reasons, the Court held that Section 377 is dis-
proportionate and violates the fundamental right to freedom of expression.

3. Right to Life and Personal LibertyThe Court held that Section 377 violates
human dignity, decisional autonomy and the fundamental right to privacy.
Every individual has the liberty to choose their sexual orientation, seek com-
panionship and exercise it within their private space. As Section 377 inhibits
the exercise of personal liberty to engage in voluntary sexual acts, it violates
Article 21. It socially ostracises LGBT persons and does not permit full real-
isation of their personhood.Denying the right to determine one’s sexual ori-
entation curtails the right to privacy of an individual. Therefore, the Court held
that the scope of the right to privacy must be widened to incorporate and pro-
tect ‘sexual privacy’.

“the Order of Nature”


Section 377 criminalises ‘unnatural sex’ which is “against the order of nature”. The
Court held that such a classification between natural and unnatural intercourse is not
legally valid. Naturalness should not determine the legality or acceptance of a phe-
nomenon. Penal consequences for an act that is unnatural or wrong cannot be im-
posed without sufficient justification.

Constitutional Morality
The Court described ‘constitutional morality’ as the ideals and morals of the Consti-
tution and the values that create an inclusive society. It recognized the Constitution
as a tool to transform society. A decision on whether a penal provision violates fun-
damental rights must be guided by the principles of constitutional morality and not
societal morality. Where a constitutional court finds that a provision violates consti-
tutional morality, it must be struck down.

Yogyakarta Principles
The Court observed that India is a signatory to the Yogyakarta Principles which pro-
hibits discrimination on the grounds of sexual orientation and gender iden-
tity. NALSA vs. Union of India also relied on these principles, though they are not
binding, to uphold the right of non-discrimination on the grounds of gender identity.
Relying on the Yogyakarta Principles and NALSA, the Court held that Section 377
does not conform with India’s international obligations.

Conclusion
The Court upheld the right to equal citizenship of all members of the LGBTQI com-
munity in India. Thus, it read down Section 377 to exclude consensual sexual rela-
tionships between adults, whether between same-sex individuals or otherwise. Sec-
tion 377 will continue to apply to non-consensual sexual activity against adults, sex-
ual acts against minors and bestiality.
SIGNIFICANCE:
The five-judge bench of the Supreme Court overruled the Koushal decision. It unan-
imously read down Section 377 and decriminalised same-sex relations between con-
senting adults. It applies to all citizens, and not just to the LGBT community. This
judgment holds immense persuasive value for other nations which continue to crim-
inalise homosexuality.

The famous quotes from the judgement:

Chief Justice Deepak Mishra and Justice Khanwilkar:


"I am what I am, so take me as I am"
"The emphasis on the unique being of an individual is the salt of his/her life. Denial
of self-expression is inviting death. Irreplaceability of individuality and identity is
grant of respect to self. This realisation is one‘s signature and self-determined de-
sign"
"The sustenance of identity is the filament of life. It is equivalent to authoring one‘s
own life script where freedom broadens everyday. Identity is equivalent to divinity."
"Constitution forming the concrete substratum of our fundamental rights that has
eluded certain sections of our society who are still living in the bondage of dogmatic
social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted
perceptions. Social exclusion, identity seclusion and isolation from the social main-
stream are still the stark realities faced by individuals today and it is only when each
and every individual is liberated from the shackles of such bondage and is able to
work towards full development of his/her personality that we can call ourselves a
truly free society"
"We have to bid adieu to the perceptions, stereotypes and prejudices deeply in-
grained in the societal mindset so as to usher in inclusivity in all spheres and em-
power all citizens alike without any kind of alienation and discrimination."
"Non-acceptance of it by any societal norm or notion and punishment by law on
some obsolete idea and idealism affects the kernel of the identity of an individual.
Destruction of individual identity would tantamount to crushing of intrinsic dignity
that cumulatively encapsulates the values of privacy, choice, freedom of speech and
other expressions. It can be viewed from another angle. An individual in exercise of
his choice may feel that he/she should be left alone but no one, and we mean, no one,
should impose solitude on him/her."
" All human beings possess the equal right to be themselves instead of transitioning
or conditioning themselves as per the perceived dogmatic notions of a group of peo-
ple. To change the societal bias and root out the weed, it is the foremost duty of each
one of us to stand up and speak up against the slightest form of discrimination against
LGBTs that we come across. Let us move from darkness to light, from bigotry to
tolerance and from the winter of mere survival to the spring of life ― as the herald
of a New India ― to a more inclusive society."

Justice Dr. DY Chandrachud:


"The lethargy of the law is manifest yet again"
"A hundred and fifty eight years ago, a colonial legislature made it criminal, even
for consenting adults of the same gender, to find fulfilment in love. The law deprived
them of the simple right as human beings to live, love and partner as nature made
them."
"The human instinct to love was caged by constraining the physical manifestation of
their sexuality. Gays and lesbians2 were made subordinate to the authority of a co-
ercive state.A charter of morality made their relationships hateful. The criminal law
became a willing instrument of repression. The offence would be investigated by
searching the most intimate of spaces to find tell-tale signs of intercourse. Civilisa-
tion has been brutal "
"Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal
citizenship seven decades after Independence. The law has imposed upon them a
morality which is an anachronism. Their entitlement should be as equal participants
in a society governed by the morality of the Constitution. That in essence is what
Section 377 denies to them. The shadows of a receding past confront their quest for
fulfilment."
"We must, as a society, ask searching questions to the forms and symbols of injus-
tice. Unless we do that, we risk becoming the cause and not just the inheritors of an
unjust society. Does the Constitution allow a quiver of fear to become the quilt
around the bodies of her citizens, in the intimacies which define their identities? If
there is only one answer to this question, as I believe there is, the tragedy and anguish
which Section 377 inflicts must be remedied."
" Democratic as it is, our Constitution does not demand conformity. Nor does it con-
template the mainstreaming of culture. It nurtures dissent as the safety valve for so-
cietal conflict. Our ability to recognise others who are different is a sign of our own
evolution. We miss the symbols of a compassionate and humane society only at our
peril"
"Sexual orientation has become a target for exploitation, if not blackmail, in a net-
worked and digital age. The impact of Section 377 has travelled far beyond the pun-
ishment of an offence. It has been destructive of an identity which is crucial to a
dignified existence"
"It is difficult to right the wrongs of history. But we can certainly set the course for
the future. That we can do by saying, as I propose to say in this case, that lesbians,
gays, bisexuals and transgenders have a constitutional right to equal citizenship in
all its manifestations. Sexual orientation is recognised and protected by the Consti-
tution. Section 377 of the Penal Code is unconstitutional in so far as it penalises a
consensual relationship between adults of the same gender. The constitutional values
of liberty and dignity can accept nothing less."

Justice Indu Malhotra:


"Sexual orientation is innate to a human being. It is an important attribute of one’s
personality and identity. Homosexuality and bisexuality are natural variants of hu-
man sexuality. LGBT persons have little or no choice over their sexual orientation.
LGBT persons, like other heterosexual persons, are entitled to their privacy, and the
right to lead a dignified existence, without fear of persecution. They are entitled to
complete autonomy over the most intimate decisions relating to their personal life,
including the choice of their partners. Such choices must be protected under Article
21."
"Section 377 affects the private sphere of the lives of LGBT persons. It takes away
the decisional autonomy of LGBT persons to make choices consistent with their
sexual orientation, which would further a dignified existence and a meaningful life
as a full person. Section 377 prohibits LGBT persons from expressing their sexual
orientation and engaging in sexual conduct in private, a decision which inheres in
the most intimate spaces of one’s existence."
"A subjective notion of public or societal morality which discriminates against
LGBT persons, and subjects them to criminal sanction, simply on the basis of an
innate characteristic runs counter to the concept of Constitutional morality, and can-
not form the basis of a legitimate State interest."
"History owes an apology to the members of this community and their families, for
the delay in providing redressal for the ignominy and ostracism that they have suf-
fered through the centuries. The members of this community were compelled to live
a life full of fear of reprisal and persecution. This was on account of the ignorance
of the majority to recognise that homosexuality is a completely natural condition,
part of a range of human sexuality. The mis-application of this provision denied them
the Fundamental Right to equality guaranteed by Article 14. It infringed the Funda-
mental Right to non-discrimination under Article 15, and the Fundamental Right to
live a life of dignity and privacy guaranteed by Article 21. The LGBT persons de-
serve to live a life unshackled from the shadow of being ‘un apprehended felons’"
Justice Nariman:
"The love that dare not speak its name” is how the love that exists between same-
sex couples"
"We are also of the view that the Union of India shall take all measures to ensure
that this judgment is given wide publicity through the public media, which includes
television, radio, print and online media at regular intervals, and initiate programs to
reduce and finally eliminate the stigma associated with such persons. Above all, all
government officials, including and in particular police officials, and other officers
of the Union of India and the States, be given periodic sensitisation and awareness
training of the plight of such persons in the light of the observations contained in
this judgment.”

3) SHIVANI BHAT versus STATE OF NCT OF DELHI & ORS67

Shivani Bhat v State of NCT of Delhi and ors: Affirming the rights of people mar-
ginalised on the basis of gender and sexuality.

In the wake of a controversial case of illegal confinement of an adult trans-


person and withholding of his travel and identity documents by his family,
Hon’ble Justice Siddarth Mridul of the Delhi High Court has passed a judge-
ment withholding the rights of Shivy as a transgender in Shivani Bhat v State
of NCT of Delhi and Ors on the 5th of October, 2015.

19-year-old transgender person Shivy, a citizen of India but a resident of the


United States of America was illegally confined in his grandparents’ home in
Agra when he came with his parents to visit them in the summer. While he
was a victim of domestic abuse by his family even in his California home, on
this visit to India his passport and green card were confiscated by his family
and he was forced to remain in Agra under their control. Even under this du-
ress, Shivy managed to contact queer feminist resource group Nazariya and
other queer rights activists and request their help to come to a safe space in
New Delhi. Despite leaving a note informing his family that he was leaving
67
W.P.(CRL) 2133/2015IN THE HIGH COURT OF DELHI AT NEW DELHI
of his own free will, his parents filed a missing person’s complaint with UP
Police with the support of Delhi police, harassed, surveilled and threatened
the activists who helped Shivy.

Subsequently lawyers Menaka Guruswamy and Arundhati Katju, Shivy and


the LGBT activists moved the Delhi High Court on September 22 seeking
protection for Shivy, his friends and well wishers from harassment, intimida-
tion and coercion, and to ask for the return of his passport and green card
from his family.

In an outstanding judgment on the case dated 5th October, 2015, Hon’ble


Justice Siddarth Mridul “The present petition highlights and brings to the fore
the socio-economic marginalisation and exclusion of those whose behaviour
is considered “inappropriate” by society. It clearly demonstrates that those
who do not conform, render themselves vulnerable to harassment and vio-
lence not just by the Police but also by society that ridicules them.
Transgenders have long lived on the fringes of society, often in poverty, os-
tracised severely, because of their gender identity. They have for too long had
to endure public ridicule and humiliation; have been socially marginalised
and excluded from society, their basic human rights have been severely de-
nuded”. The judgement reads, “Despite the decision of the Hon’ble Supreme
course in National Legal Services Authority v. Union of India and Ors:
(2014) 5 SCC 438, the trauma, agony and pain, which members of the
transgender community have to undergo continues unabated. It further
says, “Every human being has certain inalienable rights. This is a doctrine
that is firmly enshrined in our constitution. Gender identity and Sexual orien-
tation are fundamental to the right of self-determination, dignity and freedom
of individuals. A transgender’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 recognised in their chosen gender.
This view is buttressed by the landmark decision of the Supreme Court in Na-
tional Legal Services Authority (supra)” Upholding the rights of transgender
persons, the judgement also says, “There is, thus, no gainsaying the fact that
transgenders enjoy basic human rights including protection from violence and
discrimination. They have the right to dignity and self-determination.”
The judgement also mentioned the false FIR lodged against Unknown per-
sons supporting and helping Shivy in the time of help. Mr. Avi Singh, Addi-
tional Standing Counsel (Crl.) assured the court that Delhi Police does not in-
tend to take coercive steps either against Shivani or against those who offered
to support her. Despite being served notice, there was no representative from
respondent No. 2 the State of Uttar Pradesh but the court has issued a direc-
tion to respondent No. 2 not to harass or illegally confine anybody from
within the territorial jurisdiction of this court except in accordance with the
procedure established by law. Shivy says that he is happy with the judgement
and he can continue with his life and studies in the US now. Rituparna Borah
from Nazariya says, “I am elated with the judgement as it upholds individual
freedom and liberty of gender identity and sexual expression. Hope this
judgement helps other people who are still struggling and facing custodial vi-
olence from family.”

Lesley Esteves, a queer rights activist who was part of Shivy’s support net-
work, said that “I would be proud to have a son like Shivy, unlike his parents
Laxminarayan Bhat and Seema Rani Bhat who abysmally failed to support
him. Instead they illegally dispossessed him of his documents and confined
him against his will because of their severe transphobia and utter disrespect
for law. They knowingly filed a false complaint against us with UP Police al-
leging that he was kidnapped, despite receiving a letter from him that he was
leaving of his own free will. Effectively, his abductors tried to charge others
with kidnapping, in order to cut off his support system in India. But the par-
ents did not imagine that a court would step in to protect constitutional rights
of Shivy and other queer people supporting him. They were firmly rebuked
by the court today, when they were told by the judge that he would “end this
bigotry today”. We are greatly encouraged by this judgment. The LGBTQIA
movement will continue to fight for inalienable rights of transpersons when
their families act criminally against them”.

This judgement succeeds the interim order on 22nd September where the
Delhi High Court directed the Delhi Police to provide protection to 19-year-
old Shivy and LGBTQ activists supporting him from the harassment, intimi-
dation and coercion they are facing by his family. Quoting playwright and ac-
tivist late Safdar Hashmi who had talked about how our expression is based
on the experience that we have, Justice Siddharth Mridul commented on how
it was that people are so quick to pass judgement on things they know little
about, that may not be their own experience, like sexual orientation. He noted
that this was nothing but bigotry, though this is supposed to be a tolerant
country.

4) Allahabad High Court


Ashish Kumar Misra (Advocate) vs Bharat Sarkar Thru. Sachiv ... on 15 April,
201568

KEY FACTS:

A public interest petition was filed regarding food security of transgender per-
sons under The National Food Security Act, 2013 (NFSA). Section 13 of the NFSA
deals with who is considered the “head of the household”. The section is gender-
specific. It mandates that the head of the household must be the eldest female, or in
her absence, the eldest male, above the age of 18 years.

The section does not recognise transgender persons as “head of household”. This
excludes transgender persons from availing ration cards. Thus, Ashish Kumar filed
this petition to challenge the NFSA in the High Court of Allahabad.

The provisions of Section 13 of the Act:

"13. Women of eighteen years of age or above to be head of household for purpose
of issue of ration cards.- (1) The eldest woman who is not less than eighteen years
of age, in every eligible household, shall be head of the household for the purpose
of issue of ration cards.

(2) Where a household at any time does not have a woman or a woman of eighteen
years of age or above, but has a female member below the age of eighteen years,

68
AIR2015All124
then, the eldest male member of the household shall be the head of the household
for the purpose of issue of ration card and the female member, on attaining the age
of eighteen years, shall become the head of the household for such ration cards in
place of such male member."

Section 13 forms part of Chapter VI of the Act which has a provision for the em-
powerment of women. Stipulating that the eldest woman of every eligible household,
above the age of eighteen, shall be the head of the household for the purpose of the
issue of ration cards is intended to recognise and strengthen the dignity, role and
status of women. Parliament gave legal recognition to the significant responsibilities
which women as decision makers have in a family. This includes those having a
bearing on food security. In enacting Section 13, Parliament recognised the roles and
responsibilities which are discharged by women. That role has been conferred with
a statutory status and recognition by providing that the eldest woman, above the age
of eighteen in a household, shall be regarded as the head of the household.

ISSUE

The an important issue pertaining to the availability of food security for


transgenders. In National Legal Services Authority Vs. Union of India2, the Su-
preme Court recognised the fundamental right of the transgender population as citi-
zens of the country to possess an equal right to realise their full potential as human
beings. Incidental to the fundamental right to live in dignity under Article 21 of the
Constitution, is a right of access to all facilities for development of the personality
including education, social accumulation, access to public places and employment
opportunities. The Supreme Court observed that since transgenders are neither male
nor female, treating them as belonging to either of these categories, will be a denial
of their constitutional rights. The recognition of transgenders as the third gender in
law has thus become an intrinsic part of the right to life protected by Article 21 of
the Constitution. It is a part of and incidental to the fundamental expression of the
human personality. The full expression of gender is what the Constitution embodies.
A ration card is an important document issued by public authorities to enable the
holder and her family to gain access to subsidised food-grain. That is why the objec-
tive and transparent administration of schemes for the issuance of ration cards are a
critical element in enhancing access to food security. Food security means no less to
a transgender than to other segments of society. Impoverishment and marginalisation
have been endemic to the transgender population. Preventing discrimination in all
walks of life is one facet of the right of transgenders to live in dignity, with the
confidence that they can lead their lives on their own terms in realisation of gender
identity. But the law needs to travel beyond non discrimination, by recognising an
affirmative obligation of the State to provide access to social security. Food security
lies at the foundation of it. Transgenders must have both.

For the purposes of these proceedings, we are of the view that the form which has
been prescribed by the State Government, duly takes into account the concerns of
the transgender population by recognising their entitlement to seek access to food
security and to avail of the status of the head of a household.

We are of the view that the clarification, which we have issued above, would suffi-
ciently subserve the important public purpose, which is served by the institution of
the writ petition by a member of the Bar. The effort which has been made by the
learned counsel must be duly appreciated by the Court.

DECISION:

The Court noted that ration cards were essential to providing food security for all
citizens. It also noted that Section 13 of the NSFA was not intended to exclude
transgender persons. However, it held that State Governments should address
transgender persons’ access to food by incorporating a provision which listed
transgender persons as “head of household” under the NSFA

SIGNIFICANCE:

The Court upheld the fundamental right of transgender persons. It addressed the gen-
der-specific nature of an Act essential to accessing fundamental rights.
5) GANGA KUMARI VS. STATE OF RAJASTHAN69

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil


Writ Petition No. 14006 / 2016 Ganga Kumari D/o Bhikha Ram, Aged About 24
Years, R/o Village- jakhari, Tehsil-raniwada, District-jalore ( petitioner)
versus
1. State of Rajasthan Through Secretary, Department of Home, Govt. of Rajasthan,
Jaipur

2. The Director General of Police, Police Head Quarter, Rajasthan, Jaipur

3. The Superintendent of Police, Jalore

The case lying in a narrow compass, has a larger socio- cultural concern and even
larger canvas.

The petitioner known as 'Ganga Kumari', has been claiming herself to be a person
belonging to feminine gender. The petitioner having acquired requisite educational
qualification, vied for the post of Constable. The petitioner after clearing the written
examination successfully underwent Physical Efficiency Test and Physical Standard
Test. Her documents and credentials too were found in order; for which her name
was shown in the selection list. When the petitioner was called for medical test, it
transpired that the petitioner is a 'Hermaphrodite' - commonly known as 'unisex' of
'transgender'. Such being the medical report, the respondents took their hand off and
instead of permitting her to join, they pushed her file in dormancy. Ganga Kumari
repeatedly requested the recruitment board to confirm her appointment. However,
she did not receive any response for them. Therefore, she filed a petition before the
High Court of Rajasthan seeking directions to confirm her appointment as an OBC
Female or as a transgender person.

69
[CW-14006/2016]https://indiankanoon.org/doc/194005345/
The meaning of 'hermaphrodite', which means an individual in whom reproductive
organs of both sexes are present. In common parlance, they are called 'Transgenders'
or ‘Eunuch'.

ISSUES & DECISION:

The Court had to ascertain whether the recruitment board had discriminated against
the petitioner by not appointing her the post of a police constable.

Ganga Kumari argued that the recruitment board had discriminated against her on
the basis of her gender identity. She claimed that the respondent’s inaction regarding
her application amounted to a rejection of her application. This was a violation of
her right to equality (Article 14), right to equality in public employment (Article 16),
and right to liberty (Article 21). The respondents argued that the State of Rajasthan
had not recognised the “third gender” and were awaiting the enactment of the law
pending before Parliament.

The court held that the petitioner could not be denied her fundamental rights merely
because of sex or gender identity. The court emphasised that the right to life, equality
and non-discrimination was applicable to all persons, regardless of their gender iden-
tity. It upheld the right of all persons under Article 19(1)(a) to freely express their
gender identity. Furthermore, it referred to the Supreme Court decision in NALSA
v. Union of India to argue for the protection of transgender persons’ constitutional
rights.

Thus, the court held that the petitioner has the right to self-identify her gender. She
has claimed herself to be female and directed the respondents to issue an order of
appointment to the petitioner.

In addition to the order on the appointment, the court observed that the determination
of sex through medical examination after asking candidates to disclose it in the ap-
plication amounted to a violation of the right to privacy under Article 21. It held that
unless the job requires information on the ‘sex’ of a person, the relevant column in
forms should be titled ‘gender’.

SIGNIFICANCE:
Although the judgment used the term ‘transgender’ and ‘intersex’ interchangeably,
this case delved into the definition of transgender persons. It also discussed the dif-
ference between “sex” and “gender identity”. The Court upheld the NALSA judge-
ment in protecting transgender persons’ constitutional rights.

Ganga Kumari became the first transgender constable in the Rajasthan police
force.
6) S.Tharika Banu (Trans women) vs The Secretary To Government on 29 No-
vember, 2017

IN THE HIGH COURT OF MADRAS( W.P.No.26628 of 2017 and


W.M.P.Nos.28349 and 28350 of 2017)70

On the 29th of November, 2017, a single judge bench of the Madras High Court
decided whether a transgender woman[1] could be admitted to an undergraduate de-
gree even though she had not obtained certain minimum marks for admission. The
High Court decided the transgender woman, S. Tharika Banu, must be admitted to
the degree because the, “minimum marks holds good only for “males” and “fe-
males”, and not for transgender persons. The court made this relaxation for Banu
keeping in mind, the rareness of her demand, the harassment and discrimination
faced by transgender persons in society, and the directions of the Supreme Court in
the NALSA case.
Banu had obtained 537/1200 (44.75%) marks whereas the minimum threshold to be
considered for admission to the undergraduate course was 50%. A little background
about Banu is important here because arguably, the court considers the background
an important reason to provide relief. Banu was assigned male at birth “but due to
chromosomal aberration…started identifying himself more as a female than as a
male.” Without more it is difficult to say what this phrase means but arguably this
signifies that Banu had an intersex condition at birth/developed one later, if that is
possible, and as a consequence started to identify as a woman. This was not accepta-
ble to her parents, and Banu left home at a young age, and underwent a sex-reassign-
ment surgery (SRS). Thereafter, she took on a traditionally more feminine name and
has been living as a female.

The respondent issued prospectus for the year 2017-18 for the course of
BSMS/BAMS/BNYS/BUMS/BHMS and the petitioner applied for the course

70
https://indiankanoon.org/doc/86524224/
BSMS (Bachelor of Siddha Medicine and Surgery). Since, the petitioner success-
fully passed +2 examination, she is entitled to a seat in the above said course under
transgender category. Though the Hon'ble Supreme Court as well as first bench of
this Court directed the respondents to provide a separate column for transgender,
apart from male and female, the respondents have not provided separate column for
them in the prospectus. The petitioner's application No.5588 under the communal
category of SC and transgender was not considered and merit list dated 06.10.2017
was published, in which the petitioner's name does not find place. Therefore, the
petitioner has come before this Court, challenging the very merit list for UG course
in Indian Medicine and Homeopathy for the academic year 2017-18, dated
06.10.2017.She also passed her higher secondary exam with the above mentioned
marks.

Recounting the stigma faced by transgender persons in society, the court surmised
that, ….

…for the first time in history, a transgender person has knocked on the doors of this
court seeking to consider her candidature for admission in BSMS course…it is a
welcome change that they have come forward to get higher education. instead of
living normal stigmatic life as a transgender and in spite of undergoing various in-
sults and even assaults, harassments in the hands of some unruly elements, when
they come forward to get education, the same has to be encouraged and based on
technicalities, the transgender persons coming forward to join educational institu-
tions should not be driven out…[i]t is not as if many transgender persons have ap-
plied for seats…on very rare occasions, this kind of claims would be made and that
has to be considered with compassion and benevolence. [paragraphs 9-12]

Accordingly, the court directed the State to admit her into the undergraduate course
(Bachelor of Siddha Medicine and Surgery).

“The Court hopes that this order would be a first step to throw open doors of educa-
tional institutions for the entry of ‘Transgenders’ for their social empowerment, em-
ployment status, dignity, right etc….” [para 13]
Tharika Banu became the first registered transgender71 person to complete her
secondary education in Tamil Nadu.72

IMPERIAL STUDY

Coming on to the subject matter of the project work, we were required to undertake
a study of Transgenders in the city of Ludhiana.

To accomplish this, we got questionnaire which contained questions relating to the


social, religious, educational aspects of the lives of transgenders. There are total 26
respondents who answered the questionnaire.

71
Tamil Nadu HSC results 2017: 1st registered transgender to clear exam hopes to become doctor - Times
of India". The Times of India. Retrieved 2018-02-17.
72
"Chennai: Transgender wins battle for higher education". deccanchronicle.com/. 2017-12-06. Re-
trieved 2018-02-17.
We started our research by going to various places like the railway station, the bus
stand, different traffic lights and finally paid a visit to Saleem Tabri.

General Aspect:

Age Group

The respondents were mostly from age group of 25-40 years.i.e. 46% respondents
of them fell into this category. 35% respondents are of the age group 18 to 25 years.
15% respondents are of age group of above 40 years. 4% respondents are in the age
group of 10-18 years. No respondent found under age of 10 years.

Gender to which transgender associate themselves with

Pie Chart Below 10


10-18
18-25
25-40
Above 40
15% 0%
4%

35%

46%

The transgenders generally relates themselves with gender i.e. either male or female
but there were few respondents which were queer. 81% respondents associated
themselves with female while rest 12% respondents were male and queer were only
8% respondents.
Male Female Queer

8% 12%

81%

We asked them at what age they or there family realised that they are transgender to
which 58% respondents said they realised at age of 10 - 18 years while 35% respond-
ents said their family realised by age of 10 years. Rest 8% respondents realised at
age of 18 - 25 years.

To understand the psychology of our respondents in relation to their being third gen-
der, we asked them if they were comfortable in talking about their gender and issues
related to it to which 65% respondents said they are comfortable in talking about
their gender while 35% respondents said they are not comfortable in taking about
their gender.

EDUCATION

EDUCATION QUALIFICATION

To question of education qualification 62% respondents replied they are educated


while 38% respondents said that they are illiterate. Out of 62% educated respondents
81% respondents went to Government schools while rest 19% respondents went to
5 TH 8 TH
10 TH 12 TH
GRADUTE POST GRADUATE
ANY OTHER

6% 13%
0%
13%

38%
31%

private schools.

Out of 62% respondents who went to school only 6% respondents are just 3rd class
passed while 13% respondents are 5th class passed. Most of the respondents are 8th
class pass i.e. 38% then followed by 10th class pass outs i.e. 31% respondents and
then only 13% respondents are 12th class passed.

When asked from 38% illiterate respondents that why they did not go to school. To
which 54% respondents replied due to economic constraint in family while 23% re-
spondents said that they faced discrimination everywhere. 15% respondents had fear
of society how they will response to their gender. Rest 8% respondents had no inter-
est in schooling and studying.

ECONOMIC ASPECT

The major question comes about their earnings their livelihood. On basis of their
qualification they wont be finding any jobs. None of them were doing business also.
Most of respondents were earning their livelihood by giving blessings i.e. 85% and
rest 15% respondents were earning through performance in religious ceremony and
pooja.

INCOME MONTHLY

By pursuing these two livelihood only 8% respondents earns above 20 k monthly


while 38% respondents of them earns between 10k - 20 k monthly and other 38%

2K-5K 5K- 10 K 10K - 20 K ABOVE 20 K

8% 15%

38%
38%

respondents earns between 5k - 10 k monthly. Where as there are 15% respondents


who earn very less between 2k - 5k monthly only.

When they were landed in their particular group of transgenders were they forced to
take a odd jobs for earning to which 31% respondents said yes to our surprise while
69% respondents said no they did job on their wish. Out of these 31% respondents
who forced to do odd jobs most of them i.e. 38% respondents had to serve the Guru
while 15% respondents were have to dress up in different manners and 8% respond-
ents had to go places where they can find newborns or newly wedded couples. Then
their 15% respondents who had to do some other jobs like sex workers. There were
23% respondents who had to do all of the above odd jobs in there particular group.

Then there arise a question that did shifting in a group change there life in any man-
ner to do odd jobs for earning to which 73% respondents said yes their lives are
changed lot while 27% respondents said no it didn't brought much of change in there
lives.

When asked about what kind of changes did it brought to which 29% respondents
said they had to stay away from family which was difficult. While24% respondents
said they were happy shifting in a group , some came after death of their parents they
had no other choices. 12% respondents said they were restricted to move out their
own from group while 6% respondents had to leave their education. 29% respond-
ents said all the above are reason how their life changed when they shifted to the
group.

SOCIAL ASPECT

Religion they Believe

Transgenders were thought to be spiritually powerful in ancient times. Even in to-


day’s modern world there blessing are termed to be very blissful. Then a question
comes to mind that are they themselves believers of God or any religion. To which

HINDU JAINISM SIKHISM


BUDDHISM MUSLIM

17%
0%
11%
0%
72%

65% respondents responded that they believe in some religion while 35% doesn't
believe in any religion surprisingly. Out of those 65% respondents 72% respondents
believe in Hinduism while 17% believe in Muslim and rest 11 % in Sikhism.
Now one of the major question is that does transgenders are ac-
cepted socially by public or not. In order to get answer of this question an question
was asked in questionnaire that what difficulties do they face in daily life. To which
the 26% respondents gave shocking answer that they cannot use public toilets. While
11% were harassed by suspecting looks of other people and well 11% respondents
harassed in public places like malls etc. 7% respondents had faced harassment in
government offices by Government staff when they went there for getting ration
card, electoral roll name enlisted, Aadhaar card etc. 4% were denied jobs due to there
third gender and 37 % had felt all of above harassment once in while in their life
time.

DIFFICULTIES FACED BY TRANSGENDER

DENIED JOBS
HARASSED IN HOSPITAL
HARASSED BY AIRPORT SECURITY
HARASSED IN GOVT OFFICES
HARASSED IN PUBLIC PLACES LIKE MALLS ETC
PUBLIC TRANSPORT ISSUE

4%
0%
0%
7%

37% 11%
4%

26%
11%

Most numbers of transgender stays in rural area i.e. 38% while 23 % stays in urban
and semi urban areas each and 15% stays in slum areas. As transgenders don't get
housing facility easily so its one of the biggest issue of there life.

About 85% of the respondents out of 26 respondents celebrate all of the festivals
like holi, Diwali, id, etc. and rest 15 % doesn't believe in any festivals.
There is major festival of transgender called Koovagam. Koovagam is a village in
Tamil Nadu which is famous for its transgender festival of God Ara-
van(koothandavar). The duration of this festival is 15 days and celebrated in Chaitra
Month..i.e. April may month. Only 8% of the respondents have visited there while
92% of respondents had no knowledge about it.

There is very ancient and famous traditional practice of nirvan in transgenders in


which male to female transform of body is by done by traditional ways and male
transgender converts into female transgenders and got nirvan from male to female.
There was question on it that does respondents have any knowledge of nirvan to
which 15% respondents said they knowledge of it while 85% respondents had no
knowledge of nirvan. Out of 26 respondents none of them have ever tried about nir-
van. 65% of respondents out of 26 respondents said they are satisfied with there
gender so they don't want to try nirvan while 15 % had no knowledge about nirvan
and other 15% had other reasons like fear of change, money issues, etc. and only 4%
were afraid that it might be painful so they don't want nirvan.

There is a medical procedure to change the sex from male to female or female to
male which is called Sex Reassignment Surgery.When a question asked that re-
spondents would like to go for Sex Reassignment Surgery(SRS) to 52 % said no they
don't want it. While 48% said they want SRS.

61% respondents out of these 52% respondents who don't want to go for sex reas-
signment surgery(SRS) because they cant afford it. While 33% said they are content
ended to their own gender and 6% had no knowledge about sex reassignment sur-
gery(SRS).

Government Should look into above matters.


RESERVING SEATS IN ELECTIONS
STRINGENT LAW
HEALTH CARE CENTRE
SRS SUBSIZIED

12%

27%
58%

0%
4%

Then there was question on what should government do to enhance there position
in the society to which 27 % respondents said there should be a stringent laws for
people who abuse and violates rights of the transgenders like SC ST act. While 12
% asked for reservation of seats in the representative bodies. 4% wants that there
should be subsidy on the sex reassignment surgery and 58% demands all of the above
demands.

There was question that what do they demand from public or they want to make
appeal to public. To which 42% said transgenders should be treated by public with
dignity and respect while 4 % wants that public should accept them as third gender
like male and female. 4% wants that public make them comfortable and don't tent
them to be alienated. 50% of the respondents demanded all of the above demands.

FAMILY ASPECT
Family is an important aspect in every ones life. Transgenders are most affected
when their family doesn't supports them as there family becomes there opposite and
oppresses them. Various questions on family aspects were asked from the respond-
ents and the result of which were very shocking.

Very first on family aspect was that how did respondents end up in a transgenders
group to which 19% respondents said they were left by there parents in the group
while 19% said that they were suggested by someone to join group as they were not
comfortable with there biological family, same was the case for 12% who ran away
from home and joined the group as they were beaten and tortured at home. Most
50% said that they were brought here group itself.

When asked about are they in contact with their biological family to which most
heartbreaking result came out that only 19% respondents are in contact with family
while 81% had no contact with family in which they were born do u ignorance, tor-
ture, etc by their family members. Out of these 19% respondents 40% said they meet
their biological family once in year, while other 20% meet once in 6 month and 20%
of these 19% respondents meet them monthly and weekly each respectively.

Why staying in group is easier ?


Comfortable in own gender less social stigma
Society doesn't accept

10%

40%

50%

When asked about the leaving condition in group are they comfortable living in it to
which 65% said they are comfortable with living condition in group while 35% are
not happy with the living condition in the group. An important question was that
leaving in group easier to which most of respondents i.e. 88% said yes while only
12% said no. and when asked why is it easier to live in group to which 50% respond-
ents replied that they face less social stigma in group then outside world, where as
40% said that they are more comfortable in own gender and rest 10% gave answer
that society doesn't accept them as transgenders so they are happy in the group itself.
It was asked from those 12% that who are not happy in staying in group that did they
ever tried to leave the group to which 78% respondents out of those 12% respondents
said no while 22% said yes they tried to move out of the group. These 22% respond-
ents who tried to leave group but was not successful because out of these 22% re-
spondent 63% said they had no other source of livelihood or income while 13% said
they are afraid to face society alone. 6% respondents were allowed to leave group
event they wanted to leave while 6% said they didn't left the group because they felt
it was like home to them and they are happy here.13% respondents said they had all
above of the reason for not leaving group.
These transgenders group have minor in them also. When asked about do you have
minor in your group to which 62% respondents said they have minor in group while
38% said they doesn't have any minor in group as police harass them more if they
have minor in group by one or other mean.

62% respondents who had minor in group were asked that they provide education
facilities to them ? to which 50% said yes while other 50% respondent said no. Then
asked why they are not provided with education to which respondents replied that
42% had no interest in education while 25% had wrong conception that education
wont make difference to them and another 25% were not getting education due to
economic issues. 8% said its affect there business capability(i.e giving blessing)
when they are provided with education so thats why they don't give them education.

Relation they have with group.

family type Mother child Friendly master and servant

19%

8%
58%
15%

When asked about what kind of relationship they had with group to which surpris-
ingly 58% respondents said they live like family. They except each and every one
and take care of them as part of there own family. While 15% respondents said they
have relation of mother and child with group. Group take care of them as if respond-
ents are their child and they are their mother. We had 19% respondents who felt that
group order them and their master and they have to follow as group’s servant.
Respondents were asked that does there group headed by guru to which 65% re-
spondents said yes while 35% respondents said no.When asked how they assist guru
in day to day life ? to which 35% respondents said by earning livelihood to them as
relation of master and servant whereas 30% respondents said they assist guru by
doing household chores an 10% respondents said by doing any other stuff(which
they refused to tell). 25% respondents said they take personal care of the guru.

When we asked respondents about there wish to get married life ? To which our
surprise 62% respondents said yes they want married life while 38 % respondents
said no they don't want one.

When asked that do they wish to have children ? we got mix response from them
50% respondents said yes they want children while 50% respondents said they don't
want children as they themselves doesn't live good life how can they provide such
life to their children. Those 50% respondents who wish to have children we asked
from them how they wish to have children to which 40% respondents said they want
to adopt other transgender child so that they can improve life of that child. The prob-
lem they faced in life may not seen by these transgender children when they are
adopted. While 33% said they prefer adoption of children and rest wish to get there
gender changed and have their own children.

We asked them does they felt exclusion from adoption and marriage laws as state is
negligent towards their rights? to which 88% respondents said yes state is negligent
toward there rights while 12% respondents said no as even God made them like this
only that they can't marry and have children.

LEGAL AWARENESS
It is said that you make person legally aware of his right you makes person’s life
easy. We asked some legal awareness question from respondents. Do you aware of
the Transgender Bill 2016? 62% respondents said that they are not aware of
Transgender Bill. Just 38% respondents said they are aware of transgender bill 2016.
Of these 38% respondents who had knowledge of this bill were asked if it would be
helpful in enhancing your position in the society to which respondents gave mixed
response. 50% respondents said yes it will be helpful while rest 50% respondents
said it wont be helpful.

We asked respondents that transgender bill certifies you are transgender. What effect
it will have on you? To which 69% respondents said it will be beneficial while 31%
respondents said it will be derogatory on us.

From those 69% respondents who said it will be beneficial, how? To which 17%
respondents said it will give them their identity as third gender where as other 17%
respondents said government will be more attentive towards them. While 28% re-
spondents said it will strengthen their position in the society and 39% respondents
said all of the above things will be noticed for transgenders.

Those 31% respondents who said it will be derogatory for them. It was asked how it
will be derogatory to them to which 11% said it will isolate them from the society
as they will be openly termed as Transgender i.e. Thirdgender. While 22% respond-
ents said it will make no difference in the mind set of the people and rest 67% re-
spondents said that we don't want to be identified as third gender in life.

As voting right given by constitution under article 326 of the constitution of India,
we asked do they go for voting as they were given legally voting rights as third
gender in 1994? to which 69% respondents said yes they go for voting while 31%
respondents said they wont go for voting. It was asked that are they aware of their
voting rights to which 88% respondents said they have knowledge of their voting
rights, while 12 % respondents said they have information about their voting rights.
Do you have voter id card to which 62% respondents said yes while 32% respondents
said no.

Why do transgenders take less part as contestant ?


Society not accept s elective representative Threatened and bullied by other candidate
dont want to come in limelight and face people All of the above
any other specific

22% 19%

7%

26%

26%

None of the respondents ever contested election. A question was asked that
transgenders have right to contest election but why do we not see people from this
community comping forward to contest elections to which 26% respondents said
that they do not want to come in lime light whereas other 26% respondents said they
have fear of being bullied and threatened by other candidate.19% respondents said
society wont be accepting them as their elective representative while 22% respond-
ents said they do not have money and resources to contest elections. 7% respondents
said all the above mentioned reasons are responsible for not having any person from
there community in election as contestant.

Well we have read in various newspapers that transgenders are being harassed many
times so we asked them a question that have they ever been harassed by general
public or government authorities to which 46% respondents said that they were har-
assed in there life many times while 54% respondents said they were not harassed
by public or government authority. We asked them that they have fundamental right
of privacy do they feel it is abridged in any way? to which 46% respondents said
they felt it many times while again 54% said they doesn't felt like there privacy was
abridged in any way.

Out of those 46% respondents who said there right of privacy was abridged we asked
harassed by police
landed in police custody unnecessarily
Ridiculed by people for my gender
All of the above

31%

63%
6%
0%

how it was abridged to which 31% respondents said they were harassed by police
whereas 6% respondents said they landed in police custody unnecessarily, while
63% respondents said they faced all kind of harassment like harassed by police,
landed in police custody unnecessarily, ridiculed by people for third gender etc.

Article 21 A give fundamental right of education to all, even then also transgender
are abstain from going to educational institution we asked them why to which most
other student don't accept us harassed by educational institution
education not make any difference to us earn by blessing no need of education
All of the above Any other

20%
30%

10%

0%

15%
25%

25% respondents replied that other student don't accept them while 25% respondents
think education wont make any difference to them. Whereas 15% respondents think
they don't need education because they do earning by blessing, while 20 % respond-
ents said that they had other reasons like teacher were arrogant toward them, society
pressurise them to leave education etc. and 10% respondents felt that they had faced
all the above of things in life so they are abstain from education in life.

Article 19(1)(d) of the Indian Constitution provide fundamental right of movement,


we asked transgenders was there fundamental right of movement was abridged in
any way to which 46% respondent said yes it was abridged while 54% respondents
said it was never abridged in life. We asked 46% respondent that how there funda-
mental rights of movements was abridged to which 17% respondents said they were
not allowed to access public areas while other 17% said local police do not let them
seek money by giving blessings on the streets. Where as 67% respondents said they
were harassed in all the ways like not allowed to access public areas, not given house

not allowed to access public areas


not given house on rent
local police harasses when i give blessing on streets.seeks money
All of the above

17%

0%

17%

67%

on rent, local police don't let them seek money by giving blessing on the streets etc.

Transgenders are given special reservations in educational institution and jobs by

Reservation Wont be Beneficial


government to which 73% respondents are not aware of it, only 27% respondents

education and job wont change my life


want to serve my guru and do household chores
earn livelihood by blessing people
Any other
All of the above

0%

29%

43%

29%

has knowledge about it. 90% respondents think it will be beneficial for them where
as 10% respondents think it wont be beneficial for them. When we asked from these
10% respondent that how it wont be beneficial for them to which 43% respondents
said they earn there livelihood by blessing people so they don't need reservation
whereas 29% respondents said they have no knowledge about reservation that how
it will be benefit to them. 29% respondents said that reservation in education insti-
tution and jobs wont help them as they want to serve guru and do household chores,
they earn livelihood by blessing, etc.

Health Ascertain:
Transgenders are the most vulnerable population when it comes to health issues as
they are not treated by doctors and nurses at par as other gender. They are most often
seen as derogate to other genders. We asked does there gender at any time caused
them gender dysphoria i.e. emotional distress to which 38% respondents said yes
while 68% respondents said no. Next question was that did they ever tried to seek
medical help for there problem to which 69% respondents said no they never tried
any medical help where as 31% respondents said they asked for some medical help.
Transgender told us that they face most discrimination when it come to there health
issues as no help provided them in terms of monetary relief etc. where as we
transgender are most vulnerable to sexually transmitted diseases as we have no
knowledge how to get protected from them and not much of helping hand even from
government side on it.

CONCLUSION
“Unemployment, lack of education, lack of higher learning, lack of housing,
nonexistence of policies or laws that recognise trans and intersex issues in all levels
of economic, social, cultural and religious settings. In short, without a sustainable
income, trans and intersex persons’ options are reduced almost to 0 percent.” —
Chan Mubanga, Zambia73
Did God Made Only Adam and Eve ?

All human beings are born free and equal in dignity and rights. All human rights
are universal, interdependent, indivisible and interrelated. Sexual orientation and
gender identity are integral to every person’s dignity and humanity and must not be
the basis for discrimination or abuse.
Transgender is a biological change which make people to behave differently
from the stereotypes of males and females. Because of this biological change, they
are excluded from society. They face discrimination, different treatment, and undue
attention in their each and every phase of life. Law and order are trying very hard to
socially include the third gender in society. Transgenders were facing blatant vio-
lence of every kind and were discriminated at every platform but situations changed
after “The Hijra and Kothi Movement” in Bangalore an initiative of Sangama, a lo-
cal NGO. One of the main issues of the movement was the fact that the law failed to
recognise transgenders as individuals and was considered legally invisible and not
given any legal status. Arrest without the warrant and physical torture were part of
their lives.
We found in our study of Ludhiana city that though after NALSA Judgement and
repealing of section 377 of IPC has changed lot for transgender community. The
Government of India today has taken a stance and introduced several welfare poli-
cies and schemes for the transgender which would be a big step forward. These in-
clude census, documentation, issuing of the citizenship ID Cards, issuing passports
along with social, economic, political transformation, housing, legal measures, po-
lice reforms, legal and constitutional safeguards to prevent human rights violations
of the transgender community and institutional mechanisms to address specific con-
cerns of transgender people.

73
Personal communication from Chan Mubanga, Transbantu Zambia (July 2013).
But still there are many darks areas in which government needs to work It was
told by one eunuch that a Pune court allowed four men accused of raping a 19-year-
old trans woman to be let out on bail, as Sections 375 and 376 of the IPC, which deal
with rape, explicitly state that a man only commits rape against a woman and make
no mention of people of other genders. 74 The hijra community in Ludhiana, espe-
cially those who are a part of the ‘guru-chela’ structure in Hijra gharanas and practise
the traditions of “mangti” and “badhai”, are often harassed, detained under begging
prohibition laws, and forced into begging homes. Transgender people here reported
that they are turned down for jobs and housing when it becomes evident that their
appearance does not match the gender marker on their official documents. It has
been argued repeatedly by the transgender here that in the absence of reservations in
education and employment, begging is often the ONLY option available in a hostile
society. While begging can hardly be considered an occupation, the social dimension
of why a transgender person chooses to beg is completely ignored, and it is instead
converted into an offence.
Neither the Hindu marriage act nor the special marriage act includes eunuchs in
their ambit. Eunuchs are not protected under national commission for woman be-
cause they technically do not form a part of fairer sex. Section 2(c) of National Com-
mission for minorities which defines minority communities as Muslims, Christians,
Sikhs, Buddhists which also do not include Hijra’s under the category of minorities
under this act.
Transgender children and young adults face abuses in school settings ranging
from sexual assault, to bullying, to being forced to attend a single-sex school. It was
told here by respondents that the transgenders are not harassed by public generally,
having transgender in family is still believed to be a disgrace and hence transgender
children are abandoned which eventually makes them end in a group. Transgenders
are facing daily transphobia.
There seems to be no reason why a transgender must be denied human rights
which include rights of life & liberty with dignity, right to privacy and freedom of
expression, rights to education and empowerment, right against violence, right
against exploitation, discrimination. Constitution has fulfilled its duty of providing
rights to transgenders. Now its time for us to recognise this & to extend & interpret
the constitution in such a manner to ensue dignified life of 3rd gender people. If all

74
https://www.firstpost.com/india/accused-in-pune-gangrape-case-get-bail-govt-courts-arent-doing-
enough-for-justice-for-transgenders-3948457.html
goes according to plan they will no longer be forced into prostitution and some hijras
should be off the streets soon.
In an era, when we can know about almost everything through search engines
on the internet, people should try to know more about trans people before comment-
ing anything on the topic. Thinking that being trans is a choice is pure ignorance.
Trans people in India have lived oppressed lives for a long time. It was only after a
hard battle that they gained legal recognition. A battle which was mostly fought
alone, because many didn’t understand them. Only knowledge through awareness
can end such mindsets, because of which many suffer discrimination everyday. It’s
time we support transgender Indians in their struggle for identity, equality and dig-
nity. And one of the way to do it is by spreading awareness about them and the issues
they face. Together, we can help each other create an equal and just society, where
every human is treated humanely.
“Everyone has the right to recognition everywhere as a person before the law.
Persons of diverse sexual orientations and gender identities shall enjoy legal capacity
in all aspects of life. Each person’s self-defined sexual orientation and gender iden-
tity is integral to their personality and is one of the most basic aspects of self-deter-
mination, dignity and freedom. No one shall be forced to undergo medical proce-
dures, including sex reassignment surgery, sterilisation or hormonal therapy, as a
requirement for legal recognition of their gender identity.”75

A famous quoteby Mahatma Gandhi is quite apt on the struggles of trans people
in Indian society - “First they ignore you. Then they laugh at you. Then they fight
you and then you win.”

75
Principle 3 of the Yogyakarta Principles