Transgender! The very term itself causes some people to fear, shun, cringe or show insensitive behaviour. Most people in our society fail to understand who a transgender is or what makes someone a transgender and why they are so. This causes societal apathy towards them. The common man has become insensitive towards the transgender community and fails to look at them with kindness rather than detest their presence.
Transgenders have been a part of Indian society since ancient times and they are commonly mentioned in mythologies. They have even served as the Queen’s most trusted servants during the Mughal era. Though ‘Hijras’ were recognised and given importance in our ancient custom and practises, their condition has deteriorated over the generations.
A landmark judgement that advanced the basic human rights and dignity of the transgender community was the case of National Legal Services Authority v. Union of India (herein after referred to as NALSA judgement). The Apex Court in this case classified the transgender as ‘third gender’ under the Indian law. Many a times, law and societal norms do not go hand in hand. For instance, despite scrapping Section 377 of the IPC, many modern educated families still fail to acknowledge and be supportive of gay/lesbian relationships. Similarly, the NALSA judgement has set a milestone by setting an example to change societal mindsets by recognising transgenders as a third gender. The Constitution itself is a living document and in that respect, both law and society are dynamic. New rights should be recognised to make society more inclusive and tolerant towards those who do not conform to societal notions of binary genders.
CRITICAL ANALYSIS OF THE NALSA JUDGEMENT
An important highlight of the NALSA judgment includes the Court’s emphasis on using psychological test for transgenders rather than a social or medical basis relying on a human rights perspective. It also held that validity of sex reassignment surgery for ascertaining a person’s gender was not only illegal but also immoral. The Supreme Court relied on the constitutional principles enshrined in the fundamental rights under Article 14, 15, 16, 19(1)(a) and 21 to justify and expand the rights of transgenders. The judgment acknowledged the right of self identification by transgender persons and nudged the Government to take proactive steps for affirmative action towards them. In addition, the Apex Court asked the Government to classify transgenders under the socially and educationally backward class.
However, the drawback of such reservation is that it is a regressive step because transgenders belong to different castes/communities and they cannot be generalised into one category to the disadvantage of others belonging to the same category. Moreover, providing reservation will not solve the root cause of social neglect. Instead, transgenders ought to be empowered, given equal opportunities and their rights must be expanded such as those similarly availed by common citizens under all Indian laws without discrimination. This should be backed by effective grievance redressal for any kind of deprivation or rights or their violation.
An important aspect to note here is that the Apex Court restricted the judgment to transgenders only, thereby excluding the lesbians, gays, bisexuals among others. Third gender being an umbrella term ought to have included other gender variants which the judgment has ignored. The judgment has created confusion in this regard.
Lastly, the decision in Navtej Singh Johar v. Union of India which scrapped Section 377 of the IPC primarily dealt with sexual orientation. Sexual orientation without freedom of sexual expression is of no use. Both sexual orientation and expression are like two sides of the same coin. Thus progressive judicial activism by the Apex Court through the judgment in Navtej Singh following the NALSA judgment is truly in the spirit of a changing constitutional morality.
GLOBAL DIMENSIONS – LEGAL STATUS OF TRANSGENDERS IN FOREIGN JURISDICTIONS
Transgenders constitute a marginalised community which face various challenges such as lack of identity, harassment by officials when they try to avail public services, failure to get employment causing them to beg for money, deprivations from social security net provided by the Government, being homeless, constantly facing abuse, exploitation and discrimination etc. Progress was long due for the judiciary as well as the democratic society to accord legal rights to transgenders thereby making the society more inclusive.
The International Covenant on Civil and Political Rights as well as Universal Declaration of Human Rights enumerates basic human rights principles which equally apply to all, including transgenders. The NALSA judgement also made a mention of the Yogyakarta Principles which are a set of principles on the application of international human rights law in relation to sexual orientation and gender identity.
A brief highlight of the status of transgenders in India and across the world in different countries has been enumerated below:
It is pertinent to mention the case of Arun kumar and Sreeja v. The Inspector General of Registration and Ors in which the High Court of Madras employed a beneficial and purposive interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes trans-women and intersex persons identifying as women. It expanded the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining marriage rights of the LGBTQIA+ community. But however, same sex or queer marriages are not clearly recognised in India.
Court of Appeal of Malaysia has declared unconstitutional the criminalisation of Muslim transgender women from cross-dressing. The case has set a binding and powerful precedent in the right direction. In Sunil Babu Pant. v. Nepal Government the Supreme Court of Nepal recognised LGBTQIA+ persons as equal citizens of the nation, eligible to enjoy all constitutional rights, including the right to non-discrimination and equality. This judgment became the first in South Asia to recognize the rights of the LGBTQIA+ community. In Sri Lanka, the Human Rights Commission of Sri Lanka facilitated dialogue on legal gender recognition in response to a complaint from a transgender person and as a result of which, the Ministry of Health issued a circular to health and education institutions about issuing gender recognition certificates to transgender people.
In 2012, the Pakistan judiciary issued a landmark judgment in Dr. Muhammad Aslam Khaki v S.S.P. (Operations) Rawalpindi which gave legal recognition to the trans-gender community in Pakistan as belonging to the ‘third sex’. In the Australian case of NSW Births Deaths and Marriages v Norrie, the High Court held that individuals could be legally recognised as neither male nor female. In this case, the Court recognises the primacy of psychological identity over biological identity. Moreover, the NALSA judgement itself mentioned various case laws of foreign jurisdictions such as Corbett v. Corbett, Attorney-General v. Otahuhu Family Court and Christine Goodwin v. United Kingdom, all dealing with various facets of third gender rights.
Today, not all countries adhere to a strict male/female gender designation. Several countries, including Germany and Australia, officially recognise a third gender category for individuals who do not identify as male or female. However, international human rights law and jurisprudence have not yet directly addressed whether States have a positive obligation to recognise any gender or gender identity other than male and female.
Despite positive progress in the legal domain, transgenders have a long way to go before these rights are actualised. Often ignored aspects of societal stigma and public apathy take a long time to change as it requires a change in the mindset of people. These can however be overcome by awareness programs, gender sensitisation studies in pedagogy, using transgender influencers on social media to reach out to people educating them against gender stereotypical norms and using media/newspapers to show case transgenders in a positive light.
However, these soft approaches should be complemented by rights centric legal approach such as the the Transgender Persons (Protection of Rights) Bill 2019. The bill itself has been criticised for its various provisions which needs to be re-evaluated in the right spirit. In the meantime, the existing personal laws could be given a broader interpretation to align the letter of the law to the spirit of a more purposive and inclusive approach towards the LGBTQIA+ community. The National Portal for Transgender Persons was also launched by Ministry of Social Justice and Empowerment whose objective is to enable transgenders to get ID card digitally.The ministry is also planning to set up Garima Greh in 10 cities which is a shelter home for the transgenders.
Scrapping of Section 377 of IPC has furthered the rights of transgenders who can now freely choose their own partners. These proactive measures will definitely create a more dignified and respectful environment for the transgenders. Nevertheless there is still a long way to go. Thus, Juno Dawson, a transgender writer said “Remember this, whoever you are, however you are, you are equally valid, equally justified, and equally beautiful.” It’s time we as a society accept each and everyone as they are, outside the confines of our narrow mind.