Varun Srivastava explains the cause of the transgenders at the helm of the legislature and the judicial attitude displayed towards the prevalent issues of this marginalized community in India.
The Case Of The LGBT Community In India : An Analysis
The discussion on LGBT rights and issues are so extensive that, it can cover almost any part of academic ponderings lets save, just the bills and public debates. Before the Naz Foundation case, no one ever dared to talk about the issues of transgender or lesbians and gays – as such was a hard chord to play. However, after the case opened up, matters upon suppressed fundamental rights started to be noticed.
The case came up in 2009 by Naz Foundation (A Social NGO) filing a petition to get Section 377 of the IPC revoked, as it ad infinitum violated Right to Privacy, Dignity and Health, Equal Protection of Law and Non Discrimination, and Freedom of Expression. Though Delhi High Court showed a great zeal towards modernization and frayed Section 377, the Supreme Court of India in 2013 intervened with a rationale, that, whether to scrap a law or not is a business of Legislature and Courts have nothing to do with it. Thus, the Court opined that, if the section has to be held revoked, it must be initiated by the Legislative Assembly.
In 2016, the Supreme Court again, with blunt thoughts, decided to pin the status of ‘Homosexuality’ as a criminal offence.
Despite all the media and popular support against Section 377, and furor over Supreme Court’s anti- homosexual regressive attitude, an unprecedented opportunity came to the Lok Sabha with Shashi Tharoor’s bill to de-criminalize homosexuality, which was ultimately put down. The bill was clearly for an experimental purpose, as it stood for 3 month in December, and another 3 months in March. This highlights the intrinsic prejudice still existing in our society, to which even the legislators are not impervious to.
However, legislature has afforded some liberty to the transgender community, after all. Transgenders, specially ‘hijras’, were given the Right to Vote in 1994, as a result of a decade long fight by ‘All India Hijra Kalyan Sabha’, and since then, they have maintained some form of visibility on the political pitch with Shabnam Mausi becoming the first transgender to take public office in 1998.
The Right of Transgender Person Bill, 2014 And The Lucuna Therein
The Right of Transgender Person Bill, 2014 was a huge relief for LGBTs. It gave general directives to the State and the Central Government on public health, social services, affirmative action and other services to be offered to the transgenders. The Transgender Persons (Protection of Rights) Bills, 2016, provides the definition of a transgender person, along with other such provisions concerning – identity certificate, prohibition of discrimination, right of residence, employment, education, healthcare, various welfare measures, defining of offences and punitive measures and the establishment of a National Council of Transgender Person – among others.
Also, Kerala, in 2016, started offering free Sex Reassignment Surgery in Government hospitals.
However, on the face of it, our society seems to be compliant with the needs of transgenders. This could be partly due to the fact, that, the transgenders have been an attentive part of our civilization addressed by various names like hijras, aravanis, kinnar etc. But once the social ideology is scrutinized, it can be found that the third gender is not impervious to unsympathetic reactions from the society; they suffer from various forms of physical mental and sexual hostility.
It therefore stands, that, the society is accepting of them at a margin, and as a fringe element. This is evident through the fact that even the 2016 bill falls short of the fundamental rights to the transgender community. Transgender can be defined as a person whose gender identity or gender expression differs from their assigned sex. This bill takes away the option of classification of either male or female on the ground of choice, but forces them to identify with ‘third gender’. The definition also reinforces a negative connotation about transgenders being neither male nor female, or partly male or partly female. Systematic confirmation has shown that trans-sexuality is biological in nature and post-operative transsexuals can live a normal life as their newly chosen gender. The bill with arbitrary designation of gender has failed to address the basic question of self determination which transgenders want.
Citation And References
(1) Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors., Writ Petition (Civil) No. 4755 of 2001 (Delhi High Court 2001).
(2) Article 21
(3) Article 14 & 15
(4) Article 19
(5) Suresh Kumar Koushal vs. naz Foundation, (2014) 1 SCC 1.
(6) Krishnadas Rajgopal, Five- judge Constitution Bench to take a call on Section 277, The Hindu, February 3, 2016.
(7) PRS Bill Track, The Transgender Persons (Protection of Rights) Bill, 2016, PRSINDIA.ORG (August 22, 2016)
Access at : http://www.prsindia.org/billtracj.the-trangender-persons-protection-of-rights-bill-2016-4360
(8) T.K. Devasia, Why Kerala’s free sex chanfe surgeries will offer a new lifeline for the transgender
(9) Souradet Y. Shaw et al., Factors associated with Sexual Violences against men who have sec with men and transgendered individuals in karnatake, India 7 PLoS ONE e31705 (2012).
(10) Terry Altlio & Shirley Otis-Green, Oxford Textbook of Palliative Social work (2011).
(11) D Mahapatra, Supreme Court Recognises transgenders as ‘third gender’. The Times of India, April 15, 2014.
