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transgender

“Layered Oppression, Vertical Reservation” Trans Community Objects Govt’s Categorization Under The OBC Quota

by Shivangi Sharma 08/12/2024

written by Shivangi Sharma

By Shivangi Sharma

Recently, the Ministry of Social Justice and Empowerment sought the National Commission for Backward Classes’s advice on the issue of including transgender people in the OBC list. This move if implemented will amount to providing transgender persons ‘vertical reservations’ within the OBC community, effectively dispossessing them of their Constitutional Right of reservation under the already existing categories. Trans Rights Now Collective, an organisation fighting for the rights of Trans Community founded by Grace Banu held a press conference in Delhi demanding Horizontal Reservation for Transgender Persons and Intersex persons. This move has once again highlighted the lack of intersectionality in our fight for human rights and government’s welfare schemes.

When Kimberle Crenshaw coined the term “Intersectional Feminism”, she argued that black woman could not be understood without understanding the concepts of being both black and a woman independently but with intersecting parts that supplement each other. Individuals carry multiple social identities that accord them with certain privilege or make them vulnerable to oppression, attacking that very identity. In India, caste and gender based discrimination has prevailed for centuries and is still being carried forward by the hegemony of Brahminical patriarchy. Understanding intersectionality in Indian context begs the question of acknowledging that our world is largely divided by caste and gender binaries and caste discrimination further marginalizes the already oppressed communities. The remains of colonial structure of state has enabled this layered oppression and the same is reflected in government’s policies masquerading as “inclusive and progressive.”

The idea of granting reservation to Transgender persons stems from the year 2014 when the Supreme Court of India passed a judgment recognizing constitutional rights of transgender persons as equal citizens of this country (National Legal Services Authority v. Union of India (2014) 5 SCC 438 “NALSA judgment”). The Court held that the right to gender identity is inherent to one’s right to life autonomy and dignity and that people have the right to self-identify their gender. The judgment further went onto say that transgender and intersex persons are legally entitled and eligible to get the benefits of special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (“SEBC”). The judgment effectively constitutionally bounds the State to grant them reservation in the cases of admission in educational institutions and for public appointments. Following this, in the same year, Rajya Sabha MP from DMK, Tiruchi Siva piloted a private member’s bill providing for reservation in employment and education for transgender and intersex persons. This was the first draft ever to come to the floor of Parliament for the protection of rights of Transgender persons. The definition in the bill did not include identity of Intersex persons, however, it proposed a scheme of horizontal reservation, providing reservation to transgender persons within the already existing reservation categories. Subsequently the central government in 2016 came up with the Transgender Persons (Protection of Rights) Bill 2016 which watered down the many progressive provisions of the previous Bill and provided with a very problematic definition of Transgender persons, reinforcing injurious stereotypes about transgender persons as being part male and part female and did not mention reservation inviting widespread protests from the members of the Trans community. Post this, a new Bill was surfaced in 2018 with the same name in an attempt to rectify the previous mistakes, but it hardly did away with any of those regressive provisions.

The press conference led by founder of the Trans Rights Now Collective, Grace threw light on how including all transgender persons under the OBC category will not recognise the caste status of transgender and intersex persons and amounts to injustice to the marginalised within the community. Grace is Dalit and Transgender rights activist and has been advocating for horizontal reservation for the trans community and challenging the cis-brahmanical patriarchy highlighting the struggles of Dalit-Transgender persons. In conversation with Grace about the intersectionality of gender and caste, she explains how the entrenched transphobia and casteism has pushed the Trans Community and people belonging to Dalit, Bahujan and Adivasi community (DBA) to be one the most underprivileged communities in India, socially, educationally and economically. Opposing the government’s move to categorise Transgender persons under OBC, Grace emphasises on how unjustified it is for a transgender person belonging to DBA community to give up their right and be identified as OBC while the state and society continue to discriminate against them on the basis of both their caste and gender identity.

“There is no recognition of Trans community and the situation is even worse in rural parts of the country. Trans people are not even accepted in their own families, forcing them to live impoverished lives of sex workers. Oppression and lack of awareness discourages trans people from coming out making their lives unsafe in their own homes and finally when they take that courageous step of coming out, the discrimination faced by them at the hands of state to get the right documentation for legal recognition exposes the transphobia and casteism inherent in our policies and actions.”

NALSA judgment did guarantee the right to self-identification, however, did not lay down any mechanism for the same and the Central and State government are yet to legislate on it. The mechanism mentioned in the proposed Bills invites several interventions by the state and medical professionals for people identifying as trans to be legally recognised as such, taking away their autonomy of self-identification. A person’s gender identity is a highly personal matter and the right to gender recognition must not hinge on a medical statement.

Grace also discusses the persisting casteism within the Rainbow Umbrella. “Savarnas don’t acknowledge our struggles and do not speak up against casteism. There is no solidarity from the Upper Caste people of the community further oppressing us.” She emphasises on education and employment in government sector that will pull the community out of poverty and oppression and for that, horizontal reservation in education institution and employment opportunities is a must.

Kanmani R, lawyer and Research Associate at Jindal Global Law School spoke about access, equality and Trans inclusion in education at the 5^th National Conference on Transgender Rights and the Law conducted by the Centre for Law & Policy Research. Kanmani talks about how courts and judges across the country keep talking about representation of transgender people in courtrooms but they don’t explain how. The process of getting the right documentation to getting admissions in law schools is so unimaginably difficult, how do these judges expect transgender people to magically climb the ladder in the name of “representation”. The same is true for every sector of employment. She emphasises on asking for equality and access for Transgender persons rather than meagre “representation”.

Horizontal Reservation for Transgender and Intersex persons ensures that their caste identity is not invisiblised and their systematic oppression on multiple basis is not trivialised. Quotas for horizontal reservations cut across the quotas for vertical reservations in a manner that is called inter-locking reservations. In other words, a special reservation is provided within an existing category of social reservation, similar to reservation for women and persons with disability. This is also a form of recognising the intersection of multiple identities and resulting vulnerabilities. Karnataka State Government this year has become the first state to provide 1% reservation for transgender persons in employment for civil services posts across caste categories. This move from the state government came after the intervention of an organization working on the rights of transgender persons and sexual minorities Jeeva in Sangama v. State of Karnataka challenging a notification for recruitment to the State Police which did not have a ‘transgender’ category. State government in the litigation had expressed that they were in the process of providing reservation to Transgder persons within OBC category and the intervention led to government promulgating an amendment granting horizontal reservation.

Trans Rights Now Collective circulated a public statement demanding horizontal reservation for transgender persons, requesting endorsement from public. Their demand has also been endorsed by several MPs including Dr. Kanimozhi, Dr. Shashi Tharoor and Kanimozhi Karunannidhi. The statement can be accessed here.

08/12/2024 0 comments 26 views

Abortion Law in India: Not Quite There Yet

by Mani Chander 08/12/2024

written by Mani Chander

Why the amended abortion law in India restricts access and fails to grant pregnant (women, transgender and nonbinary) persons, complete control over their reproductive choices.

Mani Chander

The Medical Termination of Pregnancy (Amendment) Bill, 2020 was approved by the upper house of the parliament and received presidential assent in March, 2021. Some of the amendments brought in by the new Act were hailed by many for further liberalizing access to abortion in India. On the other hand, some leaders of the opposition had voiced concerns, demanding a detailed scrutiny of the Bill by a parliamentary standing committee. The Bill, however, was passed without any further deliberation or amendments.

One of the key amendments brought by the Act was in terms of easing the process of approval by doctors. While the earlier law required one doctor’s approval for pregnancies up to 12 weeks and two doctors’ for pregnancies between 12-20 weeks, the new law requires only a single doctor’s approval for pregnancies up to 20 weeks. The approval of two doctors is now needed only for the 20-24 timeline reserved for abortion seekers of special categories such as rape or incest survivors. The upper gestation limit for abortion in cases of foetal disability has also been removed.

The other significant change introduced by the new Act was the mandatory constitution of a medical board in every State and union territory (UT), which would decide on pregnancies beyond 24 weeks in cases of foetal abnormalities. As per the amended act, the board would have one gynaecologist, one radiologist or sonologist, one pediatrician, and other members as prescribed by the respective state or UT.

Nearly six months since the new act came into effect, several issues around the revised mandate have come up, showing that the new law, though well intended, continues to restrict reproductive rights.

The first obvious and fundamental drawback is that our lawmakers have failed to recognize that reproduction is not just a women’s issue. Seeing only women as natural mothers is exclusionary and deeply problematic as it ignores the fact that trans and non-binary persons can also become pregnant. It reinforces harmful stereotypes around reproduction and sexuality.

Furthermore, while the establishment of medical boards in every state and UT seems like a noble idea, ground reality points to its infeasibility. A recent report based on the Ministry of Health and Family Welfare’s Rural Health Survey, which analyzed district-wise availability of medical specialists, found that there is a severe shortage of doctors. As many as 82% of these posts for surgeons, obstetricians, gynaecologists, physicians and paediatricians lie vacant. In rural India, where 66% of the country’s population resides, there is a shortage of approximately 70%. While states like Arunachal Pradesh, Meghalaya, Mizoram and Sikkim revealed a 100% shortfall of pediatricians, others such as Tamil Nadu, Arunachal Pradesh, and Gujarat have recorded near-absolute absence of certain specialists in rural areas.

Besides, even if the state governments manage to set up the necessary medical boards, access will remain a challenge, particularly for those in remote areas. It is noteworthy that the new law fails to include any provision whatsoever for ensuring logistical or financial assistance to those who need to consult a medical board. Rather than ensuring access and convenience, forcing pregnant persons to run around in search of medical boards would create further hurdles for them.

Not to mention that these medical boards have no clear mandate, leaving the scope of their functions excessively wide. Absolute discretion when considering requests for abortion allows medical boards to venture into subjective issues such as viability of the foetus and possibility of corrective surgery.

Time and again, courts have reiterated the right of a woman to control her body and fertility. In 2016, the Bombay High Court in a suo moto public interest litigation held that “the right to autonomy and to decide what to do with one’s own bodies includes whether or not to get pregnant and stay pregnant”. It flows logically, that any encroachment of bodily autonomy would also amount to infringement of privacy, as observed in the Puttaswamy judgment of the Supreme Court.

While restrictions on the fundamental right to privacy may be imposed on account of larger interests, they ought to be “just, reasonable, and fair.” It appears, however, that the amended Act, if challenged, would fail to satisfy this constitutional mandate.

Contrary to their own precedents upholding bodily autonomy, courts have sometimes rejected petitions seeking approval for abortions. The reason is that courts ultimately rely on the decision of the medical boards, while ignoring the advice of the woman’s own gynaecologist. For instance, the Supreme Court rejected the termination of a 27-week pregnancy even though the foetus had severe physical abnormalities, because the medical board had found that there was no physical risk to the mother. The same fate was met by a 25-year-old woman whose foetus was diagnosed with Arnold Chiari syndrome, an abnormality that leads to underdeveloped brain and distorted spine.

Moreover, the process of setting up medical boards and delayed decision-making has forced women to carry their pregnancies to term. In one case, an HIV-positive rape victim from Bihar, who was denied abortion when she was 18 weeks pregnant, was forced to give birth as a result of delay. While awarding compensation to the woman, the Supreme Court remarked, that “the fundamental choice (of termination of unwanted pregnancy) which is available in law was totally curtailed and scuttled, ..the entire action has caused her immense mental torture”. In another case, after the Supreme Court allowed abortion of a 13-year-old rape survivor, she ended up giving birth two days later. Bureaucratic delays coming in the way of women’s reproductive rights can hardly be considered just.

In yet another striking suit, the top court refused to allow an abortion for a 10-year-old girl, allegedly raped by her uncle, because the medical board was of the opinion that termination would be “too risky”. What medical boards and courts seem to be ignoring is that in most cases involving children, the pregnancy itself is discovered too late because they are unaware of their condition. Yet, they are made to pay the price for no fault of their own.

The central argument is that medical boards and doctors continue to decide and make the final call. Leaving the decision to anyone other than the woman grossly undermines her dignity and agency, particularly when those assigned the task of decision-making are not bereft of their own personal and moral beliefs.

India is considered to have a fairly progressive abortion law when compared to other countries, yet it is regressive in more than one way. While we still have a long way to go, we mustn’t hesitate to learn lessons from the rest of the world. Texas’ recent law which effectively bans abortions is a painful reminder that hard-won rights can be stripped away all too easily.

We cannot be complacent, for we are not free until all of us are.

_______

*Views are personal. The author is a Delhi-based practicing lawyer who holds a special interest in gender justice. She holds a Master’s degree from the University of Virginia School of Law and is admitted to the Bar Council of India as well as the New York State Bar.

08/12/2024 0 comments 24 views

Devolution of Intestate Transgender’s Property

by Guest Author 08/12/2024

written by Guest Author

Author: Sayan Dasgupta

Where there exists a property, inheritance of the same shall always be a pertinent question. An heir is a person who is entitled to receive intestate deceased’s property under the laws in intestacy. Succession can follow only after death of a person. There are two forms of succession – [i] testamentary succession (by will), and [ii] intestate succession (in absence of will). A will is a declaration or a legal instrument which governs the inheritance on occasion of death to the person the deceased desired. In lack of a testament, the devolution of property is governed by the Hindu Succession Act, 1956 for Hindus, Sharia law for Muslims and The Indian Successions Act, 1925 for persons outside the scope of the preceding laws.

The inception of Hindu Succession Act, 1956, in the nascent independent India of 7 years was, and still is entrenched in cis-normativity. Its preamble observes that it governs and codifies succession of property of an intestate Hindu. Use of terms like “male” and “female” gives a nod to acknowledging genital and chromosomal composition and not self-determined gender identity. It wasn’t until recently that daughters were incorporated under Section 6 of the Act to be legal heirs along with sons of the deceased by way of Hindu Succession (Amendment) Act, 2005.

The Sharia law can be harkened to the Holy Quran, Sunna, Ijma, and Qiyas. The Islamic jurisprudence provides an elaborate scheme of devolution of property amongst the successors, and other issues of maintenance. However, the grand narrative essentially reduces to antagonistic behaviour and indifference towards queer persons. Particular mandates forbid crossdressing and sodomy biting away from sexual and gender autonomy.

Additionally, Part V of The Indian Successions Act, 1925 provides a consolidated guide to devolution of intestate succession. The legislation, even though secular, is not gender neutral. The legislation has explicit masculine notions by the way or pronoun “he”. It provides primacy to biological composition, and lineal parentage; something that is seldom seen in the trans community.

None of the governing laws provide any template for property devolution in trans communities. It discounts the factum that, for centuries, trans, intersex and gender queer/non-binary persons have been disenfranchised and driven away by families. NHRC in a study, first of its kind detailed that only 2% of trans persons stay with their parents while the rest are deprived from participating in any form of economic activity or compelled to take low-income adverse jobs causing a societal gender discrimination merging into many domains of the State.

The trans, intersex, and gender queer persons abandoned find home alternatively in a chosen ‘family’ and are initiated into the hijra or aravani community by the senior member/designated mother of the structure – the Guru. The Guru takes the responsibility of the structure and “chelas” and provides emotional support, financial clout and social standing. The Guru ties the house and provides parental guidance to the chelas. This adopted system has been nomenclatured as the Guru-chela pratha/parampara.

The proposition of devolution of property in such a customary practice was contemplated by a single judge bench of Himachal Pradesh High Court in the case of Sweety v. General Public. The appeal arose from a trial court judgement which held succession of intestate deceased trans person, Rajia alia Ratni Nani would be via Hindu Succession Act, 1956 on a prima facie assumption by the name that the deceased was a Hindu. Their Guru averred that she was the only successor of the property left behind since once initiated in the hijra community, the guru is the only person related to the chela, ergo the entitlement. The HC considered the issue of mode of succession of property of a kinnar in absence of a profession of religion. Sweety, the guru of the deceased led documentary evidence that she was the guru; such as, presence of guru’s name in the deceased’s ration card and bank account. The Court signified displeasure and reversed the judgement of the HC holding that succession would occur as per the customs of the guru-chela parampara and held Sweety to be the legal heir of the deceased. While the judgement was laudatory and took cognizance of the NALSA judgement, it had some serious shortcomings and major lacunae.

The first issue is the lack of gender sensitivity in the judgement. One consistency that is noted throughout the judgement is use of the word “eunuch”. There is no reasoning as to why that terminology is used. A eunuch is a castrated male who have historically been a part of the hijra community amongst many others. There was no evidence led on behalf of the deceased and their guru that they were, in fact, castrated. This actively demonstrates the Court’s lack of clarity as to whether it was referring to the deceased’s gender identity or a biological condition, ergo making derogatory assumptions. What had been positively averred was that the deceased and their guru were intersex persons. The Court’s lack of acknowledging gender identities is emblematic of its gender insensitivity and the progress required to be made.

The second issue is that the Court decided the succession of property of an intestate transgender in absence of religion. The glaring concerns the devolution in case of known religion. The Court in the matter had not indulged much into finding the religion of the deceased person. This necessity was further diluted by lack of any response to the notice. The principal argument made by the appellant was that once initiated into the kinner/hijra community, all ties to the external society is severed thereby waiving any religion. Furthermore, there was no evidence led to provide any sort of religious conversion or an initiation ritual. Therefore, it becomes unclear as to why the Court adopted the customary practices guru-chela parampara. Where arguments could be made in favour of such position to preserve indigenous practices of trans, intersex and gender queer practices, there is an obvious intersection with right to religion envisaged in the Constitution.

Adoption of one custom and renunciation of previous custom has not been considered as a question of law by the Courts of India. However, such an issue was considered by the Supreme Court of Nigeria in the case of Adeniyi Oluwo & Ors v. Olabowale Oluwo & Ors where the Court considered whether a person could renounce certain personal law and custom and adopt another and held:

“It follows therefore that by virtue of his change, his personal law changed to the Benin Customary Law; distribution of his estate on intestacy must necessarily be governed by Benin Customary Law. He married Benin women who had children for him; he carried on various business activities in and around Benin City. The change of his status endowed him with the rights and privileges of a Bini indigene and his change in status accords with Benin Customary Law”

This essentially meant that there can be a change of personal customary law by acculturation or assimilation. If the same standards are to be followed for devolution of property of intestate trans, intersex, and gender queer persons, the standard of evidence would be too high given the lack of resources, disenfranchisement and involuntary seclusion/ostracization. However, the burden would still need to be met as to renunciation of religion and ceremonious initiation into the community. Further, it must also be shown whether assimilation into the kinner/hijra community would automatically lead to loss of religion. Further, there are many literatures to support the claim of guru-chela relationship being exploitative, abusive and is contemplated as a form of bonded labour. Thusly, the customary practice isn’t a tenable for the long term.

Need for Gender-Neutral Language in Property Law

Lockean conception of property provides that property is an extension of self. This ipso facto provides a rationale that gender is an important variable in property governance. The property law, as explored above is highly cis and heteronormative. It is submitted that most legislations are entrenched in colonial ideations or predate independence itself. This often has resulted in predominant usage of masculine pronouns and predisposition resulting in disenfranchisement of other gender identities. This usage of gendered generics is a categorical medium of casual sexism; as has been proven by several empirical researches.

There have been several vedic references to the ‘third sex’ which includes a wide spectrum of genders and sexualities providing them with shelter, protection, amenities, provisions of sustenance and incorporation into the dharma. There is no reason that the present legislation must be read in a heteronormative lens excluding many. It was laudably noted by the Madras HC in Sushma v. Police Commissioner of Chennai that the LGBTQIA+ community spend majority of their lives adjusting to a social morality and “have to turn themselves inside out to suit our notions of social morality and tradition”.

This judgment while allotting rights to the trans appellant missed an opportunity of answering issues of a broader ambit, i.e., what happens to the property of a transgender whose religion is known. It can be submitted that incorporation and merging of the trans and gender queer community in Hinduism is emblematic of the fact dharmic tradition and gender have always been intertwined. There are several temples with patron deities for the hijra communities and temples with trans priestesses.

In Shivani Bhat v. State NCT of Delhi, the Delhi High Court declared that “Gender identity and sexual orientation are fundamental to the right of self-determination, dignity and freedom. These freedoms lie at the heart of personal autonomy and freedom of individuals.” It is time these words are effectuated into creating a safer and inclusive legislation and interpretation with a queer lens.

08/12/2024 0 comments 31 views

A person of Pride- Joyita Mondal India’s first transgender Judge

by Guest Author 08/12/2024

written by Guest Author

By Muskan Rani

Achieving a position or being a first in any field would make anyone feel great, but no one sees the hardships faced to be the first.

Today we are talking about Joyita Mondal, a social changemaker, who broke all imposed norms of the society, by becoming India’s first transgender judge in India. Judge Mondal was born in a Hindu family in Kolkata,West Bengal.

She was biologically born with the body of a male, but growing up, she liked to dress like a girl. She had a hard time keeping this secret from everyone.

So she informed her parents that she has got a job in Dinajpur and left kolkata and moved to Siliguri in the year 2009.

In Dinajpur she started living her life the way she wanted to. She started wearing female clothes and started working as a hijra (eunuch) singing, dancing and so on.

On the other side she also started doing social work for the upliftment of her community. In the year of 2010 the National Election Commission added the category of ‘other’ in addition to male and female as gender identification to encourage transgender to register for voter cards.

Judge Mondal became first transgender to get voter card under category of “others” in Dinajpur. In the same year she started studying law.

She helped everyone who faced racial discrimination. Later she became founder of a NGO named “Dinajpur Notun Alo Society ” to help transgender of the same as well as different religions. At present the NGO is serving transgender community with more than 2000 transgender.

In the year of 2012, her NGO got a foreign project to provide legal aid to transgender community. Judge Mondal succeeded in giving legal aid to about 200 transgender. The work of her NGO and Judge Mondal was appreciated by the government. Later in 2015, Dinajpur Notun Alo Society built an old-age shelter house and helped many transgenders to make their Voter IDs.

In the year of 2017 the sub-divisional legal services committee of Islampur, Uttar Dinajpur district in West Bengal appointed her as a Judge.

Now she is serving as a judge but she never left her fight for Transgender community. She says “A handful of us becoming judges, principals won’t bring a change as long as transgenders are working as sex-workers and begging in trains. Individual successes mean nothing. Even if they don’t have much qualification, they can at least be appointed as Group D staff where physical labour is involved. I have not come from Kolkata to Uttar Dinajpur just for my fight. I cannot ignore my community because of whom I have reached this position. I would request the government to first start government jobs for transgenders so that our community gets dignified work. I consider work of coolies, peons or other Group D work as dignified”

Her journey of becoming India’s first transgender judge was not easy but she never gave up. She kept on working for her rights and also for her community. She is a person, we should all br so proud of.

08/12/2024 0 comments 34 views

Confronting Marginalization of the LGBTQ+ Community

by Guest Author 08/12/2024

written by Guest Author

By Samiksha Jain

Despite being the world’s largest constitutional democracy, India continues to struggle with heteronormative constraints that undermine different sexualities. For many years, the LGBTQ community has been at odds. The government’s main slogan has been to secure this community through justice, equity, and harmony. Previously, the LGBTQ community was known to simply include the gay community, but it eventually expanded to encompass different sorts of homosexuals. Discrimination against this minority has grown frequent; they have been separated and estranged from society, and they have been denied the basic fundamental rights to which they are entitled as Indian citizens. The rights of this group have recently been recognized, and the judiciary has intervened to preserve them.

As of today, members of the community do not have any special legal rights. They are allowed by law to participate in consensual sexual activity because criminalizing it would be a violation of their fundamental rights. As a result, the scope of their rights has to be understood to be the same Fundamental Rights that citizens in this country have. However, members of the community, still do not have access to all the civil rights that citizens of India enjoy. For example, they are unable to legally register their marriages, as their union is not recognized by Indian law.

The landmark judgment of Navtej Singh v. Union of India (AIR 2018 SC 4321) was a breakthrough for the members of this community. On September 6, 2018, a five-judge panel unanimously declared Section 377 of Indian Penal Code as unconstitutional. The existence of a law that criminalized consensual sexual intercourse between adults was held to be violative of Article 14, 15, 19, and 21 of the Indian Constitution and also the Universal Declaration of Human Rights. The Court went on to say that all community members are entitled to all of the Constitution’s guarantees, including equal citizenship and protection from discrimination.

Indian Constitution and LGBTQ+ Community

Justice — social, economic, and political equality of status – is enshrined in the Indian Constitution’s preamble. In essence, the Indian Constitution is sex-blind, which means that the underlying assumption of equality is based on a constitutional mandate that the gender of an individual is irrelevant unless where the Constitution demands special provisions for everyone.

Right to Equality

Within the territory of India, Article 14 of the Constitution guarantees everyone equal standing before the law and equal protection under the law. The term “any person” here refers to any human, with no discrimination based on caste, creed, religion, sex, or any other category. The interpretation of the word “person” was broadened in the case of National Legal Service Authority v. Union of India (AIR 2014 SC 1863), and it was held that Article 14 of the Indian Constitution does not limit the word “person” and its application solely to males and females. Hijras/transgender people who are neither male nor female fit within the definition of “person” and are thus entitled to legal protection in all spheres of State activity, including healthcare, education, employment as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.

Equality of Opportunity and Right against all forms of Discrimination

Articles 15 and 16 prohibit discrimination against any citizen on a list of grounds, which includes the bottom of the word “sex.” In fact, both Articles prohibit all forms of gender bias and discrimination based on gender. Sex has two separate components: gender and biological characteristics. Gender qualities include one’s character, the underlying psychological or emotional sense of sexual identity and character, as well as biological aspects such as genitals, chromosomes, and secondary sexual features. As a result, the discrimination on the bottom of ‘sex’ under Articles 15 and 16, includes discrimination on the bottom of identity.

Right to Life and Personal Liberty

The right to life is one of the most basic fundamental rights, and no one, including the government, has the capacity to violate or revoke it. The right to select one’s own identity is one of the most important rights under this article to living with dignity, according to the case of I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861). One of the most essential features of Article 21 of the Indian Constitution is the right to a dignified existence for transgender people. Non-recognition violates their right to dignity; hence they need full rights to specify and live their lives without fear.

Right against Exploitation

Various inhuman activities, such as human trafficking and beggary, have been designated as offences and are punishable under Article 23 of the Indian Constitution. The scope of Article 23 is extraordinarily broad because it encompasses any sort of prejudice that is prohibited. Transgender people are the worst victims of exploitation; because of their low socioeconomic standing, they engage in prostitution and other immoral acts, which society considers unacceptable. The goal of this article is to protect the independence of a person’s identity by prohibiting men from exploiting men.

Additionally, the Indian legal framework’s failure to recognize the “Third Gender” has resulted in systematic denial of equal protection under the law and pervasive socio-economic discrimination in society and in Indian workplaces. The Transgender Persons (Protection of Rights) Act, 2019 was recently enacted by the Indian parliament in response to the NALSA judgment.

As defined in the Act, ‘transgender’ refers to and includes all individuals whose gender does not conform or match the gender assigned to them at birth, including trans-man and trans-woman (whether or not they have undergone sex reassignment surgery (‘SRS’) and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’. Below is the list of rights that this act guarantees.

Prohibition against discrimination of transgender individuals: It prohibits discrimination against transgender individuals in the following areas: (i) education; (ii) employment; (iii) healthcare; (iv) access to, or enjoyment of, goods, facilities, or opportunities available to the general public; (v) right to movement; (vi) right to reside, rent, or otherwise occupy property; and (vii) opportunity to hold public or private official positions.
Certificate of identity for a transgender person: A transgender person can apply to the District Magistrate for a certificate of identity with the gender “transgender” written on it. Only if the person has surgery to change their gender, whether male or female, may they get an updated certificate.
Right of residence: Every transgender person has the right to live in his or her own home and be included in his or her family. If the transgender person’s immediate family is unable to care for them, a competent court may order that they be placed in a rehabilitation center.
Education: Without discrimination, educational institutions supported or recognized by the appropriate government must provide inclusive education, sports, and recreational facilities for transgender people.
Employment: In issues of employment, including recruiting and advancement, no government or commercial institution can discriminate against a transgender person.
Health care: The government must take efforts to ensure that transgender people have access to health care, including specialized HIV surveillance centers and sex reassignment surgery. The government will revise medical curriculum to meet transgender people’s health concerns and provide comprehensive medical insurance plans for them.
Welfare measures by the government: It declares that the appropriate government will take steps to ensure transgender people’s full inclusion and engagement in society. It must also take steps to save and rehabilitate them, provide vocational training and self-employment, develop transgender-sensitive policies, and encourage their involvement in cultural events.
Offences and penalties: It recognize the following transgender-related offenses: (i) forced or bonded labor (excluding compulsory government service for public purposes), (ii) denial of access to public places, (iii) removal from the household and village, and (iv) physical, sexual, verbal, emotional, or economic abuse. The penalties for these offenses range from six months to two years in prison, as well as a fine.

Now, the significant question needs to be asked is: Is this law sufficient and fulfilling their purpose? The answer lies in the vehement unacceptance of this law by the members of LGBTQ+ community. When community members are dissatisfied with the laws that control them, good lawmaking and execution becomes difficult. This Act exemplifies the importance of consulting the citizens of the community for whom these laws are being enacted. A transgender person must file an application to the District Magistrate for a certificate of identity as a transgender person, according to this Act. This rule not only hinders self-determination, but it also ignores people who identify as non-binary or gender-neutral.

The country’s transgender population was dissatisfied with these parts of it at the time, claiming that they were discriminatory. They have waged a vigorous campaign against the Act. Again, ensuring that legislation are gender-neutral is one method to fix this. In the event when a specific segment of society, such as women, requires greater protection, new laws have been enacted to safeguard their interests. The LGBT community, too, needs to be uplifted. As a result, it is critical that new laws be enacted to protect their rights, and that they be consistent with current laws to avoid unintentional discrimination amongst communities or groups.

Samiksha Jain, a third-year student at Institute of Law Nirma University, Ahmedabad.

08/12/2024 0 comments 23 views

First transgender artiste to receive a Padma Shri, Narthaki Nataraj now gets appointed in TN Advisory Committee

by Ashmi Sheth 08/12/2024

written by Ashmi Sheth

Ashmi Sheth

At times we come across stories that fill us with feelings of #pride, in all its senses. The story of Dr. Narthaki Nataraj, who was disowned by her family at the age of 11 owing to her sexuality, reminds us of a rainbow that finds its way through the dark clouds. Being the first transgender dancer-artiste to have received the prestigious Padma Shri award in 2019, Dr. Narthaki Nataraj is to now become a member of the State Development Policy Council (SDPC) on the Tamil Nadu Government. As a member of the TN SDPC, she aims to focus on healthcare facilities and employment opportunities for trans women. She views offering job opportunities as not only making them financially stable and giving them dignity, but also as creating a more inclusive society.

At the age of 12, Narthaki Nataraj along wither companion, Shakti Bhaskar, left home to pursue her passion for dance. She has dedicated 30 years of her life in service of Bharatnatyam, and specializes in the Tanjore style Nayaki Bhava tradition. Nataraj has performed at leading festivals across various countries in the world; USA, UK, Canada, Japan, Singapore Sri Lanka, and Switzerland to name a few. Currently, Narthaki Nataraj runs her institute, “Velliyambalam School of Dance,” where she trains many Indian and foreign students in the traditional art form as handed down to her by her guru. The Velliyambalam Trust also has branches in the US, UK, Norway and Canada, that have both local as well as Indian diaspora students. Even as she learnt dance, Nataraj completed her higher secondary from the money she earned from dance performances. In 2016, Nataraj received an honorary doctorate (Doctor of Letters) from Periyar Maniammai University. Having been denied admission by a law college because of her sexuality at one time, Nataraj now continues to hold lecture programs across Ivy League universities such as Yale University.

Some of her other achievements include receiving the SNA Puraskar from the President of India in 2011, the Kalaimamani Award from Tamil Nadu Government in 2007, Nruthya Choodamani Award from Shri Krishna Gana Sabha and having her life story featured in 11^th standard Tamil textbook of Tamil Nadu Government in 2018 as an attempt to sensitize young minds about the transgender community.

In 2002, Nataraj forced the Union Home Ministry to change the alphabet ‘U’ (eunuch) to ‘F’ for female in gender column of passports issued to transgenders. She also fought to replace the derogatory Tamil word used to refer to transgenders, ‘Aravani’ with ‘Thiru Nangai,’ a term that she coined which means “supreme woman.”

Dr. Narthaki Nataraj’s inclusion in the TN Government deserves much appreciation and can be a revolutionary step toward a more inclusive and gender-neutral political environment for people with diverse sexualities and identities.

08/12/2024 0 comments 23 views

Queering Menstruation: Freda launches “Cycle,” a new line of de-gendered period care products

by Ashmi Sheth 08/12/2024

written by Ashmi Sheth

Ashmi Sheth

Freda, a UK-based period organic period product brand has launched Cycle, a new line of period products designed to be inclusive and raise awareness about communities who are impacted by a lack of period inclusivity. Bringing our attention to the fact that “women aren’t the only people who menstruate,” Freda has launched Cycle, a range of pads, pantyliners and tampons that shuns gendered packaging and language. When it comes to period care, the focus is generally on cisgender women, leaving out transgender and non-binary people who also menstruate. Freda affirms that, “If we really want equity, it needs to start with something as basic as period care.”

Freda has partnered with transgender and non-binary activists Kenny Ethan Jones, Jamie Raines and Siufung Law to create short awareness videos highlighting the shame and fear they’ve felt while purchasing and using period products, which are often found in hyperfeminine packaging. They share their experiences of having no access to dustbins in male washrooms to dispose their pads, an experience that Jones shares “felt very shameful.” Raines points out that the products and the language used by big brands “does not feel inclusive.” Law suggests that the major brands can be more inclusive in terms of product design and awareness campaigns.

Current published research on trans and non-binary menstruation suggests that people may experience deeply negative sentiments and discomfort about their menstruation and that menstrual management can be a source of stress and anxiety for those outside the gender/sex binary. It has also been found that one of the major causes of such discomfort and anxiety is the presence of gendered bathrooms.

As the discourse on gender equity and inclusivity in healthcare gains momentum, we urgently need to drive our attention to something as basic and biological and period care. As Raines states, “Access to inclusive and sustainable period care is a human right” and we need to appreciate Freda for its thoughtful and inclusive campaign aimed at providing sustainable and reliable period care to “everyone.”

08/12/2024 0 comments 24 views

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First transgender artiste to receive a Padma Shri, Narthaki Nataraj now gets appointed in TN Advisory Committee

Queering Menstruation: Freda launches “Cycle,” a new line of de-gendered period care products

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