India’s community of trans women, or Hijra, has been a part of the subcontinent for about as long as civilization has begun. The Hijra community is a testament to the sexual diversity that is essential but often forgotten in Indian culture, with a recorded history of over 4,000 years and cited in ancient texts. The Hijra community has been mentioned in ancient literature, the most well-known of which is the Kama Sutra, a Hindu text written between 400 BCE and 200 CE on human sexual behavior. Hijra characters have important roles in some of Hinduism’s most important texts, including the Mahabharata and the Ramayana. One of the many avatars of Shiva, a major Hindu deity, merging with his wife, Parvati, to become androgynous Ardhanari, who holds the importance to many in the Hijra community also talking about Samavan, who became the wife of his own male friend; and many more. During the Mughal-era of India, Hijras held significant court positions and multiple facets of administration from the 16th to 19th centuries. They were also regarded to hold religious power and, especially during religious ceremonies, were requested for blessings. It is clear from this that the concept of transgender is prevailing in Indian culture since time immemorial. However, when the colonization by Britishers hit the Indian subcontinent and it came under colonial rule during the 19th century, British authorities sought to suppress and criminalize the Hijra community through various laws.
These laws were later repealed after India attained independence. While society as a whole still reveres and celebrates the Hijra community in religious and spiritual ceremonies, they are often the perpetrators of violence and discrimination. Like housing and other discrimination, violence and hate crimes against society are prevalent.
What Was Section 377?
Section 377 refers to ‘unnatural offenses’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine. Delhi high court verdict.
Prior to the historic judgment delivered by the Supreme Court of India, of striking down section 377 on 6 Sept. 2018, it was first delivered by the Delhi high court in july 2009. Where the bench
consisting of Chief justice Ajit Prakash and Chief Justice S.muralidhar decided to strike down section 377; stating that it violates the fundamental rights to life, liberty, and equality as
embodied in the Indian constitution.
In 2013 the LGBTQ community suffered the horrific blow when the supreme court overturned the decision of Delhi High Court, stating that section 377 ‘does not suffer from the vice of the unconstitutionality and the declaration made by the bench of the High Court is legally unsustainable’.
On 15th April 2014, the Supreme Court, in National Legal Services Authority v. Union of India declared transgender people to be a ‘third gender’ and declared that the fundamental rights guaranteed under the Constitution of India will be equally made available to transgender people. Thus, for the Supreme Court of India to embark on a journey of defining gender, transgender and the third gender in the Indian context was nothing short of a Brobdingnagian endeavor. It gave the Indian context a relatively broad definition of transgender, contextualizing it.
More importantly, the decision enumerated the different rights without which a person can not be said to be fully exercising his or her citizenship. Previously, this section in Suresh Kumar Kaushal versus the Naz Foundation and Others had been upheld by the apex court, saying that Parliament should make any legislative changes. This trained silence on the part of the apex court in the case of NALSA has resulted in a fresh kind of transience in India for transgender individuals.
To which on June 2016 Navtej Singh Johar, an award-winning dancer, files a writ petition in the Supreme Court challenging section 377; further, this was supported by other Indians including hotelier Aman Nath and chef Ritu Dalmia.
In 2017 the opposers of section 377 saw a ray of hope when Nine Judge bench unanimously ruled privacy as a fundamental right, hearing petition against India’s biometric program Aadhaar, in its judgment the court said ‘sexual orientation is an essential attribute of privacy’, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the
dignity and self-worth of the individual. Following this, in April 2018 a top hotelier Keshav Suri who was identified as gay filed a writ petition.
Scrapping Section 377.
“Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles,” said the SC. The five-judge Constitution bench – comprising Chief Justice of India (CJI) Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra – was unanimous in its decision. “Section 377 is irrational, arbitrary and incomprehensible as it fetters the right to equality for the LGBT community…LGBT community possesses the same equality as other citizens,” said CJI Dipak Misra.
What society thinks, the judges said, has no say when it comes to people’s freedoms.
Visiting the Transgender Persons Bill 2019
The Transgender Persons (Protection Of Rights) Bill, 2019, which was introduced in the Lok Sabha by the ministry of social justice and welfare Shri Tawarchand Gehlot on July 19, was passed by a voice vote on August 5. A contentious provision that criminalized begging by transgender people has been removed from the Bill.
Provisions of the bill.
Definition of transgender according to the bill; The Bill defines a transgender as a person whose gender assigned at birth does not match with his/her perceived gender. This includes trans-men, trans-women, “(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”.
The Bill says that a transgender individual is entitled to gender identity that is self-perceived. It prohibits discrimination against a transgender individual on the basis of denial, discontinuation or unfair treatment in schools, facilities, jobs, health care.
An analysis by PRS Legislative Research shows that every transgender person will have the right to be included in their household, and if the immediate family is unable to take care of the person, he/she may be placed in a rehabilitation center. The state will provide transgender people with education, sports, and recreational facilities. The state should also provide provisions for distinct HIV surveillance centers and sex reassignment surgeries, as set out in the Bill.
Prohibition Against The Discrimination
The Bill prohibits discrimination against a transgender person, including denial of service or unfair treatment in connection with:
- Education ;
- Employment ;
- Health Care ;
- Access to or enjoyment of goods, facilities, opportunities available to the public;(v) right of movement ;
- Right of residence, rent or otherwise occupation of the property;
- Opportunity of holding a public or private property off.
Right of Residence.
Every other transgender is entitled to live and be included in his family. If the immediate family can not care for the transgender individual, on the instructions of a qualified tribunal, the individual may be put in a rehabilitation center.
The state must take measures to provide transgender people with health services including distinct HIV surveillance centers and surgeries for sex reassignment. The government will review and provide extensive medical insurance schemes to tackle transgender people’s health problems.
Educational institutions financed or recognized by the appropriate government shall provide transgender, without discrimination, inclusive education, sports, and recreational facilities.
In employment matters, including recruitment and advancement, no government or private entity can discriminate against a transgender individual. Each institution must appoint an individual as a complaint officer to handle complaints related to the Act.
The Certificate of Identity
A transgender individual must apply to the District Magistrate, who will issue the transgender person a certificate of identity. This certificate will essentially be evidence that the individual is a transgender, reflecting their gender as “transgender”. Subsequently, the person’s gender will be registered in all formal papers as reflected in the certificate. Such an application will be made in the case of a minor child by the child’s parent or guardian. A transgender person will only qualify for a revised certificate if they undergo surgery to change their sex.
Welfare and Measures by Government.
The Bill says that the appropriate government will take steps to guarantee that transgender people are fully included and participated in society. It also needs to take measures to rescue and rehabilitate them, provide vocational training and self-employment, establish transgender sensitive schemes and encourage their involvement in cultural operations.
National Council for Transgender People
In order to exercise the provisions and functions of the Transgender Persons (Protection of Rights) Act, 2019, the Central Government will set up the National Council for Transgender Persons (NCT), on appointment. This body will consist of the Union Minister for Social Justice (Chairperson), a Minister of State for Social Justice (Vice-Chairperson), a Secretary of the Ministry of Social Justice, and one representative each from ministries including Health, Home Affairs, and Human Resources Development. It will also include representatives of the NITI Aayog and the National Human Rights Commission, along with five transgender community members and five NGO specialists. This body will recommend to monitor and review the central government’s policies and schemes for transgender people.
Criticism Of The Bill
“The initial Bill had 27 amendments and we approved most of them. In the 16th Lok Sabha, too, the Bill was enacted. But the House was dissolved before it could reach the Rajya Sabha. Minister Thawarchand Gehlot introduced the Bill in the Lok Sabha on July 19,2019. In response to suggestions and questions on the Transgender Persons (Protection of Rights) Bill 2019, Minister of State for Social Justice Rattan Lal Kataria said the bill provides for the establishment of a domestic agency to protect transgender rights. The government had a severe problem before it and this Bill was drafted after debates and consultations with specialist committees. However, India’s transgender community has vehemently opposed the Bill, with activists calling the community a ‘Gender Justice Murder Day.’ “The Bill is equivalent to murdering trans people. The government is supposed to draft legislation and schemes for the individuals, but this law is completely against the individuals,” said TNM activist Grace Banu.
The Bill is silent about giving transgender people reservations. For organized begging, the bill has prescribed punishments. The Bill, however, does not provide for better conditioning in those fields, it does not provide for reservation. The Transgender Bill does not mention any punishments for rape or sexual assault of transgender persons as according to Sections 375 and 376 of the Indian Penal Code, rape is only when a man forcefully enters a woman.
According to the census report 2011, there are around 4.80 lakh people who are identified as transgender, though the supreme court has given the identity (as the third gender) to them and after many efforts from the activists and leaders, the supreme court unanimously decriminalized section 377 which became an elixir to these people. Despite the judgment of the apex court, seeing a transgender individual working in the mainstream job is a rare occurrence, or hiring homes in secure neighborhoods’. With the additional burden of having a law that can be used to make their life hard, transgender individuals are carrying on them the greatest burden of the law. transgender community faced many barriers in British colonial laws. But now the state has introduced many policies and schemes to safeguard the transgender groups. Through this transgender community’s social-economic status will be created. The Transgender Bill is yet to become a statute, but once it does, it will be a enormous correction of historical mistakes. However, it will be a tiny move in the correct direction, because we understand only too well how often, despite the presence of solid legislation, ground-level realities will change forever. With civil society organizations working tirelessly and queer rights activists working literally round the clock, there is hope that it will be a strength to strength movement.