P.E.

Society’s

Modern Law College

Ganeshkhind, University Circle, Pune.

Topic

Enforcement of third gender law is a victory of humanity and a

step towards an undisputed impartiality of society.

RESEARCH ARTICLE

UNDER GUIDENCE OF

DR. PROF.ANANYA BIBAVE

SUBMITTED BY
ARCHANA S. DESHPANDE
ROLL NO.11
LL.M. SEM-1
2018-19

INDEX
1
 Sr. no. Topics Page no.
1 Introduction 3
2 Population percentage of Transgender in India 3
3 Problems faced by transgenders 5
4 Evolution of Transgender’s Rights 8
5 The Transgender Persons (Protection of Rights) Bill, 10
2016
6 Ways To Support and Respect Transgender 11
7 Conclusion 12

Introduction

Transgender community includes Hijras, Eunuchs, Kothis, Aravanis, Jogappas, Shiv-

Shakthis etc., who have been a part of Indian society for centuries. And trans

2
communities have a renowned history. The Vedic and Puranic literatures mention
“tritiyaprakriti” meaning the third gender. 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. Other current synonyms for transgender include ‘gender
variant,’ ‘gender different,’ and ‘gender non-conforming.’1

Hijra, roughly translating to eunuch or hermaphrodite, is a term traditionally used

in south-east Asia for transgender women who were born male. Revered in sacred
Hindu texts, for centuries they performed blessings at marriage and birth
ceremonies to bring good fortune. Later in the 19th century, under the British
Raj, came their criminalisation. Any “cross dresser” was to be registered and if
repeat offences were committed, imprisoned. And though these laws were
eventually repealed, societal ostracism proved the hangover. Today, hijras are
still subject to transphobic discrimination-associated violence, poverty, and
segregation. 2

Population percentage of Transgender in India

As per the Census of 2011, the total population of Transgender in India is 4.88 lakh.
There are various types of transgender communities in India. The most prominent of
these communities are known as Kothi (Represent themselves as male), Hijras
(Biological males but reject masculine identity), Aravanis (Woman wrapped in male
body), Jogappa (Serve as servant of Goddess Renukha Devi), Shiv-shaktis (Males but
have feminine gender expressions)3.

Sr.no. State Transgend Child (0- SC ST Litearcy

1
TRANSGENDER RIGHTS IN INDIA, http://iasscore.in/national-issues/transgender-rights-in-india,last
seen on 12/10/2018
2
Daniella, The changing social status of India’s hijra community,
http://itequals.com/gender/social-status-indias-hijra-community/,last seen on 10/10/2018

3
Transgender in India, Census2011, https://www.census2011.co.in/transgender.php-,last seen on
12/10/2018.

3
 ers 6)
India 4,87,803 54,854 78,811 33,293 56.07%
1 Uttar 137,465 18,734 26,404 639 55.80%
Pradesh
2 Andhra 43,769 4,082 6,226 3,225 53.33%
Pradesh
3 Maharashtra 40,891 4,101 4,691 3,529 67.57%
4 Bihar 40,827 5,971 6,295 506 44.35%
5 West 30,349 2,376 6,474 1,474 58.83%
Bengal
6 Madhya 29,597 3,409 4,361 5,260 53.01%
Pradesh
7 Tamil Nadu 22,364 1,289 4,203 180 57.78%
8 Orissa 20,332 2,125 3,236 4,553 54.35%
9 Karnataka 20,266 1,771 3,275 1,324 58.82%
10 Rajasthan 16,517 2,012 2,961 1,805 48.34%
11 Jharkhand 13,463 1,593 1,499 3,735 47.58%
12 Gujarat 11,544 1,028 664 1,238 62.82%
13 Assam 11,374 1,348 774 1,223 53.69%
14 Punjab 10,243 813 3,055 0 59.75%
15 Haryana 8,422 1,107 1,456 0 62.11%
16 Chhattisgar 6,591 706 742 1,963 51.35%
h
17 Uttarakhand 4,555 512 731 95 62.65%
18 Delhi 4,213 311 490 0 62.99%
19 Jammu and 4,137 487 207 385 49.29%
Kashmir
20 Kerala 3,902 295 337 51 84.61%
21 Himachal 2,051 154 433 118 62.10%
Pradesh
22 Manipur 1,343 177 40 378 67.50%
23 Tripura 833 66 172 181 71.19%
24 Meghalaya 627 134 3 540 57.40%
25 Arunachal 495 64 0 311 52.20%
4
 Pradesh
26 Goa 398 34 9 33 73.90%
27 Nagaland 398 63 0 335 70.75%
28 Puducherry 252 16 40 0 60.59%
29 Mizoram 166 26 1 146 87.14%
30 Chandigarh 142 16 22 0 72.22%
31 Sikkim 126 14 9 37 65.18%
32 Daman and 59 10 1 2 75.51%
Diu
33 Andaman 47 5 0 3 73.81%
and Nicobar
Islands
34 Dadra and 43 5 0 22 73.68%
Nagar
Haveli
35 Lakshadwee 2 0 0 2 50.00%
p

Problems faced by transgenders in day today life

The Transgender fall under the category of LGBT group (Lesbian, Gay, Bisexual and
Transgender). They belong to the marginalized group of the society which faces legal,
social, cultural and economic difficulties.

 Discrimination:

Discrimination is the major problem of Transgender. They are discriminated in terms of

education, employment, entertainment, justice etc.

 Disrespect:

They are disrespected in each and every aspect of life except in few cases like after the
birth of a child for their blessings or to bless the newly wedded couple.

 Downtrodden:

These people are treated badly or oppressed by people in power. They are prone to
struggle for social justice because of their identity as Transgender.

5
 Child Nabbing:

This community always searches for those babies/ infants/ children who are born with
this feature of Transgender. Once they come to know, they try to nab the child from their
parents.

 Prostitution:

They are forced to enter the profession of prostitutions by their community, friends or
relatives. Even, in some cases, it is seen that their parents are involved in it.

 Forced to leave parental home:

Once their identity is identified, they are forced and pressurize to leave the parental
home by the society as they can’t be a part and parcel of normal community and class.

 Unwanted attention:

People give unwanted attention to the Transgender in public. They try to create the
scene by insulting, punishing, abusing or cursing them.

 Rejection of entry:

They are rejected to get enter in religious places, public places like hotels, restaurants,
theaters, parks etc.

 Rape and verbal and physical abuse:

This is the most common people Transgender people face. They are prone to face rape
followed by physical and verbal abuse.

 Lack of educational facilities:

Like normal people, they are not entitled to take education in schools and colleges. Even
in terms of education, they are treated differently.

 STI and HIV/AIDS problems:

The term “MSM” stands for Men who have sex with Men. Because of this, Transgender
are likely to have problems like STI and HIV/AIDS. Most of the Transgender belongs to
lower socioeconomic status and have low literacy level. It seeks to have improper health
care.

6
 Human trafficking:

Transgender belongs to the most neglected group. That’s why, they are prone to face the
problem of human trafficking also.

 Social Exclusion:

The major problem in the whole process is that they are socially excluded from the
society. They are excluded from participating in social, cultural and economic life. In
brief, they are excluded from

• Economy, employment and livelihood opportunities

• Excluded from society and family

• Lack of protection from violence

• Restricted access to education, health care and personal care

• Limited access to public spaces

• Limited access to collectivization

• Rights of Citizenship

• Excluded from decision-making

• Lack of social security4

Evolution of Transgender’s Rights

Constitutional provisions

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 oppression, 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 ostracized from the society and also ridiculed.

4
Dr. Khushboo R. Hotchandani, Problems of transgender in India: a study from social exclusion to social
inclusion, Vol.4, Issue 4! International Research of Human Resources & Social Sciences,75,2017, last
seen on 12/10/2018

7
However, the Supreme Court of India in its pioneering judgment by the division bench
of Justices K.S. Radhakrishnan and A.K. Sikri in National Legal Services Authority v.
Union of India & Ors. [Writ Petition (Civil) No.400 of 2012(NALSA)] recognized the
third gender along with the male and female. By recognizing diverse gender identities,
the Court has busted the dual gender structure of ‘man’ and ‘woman’ which is
recognized by the society.

“Recognition of Transgenders as a third gender is not a social or medical issue but a

human rights issue,” Justice K.S. Radhakrishnan told the Supreme Court while handing
down the ruling.

The right of equality before law and equal protection of law is guaranteed in the
Preamble and under Article 14 and 21 of the Constitution. The right to choose one’s
gender identity is an essential part to lead a life with dignity which again falls under the
ambit of Article 21. Determining the right to personal freedom and self determination,
the Court observed that “the gender to which a person belongs is to be determined by
the person concerned.” The Court has given the people of India the right to gender
identity.

Further, they cannot be discriminated against on the ground of gender as it is violative

of Articles 14, 15, 16 and 21.

The Court also protects one’s gender expression invoked by Article 19 (1) (a) and held
that “no restriction can be placed on one’s personal appearance or choice of dressing
subject to the restrictions contained in article 19(2) of the Constitution”.

The Court recognized the right to as to how a person choose to behave in private,
personhood and the free thought process of the human being, which are necessary for
the fullest development of the personality of the individual. The Court further noted that
a person will not realize his dignity if he is forced to mature in a gender to which he
does not belong to or he cannot relate to which will again hinder in his development.

The Supreme Court has given certain directions for the protection of the rights of the
transgender persons by including of a third category in documents like the election card,
passport, driving license and ration card, and for admission in educational institutions,
hospitals, amongst others.

8
Human rights are basic rights and freedoms which are guaranteed to a human by virtue
of him being a human which can neither be created nor can be abrogated by any
government. It includes the right to life, liberty, equality, dignity and freedom of thought
and expression5.

The Supreme Court of India passed a unique judgment in April 2014 stating one's
sexual orientation as the integral part of personality, dignity, and freedom and identified
transgender as a third gender. In the National Legal Services Authority (NLSA) versus
Union of India6 case, the apex court provided the transgender (Hijras and Eunuchs) a
legal identity along with seven other directions. Post the NLSA judgment; various
courts passed favourable orders for the transgender community.

Based on the NLSA judgment, the Rajya Sabha passed the Rights of Transgender Bill,
2014. However, the government then passed another Bill, Rights for Transgender
Persons Bill, 2015, modifying on the 2014 bill by removing the provisions relating to
Transgender Rights Court as well as the National and State Commissions. The 2015 Bill
underwent further changes and another bill was introduced in the Lok Sabha in 2016 —
the transgender persons (Protection of Rights Bill), which invited criticism from the
transgender and activists.

The Transgender Persons (Protection of Rights) Bill, 2016

Highlights of the bill

The Bill defines a transgender person as one who is partly female or male; or a
combination of female and male; or neither female nor male. In addition, the person's
gender must not match the gender assigned at birth and includes trans-men, trans-
women, persons with intersex variations and gender-queers

A transgender person must obtain a certificate of identity as proof of recognition of

identity as a transgender person and to invoke rights under the Bill

Such a certificate would be granted by the District Magistrate on the recommendation of

a Screening Committee. The committee would comprise a medical officer, a

5
What are the Rights of Transgender in India, iPleaders, https://blog.ipleaders.in/legal-rights-of-
transgender-india/,last seen on 12/10/2018

6
NLSA vs. UOI (2014) 5 SCC 438
9
psychologist or psychiatrist, a district welfare officer, a government official, and a
transgender person

The Bill prohibits discrimination against a transgender person in areas such as

education, employment, and healthcare. It directs the central and state governments to
provide welfare schemes in these areas

Offences such as compelling a transgender person to beg, denial of access to a public

place, physical and sexual abuse, etc. would attract up to 2 years' imprisonment and a
fine.7

Supreme Court of India in Navtej Singh Johar v. Union of India,8wherein it partially

struck down the draconian Section 377 of the Indian Penal Code, thereby upholding the
rights of the LGBTQ community. The Supreme Court declared Section 377 of the IPC
as unconstitutional. Section 377 made gay sex a criminal offence with a provision for
jail term up to five years. Supreme Court held that Section 377 denied the fundamental
right to choose a partner without fear and the basic right to companionship.

Ways To Support and Respect Transgender

Following are the few ways in which we can support transgender in our society and
contribute to making their lives better.

 When transgender people disclose their identity to you, respect that.

 Do not hesitate to communicate with them.

 Accept them as they are.

 Try and obtain information about gender issues rather than negating anything
that does not conform to standard bipolarity.

 Access to education and employment.

 Unbiased treatment shall be given in public places.

7
Sawant NS. Transgender: Status in India. Ann Indian Psychiatry [serial online] 2017 [cited 2018 Oct
12]; 1:59-61. Available at http://www.anip.co.in/text.asp?2017/1/2/59/220257,last seen on 12/10/2018
8
Navtej Singh Johar v. Union of India, W.P. (Criminal) No. 76 of 2016

10
  Civil rights under law such as the right to get a passport, ration card, make a
will, inherit property and adopt children must be available to all regardless of
change in gender / sex identities.
 Maintain their confidentiality.

 A comprehensive sex-education program should be included as part of the

school curricula.

 Implementation of certain Protection and safety measures for them.

 Provide a platform for help.

 The Press Council of India and other watchdog institutions of various popular
media (including film, video and TV) should issue guidelines to ensure sensitive
and respectful treatment of these issues.
 Vocational training centres should be established for giving the transgender new
occupational opportunities.

Conclusion
India is walking towards a better future with a positive mindset as gradually it has
started recognizing the rights of the unheard.
The Government of India today has taken a stance and introduced several welfare
policies and schemes for the transgender which would be a big step forward. These
include census, documentation, issuing of the citizenship ID Cards, issuing passports
along with social, economic, political transformation, housing, legal measures, police
reforms, legal and constitutional safeguards to prevent human rights violations of the
transgender community and institutional mechanisms to address specific concerns of
transgender people.
Indian judiciary is trying to bring transgender on the equal footing with other citizens
but more need to be done to change the attitude of society towards them. There is an
urgent need to transform and include this community as a part and parcel of society.

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