“What’s in name? A rose if called by another name will smell the same.”Shakespeare
The difference in gender does not mean he is not a human anymore. The notion of considering LGBTQ equal to men and women is evolving with the arrow of time, the historical judgement in 2018 is a major step towards their natural identity.
Table of Contents
The British colonial rule was not only inhumane during its ruling but also left the cruel remaining in the Indian laws. Transgenders are not well considered in the texts of law whether it be criminal law or civil law. Even the recognition of transgender as “third gender” was made in a case of 2014 after law itself was implemented in India in 1834. Section 377 of IPC is modelled from the British act, Buggery Act 1533. The section criminalises sexual orientations like homosexuality considering it as “unnatural”. The laws in India almost pronounce the British rule if not exactly. The sexual offences in Indian Penal code do not talk about transgenders as victims but only women. In fact, a criminal’s rights are intact in our laws. This is beyond irony that gender dysphoria which is not even a illness is treated harshly than a rape accused. Most of the Trans community relies on “BHADAI” and remaining work as sex worker for their living. Whether it be a public washroom, train or any entertainment place like theatre they are least considerate.
However, the modern air is gradually understanding the important role a trans person can play in a society if treated as naturally as he deserves to be. Social media platform like Instagram has started celebrating June as pride month as to honour the LGBTQ+ community. Anwesh Sahoo a Mumbai grown Gay is a recent example of reaching to success out of hurdles. In 2018 Transgender Protection Act came brought in to protect the community against the evil. The recognition of the community is gradually becoming significant.
EARLY AMENDMENTS TO BENEFIT LGBTRANSQ+
The earliest British laws that inspired the Indian laws have been either very ignorant or cruel towards the transgender community. Transgenders are group of people whose gender identity, expression and behaviour are different from what it is during their birth. “Civilisation” was just another name for the negligence towards them. Gradually the citizens of the India nation realised the need for change in the laws and establishment of new laws in order to safeguard the whole group of humans that is nowhere considered as humans.
Historically it can be observed the status of trans was far better than after the implementation of laws. In Hindus scriptures and role plays the role of transgenders was significant. Ironically the laws are supposed to improve the living and safety of citizens in society. The laws in India whether labour laws, Indian Penal Code or Industrial dispute and all other laws talk about men and women explicitly and ignore third gender. But the lacunas in laws of India is being filled with various amendments and the judgements are made in favour of the said community.
In NALSA vs Union of India&Ors, Laxmi Narayan Tripathi a claimed Hijra raised the issue of non-recognition of Hijra as a third gender is denying the rights given under Article 14 and 21 of the Constitution of India. The learned council of the petitioner highlighted issue of deprivation of rights of transgender community due to non-recognition of them as third gender makes them a vulnerable group of society. Since, the discrimination on the basis of gender and sexual orientation is unethical and violative in nature of Article 14. The identification of transgender is made a third gender after this case.
Indian Penal code, section 377 declares “unnatural offences” in which homosexuality was also included. In the case of Queen Empress vs Khairati the transgender person was a “habitual sodomite” and was suspected and arrested under section 377. The discriminatory effect of section 377 against LGBT was also discussed under the case Suresh Kumar Koushal vs. NAZ foundation.
September 2018, came in with different air for LGBTQ community. The Supreme Court gave the recognition and legal approval to homosexuality. Love is love, every human is different and difference is being recognised gradually with time. SC allowed consenting adult gay sex in private. In case Navtej Singh Johar vs Union of India ministry of law, the court considered the judgement from NALSA case. The judges discussed that social morality is variable. It is important and peak time to consider the vulnerable and ignored group of society. It was presented in front of court that homosexuality and other sexual orientation is natural and should not be considered “unnatural” as considered under section 377. The court decriminalised the sex between same gender.
These cases bought a wave of betterment for transgenders. Decriminalisation of homosexuality paved the way for marriages among same sex. In Kerela gay marriage took place between Nikesh Usha and M.S Soni made their marriage public after the 2018 historic judgement.
MODERN LAWS FOR TRANSGENDER COMMUNITY IN INDIA
A shift in the mindset of the society withinside the count of transgender community can be observed lately. The early civilization era treated the community ‘dearly’and its impact is still ongoing over the years. Analogously, the things have changed and the operative organs of our nation had thrown a light upon the matter and started taking decisions in the community’s favor. Albeit, the hatred and sufferings for the transgender community are active precisely. Any human being is not supposed to be treated inhumanely as we all are similarly created. However, now the thing to be celebrated is that the transgender community is being coming into light and actively participating to fight for their rights and as a result, they are being heard without any discrimination.
The state of Kerala took an initiative to make some rules regarding the security and inclusion of transgenders in mainstream society.This is a palpable step taken by the state government of Kerala in 2015. The rule directed to include a column for third gender in all the forms to be filled by the public. Also, it included many other provisions so as to protect the transgender’s interest with the hope to provide education and motivate them to be inclusive in the society.
THE TRANSGENDER PERSONS ACT, 2019
The Transgender Persons (protection of rights) Act of 2019 helps to highlight the transgender people’s identities and ban discriminating in aspects such as health, work, education, land ownership and disposal, governmental and non – governmental office, and access to and usage of public benefits and services.
How The Law Is Beneficial for Transgender
It forbids discriminating against transgender people in academic institutions, employment or vocational possibilities, healthcare, and public amenities and services. It also protects transgender people’s freedom of movement, right to possession, and ability to hold business or government office.
Certificate of identification
It establishes a right to conscience gender identity and requires the district magistrate (or other authorized government official) to issue a ‘certificate of identification’ to a transgender individual without the need for an underlying medical evaluation. It also states that a person having surgery to alter their gender to either male or female may apply for an updated certification showing the gender reassignment.
Each business is required to create an equal and fair policy for transgender people with certain particular details as stipulated by legislation.
The administration has been given the task of developing transgender-sensitive, non-stigmatizing and quasi benefit programs and initiatives.
Medical treatment amenities
the legislature has been ordered to establish separate HIV sero-surveillance centres to perform sero-surveillance for transgender people; provide medical care facilities such as sex reassignment surgery and hormonal therapy; and cover healthcare facilities cost through a detailed insurance program for sex reassignment surgery and other treatments.
The National Council for Transgender People was established to assist the administration on policy formation and supervision, as well as to address transgender people’s concerns.
Offenses and punishments
Offenses such as subjecting transgender people to forced or compulsory labour or denying them access to the public locations; physical, sentimental, or sex violence; or even other violations of the Transgender Persons Act are subject to punishment for at least six months and up to two years, as well as a fine.
An Examination of The Proposed Legislation
Social views and prejudice have played a significant role in restricting transgender people’s prospects, whether in their economic or social lives, or even inside their own communities. Notwithstanding the gravity of the situation, transgender people’s rights have received little attention. To just that extent, the government’s attempt to acknowledge these people’s identities and safeguard their actions is a significant step forward.
One of the most emphasized and sensitive issues pertaining to the criminalization of transgender individuals’ begging, which was part of a preceding proposed legislation, has been removed amid widespread condemnation and pan-India demonstrations. While begging will continue to be a major issue that needs to be resolved, the administration has at least attempted to reduce mistreatment of transgender people who may have no other source of income or subsistence by not penalizing the conduct under the Transgender Persons Act.
In the Act, the need of passing an underlying medical screening and evaluation in order to get a certificate of identification has been repealed, as it was in a previous proposed law. If this harsh clause had not been eliminated, transgender people would have been exposed to much more suffering and abuse.
Courts are providing justice to the transgender people in case of any dispute. Some of these cases are discussed below:
Pallabi Chakraborty vs The State of West Bengal and ors.
In this case, the transgender petitioner filed a writ of mandamus against the police authorities to let her to encompassand participate in the selection process of police constables that are set up by the West Bengal Police Directorate.
The transgender petitioner was assigned the sex as male during her birth but eventually she got herself registered as a female before the Judicial Magistrate After the enforcement of Transgender Persons (Protection of Rights) Act, 2019. As a result, she got a secured employment with the state as a woman, as she got herself registered as female. The registered name of the petitioner was Pallab Chakraborty.
To the petitioner’s contention, the hon’ble court held that as she received her job as a lady, she does not qualify to go back and claim her status of transgender back. However, the court, as per section 11 of the Act, ordered the Chief Secretory of the state to take a promptaction to set up a grievance redressal forum and mechanism.
Veera Yadav vs. The Chief Secretory, Government
With respect to the submission in court, the hon’ble court’s order threw light on giving the worthy and deserved impression of transgender community with the object behind it for inclusion of the community in mainstream society. This can help to rise up their morale and aplomb to take a stand for themselves. This will eventually lead to a changed perceptionin cis-gender community.The court thought for making the reservations for them but their population being too low, it dropped the idea for such provision. But the eminent Special Unit for Transgenders are levelled to be set up under the guidance and lead of District SP.
Cristina Lobo vs. State of Karnataka
In this case, the hon’ble court held that the transgender people with the pre-registration of their gender change or recognition as male, female or transgender officially before the enforcement of Transgender Persons (Protection of Rights) Act, 2019 are not required to submit an application for an identity certificate.
TRANSGENDERS SUCCESS AND ITS AFTERMATH and Famous Transgender in India
The fast-changing world initially deprived the transgender community in every aspect but as it is fast changing, transgender people have also anew their representation in this society for their only concern of being involved in the society just like any other groups. As it is normal for a transgender to get his/her human right violated, beholding the success stories of other people from the same community give them courage to take a stand and help themselves. They are encouraged to develop an interest and showcase their talents apart from being harassed by the so-called civilized society. Nowadays we can see a lot of transgenders coming up and achieving the rank, a few of them are discussed further.
- Naaz Joshi
She was assigned a sex of male at the time of her birth but she came out as a transgender in the future. She became India’s first transgender cover model. She is also the first one to be a show stopper in India from her community. Her biggest achievement is that she is world’s first transgender to win International Beauty Pageant in which she had cis-genders as her opponents. She won several beauty contests. Apart from this, she is an activist and a motivational speaker. Her recent achievement is that she is the winner of Empress Earth, 2021.
- Gauri Sawant
She is a Mumbai based activist who became famous through an advertisement of Vicks in which she was featured and she can be seen with her daughter (adopted) in it. She became the goodwill ambassador of Election Commission of Maharashtra.
- Laxmi Narayan Tripathi
She has made her journey up to being a Bollywood star and worked in several movies that got her more fame and recognition. She is an activist, Bharatnatyam dancer and a choreographer.
- Sathyasri Sharmila
She recently became India’s first lawyer from transgender community and set the heights by attacking stereotypical thinking among the people through her success.
She is serving in the Indian Navy and is the first transgender soldier of India. She had undergone with the sex reassignment surgery in 2016 and joined the Vishakhapatnam’s naval base.
- Dr. ManabiBandopadhyay
She is India’s first transgender to complete the PhD. She is a professor and the principal of Krishnagar women’s college.
- Joyita Mondal
Lok Adalat’s first transgender judge is none other than Joyita Mondal. She is also a social worker based on West Bengal.
- Ankani Biswas
She is the first transgender advocate to be amplified in state legal services. This news about her came recently.
The list and their respective success stories are not exhaustive. These people have proved to be strong in tough times to eventually soften it and make everything in favor. All these people have become an inspiration not only for the transgender community but for the cis-genders too. They have proved that they are none less than any other human being, although there is no need to prove but the society has compelled them to do.
LACK OF IMPLEMENTATION OF LAWS
Case Laws That Prove Their Pathetic Situation
Nangai vs The Superintendent of Police
The following are the facts of this case: In this case, the complainant describes herself as a woman. However, her employment with the police force was dismissed once she was labeled as a “Transgender.” What is the difference between ‘Sex’ and ‘Gender,’ she asked? “Who is a ‘male’ and who is a ‘female’ in the Indian perspective?” Is being born as a ‘Transsexual’ a sin?” “Wouldn’t denying work to a transgender be a violation of Articles 14, 15, 16, 19, and 21 of the Indian Constitution?”
Article 14 of the Constitution of India assures everyone equal protection under the law and equality before the law. Article 15 forbids discriminating against citizens on the basis of religion, sex, race, caste, birth place, or any of these factors. Article 16(2) ensures equal chance in employment and further states that no citizen shall be allowed to discriminate against in respect of, employment or office under the State solely on the basis of religion, caste, sex, race, descent, birth place, residence, or any combination of these factors.
However, the authors of the Constitution, in using the term “Sex” in these sections, would not have anticipated that a disagreement over an individual’s sex would emerge throughout the course of the Constitution’s operation, and so did not think it essential to define and describe Sex.
As a result, the provisions under our Indian constitution are not as favorable to transgender people, as this case demonstrates.
HinaHaneefa @Muhammed Ashif Ali v/s State of Kerela
The petitioner, a student at University in Thiruvananthapuram, claims to be transgender. She was born with a male gender assignment and underwent sex reassignment surgery at the age of 21. The further procedure was conducted on 27.5.2019, and the petitioner’s name was changed to HinaHaneefa. The petitioner was also given a transsexual identity card that indicated her sexuality as female. The complainant had presented all of her paperwork requesting enrolment, taking notice of the certifications granted to her, when the respondent denied her entrance to the NCC unit on the grounds that there is no provision for enrollment of transgender pupils.
The provisions of the National Cadet Crops Act, 1948, or the lack of such provisions in the case of transgender enrolment, must be examined in light of the Court’s decisive ruling. The law is obviously designed to eliminate injustice and inequality for people like the complainant and to provide them with a life of human dignity.
ShivamDewangan vs State of Chhattisgarh
The facts of this case are so far as from 1.1.2014 to 5.11.2015 & 28.11.2015, the applicant is accused of engaging in sexual activity with the prosecutrix, who is accused of being a transgender woman, on the flimsy pretext of marriage, and blackmailed Rs.1,50,000/- by endangering to defame her and end up causing her harm.
Mr. H.S. Ahluwalia, learned counsel for the application, argued that the applicant has not committed any crimes and it has been unfairly implicated in them. He also argued that there has been an excessive wait of more than a year in filing the FIR with no justification.
India is meaningfully amending its law to pave the wave of recognition, safeguarding and protecting the “third gender”. Radhakrishnan J. the learned judge has rightly identified the weightage of gender identity. He further mentioned that there is no reason to deprive transgenders from the basic human rights. The aforesaid judgement in NALSA case is as if manifested as gender recognition is very important to exercise basic rights.
Sachin, claimed transgender the appellant of NALSA mentioned about his suicidal feelings due to society mocking him for being different is heart wrenching and unsocial. The law is supposed to be social.
Since the current laws are not as definite and justifying for the LGBTQ+ they need to be updated as per the changing needs and social morality. The police stations often deny to facilitate the protection against the harassment of trans people and citizens still not spare a moment mocking them. It is a high tide signalling the need of lending the shoulder of law to the most vulnerable group. The doctrine of free by Immanuel Kant 200+ years ago pondered on free willing individual as a natural law ideal.
It is a growing recognition that the economic growth is not the true measurement of nation development but human dignity is and human here is irrespective of its gender.
INDIVIDUAL CONTRIBUTION OF EACH STUDENT
Ananya Alok: Lacks of implementation of the law, The Transgender Persons Act, 2019.
Janhavi Jain: Modern Laws for Transgender Community in India, Transgenders Success and its Aftermath.
Ritika Gupta: Abstract, Introduction, Early Amendments to Benefit Lgbtransq+
This article is written by:
1. AUTHOR- JANHAVI JAIN (a 3 rd -year BBA LLB student from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith)
2. CO-AUTHOR- ANANYA ALOK (BBA LLB student from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith)
3. CO AUTHOR- RITIKA GUPTA (BBA LLB student from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith)
- Studies in Jurisprudence and legal theory by Dr. NV Paranjape
NALSA vs UOI& ors.
Initiated by Bisexual Activist Brenda Howard
46 types of sexual orientation
An Indian artist, model, blogger, writer and a TEDX speaker.Also, crowned as Mr. Gay World India 2016 (youngest winner).
Vedas, Ramayana, Mahabharata
AIR 2014 SC 1863
Civil Appeal no. 10972 of 2013
AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
Anything that is beyond the law of nature.
1st married gay couple of India
Naaz Joshi, 1st transgender from India to rise up
 Section 2(k)
 W.P.A. 3962 of 2021
 Civil Writ jurisdiction case no. 5627 of 2020.
 Writ Petition No.8024 Of 2020 (Edn-Res)
(2014) 4 MLJ 12
NALSA vs. UOI and ors