The oxford dictionary defines Transgender as ‘denoting or relating to a person whose sense of personal identity and gender does not correspond with their birth sex’. Transgender is generally described as an umbrella term for persons whose gender identity, gender expression or behaviour does not conform to their biological sex.
Transgender may also take in persons who do not identify with their sex assigned at birth, which include Hijras/Eunuchs who, in this writ petition, describe themselves as third gender and they do not identify as either male or female. A transgender person has different sexual orientation as compared to the binary sexes, male and female.
Transgender persons have to go through a lot of ridicule and scorn due to their different orientation and sexual constitution. The society views them differently than the other two sexes, thereby discriminating them in the process in various places including railway stations, bus stands, schools, workplaces, malls, theaters, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change. Transgender people are generally excluded from the society and people think transgenderism as a medical disease. Much like the disability, which in earlier times was considered as an illness but later on looked upon as a right based approach.
This kind of harsh treatment led to the filing of a writ petition by National Legal Services Authority(NALSA) which urged the court to recognise the transgender community providing them with all the benefits given to the male and female genders. The court in the case of NALSA vs UOI recognized transgender as the third gender along with male and female gender and provided the transgender community with various rights recognizing their right to dignity and personal autonomy.
The Supreme Court held that the transgenders come within the ambit of Article 14 of the Constitution and that persons who are neither male/female fall within the expression person and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. Non-recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. The court also increased the effect of Articles 15, 16 and 19(a) to the transgender community. It held:
“ Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgenders personality could be expressed by the transgenders behaviour and presentation. State cannot prohibit, restrict or interfere with a transgenders expression of such personality, which reflects that inherent personality. Often the State and its authorities either due to ignorance or otherwise fail to digest the innate character and identity of such persons. We, therefore, hold that values of privacy, self-identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights”.
The NALSA judgement has been a turning point in the lives of countless transgenders who were not dealt properly by the society. But the court has provided these transgenders with numerous rights which were the need of the hour. Transgender persons right to decide their self-identified gender was upheld and the Centre and State Governments were also directed to grant legal recognition of their gender identity such as male, female or as third gender. Moreover, the court directed Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Both the Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/ Transgenders face several sexual health issues. An expert committee has also been formed to look into the conditions of the community in order to make sure that their condition is improved and so that they don’t have to go through the harsh conditions again.
The Transgender person (Protection of Rights) Bill, 2019 has been approved by the central government which would help the allaying of discrimination and prejudice against transgender people. The bill aims to mitigate the instances of stigma and abuse attached with the transgender community.
One of the objectives of the bill is the increased and active involvement of a marginalized community i.e. transgenders. It would help to empower them providing a holistic development socially, economically and educationally. It also increases the accountability of authorities like central and state governments giving them certain responsibilities which they need to fulfill in order to make sure that the transgender community is not left when it comes to development and welfare.