TRANSGENDER RIGHTS FOR SELF-IDENTITY

Vedvati Charudatt Sadawarte

Maharashtra National Law University, Nagpur

Transgender is a large group of individuals whose internal sense of male or female identity does not correspond with the sex they were assigned at birth, which is determined by physical characteristics. Gender identity of a person is intrinsic and based on personal understanding. There is a blind superstition that a person’s self-identity is also determined at birth. However, male and female identities are self-perceived and only sex can be assigned at birth. This reminds me of an incident of the past that led me today to address this topic of transgender rights. Since I was young child, my family, friends and other members of the society have taught me to avoid being near transgender people or hijras as they are known because according to them, they are bad or unethical. One afternoon when I was coming from the school by a quiet road, I noticed four or five transgender people approaching me. They were only requesting money from me. However, being repetitively heard from the society about their misconception I changed my path and started running away as if I had seen something frightening. Upon arriving home, I could not stop wondering, “Are they not normal human beings that I ran away from them? Don’t they have a right to be treated with respect in society? Don’t they deserve same treatment?”

SIGNIFICANCE OF SELF-IDENTIFICATION AND RECOGNIZING TRANSGENDER RIGHTS

The transgender community in India has long been marginalized and excluded from the society. They were not officially recognized as the ‘third gender’ until the Supreme Court’s historic 2014 decision, also referred to as the NALSA judgement that is National Legal Services Authority v. Union of India and Others[i]. However, they still struggle to access fundamental rights. Recently in 2022 after a medical examination, the Directorate General of Civil Aviation (DGCA) informed Adam Harry who was set to become the nation’s first transgender pilot, that he was ‘temporarily unfit’ to obtain a license to fly due to gender dysphoria. This disorder is typified by uneasiness resulting from a perceived mismatch between gender identity and biological sex. This unjust action infringed upon his fundamental right to pursue career as pilot.[ii] A person's entire life is negatively impacted when their gender is not legally recognized. There is false belief that significance of self-identity is only important to transgender individuals, cisgenders are not concerned to learn about their identity and rights. However, every person should read the world through perspective of transgender as they are ostracized and disrespected every day. Society frequently makes fun and mistreats the transgender persons in the public places like traffic signals, railway station, toll plazas, bus stops, workplaces, malls etc by treating them like outcasts. Due to this discrimination faced by them they are more likely to experience poor mental and physical health which causes several health problems like depression, anxiety, suicidality and cardiovascular disease.  Prejudice and stigma create a hostile environment that tests people's coping skills and heightens minority stress, even for those who are not directly affected by discrimination. Like everyone else, transgender people should not be discriminated just because of their identity. They must have equal rights and dignity in the society. Acknowledging the rights of transgender people will create an amiable atmosphere promoting inclusivity which will give them access to safe havens and support systems where they are understood and accepted.

LAWS ON THE TRANSGENDERS RIGHTS

The Transgender People (Protection of Rights) Act, 2019 [iii] was passed by the Ministry of Social Justice and Empowerment which came into effect on 10th January, 2020 with an aim of protecting transgender people’s rights and ensuring their welfare. It prohibits the discrimination against transgender people in education, employment, access to public places and healthcare and it calls for the establishment of distinct hospitals and clinics. In addition, the Act makes mistreatment of transgender people illegal, including economic, emotional, sexual, and physical abuse. Still, there's opportunity to introduce some much-needed safeguards and expedite the implementation of these measures. Passing on any act or bill would not help unless there is awareness and effective implementation of it. Creating awareness among people about their identity is significant. This awareness should start from educating children in schools about gender diversity. Education Institutions should come up with awareness and educational programs for better implementation of this law. Irrespective of the acts being laid down for transgender rather than supporting them the police officers abuse and disrespect them. Therefore, educating police about the transgender rights is not only beneficial for transgender but also for the establishment of an equitable society in which everyone’s rights are upheld.

This law requires two-step process of acquiring transgender certificate that opposes its own premise of self-identity by imposing medical criteria for legal recognition. This grants excessive power to govt officers to arbitrate a person’s gender identity restricting freedom of self-determination[iv]. On one hand the government held that the transgender people are free to choose their identity and on the other hand it forces them to undergo medical procedures they may not want to do. Many people lack the resources and knowledge to complete the formalities required in order to obtain these documents and they are also unaware of the procedure. As a result, these people are unable to utilize the full range of healthcare benefits provided by law. This act penalises for sexual abuse of the transgender persons between six months to two years and a fine. Whereas the sentence for sexual abuse against a woman is 7 years to life imprisonment. This is also somewhere unfair because the punishment for sexual abuse of every person should be same.

CHALLENGES FACED BY THE TRANSGENDER COMMUNITY

Transgender people are marginalized and are often excluded from the contributions to society. The term "clapping queens" is applied to them in society, and they are constantly the targets of stigma and negative public perceptions. They are treated as unwanted child in the family and are bullied at school. Consequently, they have to leave their family at an early age. Once the landlord discovers who they are, even they evict them from the property. Due to this the child who is already fighting with his body and are living with HIV or sexually transmitted diseases has to face barriers while receiving appropriate medical care and mental support from the families, which impedes early prevention and education efforts. Additionally, it promotes reckless behaviour that raises the possibility of HIV infection. These people are even restricted from accessing public restrooms which a very important issue. Transgender fears to use public washrooms as they do not have separate restroom. Therefore, they have to use male restrooms, where they are vulnerable to sexual harassment and assault. Transgender persons face racism as according to the society beauty is trapped in that ‘colours’ thing.

The transgender community are also deprived of educational and employment opportunities which leaves them with the only option of begging on streets and sex work. The transgender community are denied the opportunity to create happy, healthy families and the right to parent a child that they would not be able to have naturally. Gauri Sawant, a transgender activist was the first transgender to file a petition in the Supreme Court for adoption rights. She was also the first to have made her way to motherhood. It was her who became the first transgender petitioner in the NALSA case. In order to eradicate this discrimination and stigma connected to the community, affirmative action is required.

CONCLUSION

Respecting transgender rights is a social commitment to guaranteeing that everyone, regardless of their gender identity has equal rights and opportunities which will result in a society that is just fair and compassionate where everyone can live with dignity. Accepting diversity improves society overall and creates a more equitable and welcoming world in addition to empowering the transgender community. This involves promoting education, creating awareness about their rights and establishing supportive environments. Accepting people for who they are empowers them to lives freely and make the world more just place. It is today’s harsh reality that prejudice and ignorance are the causes of discrimination against the transgender community. They receive very appalling treatment. Therefore, every person who treats them unfairly should consider the following questions: Are they not hurt when their family forcibly removes them from their home? Do they not feel pain when the very people they trust harass them sexually? Do they not suffer when society throws stones and cow dung at them? These questions highlight the profound and unjust suffering that transgender individuals endure due to widespread prejudice and ignorance. It is crucial to recognize their humanity and extend to them the respect and dignity that every person deserves.

REFERENCES 

[i] National Legal Services Authority v. Union of India, (2014) 5 SCC 438

[ii] https://www.bbc.com/news/world-asia-india-62160024

[iii] India Code: Transgender Persons (Protection of Rights) Act, 2019.

[iv] India’s Transgender Rights Law Isn’t Worth Celebrating | Human Rights Watch (hrw.org)