Derogatory Treatment of Transgender in India
Authored by - Prachi Ganeriwala
Keywords - Transgender, discrimination, violation, derogatory, fundamental right.
On visualizing a world where the core of our entire existence goes unacknowledged or is simply denied be it family, school, on the occasion of seeking employment, or requirement of basic needs such as health and housing, which is further worsened by the absence of identity documents required to participate in society, we can get a picture of the horrors of life transgender experience every day of their lives. Additionally, what if one is subject to discrimination or violence because of their appearance, the moot question here is how do you protect your dignity and well-being when you are vulnerable to such a derogatory treatment? Yet, like all other human beings, transgender too have fundamental rights to life, liberty, equality, health, privacy, speech, and expression, but are constantly restrained from exercising these fundamental rights.
“We too have families to support, these kids that you see in the other room, I need money to feed them, how are we supposed to do that without a job? Even after our not like to beg, we are bereft of options, and our only source of income is by making use of our distinctiveness, so we do, we impart happiness on others’ joyous occasions.”
-an interview a woman named Sanjana, looking after the needs of other transgender people in her locality.[i]
The word “transgender” is a blanket term for people whose gender identity does not conform with the sex assigned to us at birth. On the nativity of a kid, an assignment in the terms of traditional paradigm of the arrival of a “girl” or “boy” is made, which creates a substantial impact on diverse facets of rest of our lives. But for some people, gender evolves differently, and does not fit into the obdurate traditional notion of male-female binary.
Transgender are subject to discrimination every day; in almost every sphere of their life. The National Transgender Discrimination Survey revealed that 26% of trans people lost a job due to bias, 50% were harassed on the job, 20% were evicted or denied housing, and 78% of trans students were harassed or assaulted.[ii] Though the rights of these people are protected by a range of international and regional mechanisms, the castigating laws and practices targeting transgender people, rob them of their rights and limit access to justice. This results in gross violations of their human rights. Transgender people experience social exclusion globally which leads to their vulnerability towards diseases including mental health conditions, limited access to education and employment, and loss of opportunities for advancement. In addition to the aforementioned issues, there exists frequent ordeal of extreme violence which often goes unpunished. Despite this incessant violation of their rights, transgender people have made tremendous strides in recent years toward achieving legal gender recognition.
The effects of marginalization, a transgender suffers in their life are interconnected, that is because of stigma and phobia drive isolation, poverty, violence, lack of social and economic support systems, and compromised health outcomes. People who express their gender identity from an early age are often rejected by their families and if not cast out from their homes, they are shunned within households resulting in no attempts to ensure their mental and physical wellbeing. As for those, who express their gender identities during later stages of life often face rejection by society and social service institutions.
Such discriminatory and derogatory environment provokes social vulnerability over a lifetime. Transgender people have few opportunities to pursue education, and greater odds of being unemployed, thereby experiencing inordinately high levels of homelessness and poverty. The students experience resentment, prejudice, and threatening environments in schools which leads to significant drop-out rates and only handful of them advancing towards higher education.
Workplace-related research reveals that trans workers are often excluded from gainful employment, with discrimination occurring at all phases of the employment process, including recruitment, training opportunities, employee benefits, and access to job advancement. This environment inculcates pessimism and discouragement from applying for jobs. Limited employment options and low-paying or high risk and unstable jobs feed into the cycle of poverty and homelessness and often push them to take up low potential options like prostitution.
Every human is entitled to basic human rights, and nations are obligated to provide for these under International law, including guarantees of non-discrimination and the right to health however, transgender people seldom depend upon such protection.
Instead, trans people often live in criminalized contexts under legislation that punishes so-called unnatural sex, sodomy, buggery, homosexual propaganda making them subject to extortion, abuse, and violence. Being criminalized, they are discouraged from seeking justice when facing violence and abuse, and perpetrators are rarely punished.
The phobia that surrounds trans people's lives incites violence against them. Trans sex workers are vulnerable to brutal police conduct including rape, sometimes being sexually exploited by those who are meant to be protectors of the law. Under such circumstances, options to file complaints are limited and if they are filed, the complainants are often ignored.
Acknowledging that Indian laws are substantially binary in nature, recognizing only male and female genders, A two-judge bench of the Supreme Court of India, after hearing the petition filed by the National Legal Services Authority, passed a historic judgment on Transgender Rights on April 15, and declared transgender individuals distinct from binary genders, as the ‘Third Gender’ under the Indian constitution and for the purposes of laws enacted by the parliament and state legislatures. Self-identification as man or woman, irrespective of sexual reassignment surgery, is now protected by law and is being seen as a major victory for human rights in India.
Non-recognition of the Third Gender in the Indian legal framework has evolved as unsystematic denial of equal protection of law and socio-economic discrimination in society. In the wake of the judgment pronounced in the case of National Legal Services Authority, the Parliament has recently enacted the Transgender Persons (Protection of Rights) Act,2019.
Transgender Persons (Protection of Rights) Act,2019
The Ministry of Social Justice and Empowerment issued a notification publishing the draft Transgender Persons (Protection of Rights) Rules, 2020. The bill passed by the Parliament to protect transgender rights is incompetent on several fronts. Transgender activists and human rights groups have exegete the various trans rights bills but legislature failed to consider the concerns the activists raised. Consequently, India’s new law violates the rights of these people rather than respect and uplifting these communities.
The most striking flaw in the new law is the procedure it sets out for legal gender recognition, which sets an extraordinary amount of power with government offices to arbitrate who would “qualify” to be recognized as who they are. It also coerces people into medical procedures they might not want, which is a blatant violation of the fundamental rights. This has been eventually scrapped by the government after protests. According to the 2019 Act and now the 2020 Rules, a transgender person needs to be certified as such by the District Magistrate which can be rejected. And while there exists process for appeals, it is laborious as well as lengthy.
Before the Act came into place, anyone could simply go and file an affidavit declaring their identity. The Act has made the whole process burdensome and contrary to rights of the transgender people as well as to the Supreme Court ruling of 2014 which actually gave the community the dignity to self-identify. It does not take gender transitioning into consideration. According to this Act, a person is recognized as transgender after the completion of transition. The government has not kept in mind the breadth of the community and simply clubbed everyone together under the same umbrella despite the differing needs.
The transgender certificate seeks to provide access various social security schemes and health benefits from the government, to a member of the community. There exist many transgender who come from economically secure backgrounds and these government benefits are superfluous for them as compared to people in the community who come from economically weaker sections. Suggestions to let the IDs of transgender people be self-identified and only have the certification when a member wants to avail of the government benefits were ignored.
According to the Rules proposed by the government, state governments and UTs are to review all existing educational, social, health, welfare measures and self-employment schemes to include transgender persons and encourage their access to government welfare measures.
Gender is deeply-felt by individuals hence the governments should not be in the business of adjudicating this identity through abusive protocols. It is also essential that the transgender community holds internal debates and addresses issues that cause discrimination within the community. India has a long road ahead to gender justice, and the transgender community wants efforts made to bring about legal reform so that they are as free and empowered in their lives as any other citizen of India. In order to overcome the obstacles confronted by transgender in exercising human rights, certain measures are imperative and paying attention to these is vital to effectively address the systemic marginalization endured by them.
1. file:///C:/Users/pgane/Desktop/3_TRANSIT_Chapter%202.pdf 2. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4949312/#CIT0002 3. https://www.youthkiawaaz.com/2016/06/interview-transgender-woman-delhi/ 4. https://transequality.org/issues/non-discrimination-laws 5. https://thediplomat.com/2020/01/what-does-indias-transgender-community-want/