Updated: Jul 31, 2020
Who is a transgender?
Transgender people are people who have a gender identity that is different from the one which is assigned to them by birth or who may act, feel, think or look different from the sex they were as determined at birth. In India transgender as a third gender are referred to as Hijra in Hindi.
According to 2011 census, in which third gender was recognized for the first time, the total population of the third gender was recognized for the first time.
Treatment in Indian society
They are treated as social outcast in India, and hence the most common livelihoods for a modern day Hijra mainly includes begging and prostitution besides their ceremonial task of blessing auspicious events.
Despite Indian society’s general climate of affirmation, cooperation and tolerance, there appears to be lack of public knowledge and understanding of same sex sexual inclination and people whose gender identity and expression are incongruent with their biological sex. Human rights violation against sexual minorities including the transgender communities in India have been widely documented. Most families do not accept if their male child starts behaving in the ways that are considered feminine or inappropriate to the expected gender role. Consequently, family members may threaten, scold or even assault their son/sibling while some outright disown and evict their own child for crossing the prescribed gender norms of the society and for not satisfying the roles expected from a male child. Thus, later transgender women may find it hard even to claim their share or portion of the property or inherit what would be legally theirs. This also means many Hijras are under educated and consequently find it difficult to get jobs.
Even from police, they face physical and verbal abuse, forced sex, extortion of money and materials; and arrests or false allegations. Especially, getting legal recognition has important consequences in getting government ration (food-price subsidy) shop card, passport, and bank account.
In the case of National Legal Services Authority v.Union of India which was a supreme court
landmark judgement which comprised a bench of Justice K.S Radhakrishnan and Justice A.K Sikri
which passed the judgement that Hijras must be treated as the third gender and transgenders’s right to self identify their gender was also upheld.
The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha last year on July 19, 2019 by the Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot.
The Bill prohibits the discrimination against a transgender person including unfair treatment in relation to various aspects like, every transgender person shall have the right to reside and be included in his household. No government or private organization can differentiate against a transgender person in employment matters. Educational institutions which are funded or are recognized by the certain government shall provide inclusive education. The government must take determined steps to provide health facilities to transgender persons. The transgender person may make an application to the district magistrate for a certificate of identity, indicating the gender as ‘transgender’. A revised certificate may be granted only if the person undergoes surgery to change their gender.
The bill also recognizes various offences against transgender persons. Penalties for these offences between six months and two years and a fine.
National Council for Transgender persons (NCT) has been established to advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons.
The new law is inadequate on several fronts. In the end, the lawmakers failed to consider the concerns the activists raised. As a result, India’s new law will violate the rights of trans people rather than respect and uplift long prosecuted communities. Perhaps the most serious flaw in the new law is the procedure by which trans people can change their identity. Moreover, it sets an extraordinary amount of power with one government office to arbitrate which trans people ‘qualify’ to be recognized as who they are.
In simple words, if an individual’s personal identity or transition requires medical support, those services should be available and accessible.
India can – and should – do better.