A Legal glimpse of Transgender People in India by Krishna Sreeja @LEXCLIQ

Transgender Persons:

Transgender people are the people whose gender identity or gender expression is different from the sex that assigned to them during the time if their birth. These people are considered under a community called LGBTQ+ (Lesbian, Gay, Bisexual, Transgender and Queer) community. These people’s gender expression or identity is just different from the nature but not opposite to nature.

Earlier, these people were treated with great respect in India because of a concept of worship in Hinduism called Arthnariswar (a form of lord Shiva and Godess Parvathi). Gradually, our society started discriminating them and assigned different names like Hijras, Aravanis, Jogappas, etc.. They have different appearance. Before they were not provided with any basic amenities or protection.  They lead a very miserable life in the past and also excluded from the dignified living and most of them lead their lives with begging which is prevalent even now.

NALSA vs Union of India :

They won their first battle when they were recognized as the third gender with the verdict in NALSA vs Union of India in 2012. National Legal Services Authority (NALSA) filed a petition in Supreme Court on behalf of the Transgender Community.

This was a landmark decision where the apex court legally recognized “third gender”/transgender persons for the first time and discussed “gender identity” at length. The Court recognized that third gender persons were entitled to fundamental rights under the Constitution and under International law. Further, it directed state governments to develop mechanisms to realize the rights of “third gender”/transgender persons.

The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.

Navtej Singh Johar vs Union of India

The petitioner in the present case filed the writ petition to seek the recognition of right to sexuality, right to sexual autonomy and right to choose a sexual partner to be a part of right which is guaranteed under Article 21 of the Constitution of India.

In this case, Supreme Court struck down the Section 377 of IPC to decriminalize the consensual sexual intercourse between the same gender or transgenders. Earlier, these actions are considered to be unnatural offence and it included carnal intercourse too.

Transgender Persons (Protection of Rights) Bill, 2019:

The Transgender Persons (Protection of Rights) Bill, 2019 was introduced in Lok Sabha on July 19, 2019 by the then Minister for Social Justice and Empowerment, Mr. Thaawarchand Gehlot. This bill was passed by the Parliament on 26th November 2019.

THE KEY FEATURES OF THE BILL:

  • The Bill  States that transgender persons will have the right to “self-perceived” gender identity
  • The bill seeks to establish a District entraining committee which would be responsible to provide certificates of identity to transgenders on medical/ biological grounds.
  • The bill seeks to establish a state welfare board for transgenders in every state of the country.
  • The bill is silent on reservation for transgenders.
  • The bill is not in sink with sec. 377 of IPC
  • But, it seeks to establish National Council for Transgender persons.
  • The Council will advise the central government as well as monitor the impact of policies, legislation and projects with respect to transgender persons. It will also redress the grievances of transgender persons.

Earlier, a Private Member Bill was passes by an MP from Tamil Nadu named Thiruchi Siva in 2014 to provide them the fundamental rights and to have dignified living.

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