THIRD GENDER LEGISLATION

“I am what I am, so take me as I am.”

BC0150001

ABSTRACT

The Indian Constitution promotes Justice, equality and unity to its citizen. However the
Transgender community in India have been wronged for several years. They have been
oppressed by the conservative majority and have been denied their fundamental rights under
the constitution. This Article focuses on the plight of the transgender community and the
recent legal development in the judiciary. The article focuses on the recent judgments and the
pending Bill which are beneficial to the community. The key emphasis is placed on “The
Transgender Persons (Protection of Rights) Bill, 2016”. The researcher will also focus on the
recent trends after the Nalsa judgement and after decriminalisation of Section 377 IPC.

HYPOTHESIS

“The Transgender Persons (Protection of Rights) Bill, 2016” is not sufficient for the
transgender community.

KEYWORDS: Transgender person, Discrimination, Third gender, Sexual autonomy

1.1) INTRODUCTION

Sex and gender are two different terms with significant meaning. “Sex is what you are born
with, gender is what you recognize and sexuality is what you discover.” Transgenders are
persons who identify themselves as opposite to their sex i.e. their gender is different from the
one which they were born. India is a country which believes in binary gender classification
therefore the transgender community in India faces a variety of issues. They have been
excluded socially, economically and politically. This exclusion is because of the lack of
legislation to protect the rights of these persons. These people face discrimination because of
their weak financial status which forces them into prostitution and begging1.

The Indian constitution emphasises on equal status for every person before the law. The word
person should be given a wide interpretation to include transgender also2. Therefore the
transgender community can’t be excluded from any of the legislation; this principle was also
reiterated in the Nalsa judgment. However recognition of the transgender community is only
a smaller step justice to the community will be achieved only if there is a separate legislation.

CHAPTER II

2.1) HISTORICAL IDENTIFICATION

The concept of transgender is not a new concept in India. They were recognised in ancient
India also. Stories about transgender can be found in Mahabharata and Ramayana. Kama
sutra mentions about the Hijra community, they have been called as “tritiyapakriti3. The main
Hindu god Lord Shiva is said to be in Ardanari form (half male and half female). Also the
Hijra community were given important position in courts during the Mughal period in India.
However after the colonial rule everything started changing, the Europeans showed disgust

1
Sourav Agarwal, Civil And Political Rights Of Transgenders In Indian Constitutional Prespective , International
Journal of law and legal jurisprudence studies, accesed at http://ijlljs.in/wp-
content/uploads/2017/12/ARTICLE_ON_TG_1-1.pdf last accessed on 28.10.18
2
The constitution of India, Article 14
3
A Brief History Of Hijra, India’s Third Gender by Sridevi Nambiar, Culture Trip, January 1,2017.
by the sight of Hijras. In the 19th century the British administration tried to criminalise the
Hijra community 4 and section 377 of the Ipc is based on the colonial beliefs.

2.2) NEED FOR THE RECOGNITION OF THIRD GENDER

Non-recognition of the third gender denies them their constitutional right of equality under
Article 14 and the rights guaranteed under Article 21 of the Indian constitution. Society
forces them to identify themselves as either male or female thereby stigmatising their choice
of life and depriving these persons from exercising their fundamental right and their right to
live in a dignified manner. The transgender community is exploited and harassed because of
their queer nature. Because of their orientation they have been excluded from the society and
from their family. The community faces problems like health care, education, employment
and social exclusions5.

CHAPTER-III

JUDICIAL ROLE IN PROTECTION OF THE RIGHTS OF THIRD GENDER IN

3.1 NALSA JUDGMENT

In the case of NALSA vs. Union of India the transgender community was given legal
recognition by the Apex court , they were declared as the “ third gender” . Justice KS
Radhakrishnan explained in his decision that, "Seldom, our society realizes or cares to
realize the trauma, agony and pain which the members of Transgender community undergo,
nor appreciates the innate feelings of the members of the Transgender community, especially
of those whose mind and body disown their biological sex"6. The judgment concentrates on
the importance of human right to various genders. The report of Ministry of Social Justice
and Empowerment was considered and court issued order to examine it further and to make a
legal declaration based on the judgment and directed to issue it within six months. Therefore
this broadened the rights of the transgender community. Briefly the judgment said that

4
M.Michelraj., Historical Evolution of Transgender Community in India, ARSS Vol. 4 No 1 Jan- June 2015,
M.Michelraj.
5
Anitha Chettiar, “Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with Reference to Their
Health and Harassment by the Police” 5 IJSSH 752 (Sept. 2015), available at: http://www.ijssh.org/papers/551-
W10007.pdf (last visited on oct. 28, 2018).
6
NALSA vs. Union of India.[(2014) 5 SCC 438]
1. Apart from the male and female gender , Hijras, eunuchs be treated as third gender. This is
to ensure that their right under the constitution is safeguarded7

2. Every transgendered person has a right to decide their identity and the state and central
government are directed to grant legal recognition as per the persons wish.

3. The court directed the government to make them as educationally backward class and to
extend reservations for them in educational institutions and in government jobs.

4. Separate HIV zero-surveillance centre should be opened by central and state Governments.

5. Steps should be taken regarding proper medical care for the transgenders also separate
public toilets and other facilities should be created.

6. The government should take steps for welfare schemes for the community. Public
awareness should be created in the society to accept the transgender community

By giving legal recognition to the transgender community the court provided justice and
equality to them. Before the legal recognition the transgender person was not given any
protection by the Indian legislations, they were left vulnerable to discrimination violence and
assaults by various sections of the society8. This judgment serves as a major turning point in
the history of transgender rights, however the judgment was only restricted to transgender
and excluded the lesbian and bisexual relation. Also the court blatantly refused to discuss
about the controversial question of Section 377 IPC.

3.2 DECRIMINALISATION OF SECTION 377 IPC

Section 377 IPC was criticised for a very long period, it was considered to be a
discrimination against the LGBT community, on July 2 2009 the Delhi High court passed a
judgment in support of LGBT community 9 the judgment declared section 377 of the Indian
penal code to be unconstitutional and violative of the fundamental rights guaranteed under
the Indian constitution, the judgment allowed consensual sexual activities between any
genders above 18 years of age. However it was appealed in the Supreme court of India ,

7
The constitution of India, Part III
8
Krishnadas Rajagopal, “Centre wants SC to clarify order on transgender” The Hindu, Sept. 11, 2014, available
at: http://www.thehindu.com/news/national/centre-wants-supreme-court-to-clarify-orders-
ontransgenders/article6401930.ece (last visited on Mar. 20, 2017)
9
NAZ Foundation v. Government of N.C.T Delhi (2009) 111 DRJ 1
where the court reversed the judgment of the Naz foundation case and held that section 377
of the Indian penal code does not suffer from any constitutional infirmity.10

In the Naz foundation case the court referred to various foreign judgments and identified the
right to privacy. Privacy is a sphere which allows every person to develop his choice without
social interference. Identifying themselves as transgender and living with the person they like
is sexual autonomy. Freedom and sexual autonomy are important components which are
necessary to make an individual person to develop self-esteem and creating relationship of
their choice. This is same as the right to life, dignity and right to privacy enshrined in the
constitution 11
. The judgment is a clear reflection of the High court’s recognition and
conscience towards the sexual minority. However it was overturned by the Apex court. The
decision was later reviewed by a higher bench and this time the Court decriminalised section
377. This was done in the case of Navtej Singh Johar vs Union Of India12 wherein a bench
of five judges partially struck down the section. The judgment discussed about the term
unnatural offences the court was of the view that transgender and LGBT community were
prevalent from ancient time. “Justice Chandrachud wrote that there are shortcomings in the
conceptual categories of “natural” and “unnatural”, that the idea of the “natural” was
manufactured by a majoritarian suppression of the history of the prevalence of sexual
minorities, that merely because something is natural does not mean that it is desirable (e.g.,
death), and just because something is unnatural (e.g., a heart transplant) doesn’t mean that it
ought to be criminal”.13 All the judges in the bench found that the section was arbitrary.14

All the judges found that Section 377 was manifestly arbitrary. The court held that it is
unreasonable because there is no distinction between consensual and non-consensual
intercourse, and it is discrimination on the basis of sexual orientation. Also the court was of
the opinion that it violated right to freedom of expression15, privacy.16 However the
judgment is silent on the validation of gay marriages, inheritance and adoption because it

10
Suresh Kumar Koushal and another v. NAZ Foundation and Others (2014) 1 SCC 1
11
The constitution of India,Article 21.&28
12
Navtej Singh Johar vs Union Of India January, 2018WP(Crl.)No.76/2016
13
Ibid [paragraphs 28-29].
14
Dr. Abhinav Chandrachud, Navtej Johar v Union of India – Key Highlights,
https://indconlawphil.wordpress.com/2018/09/09/guest-post-navtej-johar-v-union-of-india-key-highlights/
(last accessed on 28.10.18)

15
The constitution of India, Article 19(1) a
16
The constitution of India, Article 21
cannot be done by the Supreme Court by striking down any provision. It will require
legislation.

CHAPTER IV

TRANSGENDER PERSONS BILL, 2016

The Transgender Persons (Protection of Rights) Bill, 2016, was tabled in the Lok Sabha by
Thaawarchand Gehlot, the Minister for Social Justice and Empowerment in August 2016.
After the Nalsa judgment, various measures was taken to uplift the transgender community.
The courts directions form a major part in the Transgender rights legislation. Before the 2016
bill ,The Rights of Transgender Persons Bill, 2014 was introduced as a private member bill
by Mr.Siva. But it was never debated in the Lok Sabha. In 2015 a draft bill was sent to the the
law ministry and it was introduced in august 2016.

4.1 KEY FEATURES

The preamble clearly states- “A bill to provide for protection of transgender persons and their
welfare and for matters concerned therewith and incidental thereto”. The recognition of the
person is stated in Section 4 of the bill. According to the bill the transgender person must
obtain a certificate from the screening committee. On the event of obtaining the certificate the
person have right to be recognised under the Act. It prohibits discrimination in education,
employment, and healthcare. The bill emphasis on welfare schemes. Compelling a
transgender to beg and denying them in public space and sexual abuse is considered as
offence and it can attract up to two years of imprisonment and fine17.

4.2 CRITICISM

 The bill identifies transgender as “partly female or male; or a combination of female

17
http://www.prsindia.org/uploads/media/Transgender/Transgender%20Persons%20Bill,%202016.pdf last
accesed on (01.01.18)
  Recognition can be only done after the medical examination by a medical officer,
pshychiatrist and a social worker. This screening process will deny the transgender
community the right to self- identity.
 The bill establishes anti-discrimination in the fields of education, health care and
social security. However the 2016 bill is silent about the reservation schemes as
established in the Nalsa judgment.
 There is no proper definition clause in the Bill , terms like ‘trans-men’, ‘trans-
women’, persons with ‘intersex variations’ and ‘gender-queers’ are used in the Bill .
However they are not defined anywhere
 Current Indian Legislation follows binary classification , therefore there is uncertainty
about the applicability of the Indian legislation to the Third gender. The bill doesn’t
have any provision relating to it18.

4.3 MODIFIED BILL

The Bill is modified in 2018 and it is ready to be re-introduced with 27 amendments and 11
major suggestions from the parliament standing committee. The definition has been changed
to “whose gender does not match with the gender assigned at birth and includes trans-men,
trans-women, gender-queers, and other sociocultural identities.” The modified bill gives
rights to the person to choose their identity irrespective of the sex reassignment surgery.
Earlier bill made it necessary for an organisation which employs 100 or more persons to
have an officer to examine complaints regarding discrimination and other grievances. This
maximum limit of 100 has been removed in the new Bill19. The definition of the word
discrimination has also been modified in the Bill

After the Nalsa judgment and The Transgender Rights Bill a small bit of change in the
attitude of the society can be seen. The transgender persons are now considered as a legal
entity and they can avail all the fundamental rights guaranteed under the constitution. Every

18
Rohan Abraham, The Hindu, All you need to know about the Transgender Persons Bill, 2016,
https://www.thehindu.com/news/national/all-you-need-to-know-about-the-transgender-persons-bill-
2016/article21226710.ece (last accessed on 28.10.18)
19
Where the Transgender Bill Fails, Economic and political weekly
Vol. 53, Issue No. 35, 01 Sep,
2018//economictimes.indiatimes.com/articleshow/65247339.cms?utm_source=contentofinterest&utm_medi
um=text&utm_campaign=cppst
institution is directed to have a gender neutral policy. Various welfare policies has been
formulated by State Governments.

CHAPTER V

5.CONCLUSION

The Nalsa judgment , The Transgender person Bill and the decriminalisation of section 377 is
a bigger step for the Transgender community. However this is not the end point, various
changes should be made for the transgender community. The present position in India is that
the transgender community can identify themselves according to their choice. They have
been granted all fundamental rights like equality, privacy, right to live with human dignity
and right against discrimination and exploitation. The private member bill passed in the
parliament is a welcome move but it lacks important provisions like reservation, marriage,
divorce and adoption etc., which are important for a decent life in the society. The Indian
legislation is gender binary in nature and it does not have any provision for third gender.
Marriage, divorce and property laws are governed according to the religion ,but the
transgender people will not fall into that scope. There are only two possible solutions to this
problem. Firstly making amendments in every legislation to include the transgender
community, second by having a separate legislation for the Transgender community. The
separate legislation is the apt method as amendment in each of the legislation will be a huge
process. The Transgender person Bill is still not passed. Though it has some minor drawbacks
it can be rectified gradually. What the nation needs is a legislation that would protect the
minority from the majoritarian oppression. Therefore the proposed legislation in spite of
being insufficient is the need of the hour to make a change in the lives of the transgender
community.