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Transgender & Indian Laws: Acceptance of the Gender Identity Debate

Akanksha Malviya

Human Rights Lawyer

When Lord Rama was leaving for the forest and his entire kingdom began to follow him into the forest, he told his disciples and followers that all men and women should return to their homes, so they left. Still, a group of people stayed behind, at the edge of the forest, because they were neither men nor women. Those people waited in the woods for 14 years until Lord Rama returned. Getting impressed by their gesture of Loyalty Lord blessed them with the power to give blessings. And that is why transgenders are referred as lord’s child as it is a belief that they have the power to take away everyone’s pain.

Gender diversity is a topic making headlines as more Indians feel emboldened in affirming their unique gender identity, but many more may be wondering how someone identifies as transgender and what they need to know to better understand the transgender experience. “Transgender is an umbrella term that describes people whose gender identity or expression does not match the sex they were assigned at birth.”

When a child is born, a doctor says, "It's a boy" or "It's a girl.”

Assigning someone's sex is based on biology -- chromosomes, anatomy, and hormones. But a person's gender identity -- the inner sense of being male, female, or both -- doesn't always match their biology. Transgender people say they were assigned a sex that isn't true to who they are. Many people have assumptions about what it means to be transgender, but it isn't about surgery, or sexual Orientation, or even how someone dresses. It's how they feel inside. A simple way to think about it is: Sexual orientation is about who you want to be with. Gender identity is about who you are. In India there are more then 4,90,000 transgenders divided into many subgroups. In the Indian Subcontinent, Hijra are eunuchs,intersex people are transgender people. Also known as Aravani, Aruvani, Jogappa,or (derogatorily) Chhakka, the hijra community in India prefer to call themselves Kinnar or Kinner, referring to the mythological beings that excel at song and dance. but if we focus on their position and power in the society it is dismal. Since the very beginning the transgender persons have faced serious discrimination and violation of most of their fundamental rights guaranteed to them under the constitution of India. They have always faced and are still facing serious discrimination and gender inequality. Gender inequality is a hindrance in the path of growth and development of a nation. The ideas and concept of development do not only stand upon the quantitative measures which is basically growth, but it also depends upon the qualitative factors like fulfilment of some of the basic human necessities to lead the livelihood and to give each and every citizen the support of basic infrastructure, Health, Education, Social and Economic opportunities. but, when we will see the figures, it is very clear that participation of transgenders are very low in any workforce. They are not even able to experience and utilise their basic rights because of such discrimination and inequality. India has always been grappled with the question of attribution of gender to persons who believed that they belong to the opposite sex. Finally in 2014 a writ petition was filed before the Supreme Court of India praying for the legal recognition of transgender persons as the third gender.

And with NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA (2014), a landmark judgement the supreme court identified Transgenders as a third gender. It was a fight worth watching as it was important and need of the hour to cherish and protect human dignity. The case pertained to addressing the grievances faced by the transgender community and whether they should be recognised as a third sex and if yes, whether such recognition would be ultra vires the Indian Constitution. Existing laws only safeguarded rights of a male and a female and hence, such discrimination by the state laws required a speedy redressal. It was argued in the case that Transgender as a whole, faces multiple forms of Oppression in the Country. Transgender Community faces serious discrimination throughout their life.And the present status of the community is in violation of most of the fundamental rights guaranteed to them under the Constitution of India. There are multiple problems that are faced by Transgender Community, which necessitate a variety of solutions and actions. It is the obligation of the state to respect, protect and fulfil the human rights of all persons, regardless of their gender identity. It was also argued that it is very important to change the negative attitude of the general public and increasing accurate knowledge about the community. Article 21has been incorporated to safeguard the rights of its citizens and a constitutional court cannot be mute spectator when these rights are violated. Article 14 ensures equal protection and hence a positive obligation on the state to ensure equal protection of laws by bringing in necessary social and economic changes so that everyone may enjoy equal protection of laws and nobody is denied such protection. The required changes need to be reflected in policies and laws. It was also stated that it is very important to change the attitude of government, general public, and healthcare providers and healthcare systems and practice. State must ensure that there are trained healthcare providers to be competent and sensitive in providing healthcare services to Transgenders. It is of absolute importance to always remember that the basic spirit of our constitution is to provide each and every person of the nation equal opportunity to grow as a human being irrespective of their caste, race, religion and social structure.

Yet even after such elaborated judgement the participation of transgenders remain dismal in the society. There still exists a social stigma around the third gender and there still exists a negative attitude of general public and unawareness in the society which is hampering the inclusion of third gender in the society. Undoubtedly, the progress has come, but there are many paths and possibilities that are yet to be concurred. It is important to understand the various dynamics of Transgender’s life to accelerate the process of Transgender empowerment. If we as a nation will join our hands and work for the empowerment of transgenders individually, we will reach there as it is a matter of human rights, a matter of Dignity to All.

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