ABSTRACT
The third gender or transgender people has been around in India for a long time. They have identified as a different gender than men and women, which is known as transgender. Some people may express their sexuality in many different ways, including through the way they dress, the way they act, or through surgeries. Some people who identify as transgender feel that their identity is more than just their physical appearance, and they refuse to believe in the traditional understanding of gender as male and female. This community is growing more diverse and inclusive every day, and they are working to change the way society views gender. This article mainly focused on the constitutional rights of the transgender who are living in our society but no proper recognition is provided to them yet but Supreme Court through judgment and acts trying to give them a proper space in the existing Indian society.
KEYWORDS
Transgender, Constitutional rights, Third gender, Discrimination Sexuality, Indian Society
INTRODUCTION
Transgender people are people who identify with a different gender than the one they were assigned at birth. This means that they may not match the gender that is typically associated with their sex. Every Indian citizen is entitled to equality of justice and the right to equality under Article 14 of the Constitution. A person’s right to personal liberty and dignity is guaranteed by Article 21 of the Constitution, which prohibits discrimination based on religion, race, caste, sex, or gender.
Absolutely, the question of how to put such Articles into practice has emerged as the most pressing issue. In addition, identifying one’s sex as male or female is an essential part of one’s identity in India. As a result, people who identify as a third gender or represent a different sexuality have been left behind and treated as aliens in their own country, deprived of the basic rights that the majority of Indian citizens take for granted.
In addition to discrimination, transgender in India have long faced a variety of social issues, including homelessness, depression, alcohol abuse, sexual abuse, and issues with marriage and adoption, among other issues. Although transgender people were granted the right to vote in 1994, this did not alleviate the social and economic inequality they face. Due to their unclear sexual orientation, they are regarded as social outcasts and denied basic rights. They end up begging, dancing, or even participating in the sex market because their families push them to the margins and force them out of their homes.
When a boy in their family does not behave “normally,” but rather displays feminine traits or is not accepted in accordance with their gender role, many families are offended. As a result, families reprimand or even assault them for not acting in a manner that is consistent with what is expected of a male child in society. Most of the time, their parents divorce them and leave them to fend for themselves in the world. Transgender become victims of denial and mental and physical trauma as a result of these incidents, with no one to support them but other trans people. Because of their lack of education and civilized upbringing, they are regarded as social outcasts and are denied access to essential amenities.
Thus, the government has enacted a law called the Transgender Person (Protection of Right) Act, 2019 to help protect transgender people from discrimination in areas like work, education, and health care. Additionally, government programs are in place to help protect the rights of transgender people.
RESEARCH METHODOLOGY
The research methodology of this study is doctrinal. A comprehensive literature, journal, book, article, and Indian statutory law review will be carried out on the subject at hand. In light of a number of significant Indian legal decisions and laws, the topic will be discussed. A significant portion of this study will also be devoted to Indian court decisions and pending cases on the same or related topics.
REVIEW OF LITERATURE
Transgender: Constitutional and International Perspectives highlights the suffering that transgender people experience in our culture is rarely acknowledged. Those in this community who do not identify with their biological sex are the most severely affected. When it comes to these people, our culture exhibits an unwelcoming attitude. They are ridiculed in public places. They receive alien treatment. Such people cannot be accepted by society. The failure of society to welcome the transgender population is due to their unwillingness to change their mindset. Our generation needs to change this way of thinking. The complaints of the transgender community are highlighted in this article. A legal declaration of their identity other than the one given to them at birth is sought after by this community. In doing so, the community looks to articles 14 and 21 for aid. Their main defence is that by not being acknowledged, their “right to equality under article 14 of the Constitution of India” and their “right to liberty under article 21 of the Constitution of India” were violated.
Inheritance Rights of Transgender Person in India
The Indian Constitution prohibits discrimination on the basis of gender and sex. The only basis for legal discrimination against transgender people should not be their identities. Even while courts make an effort to address these issues, they leave it up to their individual judgment as to when to protect transgender people’s rights. Changes in legislation are necessary to address these pressing problems.
CONSTITUTIONAL RIGHTS OF TRANSGENDER
Article 14 (Right to Equality): Each person has an equal standing under the law, according to the Constitution, and is guaranteed an equal degree of legal protection in India. In this context, “any individual” refers to every person, without distinction based on any class, including status, culture, religion, sex, and so on. In the famous case Indira Nehru Gandhi vs. Raj Narain , court said that Right to Equality is one of the basic feature of the constitution and inequality is the violation of this right.
State of West Bengal v. Anwar Ali Sarkar it was said that “the principle of equal protection under the law is one that should be upheld by the state in order to bring about social and economic transformation. Everyone, including the transgender population, should have access to equal legal protection. The term “person” used below refers to both males and females. The transgender population is included under the definition of “person” for all purposes under the law, including employment, healthcare, education, and civil and citizenship rights enjoyed by other “persons” of the nation”.
Article 15 and 16 (Prohibition of discrimination)
It underlines the necessity to address this issue and seeks to outlaw discrimination on the basis of sex. The framers of the Constitution believed that this fundamental right should be able to stop any direct or indirect attitudes that treat people unfairly because they are different from the people who are a part of society. Here, “gender” refers to a certain sexual identity, character, or feeling of inner psychological or emotional self. The term “sex” as used in Articles 15 and 16 refers to both those who identify as males and females as well as those who do not. It is not just the biological sex of men and women. The economic, social, cultural, and political rights of transgender people are also unrestricted. However, the truth is different that still the third gender is facing problems of employment, healthcare and better lifestyle.
Article 19(1)(a) (Right to free speech and expression)
The right to free speech and expression is guaranteed under Article 19(1)(a) of the Indian Constitution, subject to some limitations imposed by the state under Article 19(2). The rights granted by Article 19 are not extended to anyone who are not Indian citizens. A person’s right to express their self-identified gender is included in Article 19(1)(a). A person can represent their self-identified gender in a variety of ways, including via clothing, words, actions, and behaviour. These rights cannot be restricted by the government. The basis of each person’s unique identity is their self-identified gender identity.
The government and its officials frequently overlook such identities. This occurs either because the state is ignorant of such an identity or because it does not recognize it. As a result, their Article 19 rights are violated. According to this Article, this must be preserved. The behavior and appearance of a transgender person reveal their personality. Protecting and recognizing these rights is the responsibility of the state and its authorities.
Article 21 (Protection of life and personal liberty)
According to the court, the basis of a person’s basic right to dignity is their gender identification. It further influences people’s concepts of dignity as they develop a feeling of individuality and identity.
Judges also said that, “The foundation of one’s sense of self and a key component of their identity, as already said, is their gender. Since our Constitution guarantees the right to dignity and freedom, it follows that legal recognition of gender identification is a component of that right.”
● National Legal Services Authority vs. Union of India
According to Articles 14, 15, 16, and 21, the court offers transgender people equal rights and protection. The court emphasised the significance of the right to dignity and accorded adequate respect to the individual’s gender identity, which was based on reassigned sex following Sex Reassignment Surgery since the person has a fundamental right to be recognised as a man or female. In light of this, transgender people have a right to legal protection under the law in all areas of governmental activity, including work and education.
In the 2014, Justice K.S. Radhakrishnan said that the problem of recognizing the transgender population is one of the human rights issue, not only a social or medical one. Along with Article 21, which provides the right to choose one’s gender identity, the Indian Constitution also guarantees Articles 14 and 21, which are essential for living a life of dignity and freedom. These articles guarantee equality before the law and equal protection under the law. As a result, the court decided that the right to gender identification belongs to every Indian citizen, bearing in mind their acceptance of the idea that the choice of one’s own sexual identity is personal to the individual.
● S.K Kaushal vs Naz Foundation
It was determined that the HC made a serious mistake by ruling Section 377 unlawful since no evidence was presented to the HC to support the claim that Sec. 377 had been utilised to prosecute homosexuals as a class. The SC ruled that the clause is not unconstitutionally flawed and that the High Court division bench’s ruling is not supported by the law.
● Navtej Singh Johar v. Union of India
The court ruled that it is crucial to protect minorities’ rights from outside intervention since the LGBTQ community was classified as a minority in India and has a right to all of their fundamental freedoms. The Indian Constitution’s article 14 provides everyone equal protection under the law, including members of the LGBTQ community, the court further said. In addition, the court cited article 19 (1) (a), which states that morality and public decency cannot supersede the rights to freedom of speech and to pursue one’s own expression, or have any bearing on decisions made by the LGBTQ community. As a result, the Supreme Court invalidated section 377 while taking into account the LGBTQ community’s basic rights.
The Transgender Person (Protection of Rights) Act, 2019
Transgender persons frequently avoid going to school because of the shame, prejudice, and ignorance they experience, which leads them to believe that only men and women should attend school. Additionally, because transgender people’s gender identities are not accepted, educational institutions often forbid them from enrolling transgender children in their classes. The Transgender Person Act steps in to help, stating that educational institutions recognised by the government must provide education, leisure activities, and sports facilities to transgender students without prejudice.
The same is true with transgender job seekers. Transgender frequently experience workplace discrimination in the form of invasions of privacy, harassment, and refusals to hire, which results in unemployment and, eventually, poverty. According to the Act, neither a public nor a private organisation may discriminate against transgender people when it comes to hiring, promotion, or other employment-related decisions. Additionally, a complaint officer should be designated to handle any concerns that may arise about the Act.
SUGGESTIONS AND CONCLUSION
Firstly the transgender included in a separate column in all government and non-government records to make it easier to identify transgender people. Secondly, make communities more aware of the difficulties and requirements faced by transgender people. Thirdly, to make a discussion for the dynamic interest of transgender people at all degrees of administration. In order to empower transgender people, it is crucial to grant them preference in employment and education. People who identify as transgender are a minority in society. Reservations can contribute to the community’s upliftment and intellectual development. Fourthly, punishments for violations against transgender ought to be more severe. For a heinous crime committed against the community or the people, the penalty that is in place now is far too light. The penalty ought to be the same as that for a crime against a cisgender woman. Transgender should not be treated as lesser beings; rather, equality will be promoted. Fifthly, families and peers who discriminate against transgender people or are violent toward them should be punished severely. Lastly, there has been no preparation or refinement made accessible to lower judicial authorities, who are the point of convergence in every one of the applications. They are often unaware of the responsibilities set forth in the rules.
Rashi Gupta
2nd year
Jamia Millia Islamia