ANALYSING THE HEALTHCARE RIGHTS OF TRANSGENDER INDIVIDUALS UNDER THE CURRENT INDIAN HEALTHCARE SYSTEM

ABSTRACT

India’s population of 1.3 billion is characterised by its commitment to ‘unity in diversity’. Within this socio-cultural tapestry exists the transgender community, which first gained legal recognition as ‘the third gender’ in 2014. Despite this, sexual minorities have long faced oppression and societal stigmatisation, being labeled as ‘deviant’ and ‘unnatural’[1]. Consequently, issues concerning gender rights and health problems have often been marginalised by the government and human rights movements alike.

Transgender individuals encounter significant disparities in healthcare and face barriers to accessing appropriate services, resulting in compromised health outcomes. They are more likely to experience harassment, HIV contraction, and mental health challenges such as depression and suicide, compared to the general population[2]. Obstacles to healthcare for transgender communities include discriminatory treatment from healthcare providers, a scarcity of trained professionals equipped to deal with transgender-specific needs, and the systemic exclusion of services for transgender individuals by national health systems and insurance programs.

KEYWORDS: transgender, healthcare, discrimination, right to health, human rights.

INTRODUCTION

In April 2014, a watershed judgment was delivered in the case of National Legal Services Authority v. Union of India[3] (NALSA) by the Supreme Court. This acknowledged the inherent right of individuals to express their gender identity freely. Subsequently, this ruling has played a crucial role in safeguarding the constitutional rights of transgender individuals, serving as a significant legal precedent in their favor.

Following NALSA, the Ministry of Social Justice and Empowerment initiated the Transgender Persons (Protection of Rights) Bill, which was eventually passed as the Transgender Persons (Protection of Rights) Act in January 2020. This Act prohibits discrimination in healthcare services and demands that medical facilities meet transgender needs, including gender-affirming procedures.

Despite these advancements, transgender individuals in India continue to face significant barriers to accessing essential healthcare. These arise from systemically ingrained issues such as gender identity-based discrimination, inadequate infrastructure, lack of transparency and accountability in service delivery, and high costs of treatment. The government’s indifference and lax policy implementation worsen these issues. The increasing privatisation of the healthcare system further reduces the accessibility to individuals who cannot afford private care. This diminishes the voice of those who already face acute marginalisation. 

The primary focus of this research paper is to delve into the intricate relationship between the healthcare system and transgender rights. The paper aims to provide a comprehensive exploration of the legal, ethical, and social dimensions of this ongoing struggle and propose effective strategies for achieving a balanced and equitable approach.

RESEARCH METHOD AND METHODOLOGY

To accomplish the aforementioned objective, the paper will mainly rely on secondary literature. The research will employ a qualitative methodology, conducting an extensive analysis of case law, statutes, authoritative reports, and research studies. It will critically assess and synthesise the key arguments, debates, and policy concerns surrounding transgender rights to healthcare in India.

By scrutinising the current legal framework in the context of the current healthcare system, this research aims to develop a multifaceted understanding of how transgender rights operate in the current medical landscape through the lens of human rights and the law. Ultimately, the paper discusses actionable suggestions that may be fruitful in future policymaking, legal reform, and decision-making, thereby nurturing a more inclusive healthcare system.

LITERATURE REVIEW

Defining Health

According to the World Health Organisation, health involves not just being free from sickness, but also having complete physical, mental, and social well-being. To address the health needs of transgender individuals, a comprehensive approach is needed that considers essential services, protections, and resources for them to live healthy lives in inclusive communities. This includes offering various healthcare services and addressing factors like document policies, poverty, employment, housing, and public acceptance. Nevertheless, transgender individuals worldwide face considerable health disparities and barriers to proper healthcare, limiting their chances of achieving optimal health. These disparities involve increased risks of violence, harassment, HIV, and mental health issues like depression and suicide attempts, which are higher than rates seen in the general population.

Key health problems which disproportionately affect the transgender population

• HIV: Globally, HIV rates are 49 times higher in transgender people compared to the general adult population[4]. In India, the HIV prevalence among the transgender community is 8.2%, which is around 20 times higher than the national average (0.31%)[5] and remains the highest among key groups.

• Mental health: In a cross-sectional study carried out in Mumbai[6], concerning mental health, it was observed that 48% of the hijra participants experienced psychiatric conditions encompassing alcohol abuse, dependence, and depressive spectrum disorders. Additionally, a striking 84% met the DSM-IV-TR diagnostic criteria for gender identity disorder. Tragically 31% of transgender individuals committed suicide, with half of them attempting suicide before reaching the age of 20. The distressing psychological challenges contributing to these alarming rates can be attributed to a variety of factors. These factors include low self-esteem, gender dysphoria, bullying, and concerns related to physical health, such as sexually transmitted diseases. Further investigation into the lives of transgender individuals who died by suicide, through psychological autopsies, revealed triggering factors such as serious conflicts with family members (14.3%), refusal of gender reassignment (9.5%), and being diagnosed with HIV (2.4%). Despite the presence of psychiatric disorders, it is noteworthy that none of the transgender individuals sought psychiatric consultation for their issues. This reluctance to seek professional help can be linked to the stigma surrounding transgender individuals and the perceived attitudes of healthcare professionals, which make professional assistance inaccessible for many within the transgender community.

• Substance abuse: Smoking rates in India’s LGBTQ+ community are higher than in the heterosexual population. Over 30,000 LGBT individuals die annually from tobacco-related illnesses[7]. Multiple studies[8] have consistently documented elevated levels of substance use, particularly alcohol and tobacco, within the transgender population.

• Gender-transition services: Several studies[9] reveal a lack of free gender-transition services in Indian public hospitals. For example, only one hospital in Chennai offers limited gender-affirming surgeries, while other hospitals across the country provided such services on an ad hoc basis demanding partial cost coverage by patients.

• Violence and social victimisation: Transgender people experience societal stigma and discrimination, resulting in violent incidents and negative perceptions directed towards them (Peoples’ Union for Civil Liberties, Karnataka, 2003). A survey conducted by the National Human Rights Commission (NHRC) uncovered cases of parents disowning and expelling their children who do not conform to traditional gender norms. Research suggests that violence, stigma, and discrimination significantly heighten their susceptibility to HIV, mental health issues, and substance abuse. The historical criminalization of transgender individuals and the associated violence compel them to hide their ailments and seek assistance from informal private caregivers and pharmacists. Moreover, limited awareness about government health facilities, health insurance, and the stigmatization surrounding transgender people act as obstacles to accessing healthcare services.

• Economic marginalisation: Transgender individuals in India often face economic marginalisation, with 20% to 30% resorting to begging and prostitution as their primary means of income[10]. This further hinders their access to healthcare services due to exacerbating stigma and discrimination.

Analysing the legal rights of Transgender Individuals

The rights for transgender individuals can be categorised under two key categories – those which are enshrined in the Constitution, and those specially conferred under the Transgender Persons Act 2019.

Constitutional rights

The Preamble of the Indian Constitution establishes the imperative of equality of social, economic and political status:

• Right to equality (Article 14) – no “person” can be denied equal protection before or by the law.
• Right to non-discrimination (Article 15) – prohibits discrimination on multiple grounds including gender and sexual orientation. The case of Mx. Alia SK v. The State of West Bengal and Ors. (2019) exemplifies the judiciary’s role in guaranteeing the inclusion of transgender individuals in the university admissions process. The ruling emphasised the necessity of implementing special accommodations and adjustments to facilitate the application and admission of transgender people to public universities where such measures were previously absent.
• Right to freedom of speech and expression (Article 19) – this includes the freedom to express gender identity.
• The right to life and personal liberty (Article 21) bestows upon every citizen the privilege of freedom of speech and expression, with the exception of lawful restrictions. This encompasses the freedom to openly express one’s gender identity. In the Nangai v. Superintendent of Police case, the Madras High Court acknowledged that enforcing a medical gender examination would contravene Article 21. Therefore, in accordance with the principles of the rule of law, all individuals possess the right to self-determine their gender. This principle was further strengthened in the case of Mrs. X v. State of Uttarakhand, wherein it was underscored that depriving an individual of the right to self-identify their gender would violate their fundamental rights to life and liberty.

The Transgender Persons Act 2019

The Indian parliament passed the Transgender Persons (Protection of Rights) Bill or TGP (PoR) in 2016 in an effort to combat discrimination against transgender individuals. The bill aimed to provide a legal mechanism for transgender people to be recogniwed as such, rather than being classified under traditional gender categories like male or female. However, the bill has received criticism for contradicting the principle of self-identification established in the NALSA ruling, and for creating a complex bureaucratic process.

Although Section 4 supports “self-perception of gender identity,” Sections 5 and 6 require applying to a District Magistrate for gender recognition, which demeans the autonomy and self-determination process of transgender individuals. Moreover, Section 7 mandates proof of gender-affirmative surgery for legal male or female recognition, which poses as an additional obstacle to those who cannot access or afford such procedures. This reinforces the cycle of persecution faced by transgender individuals by prohibiting accessibility to the benefits and anti-discrimination provisions to the same people that the Act tries to protect. It also grants too much discretion to the legislature in medical matters, which should be kept separate.

The Act also trivialises crimes against transgender individuals. All crimes targeting transgender people are grouped into a single category, and the sentences for such crimes, including rape and assault, are minimised to a range of “six months to two years.”

Current situation of transgender individuals

The 2013 UN Development Program report[11] states that transgender people experience widespread discrimination in healthcare, including denial of care and disrespectful treatment. Many transgender individuals cannot afford essential medical procedures.

The encounters of transgender men with discrimination, both direct and indirect, and various forms of oppression remain underrepresented. They often face invasive questioning about their bodies[12], invalidation of their identity through misgendering and dead-naming[13] and receiving substandard care characterised by rough treatment, verbal harassment, and restricted access to certain areas within hospitals[14].

Trans men have specific healthcare needs, such as routine sexual health screenings, monitoring of hormone therapy, and mental health support. However, they are often excluded from gynecological and reproductive practices[15]. Stigma, discrimination, fear of mistreatment, and rigid gender binaries within the healthcare system contribute to the disengagement of trans men, resulting in poor healthcare-seeking behavior and adverse effects on their health and well-being.

The lack of knowledge and training on transgender health among healthcare providers further exacerbates the challenges faced by the transgender population. Medical professionals often lack understanding and awareness of transgender health issues due to inadequate education and limited research on transgender health in India. As a result, transgender individuals often have to self-advocate and explain their health concerns and gender identity to medical practitioners who may challenge or dismiss their identities. This self-advocacy can lead to emotional exhaustion and is not a viable option for individuals who face low health literacy, lack of information, fear, and other anxieties regarding healthcare institutions.

The transgender community’s historical marginalisation and stigma, combined with limited access to education, have resulted in low health literacy, lack of awareness, and poor health-seeking behavior. Trans men often resort to self-administering medicines, including hormones, due to limited access to free gender-transition services in public hospitals. The unavailability of comprehensive transgender healthcare services and the need for multidisciplinary care further complicate the situation.

ANALYSIS AND SUGGESTIONS

Improving access to gender-affirmative services

Gender affirmation is essential for transgender individuals and involves medical and surgical procedures. Hormonal therapy is a commonly sought-after treatment, but it is not readily available in public hospitals despite its affordability and the presence of experts. To improve access, feminising and masculinising hormonal medications should be included in the ‘National Essential Medicines List’.

The TGP(PoR) Rules of 2020 require at least one government hospital in each state to offer free and safe gender-affirming surgeries, counseling, and hormone replacement therapy. State and central governments can identify suitable hospitals to provide comprehensive gender-affirmative care, including the establishment of transgender healthcare centers of excellence. The objective is to ensure access to quality care based on national guidelines and training for healthcare providers.

Currently, gender-affirming services are limited to a few government hospitals, and expertise in certain surgeries for transmasculine individuals is lacking. The WPATH Standards of Care are recommended for gender-affirmative therapies. The ICD-11 categorises “Gender Incongruence” under sexual health, not mental and behavioral disorders.

Standard operating procedures should be developed for gender-affirmative therapies, and guidelines must address the prevention of forced sterilizations and provide gamete banking options. Government insurance and financial support should cover procedures and post-operative care costs. Care for individuals with intersex variations should avoid unnecessary surgeries for children, and medical management should follow international guidelines.

In summary, it is important to improve access to gender-affirming care, establish protocols, and provide support for individuals with intersex variations.

Collated efforts to end the HIV crisis among the transgender population

The National AIDS Control Organisation (NACO) is responsible for HIV prevention efforts among transgender individuals, primarily transfeminine people, in India. NACO has recognised and addressed the needs of transfeminine individuals in their operational guidelines and reports. They have implemented trans-specific HIV prevention measures across the country, reaching approximately 67% of the estimated 62,137 transfeminine individuals. In 2020, NACO proposed a comprehensive package for HIV prevention and treatment tailored to transfeminine individuals and initiated a pilot intervention to address discrimination in healthcare settings.

To achieve the goal of ending the HIV epidemic among transgender individuals by 2030, NACO needs to scale up HIV intervention projects and expand surveillance efforts. Additionally, NACO should reassess their coverage criteria to include transgender minors. Providing HIV pre-exposure prophylaxis (PrEP) to at-risk individuals, including transfeminine people, is recommended. Improving the HIV care cascade and offering comprehensive care, including mental health support, gender affirmation resources, counseling, and social welfare connections, is crucial for transfeminine individuals accessing HIV interventions and treatment centers.

Equitable and accessible education

According to a UNESCO report focusing on the challenges faced by gender minorities in Tamil Nadu, it was discovered that 65% of gender-diverse children do not feel safe in educational institutions. While the National Education Policy (NEP) of 2020 sets a general framework, it is evident that further comprehensive and sustained policy adjustments and actions are necessary to ensure the full inclusion and retention of gender-diverse children in schools and colleges. Here are some crucial steps to achieve this:

1. Development of a national policy against bullying and harassment: The Department of School Education and Literacy should establish a consistent policy to address all forms of physical, verbal, and cyber harassment in schools. This policy should mirror the existing anti-ragging regulations implemented by institutions like the University Grants Commission, the All India Council for Technical Education, and the Medical Council of India. The formulation of this policy should involve collaboration with educators, child rights organizations, and community-based groups that support sexual and gender minorities. It should effectively address instances of bullying and discrimination in both the physical and virtual realms.

• Implementation of support and grievance-redressal mechanisms: Schools should set up anti-bullying and anti-harassment committees as directed by the Central Board for Secondary Education and the National Education Policy. The Ministry of Education must provide comprehensive guidelines to handle incidents of bullying and harassment effectively. This will ensure that the District Child Protection Unit takes responsibility for monitoring children’s rights violations within schools.

• Training for progressive educators: The Ministry of Social Justice and Empowerment can design specialized modules to sensitize teachers and faculty members in schools and colleges. These new training curricula, in line with the NEP’s directives, should be developed at both the state and district levels, incorporating the principles outlined in the policy to foster a more inclusive school culture.

• Raising awareness among students about gender diversity: It is crucial to implement targeted programs that sensitize students about gender, sexuality, and the unique challenges faced by gender-diverse students and those with intersex variations. Successful initiatives like the “Breaking Barriers” campaign, pioneered by Tagore International School in New Delhi, which has positively impacted thousands of students across multiple schools, should be officially adopted and promoted.

• Promoting gender-inclusive school infrastructure: The Ministry of Education must issue guidelines to ensure the creation of gender-inclusive facilities within educational institutions. These guidelines should mandate the provision of gender-neutral toilets alongside traditional male and female facilities, allowing students to use the restroom of their choice. Additionally, the guidelines should grant students the freedom to wear uniforms and hairstyles that align with their self-expression and gender presentation. It is also important to develop guidelines addressing the inclusion of gender-diverse students in sports teams and providing appropriate accommodations in hostels. Panjab University’s commendable initiative to construct toilets for gender-diverse children within their campus can serve as a model for such efforts.

By implementing these measures, we can take significant strides towards creating a more inclusive and safe educational environment for gender-diverse children, fostering a society that respects and celebrates diversity.

CONCLUSION

In conclusion, it is imperative for Indian authorities to implement the Supreme Court directives and integrate transgender individuals into mainstream society. Discrimination against transgender individuals must be eradicated, and their protection and social needs should be addressed. Public awareness campaigns are crucial to foster acceptance of the transgender community. Educational institutions, healthcare systems, and workplaces, both public and private, should welcome them without bias. Equal treatment under the law and by the police is essential. Access to proper medical facilities, including health insurance and subsidised treatment, is necessary.

The general public must strive to understand the emotions and mental well-being of transgender individuals. It is vital to recognise that human beings are diverse, and everyone deserves respect and acceptance. Transgender individuals have the right to live and express themselves without fear. Society must eliminate social stigmas and provide equal opportunities for transgender individuals to contribute to community development.

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[2] National AIDS control organisation. Available at: https://mohfw.gov.in/sites/default/files/24Chapter.pdf (last visited Jul 13, 2023.

[3] National Legal Services Authority v. Union of India (2014) 5 SCC 438

[4] Ganju D, Saggurti N. Stigma, violence and HIV vulnerability among transgender persons in sex work in Maharashtra, India. Cult Heal Sex. 2017;19(8): 903-17. 

[5] Hijras/transgender people – naco, https://naco.gov.in/sites/default/files/TGIBBS%20ReportPrint%20text_Edited.pdf (last visited Jul 13, 2023)

[6] Kalra, G., & Shah, N. (2013). The cultural, psychiatric, and sexuality aspects of hijras inIndia.International Journal of Transgenderism,14(4), 171–181. https://doi.org/10.1080/15532739.2013.876378

[7] A. M., S. R., K., K., ., T., Britto, R., George, N. and M., T. (2021) “Health care services and challenges among transgender in India”, International Journal Of Community Medicine And Public Health, 8(6), pp. 3143–3145. doi: 10.18203/2394-6040.ijcmph20212027

[8] Samuel SR, Muragaboopathy V, Patil S. Transgender HIV status, self-perceived dental care barriers, and residents’ stigma, willingness to treat them in a community dental outreach program: Cross-sectional study. Spec Care Dentist. 2018 Sep;38(5):307-312. doi: 10.1111/scd.12315. Epub 2018 Jul 18. PMID: 30019539

[9] Shah SB, Khanna P, Bhatt R, Goyal P, Garg R, Chawla R. Perioperative anaesthetic concerns in transgender patients: Indian perspective. Indian J Anaesth. 2019 Feb;63(2):84-91. doi: 10.4103/ija.IJA_640_18. PMID: 30814744; PMCID: PMC6383476.

[10] National Human Rights Commission (2018). Study on human rights of transgender as a third gender. National Human Rights Commission.

[11] United Nations Development Project. Discussion Paper: Transgender Health and Human Rights 2013. Available at:https://www.undp.org/publications/discussion-paper-transgender-health-human-rights

[12] Transgender Noninclusive Healthcare and Delaying Care Because of Fear: Connections to General Health and Mental Health Among Transgender Adults Kristie L. Seelman, Matthew J.P. Colón-Diaz, Rebecca H. LeCroix, Marik Xavier-Brier, and Leonardo Kattari. Transgender Health 2017 2:1, 17-28

[13] Team SPRF, Trans-Inclusive Healthcare: Barriers for transmen in India SPRF (2023), https://sprf.in/the-urgency-of-creating-trans-inclusive-healthcare-an-exploration-of-healthcare-barriers-faced-by-trans-men-in-india/ (last visited Jul 13, 2023).

[14] Ibid