Transgender people hold a dualistic perspective identity: in one hand they are considered disgrace to the society and on the other hand they are assembled with the “Ardhanareswar” version of Lord Shiva. Contrary to all the points there still relevant discrimination present in the prisons. Such inadequate care is untenable in the functioning of the criminal justice system as a whole. To do alternatively is to provide the concept of the equality of law in relation to transgender persons redundant. Transgender persons suffer significant consequences from a prison system that does not take into account their concerns. These consequences include high levels of sexual and physical violence as well as the provision of a medical treatment that is highly contingent upon the jurisdiction and type of correctional institution within which he or she is placed.
The problems encountered by transgender inmates in Indian jails are clarified by this report. It provides important details on conformity within jails with the current laws and regulations that are pertinent to protecting the civil liberties of transgender people in prisons, particularly in terms of accepting a third gender, ward allocation, search procedures, and efforts towards prison capacity building. This is achieved through an analysis of the domestic and international legal frameworks as well as the data that is received from 34 States/UTs. supervisors, etc.
The purpose of this report is to improve knowledge of these issues among interested parties, including judiciary officials, lawyers, legal service providers, and other non-state actors. This will help to better inform policy decisions and guarantee that decisions pertaining to LGBTI+ inmates are sensitive to their rights and special needs.
Transgender identity, prison violence, discrimination, prisoners
‘We, the People of India’ opens the preamble to our constitution. ‘We’ was selected to stand for all Indian citizens regardless of caste, sex, gender, or any other distinction, and to include all individuals and communities. However, we’ve breached the preamble of the Indian Constitution in addition to its essential provisions and once again, particularly when it comes to the transgender community. There are transgender people in every sector of life. The society is not new to them. They have existed since the earliest moments of human history. In order to determine the community’s origins, we must at the very least go back to the time of the Mahabharata and Ramayana. In some of the Ramayana’s renditions, when Lord Rama went into exile from Ayodhya, a sizable throng of devoted disciples followed him to the woods. Lord Ram pleaded with “All the men and women to go back to their homes”. After the exile was ended and he had experienced all the adventures, Lord Ram went back to his Kingdom and to his surprise he noticed that all the people who are neither men nor women were staying still in the place of speech. Overwhelmed by the devotion, he granted them boon. Similar to this, in the Mahabharata, as the sons of Pandu’s exile drew to a close, they assumed new identities in order to evade detection. Under the alias “Brihannala,” Mighty Arjun presented oneself as a transgender person.
As per the landmark judgment National Legal Services Authority v. Union of India & Ors. in 2014 which recognizes transgenders as third gender defines them as an umbrella term which include people who identify themselves to opposite gender from biologically assigned to them. “Transgender” is a gender identity while they may or may not be born with intersex variations. Intersex persons are those who might have a combination of male, female sex characteristics or atypical sexual organs whether internal or external. The social duties, traits, and opportunities that come with being male or female can be categorized as “gender.” Usually, a person’s gender is determined by their sex at birth. Nonetheless, a person’s unique and subjective perception of gender might or might not match the gender is given at conception, including the individual’s perception of their physique (which may entail, if voluntarily selected, altering one’s physical appearance or functionality by medical surgical, or other methods) as well as additional gender expressions in speech, attire, and behaviors.
The transgenders community have been neglected by the people all their life. They are considered so insignificant that their tortuous life has not bothered us till date to take any action for them. With the NALSA judgment which states “Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to transgenders which legitimately belongs to them.” . At this point it needs to be noticed that in addition to fundamental rights, Constitution makers also deemed it proper to impose certain restrictions on State Government by including in Part IV.
Section 14 of the Transgender Persons (Protection of Rights) Acts ,2019 state that the government shall formulate welfare schemes and programs to facilitate and support livelihood for transgenders including their vocational training and self-employment. However no action is taken too far. Transgenders in current state are victims of violence in prisons of India. On the contrary prisons are closed spaces. Any person who has been sent to prisons is acknowledged to live a life of full deprivation of liberty. This vulnerability can be attributed to multiple factors including imbalance between prison administrators and prisoner, with prisoners being completely dependent on prison institution. Instead of providing them with basic rights and dignity transgenders are victims of various forms of violence against them – Trans-Murder, Medical Negligence, Segregation, Sexual violence to name a few.
Secondary materials, such as books, research articles, and judgements, are used to aid in the study. The secondary sources consist of pre-existing data and are compiled works, with the selection varying depending on the study. This report is an important source for all the prison administrators and staff to understand the issue of rights and vulnerabilities that transgenders people suffer,
ARTICLE 1 – Lesbian, Gay, Bisexual, and Transgender (LGBT) advocacy has grown over the past few decades, and the Criminal Justice System is now exhibiting more and more of this equality-focused activism.1. The report by the Ministry of Justice Prisons must adhere to the rules provided by the Care and Management of Transsexual Prisoners PSI 07/2011 to guarantee that transgender inmates get equitable treatment and legal compliance.
ARTICLE 2 – Those who identify as transgender or gender nonconforming (TGD) are disproportionately jailed in the US compared to the overall population. Few quantitative studies have examined victimisation as a recidivism risk factor or the victimisation experiences of TGD populations with prior incarceration. Methods: An online survey measuring socio demographics, victimisation in various contexts, and incarceration history was completed by 574 persons with TGD in 2019.
ARTICLE 3 – In this paper, we combine two long-standing criminological research streams: the study of sexual assault and the study of prison life. We do this by utilising new data that is both qualitative and quantitative from 315 transgender women who are serving sentences in 27 men’s prisons in California. By doing this, we progress our understanding of the mechanisms and variables that influence their perception of sexual victimisation while incarcerated.
VIOLENCES AGAINST TRANSGENDERS
On the basis of NHRC report of 2018 findings it was found that among the transgender population found in Delhi 24.44% were engaged in badhai, 10.44% were engaged in begging and around 4.56% were engaged in begging. One can clearly conclude from this point that the State has provided inadequate measures in protection of this community.
“That is but one aspect of the right to life; an equally significant aspect of that right is the right to livelihood because nobody is able to live absent the means of survival, that is, the means of livelihood,” the Supreme Court declared in Olga Tellis v. Bombay Municipal Corporation. Additionally, it noted that if the ability to live is not seen as an integral component of the fundamental right to life, the simplest method to deny someone their right to live is to deny him access to his sources of income until they are completely gone.
Through the acts of us we are denying the basic right to life. In this research paper I have analyzed a few of the offenses against them.
“Trans Murdering Monitoring project” releases a quarterly report of the murder count of Trans-murder across the world. According to the March 2013 update, from January 1, 2008, to December 31, 2012, 1,123 transgender person killings were documented in 47 different countries. According to the update, there has been a noticeable and steady rise in the number of transgender killings over the last five years. 217 instances were recorded in 2008, 248 cases in 2009, 209 cases in 2010, 262 cases in 2011, and 267 cases in 2012.
However, these are only those numbers which are being recorded. There are various unrecorded data because transgender live a life with constant danger of suffering physical violence in the prisons. Their voices are being unheard by the police forces. The lack of response from the police and increasing rate of murder cases have had a chilling effect on the unrecording of the victimization. Evidence from India shows that trans women who work in the sex industry do not report abuses to the authorities when they occur because they have had homosexual sex which the Indian Penal Code prohibits. It has been seen that Transgenders people avoid contact and talking to people about the violence.
It has been observed that transgender persons are not adequately protected by domestic criminal law, as seen by the high incidence of trans-murder and low reporting rates of such violence as seen happening in India. One reason for this lack of safety is the systemic violence against transgender communities.
Any analysis of the interplay involving life and law in the setting of prisons must prioritize sexual assault against transgender inmates. If a jail order is unable to shield transgender prisoners from other inmates’ predatory conduct, there will inevitably be a legitimacy issue in the penalization of transgender inmates. The overly strong aspect of prison environments makes transgender inmates more vulnerable to sexual abuse.
In October of 2016, researchers from Stanford University, the University of California, Berkeley, and the Civilian Pervasive transphobia was found by the Welfare Foundation, a non-profit organization in Kolkata. To ascertain the extent of transphobia in the area, its root causes, and its effects on medical professionals’ contacts and treatment of transgender patients, the exercise entails interviewing 300 physicians from five significant Indian medical centers. A transwoman is defined by Scroll.in as a person who identifies as female at birth but changes their mind later in life. who participated in one of these studies and self-identifies as female claimed that the doctor asked her, “How can you be raped?” when she went to the hospital after being gang-raped. This reveals a lack of awareness and insensitivity to the major sexual assault epidemic that the community is facing.
In order to prove my point these are two reports which reveal that the individuals who transgress gender binaries and heteronormative expectations-whether through gender identity, gender expression, or sexual orientation-are at increased risk for sexual violence compared with the general population; –
● The result of one finding shows that transgenders respondents are twice likely to experience sexual assault in prisons with 33,6% transgenders reporting sexual assault.
● Similar increased risk of sexual assault is experienced by cisgender people who complicate gender binary through sexual identity, according to research on sexual violence among a national sample of the LGBT community. Specifically, 46 percent of lesbians, 40 percent of gay men, 75 percent of bisexual women, and 47 percent of bisexual men reported having experienced sexual assault.
Being the most neglected, submissive and vulnerable community of our society, they are very prone to sexual assault and have no legal course whatsoever. Transgender people are sexually attacked and are granted no rights at all, even in places like prisons where offenders are punished. It is the same as inviting people to be sexually attacked when they defend themselves in jail. The prison’s crooked administrators and internal politics make it nearly hard for their tragedies to be acknowledged by the outside world, let alone rectified. Their post-prison lives and means of subsistence worsen in severity.
As per the study of National Human Rights Commission in 2017, it was found that these people do not get the justice from police in cases of gang rape or sexual assault due to the fear of harassment or their inability to pay bribes.
A provision for the transgender community’s safety in prisons and their continued means of subsistence after release is desperately needed. If transgender people do not receive legal representation and justice, it is a violation of several Indian Constitutional articles, including 14, 22(1), 15, 16, 38, 39(a), 39A, 41, etc. If a person’s fundamental rights to life are violated, if so, isn’t the written Constitution’s entire goal pointless?
The government does not rank the medical needs of transgender persons as its top priority. Globally, transgender people experience severe health problems, disparities and barriers in getting quality medical care. The probability of mental health issues, which often result in to melancholy and other Suicide attempts become more likely with time. Transgender Communities Individuals experienced unethical treatment from medical facilities and insurance providers to cover the cost of transgender care. According to data from the AIDS Control National Organization (NACO), the trans-HIV population had the second-highest prevalence rate (8.8 2%), among high-risk categories, in 2015–16.8.2 percent of transgender individuals are thought to be HIV positive. an array of These people is more likely to get HIV because of social, legal, and economic problems.
The problem is that while Transgenders people are in custody decisions related to their medical treatment seemed to be narrow significant. Typically, this depends on the prison and jurisdiction in which the prisoner is classified. While some jurisdictions simply stop providing such medication upon incarceration, others seem to allow the continuation of treatment for inmates who were enrolled in an intensive programme of hormonal therapy prior to custody. Few jurisdictions support sex reassignment surgery, making the topic generally even more contentious. In the case of lawarik v Chief Executive Officer, Corrections Health Service, the condition of the Transgender prisoner applicant was described as being the type “where the condition is not urgent or life threatening”
Thus, again showing the failure to take seriously the concerns of the Transgenders prisoner. Another report showed that in 2016 a medical staff of Bengaluru Central Prison was found to be wrong in treating an infection in the silicone implants of a Transgender prisoner.
Experiences of these violences against Transgender people require immediate government attention and prompt action to ensure their safety and their rights in detention are protected. Any reforms on prisons laws remains incomplete without due considerations of specific vulnerabilities of these persons in custody.
The most recent information on jails and inmates in India is provided by the National Crime Record Bureau’s yearly Prison Statistics report. None of these reports—including the most recent 2019 report—make any reference to transgender convicts because they solely break down gender data by male and women category. Regarding a query posed in the Lok Sabha regarding whether the Central Government maintains any data related to the number of transgender inmates across different Central prison. The Ministry of Home Affairs retorted that under the Seventh Amendment, “prisons” are a state subject. According to the Indian Constitution’s Schedule, prison administration would be under the purview of according to the State Governments.
Statistics on the number of inmates by state is reported by the National Prisons Information Portal , which also breaks down gender statistics into categories such as “male,” “female,” and “others.” Seventy is the total number of numbers in the “others” category across all states; however, no definitions or information about how the data was gathered was supplied, thus it is unknown who this includes. This figure is probably a severe underestimate, assuming that the “others” group includes transgender inmates, since a future report projects the preliminary number to reach 214 based on information obtained through the Right to Information Act, 2005 (or “RTI”).
This all shows the negligence of the Government in recording the number of Transgenders being in custody which thereby reflects their behavior of not considering them as third gender. Besides, prior to 2020 there was no law addressing the rights of the transgender people. Therefore, Transgender People (Protection of Rights) Acts,2019 was approved with the intention of helping the community. However, this law is prone is to some criticisms. Some key points-
- Protection from Discrimination- The legislation offers protection against discrimination but the individual who thus discriminates against the transgender is not subject to any punishment. Money compensation as a defence against discrimination is not mentioned.
- Identification is recognized- A transgender person can apply to the district magistrate for an identification certificate. However, the legislation does not cover the steps involved in claiming the certificate. It lacks the proper procedure to be followed.
- Medical Care – With the other the act also does not give a clear strategy with specific procedures to execute health services and medical facilities.
- Sanctions- “If someone sexually harasses or abuse a trans person, they might receive a 2-Year prison sentence.” That implies that they are seeing through a lens and not as a person. Why can not a trans person can be looked same as a woman who has been sexually harassed?
● Prison departments should develop awareness programmes for fulfilling social needs of transgender persons.
● The Central Government may direct the BPR&D to prepare the model policy.
● State Government or Prison Department should make available facility for inmates to self-identify as Transgender and allocate them a separate inmate cell.
● Prison Department should ensure proper training curriculums for prison officers and staff including courses on Gender identity and Sexual orientation, Protection of rights of Transgender in prisons.
● Ensure proper Documentation of experiences of transgender persons who have confined in prisons. This would enable the assessment and evaluation of ground realities.
The time has come to end our differences and try to make the life of these communities a little better. It is evident from the information received that though the government is trying, they should try harder to comply with the special needs of transgender prisoners. This lack of recognition as discussed above seeps through in all prisons. They must cater to the problem of the transgender prisoners. The Criminal Justice System should resolve all the problems to take initiatives to address these gaps and lacunas in prison society. All he legal measures and procedure must be adaptive and devised through consultative process with the Transgenders prisoners,
Though Government of India has taken a stance and included several policies and schemes for the transgenders community including census, documentation, issuing of the citizenship Id cards, issuing passports, police reforms. These all policies would only work if we “people” would also take the steps in the same direction. It is time to wipe off all the stigmas and taboos related to them and bring forward a step to fill in these gaps.
NAME – DISHTTI GARG
COLLEGE – SYMBIOSIS LAW SCHOOL,NOIDA