Abstract
India is making progress in various medical, economic, and social areas. However, the care of transgender individuals is still hindered by biases and taboos. Interestingly, Hindu mythology regards transgender individuals as equal to other genders. The concept of “tritiyaprakriti” or “napumsaka” has been an integral part of Hindu mythology, folklore, epic, and early Vedic and Puranic literature. (1)
As defined by the Transgender Persons (Protection of Rights) Act of 2019, the term transgender refers to any person whose gender does not match the gender assigned to them at birth.
The Transgender Act allows individuals to obtain a transgender identity certificate. If a person from the transgender community requests it, prison authorities should assist them in acquiring this certificate. Transgender individuals often face discrimination in prisons, where their gender identity is not recognized, and they are assigned facilities based on their biological sex. For example, a person who was born male but identifies as female may be placed in a men’s prison, where they may experience mistreatment, humiliation, and be at risk of sexual violence. Therefore, it’s crucial to uphold the right to self-identification to protect the rights and well-being of transgender individuals.
This research paper articulates the situation of transgender in prison, issues faced by them, recommendations by various committees, various court guidelines, related laws, and their implementation.
Keywords
Transgender prison, Hindu mythology, equality.
Introduction
From Tulsi Ramayana. Uttara Kanda-
“Be it man, woman, or a non-binary, or, for the matter of that, any living being whatsoever of the animate or inanimate world – he who adores Me with all his being, giving up all guile, is supremely dear to Me.
There are numerous scriptures like Svetasvatara Upanishad, Puranas, Adhyatma Ramayana, etc. talking about the third gender is present still today India is behind giving even basic amenities and fundamental rights to the third gender.
1.https://www.ncbi.nlm.nih.gov/
In India, the Prisons Act, of 1894, is the central legislation regulating the administration of prisons.
Unfortunately, the Act does not even recognize sexual minorities based on Sexual -Orientation and Gender Identity (SOGI) as a different class of prisoners.
It categorizes prisoners into groups such as women, young offenders, undertrials, convicts, civil prisoners, detenues, and high-security prisoners.
The NALSA judgment extends constitutional protection to trans persons under Articles 14, 15, and 21, and directs states to develop policies for their legal and socio-economic rights.
Recently, the high court has requested a response from Punjab, Haryana, and the union government regarding the provision of separate wards and toilets in prisons and police lockups for transgender individuals. This sheds light on the issue that despite being recognized as the third gender, they have not been provided with basic amenities. In 2022, the Patna High Court directed the authorities to establish separate wards and cells for transgender persons in all prisons in Bihar.
In the recent case Sunpreet Singh vs. UOI and others (2), referring to testimonies of transgender, the plea stated that jails are custodial institutions where feminine behavior by men is always a greater risk of mistreatment by both authorities and inmates. Hence, transgender becomes victims of the “most brutal forms of sexual violence” inside the prison.
The Supreme Court, in the Navtej Singh Johar judgment (2), emphasized the importance of equality and the acceptance of one’s sexuality as an integral part of citizenship. The court stated that individual autonomy and liberty, equality for all without discrimination, recognition of identity with dignity, and privacy of human beings are the four fundamental pillars of our constitution, forming the concrete foundation of our fundamental rights.
The Supreme Court, in the Navtej Singh Johar judgment, emphasized the importance of equality and the acceptance of one’s sexuality as an integral part of citizenship. The court stated that individual autonomy and liberty, equality for all without discrimination, recognition of identity with dignity, and privacy of human beings are the four fundamental pillars of our constitution, forming them concrete foundation of our fundamental rights. (3)
(2) livelaw.in
(3) https://www.epw.in/engage/article/indian-prisons-and-search-equality-problems-faced
The committee has recommended that the state governments and prison departments should take appropriate and effective measures to eradicate all forms of violence, discrimination, and other harm against transgender prisoners.
Research Methodology
The nature of the paper is doctrinal and critical and it is based on primary as well as secondary sources like government sites along with newspapers, journals, and websites for in-depth and critical knowledge on transgender and their present situation in India along with the comparative analysis of ancient past with present.
Review of literature
Author Name- Tanya Arora (4)
This article talked about transgender rights in 2023 and whether Legal Recognition and Advocacy Efforts broke the Cycle of Discrimination and Ostracism.
In 2014, India legally recognized the transgender community as the “third gender” through the NALSA v Union of India judgment. The Supreme Court recommended that transgender individuals should receive reservations in public employment and education. However, as of 2023, these recommendations have not been implemented.
1. Reservation for Transgender community:
In the NALSA judgment, the Supreme Court directed the Union and the States to treat transgender persons as a socially and educationally backward class and to provide them with special treatment in education and public employment. However, the Court did not specify how the reservation should be implemented. As a result, many states have yet to implement such reservations. It is a major concern to determine whether the reservation granted is horizontal or vertical.
It is important to note that in 2021, Karnataka became the first state, and currently the only state, where the transgender community has been given horizontal reservation to the extent of 1%.
2. Discriminative policies:
The Union government has defended its guidelines on permanently prohibiting the transgender community, female sex workers, and gay men from donating blood. They claim that scientific evidence clearly shows that these groups are globally recognized as having a higher prevalence of HIV and other transfusion-transmitted infections (TTIs).
3. Lack of protection :
In 2019, the Transgender Person (Protection of Rights) Act received the assent of the President of India and came into force as the governing law relating to transgender women in India. However, it did not meet the expectations and added to the existing issues in India’s socio-legal sphere. There has been little effort to grant the long-overdue fair treatment in the six years since the pronouncement, and the 2019 Act failed to address these unresolved problems. It is now 2023, nine years after the NALSA decision and four years since the adoption of the 2019 Act, and transgender women still do not have the right to equality before the law and equal protection under the law.
The 2019 Act’s punishments and provisions are unfair and unjust as they do not offer transgender women the same legal protection as cis-gender women under various penal laws, such as the Indian Penal Code. Section 18 of the 2019 Act states that anyone who harms, injures, or endangers the life, safety, health, or well-being of a transgender person will face a minimum of six months in prison, which may extend to two years, and a fine. Even if the degree of cruelty is identical in both cases, the punishment provided by the Act is less severe than the punitive sanction provided by section 498A of the IPC. As a result, any act of violence or abuse committed against a transgender woman will have less significance and lower weight in the eyes of the law than any act of crime committed against cis women. It is clear that within the circles of marginalization, transgender women face two levels of discrimination based on their gender identity, first as a woman and then as a transgender woman.
Section 5 of the Act mandates that transgender individuals must obtain a certificate of identity from the District Magistrate after completing a challenging legal process. This requirement undermines the right to self-perceived gender identity, as outlined in Section 4 of the Act. Section 5 involves a detailed examination for the issuance of certification, which goes against the principles of self-determination without medical intervention laid out in the NALSA decision.
The above article tried covering a few dimensions where the transgenders are facing inequality and discrimination. However, the aim should be to look at it holistically and cover every aspect of it.
What Issues Do the Transgender People Face?
educational
residential Lack of legal protection poverty
medical
employment lacking healthcare competency
Harassment and stigma barriers to healthcare
Anti–transgender violence
Forced marriage stripping physical and verbal abuse
These are the issues they face in day-to-day life, whereas they also face numerous problems behind bars that have not been properly debated and heard. Now, the time is for the legislature and judiciary to come together and look forward to the most freeze-out individuals in our society.
Issues the third gender faces in prison include-
Admission procedure
Infrastructure in Prison Healthcare
According to CHRI REPORT (5) –
– There is inconsistency in the policy for placing transgender individuals in gendered prisons, not only across different states but also within the same state.
– No awareness programs for prisoners have been conducted since 2014.
– No transgender individuals were hired in any state or Union territory between January 1, 2014, and January 1, 2019.
– None of the prisons reported including any course or module in the Prison Training Institute’s curriculum that focuses on awareness and sensitization regarding the rights of LGBTI+ communities..
Author name- Kyle Knight (6)
India’s new law has been criticized for violating the rights of trans people instead of respecting and uplifting the long-persecuted communities. One major concern with the new law is the process it requires for legal gender recognition. The law sets up a two-step process: first, individuals need to apply for a “transgender certificate” from the District Magistrate based on their self-declared identity. Then, they can apply for a “change in gender certificate,” but this step requires proof of surgery, issued by a hospital official, and a second evaluation by the District Magistrate. This has raised concerns about the accessibility and fairness of the process.
This gives an excessive amount of power to one government office to decide which trans people are “eligible” to be acknowledged as who they are. It also pressures people into medical procedures they may not want — a violation of fundamental rights that is condemned by Indian and international law.
Indian courts have consistently ruled that trans people should receive government recognition on their own terms, without mandatory intervention or discrimination.
In 2014, the Indian Supreme Court in NALSA v UOI ruled that transgender people should be recognized as a third gender and enjoy all fundamental rights. They are also entitled to specific benefits in education and employment. Justice K.S. Radhakrishnan, writing for the bench, ordered that “Transgender persons’ right to decide their self-identified gender” should be recognized by state and federal authorities. The court made it clear that “any insistence for [sex reassignment surgery] for declaring one’s gender is immoral and illegal.”
In October 2015, the Delhi High Court made a ruling emphasizing the close connection between the right to legal gender recognition and other rights. Justice Siddharth Mridul affirmed the right of a 19-year-old transgender man to seek protection from harassment by his parents and the police. He stated, “A transgender person’s sense or experience of gender is integral to their core personality and sense of being. As I understand the law, everyone has a fundamental right to be recognized in their chosen gender.”
(6)https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating
Through my research paper, I want to elucidate that the Transgender Person (Protection of Rights) Act, 2019 (7) tried solving some of the issues like-
Definition of a transgender person: The act defines a transgender person as one whose gender does not match the gender assigned at birth. It includes trans-men and trans-women, persons with intersex variations, gender queers, and persons with socio-cultural identities, such as kinnar and hijra. Intersex variations are defined to mean a person who at birth shows variation in his or her primary sexual characteristics, external genitalia, chromosomes, or hormones from the normative standard of the male or female body
Prohibition against discrimination: The bill prohibits discrimination against transgender individuals, including denying them services or treating them unfairly in the following areas: (i) education, (ii) employment, (iii) healthcare, (iv) access to public goods and facilities, (v) right to movement, (vi) right to reside, rent, or occupy property, (vii) opportunity to hold public or private office, and (viii) access to government or private establishments where a transgender person is in their care or custody.
Right of residence: “Every transgender person has the right to reside and be included in their household. If the immediate family is unable to care for the transgender person, the person may be placed in a rehabilitation center on the orders of a competent court.”
Employment: No government or private entity can discriminate against a transgender person in employment matters, including recruitment, and promotion. Every establishment is required to designate a person to be a complaint officer to deal with complaints about the act.
Education: Educational institutions funded or recognized by the relevant government should provide inclusive education, sports, and recreational facilities for transgender individuals without discrimination.
Health care: “The government should ensure that transgender individuals have access to healthcare facilities, including separate HIV surveillance centers and sex reassignment surgeries. The government should also revise the medical curriculum to address the specific health needs of transgender individuals and provide comprehensive medical insurance schemes for them.”
A transgender person can apply to the District Magistrate for a certificate of identity indicating their gender as ‘transgender’. A revised certificate may be obtained if the individual undergoes surgery to change their gender to male or female.
Welfare measures by the government: The bill stipulates that the government will take steps to ensure the complete inclusion and participation of transgender individuals in society. It must also take measures for their rescue and rehabilitation, provide vocational training and support for self-employment, and establish programs that are sensitive to the needs of transgender individuals.
(7) https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2019
Offenses and penalties: The bill outlines the following offenses against transgender individuals: (i) forced or bonded labour (excluding compulsory government service for public purposes), (ii) denial of use of public places, (iii) expulsion from household and village, and (iv) physical, sexual, verbal, emotional, or economic abuse. Penalties for these offenses range from six months to two years of imprisonment, as well as a fine.
The National Council for Transgender Persons (NCT) will be composed of the following members:
(i) The Union Minister for Social Justice (Chairperson)
(ii) The Minister of State for Social Justice (Vice-Chairperson)
(iii) The Secretary of the Ministry of Social Justice
(iv) One representative from the ministries of Health, Home Affairs, and Human Resources Development
Other members will include representatives from the NITI Aayog and the National Human Rights Commission. State governments will also have representation. The Council will also include five members from the transgender community and five experts from non-governmental organizations.
In the above article kyle mainly focuses on one of the escape clauses i.e. gender identification.
But, the act of 2019, contains numerous loopholes which had made its implementation weak and ineffective. Some of the drawbacks include-
Transgender persons are not defined as silent on granting reservation
Right of marriage, divorce, adoption
Criminalizes begging lighter consequences for assault
Suggestion and Conclusion-
It’s high time to look upon the most overlooked section of the society. The more we neglect them the more their plight and vulnerability will shoot up. It can be said that the transgender section is one of the most vulnerable and neglected portions of our country. The below mentioned are some of the points that can be considered to improve their lives-
Please remember the following points:
1. Legal and law enforcement systems need to be educated about the issues faced by the transgender community and be more inclusive in their policies.
2. Society should adopt an inclusive approach for the transgender community and involve them in policy formulation and decision-making.
3. The grievances of the transgender community regarding their exclusion from policy formulation and decision-making need to be addressed, and their public participation should be increased.
4. The transgender community should have access to free legal aid, supportive education, and social entitlements at the grassroots level.
5. Separate policies related to healthcare should be implemented and strictly followed for the transgender community.
6. There is a need to increase awareness and promote respect and acceptance for the transgender community.
Financial Security: It is important to ensure liberal credit facilities and financial assistance, such as providing a monthly fixed amount as relief for a specific period by the government, to help people come out of poverty, stop begging, and lead dignified lives.
Transgender in Prisons: Awareness and documentation are crucial for implementing reforms for sexual minorities, especially transgender prisoners. The Commonwealth Human Rights Initiative (CHRI) advocates for a gender-fluid approach to the treatment of transgender prisoners.
The CHRI’s recommendations should be considered by the Union government to bring a ‘model policy’ on the special needs of trans prisoners, through a consultative process with the members of the trans community.
citation-
online website/blog/pdf
(Tanya arora),reflecting on transgender rights in 2023:have legal recognition and advocacy efforts broken the cycle of discrimination and ostracism) (cjp) (13/05/2024, 11:00 p.m)
6.https://www.hrw.org/news/2019/12/05/indias-transgender-rights-law-isnt-worth-celebrating
(kyle knight), (India’s transgender law is not worth celebrating), (13/05/2024, 11:00 p.m)
5.https://www.humanrightsinitiative.org/download/About%20The%20Report%20Lost%20Identity.pdf
(CHRI), (Lost identity: Transgender person in Indian prisons, kaleidoscope international trust), (pg no. 2)
Author: Anu Priya
Law centre-1, Delhi University.