January 22, 2022
Good morning. Every Saturday, we write about one specific right that you possess as a citizen in our country. In today’s edition of “Know Your Rights”, we look at the rights of transgender persons.
KNOW YOUR RIGHTS – EDITION 23
Rights of Transgender Persons
“Recognition of transgender as a third gender is not a social or medical issue but a human rights issue.” In 2014, the Supreme Court bench said these words in granting the “third gender” status to trans persons.
Fast forward to September 6, 2018, and the Supreme Court partially struck down Section 377 to decriminalise homosexuality. Justice Indu Malhotra said in part, “History owes an apology to the members of this community and their families.”
At the beginning of the British rule of the Indian subcontinent, trans persons were given some benefits in the form of provision of land, food, and little money from agricultural households. But as the colonial rule took hold, the transgender community became a target. The Criminal Tribes Act, 1871, included punishment for people who dressed as women. The penalty was imprisonment and a fine.
Post-independence, things changed a little. In 1952, the Criminal Tribes Act was replaced. However, its legacy continues in many local laws. For example, the Karnataka Police Act was amended in 2012 and allowed law enforcement to keep tabs on transgender persons. It allowed the police to maintain a register with names and addresses. In 2016, the High Court ordered the omission of the category of eunuchs from the law.
Legally speaking, the 2014 case of National Legal Services Authority (NLSA) v. Union of India is noteworthy. This is the case where the apex court granted the third gender status. Its implications were important as it laid the groundwork for the trans community having some basic human rights. There were a couple of important takeaways:
- In its judgment, the court directed the government to classify and treat members of the trans community as an economically and socially backward class.
- The court also was aware of the difference between gender assigned at birth and gender identity. They said the focus should be on “resolving stress over a mismatch.” It meant trans persons could change their gender without undergoing gender reassignment surgery and a constitutional right to identify and register themselves as the third gender.
Transgender Persons (Protection of Rights) Bill, 2019
Following the NLSA v Union of India case, a Private Member’s Bill on transgender rights was passed in the Rajya Sabha in April 2015. It was then sent to the Lok Sabha where it was never discussed. In 2016, the government introduced its own Bill.
A parliamentary standing committee’s report on the new Bill was rejected by the government. As the BJP began its second term, their Bill passed. It included a prohibition against discrimination, recognition of identity, and the formation of a National Council for Transgender Persons.
Given legal precedence that stated trans persons should have the same human rights as everyone else, this Bill was enacted with that in mind. However, it came under criticism from the trans community. They said it would only expose trans persons to institutional oppression.
The Bill also didn’t make any mention of reservations in education and employment. Human rights activist and researcher Ajita Banerjie wrote how the Bill fails to protect those it intends to with concerns on their security, identity, and health.
Housing
Property rights are an essential part of the civil rights laws in India. However, they continue to be inaccessible to the trans community. Even succession laws are based on religion and binary-gendered classifications. For example, the Hindu Succession Act, 2005, strictly talks about male and female genders in the definition of heirs.
In many instances, trans persons are often forced to leave their parental homes due to non-acceptance, abandonment, or harassment. They are prone to homelessness at a young age and rely on NGOs, private institutions, or in some cases, government-provided housing.
Here are a couple of examples. In 2020, India’s first-of-its-kind shelter home for transgender persons was inaugurated in Vadodara. In Kerala, the government proposed the Sukrutham Housing project to provide land to homeless trans persons. In 2020, Uttar Pradesh granted inheritance rights to trans persons concerning agricultural property through amendments in the UP Revenue Code, 2006.
A 2019 report from the International Commission of Jurists contains first-hand accounts of trans persons who’ve faced discrimination in rental housing. When it comes to housing, trans persons have a mountain to climb. Already facing stigma and discrimination, dealing with landlords more often than not is a nightmare.
Employment
In general, laws concerning employment come under Labour laws. In India, they’re still binary in nature for gender recognition. In general, there isn’t a law that prohibits discrimination based on sexual orientation in the context of private employment.
While the Transgender Persons (Protection of Rights) Act has come under criticism, it includes a provision that prohibits persons or establishments from discriminating against a trans person in the context of employment concerning recruitment or promotion. It also directed all central government departments to include transgender as a third category for recruitment in civil services and other posts.
Indian legislators have to catch up with other countries on this particular issue. That hasn’t stopped some public and private companies from hiring trans persons. Several companies like Infosys and KPMG have introduced policies and hiring plans to include people from marginalised communities. One start-up, called Periferry, trains trans persons and sensitises corporate employees. Last July, Karnataka became the first state to reserve jobs in public employment for trans persons.
Healthcare
The Indian healthcare sector is not something to boast about. The pandemic has laid bare its fault lines and inadequacies. Health continues to be closely tied to socioeconomic status and identity. In this context, the healthcare system consistently excludes LGBTQIA+ persons in India.
Individuals belonging to this community have higher prevalence rates of mental health issues. When it comes to Covid vaccinations, some face barriers due to inadequate photo ID. As Deepak S Nikarthil and Saahil Kejriwal write, almost two-thirds of transgender persons have no access to treatment for STDs.
The NALSA case judgment and the Transgender Person’s (Protection of Rights) Act state the government should provide affordable and accessible healthcare to transgender individuals. As science writer and journalist, Sayantan Datta writes, increased privatisation in healthcare make it expensive and inaccessible to many in the trans community.
In a society where widespread acceptance of the trans community still has a long way to go, rights for transgender persons in India is a story of small victories and a long road ahead with more work to be done.