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Saturday, June 23, 2018

BRINGING DOWN THE WALL: TRANSGENDER RIGHTS IN INDIA FROM A LEGAL PERSPECTIVE [PART 1]

MADHUR JHAVAR AND HARDIK GAUTAM 
INSTITUTE OF LAW, NIRMA UNIVERSITY, AHMEDABAD (GUJARAT) 
(First Published on Volume 01 Issue 02, July 2016) 
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ABSTRACT 
India is a democratic country giving utmost priority to the rights of people, not differentiating on the basis of their gender while framing laws, giving emphasis to the rights of the suppressed class is wholly a different matter and out of the scope of the paper. Now when we raise a question what genders are to be considered? For answering this sort of question one must know what a transgender is?
Transgender is not a term limited to persons whose genitals are intermixed but it is a blanket term of people whose gender expression, identity or behavior differs from the norms expected from their birth sex. Various transgender identities fall under this category including transgender male, transgender female, male-to-female (MTF) and female to male(FTM). It also includes cross-dressers (those who wear clothes of the other), gender queer people (they feel they belonged to either both genders or neither gender) and transsexuals. In India, Transgenders are commonly known as Hijaras or Kinnars and are observed to be different from the “general class” normative gender roles i.e., they are neither said to be male nor female and this where whole problems start to relate where they are excluded in the society. The manuscript endows a brief understanding about the importance of Transgender’s right in India along with the initiative taken by the Legislature and the stand of Judiciary. This article will also highlight the historical background behind the rise of this community and the duty of the state to protect the right of transgender community being the most vulnerable section of the society. 

INTRODUCTION 
Transgender existence in India can be traced back to more than 4,000 years and is also known for their auspicious role of bringing good fortune and fertility in a basic social unit i.e. family. With the passage of time they have now been socially excluded from the mainstream “the general people” and have been forced to face various atrocities in their daily chores of their life and have been denied basic human rights. ‘Hijra’ is a Persian word translated as eunuch which is used in common parlance for transgender community in India. They are found in every region in the country. 1‘Aravani’ is a term used for male-to-female transgender who undergo genital modification through SRS (Sex Reassignment Surgery) or perform Nirwaan which is a traditional mode of castration. This is a very ritualistic process2Kothi is used for those who adopt a feminine role in same-sex relationships, but do not live in communes as Aravanis.3 Jogtas/ Jogappas found in Maharashtra and Karnataka are male to female transgender who devote themselves to the service of a particular god.4 Now the problem persists is that the society only recognizes two genders fit for the structure of the society i.e., male and female, leaving no space for recognizing the third gender as a respectful part of the society. And thus transgender community faces discriminations as neither their identity is recognized nor are their rights either by the legislature or by judiciary at large. Transgender life is full of inequality, discrimination, lower status in the society which is leading to social exclusion.5 Hijras had a lot of respect in time of the monarch’s rule in India but after independence a feeling of hatred has been developed towards them which have now taken form of hatred and alienation of them from the society. There were no initiatives taken from the side of the government to improve the status of the transgender and their livelihood including the very basic needs for mere existence, respect being one of the most important part of their survival. The repercussions related to these causes were that they subjected or to phrase this right, they were forced to indulge in prostitution due to illiteracy and poverty per se. Due to no provision for education and professional skills the suffering community has no employment opportunities in any field which resulted into adding more vulnerability by way of earning through dancing during the family celebration events like marriages and birth of any child.6 But after the case of National Legal Services Authority vs. Union of India and Ors7there has been certain development on the upfront recognizing the rights of the transgender as equal to the rights of either of the two genders. The substantial question thus now posed before the Hon’ble Supreme Court is that recognizing transgender as a legal third gender is going to empower the transgender in future and not exclude them much far from the society? Another major concern is that, are the transgender going to accept the reforms in their legal status, they now being recognized as backward class category and thus going for the reservation system. State has a very vital role in this regard, as it under an obligation to protect and upheld the right of the citizen irrespective of caste, class, religion, sex, and race etc.8 In this scenario, fundamental rights enshrined in the constitution of India has to be dealt with particularly article 14 i.e. Right to Equality and Article 21 i.e. Right to Life Personal Liberty which also includes a right to a dignified life.9


1 Available at escholarship.org/uc/item/6m5744jx.pdf, last visited on 10/02/2016 at 05:15 P.M.
2 Available at, https://soc384masculinities.wordpress.com/2015/04/24/hijras-indias-historical-transgender/, last visited on 11/02/2016 at 05:15 P.M
3 Supra Note 1 at p.2
4 Ibid
5 Available at https://ed.stanford.edu/sites/default/files/inequalitymatters.pdf, last visited on 12/02/2016 at 03:45 P.M.
6 Supra Note 3 at p.2.
7 AIR 2014 SC 1863
8 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA VOL. I & II (Lexis Nexis Butterworths, 8th ed. 2012 Reprint).
9 Ibid

[CONTINUED IN PART 2]

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