Rights of Transgender : A long way to go


This article has been written by Riya Kaushik from Geeta Institute of Law and has been curated by Yashasvi Kanodia from NMIMS’ Kirit P. Mehta School of Law, Mumbai.

Androgyny is the combination of the Masculine and Feminine characteristics into an ambiguous form. It can be regarded as the biological sexual identity of a person. Androgyny in the context of the Mixed Biological Sex characteristics in a person is referred to as Intersex People. Androgyny can be achieved even by personal grooming and a certain amount of THT treatment.

An individual can be regarded as an Androgyne if he feels to possess the characteristics of both men and women. A person who is Androgyne is free to engage in the tasks assigned to a Masculine or a Feminine character person. They have a balanced identity and are also regarded as a Gender Neutral Person.

Recently, the Supreme Court of United States has also passed a judgement related to the Rights of Transgenders. The US Supreme Court held that the employers cannot fire the employee on the basis of their gender identity or sexual orientation. The transgenders are protected from discrimination.

In actuality, the matter arose in the case of Mr. Tudor, who is a Professor at the South-Eastern Oklahoma State University. Mr. Tudor, after transitioning from male to female, applied for his tenure of job. However, she was fired by the administration for her new gender identity which banned transgenders from service.

The Supreme Court of US arrived to a decision after a period of nine years in this case. The court held that Title VII of the Civil Rights Act extended to Gender Identity. It prohibits the discrimination of employees on the basis of Race, Color, Sex and Nationality. The Act protects the Rights of Transgenders and Gay people. The Ruling involved three cases filed by the employees who claimed to have been fired from their jobs because of their Gender Identity. The President of Human Rights Campaign, Alphonso David quoted it as the “Landmark Victory of LGBTQ.”

The situation of the LGBTQ+ community in India is not very progressive either. They face many legal and social difficulties and are discriminated by the non-LGBTQ+ people. The provisions which discriminate Gay Sex and Transgender Identification have been removed by the Government; however, no legal protection is provided for Anti- Discrimination Laws and Same-Sex Marriage.

The Transgenders have a Constitutional Right to change their gender. Now, the Third Gender is also recognized and prohibition is made on the discrimination based on Sexual Orientation and Gender Identity by state or government bodies. The adoption by single LGBTQ+ people is allowed but not by the same sex couple.

The Transgenders are allowed to change their gender by post-sex reassignment surgery and a legislation related to this has also been passed in 2019. They also have a Constitutional Right to register themselves as Third Gender. There are approximately 4.8 million Transgender People in India. In 2018, The Hon’ble Supreme Court of India has decriminalized Homosexuality and declared the Section 377 of Indian Penal Code unconstitutional. Section 377 was related to the consensual homosexual sex between adults.

A bill was introduced to ensure the overall development and welfare of the Transgender People. The Rights of Transgender Persons Bill, 2014 is a purposed Act of Parliament of India to end the discrimination faced by Transgenders in India. The Bill was passed by the Rajya Sabha on Apr. 24, 2015 and was introduced in the Lok Sabha on Feb. 26, 2016. The Bill was sent to the standing committee which submitted its report in July 2017. A newer version of the Bill was introduced in 2018 and was passed by the both the Houses in 2019 and after the assent of the President, it was notified in the Gazette of India. It came into effect from Jan. 10, 2020 and is known as The Transgender Persons (Protection of Rights) Act, 2019.

However, the Act fails to incorporate the principles which were laid down in the NALSA case such as Right of Transgender Persons to Self-Perceived Gender Identity without undergoing Sex Reassignment surgery and the mandatory reservation in jobs and educational institutions.

A National Council for Transgender Persons should be established to govern the implications of the Transgender Persons (Protection of Rights) Act, 2019. It will monitor the welfare measures taken for the Transgender Protection and Development and will evaluate the impact of these policies and programs. It will ensure the participation of Transgenders in the programs designed for their development and will also ensure the redressal of the grievances of such people among others.

The Supreme Judiciary of US passed a historic judgement and affirmed that no one should be denied or fired from a job on the basis of gender discrimination. There are however, still some aspects where the LGBTQ+ faces discrimination. The Government should enact an Equality Act to improve the situation of the community.

Improving the status of the Transgender community has to be a collective effort of all. The inclusion of the Transgender Community in the workplace will be a great initiative as it will remove the social stigma attached to their identification. It will also improve their economic position. The workforces in the organizations should also be educated about gender neutrality and inclusion of transgender people in the corporate environment. Employees should be given access to the washroom which is appropriate to their identity because in many circumstances, the transgender women are humiliated and are forced to use the male washroom. Organizations should revise their recruitment criteria keeping in mind the transgender people.

Albeit many laws for transgender people exist, their situation has not changed much in the society. They are still humiliated by the society and in many cases, they are even boycotted by their own family and friends. In addition to making laws, education should be provided to all with respect to the third gender and their recognition as the non-LGBTQ+ people. The scenario can be changed only if such actions are taken.

Keyword: Androgyne




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