Trans-genders or as they are commonly referred to as Hijras are a community that has gone through a lot of atrocities in India and even today in this modern day and age they are struggling to find their identity and being respected in the society. According to a census done in 2011, their population is said to be around 4, 88,000[i]. They are considered to be the outcasts and are often excluded from the social structure be it in terms of education or employment opportunities. This community is often mistreated and discriminated by society at large. Although legislation has been passed for their benefit no favorable outcome is reflected even after their enforcement. Transgenders Protection Bill, 2019 is one such legislation that intends for the welfare and protection of the transgender community but undermines their identity. This post will try to discuss this issue.
The Folktale and the recognized past:
Hijras are physiological males who have a feminine gender identity, adopt feminine gender roles, and wear women’s clothing[ii]. A community that finds its roots so deeply embedded into the society that their references can be found in Hindu mythology as well. It is believed that when Lord Ram was leaving for the forest after he was asked to evict the kingdom, he said ‘men and women’ should return to the city, the Hijras didn’t follow as they believed they are not bound by that statement so they stayed. Impressed by their devotion, Lord Ram gave them powers to shower blessings on people on special occasions[iii]. Such a rich heritage and those people are still finding it difficult to find their way into the education system and the market place. In April of 2014, the Supreme Court of India recognized them as the third gender, but things seem to have not changed for them yet.
According to a report by the National Human Rights Commission from 2018, 92% of transgenders are deprived of participation in any economic activity that takes place in the market. The study found that 99% of transgenders have faced social rejections on multiple occasions and that includes their families too, 96% transgenders are denied job opportunities which eventually force them to get involved in stuff like begging and sex work.
In the modern time, the community which was once recognized is discriminated and mistreated by the society at large. The Transgender Protection Act, 2019 which was passed is one such legislation.
The Crisis of Identity and The Transgenders Protection Act, 2019
The Act is implemented to discourage discrimination and protect the interests of the transgender community. It prohibits discrimination in educational institutions, government establishments, and while renting or purchasing property, receiving healthcare and using public services. The Act also provides for the establishment of a National Council for Transgender Person which will address and resolve the problems of the community. Six months of punishment extendable up to two years also imposed for a person who causes physical or mental abuse to a transgender person. The Bill also states for the establishment of the Rehabilitation Centre if the families are unable to take care of them. The same center will also provide healthcare services, including sex reassignment surgery and hormonal therapy[iv]. Through these mentioned measures, the Act tries to alleviate the status of the Transgender community.[v]
While the Act is enacted to provide protection and well-being for the transgender community, it undermines their identity. To avail the benefits of this Act, a person needs to get a certificate recognizing that he is a transgender. This certificate is issued by the District Magistrate and there is no procedure if the certificate is not issued to them. This will lead to procedural issues and will eventually create problems for the community members. The Act states that the community members are free to recognize themselves as per their ‘self-perceived identity’. But, when they have to inform the authorities, who will then recognize their identity cannot be considered as a self-perceived one. The meaning of ‘self-perceived identity’ is problematic here.
The NALSA judgment [vi] recognized that trans-genders have a right to decide on their identity. In the application, the Act does opposite to that. It is against the fundamental rights guaranteed by our constitution. Also, it breaches the privacy of a transgender individual making the community member state their identity just to get a certificate.
Also, by providing separate laws to deal with them, we are separating them more[vii]. Recently, by the Criminal Law Amendment Act, 2019 [viii] the transgender community was also recognized under the ambit of criminal law. Therefore, the general laws related to physical and sexual abuse should apply to transgender victims, not just six months of imprisonment which further diminishes their recognition in the society.
Lastly, the condition of the community members would only turn better if the stigma attached to the community is resolved and they are accepted by society. The current Act provides nothing sort of provision for this. Therefore, the present Act would only derogate their condition rather than improving it and needs further consideration.
Although the government has to look after upliftment of the marginalized community, the provisions of this Act are completely against the interests of the marginalized transgender community. The process of getting a certificate is not exhaustively defined and in the process of tagging them, we are creating a separate group identity which will eventually lead to discrimination. Instead of respecting their identity and giving the community the freedom to embrace their identity, we are stigmatizing them. Following the aspirations of the constitution, we should recognize the community inclusive of the other community members, provide for awareness programs to deal with the stigmatized problem, and resolving the concerns of the community. If these are addressed actively, then only the dignity of the transgender community will be restored. This Act is the first step towards that progress but the destination is yet to be reached.
[ii] The Hijras of India: A marginal community with paradox sexual identity, http://www.indjsp.org/article.asp?issn=09719962;year=2018;volume=34;issue=1;spage=79;epage=85;aulast=Mal#ref8 (last visited Mar. 3, 2020).
[iii] Identity Crisis and denial of basic rights to the transgender community,https://www.careerlauncher.com/blogs/identity-crisis-and-denial-of-basic-rights-to-the-transgender-community/ (last visited Mar. 3, 2020).
[iv] The Transgender Persons (Protection of Rights) Act, 2019
[vi] India’s Transgender Rights Bill disappoints the LGBTQ community, https://qz.com/india/1756897/indias-transgender-rights-bill-disappoints-the-lgbtq-community/ (last visited Mar. 3, 2020).
[vii] Trans Bill 2019: Why India’s transgender community is opposing a Bill which is supposed to protect their rights, https://yourstory.com/socialstory/2019/11/stoptransbill2019-india-transgender-community-rights?utm_pageloadtype=scroll (last visited Mar. 3, 2020).
[viii] The Criminal Law (Amendment) Act, 2019
ABOUT THE AUTHOR(S)
Prateek Singh and Rajat Chawda are second-year law students at the Institute of Law, Nirma University, Ahmedabad.
In Content Picture Credit: UNRCCA