Issues related to Third Gender & LGBTQIA

• According to World Health Organization, Transgender is an umbrella term for people whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth. They are referred to as transsexuals if they desire medical assistance in order to make the transition from one biological sex to another.
• Indian Census never recognized third gender i.e. Transgender while collecting census data. But in 2011, data on Transgender was collected with details related to their employment, literacy and caste.
• As per the 2011 Census, the total population of Transgender is 4.88 lakhs, the highest being in Uttar Pradesh followed by Andhra Pradesh, Maharashtra and Bihar.
• In 2014, the Supreme Court of India, in the case of the National Legal Services Authority versus Union of India, established the foundation for the rights of transgender persons in India by recognising ‘transgender’ as a ‘third gender’ and laying down several measures for prohibition of discrimination against transgender persons and protection of their rights.
• The judgment recommended reservations for transgenders in jobs and educational institutions and their right to declare the self-perceived gender identity without undergoing a sex reassignment surgery.

Problems associated with Transgender persons in India

• Discrimination: Transgender population remains one of the most marginalized groups. Sexuality or gender identity often makes transgender a victim of stigmatization and exclusion by the society
• Ostracization: Transgender individuals are often ostracized by society and sometimes, even their own families view them as burdens and exclude them.
• Poverty: In many cases, this lack of legal protection translates into unemployment for transgender people
• Education: Transgender people are unable to access equal educational opportunities because of harassment, discrimination and even violence. Most transgender children are forced to drop out of schools as Indian schools remain unequipped to handle children with alternative sexual identities
• Health: Transgenders frequently experience discrimination when accessing health care, from disrespect and harassment to violence and outright denial of service. The community remains highly vulnerable to sexually transmitted diseases like HIV AIDS. According to a recent UNAIDS report, the HIV prevalence among transgenders in India is 3.1% (2017).
• Mental health issues include depression and suicidal tendencies, and violence-related stress
• Employment: They are economically marginalised and forced into professions like prostitution and begging for livelihood or resorting to exploitative entertainment industry.
• Access to Public spaces and shelter: Transgenders face direct discrimination and denial while accessing houses or apartments. Further, they also face problems due to lack of provision of gender neutral/separate transgender toilets and discrimination in accessing public toilets
• Civil Status: Possessing accurate and consistent identification documents has always been challenging for the transgender community.
• Gender-based violence: Transgenders are often subjected to sexual abuse, rape and exploitation.

Reasons for negative attitude towards transgender:

• Gender and sexuality have always been varied and rooted in traditions of pluralism in India and other South Asian cultures.
• Transgender population remains one of the most marginalized groups. Sexuality or gender identity often makes transgender a victim of stigmatization and exclusion by the society.
• For instance, if you ask people in India what they know about trans people, most of them only answer that they have seen them begging near traffic signals and inside trains. Some start complaining about their ‘bad’ behavior.
• Most transgenders belong to the poorer castes and classes, and economic marginalization structures their experiences very heavily.
• Transgenders occupy a position in society that is simultaneously revered and stigmatized.
• They are seen as having the power to curse or bless people, due to their spiritual heritage, and they are also seen as having a huge potential for embarrassment because they threaten to expose themselves physically if they are not paid for attending events such as weddings
• Being The Parent of a Transgender Child Is Shameful: This is one of the most common prejudices present in society because of which people disown their own children to suffer alone in this world
• Thus, these youths are “shunned by their own families (especially by male relatives)”, and experience familial physical violence.
• Many children who adopt a transgender identity are forced to drop out from school because they are unable to survive the rigid gender norms imposed on them by their school authorities.
• In workspaces, “trans-men especially are often stereotyped by their colleagues because of their visible “masculine” appearance and/or gender assertion/s. Hence, they easily become soft targets of violence and/or violation”.
• They are economically marginalized and forced into professions like prostitution and begging for livelihood or resorting to exploitative entertainment industry.
• Gender-based violence: Transgenders are often subjected to sexual abuse, rape and exploitation
• Lastly, it is assumed that being Transgender Is a Choice and a Transgender Person Changes Sex to Date People of the Opposite Gender. No, it has already been proved in significant researches that being transgender is not a choice. It’s because of ignorance or lack of awareness regarding trans people in society that some people still think that being transgender is a choice.

Legal measures available to tackle these issues

Transgender Persons Act, 2019:

• The Act states that a transgender person shall have the right to self-perceived gender identity. A certificate of identity can be obtained at the District Magistrate’s office and a revised certificate is to be obtained if sex is changed.
• The Act has a provision that provides transgender the right of residence with parents and immediate family members.
• The Act prohibits discrimination against a transgender person in various sectors such as education, employment, and healthcare etc.
• It states that the offences against transgender persons will attract imprisonment between six months and two years, in addition to a fine.
• It calls for establishing a National Council for Transgender persons (NCT).
  • Functions of the National Council for Transgender Persons:
    • Advising the Central government on the formulation of policies, programmes, legislation and projects with respect to transgender persons.
    • Monitoring and evaluating the impact of policies and programmes designed for achieving equality and full participation of transgender persons.
    • Reviewing and coordinating the activities of all the departments.
    • Redressing grievances of transgender persons.
    • Performing such other functions as prescribed by the Centre.

Transgender Persons (Protection of Rights) Rules, 2020

• The Central Government made the rules under the powers conferred by the Transgender Persons (Protection of Rights) Act, 2019.
• The Act came into effect on 10th January 2020, which is the first concrete step towards ensuring the welfare of transgender persons.
• The rules seek to recognise the identity of transgenders and prohibit discrimination in the fields of education, employment, healthcare, holding or disposing of property, holding public or private office and access to and use of public services and benefits.
• Definitions of ‘person with intersex variation’ and ‘transgender person’ have been provided to include trans men and trans women (whether or not such person has undergone sex reassignment surgery, hormone or other therapy).
• It further reinforces a transgender person’s right to movement, right to reside, rent, or otherwise occupy the property.
• It provides for a right to self-perceived gender identity and casts an obligation on the district magistrate to issue a ‘certificate of identity as a transgender person, without the requirement of any medical or physical examination.
• If the transgender person undergoes medical intervention to change sex either as a male or female and requires a revised identity certificate then they would need to apply to the district magistrate along with a certificate issued by the medical superintendent or chief medical officer of the concerned hospital.
• Every establishment has been mandated to formulate an equal opportunity policy for transgender persons with certain specific information as prescribed under the law.
• This will help create inclusive establishments like inclusive education, etc.
• The process of inclusion also requires the creation of infrastructure facilities like separate wards in hospitals and washrooms (unisex toilets).
• National Council for Transgender Persons: Constitution of the NCT advises the government on the formulation and monitoring of policies and redress of the grievances of transgender persons.
• Offences, like indulging transgender persons in forced or bonded labour or denial of access to public places or physical, emotional or sexual abuse.
• Other offences committed under the provisions of the Transgender Persons Act, are punishable with imprisonment for a term of at least six months, extending up to two years along with a fine.

Welfare measures

National Portal for Transgender Persons:

• It has been launched in consonance with the Transgender Persons (Protection of Rights) Rules, 2020.
• It would help transgenders in digitally applying for a certificate and identity cardfrom anywhere in the country, thus preventing any physical interaction with officials.
• It willhelp them track the status of application, rejection, grievance redressal, etc. which will ensure transparency in the process.
• The issuing authorities are also understrict timelines to process the applications and issue certificates and I-cards without any necessary delays.

National Council for Transgender Persons:

• The Ministry of Social Justice and Empowerment constituted the National Council for Transgender Persons, a requirement under the Transgender Persons (Protection of Rights) Act, 2019.
• The National Council for Transgender Persons will consist of:
  • Union Minister for Social Justice (Chairperson)
  • Minister of State for Social Justice (Vice-Chairperson)
  • Secretary of the Ministry of Social Justice
  • One representative from ministries including Health, Home Affairs, and Human Resources Development.
  • Other members include representatives of the NITI Aayog and the National Human Rights Commission. State governments will also be represented. The Council will also consist of five members from the transgender community and five experts from non-governmental organizations.

Garima Greh:

• Ministry of Social Justice and Empowerment is formulating a scheme for the welfare of Transgender persons wherein setting up of shelter homes for destitute and needy Transgender Persons is included as one of the components.
• It has been opened in Vadodara, Gujaratand will be run in association with the Lakshya Trust, a community-based organisation entirely run by the transgenders.
• The Scheme of ‘Shelter Home for Transgender Persons’includes shelter facility, food, clothing, recreational facilities, skill development opportunities, yoga, physical fitness, library facilities, legal support, technical advise for gender transition and surgeries, capacity building of trans-friendly organizations, employment, etc.
• The scheme will rehabilitate a minimum of 25 transgender personsin each homes identified by the Ministry.

Allowance for Transgender persons

• The Ministry of Social Justice & Empowerment is the nodal ministry for Transgender Welfare has decided to provide a subsistence allowance of Rs.1500 to each Transgender person as immediate support to meet their basic requirements.
• This financial assistance will help the Transgender community to meet their day-to-day needs. NGOs and Community-based Organisations(CBOs) working for Transgender Persons have been asked to spread awareness about this step.
• The Ministry provided similar financial assistance and ration kits to Transgender persons during lockdown last year too. A total amount of 98.50 lakh rupees was incurred which benefitted nearly 7000 Transgender Persons across the country.

Counselling Services Helpline – 8882133897

• As people facing mental health problems do not feel comfortable about seeking help due to the stigma around it, a free helpline for distressed Transgender Persons owing to the current pandemic for psychological support and mental health care has also been announced by the Ministry of Social Justice and Empowerment. Any Transgender Person can connect with experts on the Helpline Number 8882133897.
• This helpline will be functional from Monday to Saturday between 11 AM to 1 PM and 3 PM to 5 PM.
• On this helpline, counselling services will be provided by professional Psychologists for their mental health.

Vaccination of transgenders

• A letter has also been written by the Ministry to the Principal Secretaries of all states to ensure that there is no discrimination against Transgender persons in existing Covid /vaccination centres.
• They have also been requested to conduct awareness drives especially reaching out to the Transgender community in different vernaculars to ensure they are informed and aware of the vaccination process.
• A request has also been made to the states to organize separate mobile vaccination centres or booths for vaccination of Transgender persons such as those taken up in the states of Haryana & Assam.

SMILE scheme for Transgender persons

• The Government has approved a comprehensive scheme named “Support for Marginalised Individuals for Livelihood and Enterprise (SMILE)” which includes a sub-scheme for Comprehensive Rehabilitation for Welfare of Transgender Persons.
• The Support for Marginalised Individuals for Livelihood and Enterprise (SMILE) scheme focuses on rehabilitation, provision of medical facilities and intervention, counselling, education, skill development, and economic linkages to transgender persons.

State laws to protect the transgender population:

• Odisha -‘Sweekruti’ to secure the rights of transgender persons and ensure equitable justice. Skill up-gradation, legal aid, health care provision.
• Kerala: Transgender policy in 2015, Schools, Justice board for welfare of transgenders, Fully Transgender run metro station, G-Taxis: entirely owned and run by transgenders, free sex-reassignment surgeries.
• Tamil Nadu: Transgender welfare policy, free surgeries, the first state to form a Transgender board with members from the community.
• Chandigarh: Transgender board comprising members from all departments viz., police, health, social welfare, education and the law department.

Way forward

• A multi-prolonged approach with focus on public awareness campaigns is needed to eliminate the social stigma associated with the transgender community.
• Large scale sensitization needs to happen starting from the school level to accept the transgender community integral component of societal life.
• Legal and the law enforcement systems need to be empowered and sensitized on the issues of Transgender community.
• Stringent criminal and disciplinary action must be taken against the people who commits violence against Transgender.
• The establishment of National Council for Transgender Persons which seeks to increase awareness and inculcate sense of respect and acceptance for transgender community, is a welcome step.
• However, only with the effective functioning of the council whether it will able to identify the issues faced by the transgender community and accordingly advice the government.
• Apart from policies and regulations, there is also a need for an inclusive approach, sensitising legal and law enforcement systems in particular towards the issues of transgender community.
• The negative attitudes held by people can help us understand the barriers faced by them in gaining social acceptance.
• Future awareness programmes should focus on removing these barriers.
• Better understanding of the problems and challenges faced by transgender will help in bringing about the changes in policies and give them their due rights.

LGBTQIA

• It seems magical how India is making an incredible journey of maintaining the traditions and culture in its roadmap of development. The diversity here has always been an international attraction. But when it comes to accepting different sexualities, there is still a huge taboo around this subject.
• LGBTIQ stands for Lesbian, Gay, Bisexual, Transgender, Inter-sex and Queer.
• LGBTIQ+ : The plus sign represents people with diverse SOGIESC who identify using other terms. In some contexts, LGB, LGBT or LGBTI are used to refer to particular populations.
  • SOGIESC stands for sexual orientation, gender identity, gender expression and sex characteristics.
• They are the people who don’t identify with cisgender heterosexual “ideals”. In India, the LGBTQIA+ community also includes a specific social group, a distinct community: the Hijras. They are culturally defined either as “neither men, nor women”, or as men who behave like a woman. At present they are referred to as the Third Gender.
• It has been 75 years since our country became independent, still, the LGBTQIA+ group is fighting for their societal independence and basic rights. Indian Supreme Court, on 6th September 2018, decriminalised section 377[1], which titled homosexual relations as “unnatural offences”. But when we look around in the present scenario, there is still much work to be done.

LGBTQAI+ History

• Ever since our nature created the men and women and their association, it created people with different gender preferences too, who, according to our society, are the unnatural beings. Foucault, a French historian, affirmed that modern categorisation of the sexes was initiated in nineteenth-century Europe and until then there was no such concept (Foucault-1990).
• Modern Indian historians have confronted these thoughts of society and stated several instances where homosexuality is proved as a part of society and are considered precisely natural. Though it is not mentioned anywhere that these people were excluded from society, rather they were acknowledged to be born with divine insights. In modern times too, many people in Indian society who are merely procreative and heterosexual, believe that the blessings of Kinnars provide protection to their family and that their curse can destroy their lives.
• In the sacred text, Bhagwada Purana, it is mentioned that Lord Shiva also saw Vishnu as Mohini and fell for him and their unification resulted in the birth of Lord Ayyappa. The renowned characters of Shikhandini and Brihannala are the most respected transgender characters of Mahabharat. In Valmiki Ramayana, the birth of king Bhagirath was the result of the union of his two mothers and widows of king Dileep, by the blessings of Lord Shiva.
• In the medieval period, according to Amir Khusrau, the real invader of South India Allauddin Khilji, and his slave Malik Kafur was in a homosexual relationship. He was the most intelligent and faithful slave of Allauddin Khilji.
• The period of the nineteenth century was the period of evolution of homosexuals. With the rise of the British Empire, thoughts of Indian people also changed accordingly and hence, the laws became anti-sodomy and homosexual activities became illegal consecutively.
• The problems were not sorted for LGBTQ+ people, even after the independence. In 1994, at Delhi’s Tihar Jail, there was a major spike in the number of cases of HIV/AIDs, but the police did not allow them to wear condoms and the reason was an allowance for the illegal acts of physical intimacy between the same-sex adults. As a consequence, several PILs were filed against the same.

Timeline of the LGBTQIA+ Movement in India

During British rule in 1860, homosexual intercourse was considered unnatural and was declared a criminal offence under Chapter 16, Section 377 of the Indian Penal Code (IPC).

• After independence, on November 26, 1949, the Right to Equality was implemented under Article 14 but homosexuality still remained a criminal offence.
• Decades later, on August 11, 1992, the first known protest for gay rights was held.
• In 1999, Kolkata hosted India’s first Gay Pride Parade. The parade, with only 15 attendees, was named Calcutta Rainbow Pride.
• In 2009, a landmark Delhi High Court decision in the Naz Foundation v. Govt. of NCT of Delhi case held that treating consensual homosexual consummation between adults as a crime is a violation of fundamental rights protected by India’s Constitution.
• In the Suresh Kumar Koushal and another v. NAZ Foundation and others case in 2013, the Supreme Court overturned the Delhi High Court Naz Foundation v. Govt. of NCT of Delhi case and reinstated Section 377 of the Indian Penal Code.
• In late 2015, MP Shashi Tharoor introduced a bill to decriminalise homosexuality but it was rejected by the Lok Sabha.
• In August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttuswamy judgement. This gave renewed hope to LGBT activists.
• On September 6, 2018, the Supreme Court ruled unanimously that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex“.

The battle against Section 377 has ended but the bigger battle for equal rights for the LGBT community is still ongoing.

Judgements Contributing to LGBTQIA+ Rights

Naz Foundation vs. Government of NCT, Delhi

• The case was filed by an NGO based in Delhi called Naz Foundation, which works on the issue of HIV/AIDS. They filed a writ petition arguing that Section 377 violated the fundamental rights guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. It interferes with equal treatment as well as the right to Life and Liberty. They submitted that the right to non-discrimination on the ground of sex in Article 15 should not be read restrictively but should include “sexual orientation”.
• The Landmark judgment given by Delhi High Court in 2009 stated that Section 377 violates Articles 14, 15, and 21. The court concluded that Section 377 does not distinguish between public and private acts, or between consensual and non-consensual acts. The judgment was restricted to adults when Section 377 also applied to minors. Section 377 had permitted the harassment of LGBT people in law.

Suresh Kumar Koushal vs. Naz foundation

• In this case, the judgment of the High Court in the Naz Foundation case was challenged in the Supreme Court. The appellant argued that Section 377 is gender-neutral and includes the acts of sexual intercourse which are committed voluntarily irrespective of gender. It does not violate the Right to Privacy under Article 21, and the right to privacy does not include the right to determine any offence under Section 377. While the respondent argued that Section 377 targets the LGBT community through their sexual orientation. Sexual rights are guaranteed under Article 21. So, Section 377 deprives them of moral citizenship. Articles 14 and 21 are interlinked with each other.
• The two-judge bench of the Supreme Court overturned the decision of the Naz Foundation case and declared the decision “legally unsustainable”. The Court held Section 377 of IPC legal and re-criminalized homosexuality, i.e., sexual intercourse against the order of nature.

National Legal Services Authority vs, Union of India

• It was decided by a two-judge bench, in July 2014, declared transgenders as the ‘Third Gender’ and affirmed the fundamental rights guaranteed to them. They were also granted reservations in admissions to educational institutions and jobs.

Navtej Singh Johar v, Union of India

• On 6th September 2018, a five-judge bench of the Supreme Court of India held Section 377 to be unconstitutional, in the landmark judgment. The decision overruled the Suresh Koushal case and relied on the case of K.S. Puttaswamy vs. Union of India had declared the Right to Privacy a part of the Right to Life and Personal Liberty guaranteed under Article 21 of the Constitution.

Problems faced by LGBTQ due to discrimination

• Far away from gay pride parades, meet-ups and heated discussions on Twitter, families in rural India have their own ways of dealing with LGBT individuals.
• In some parts, secret honour killings are planned so that the only way for a young gay man to survive is to run away in the cover of the night to some city, with no money or social support.
• Hate crimes against LGBTQ individuals are still shockingly prevalent across the country.
• Village medics and babas often prescribe rape to cure lesbians of homosexuality. Refusal to marry brings more physical abuse. Stories of family acceptance that one sees on TV and other media are more of an urban phenomenon.
• A recent study found that one of the major factors that results in the stigmatization of LGBT people is parental reaction towards homosexuality. The study goes on to conclude that most LGBT people are acceptable to family only if they agree to behave like heterosexuals.
• LGBTQ individuals were sent to psychiatric wards when they came out to their families.
• Families that accept their identities put many restrictions in the way they choose to dress and interact with their partners.
• In the absence of family support, online groups and social media have offered accessible alternatives to form a community outside of family. Platforms like Gaysi and Gaylaxy, and publishers like Queer Ink have helped carve out spaces for LGBT people to interact, share and collaborate.

Where India Presently Stands

• While the constitutions of Mexico, New Zealand, Portugal, South Africa and Sweden provide protections based on sexual orientation, India still lacks a basic law that recognises the protection of rights of people belonging to the LGBTQIA+ community or criminalizes any harassment or discrimination against them.
• Besides allowing same-sex marriages, adoption and surrogacy, countries such as Bolivia, Ecuador, Fiji, Malta and the UK have gone steps ahead and enshrined the right to equality for citizens on the basis of sexual orientation and gender identity in their constitutions. India, however, has no legislation that would clarify the rights of people from the LGBTQ community with respect to marriage, adoption, surrogacy and health.
• A careful observation of the politico-legal landscape of progressive and developed countries, reveals that India still has a long way to go in ensuring the right to equality and the right to life and personal liberty of this community. Indian society lacks the education and awareness to develop a mindset of acceptance towards the non-cis-gendered people. The lack of adequate legislation and anti-discrimination laws has prevented any progress from the 2018 Navtej Singh Johar judgment of the Supreme Court.

Way forward

• The Supreme Court decriminalized section 377. Now the next step should be to make the society LGBTQIA+ community friendly and deter any form of discrimination or cruelty against them. This can be achieved by incorporating various practices like introducing sex education in schools.
• Though, theoretically, most educated citizens support alternative sexualities and gender identities, when it comes to day-to-day behaviour, there is an urgent need to change the ground reality.
• Bridging the gap between academic knowledge and everyday experience means we need people to question stereotypes.
• Say, for example, the rampant telling of homophobic jokes. We need people to pause and ask what’s so funny about such an oppressive take.
• We need our allies to point out that such behaviour costs us our freedom and dignity. Creating a critical mass of such an aware group is an important part of activism.
• Yogyakarta Principles, which recognise freedom of sexual orientation and gender identity as part of Human Rights should be adopted in true letter and spirit. They were outlined in 2006 in Yogyakarta, Indonesia by a distinguished group of International Human Right experts.
• Once educational institutions become allies of LGBTQ, throughout the country, future generations will have a better chance of living up to the ideals of equality. Each time a school or college decides to participate in LGBT activism, we come closer to bridging the gap between reality and a truly inclusive society.
• India is known as a land which inhabits diverse cultures, religions, and languages then why is there a prejudice against this minor community of people with different genders?
• It’s the 21st century, now is the time that we, as people of this nation, make collective efforts to make the people of the LGBTQIA+ community feel empowered, protected, accepted and loved. With new laws safeguarding the rights and upholding the interests of the people of this small yet significant community, a major change can be brought about in their lives.