ISSN: 2456–5474 RNI No.  UPBIL/2016/68367 VOL.- VII , ISSUE- V June  - 2022
Innovation The Research Concept
Human Rights Of Transgender: An Indian Perspective
Paper Id :  16112   Submission Date :  13/06/2022   Acceptance Date :  17/06/2022   Publication Date :  25/06/2022
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Harshita Dadhich
Assistant Professor
College Education
Government PG Law College
Bhilwara,Rajasthan, India
Abstract Discrimination against the LGBTIQ community is based on legislation enacted in accordance with societal culture and practices. This has pinned them down on matters like same-sex marriage, despite the fact that there is no clear definition of gender in the first place. Various transgender rights bills are in the works to give the group a better life. In the future, a bill on same-sex marriage will go a long way toward resolving such issues and providing a new channel for LGBTIQ people. This paper focuses on the most contentious and stigmatised challenges facing the transgender minority in Indian society. The goal of this study is to analyse and suggest legal measures to reduce transgender community-related problems, find ways to sensitise society, knowing that if we help them as other human beings, they will respond positively, suggest progressive measures to provide them with a good environment, medical services, safety, health, and working conditions, and find ways where the laws of the land can incorporate to help these communities reduce problem, and to find ways where the laws of the land can incorporate to help these communities reduce problem.
Keywords Community, Discrimination, Equality, Human Rights, Transgender.
Introduction
Transgender have been a significant group on the subcontinent since time immemorial, with their own historical significance. Gender identity is something that everyone has. We aren't concerned because their gender identity is usually congruent with the sex allocated to them. Gender identification is important in general because of societal expectations and responses based on how one expresses one's identity. According to historical sources, the Hijra group has been a component of the indigenous culture's essential but often overlooked sexual diversity for over 4000 years. Gender identity is normally established at birth, and sex becomes a social and legal fact that one must bear throughout one's life. This is also true for intersex people, whose bodies contain characteristics of both genders' physiology, as well as their genital morphology in some cases. As well as other terminology based on geographic location The debate over transgender people's acceptance and classification in society has been a never-ending battle. In ancient literature, the Hijra figures play prominent parts in famous Hindu classics, such as the Mahabharata and the Ramayana. The Androgynous Ardhanari, is one of various forms of the Hindu god Shiva, which involves him merging with his wife, Parvati. Hijras held major court offices and different aspects of governance throughout India's Mughal era, which lasted from the 16th to the 19th centuries. However, in the 19th century, British officials attempted to destroy the hijra minority through various legislation. These restrictions were later removed after India gained independence. Despite the recognition, the Transgender community is nonetheless considered as a group with major challenges in their daily life as binary gender, and they are frequently subjected to violence and prejudice. Hate crimes and various forms of communal teasing against the community are also a source of tremendous frustration. The society has raised voice for enacting law to protect transgender people, as well as to fix the criminal activities of those who harass transgender people and to imprison those responsible for such inhumane acts, as well as to impose other penalties for offenders.
Aim of study The transgender community has gained legal recognition for their rights after a protracted struggle, but many basic rights, such as the right to marry and adoption, are still denied to them. While specific law protecting transgender rights has been enacted, it has also failed to guarantee these rights. The aim of this paper are- 1. To study in detail the rights of transgender implicit under Part III & Part IV of the Indian Constitution and the statutory provisions enacted by the legislature for safeguarding the interest of this marginalised community. 2. To analyse the judicial pronouncements for the recognition of rights of transgender in various fields of life. 3. To analyse the inherent lacunas in the latest legislation which will extend help to the legislature to amend the existing law accordingly. 4. To give benefit the student community as they can have complete knowledge of the present scenario relating to the sociolegal status of transgender.
Review of Literature

Chaitanya Lakkimsetti in the Book titled “Legalizing Sex: Sexual Minorities, AIDS, and Citizenship in India” has explored the relationship between the HIV/AIDS epidemic and the rights-based struggles of sexual minorities in contemporary India. Sex workers, gay men, and transgender people became visible in the Indian public sphere in the mid-1980s when the rise of HIV/AIDS became a frightening issue. Gregory G. Bollich, Ph. D. and G. G. Bollich in the Book titled “Today’s Transgender Realities: Crossdressing in Context, Vol. 2” has examined in detail the phenomenon of cross-dressing. Beginning with the historical perspective of cross-dressing he analysed the reasons behind cross-dressing as to why people crossdress. He enlists various motivating factors behind the practice of cross-dressing. He tries to bring out the experiences of those who cross-dress. R. Vanita & S. Kidwai in the Book titled “Same-Sex Love in India: Readings in Indian Literature” present a stunning array of writings on same-sex love from over 2000 years of Indian literature. References are quoted from Hindu, Buddhist, Muslim and modern fictional traditions, these writings testify to the presence of same-sex love in various forms since ancient times, without overt persecution. Devdutt Pattanaik in his Article titled “What do Manusmriti and Dharmashastra have to say about homosexuality?” has described that even in ancient scriptures references are found relating to napunsaka which means queer or transgender. Even Manusmriti and Dharmashastra acknowledge all types of sexheterosexual, homosexual or non-vaginal. But they have strict fines and penalties to restrain homosexual or non-vaginal behaviour rather than condemning them on spiritual or moral grounds.

Main Text

Transgender
In every culture, there have always been those who defy gender norms. The word "transgender," which was determined in 1990s. Transgender people are frequently misunderstood by the general public. The phrase "LGBTQIA+" refers to a group of people who spend a major portion of their lives expressing feelings of sex other than that which was assigned at conception. People who believe their biological sex does not accurately reflect their true gender fall into this category. Those who do not identify as LGBT are referred to as "cisgender," which indicates they identify with the gender they were born with.[1]
Some transgender people believe they were born in the incorrect body. As a result, some transgender people elect to have surgery for desired sex. After surgery, they referred to as a transsexual. Someone can be preoperative (in which case she or he is referred to as "no-op") or never undergo an operation. Hormones, for example, increase secondary sex traits such as breast and facial hair. The term "transition" is frequently used to describe the period of time when you return to your original gender. The term "physical transition" might refer to surgical, hormonal, or other body changes. A formal change of title, a request that mates use a specific pronoun, and other notice steps could all be part of the social transition. Lesbians, bisexuals, gays, heterosexuals, and other transgender people may identify as lesbians, bisexuals, gays, or heterosexuals. They link LGBTQIA+ people who have faced prejudice, bias, poverty, dread, and shame to commonality. Aboriginal people, like LGBTQIA+ people, must not hide who they are in order to live safely and happily.
Constitutional Provisions on Transgender
The Preamble of the Indian Constitution demands social, economic, and political equality of status. In essence, the Indian Constitution is sex blind, which means that the fundamental principle of equality is based on a constitutional mandate that an individual's sex does not matter until the constitution requires specific accommodations.[2]
Right to Equality (Article 14)
Within India, the Constitution grants everyone the same legal standing and equal protection under the law. The term "any person" refers to any individual who is not discriminated against based on caste, creed, religion, sex, or any other factor. In India, the terms "any person" encompass transgender people, and they have the same legal standing as cis-gender people. Because of its characteristics, the transgender community cannot be discriminated against the non-applicability of any law within the country or on the basis of any voluntary categorization.[3] The interpretation of the word "person" was enlarged in NALSA vs. Union of India[4], which held that Right to Equality under Article 14 doesnot limit the term "person" and  use of person as male or female exclusively.
Equal Opportunity of Law (Article 15)
The phrase "sex" is the most important term in terms of transgender protection. These civilizations are added in the meaning of the termi "sex," regardless of whether they are classified as masculine or female. Gender and biological traits are independent parts of sex, according to the Indian Apex Court in a landmark ruling.[5] Private parts, genes, and other sexual traits are all genetic features. The term "gender" does not refer to biological-sex, and it is intended to accommodate those who don’t consider themselves to be masculine or female. Articles 15(2) and 16(4) have also been defined as ensuring cultural quality in these societies, such as equality in public employment, by allowing states to build any area they see fit.[6]
Basic Freedom
Article 19 of Indian Constitution provides right to freedom. This provision secures the rights of transgender society. As per Art. 19(1) every citizen has private integrity, thus transgender is protected by Constitution. A certain sex or sexual identity is not required by any of the conditions mentioned as a condition of citizenship acquisition. As a result, a transgender person has the right and responsibility to shield his or her emotions, behaviour, and character from cultural influences. As a fundamental freedom, the state cannot restrict its expression.[7]
Protection against Exploitation
Human trafficking and beggary, for example, have been declared criminal offences that are punishable by law. Because it prohibits all types of discrimination, Article 23 of Constitution of India has wide scope. Slavery and other immoral acts are often accepted in culture. Everyone has right to privacy, which can be attained if reproduction is permitted in order to provide a safe development of a person. Transgender persons are the most vulnerable to exploitation because of their lower socioeconomic status, and they are frequently regarded as forbidden in the community because of prostitution and other illegal activities.[8] The purpose of this paper is to highlights the employee's status remains independent by preventing people from being humiliated.
Educational Rights of Transgender
The term "third gender" is problematic in and of itself: it portrays sexuality as a rung on a ladder, with the LGBT community occupying the bottom rung. It does not improve their actual circumstances, despite the fact that it grants them legal recognition, because they remain a marginalised group in world at large and are not treated equal to other vulnerable group. [9] Society wants determination  of such community from long time but never legislated, is eventually embraced by our country, and the third sex person will be classified as an OBC. They would be given reservations for education and employment as OBCs, according to the Indian Supreme Court. The Supreme Court has ordered that special bathrooms and departments be established to handle their unique medical needs.[10]
Involvement of transgender students in schools is a significant concern. Because there is an inclusion problem with gender pupils, ensuring that transgender education provides equitable chances is extremely tough. It is necessary to create a safe environment for transgender people. Teachers and community workers can play a significant role in inclusion. In many industries, India has a serious shortage of trained workers. Professional education and training for professors and other school personnel is required. [11] In order to prepare for their career, transgender people need receive professional training. The Supreme Court of India released a well praised judgement recognising transgender people's rights and noting that they should value all of the Indian constitution's core freedoms. The NALSA judgment–National Legal Services Authority v. Union of India,[12] also known as the NALSA judgment–provided broad guidance to government authorities on positive intervention, personal security, and other enforcement to be made accessible to LGBTQIA+ people.
Following the decision, the Trans lady went to a local tribunal in her town as a first step in changing her formal documents' sex. The Supreme Court, according to most records, acknowledged that they have the freedom to identify themselves in whichever way they see proper. As a result, it is illegal to refuse to reveal one's identity to authorities based on whether or not they had surgery, as evidenced by a medical certificate. She felt her laugh as she walked away, dissatisfied. Since the NALSA judgement in April 2014, other developments have transpired.[13]
Transgender Right Bills
In recent time, transgender rights movement is growing fast in India. Public support to transgender community justified the rights too. The legislature took some time before passing Bill.
(a)    Rights of Transgender Persons Bill 2014 – On December 10, 2014 this Bill was discussed in Upper House of the Parliament and sanctioned.  Being the first bill in India that enlightens the rights of the transgender people. This is mainly based on section 377 of IPC, educational, employment chances, rehabilitation.
(b)   Transgender Persons (Protection) Rights Bill 2016 – This was the revised Bill which was presented on December 26, 2016.
(c)     Transgender Persons (Protection) Rights Bill 2018 – this Bill has been passed by Lok Sabha but the amendments proposed by opposition were rejected.
(d)   The Transgender Persons (Protectionof Rights) Bill, 2019 – This Bill has been approved by the union Cabinet. It provides the educational, social, economic and cultural empowerment of the transgender community.
Judicial Trend on Rights of Transgender
Indian courts tries to shape Indian legal system, with respect to the transgender people at large. Undoubtedly, there has been a lack of proper legislation towards protecting the human right of transgender. Due to the efforts of individuals and NGOs led to few judgments that became landmarks, which change the lives of the transgender community.
In Naz Foundation v. Government of NCT of Delhi[14] court defended liberty, equality, protection and a hypothetical check on state power. However, in the court’s view the Indian Constitutional law doesn’t authorise the statutory criminal law to be held captive by the popular misconception of who the LGBTs are. In Suresh Kumar Koushal v. Naz Foundation[15] Supreme Court said that Sec 377 does not violate the Constitution. It was left to the competent legislature to contemplate the desirability of deleting Sec 377 IPC.
NALSA v. Union of India[16] is an important case in which court tasked to decide whether people who fail outside the male and female gender binary can be legally recognized as third gender persons. This judgment legally recognized third gender transgender persons for the first time and discussed gender identity at length. The court recognized that third gender persons were entitled to fundamental rights under the Constitution. Further it directed state government to develop mechanism to realize the rights of third gender transgender persons. The judgment in Suresh Kumar Koushal v. Naz Foundation is hereby overruled by the Supreme Court  in Navtej Singh Johar v. Union of India.[17] The court stated that sexual orientation is a natural and biological phenomena, and that discrimination based on it would be a violation of one's fundamental right to freedom of expression. The court stated that public morality cannot be invoked to overthrow a single person's fundamental rights. This situation decriminalised all forms of consensual sex between persons, including homosexual intercourse, reinforcing freedom of LGBT group. It upheld Indian Penal Code Sec 377 as unjustified.[18]
Recently, in Matam Gangabhavani, vs State Of Andhra Pradesh[19] High Court held that although no reservation is provided to transgenders/ transmale/transfemale, but direction was issued by the Hon‟ble Apex Court in National Legal Services Authority v. Union of India and others (referred supra) to both Centre and the State Governments to take steps to treat them as Socially and Educationally backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Therefore, the direction issued by the Hon‟ble Supreme Court is only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens.
In another case[20] Kerela High Courtheld that  every transgender person shall have a right to reside in the household where parent or immediate family members reside; a right not to be excluded from such household or any part thereof; and a right to enjoy and use the facilities of such household in a non-discriminatory manner. Where any parent or a member of his immediate family is unable to take care of a transgender, the competent court shall by an order direct such person to be placed in rehabilitation centre. Education, social security and health of transgender persons.
Thus, there have been number of cases regarding the transgender brought into the limelight which indicates that judiciary contributed in the protection of human rights of the transgender community.
Conclusion In September 2018, the LGBTQIA+ community in India experienced a watershed moment. The Supreme Court threw down Section 377, which allowed adult adults of the same sex to have sexual intercourse. Prior to then, it was illegal. That is why it was crucial for New India to do so. It demonstrates a shift in the society's beliefs and values. This is the first step toward more integrated and tolerant countries. The current government has highlighted the significance of including India's diverse groups and identities, which have been marginalised by the country's previous ruling parties. More importantly, the current administration recognises that society is fast evolving and that no one should be left behind. Transgender people began referring to themselves as "Third Gender" in 2014. The group was formally recognised on September 6, 2018, under Section 377 of the Indian Penal Code. Making a symbolic same-sex marriage is not prohibited under Indian law. A big applause given to Madras High Court which said that transgender will be able to get registered their marriages under the personal law by 2019. The government upheld the Apex Court's decision on Sec 377. Society is expecting from new government, that the said group will see acceptance, tolerance, and finally normalcy. People are aware of and must respect the different community and groups in society because it is a rule of law. As a result, the transgender community's stigma will be reduced. The movies are an excellent source for determining society's mindset. In early films, transgenders were depicted in a comedic and hateful light, however in recent films, many films have depicted the actual anguish of transgenders. These films can be seen as a shift in society's attitude toward transgender people, or as an effective medium for changing the public's perception of this group. Our country will attain prospective approach by acknowledging, protecting and respecting Transgenders. People should not be required to take on available weaponry classifications, according to the researcher. We must, however, be mindful of and appreciate one other's differences. The most dangerous thing that can happen in New India is for people to arrive with inflexible, uneasy mindsets. When things change, as we have seen in our democracy, it is critical that we adapt positively. Change is worthy of growth, as is the ability to accept and embrace change. It all starts with the individual. It starts with a group, then a society, and finally a country.
Suggestions for the future Study India's third gender group requires immediate transformation. Reformation is necessary to evaluate the rights of transgender. India's third gender is properly justifiable and allowed to live. The following are some suggestions for their improvement:
1. The government and society must plan and embrace a transgender-inclusive mentality. Policies, on the other hand, are well-structured but not well-enforced.
2. To guarantee that their difficulties are handled, a focused plan should be implemented.
3. The legal system must be enabled and enlightened in relation to transgender issues.
4. Persons who commit violence against transgender people should face criminal and judicial consequences.
5. Parents who ignore, blame, or forsake their Trans children because of their biological differences should be dealt with harshly.
6. The provision of free legal help to transgender people must be ensured and made easily available.
7. Educational Institution must play a critical role in providing transgender value.
8. It is critical to ensure that social rights are protected.
9. It needs to be able to set up a career planning and advice hotline, as well as professional platform.
10. To start your career as a merchant or entrepreneur, you'll need a generous loan and financial backing.
11. Individual health service strategies must be developed and communicated in all private and public schools and clinics.
12. Awareness initiatives on or for transgenders must be organised at a large scale in society.
13. A thorough sex education programme for learners at the initial stage should be included in school and university curriculam.
References
1. Lakkimsetti, Chaitanya, "Legalizing Sex: Sexual Minorities, AIDS, and Citizenship in India" (NYU Press, 2020). 2. Chettiar. Anitha, "Problems Faced by Hijras (Male to Female Transgenders) in Mumbai with Reference to Their Health and Harassment by the Police" 5 International Journal of Social Science and Humanity 752-759 (2015). 3. Selladurai M, Empowering Transgenders Community through Education, SSRN Electronic Journal (2017). Available at www.ijlmh.com [Last Visited on 02 Aug, 2021] [Internet Source] 4. Pathak. Manoj Kumar, Rai. Srishti & Upadhyay. Madhu "Social, Medical And Human Rights Issues Related To Transgenders In India", 19 Journal of Punjab Academy of Forensic Medicine & Toxicology 5 (2019). Available at www.ijlmh.com [Last Visited on 02 Aug, 2021] [Internet Source]. 5. Gupta. Ashutosh, "Whether Section 377 of IPC Violates the Fundamental Rights", Volume-2 International Journal of Trend in Scientific Research and Development 962- 967 (2018). 6. Goswami. Sribas & Karmakar. Sushweta, "Transgender in India: Identified by Law Discriminated by the Society", 9 European Researcher 109 (2018), https://www.researchgate.net/publication/325742658_Transgender_in_India_Identified _by_Law_Discriminated_by_the_Society. [last visite September 21, 2019]. 7. Hannah Van Borm & StijnBaert, What drives hiring discrimination against transgenders?, 39 International Journal of Manpower (2018) 581-599, https://biblio.ugent.be/publication/8539582/file/8539583.pdf (last visited Sep 9, 2019). 8. Pattanaik. Devdutt, “Did Homosexuality exist in Ancient India”, retrieved from https://devdutt.com/articles/did-homosexuality-exist-in-ancient-india/ (last visited on October 31, 2018). 9. Gregory G. Bolich and G.G. Bolich, Today’s Transgender Realities: Crossdressing in Context (Psych’s Press, Raleigh, North Carolina, Vol. 1, 2008). 10. R.Vanita and S.Kidwai, Same-Sex Love in India: Readings in Indian Literature (Springer International Publishing AG, Switzerland, 2000).
Endnote
[1] Preeti Sharma, Historical Background and Legal Status of Third Gender in Indian Society, 2 International Journal of Research in Education and Science 44 (2012).
[2] Availble at www.ijlmh.com [Last Visited 02 Aug, 2021]
[3] Hannah Van Borm&StijnBaert, What drives hiring discrimination against transgenders?, 39 International Journal of Manpower (2018) 581-599, https://biblio.ugent.be/publication/8539582/file/8539583.pdf (last visited Sep 9, 2019).
[4] National Legal Services v. Union of India &Ors, 5 438 (2014}.
[5] Id.
[6] M Ramaswamy& Arthur Berriedale Keith, The law of the Indian constitution 85 (1938).
[7] Ashutosh Gupta, Whether Section 377 of IPC Violates the Fundamental Rights, Volume-2 International Journal of Trend in Scientific Research and Development 962-967 (2018).
[8] SribasGoswami&SushwetaKarmakar, Transgender in India: Identified by Law Discriminated by the Society, 9 European Researcher 109 (2018), https://www.researchgate.net/publication/325742658_Transgender_ in_India_Identified_by_Law_Discriminated_by_the_Society. [last visited September 21, 2019].
[9] Romi Jain, Education for TheHijras: Transgender Persons of India, 6 Knowledge Cultures 51 (2018).
[10] Selladurai M, Empowering Transgenders Community through Education, SSRN Electronic Journal (2017). Available at www.ijlmh.com [Last Visited on 02 Aug, 2021] [Internet Source]
[11] Id.
[12] Manoj Kumar Pathak, SrishtiRai&MadhuUpadhyay, Social, Medical And Human Rights Issues Related To Transgenders In India, 19 Journal of Punjab Academy of Forensic Medicine & Toxicology 5 (2019). Available at www.ijlmh.com [Last Visited on 02 Aug, 2021] [Internet Source]
[13] Available at www.lexforti.com [Last Visited 05 Aug, 2021]
[14] WP(C) No. 7455/2001, Delhi High Court (Para no. 132)
[15] Civil Appeal no. 10972 of 2013.
[16] Writ petition no. 400 of 2012 with Writ petition no. 604 of 2013.
[17] Writ Petition (Criminal) no. 121 of 2018. The Supreme Court of India.
[18] RatanlalRanchhoddas. et al., Ratanlal&Dhirajlal’s The Indian penal code 1541 (32 ed.).
[19] Writ Petition No.16770 OF 2019 available at https://indiankanoon.org/doc/136560884/on May 24, 2022.
[20] Kabeer C vs State Of Kerala on 17 November, 2021, available at https://indiankanoon.org/doc/90389347/ accesed on 24 May, 2022.