LAW AND THIRD GENDER
“A gender-equal society would be one where the word ‘gender’ does not exist: where everyone can be themselves.”
- Gloria Steinem.
Gender Equality - Whenever a question of Gender Equality comes, we talk about the incentives, programs and schemes made by the Government and provided by the society to promote equality in opportunities for women, to give them equal status to that of the men. Women have the history at their side, they have all the right to demand providing equal status to that of men.
What about the Third Gender? What about the most ignored, most oppressed and most discriminated community of the society? What about the historical injustices that they have suffered? Is it their mistake that they were born that way? It’s always tough to answer all these questions through a single paper, it’s tough to give out solutions to the historical injustices that this community has suffered. Through this blog, this paper tries to analyse the interaction of the law and justice with the Third Gender in our country.
The concept of transgender, hijra and 'napunsaka' is not new, it is historically recognised and mentioned in the Hindu scriptures such as Mahabharata and Ramayana, but the injustices the community suffered, the fight for justice, the fight for equality, the fight for a cause, the fight for recognition by the community was not even recognised in our country. For the first time, in a historical judgment of National Legal Services Authority v. Union of Indiathe Hon’ble Supreme Court of India, the Transgender Community (TG) was recognised legally for the first time in India as Third Gender. Transgender, as the court held includes an umbrella term. The court held that "Fundamental rights such as Article 14(Right to Equality), Article 21(Right to Life and Liberty), etc. Transgender’s have the right to enjoy the same rights and freedoms which the binary genders male and female enjoy.”
TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT,2019 – An analysis.
The fight for recognition was late but was a success, the transgender community was recognised as a third gender, was it enough? No – the legal framework was yet to be done. The first law enacted by the Central Government recognises the Transgender Community and specifically to the community – THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019. As can be seen from the name of the enactment, the act was enacted to protect the rights of the Transgender Community, with the preamble – ‘An Act to provide for the protection of rights of transgender persons and their welfare and matters connected therewith and incidental thereto.’ But is the act in accordance with the principles of the dignity, equality and opportunities that the Hon’ble Court in its historic and landmark judgment gave?
The Act which was supposed to be a lifesaving one for the Transgender Community violates the fundamental rights of the same community. The right to choose sex and the right to sexual orientation is one of the principles recognised by YOGYAKARTA PRINCIPLES which were also a part of many International Conventions. “Human is a Human whether it is a male or a female, it's just a sexual orientation, the transgenders are special people with special sexual orientation but more or less they are humans too. The Rights which are given to males and females should also be given to these people – this is what actual humanitarian view is – this is what gender equality is – this is true empowerment of the humans". The act is now challenged in the Hon'ble Supreme Court and thus the TG community is waiting for the response of the Hon'ble Court. On the face of it, the act is completely against NALSA judgement and thus violative of the fundamental rights of the community. It's high time that our society accepts these people as humans and give them the respect they deserve.
“There's gender in your brain and a gender in your body. For 99 percent of people, those things are in alignment. For transgender people, they're mismatched. That's all it is. It's not complicated, it's not a neurosis. It's a mix-up. It's a birth defect, like a cleft palate.” - Chaz Bono.
As can be seen from the above quote, it's no mistake of the people of the TG community that they were born the way they are, it’s all in the orientation, they did not ask the almighty that they should be born they are. It's mismatched alignment. It has taken ages for our society to understand the same, the transgender community now has got the legal recognition they deserve, they are striving hard for the recognition that they should get from the Indian society. The changing trends are welcoming, but there is a long way to go to make this development a thing that is normal – to accept the people of the TG community as a part of society to be normalized.
To conclude I would like to quote Hon'ble Ms Justice Indu Malhotra, Former Judge Supreme Court of India “History owes an apology to the members of the LGBTQIA community; They deserve to live a life unshackled from the shadow of being 'Unapprehend Felons".
Studying VII Sem B.A.LL. B, @JSS Law College (Autonomous), Mysuru.
About The Author
Research Intern ,
The Stambh Organization, India