In June 2021, the police department of Odisha issued a public notification seeking applications for the post of constables & sub-inspectors. The praiseworthy aspect of this notification is that it marks the beginning of a new dawn for the transgender community, as they are now allowed to apply for the designated posts. Undoubtedly, this comes as a watershed moment for the community, which has been denied the status of “humans” for ages, simply because they did not fit into the two-gender category prevalent in our society. The community was so snubbed that they were never counted in the Indian Census prior to 2011. Notwithstanding that they hold a prominent position in the ancient as well as modern archives; they were conjectured as born-criminals, owing to a draconian law, conceived during the 19th century in colonial India.
The Black’s law dictionary defines a transgender person as a person who does not unambiguously self-identify as male or female but has characteristics of both. However, the Supreme Court of India expanded this definition by holding that it also includes those people who do not identify themselves as either of the two genders. Additionally, those who intend to undergo Sex Re-assignment Surgery also come under this sphere. It is painful to note that transgenders have been at the receiving end of all the oppression and hate. They are called by various names, such as Hijras, Eunuchs, Aravanis, Kinnars, etc.
Since the Apex court has made it crystal clear that gays, lesbians and bisexuals do not come under the purview of the term ‘transgender’, the scope of this piece would focus on infringement of rights vis-à-vis people of different sexual identity rather than those of different sexual orientation.
Evolution of Transgender Rights
In the International Arena
The United Nations in June 2011 augmented the application and extension of human rights conferred on all men and women to an equal degree, including the transgender community as well. With this approach, the UN intends to annihilate the discrimination faced by this community on a daily basis. Article 1, 2, 6, & 11 of the International Covenant on Economic, Social, and Cultural Rights, 1966 read with Article 1, 2, 6, 16 & 26 of the International Covenant on Civil and Political Rights, 1966, ensure a right to a dignified life with equality in opportunity and freedom from the clutches of discrimination. At one point in time, these rights were considered as a pipe dream for the people of this community. They were apprehended in countries like Malaysia, Indonesia, Nigeria, Kuwait, the United Arab Emirates, and Saudi Arabia for mere cross – dressing, which went against the well – established gender – identity purported by society.
The rapid evolution of medical science has clinically corroborated that trans-sexuality is not a “mental disorder” but a natural identity. Following this, many countries came out of their pigeon holes and mulled over safeguarding the human rights of this community. Countries like the United Kingdom, Australia, Hungary, the United States of America, Argentina and Germany conceded the right to gender identity and legislated on the same to check the unwarranted discrimination meted out to this community.
The Yogyakarta Principles are the instruments of instructions which adjure the states to effectuate the rights of people with different sexual identities. These principles have been strongly advocated by numerous UN bodies and human rights organizations. Basic human rights are the bedrock upon which the building of human development stands erect. There could be no procurement of aspirations until and unless all the people on this globe are granted a full and fair opportunity to wield their capabilities.
Constitutional courts throughout the globe have led the crusade and put their hand on the sickle to plough the human rights of their citizens. This could be witnessed in the celebrated cases of City of Chicago vs Wilson and Doe vs Yunits, where the respective US Courts have upheld the right of cross - dressing. Asia – Pacific nations like Pakistan and Nepal have also acknowledged the right to gender identity in the cases of Dr. Mohammad Aslam Khaki vs SSP (Operation) Rawalpindi and Sunil Babu Pant vs Nepal Government, respectively. Amidst all this, the courts expounded various articles of the Universal Declaration on Human Rights, 1948, and the International Covenant on Civil and Political Rights, 1966, and enunciated that contravention of basic rights of the community would transgress the ‘right to life’ deeply ingrained in these international conventions.
On the Indian Turf
The landmark verdict of the National Legal Services Authority vs Union of India was a massive juncture for transgender rights in India. In this case, the Apex Court accepted the coon’s age insistence on accrediting them as ‘third – gender’. Recognizing this, the Court opined that sexual identity is one of the most indispensable postulates of the fundamental rights embodied in our transformative Constitution. Any discrimination against them, in whatsoever manner, would be a disobedience to the sacred mandates of Articles 14, 15, 16, 19 & 21 of the Constitution. In this procedure, the court turned away from the Biological Test used to determine the gender of a person and walked along with the Psychological Test. Furthermore, the court also directed the Union to ponder upon granting reservations to this community, with the sole intent of ameliorating the social exclusion and marginalization experienced by them.
Following this, the central government enacted ‘The Transgender Persons (Protection of Rights) Act, 2019’. This was viewed as a mere formality because the transgender community had been crestfallen with several provisions of this Act and petitioned the same in the Supreme Court, as unconstitutional. The Central Government failed to notify the reservations for the community, but has dictated its departments to incorporate transgenders as a separate category for recruitment. Various state governments, like Karnataka, Tamil Nadu, Rajasthan, and Chhattisgarh, have made ambitious attempts to increase their level of participation in the mainstream.
The community finds itself under the umbrella of “disadvantage groups” under the Right to Education Act, 2009 and are eligible for a 25% reservation in primary education. Thanks to the dearth of sensitization in society, these children, on no account, attain their elemental education. As a consequence, they are bound to perform activities like begging, prostitution, and dancing to earn for their subsistence.
Transgenders’ Rights: Significance
The term “life” was beautifully articulated by Justice Field in his bold dissent in Munn v. Illinois, where he remarked that “Life is not merely an animal existence, and its protection extends against the deprivation of all limits and liberties by which a life is fully enjoyed.” In the absence of dignity and livelihood, a person is worse than an animal. Centuries of humiliation, oppression, and agony faced by this community cast an allegiance upon us to elevate their status, in order to bring them on par with civilized society.
Transphobia is so lingering in society that India communiqués for 92% of transgenders have been stripped of their economic interests on account of their different sexual identity. They are left with no family pillar because of a fatally flawed prejudice that they have an evil soul. This culminated in a rapid upsurge in sexually transmitted diseases and other fatal diseases in India, as this community is constrained to being a part of the sex-trade and other anomalous activities. A hefty proportion of global GDP is forfeited every year in the wake of this ignorance. A window to exert brains would undoubtedly recoup the dissipation and take the world to a new pinnacle.
Transgender in Acceptance: Roadway
As a first move, there is a requisite to inculcate people that transgenders are one of them. Since it is not something which can be acquired in a day, special schools must be established for them in order to implement their fundamental right to education guaranteed by Articles 21 and 21-A of the Constitution. The grant of reservation is a sine qua non for ensuring their upliftment and representation in various sectors. The dire need of the hour is to ensure their “increased participation” in the smooth functioning of a deliberative democracy.
The rule of law, being the heart and soul of a democracy, is also viewed as one of the canons of human society. It doesn’t embrace only social order but also social justice that endeavours to preserve of sacrosanct human rights. It directs that each and every individual must be protected from the rigours of oppression and injustice.
Sexuality is not limited to something which relates only to chromosomes. It also associates itself with the deep-rooted psychology of an individual. Having intermixed sexual organs should not be viewed as a crime which results in large scale ostracization of this community. Personal autonomy and self-determination must yield to all the personals, who proffer to live something which can be actually called a life.
This progressive step taken by Odisha may be considered as a small step, but it has the enormous potential to cast pan-world ramifications. This decision will act as a catalyst in bolstering the morale of the community, which continues to strive hard to get access to basic rudimentary rights.
This article has been written by Utkarsh Shubham. Utkarsh is a third year B.A. LL.B. (Hons.) student at Faculty of Law, University of Allahabad. He has keen interest in Constitutional as well as Human Rights Law. His Linkedin profile may be accessed here