Out and Proud, LGBTQ is an acronym that stands for Lesbian, gay, bisexual, transgender and queer. The transgenders are usually addressed by their chosen gender like she/her/hers for a man turned into a woman and vice versa. Those who do not wish to disclose their genders are addressed as “XE/XEM/XYR”, which is pronounced as “kse, ksem/ksire”. The LGBTQ community includes those individuals whose identity and behaviour do not cling to the stereotypical gender rule.
June is selected as the “pride month” to pay tribute to Stonewall riots, which occurred at the end of June 1969, where rallies take place to educate people about the LGBTQ community. In India, the first pride parade took place in Kolkata on 2nd July 1999. Since then, pride parade is held in more than 21 Indian states at the present. In New Delhi, the pride parade is held on the last Sunday of November. LGBTQ community is in existence since the beginning of mankind and is very much a part of our society and they enjoy all the fundamental rights which our constitution has to offer.
The basic idea of establishing fundamental rights is that every person has a basic right which entitles them to be treated with dignity, honour and equally. Anything that infringes these rights precedes the way for discrimination and violates the law. Section 377 of the IPC was declared unconstitutional as “The sexual orientation of an individual is natural and discrimination on this basis is a violation of freedom of expression” which is mentioned in Article 19(a) of the Constitution of India.
PROBLEMS FACED BY TRANSGENDERS:
The main problems that the transgender community faces are discrimination, unemployment, lack of educational facilities, homelessness, lack of medical facilities.
In 1994, transgenders got the voting right but the task of issuing them voter identity cards got caught up in the male or female question. Several of them were denied cards with the sexual category of their choice.
The other fields where this community feels neglected are the inheritance of property or the adoption of a child. They are often pushed to the periphery as a social outcast. Sometimes running out of all options to feed themselves, they even engage themselves as sex workers for survival.
Social welfare departments provide a variety of social welfare schemes for socially and economically disadvantaged groups. However, so far, no specific schemes are available for Hijras except some rare cases of providing land for Aravanis in Tamil Nadu. Recently, the state government of Andhra Pradesh has ordered the Minority Welfare Department to consider ‘Hijras’ as a minority and develop welfare schemes for them. Stringent procedures, the requirement of address proof, identity proof, and income certificate hinder even the deserving people from making use of available schemes. Also, most transgender communities don’t know much about social welfare schemes available for them.
The Transgender Person (Protection of Rights) Act, 2019 came into force on 5th December 2019 to protect the rights and welfare of transgender persons. This Act lays down a clear distinction between identity-based recognition rights and the medical procedures some transgender persons might want. The interests of transgender people are promoted and they are given employment opportunities with Mahatma Gandhi National Rural Employment Government Act (MGNREGA). Certain welfare policies were also introduced keeping in mind the status of LGBTQ Community in the country such as Census, issuing of the citizenship ID Cards, issuing passports, social-economic development and constitutional safeguards, showing the upliftment of the LGBTQ community.
Dating back to the 1800s, Thomas Macaulay, the drafter of the IPC stated homosexuals as “odious” and “revolting”. Many courts in India gave despicable names to the LGBTQ community and did not accept them the way they were, for a long time. They were rather prosecuted for their acts. LGBTQ community has been a part of the Indian society for centuries now. During the Mughal period, the transgenders were considered trustworthy, loyal and intelligent and played a pivotal role in the politics of building the empire.
During the second half of the 19th century, when the colonial rule was in play, the transgender community was criminalized and their civil rights were also withdrawn by the Britishers. The Europeans, when they came to India, were disgusted by the fact that transgenders here are given so much respect in the royal courts. They were considered as a different tribe and so in 1871, The Criminal Tribes Act came into force whose purpose was to vanquish hereditary criminals. Around 200 tribes were affected by the enforcement of this Act. The Act was repealed in the year 1952, post-independence.
There are various provisions mentioned in The Constitution of India which prevents discrimination on various grounds. Article 14 provides the Right to Equality stating every person has a right to equality irrespective of their nationality.
Article 15 mentions the prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.
Article 19(a) provides freedom of speech and expression to its citizens. It means every citizen has a right to express their views and opinions without any fear.
Article 21 of the Constitution mentions the Right to Life and Personal Liberty. This Article allows every citizen to live the life of his dreams without any intervention from any person.
The judges said that the right to vote, own property, marry and claim a formal identity would be now more meaningfully available to LGBTQ Community. Various provisions of the International Law promote basic human rights to all the people of the world. Article 6 of the Universal Declaration of Human Rights (UDHR) states that everyone has a right to be accepted everywhere as a person. Article 16 of the International Covenant on Civil and Political Rights (ICCPR) states about the right to be recognized as a person before the law, allowing everyone to get recognition irrespective of their gender, nationality, caste, religion.
THE SUPREME COURT JUDGMENT ON TRANSGENDER RIGHTS:
The Court has directed Centre and State Governments to grant legal recognition of gender identity whether they are males, females or transgenders.
- Legal Recognition for the transgenders: In recognizing the third gender category, the Court ruled that fundamental rights are available to the transgenders in the same manner as they are to males and females. Further, non-recognition of the transgenders in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc is discriminatory to the transgenders.
- Legal Recognition for people transitioning within male/female binary: As for how the actual procedure of recognition will happen, the Court merely states that they prefer to follow the psyche of the person and use the ‘Psychological Test’ as opposed to the ‘Biological Test’.
- Public Health and Sanitation: Centre and State Governments have been directed to take proper measures to provide medical care to transgenders in the hospitals and also provide them separate public toilets and other facilities. Further, they have been directed to operate separate HIV/ Sero-surveillance measures for Transgenders.
- Socio-Economic Rights: Centre and State Governments have been asked to provide the community with various social welfare schemes and to treat the community as socio-economically equal. They have also been asked to extend reservation in educational institutions and for public appointments.
- Stigma and Public Awareness: These are the broadest directions – Centre and state governments are asked to take steps to create public awareness so that transgenders will feel that they are also part and parcel of the social life and not be treated as untouchables; take measures to regain their respect and place in society and seriously address the problems such as gender dysphoria, social pressure, suicidal tendencies, and social stigma.
- Challenging Section.377: The judgment contradicts the findings of the Supreme Court in Suresh Kumar Koushal in various ways.
The main points include:
- The judgment notes that Section 377, though associated with specific sexual acts, highlighted certain identities, including transgenders. It also recognizes that sec 377 has been used as an instrument of harassment and physical abuse against transgenders. The judgment only says that this amounts to a misuse of the Section as opposed to what it dictates, thus refusing to meaningfully apply a fundamental rights analysis to it.
- It argues against Koushal’s infamous ‘minuscule minority’ arguments that Transgenders, even though insignificant in numbers, are still human beings and therefore they have every right to enjoy their human rights.
It is time that India realizes that every individual in this country has equal rights and privileges. It would be wrong to judge and discriminate against people who may be different from the stereotype. Though the transgender community was given top position in the building of the empire during Mughal times they faced many problems during the British colonial period. But now to ensure the safety of the LGBTQ Community in the country, the Government of India has taken an opportunity and introduced various welfare policies and schemes keeping in mind the status of LGBTQ communities in the country.