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STUDY OF HUMAN RIGHTS OF TRANSGENDER AS A THIRD GENDER

ABSTRACT

Gender discrimination and violence are widespread in India. One important issue is discrimination and violence towards transgender people. A transgender person is someone whose gender identity differs from their natal sex. Their gender conduct or identification do not correspond to their biological sex since birth. In comparison to other genders, they have been the most marginalized, forgotten, and deprived sectors of Indian society, and they experience prejudice and violence. The Transgender Community was overjoyed and content when the momentous NALSA decision was issued. This blog will look at the numerous sorts of prejudice that third gender people suffer. The report would also examine transgenderism in the current context, stressing the changes brought about by the decision. The essay will also look at numerous government legislations and programmes aimed at uplifting the third gender.


KEYWORDS: Human Rights, Violence, Gender Identity, Transgender rights, Constitution


INTRODUCTION

The Hijaras or Kinnars have a documented cultural heritage dating back thousands of years in Ancient India. Their mentions can be found in Hindu classics such as the Mahabharata and the Ramayana. One of the numerous incarnations of shiva is him uniting with his wife as Parvati to become Ardhanari, a community symbol. This community was frequently depicted in art and paintings, such as sculptures in Sanchi, Ajanta, and Amaravati. Our hearts are held hostage by the steady rise in the number of acts of violence and discrimination against minorities in the world's second largest democratic country. Gender-based violence against transgender people was reported in the media. Because transgender people do not fit into traditional gender classifications, violence against them is frequently a manifestation of stigma and discrimination. A transgender person is someone whose gender identity differs from their natal sex. Their gender conduct or identification do not correspond to their biological sex since birth. It is worth noting that, unlike other social standards and rules, human behaviour towards transgender people has deteriorated.


TRANSGENDER RIGHTS

Transgender (T.G) is used as an umbrella term to cover a wide range of identities and expressions of persons who are not their biological sex, rather than only transgender people. The umbrella definition categorises four sorts of persons:

(1) People whose gender identity, expression, or behaviour does not correspond to their biological sex.

(2) Transgender people may also attach identity to the sex given to them at birth. These are those folks who do not identity as either male or female generally described as ‘Hijras /Eunuchs’. They are neither men nor women due to their anatomy or looks, and they lack the female reproductive system. They are classified as 'third-gender' because to their inability to reproduce. There are emasculated males (castrated, nirvana), non-emasculated men, and intersected people (hermaphrodites) among Hijras[1].

(3) A transgender person is someone who plans to or has had sex reassignment surgery (SRS) to align their biological sex with their gender. They are referred to as "transsexuals."


MARRIAGE LEGALITY

Corbett v. Corbett was the first case to address sex change in marriage. In this case, the Court determined that, despite the gender change, the respondent was still a male and therefore a marriage between males was void. Furthermore, the premise established in the preceding case was utilised in the case of R v. Tan7, where it was determined that even after undergoing a sex change, a male remains a man under the law. After further study, it is discovered that neither the Hindu Marriage Act nor the Special Marriage Act cover transsexual people. Eunuchs are not protected by the National Commission for Women because they do not belong to the fairer sex[2].

Section 2(c) of the National Commission on Minorities, which defines minority populations as Muslims, Christians, Sikhs, and Buddhists, excludes transgender people as well. Surprisingly, several articles in the international legal order are silent on the status of transgender people.


LEGAL RECOGNITION OF THIRD GENDER RIGHTS

Transgender people could finally wear the legal costume of a separate identity on April 15th, 2014, after years of discrimination and hostility, after the Supreme Court, in the landmark judgement of National Legal Services Authority v. Union of India & Ors.9, recognised the third gender category in the eyes of the law. The Court eventually burst the binary gender structure of "man" and "woman," granting transgender people equal rights and protection under the constitutional principles of Articles 14, 15, and 16. The term "person" does not limit itself to the dual idea of man and woman in Article 14 of the Indian Constitution, which deals with Equality before the law.

Thus, Hijras/transgender people who are neither male nor female fit under the definition of "person" and are entitled to legal protection in all areas of State action.

Furthermore, Articles 15 and 16 are used to widen the term of "sex" to encompass "psychological sex" or "gender identity," holding that no one could be discriminated against on the basis of sexual orientation.

The Court also made an effort to preserve one's gender expression, which is primarily expressed through clothing, acts, and behaviour, among other things. By recognising one's gender identification within the scope of Article 21 of the Indian Constitution, the Supreme Court emphasised the importance of the right to dignity.


GOVERNMENT INITIATIVES FOR TRANSGENDER PEOPLE

Courts condemned the government for such discrimination against these people in the landmark case of National Legal Services Authority v. Union of India.

The court also ordered the federal and state governments to take steps to advance the transgender community, such as recognising the third gender as a "socially and educationally backward class of citizens" entitled to reservations in educational institutions and public employment, and to develop social welfare programmes for the community.

• Tamil Nadu- Tamil Nadu was the first state to make exceptional measures to safeguard transgender individuals and provide them with access to state and federal social protection programmes. They offer free sex reassignment surgery to transwomen in state government hospitals. They have provided full scholarships and free lodging to transgender people and have informed schools and universities that transgender people would not be denied entrance. The Tamil Nadu government is also providing training and financial aid worth Rs.20,000 for the benefit of this group.

Karnataka- The state of Karnataka has formed many welfare boards to defend the human rights of the TG community. The 'Mythri' pension scheme has been launched for transgender people, under which people between the ages of 18 and 64 are entitled to a monthly pension of 500 rupees. People with annual incomes of less than 17,000 rupees in urban areas and less than 12,000 rupees in rural areas are also eligible to benefit from this scheme.31

Delhi- The Delhi government provides 1,000 rupees per month to transgender people who have lived in the city for three years.

West Bengal- On July 15, 2015, the West Bengal government established a separate welfare board for transgender individuals and recognised transgender people as third sex in order to address all issues. They appointed India's first transgender principle in college and built separate restrooms for them for their care, social acknowledgment, and independence. Because SRS can be pricey in private hospitals, they adopted it at government institutions.


ANALYSIS

The decision has caused a significant amount of consternation. Even while the omnipresent media and civic society praised the decision, many transgender persons pointed out its inherent flaws and inconsistencies.

Orinam has compiled a comprehensive collection of replies from observers and collectives. Gee Imaan Semmalar provides an in-depth critical study of the content of the judgment and its possible ramifications in one of them. He claims that the judgement, which he finds "confusing and confounding," conflates diverse transgender personalities, such as referring to all hijras as "third gender" although there are variances between the two.[3]


CONCLUSION

Because of the social stigma associated with gender and sexual orientation, transgender people confront horrors and prejudice throughout their lives. The judiciary has made a big step towards assisting them in their struggle for autonomy. The lack of understanding and implementation of the NALSA decision at the grassroots level are flaws in the ruling's spirit. A specific statute for transgender rights cannot conclude that their interests are being met. The researchers would want to propose certain adjustments to address and enhance transgender issues: •Sensitization of police officers through organisations, seminars, conferences, and training programmes will assist the community in gaining access to legal mechanisms.

• Every public authority and private entity must establish guidelines for transgender representation. How can effective anti-discrimination policies be implemented if they are not appropriately represented?

• Statistical data are essential to track the progress of positive implementations. It would demonstrate the status of data in terms of gender economic impact, crimes against transgender people, representation in schools and universities, income generating, and general development.

• The impact of media and social networks on social causes is broader and greater. Campaigns to promote gender equality and sensitization would assist raise public awareness.

• Creates hotlines and helpline numbers for people to call for assistance and support. They can keep the victim's name hidden and offer counselling.

An individual's identity should be maintained with the utmost care. The transgender community's struggle is to be regarded as human and accepted into society. They desired to be treated with the same dignity and respect as the rest of society. I believe we owe them that much as a society.


REFERENCES [1] https://www.hrw.org/news/2020/09/08/transgender-third-gender-no-gender-part-ii [2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10148579/ [3] https://www.bbc.com/news/world-asia-india-27031180


AUTHOR - Shraddha Sharma

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