GENDER: CHOICE; SEX: BIOLOGICAL

This article was written by Pooja Khimani, a student of Jitendra Chauhan College of Law, Mumbai.

Sex is the biological difference between people owing to Genetic Differences whereas Gender is the social construction to indicate sexuality. The society more often than not fails to understand that a person’s gender identity is not bound by their assigned sex. Hence, words like Homosexual or Transgender are used as an abuse and if at all someone is born a Trans or turns out to be Homosexual then survival in our society becomes difficult.

Historically speaking, the Homophobia in our society is a consequence of Islamic Mughal rule as Homosexuality is a sin in Islam and invites punishment of death by stone pelting as in case in many Islamic nations, this was further exacerbated by similar biblical punishment which were believed by hardcore Catholics.

In the period of sovereignty of British Empire over India, the influences of the west started to get to us. The country did get the Independence, but our thoughts didn’t, majority of those influences are present even today in our society and one of them being neglect of sexual orientation and acceptance of a gender existing beyond male and female.

The colonial law considered Transgender people to be of a Criminal Tribe and although Post Independence the tag was renounced but we as a nation have failed to provide them the standing. We followed Macaulay a hardcore catholic, the progenitor of IPC, etc. in India and the architect of the dreaded law of the Section 377 and that of adultery in IPC.

Even after the decades of Independence the Transgenders were not recognised in our nation whereas Kama Shashtra which was written centuries ago recognised sexuality or lack thereof as we say today, centuries ago.

Our history on multiple occasions recognises them, such as, the chapter on Ramayana where Lord Ram had returned from exile and found the people who were neither men nor women waiting for him. Their commitment and loyalty led them to be granted a boon of blessing people on auspicious occasions such as marriages and childbirths.

Referring to the above chapter, in the epic of Mahabharata, Pandu Arjun on their last year of exile assumed the identity of a female despite being a male and performed all duties a eunuch would.

Shikhandi the daughter of King Drupad assumes avatar of a man to achieve the vendetta of killing Bhishma in Mahabharata is the example of a Transgender person who helped Pandu brother in the war.

Ardhnareshwar a form of Lord Shiva is preached in many parts of India, where is a partly himself and partly Parvati. Mainly the Transgender community are his followers.

Many kings had entertainers who were men identifying themselves to be of female gender (trans), dress up like women and dance and sing for them.

Statistically, according to the Census of 2011, 0.04% of Transgender form a part of our population but their Social Standing is the lowest. They are denied basic human and fundamental rights of living with dignity, with equality, freedom of expression, right to employment, right to private and family life, protection from medical abuse, protection from mental, physical and sexual abuse because our constitution and legislature only recognises binary genders.

In 2014, the Supreme Court of India in National Legal Service Authority vs. Union of India –

  1. The Court accepted that the Transgender Community has been facing the backlash of the society and has been prejudiced and disadvantaged since Eighteenth century acknowledging the discrimination faced by them in every path of life.
  2. Recognising that gender identity being an integral part of a personality, the court pronounced it to be one of the most basic aspect of self-determination, dignity and freedom irrespective of chromosomal sex, genitals, assigned birth sex, or implied gender roles.
  3. Highlighting the ratified International Conventions& Principles by India, the Court mandated the legislature to follow them. It also declared that numerous steps were necessary in order for centre and state governments to comply with the constitutional rights to life, equality before the law, non-discrimination and freedom of expression.
  4. The Court noted that Article 21 has been broadly interpreted to include all aspects that make a person’s life meaningful. It protects the dignity of human life, personal autonomy and privacy. As recognition of one’s gender identity lies at the heart of the right to dignity and freedom, it must be protected under Article 21 of the Constitution.
  5. The Court recalled that the state shall not deny “any person” equality before the law or equal protection of the laws. Article 14, in ensuring equal protection, imposes a positive obligation on the state “to ensure equal protection of laws by bringing in necessary social and economic changes”.
  6. Article 14 is a right enjoyed by “any person” (similarly, the reference to “citizen” in Article 15 is gender-neutral) and so applies equally to men, women and transgender people, who do not identify clearly as male or female. Hence, transgender people are entitled to equal legal protection of the law in all spheres, including employment, health care, education and civil rights. Discrimination on the grounds of sexual orientation and gender identity impairs equality before the law and equal protection of the law and violates Article 14.
  7. Articles 15 and 16 prohibit discrimination in certain areas based on a list of grounds, including sex. The reference to “sex” is to be understood as prohibiting all forms of gender bias and gender-based discrimination, including discrimination against transgender people. The emphasis put on tackling sex-based discrimination in the Constitution means that people have a “fundamental right to not be treated differently for the reason of not being in conformity with stereotypical generalisations of the binary genders”.
  8. The Court notes that transgender persons have not been afforded special provisions as envisaged under Article 15(4) for the advancement of the socially and educationally backward. They constitute such a group and the state is bound to take some affirmative action to remedy the injustice done to them for centuries.
  9. In addition, the Court stated that expressing one’s gender identity through words, dress, action or behaviour is included in the right to freedom of expression (Article 19). Privacy, self-identity, autonomy and personal integrity are fundamental rights protected by Article 19. As gender identity lies at the core of one’s personal identity, gender expression and presentation, it has to be protected under Article 19(1)(a) of the Constitution

On these bases, the Court upheld transgender persons’ right to self-identify their gender. The Constitution requires equal treatment of all people regardless of their gender identity or expression. The Court declared that the Centre and State governments must grant legal recognition of gender identity as male, female or third gender. A full recognition is to be given even in the absence of any existing statutory regime. Additionally, the Court declared that educational, social and health care issues faced by transgender people must be addressed both at the centre and state government levels.

Owing to this judgement, a Bill was introduced in Lok Sabha on August 02, 2016 called The Transgender Persons (Protection of Rights) Bill, 2016 which was referred to the standing committee on September 08, 2016 and a report was submitted by them to the house on July 21, 2017. On 17th December 2018 the Lok Sabha passed the bill, but the bail failed to consider multiple and major points laid down by the Supreme Court.

Highlights of the Bill

  • The bill defines a Transgender person as one who is
  1. partly female or male; or
  2. a combination of female and male; or
  3. neither female nor male.

In addition, the person’s gender must not match the gender assigned at birth, and includes trans-men, trans-women, persons with intersex variations and gender-queers.

  • A transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill.Such a certificate would be granted by the District Magistrate on the recommendation of a Screening Committee. The Committee would comprise a medical officer, a psychologist or psychiatrist, a district welfare officer, a government official, and a transgender person.
  • The Bill prohibits discrimination against a transgender person in areas such as education, employment, rehabilitation and healthcare. It directs the central and state governments to provide welfare schemes in these areas.
  • Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine.

Analysis

  1. The Bill in itself is a socially forward movement by the Government expressing the intent for the betterment of the committee, although late but still a good intent.
  2. The definition of a Transgender is at variance with the definition recognised internationally and fails inclusion of people who have a gender identity or expression different from the assigned sex.
  3. The Bill doesn’t clearly define the terms transmen, transwomen, persons with intersex variations and gender-queers.
  4. There is no clarity on identification of persons who may not identify themselves with any of the two genders.
  5. The right to self-identification of gender as upheld by the Supreme Court is neglected by the bill and instead an objective criterion to identify one’s order to be eligible for entitlement is established.
  6. A screening committee would establish identity of a transgender person by issuing a certificate which fails the idea of self-perceived identity.
  7. Ambiguity on the part of application of the bill to civil, criminal and personal laws that recognise only binary genders.
  8. Considering the social status of the Transgender community, criminalising begging will only encourage the people become educated and thereby earn and employ themselves.
  9. The education will promote and motivate the community to come out in full confidence and be publicly employed at various posts such as that of civil servants etc.
  10. The welfare schemes to be initiated by the Centre and the States are a question because no specific guidelines or provisions are laid down for them.
  11. The Bill fails to recognise the Transgender community and the need for a reservation for them on the basis their history of social status.
  12. The punishment for offences against them are discriminatory as compared to the punishment laid down in other laws for binary genders.

Conclusion

The Indian Culture ironically always considered the people of Trans community at par with the Gods but always ill-treated them.  Now they finally have a voice of their own. The Bill fails to pay heed to the fact that years of establishment of special committees by centre and the state did not yield any fruits instead led to constant struggle and giving the power to establish welfare schemes in the hands of centre and the state will jeopardise the future of the community yet again. Rightfully, there has been an uproar in the community ever since the bill has passed because it fails to empower the community. And despite the differences in this piece of legislature as compared to the ones for binary genders, this bill is a good start.

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