Transgender Community in India

Table of Contents

Context: The Telangana High Court struck down the Telangana Eunuchs Act of 1919, terming it “unconstitutional” and an intrusion into the private sphere of transgender people.

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Previously called the Andhra Pradesh (Telangana Area) Eunuchs Act, it was first enacted in 1919 in the Hyderabad Nizam’s dominions and was applicable to “eunuchs”.
It defined “eunuchs” as “all persons of the male sex who admit to be impotent or who clearly appear to be impotent on medical inspection”.
As per the Act, all eunuchs were mandated to register with the authorities. This included information such as their places of residence, as they were “reasonably suspected of kidnapping or emasculating boys, or of committing unnatural offences.
The Act allowed for the arrest of transgender people without a warrant, and it sought to imprison them for up to two years if they were found “in female clothing or ornamented or singing, dancing, or participating in public entertainment in a street or a public place or where a transgender person is found in the company of a boy below the age of sixteen years.”
Therefore, the Act was challenged arguing that it is an “outdated legislation”, at complete odds with modernity.
Following this the High Court Bench struck down the Act stating that it violated the transgender community’s right to equality (under Article 14 of the Constitution) and their right to privacy and dignity (under Article 21).

About Transgenders

According to World Health Organization, Transgender is an umbrella term for people whose gender identity and expression does not conform to the norms and expectations traditionally associated with the sex assigned to them at birth.
They are referred to as transsexuals if they desire medical assistance in order to make the transition from one biological sex to another.
As per the Census of India 2011, the total population of Transgender in India is 4.9lakh
- The highest proportion of the trans-gender population, about 28%, has been identified in Uttar Pradesh followed by Andhra Pradesh, Maharashtra, Bihar, Madhya Pradesh and West Bengal.
Transgender community comprised of hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc.

Brief History Of India’s Transgender Community in India:

Ancient India: Concept of tritiyaprakriti (third-nature) or napumsaka has been integral to Hindu mythology, Vedic and Puranic literature, epics and folktales.
- The term napumsaka here indicates the absence of the ability to procreate, thus, distinguishing them from both masculine and feminine markers.
Mythology: The female avatar of Vishnu — Mohini, who appears in the Mahabharata, counts as the first reference to trans people in the Hindu mythology.
- Mohini also appears in Vishnu purana as well as the Lingapurana, where Shankara-Narayanan’s origins (Hariharan) is attributed to the merging of Shiva and Mohini (Vishnu).
In Ramayana: Trans persons (referred to as hijras in the Ramayana) find mention in the epic.
In Mahabharata: It carries two main references to trans persons — one, Aravan (translated from the Tamil as the son of a snake), and two, Shikhandi.
- Aravan was offered to be killed for Goddess Kali to ensure the victory of Pandavas in the war.
- Shikhandi assisted Arjuna to kill Bhishma with his arrows, thus, became crucial in the victory of the Pandavas.
During the Mughal era: They served as political advisors, administrators and guardians of the harems, during the Mughal-era. They also served in the royal courts during the Mughal rule in India.
- Itimad Khan was a eunuch-officer in Akbar’s court with the charge of administering the finances of the state.

During British rule

The third gender enjoyed a certain degree of respect in the country, under traditional Hindu culture, including provision of land, food, and money.
However, British rule in India brought with them the strict sense of judgment to sexual mores which criminalised carnal intercourse against the order of nature.
Criminalisation of their existence meant denying them civil rights.
Over time, the discrimination against transgender people by the state percolated into the society, influencing attitudes and eventually, turning the trans community into a shell of its former self.
Today, the precarity and vulnerability of trans people in India is in part a product of a social and ideological change that occurred during British rule.

Post-Independence

NALSA Judgement 2014: Supreme Court in National Legal Services Authority (NALSA) judgment, April 2014, legally recognized transgenders or eunuchs as ‘the third gender,’.
- It directed the Centre as well as the states to treat them as socially and educationally backward classes and extend reservations in admission in educational institutions and for public appointments.
- The court affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution.
- In 2021 that Karnataka emerged as the first and only state to extend one per cent reservation for trans persons in any service or post in all categories of employment to be filled through the direct recruitment process in the state.
Section 377 Judgement, 2018: SC decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC).

Transgender Persons (Protection of Rights) Act, 2019

Aim: To end discrimination against transgender persons in accessing education, employment and healthcare and recognise the right to self-perceived gender identity.
It defines transgender as “whose gender does not match with the gender assigned at birth and includes trans-men, trans-women, gender-queers, and other sociocultural identities.”
Certificate of Identity: Transgender person has to obtain a Certificate of Identity which will confer rights and be proof of recognition of identity as a transgender person.
Right of Residence: No transgender person shall be separated from parents or immediate family on the ground of being a transgender.
Health Care: The Act also seeks to provide rights of health facilities to transgender persons including separate HIV surveillance centres, and sex reassignment surgeries.
Constitution of National Council for Transgender Persons: to advise the Central Government on the formulation of policies, programmes, legislation and projects with respect to transgender persons;
- to monitor and evaluate the impact of policies and programmes designed for achieving equality and full participation of transgender persons;
- to review and coordinate the activities of all the departments of Government and other Governmental and non-Governmental Organisations which are dealing with matters relating to transgender persons;
- to redress the grievances of transgender persons.

Challenges Faced by Transgender Community in India

Discrimination: These people experience discrimination at work, in educational institutions, and in their own homes, which has a negative impact on their general well-being.
Social stigma: They frequently encounter obstacles while trying to adopt a child or inherit property. Despite having high credentials, they are forced into menial occupations or driven into sex work due to their social exclusion.
Unemployment: Due to the associated societal stigma, the community has few employment options and experiences severe discrimination at work.
Lack of public amenities: They have trouble accessing public restrooms and other public areas. In hospitals, schools, and prisons, they frequently encounter issues.
Gender-based violence: Transgenders are often subjected to sexual abuse, rape and exploitation.

Way Forward

Self-Identification: Individuals should be able to self-identify their gender under Indian law. It ought to follow a gender recognition approach that is independent of a medical diagnosis of gender dysphoria.
Education: It’s crucial to develop an efficient system for educating students at colleges and universities on the needs and makeup of the transgender community.
Financial Security: To begin their career as an entrepreneur or businessman, it is important to guarantee liberal credit facilities and financial help.
Employment: Plans and initiatives should focus on enhancing the skills of transgender communities.
- The hiring, retention, and promotion processes must successfully abide by anti-discrimination policies.
Health: All private and public hospitals and clinics must formulate and disseminate separate health care policies. In addition to addressing alcohol and drug abuse, mental health issues, and HIV prevention should also be a priority.
Acceptance: The social stigma attached to the transgender community needs to be eliminated through a multifaceted strategy with a focus on public awareness initiatives.
- To recognise the transgender community as an essential part of societal life, there needs to be widespread sensitization, beginning at the school level.