Transgender Rights: Historical, Constitutional, Legal Perspective and Critique

In order to fully grasp the idea of discrimination faced by the Transgender Community (hereinafter “TGC”), we need to understand the basic difference among ‘sex’, ‘gender’, ‘sexual orientation’ and ‘gender identity’. The problems that the TGC faces today has come about due to the lack of educational awareness on these topics as well as the lack of sentiments of understanding and acceptance. Due to this lack of awareness, the TGC is at the mercy of governments, society, and laws. This is one of the main reasons for their backwardness, and the stereotypical mentality left by the British is another of the biggest reasons why TGC is not accepted as normal people in society.

This article encompasses the analysis of NALSA case, which was the first major comprehensive judicial decision underlining the complex aspect of gender and sex and their interplay with transgender and their rights in light of constitutional guarantees of life with dignity and freedom. It also critiques on the introduction of legislation for protection of transgender. Along with it, the article charts its way from the often an ambiguous and subtle distinction between gender and sex from the perspective of transgender which earlier played spoilsport in realizing the non-conformist rights. The article also delves on the mythological characters and religious scriptures to put across the point of protection of rights of all including transgender.

The dissimilarity between gender and sex

Sex and Gender are two different concepts and scientifically they are not interlinked in any sense to each other but socially one might be a result of another, but it is always a matter of choice. Starting with the meaning of the word ‘sex’, sex denotes the biologically formed reproduction consisting of outer body parts (external genitalia) and internal organs (such as sex chromosomes, gonads, sex hormones, internal reproductive structures) of a human being or in short biological differences between males and females^[1]. It marks the biological status of a person being of either a male or female sex.

Sex is a binary concept which only takes into consideration the female and male sexual organs, anything other formation of the sexual organs than the male and female sex is considered to be a deformity. So, a person’s sex has nothing to do with how they perceive themselves but it’s just an indication of how they take part in the acts of reproduction. Gender, on the other hand, is simply a socially constructed feature. Sometimes, a person’s genetically assigned sex does not line up with their gender identity and these people might refer to themselves as transgender. These behavioral aspects have come about from generations to generations that are attached to a particular sex. It is the way people act, interact, and feel about their own selves that form their identity within a social structure and it is what gender constitutes. Gender varies, based on the actions that people undertake, from society to society. Gender performance is not the same everywhere for people who have the sex of a male or females. Therefore, it is pertinent to imply that a person’s sex doesn’t shape their gender. Gender is not an internal feeling that comes when a person has certain sexual organs.

Whereas, it is societal norms of gender that inscribe in a person, their role and actions that suit them in the society. One form of performing gender is in the appearance of a person and quiet frequently a person’s appearance shapes their sex in society. When a person appears to be feminine, it is easy to assume that the person is female. The same is the case with a masculine personality that makes assumptions about being a male. Society, due to various historically influenced reasons, has come to a decision of making two perfect pairs of sexes and gender. Meaning, when a person acts feminine and has a female sexual organ, that makes her a perfect functioning female in the society and visa-versa for the perfectly functioning males in the society as well.

Therefore, a binary of sex and gender is created which is more of an illusion based on lack of education and biases. Anyone who falls slightly off the fixed box category of a male or female is looked at with suspicion and stereotyped. This more often leads to discrimination, ostracization, and violence.

Binaries of sex and gender and its interaction with transgender

Now that the distinction between sex and gender is clear, it is important to keep in mind that sex does not influence any internal feelings of appropriating actions pertaining to a single-gender. Then the question arises, who are transgender people and why are they frowned upon by society? A person becomes a transgender when they are born with either of the two sex but does not conform to the conventional gender roles attached to that sex. For example, person A is born with a male sexual organ but, internally, and while growing up, has never felt masculine but more feminine. The transgender often defines this feeling- as being trapped in a wrong biological body which does not match the internal feelings of a person. Therefore, transgender are people whose outer appearance, personality, characteristics and behavior is different from the behavior they are “conventionally supposed’ to have^[2]. Trans-men are people who are born with female sexual organs but conform to the masculine side of gender, they feel more male than female and Trans-women are people who are born with the male sexual organs but throughout their life have felt like a female.

Over a period of time, this definition has been diluted and now transgender is a term that is used for a variety of people who do not fall within the binary of sex and gender created by the society. The term is now also used for people who are of intersex, who are compelled into this flawed rigid and closed distinction be it male or female and generally people and who are just nonconforming regarding their gender identity^[3]. Hence, it has become more of an umbrella term that is used for people with a wide variety of social experiences and range in their identities that they show to the world. Being used as an umbrella term has its own side-effects as it dilutes the actual meaning in order to encompass so many others. It further creates greater confusion in the minds of people as it adds on to the already perceived nonconformist identity that is accorded to the transgender people. As a result, people take less initiative to understand them. This confusion leads to a society that is not understanding and acceptable for the trans-people.

A society which is heavily governed by laws and that create laws, based on strict binaries, providing the valued right to conformist to aid them in living life as a normal human would expect, but the same society hangs in uncertainty the rights and life of trans people and remain indolent to non-conformist concerns. Therefore, the rights of the TGC get undermined due to the confusion, lack of genuine concerns, and the unwillingness of society to come out of the straitjacket conformist loop. Apart from that in a scenario where rights are given to the TGC, they are in the limitation of being unhelpful as the people who have drafted these laws are confused and often prejudiced and the people who are responsible for the implementation of those laws are stereotypical towards the TGC.

After knowing about the insensitive behavior of the society towards the TGC and what causes it, it is pertinent to know about the term ‘gender identity’ and ‘sexual orientation’ that is at the center of the transgender rights debate. Gender identity, means the innate feelings of a person deeply having an attachment to being a male, female, neither of the two or somewhere in between of the two^[4]. Gender identity is a personal/ internal feeling which does not come out in the open. But just when people internally define themselves, the external expression also takes shape keeping in mind the internal emotions. The actions and outfits of a person that we see out in the public is a part of their gender identity through which people act according to their gender, it is called the ‘gender expression’^[5]. But a gender expression is not a hundred percent accurate in defining a person’s gender, thus judging a person’s gender by their appearance cannot be solely relied upon in order to come to a conclusion.

Gender identity, very rightly so, has been at the center of the debate as it has its linkages with the innate personality of a person. The innate personality which comes naturally to a person makes them a recognizable human being in the society. It shapes their interaction with other entities in the society and other human beings in order to form social bonds and be a rights holder and to live their life to the best of its capabilities. That is the reason why so much emphasis is laid on a person’s identity, of which, gender is a big part. Thus, it can be said that a person’s gender identity is not a binary but as fluid as possible and it cannot be assumed based on their appearance.

Another innate and attached concept with gender identity is ‘sexual orientation’. They are attached in the sense that they both provide a base structure to a person’s social life and functions in society. They both help in a person developing their sense of self. The society, in reality, has linked a pair of three binaries together, namely, sex-gender-sexual orientation. Sexual orientation is referred to as the physical/emotional or romantic attraction of a person or the absence of these towards another to satisfy certain bodily requirements. Sexual orientation is subject to change throughout a person’s life, as it includes being a bisexual, heterosexual, pansexual, asexual and homosexual, etc.^[6] Thus, the binary created by society due to their stereotypes does not give space to flourish any different form of sexuality or gender identity other than the binary ones. For example, if you are born a female, you need to behave in a feminine way in front of society and you need to have a sexual interest in men of society. Any deviation from the set binary is looked at as a taboo. But that does not mean the other gender identities and sexual orientations do not exist and are not normal. They are.

History of Transgender and their life in Indian subcontinent

Since times immemorial, the TGC has had a historical presence in our country. The evidence of their existence can be provided by looking into our ancient Hindu literature and mythologies where the narratives pose as evidence towards the prevalence of the TGC. They are an example of not only how much accepting the society was but also how the people from TGC were respected and formed a part of the society as equals. The narratives about them are also present in religious texts of other religions as well as Islam. As mentioned before, the term ‘transgender’ in India has become an umbrella term, therefore it is used for the community which comprises of eunuchs, Aravanis, Jogappas/Jogtis, Shiv-Shaktis, and Hijras, etc.

Mythological underpinnings and hues on the life of transgender during those times

In the Puranic literature, there is a concept known as ‘Tritiya Prakriti’ or ‘Napunsaka’ which was used to denote a man who had no procreative capability and this concept was a core part of the Vedic and Puranic literature^[7]. Taking an example from the epic Ramayana, when it was time for Lord Rama to leave for the forest along with his wife Sita and brother Lakshman, after being banished from the kingdom for fourteen long years, a large crowd gathered to see them off. During that gathering, Lord Rama asked the people who were ‘men and women’ of the kingdom to return back to their houses. Among that gathering there were followers who felt that this direct call of ‘men and women’ by Lord Rama did not apply to them as they did not belong to any of the genders that he mentioned. As a result, those followers followed Lord Rama to the jungle and lived with him. These people, later on, came to be known as the ‘Hijras’ community, which impressed Lord Rama dearly. After being so impressed by the Hijra community, Lord Rama gave the community blessings that on pious occasions like childbirth and marriage, and functions which mark a new beginning of the venture, it will be considered as a great blessing when Hijras will sing dance and confer blessing to these people to make their relationships or business flourishing.

Another example is Mahabharata, when Lord Krishna transforms himself into a woman named Mohini so that the son of Arjun, Aravan, could get married for a night and be eligible for the sacrifice to Goddess Kali, in order to make Pandavas victorious in the battle against Kauravas.^[8] The TGC in Tamil Nadu is called “Aravanis” and they consider Aravan as their progenitor.^[9]

Even in Jain texts, there is a mention of a ‘psychological sex’ which is different from the male and female sex and which is said to be a reference towards the TGC^[10]. Hijras/Eunuchs have also played a major role in the royal courts of the Mughal Emperors, especially in the Ottoman Empire and during the Mughal rule in medieval India. The TGC during that time were used as reliable bodyguards or as loyal servants who worked within the Haram of women the emperor had. So, the TGC community was accepted and had its own roles which they used to fulfill in the societies without being shamed for the way they were. If the Indian history was so replete with the examples of tolerance, acceptability, and inclusivity, then what marked the time when society started viewing the TGC with suspicion and stereotypes? It was with the advent of East India Company and the British colonization of India when the TGC community was met with a social blow and ostracization.

The Victorian societies were famously very binary and patriarchal. When the British arrived in India, they did not have the mindset to appreciate the social ties and gendered roles that the Indians had. Mixing Indian culture with the British culture meant contamination of their naturalist way of life which was the command of Jesus. Since then, the British started bringing change in the morals of society by establishing laws that were ‘gender/ sexuality deviant’. Then came along the derogatory terms, such as, ‘Chhakka’ that is used for the ‘third gender’. The transgender came to be known and hated for their defiant behavior of sexual/gender roles and for blurring the boundary between culturally accepted gender norms.

The Criminal Tribes Act 1871, was one of the acts responsible for spreading the discourse that TGC is not eligible to have human rights or any rights because they are below it. The British stated the people belonging to this community as permanently ‘criminals’ with their dangerously deviant behaviors of wearing womanly clothes and dancing to attract men for gay sex. Therefore, the Victorian morals planted the seed of mistrust among the people towards the TGC, which continues till date in the 21st century. Although, the Criminal Tribes Act 1871 was repealed and the distinction was done away with post-independence, the mistrust and the idea of ‘other’ has still remained in the minds of people. Throughout this period of time, the term has become derogatory towards people born as men who showed slightest of feminine behavior inside (emotions) and outside (appearance and behavior). Hence, there is an attachment of ‘shame’ and thus the Indian society repels other people with such behaviors.

Case Analysis

National Legal Service Authority vs Union of India & Ors

Quoting a very important line from the landmark judgment of National Legal Service Authority vs Union of India & Ors^[11] (hereinafter “NALSA CASE”),

“In fact, there is a growing recognition that the true measure of the development of a nation is not economic growth; it is human dignity.”

The two-judge bench of the Supreme Court delivered the judgment that was considered to be a ray of hope in giving the status of a right and ending all the sufferings faced by the TGC. The NALSA case emphasized on the importance of gender identity and how it is at the core of one’s individuality that shapes them. The court then moved on to connect this idea of identity with the fundamental rights.

Interpretative commentary on Fundamental rights of transgender

The fundamental rights are a crucial component of a person’s life which gives them rights to enjoy and flourish in their lives. Fundamental rights i.e., rights that are pivotal to their being, also provide legal recourse for a person when these rights are violated by someone else, be it another person or the government. The idea that people have different gender identities, that defines them and shapes their future, have a right to be protected like any other straight person’s rights. The basic theme of this judgment has been to prove again and again the equality between people who are of the binary gender, sex and sexual orientation, and people who fall outside that narrow bracket. It is also surprising to see how a connection between the TGC and fundamental rights had to be established by the judges as if this connection did not exist before.

A mere human existence is not enough to be eligible to be a holder of innate rights. The whole point of the written document known as the Constitution of India is to cement legally on paper the rights of all that are innate to individuals and not cement the rights for picking and choosing whom they apply to. Also, the base of whole judgment is created on the fact that there can be more genders than just female or male, but the judges did not feel important enough to use the correct pronouns in the judgment like them/theirs and which could have been used to put their point of acceptability across the spectrum. It lacks in the way of generating sensitivity on the issue.

The Hon’ble Judges started after tacitly establishing a connection between the TGC and Article 14, mention that under Article 14^[12] the word ‘person’ is not only applicable to ‘male and females’. But even the people belonging to the TGC like (Hijras/Jogti/Joppas) who do not fall within the category male/female but fall within the expression/ meaning of the word ‘person’. And therefore, they are entitled to legal protection of laws in all spheres of life that are governed by the laws and are having rights of job, education, and healthcare, as well as equal civil/political rights and citizenship rights, as enjoyed by any other citizen of India.^[13] Therefore, any discrimination on the ground of sexual orientation or gender identity of TGC “person” impairs equality before the law and equal protection of the law and violates Article 14 of the Constitution of India.^[14]

Referring to Article 15 and 16 of the Constitution of India, again the court has established and emphasized that within the word ‘sex’ used in Article 15^[15], ‘gender’ was always included, as both gender and biological attributes constitute distinct components of sex. Whereas, in the starting part of the judgment, the Hon’ble Judges’ intention was to show the difference between sex and gender and it was for the reason to depict that gender is internal emotions shaped by the society or is an inner calling. Hence, it cannot be called unnatural and this proves the validity of these different feelings, however, the Hon’ble Judges in the fundamental rights section stray away from the distinction they created. Through this, the judges have failed to imply that gender was always a part of the word ‘sex’. If we take an example of other countries, like South Africa, their constitution clearly mentions ‘gender’ along with ‘sex’, as a ground for action if discrimination occurs. But in the end, the judges do put their point across that, from now onwards Articles 15 and 16, includes discrimination on the ground of gender identity.^[16]

But the two major fundamental rights under which this connection was significant were Article 19(1) (a)^[17] and Article 21 of the Constitution of India. The judges opined that^[18]–

“Article 19 states that all citizens shall have the right to freedom of speech and expression, which includes their right to expression of their self-identified gender. Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.”

[Emphasis Supplied]

Finally, with respect to Article 21^[19], the court held that a person’s gender identity lies at the core of the fundamental right to dignity. When people acquire a sense of individuality and identity, it further shapes their idea of dignity. The Hon’ble Judges stated that^[20]–

“Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our Constitution.”

The court also mentioned the guiding principles enshrined in the Preamble, which constitutes concepts such as justice- social, economic and political, equality of status and opportunity and dignity of the individual are well recognized.^[21] The court recognized that all these principles lead to people’s rights, in order to provide them a fulfilling life. These being the basic essentials designed to flower the citizen’s personality to its fullest. Holistically all rights work towards providing a better life to a citizen.

Finally, the court held that the TGC in India belongs to the ‘third gender’. The court established a third gender category through this case. They mentioned how the TGC are neither male nor female and therefore, treating them as belonging to either of the aforesaid categories, is the denial and violation of the constitutional rights mentioned above. Not letting the TGC express their own gender will amount to a denial of social justice to them, which in turn has the effect of denying political and economic justice, which are a must for living a holistic happy life.

Legislation- The Transgender Persons (Protection of Rights) Act, 2019

After the NALSA case, the judges ordered the formation of an Expert Committee, but that committee had already been formulated and was looking into the problems faced by the TGC all over India, in each and every state. The committee was told to submit the document related to the concerns of the TGC within three months of time. The committee had also formulated a report in 2013 related to the same issue. As a result, after using the information provided by the expert the committee, The Rights of Transgender Persons Bill, 2014 (hereinafter “bill 2014”) came about which was only passed in the Rajya Sabha (the upper house of Indian Parliament) on April 24, 2015. This bill of 2014 was never taken up in the Lok Sabha (the lower house of Indian Parliament). The 2014 bill was drafted after taking into consideration the TGC needs and representation. It is a well-established fact that this bill laid all the rights and needs of the community and sparked joy within the community, as it was so accurately drafted as per their demands.

In 2016, this bill was amended and a new bill with diluted rights and which came to be known as the 2016 bill, got passed by both the houses as The Transgender Persons (Protection Of Rights) Act, 2019 (hereinafter referred to as “TPRA 2019”). The TPRA 2019 is an even more diluted form of the 2016 bill. Thus, it spurs no joy among the TGC because it has cut short many rights that were required by the community to flourish. It has posed great obstacles in front of the community which already faces the harsh side of society. It is opposite to the purpose that was satisfied by the Bill 2014. Thus, the community did not want to support TPRA 2019.

Critique of TRPA 2019

The supposed purpose of the diluted Act was to provide solutions to the problems faced by the TGC in India and provide to them the legal recognition so that laws and rights are applicable to them and as a result, TGC can bring legal action against people/organization who do not follow the laws and discriminate against TGC based on their gender. But, when it comes to the Act defining who a transgender is, they faulted greatly in giving an accurate definition, in fact, the narrow mindedness can be perceived through the reading of the definition which again hints at the binary thinking of the society about sex and gender.

The definition given under Section 2 (k)^[22] talks about the gender assigned to a transgender person at birth are different from the gender they feel they belong to. This statement is conventionally wrong as, in birth certificates, only sex is mentioned. This reflects the stereotypical assumption on the part of the drafter of the Act about the binary relation between sex and gender and as also explained above in the introduction. Even this binary understanding of sex and gender and the relationship between the two is just a societal construct that is not accurate and has been disregarded by the judges in the NALSA case as well. But here we see that the drafter has gone ahead and added it to the definition of ‘transgender’ in the Act.

Then comes Section 4 (2)^[23], which talks about the right of a transgender person to adopt their self-perceived gender. Ideally, this would mean that the transgender person has been given full autonomy in deciding their own gender and not what society has expected their gender to be. But as we go further into the reading of the next section i.e. Section 5 (1), it mandates a transgender person to go to the District Magistrate for the issuance of a certificate that confirms their identity. But this certificate is granted after the transgender person has to go through a medical examination, which is conducted by medical practitioners and psychologists to check the transgender person and then give proof of their self-perceived identity. All of this is in contravention to Section 4 (2) itself as the autonomy of the TGC has been taken away in deciding their own gender identity. Just TGC knowing about their identity is not enough but they need to go through a medical examination to prove it to the government that they belong to the TGC. This medical examination is not used for checking whether the person is belonging to the TGC but is used to prove that a person claiming to be transgender is in fact falling in the category of a ‘male or female’. It is being used not to confer rights granted to them but to take them away from any way possible. That’s the negative impact of the committee.

The whole point of the NALSA case was to prove to the public that the TGC are normal human beings who have all the rights and especially their right to identify themselves the way they want to as otherwise, it affects their dignity in life. Nobody asks TGC for proof of their straightness and they still enjoy all the rights as the citizens of the country. Then why is there a need for anyone who does not fall within the imaginary binary, to prove that they do not fall within it in order to be right holders. They have no special needs as they are also human beings. Every need a trans-person has is the need a straight person has in the world.

Another example of ignorant drafting is Section 7^[24], as it mentions the surgery a trans-person undergoes for changing their gender. It was clearly laid down by the judges in the case that gender is internal and a feeling and gender has an expression. It has nothing to do with the physiology of the body, yet, the section talks about trans-people going under a gender replacement surgery. The surgery they are talking about is called the Sex Replacement Surgery (SRS). The name of the surgery itself talks about what it is done for. The NALSA case clearly mentions the distinction and yet this Act is passed while having the same misunderstanding that the TGC is trying to battle with.

Next inline of diluting rights in Section 11^[25], which talks about laying down a Grievance Redressal Mechanism, yet lays down no mechanism whatsoever but only opens up a new post of a complaint officer in establishments.

Section 18 ^[26] which talks about penalties is even more surprising as it just mentions all other breaches of TGC rights possible at different institutions but excludes act by the State that is in contravention to the provision mentioned in this act and is liable to a penalty. It fails to provide the legal safeguard and accountability of the state to follow the act.

Lastly, Section 16^[27] which establishes a National Council for Transgender Persons, sub-section (g) of Section 16 talks about representatives from the TGC of each region, east, south, north and west will be selected based on the nomination made by the Central Government. This is the first time in the whole section that the representation from TGC is required, but again it undermines the authenticity of the selection process as these representatives are not elected by the TGC but nominated by the Central Government. This again does not give the TGC a direct right to vote for their representatives and confidence and trust on representatives. Thus, the whole Act is looked down by the TGC as it confers upon no better present than their horrible past.

Conclusion

Even after having a landmark judgment and an Act drafted for the betterment of the living condition of the transgender community in India, holistic consideration of necessary rights of transgender, similar to others, is required and in addition to that awareness in the society needs to be generated and comprehensive incorporation of the avowed rights in the Act is vital. It is also equally important that effective implementation of the Act is there and attitudinal change is brought to squarely avert any discrimination and also increase opportunity for all people irrespective of their gender and sex. Radical changes in the institutions and structure of society have to be encouraged where acceptance and tolerance are the rule instead of exclusion and intolerance and where everyone, irrespective of their person, cherishes their right and have the effective and efficacious remedy to enforce their rights by way of laid uniform mechanism.

References

Ministry of Social Justice & Empowerment (MSJE), Report of the Expert Committee on the Issues relating to Transgender Persons, Oct. 23, 2013.
ld.
ld.
National Legal Service Authority vs Union of India & Ors AIR 2014 SC 1863.
Supra, at 1.
Supra, at 4.
ld.
Supra, at 4.
ld.
ld.
AIR 2014 SC 1863.
Constitution of India 1950, art 14.
National Legal Service Authority vs Union of India & Ors AIR 2014 SC 1863.
ld.
Constitution of India 1950, art 15.
Supra, at 13.
Constitution of India 1950, art 19
Supra, at 16
Constitution of India 1950, art 21
National Legal Service Authority vs Union of India & Ors AIR 2014 SC 1863.
ld.
The Transgender Persons (Protection Of Rights) Act 2019, sec 2
The Transgender Persons (Protection Of Rights) Act 2019, sec 4
The Transgender Persons (Protection Of Rights) Act, 2019, sec 7
The Transgender Persons (Protection of Rights) Act 2019, sec 11
The Transgender Persons (Protection of Rights) Act 2019, sec 18
The Transgender Persons (Protection of Rights) Act, 2019, sec 16