I SHOULD ………SHOULD I ? TRANSGENDER IN INDIA

The Author and Co-author of this blog are Aakansha Latala and Ishika Agarwal  3rd year students of Manipal  University Jaipur, School of  Law.

‘’I think the best day when we as a society no longer talk about being gay or straight’’ …. Pink Floyd 

INTRODUCTION 

Over a long period of time gender inequality and differences existed in India it is not a recent development  All human being are born free with equal rights and dignity. But there is always two sides of  a coin in a country like India  where we have gender define  roles and do and don’t  form  home. The categories which are set by society are highly invariable which distinguish genders as males and females. The transgender which is being a part of society does not  reorganized by society for a very long time period but tables turn after the judgment  passed by the Supreme court of India regarding section – 377 of IPC which is being struck down. On the other hand  females are born to sacrifice and in fact  because of the regressive attitude of society they are discriminated females because of their biological functions the menstruation cycle. The Sabarimala  case, witness a remarkable phase  of gender justice by bringing down  various rituals, taboos, gender inequalities, discrimination through a bold  judicial intervention. Similarly, people see a situation and circumstances only through the same  perspective  maybe that’s why they always consider male as predator  and female as victim but what if a man is being harassed  and raped but the law don’t give any representation of such issues and males.  The complicated share of images and conceptions  that are stereotypically attributed over a span of time, became social norms and have not been questioned. Gender neutral laws are the need of the hour in the country because crime doesn’t  differentiate  between male, female, and transgender. 

THE  LANDMARK Judgment OF SUPREME COURT ON SECTION 377

How does it feel to be perpetually ostracized by society and be discriminated against or the ground of your sexual preferences?  How does it feel not to be freely expressed yourself  /and treated as a person who is mentally ill? Transgender people are individual of any age or sex whose appearance or personal characteristics  or behavior  differ from a stereotype about how men and women are supposed to be. The plight and suffering of this community came  to an end with the  landmark judgment of  Natej Singh Johar vs Union of India  1) which struck down section 377 of the Indian Penal Code on the ground that it is being unconstitutional as it violated the fundamental rights of the citizens guaranteed under articles 14, 15, 19, and 21 of the constitution of India. The 439 – page judgment consists of concurring opinions of four judges who have their reasoning of arriving at this conclusion which is the broad agreement of each other.  The judgment upheld constitutional morality over social morality and social standardization and guaranteed  its citizens the fundamental right  to choose their partner, right to sexual orientation. It granted respect to a person’s dignity and preserved their individuality. 

PREVIOUS JUDGEMENTS ON SECTION 377 

In the year  2009 case -  Naz Foundation vs.  Government of NCT (2) and others  the judgment in came in favor of  LGBT community in which they held that section 377 clearly violates fundamental rights of citizens under articles 14, 19, and 21.

In the year 2013 case – Suresh Kumar Koushal vs. Naz Foundation (3)  this judgment overruled the decision was given in the year 2009 Naz Foundation case . This was done on the rationale that this section only criminalizes the act and not a particular section of people or their identities or their sexual orientation and LGBT community.

In the year 2014 case - National Legal Services Authority vs. Union of India(4)  it was held that gender identity is one of the most fundamental aspects of life which needs to be identified and given judicial recognition for complete enjoyment of civil rights by these persons and to live their life with dignity. In the year 2017 case-  KS Puttaswamy vs. Union of India( 5) it was ruled that the right to privacy is a fundamental right and remarked that LGBT persons also enjoyed the right to privacy and subjecting LGBT persons to hostile treatment was impermissible.

FEW RIGHTS OF TR1ANSGENDER COMMUNITY 

1.The ministry of drinking water and sanitation permitted the transgender in April 2018 to utilize the toilet facilities of their own will in all states in public . With this step, Mysore city become the only city to construct a separate public restroom for the third gender. 

2. To help improve their poor living conditions supreme court of India titled the transgender community as an economically backward class in 2014, thus entitling them to reservation and benefits like skill enhancement 2%  reservation in public jobs, legal aid, pre and post-retirement allowances. 

3. Law makes it illegal to compel transgender to relinquish residence, undress or parade them naked, push them to beg, or any varied sort of bounded labor. 

4. Law criminalizes refusing a transgender his right to access any public property.

5.The court also safeguards a transgender expression enforced by article 19 (1) ( a) and holds that no restriction is supposed to and can be on one’s appearance or choice of dressing. 

CONCLUSION

Do we have to worry about who is gay and who is straight? As soon as parents are able to identify some problems among their wards they should not create any fuss that’s lead to the exclusion of the child from the mainstream of life, rather should become more caring, protective, supportive, because other than them the whole society will be against the child.  Can’t we love everyone and not judge them on the basis of their gender. More efforts, awareness and  some pair of eyes

 

1. Navtej Singh Johar v Government of NCT (2018)  

2. Naz Foundation v Government of NCT Delhi and others, (2009) 

3. Suresh Kumar Koushal v Naz Foundation, ( 2014) 

4. National Legal Service Authority v Union of  India ( 2014) 

5. KS Puttaswamy v Union of India (2017) 

can change a lot of perspectives in our society.  We are living in a society that is constantly changing, transitioning with the opinion, choices, and lifestyle of people, and transfiguring itself to an advanced egalitarian society. Thus embracing the pluralistic aspects of the society while coping with the changes begotten seems like the real test.  We as a society have to learn that there is much more to this and we need to understand or put one clear idea to our mind that transgender is not alien they are just people to belong to various gender identities or multiple gender attributes. Open and accepting spaces for people of a different gender or sexual orientations is the need of the hour in India.