Transgender is not a term limited to persons whose genitals are intermixed but it is a blanket
term of people whose gender expression, identity or behavior differs from the norms expected
from their birth sex. They have different appearance, personal characteristics and behavior. And
because of that transgender people have been subject to social oppression. They suffered lot of
problem as lack of education, unemployment, homelessness, lack of health care facilities,
depression, alcohol abuse and discrimination throughout their life.
As Sections 354A, 354B, 354C, 354D, 375 and 376 which relate to sexual offences against
women particularly. These provisions only protect the women community and such
discrimination is arbitrary and is in violation of Fundamental Rights under part III of the
constitution. These provisions only protect the women community and such discrimination is
arbitrary and is in violation of Fundamental Rights under part III of the constitution.
LANDMARK JUDGEMENTS -:
In National Legal Service Authority v Union of India, for the fiest time third gender gained
legal recognition in the eyes of law as the Hon’ble Supreme Court ruled that the fundamental
rights should be available to the third gender in the same way as they were provided to the male
and females. The court provides the transgender with equal rights and protection under the
Article 14, 15, 16 and 21.
The Hon’ble court interpreted the meaning of Article 14 and held that the article provides
protection to ‘any person,’ and “person” includes the transgender person as well and hence, they
are all entitled to legal protection of law. The court also held that Article 15 and 16 is not just
limited to biological sex of male or female but it intended to include those people too who
consider themselves to be neither male nor female.
The Supreme Court has given certain directions for the protection of the rights of the transgender
persons by including of a third category in documents like the election card, passport, driving
license and ration card, and for admission in educational institutions, hospitals, amongst others.
Navtej Singh Johar v. the Union of India, Court held that discrimination on the basis of sexual
orientation is violative of right to equality and right to privacy as sexual orientation forms an
inherent part of self identity and denying the following rights is violative of right to life and
fundamental right cannot be denied.
ACTS WHICH INCLUDES TRANSGENDER COMMUNITY -:
Immoral Traffic Prevention Act of 1956 which was amended in 1986 has now become
gender neutral legislation. The domain of the Act now applies to both male and female
sex workers along with those whose gender identity was indeterminate.
In 2018 Centre amended the Income Tax Rules of 1962 to allow transgender persons to
be recognized as an independent category of applicants while obtaining a Permanent
Account Number (PAN) for their tax-related transactions.
The term bride under Hindu Marrige Act, 1955, also includes trandgender women.
The Sexual Harassment of Woman at the Workplace (Prevention, Prohibition and
Redressal) Act, 2013 protects sexual harassment at the Workplace. Transgender women
are also protected under the ambit of this act.
Separate law to protect transgender community -:
The Transgender Persons (Protection of Rights) Act 2019 -: This act was passed by Indian
Parliament on 26 November 2019 and given Presidential assent on December 5, 2019.
Sec 3 of the Transgender persons (protection of Rights) Act 2019 protects the discrimination
against transgender in accessing education, employment, healthcare etc.
Sec. 4 (2) of the act provides right to self-perceived gender identity to the transgender.
Under Sec. 18 (d) of this Act
"Physical abuse, sexual abuse, verbal and emotional abuse and economic abuse, shall be
punishable with imprisonment for a term which shall not be less than six months but which may
extend to two years and with fine".
Transgender community is always subjected to oppression by society. Laws and was certainly
passed by government but their implementation is still very difficult. Many laws are still required
by legislature to protect this community. Laws related to sexual offences are very discriminatory
towards this community. But we need to be optimistic. This is an evolving process in accordance
with the time and need.
credit: GARIMA CHARAN
clg name: rajasthan university