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Volume: 7, Issue-07 Date: 1-11-2018
INCLUSIVE SOCIETY FOR TRANSGENDERS; A DISTANT
DREAM?
Source: HuffpostIndia
“The biggest grief is to know that nobody loves you, and we
transgenders have always felt it so far”
- Laxmi Narayan Tripathi
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Volume: 7, Issue-07
INTRODUCTION
Date: 1-11-2018
Lead Essay
The term transgender generally refers to a person who doesn’t identity with the sex she/he is
born with and associates oneself with a gender different from the biologically assigned one.
They desire to express themselves (through behaviour, appearance or interest) differently
from the established stereotypes of being men or women. There are different vernacular terms
for Transgender e.g in India we use the words Hijra, Kinnars and Aravanies. In India they are
mostly seen as a socio-cultural group rather than just a gender variation. We find several
references of transgenders in Indian history as political advisers, administrators and closest to
kings and queens ([Link], 2015). However today, the transgender community is a
closed and marginalized community and its main activity is confined to blessing newly-wed
couples or a new born child. The reason for this is the deep rooted stigma associated with the
notions of a transgender. Due to discrimination and lack of opportunities, this group has had
to resort of prostitution and begging. As a result, transgenders are mostly seen as, immoral,
deceitful and not trustworthy. Poverty also makes the community more vulnerable to risks of
mental and physical health.
Non Governmental Organizations and Co-operative Societies are seen working in different
parts of the country through different models. However the absence of laws and State
initiatives has hold back the progress. A big leap towards inclusivity came with the Supreme
Court’s verdict of NALSA vs Union of India, 2017. The Judgment gave legal status to the
identity of transgenders and included the right of gender identity in right to life with dignity.
However, post the verdict there has been a lack of policies and laws regarding the protection
of the community. The third gender community is still one of the most backward and
marginalised communities in India. Along with educational, economic and social
marginalization, they are also marginalized in terms of assessing any other public space like
legal and health services.
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Volume: 7, Issue-07
SUPREME COURT JUDGMENT
Date: 1-11-2018
Lead Essay
The Supreme Court Judgment of NALSA (National Legal Service Authority) vs Union of
India 2014 acknowledged the exploitation of the community and gave cognizance to their
rights. It stated that the right to choose one’s gender is an integral part of right to life and
dignity. It directed the government to include the category of ‘third gender’ in official
documents and the choice of the gender to be considered as individual choice. It suggested
the formation of a national institution to work for the cause of upliftment and empowerment
of this community. The Supreme Court also asked the government to look for ways to reserve
seats for transgender in educational institutes and public employment. It directed the
implementation of the recommendation of the ‘Expert Committee Report’ of Ministry of
Social Justice and Empowerment which had suggested ways to cope with the discrimination
of the community. However none of the recommendations by Supreme Court or the Expert
Committee has been executed so far. The judgment had not changed the situation on ground
much, as even after that transgender patients had died in hospitals because the staff was
unable to decide if the patient should be admitted in female or male ward (Saumya, 2015).
THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 2016
The Transgender Persons (Protection of Rights) Bill, 2016 which was brought to make laws
for the transgender community, still stands pending in the parliament, inspite of
Government’s claim to pass it in the last monsoon season. Prior to this Bill, Rights of
Transgender Person Bill was introduced in Rajya Sabha in 2014 as a Private Member’s Bill.
This Bill gained unprecedented attention and support in the assembly and was passed
unanimously. However the fate of the Bill was not the same after it got transferred to the
lower assembly. The bill was not discussed, was delayed and later Ministry of Social Justice
and Empowerment displayed a draft with a similar title but with much omitted content which
later became the Transgender Persons (Protection of Rights Bill) (Aruvidha, 2016).
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Volume: 7, Issue: 07
LEAD ESSAY
The Transgender Person (Protection of Rights) 2016 Bill has been criticized by academicians
and activist on various grounds. Some of the major criticisms are:
The Bill is framed with a welfare based approach instead of a rights based
approach. The Bill does not list the rights of transgender and only aims at directing
the government to act through welfare provisions. In the other provisions mentioned,
it also fails to uphold fundamental rights like right to privacy.
The Bill defines transgender as (i) neither wholly male or female (ii) a
combination of female and male (iii) neither man nor women, conforming to the
existing stereotypes of man-woman identities and denying the group the right of
separate and self identification. The bill also used the word “intersex” and transgender
interchangeably confusing gender and biological sex.
The Bill provisioned creating of district level screening committees for the
certification of sexual identity. This is against the right of self identification and might
subject to loss of right to privacy at times. Many countries like Argentina, Ireland,
Malta and Columbia have not built up any screening committee to certify the sexual
identity.
The drafting of the Bill had not allowed any involvement of people from the
transgender community, which makes it undemocratic and lopsided in nature.
THE REVISED BILL
After the Bill was strongly opposed, a standing parliamentary committee was formed
to give suggestions on this bill. The cabinet has recently accepted some of the changes
suggested by the committee (Sharma, Cabinet passes reworked Transgender Bill with
27 changes, 2018).
Definition: The universally accepted definition of a transgender as one whose “sense
of gender does not match with the gender assigned at birth including trans-men, trans-
women, gender-queers, and other socio-cultural identities” has been added replacing
the previous one. The revised bill also provides provision for self declaration and right
to choose to be identified as a man, woman or transgender, irrespective of sex
reassignment surgery (SRS) and hormonal therapy.
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Date: 1-11-2018
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Lead Essay
Discrimination: The Bill of 2016 had mandated that organizations with 100 or more
employees should designate an official to examine complaints of discrimination and other
grievances of transgender employee. This has been extended now to all organizations
irrespective of number of employees. Unlike the previous Bill the Cabinet defines
‘discrimination’ as per the Yogyakarta Principles and also provides redressal mechanism.
Reservation: However the Bill still does not talk about reservation of transgender in
educational institution and public appointments. The standing committee denied to state
anything on the reservation of transgender as during 2014 the National Commission for
Backward Classes had already advised that all transgender persons who do not belong to
SC/ST community should be included in the central OBC list so that they can obtain the
benefit of reservation. However this proposition was withdrawn when OBC groups protested,
as this would have led to a decrease in their share.
LIFE OF A TRANSGENDER: WHAT STUDIES REVEAL
A study by National Human Rights Commission done in collaboration of Kerala
Development Society (2018) surfaces some crucial facts related to the status of transgender
community in India.
The study reports that:
99% of transgender persons have suffered social exclusion from more than one
place, which also includes
families. Unlike other cases, families and parents have been seen to be involved in
abuses and providing
no protective role for the transgender child.
96% of transgender community was denied jobs and 89% said that there are no
jobs for even the qualified
persons.
50% to 60% have never attended school and the rest who had the chance had
faced discrimination.
57% of transgender people wants to go through a sex-alignment surgery but do
not have sufficient money.
2% live with their families and 53% live under the Guru-Chela (teacher-disciple)
system.
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Date: 1-11-2018
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Lead Essay
Another report of a study done by World Bank ‘Economic Cost of Stigma and Exclusion of
LGBT people: A case study of India,2014’ states that 41 % of Indians do not want a
homosexual neighbor and 64 % believe that homosexuality is never justified. This social
discrimination faced by the community explains the low literacy rate of 56%, which is much
lower that the national average of 74%. The harassment and discrimination faced by
transgenders in school does not allow them to be a part of the formal education system and
restricts human capital growth. Lack of growth in human capital in turn further marginalises
them. Apart from the formal education, stigmas also prevent the transgender to participate in
the training and skill development programmes. Further, the inability to participate in the
production process and society also does not motivate transgenders to overcome
discrimination and continue schooling.
The Census of 2011 shows that 38% of the transgender respondents were working compared
to 46% of general population. 65% of transgender were employed for at six months in a year
in comparison to 76% of the general employed population. A study of Kothis (common name
for transgender women) done by Naz Foundation in five Indian cities and Bangladesh shows
that 64% of the respondents live life with 70 dollars a month. The World Bank study reports
that transgenders active in the leadership programme of the community development project
also live a life below the poverty index. The social stigma leading to disinheritance from
family properties also lead to poverty.
Apart from the education and employment, the transgender community is also marginalized
from standard health facilities. In addition to the stigma, the group faces mental and physical
health issues which increase the suicidal tendencies. Studies in United States, Canada and
Europe have found high rates of suicide attempts among transgender people. Globally,
transgender community is 49 times more likely to have HIV and NACO (National Aids
Control Organisation) estimates that in India 7.5% among transgender community has HIV.
A project called “Trans Murder Monitoring project” 2017 states that around 2343 reported
killings of gender diverse people have taken in 69 countries between 2008 and 2016. The
highest number of crimes has found to be in the countries where social movements for this
causes have started long back, like Brazil, Mexico, Columbia, Venezuala etc. The number of
murders of transgender people in India during this time was 62. Most of the murders were of
brutal nature and shows extreme pain and mutilation.
Date: 1-11-2018
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Lead Essay
EFFORTS AT REGIONAL LEVEL
Date: 1-11-2018
A few States in India like Tamil Nadu, Maharashtra, West Bengal and Karnataka have
constituted the Transgender Welfare Board to look into the issues related to transgender
people. The Govt. of Tamil Nadu and Kerala have also reserved seats in colleges and
universities for transgender person. Tamil Nadu AIDS initiative has formed a federation of
20,000 transgender person, to provide effective health services for the community. Kerala
government brought state policy for transgender in 2015 under which a transgender justice
board has been formed for redressal of cases and dispute. The village Panchayat and district
Municipalties are asked to find jobs and employment for transgender persons in formal and
stable economic activity. Kerala has also introduced a pension scheme for transgender above
the age of 60. It recently directed the universities to reserve seats for transgender in
undergraduate and post graduate courses. Odisha is also one of the States to draft a
Transgender Bill which states that the family to abandon transgender child will be punished
by law.
The role of NGOs, Cooperative bodies and activist groups has been instrumental in bringing
changes in the life and conditions of transgenders. Activist groups and Community Centres
are seen most of the big cities, like Kolkata, Mumbai, Chennai. There are also Community
Health Centres and Self Help Groups functioning for the support of the community.
‘Prothoma’ in Kolkata is Asia’s biggest shelter house for Transgender persons built by PLUS,
an organization formed for transgender all over the country. Similarly there are other
organizations working on these issues like SAATHII (Solidarity and Action against in HIV
Infection in India) (Kolkata) and Sahodari (Chennai). Witnessing the efficiency of Co-
operative societies in bringing changes, Kerala government declares financial assistance to
transgender through co-operative societies.
A study was done by SAATHII in 2008 reveals that more than 60% of the total organizations
are working in the eastern and southern regions. Organisations from the central and northern
region constitute 21% and the western and North Eastern region is 12% and 6% respectively.
Within the regions a few States had more organization than the others e.g. Andhra Pradesh
and Tamil Nadu in south and West Bengal and Odisha in east. According to the research
approximately all the organizations works on the front of HIV prevention and awareness
programmes. A few old organizations also provide psycho- social counseling and further
legal and policy help.
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Lead Essay
The organizations are seen working mostly in the regions where States like Kerala and
Maharashtra which have built measures to address the issue. This again highlights the need
for State laws and sponsorship.
GLOBAL DEVELOPMENTS
Transgenders are a marginalized community worldwide. More than 50 countries called out
for attention on the violation of rights based on gender identities and sexual orientation in UN
Human Rights Council 2006 meeting. This call for action led to the formulation of
Yogyakarta principles which were charted in Human Rights Council, Geneva 2007. The
principles aimed at reducing crime and discrimination of sexual minorities by declaring their
rights and directing the State to make laws. The principles have been added with more
clauses to give new ground to gender expression and sex characteristics in 2017, which now
is called ‘Yogyakarta Principles + 10’. The document elaborates the Rights to human and
personal security, economic, education and cultural rights for transgender community. The
other rights include right to expression, opinion and association, right of participation in
cultural and family life. There are also additional recommendations for National Human
Rights Institutions, funders, NGOs, UN agencies and other treaty bodies to function and take
action against discrimination and to declare that effective human rights is a responsibility of
all. The YP+10 also makes additional recommendation for forming a national human rights
association sporting association inclusion of community in sports with dignity and all rights.
State action and movements by social and activist groups are simultaneous phenomenon in
most of the countries. Most countries have decriminalised homosexuality and have given
legal status to transgenders. Countries like Malaysia, Kuwait and Nigeria have resisted the
use of the word “opposite sex” as this term inherently identifies only two genders. Argentina
brought effective and influential changes in 2012 by bringing legislation on gender
recognition. It stated that people above 18 have full right to choose identity, reassign the
gender and also change the previous record. In the next three months Columbia, Denmark,
Ireland and Malta initiated provision for legal gender consideration making it easier for
people to change and choose gender.
Date: 1-11-2018
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Lead Essay
In Nepal, the Supreme Court had asked the government to bring a third gender category
based on self identification. Following this, transgender category was seen in voting rolls in
2010, federal census 2011, citizenship documents in 2013 and passports in 2015. Pakistan has
also moved ahead with progressive laws. In 2009, the Supreme Court of Pakistan ruled the
recognition of third gender and Pakistan assembly has recently passed its Transgender
Persons (Protection of Rights Bill) in May 2018.
Another significant development at global level is the World Health Organisation’s revision
of the classification of diseases which has moved the diseases related to transgender out of
the mental, behavioral, and neurological disorders category. These diseases are not put under
diseases related to sexual health and hopefully will reduce the stigma and bring out the real
health problems.
WAY FORWARD
The ground breaking verdict given by the Court does not imply a sudden and drastic change
in the functioning of institutions and society. As seen in previous years, the institutions often
behaved in a discriminatory matter. The infamous case of Jayalakhsmi vs Tamil Nadu stands
as an example of discriminatory behavior of State agencies where the police was held for
repeated rape of a transgender who later killed himself.
Many of the progressive steps taken till now have failed to bring any prominent change in the
outlook of the society. Delhi University opened up seats for transgender students in 2014,
however only a few applications on this category were received. In 2015 Ms Manav
Bandopadhayay became the first transgender college principal in West Kolkata. Later she had
to submit her resignation after she was unable to gain any cooperation from the students and
teachers. In this regard she states “All my colleagues turned against me. Most of the students,
too, were opposed to me. I always tried to create an atmosphere conducive to studies in the
college, but they didn't like it”.
Date: 1-11-2018
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Lead Essay
The first and foremost step ahead on the part of the State would be clearing the Bill and
immediate making of laws. The legislation of good and effective laws asks for more research
and surveys. As most surveys till now have been done on the basis of the two existing gender
identities of being male or female, a new perspective of third gender has to be integrated in
the surveys. Insufficient data on various parameters and differences in rural and urban context
is a major constraint to bring effective policies. There is a need of intersectional conversation
between sociologists, economists, public health experts which would result to an integrated
and wholesome development of the community.
More targeted programmes for transgenders should be started. The report on transgender
community by Ministry of Social Justice and Empowerment acknowledged that training and
sensitivity programmes should be initiated for the police forces to deal with transgender
matters. The financial inclusion of the community can be increased by providing targeted
loans and increasing the programmes for transgender’s livelihood. 50% of the organizations
in Bangladesh work on providing livelihood and earning ways whereas in India its only 16%.
More skill development programmes and micro-finances should be made available for the
community exclusively.
Apart from reservation for transgender person in educational institutions, the education
curriculum should be updated to do away with the previous gender notions and stigma. The
institutes should be mandated to create proper mechanism to end discrimination and drop out
of the transgender students. The educational institutes can be made more inclusive for
transgender people by addressing the issues like toilets and uniform. An increase in literacy
rate in general is believed to reduce the stigma related to transgender.
The empowering of the transgender community is crucial for building a more inclusive
society and also for economic reasons. A World Bank’s survey calculates the monetary loss
of India due to discrimination to be 32 billion dollars. The end of discrimination is also
crucial if India wants to reach the sustainable goals. Supreme Court Judge Indu Malhotra said
“History owes an apology to the LGBT community; they deserve to live a life Unshackled
from the shadow from being unapprehended Felons” which shows the urgent need of laws to
bring changes in the dismal situation.
Date: 1-11-2018
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REFERENCES
Date: 1-11-2018
Aruvidha, T. S. (2016). No Country for Transgeder? Economic and Political weekly , 19-23. Callahan,
R. (2009). Binding gender; ending gender. Oxfor University press , 88-90.
Lead Essay
Dipika Jain, K. R. (2013). A comparison of the legal rights of Gender Non-conforming Persons in South
Asia. Economic and Political Weekly , 10-12.
Jos, J. (2017). Limiting Gender Variance; critical reflections on transgender Persons Bill. Ecinomic and
Political weekly , 21- 23.
[Link]. (2015). Historical evolution of Transgender Community in India. Asian Review of Social
Sciences . saumya, E. (2015). Indian Transgnder Healthcare Challenges . Al jazeera.
Sharful Islam Khan, M. I. (2009). Living on the extreme margin, Social exclusion of trangender
population. Journal of Health, Population and Nutrition , 441-451.
Sharma, N. (2018, August 03). Cabinet passes reworked Transgender Bill with 27 changes. The
Economic Times .
Sharma, N. (2018, August 3). Cabinet passes reworked Transgender Bill with 27 changes. Retrieved
october 26, 2018, from The economic times: [Link]
and-nation/cabinet-passes-reworked- transgender-bill/articleshow/[Link]
Sincy Wilson, H. M. (2017). Transgender Protection Rights in India-An analysis. Art & Education
Reseach Journal , 8-21.
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