UNPACKING MODELS OF THE LGBT RIGHTS WITH SPECIAL REFERENCE TO INDIAN CRIMINAL JUSTICE SYSTEM
UNPACKING MODELS OF THE LGBT RIGHTS WITH SPECIAL REFERENCE TO INDIAN CRIMINAL JUSTICE SYSTEM
ABSTRACT
One of the most contentious and debated problems in India is LGBT rights & Section 377 of the Indian Penal Code, 1680. The study opens with an introduction in which the authors provide a quick overview of the LGBT community. In this regard, there are two opposing viewpoints: one supports LGBT rights and argues that they should be granted all of the same rights as any other person, while the other opposes it. The research intends to address the rights of the LGBT population in India, with a focus on Section 377's arbitrariness and ambiguity. The study also looks into the community's historical standing.
A comparison analysis of before and after the NALSA Judgment is also included in the study. The moment has come for the LGBT people to be embraced not only legally, but also ethically and socially as a members of human society. Finally, the authors conclude the study with closing observations and proposed actions for the LGBT community to overcome the gaps in the current legal framework.
Keywords: LGBT Rights, LGBT community, Section 377 IPC, Human Society.
INTRODUCTION
Transgender is a broad term that encompasses a variety of identities and experiences, including those whose gender identification, gender expression, or gender behaviour differs from their biological sex - male or female. They are classified as a "third gender" institution, which incorporates and consists of hijras, eunuchs, napunsaka, tritiyaprakriti, kothis, aravanis, and jogappas, among other things. The absence of procreative potential is denoted by either of the terms for third gender. TGC also includes those who are considering or have had Sex Re-Assignment Surgery (SRS) to align their biological sex with their gender identification and become male or female. SRSs are commonly referred to as transsexuals. Furthermore, transvestites, or those who cross-dress in attire of the opposite gender, exist.
Activists from diverse organizations across India met to discuss the present situation of transgender rights access in their states, the status of the National Legal Services Authority (NALSA) judgement, and the most difficult challenges they encounter in obtaining justice. Based on genuine field work experiences by activists, community workers, and human rights specialists, an in-depth analysis of the inadequacies in the implementation of the NALSA Judgment, as well as other laws, legislations, programmes, and schemes for transgender people.
Within the NALSA judgement, research addresses issues such as the right to self-identification, name and gender change for identity certification, equal employment opportunities, workplace harassment, access to sexual rights, and a lack of personal and private laws (such as those governing inheritance).
The proposed bill on transgender rights, as well as its failure to create a robust legal framework that represents the community's voices, will be explored in depth. The report finishes with a concerted plan of action that the national movement for transgender rights may implement in the future to ensure that members of the community be granted their constitutional rights.
HISTORY
The transgender community (TGC hereafter), as a group have had a strong historical presence in our ancient religious literature and other kinds of literature, viz., Vedic and Puranic literature make a mention of “tritiya prakriti‟ or “napunska‟ for TGC, Ramayana (Lord Rama’s benediction to TGC to confer blessings on people on auspicious occasions, which is believed to set a stage for the custom of badhai), Mahabharata (The incident of Aravan, the son of Arjuna and Nagkanaya in Mahabharata, offers to be sacrificed to Goddess Kali to ensure the victory of the Pandvas in Kurukshetra and the hijras of Tamil Nadu consider Aravan their progenitor and call themselves Aravanis; and another prominent reference is to “Shikhandi‟ encountering Bhishma in Kurukshetra), Jain textual literature make a detailed reference to the concept of psychological sex which is a reference mentioning about TGC, hijras were kept in the courts of Mughal rulers in Medieval India.
Though transgender people/hijras had an important role historically, the situation altered with the advent of colonial power in India from the 18th century onwards, since throughout colonial rule. The Criminal Tribes Act of 1871 (repealed in August 1949) was designed to oversee TGC/hijras' actions, deeming the entire community of transgender people as fundamentally criminal and addicted to the systematic commission of non-bailable offences.
The act penalised eunuchs who had registered and seemed to be dressed or adorned like a woman in a public street or location, as well as those who danced or played music in a public place. Such individuals could be arrested without a warrant and convicted and/or fined if they were reasonably suspected of kidnapping or castrating children or of committing offences under Section 377 of the Indian Penal Code, 1860. Though Section 377 of the Indian Penal Code, 1860 is linked with specific sexual acts, such as all penile-non-vaginal sexual actions between persons, including anal intercourse and oral sex, it has been used as a tool of harassment and physical abuse against hijras and transgender people.
SECTION 377 INDIAN PENAL CODE
“Sec. 377- Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Section 377 Indian Penal Code, which bans homosexuals fails to adhere to the “Golden Triangle” test[1] devised by the Indian Supreme Court to inspect the constitutional validity of the laws enacted by the Government. The aforementioned is discriminatory, arbitrary and unreasonable hence violative of the Right to Equality and the Rule of Law enshrined under Art. 14[2], and the Right to Life enshrined under Art. 21[3] and they violate international obligations too[4].Furthermore, Section 377 IPC is not in state interest and Democratic countries have a moral and legal obligation to protect people from discrimination or violence based on their identity.
Though a particular right is itself not violated by a State Act but it may be deemed to be denied to an individual if he is denied equal enjoyment of the right on account of any distinction[5] which is not otherwise justifiable. This would be a violation of the Right to Equality before the law[6].
The ambit of Article 14[7] also covers homosexuals and section 377[8] is discriminatory as oppressive to minorities in a community arbitrary and unreasonable and it discriminates on the basis of sex which violates Article 15.
SECTION 377 IPC IS OPPRESSIVE TO MINORITIES IN THE COMMUNITY.
Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only[9]. Any non-procreative sexual activity is thus viewed as being "against the order of nature". The legislation criminalizing consensual sex among adults is outdated and has no place in society.
The Supreme Court, by reversing the 2009 Delhi High Court ruling that decriminalized same-sex conduct between consenting adults, failed to recognize everyone’s internationally protected right to privacy and non-discrimination and the Supreme Court’s ruling is a disappointing setback to human dignity.[10]
Principle 2(b) of the YOGYAKARTA PRINCIPLES[11]states that
“States shall repeal criminal and other legal provisions that prohibit or are, in effect, employed to prohibit consensual sexual activity among people of the same sex who are over the age of consent, and ensure that an equal age of consent applies to both same-sex and different sexes sexual activity.” Moreover, it says that “everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members. States shall take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation or gender identity”.
On 15 April 2014, the Supreme Court passed a landmark judgment in the case of National Legal Services Authority vs. Union of India[12] (hereafter referred to as the NALSA Judgment) in relation to transgender rights. The judgment was profound in that it provided legal recognition to transgender people by accepting them as a third category of gender and thus forgoing the binary gender system of male and female. The order laid down the principle of the right to self-determination of gender, by giving preference to psychological tests over biological tests, and thereof recognition in the law. It also placed obligations on the Central and State Governments with the aim of creating a political and legal environment that would allow transgender persons and ‘sexual minorities’ access to their rights and to reach their full potential. It would provide them with education, healthcare, housing, livelihood and in effect, their dignity.
After four years since the passing of this judgment, little has been done to uphold its spirit on the part of State and Central Governments. Moreover, in practice, this judgment has proved to be extremely confusing and lacking in many areas. In the 130-page judgment, there was no mention of the following words: FTM (Female to Male), MTF (Male to Female), Transwoman, Transman, Intergender, Bhaiya, Babu, Kotha, FTK (Female to Kotha), Thirunambi, Genderqueer, Gandabasaka. In some parts of the judgment, it even seems to conflate transgender people with intersex people. The judgment calls on the transgender community to be considered ‘socially and economically backward’ so that the transgender persons can avail the few benefits provided to other backward communities. This clubbing of caste-based discrimination (considering the similarities to legislation surrounding Scheduled Castes and Tribes) and gender-based discrimination excludes the deep-rooted problems faced by both communities. The issue of sexual intercourse, though given a perfunctory glance, was not looked deep into. This judgment did not talk about the importance of sexual relations for persons to enjoy a dignified and meaningful life. The language also deems transgender people to be “not normal” in the very first line, thus compounding the social stigma and subsequent psychological problems faced by them.
The judgment has in many ways failed in its implementation. Though it recommended SRS services for free in public hospitals, there have been instances where the hospital authorities do not even give the documentation as they fear claiming that they have facilitated the transition process of transgender people. There has been no significant effort to sensitize the people in authority over the issues and problems faced by transgender people. The recommendation of separate toilets for the transgender has also not been fulfilled.
The Rights of the Transgender Persons Bill was introduced as a private member’s bill by Tiruchi Siva in December 2014 following the NALSA judgment. This bill was unanimously passed in the Rajya Sabha, but it was never debated in Lok Sabha. The Bill passed in the Rajya Sabha had many progressive clauses including the creation of institutions like the national and State commissions for transgender people, as well as transgender rights courts. However, the version of the bill presented to the Lok Sabha in August 2016 had undergone considerable revisions. Some key problematic areas that the bill presents are:
a) The legislation identifies transgender people as being ‘partly female or male; or a combination of female and male; or neither female nor male’. This definition is a considerable departure from the original bill’s intention to cleanse society of the stigma it placed on transgender people.
b) Moreover, it eliminates the option of identifying as either male or female, thus undermining the right to self-determination of gender.
c) The bill creates a burdensome process for the recognition of the identity of sexual minorities. Individuals have to submit themselves to a medical examination by a District Screening Committee comprising a Chief Medical Officer, a psychiatrist, a social worker, and a member of the transgender community. Hence, this hampers the right of individuals to self-identification of their sex. The government is allowed to act as a gatekeeper in deciding who can and cannot identify as transgender.
d) The bill does not provide a clear definition of what constitutes discrimination. It does not provide an enforcement mechanism for invoking criminal sanctions when discriminatory behaviour occurs. Also, it has done away with remedial measures to prevent sexual discrimination that were provided in the draft of the original bill.
e) The bill does not address crucial issues of inheritance, property, adoption, marriage rights, reservations or anti-discriminatory provisions, which are critical to enable transgender persons and those belonging to sexual minorities to live a life with dignity. Key issues that transgender persons face like harassment in schools and workplaces, rendering them unable to function within such hostile societies and dropping out - remain unaddressed.
This reflects the callous attitude of the legislature towards the transgender community and their ignorance of previous research, reports, consultations and judicial orders about the transgender community. While activists vow to challenge the ruling, the decision to decriminalize homosexuality is now in the hands of the upper house. While the good news is that the government has recently changed its position on the issue, arguing for it in the court pointing out that the anti-gay law in the country was archaic and that Indian society has grown more tolerant towards homosexuality, the bad news is that still there many lack of information and arbitrariness in the law because of which the community is suffering till now.[13]
- A rule whose ingredients are vague in nature is arbitrary and unreasonable.
The right to equality not only means the right not to be discriminated against but also protection against arbitrary or irrational acts of the State[14]. Art.14 lays down that no person shall be denied, by the state, equality before the law or the equal protection of the laws within its territory[15]. Article 14 strikes at arbitrariness and unreasonable actions of the State, which are “antithetical” to the rule of equality.[16]
Sec 377 IPC is a weapon for abuse by the police, for extortion, harassment and to perpetuate negative and discriminatory beliefs towards same-sex relations and sexual minorities.
In today’s scenario, some transgender persons work in trains (begging) and are often arrested by police and thrown into jail. Even if they possess all relevant identity proof, police officials force them to talk about their male identities and harass them with filthy comments. Furthermore, there are no separate lockups for trans men and trans women. This forces them to encounter instances of serious misbehaviour; which includes cutting their hair and shaving their bodies. The lack of separate jails often leads to transgender persons being locked up in solitary confinement - which is extremely traumatic for them.[17]Arbitrary action is described as one that is irrational and not based on sound reason or as one that is unreasonable[18]
Through the implementation of the NALSA judgment, some changes have been observed. But at the grassroots level, people are still compromising with the situation and continue to face issues related to their gender identity and rights. It was highlighted that whenever people of the community applied for loans to buy vehicles, the bank did not approve them. There existed preconceived notions that transgender persons would not repay loans and thus could not be trusted.[19] Wherever we find arbitrariness or unreasonableness there is a denial of the rule of law[20]. Rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the object is the securing of paramount exigencies of law and order[21]
The nature of the provision of Section 377 Indian Penal Code and its purpose is to criminalize the private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalize conduct which fails to conform to the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity.
VIOLATIVE OF ARTICLE 14
It is submitted that for upholding the classification under Article 14 twin test must be satisfied.[22]
a) Classification must be founded on an intelligible differentia
Intelligible Differentia means a factor that distinguishes a class from another which is capable of being understood[23]
It is submitted that Section 377 IPC creates a classification between persons indulged in proactive and non-proactive sexual acts which are unintelligible as it creates a class of vulnerable people continually victimized and directly affected by the provision.
In Romer v. Evans[24], the US Supreme Court concluded that the provision named a solitary class person who was homosexual, lesbian, or bisexual either by "orientation, conduct, practices or relationships".
The classification enabled by the provision is based upon no reasonable ground since it creates a class for homosexuals merely on the differentiation of sex which is not capable of being understood. Such class legislation is hostile, discriminatory and contrary to Article 14 of the Constitution. By criminalizing sexual acts and assisted procreation engaged in by homosexual men, they are denied this fundamental human experience while the same is allowed to heterosexuals.
Thus, section 377 exposes homosexual persons to a disproportionate risk of prosecution and harassment. The Act discriminates against homosexuals, as it puts a ban on their living hood which is part of the right to life and liberty. Moreover, there is no specific statute enabling or regulating marriage and adoption among homosexuals in India. Therefore, the ban on cohabitation for homosexuals restricts them from starting a family, unlike others which is undemocratic and regressive.
b) Classification or differentia must have reasonable nexus to the object sought to be achieved
In considering reasonableness from the point of view of Article 14, the Court has also to consider the objective for such classification. If the objective be illogical, unfair and unjust, necessarily the classification will have to be held as unreasonable.[25] The objective of penalizing unnatural sex under Article 377 IPC has no rational nexus to the classification created between procreative and nonprocreative sexual acts.
As held in Anuj Garg v. Hotel Association of India,[26] if a law discriminates on any of the prohibited grounds, it needs to be tested not merely against "reasonableness" under Article 14 but be subject to "strict scrutiny". The impugned provision in Section 377 IPC criminalizes the acts of homosexuals. It disproportionately impacts them solely on the basis of their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution.
Section 377 of the IPC suffers from the vice of unreasonable classification and is arbitrary in the way it unfairly targets the homosexuals or gay community. They are only stereotypical, and outdated and have no historical or logical rationale rendering them unreasonable and arbitrary.
DIFFERENTIATION ON THE BASIS OF SEX VIOLATES ARTICLE 15
It is stated that even though TGC have a law in place to safeguard their basic rights and provide them with the support needed to live a life with dignity, to its full potential, persons of the community remained vulnerable. They constantly faced discrimination from all levels of society and the Hijra community remained marginalized. It was highlighted by the sudden government’s announcement that those who beg for money would face imprisonment. In this case, police started making arrests of transgender persons involved in traditional trades like that of hijras - in spite of it not being categorized as begging.[27] This shows that there is little understanding of TGC and sexual minorities amongst the public, as well as amongst persons of law and order who are charged with the safeguarding of transgender rights.[28]
It is acceptable that a few changes have been made in every state due to this pronouncement which has given us the right to fight back with support but the scene after years is still heartbreaking. Adding to the position in the state of West Bengal, the situation is similar to that of the other states because even though the judiciary has given us a stand in the society there is still a lack of awareness amongst the society as well as lack of implementation at the grassroots level.[29]All human rights are universal, interdependent, indivisible and interrelated. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse. In Toonen vs. Australia[30] the Human Rights Committee, while holding that certain provisions of the Tasmanian Criminal Code[31] which criminalize various forms of sexual conduct between men violated the ICCPR, observed that the reference to 'sex' in Article 2, paragraphs 1 and 26 (of the ICCPR) is to be taken as including 'sexual orientation'.
United Nations has been instrumental in advocating the protection and promotion of the rights of sexual minorities. The Universal Declaration of Human Rights, 1948[32] and The International Covenant on Civil and Political Rights, 1966[33] (ICCPR) recognize that every human being has the inherent right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right and that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation since everyone has the right to protection of law against such interference or attacks.[34]
The impugned provision in Section 377 IPC criminalizes the acts of that disproportionately impact them solely based on their sexual orientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 violates Article 15 by discriminating on the grounds of sexual orientation as although facially neutral it treats homosexual men unequally compared to heterosexuals and imposes an unequal burden on them.
Section 377 IPC creates structural impediments to the exercise of freedom of speech and expression and other freedoms under Article 19 by homosexuals or gays and is not protected by any of the restrictions. Prohibition against homosexuality in Section 377 IPC curtails the basic freedoms guaranteed under Article 19 (1)(a) (b) (c) & (d); in that, an individual's ability to make personal statements about one's sexual preferences, right of association/assembly and right to move freely so as to engage in homosexual conduct are restricted and curtailed.
It was emphasized that all stated issues can be extremely tiring for youngsters. Young people face multiple layers of stigma which ultimately harms their mental health. They have grown up in a world where they believe it is easy to come out and live by their gender identity. However, the barriers presented by society and existing institutions create an atmosphere of fear and uncertainty. This is even more exacerbated by the anxiety and apprehension that they go through on a personal level.[35] The right to life enshrined in Art. 21 of the Constitution means something more than survival or mere animal existence.[36] It includes the right to live with human dignity.[37] It would include all those aspects of life which go to make a man’s life meaningful, complete and worth living.[38] If any statutory provision runs counter to such a right, it must be held to be unconstitutional and ultra vires to part III of the constitution.[39]The right to life includes the right to live with human dignity and persons and includes “expressing oneself in diverse forms, freely moving about and mixing and compelling with fellow human beings”. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity.[40] In Anuj Garg vs. Hotel Association of India[41], the Court held that personal autonomy includes both the negative right not to be subject to interference by others and the positive right of individuals to make decisions about their lives, to express themselves and to choose which activities to take part in. Self-determination of gender is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
We all have the right to be treated equally. When governments fail to protect people, Amnesty International is there – helping ensure that all people can live in dignity, safety, and freedom.[42]
RIGHT TO LIFE OF AN INDIVIDUAL INCLUDES “RIGHT TO PRIVACY” INCLUSIVE OF SELF-IDENTIFICATION
“Right to family formation” is a facet of the right to life as held by the Supreme Court of India in the case of R. Rajagopal v. State of T.N[43]it was further held that “It is a right of a citizen to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters” and right to be free from unnecessary, arbitrary state interference in the same”. It is evident that there are cases where people are unaware of the NALSA judgment, they were not aware of the procedure of gender identification and their rights under the law, and hence do not undergo the process.[44]
Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including about their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation.[45]
A study of 16 districts of West Bengal showed that each district-level committee has one transgender person as a specialist. However, they had multiple rules and regulations - such as requiring a person to wear female attire for 24 hours before an appropriate identity card could be issued - thereby invalidating the principle of self-identification and creating unnecessary barriers for individuals wishing to change their name and gender. There was hope amongst the community that with the gradual implementation of the NALSA judgment, there would be a change in this procedure, however, no such thing has come to pass. The TGC is campaigning to ensure that the transgender welfare board follows the dictate of the NALSA judgment. [46]
The state seemed to have locked in on the ‘third gender’ verdict of the NALSA judgment, ignoring all other subsets under the transgender category. Moreover, the only people who could easily identify in the binary were those who had undergone an SRS procedure. The changing of gender in passports was an extremely difficult process unless one was applying for a passport for the first time.[47]
Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. How one gives expression to one's sexuality is at the core of this area of private intimacy. If, in expressing one's sexuality, one acts consensually and without harming the other, an invasion of that precinct will be a breach of privacy.[48]Section 377 of the IPC which criminalizes carnal intercourse and homosexuality infringes the privacy of the TG community as they are acting consensually without harming the society.
Section 377 of the IPC which criminalizes carnal intercourse and homosexuality infringes the privacy of the LGBT community as they are acting consensually without harming the society. The right of reproductive autonomy or procreative choice of an individual was held by the Hon’ble Court to be an aspect of his right to privacy[49] which is inherently violated by the impugned section of IPC.
MARRIAGE RIGHTS OF HOMOSEXUAL IN INDIA
It is a criminal offence for two consenting adult gay, bisexual and transgender persons to have sex in India. Lesbian women are not criminalized under Sec. 377 as it criminalizes only ‘penile non-vaginal sex’. However, lesbian women are frequently persecuted and prosecuted under false cases of kidnapping and/or theft offences, when partners elope. A gay, bisexual or trans person solemnizing a same-sex marriage in India may be interpreted as ‘intending’ to violate the law under Sec. 377, as ‘consummation of marriage’ by sexual relations is intrinsic to a marriage, as per both social and legal norms.
“Further, all statutory laws relating to solemnization and registration of marriages in India, whether codified or customary laws relating to Hindus, Muslim, Parsi or Christians or the civil marriage law, only legally recognize heterosexual marriages. The laws provide for marriage between ‘husband’ and ‘wife’, ‘man and ‘woman’ or ‘bride’ and ‘bridegroom’. Despite the Supreme Court decision in National Legal Services Authority (NALSA) v. Union of India (2014)[50], which requires Central and State governments to amend laws to provide the ‘right to marry’ for transgender persons, among other rights, it is still an open question whether the un-amended marriage laws in their present state legally permit solemnization and registration of a marriage involving a transgender spouse.”
NOT IN STATE INTEREST
Gobind v. State of M.P.[51]held that if the court does find that a claimed right is entitled to protection as a fundamental privacy right, the law infringing it must satisfy the compelling state interest test. While it could be "a compelling state interest" to regulate by law, the area for the protection of children and others incapable of giving valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a "compelling state interest" to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves.[52]
Section 377 of the IPC infringes on privacy by criminalizing carnal intercourse as their sexual orientation is their private affair. It also damages their dignity by not recognizing homosexual couples.
PRESENT PICTURE OF SECTION 377 IPC
In Toonen v. Australia[53], the Human Rights Committee noted that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV.
It is submitted that enforcement of Section 377 IPC renders risky sexual practices to go unnoticed and unaddressed. The Law Commission has recommended the deletion of Section 377 IPC, though, in its earlier reports, it had recommended the retention of the provision.
In the 172nd report, the Law Commission of India focused on the need to review the sexual offences laws in the light of increased incidents of custodial rape and crime of sexual abuse against youngsters, and inter alia, recommended deleting the Section 377 IPC by effecting the recommended amendments in Sections 375 to 376E of IPC.
CONCLUSION
Issues which could be litigated immediately include dropouts from schools, separate toilets, PAN cards, Adhaar Card problems, Organizations having no gender policy, Treatment in jail solitary confinement and legal aid for the TGC community.
Matters which were most pressing and required immediate response firstly, the demand for the rights afforded to the transgender community under the NALSA judgment through its proper implementation. Further, the rights of sexual minorities must be ensured beyond the scope of NALSA.
Secondly, there is an urgent need for the presence of a functional transgender welfare board which allows for community participation at the decision-making level. Here, the various subsets of the transgender community must be adequately represented to ensure that diversity is maintained and their interests are protected they must have a clear set of directions as well as the ability to deal with grievances brought up by transgender persons and to assist them in changing of names and genders on their identity proof documents.
Thirdly, The Rights of Transgender Persons Bill is vague in many legal terms like it does not define or punish for the discrimination against transgender persons. Laws must be enacted to this effect in line with those for discrimination against scheduled castes and scheduled tribes (SC/ST) and additionally, discrimination against persons of sexual minorities in applying for jobs requires immediate response to ensure they are afforded the same opportunities as cisgender individuals and that jobs are awarded on merit basis. Transgender persons are entitled to a life of dignity, and this must be afforded to them.
Fourthly, Harassment of transgender students at the school level is one of the chief causes for them dropping out of school and thus hindering their fundamental right to education. Hence, at both school and university levels, steps need to be taken to eliminate discrimination and bullying of transgender people. This can begin through strict laws against bullying of transgender as well as a change in curriculums to bring about a better understanding of persons of sexual minorities and eliminate pre-existing bias. Teacher training must also include training of sensitivities regarding gender identity so that they can shape young minds accordingly and change can be brought about at the grassroots level.
Fifthly SRS is a key procedure for transgender persons and amounts to a lifesaving surgery. However, many are unable to afford it due to the high costs involved. Therefore, actions must be taken for coverage of SRS and any related procedures (such as hormone therapy) under medical insurance by showing that gender dysphoria is a medical condition and thus SRS is a medically necessary procedure and there must be a provision of paid medical leave for persons undergoing SRS procedures, taking into account that it is a medically necessary surgery and not a cosmetic or optional one. Infrastructure must support transgender persons and ensure their security. For instance, public gender-neutral toilets must be constructed. Transgender favourable infrastructure must include hospital wards, correctional homes, Juvenile Justice homes and hostels.
Sixthly, in cases of domestic violence, the procedure dictates that the perpetrator is removed from the premises. However, in case of abuse of transgender persons, it is the transgender person who is forced out of the house and moved into rehabilitation homes - where they may continue to suffer from abuse. Such laws must change and be brought in line with those under the Protection of Women Act. There is no provision of personal or private law within the NALSA judgment. Therefore, laws like that of marriage, inheritance, divorce etc. must be enacted so that the fundamental rights of transgender persons are protected.
Section 377 must exclude transgender relationships and must be treated as separate from trans issues and rights. Currently, there is a lack of clarity regarding trans marriages because, if a transgender female (that is, a biological male who identifies as a female) marries a biological male and consummates the marriage, they are liable to be charged under Section 377. Till date, there are no provisions for obtaining property by inheritance for transgender persons, especially those who are members of the Hijra community. All existing laws related to inheritance are binary which creates a lack of clarity and makes it exceptionally difficult for transgender persons to inherit property.
All current laws and policies are in the binary, including the Indian Penal Code (IPC). The Protection of Women from Domestic Violence Act, 2005 and Juvenile Justice (Care and Protection of Children) Act 2105 as well as the IPC must be amended to reflect gender non-conforming language. This must extend to all child-related policies.
[1]Minerva Mills Ltd. & Ors vs. Union of India & Ors, AIR 1980 SC 1789.
[2] The India Constitution, Art. 14.
[3] The India Constitution, Art. 21.
[4] Yogyakarta principles were drafted, developed, discussed and reformed by a distinguished group of human rights experts in a meeting held at Gadjah made university in Yogyakarta, Indonesia from 6 to 9 November 2006, which unanimously adopted the Yogyakarta principles on the application of international human rights law in relation to sexual orientation and gender identity
[5] Belgian Linguistic Case, (1968) 11 Y.B.E.C.H.R 832 (N.33-34).
[6] Mohini vs. State of Karnataka, AIR 1992 SC 1858.
[7] The India Constitution, Art. 14.
[8] The Indian Penal Code, 1860
[9] Robert Aldrich, “Gay and Lesbian History,” in Gay Life and Culture: A World History, 11 (New York: Universe Publishing, 2006).
[10]Meenakshi Ganguly, South Asia director of Human Rights (2013) http://world.time.com/2013/12/11/homosexuality-is-criminal-again-as-indi...
[11] International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007
[12] WP (Civil) No 604 of 2013
[13]http://world.time.com/2013/12/11/homosexuality-is-criminal-again-as-indi...
[14] Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111.
[15] The India Constitution, Art. 14.
[16] Bachan Singh, Sher Singh and Anr. vs. State of Punjab and Ors, AIR 1982 SC 1325.
[17] Meera Parida, Symposium on Legal Support for Accessing Transgender Rights (2018).
[18] Om Kumar vs. Union of India, AIR 2000 SC 3689
[19] Meera Parida, Symposium on Legal Support for Accessing Transgender Rights (2018).
[20] State of Karnataka vs. State of Tamil Nadu and Ors., Civil Appeal No. 2453 of 2007.
[21] Rubinder Singh vs. Union of India, AIR 1983 SC 65.
[22] Shri Ram Krishna Dalmia vs. Shri Justice S. R. Tendolkar, AIR 1958 SC 538.
[23] Ramanatha Aiyer , Advanced Law Lexicon, 2391 (3rd Edn. 2005).
[24] 517 U.S. 620 (1996).
[25] Deepak Sibal vs. Punjab University, AIR1989 SC 903.
[26] AIR 2008 SC 663
[27] Sutanuka Bhattacharya, Symposium on Legal Support for Accessing Transgender Rights (2018).
[28] Ibid.
[29] Ibid.
[30] 3CCPR/C/WG/44/D/488/1992
[31] The Tasmanian Criminal Code Act, 1924
[32] Universal Declaration of Human Rights, Article 16(1), G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)
[33] International Covenant on Civil and Political Rights, Article 16, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171.
[34] National Legal Services Authority vs. Union of India & Ors, AIR 2014 SC 1863. Also See: ICCPR, Article 17.
[35] Neeraj, Symposium on Legal Support for Accessing Transgender Rights (2018).
[36] State of Maharashtra vs. Chandrabhan, AIR 1983 SC 803; Noise Pollution vs. In re, AIR 2005 SC 3136.
[37] Francis Coralie Mullin vs. Union Territory of India, AIR 1981 SC 74; Olga Tellis vs. Bombay Corpn., AIR 1986 SC 180; D.T.C. vs. Mazdoor Congress Union D.T.C., AIR 1991 SC 101; Consumer Education & Research Centre vs. Union of India (1995) 3 SCC 42
[38] Bd of. Trustee of the port of Bombay vs. Nandakarni Dilip Kumar Raghavendra, AIR 1983 SC 109.
[39] Confederation of Ex-Serviceman Ass. vs. Union of India, AIR 2006 SC 2945.
[40] Coralie Mullin vs. Administrator, AIR 1981 SC 746
[41] Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1.
[42] https://www.amnestyusa.org/issues/gender-sexuality-identity/
[43] AIR 1995 SC 264.
[44] Dona Marwein, Symposium on Legal Support for Accessing Transgender Rights (2018).
[45] International Commission of Jurists (ICJ), Yogyakarta Principles - Principles on the application of international human rights law in relation to sexual orientation and gender identity, March 2007.
[46] L Ramakrishnan, Symposium on Legal Support for Accessing Transgender Rights (2018).
[47] L Ramakrishnan, Symposium on Legal Support for Accessing Transgender Rights (2018).
[48] The National Coalition for Gay and Lesbian Equality vs. The Minister of Justice, [1999] ZACC 17.
[49] B. K. Parthasarthi vs. Government of Andhra Pradesh, AIR 2000 AP 156; Govind vs. State of M.P. (1975) 2 SCC 148.
[50] WP (Civil) No 604 of 2013
[51] Gobind vs. State of M.P., 1975 Cri.LJ 1111.
[52] The National Coalition for Gay and Lesbian Equality vs. The Minister of Justice, [1999] ZACC 17.
[53] CCPR/C/WG/44/D/488/1992.