Transgenders in India : NALSA Judgement, Section 377, Protection of Rights Bill and issues

Transgender people are individuals of any age or sex whose appearance, personal characteristics or behaviours differ from stereotypes about how men and women are supposed to be. Their community is also called LGBT community. Let us broadly see how transgenders are discriminated against, what legal rights do they have and what limitations they face, the landmark NALSA judgement, Section 377, and the Transgender Persons (Protection of Rights) Bill, 2016.

Discrimination by society

Transgender people face discrimination from the society as well as from the government. In poor sections of India, transgenders are often expelled from their house and sent off to live with other transgenders, making them vulnerable to homelessness. Unemployment rates are very high among transgenders, justifying their unique profession of strong-arm begging.

Discrimination by government;

Non-recognition for third gender in both criminal and civil statutes such as those relating to marriage, adoption, divorce, etc means that transgenders cannot legally adopt kids, and their marriage would not be legally recognised as a transgender marriage.

Recently, however, all state and union governments of India have started including ‘transgender’ as a gender option in various forms related to jobs and government services.

NALSA Judgement – a landmark in recognition of Rights of transgender people

  • In the NALSA Judgement (National Legal Services Authority vs. Union of India), the Supreme Court upheld that fundamental rights are available to the third gender in the same manner as they are to males and females.
  • The Court also upheld the right to chose one’s gender identity as part of Right to Life under Article 21, i.e., a person may chose to be identified as male, female, or third-gender without any external validation. This is called the Right to Self-Identity.
  • The Court also asked the Central and State government to extend reservation in educational institutions and public employment to the transgenders.

The landmark 2018 Judgement on Section 377 of the Indian Penal Code decriminalised homosexual sex

  • Section 377 of the Indian Penal Code makes sexual activities “against the order of nature” illegal.
  • Until 6 September 2018, this law was also applicable to homosexual acts, making sexual intercourse between homosexuals illegal and punishable by law, as it was considered against the order of nature.
  • On September 6, 2018, the Supreme Court of India ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, “irrational, indefensible, and manifestly arbitrary”, but that Section 377 will remain in force relating to sex with minors, non-consensual sexual acts, and bestiality (sex with animals).
  • History of the legal battles of Section 377’s applicability to homosexual sex
    • 2009: Delhi High Court held it violative of Articles 14 (Right to Equality),15 and 21 (Right to Life) of the constitution.
    • 2013: Supreme Court upheld its validity, upsetting the Delhi High Court verdict.
    • September 6, 2018: Supreme Court revised its earlier ruling and made the law inapplicable to homosexual sex.

The Transgender Persons (Protection of Rights) Bill, 2016

  • The bill seeks to protect rights of people identified as transgenders.
  • December 17, 2018: The Bill was passed by the Lok Sabha. However, the bill faced criticism and rejection by the transgender community for various reasons:
    • It has a problematic definition of the term ‘transgender’
    • It does not provide reservation to the transgenders.
    • It criminalises begging.
    • It destroys the notion of gender self-identification by making the requirement of a certificate from the District Magistrate to be identified as a transgender.
    • It does not lay any legal provision to punish sexual assault against transgenders.
    • Read more about Why India’s Transgender Community Rejected the Trans Bill on The News Minute.

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